Barker v Police HC Dunedin CRI 2010-412-11

[2010] NZHC 1026

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2010-412-11

BETWEEN  MICHAEL JOHN BARKER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 May 2010

Counsel:         A Stevens for Appellant

R Smith for Respondent

Judgment:      13 May 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr Barker was sentenced to eight months imprisonment for possession of cannabis for sale.  He appeals, alleging that the starting point of 12 months was too high, and the resulting sentence manifestly excessive.   No issue is taken with the Judge’s decision to allow a deduction of one-third for the guilty plea and other mitigating factors.

[2]      The charge was laid summarily under s 6(1)(f) of the Misuse of Drugs Act

1975.  The maximum sentence is eight years imprisonment, but when the charge is laid summarily the maximum available under s 6(3) is 12 months imprisonment.

[3]      The facts were that the police found the appellant in possession of six tinnies containing three grams of cannabis.  He had paid $100 for it, and admitted doing so

for onsale.

MICHAEL JOHN BARKER V NEW ZEALAND POLICE HC DUN CRI 2010-412-11  13 May 2010

[4]      At 23, he has some 20 previous convictions.   They include wilful damage, dishonesty and driving convictions.  There are no drugs convictions.  However, he has repeatedly failed to comply with community-based sentences, and he has not only failed to answer bail but also escaped police custody.  He was sentenced to 28 days  imprisonment on  27 June 2006 for breach of community work,  the Court evidently having lost patience with him at that time.

[5]      When sentenced on this occasion, the appellant also received a cumulative sentence  of  two  months  imprisonment  for  breach  of  release  conditions.    That sentence is not the subject of this appeal, and Ms Stevens does not dispute that it was open to the Judge in the circumstances to imprison the appellant for the cannabis offence.    Her  complaint  is  that  the facts  do  not  justify adopting the  maximum sentence as the starting point.  She adds that the Judge gave no reason for choosing

12 months.

[6]      The flaw in the argument is that 12 months is not the maximum sentence for the offence.   It is merely a jurisdictional limit upon the sentence available when a charge is laid summarily.[1]     The sentencing Judge should carry out the sentence calculation without reference to the summary maximum, and then check that the end sentence does not exceed 12 months.   If it does, the usual course is to decline jurisdiction and have the offender sentenced in the High Court.

[1] Brinkley v Police HC Nelson M. No. 87/90, 12 November 1990.

[7]      The next question is whether the starting point of 12 months was too high. Because the offending was commercial, it fell at the bottom end of Terewi Category

2  notwithstanding that  the  quantity was  very small.[2]      A  sentence of  two  years

imprisonment is the usual minimum starting point, although a lower starting point may be justified where sales are very few.  In such cases a 12-month starting point is not unusual.[3]    That doubtlessly explains why an experienced Judge did not think it necessary to elaborate on his decision to adopt a 12-month starting point.  Although one can easily identify more lenient end sentences in cases involving similar or

larger quantities, they normally feature clear mitigating factors which were absent here.

[2] R v Andrews [2000] 2 NZLR 205.

[3] See  for  example R  v  Rihari HC Whangarei S05102, 23 September 2005, R  v  Pulham HC Whangarei CRI-2006-029-168, 12 October 2006.

[8]      Ms Stevens argued forcefully that the sentence of eight months imprisonment is completely out of kilter having regard to the quantity and the appellant’s co- operation.  I accept that there is force in that submission, but the result is not wrong in  principle  or  on  the  authorities.    In  other  circumstances  he  might  well  have received a community-based sentence, but as Mr Smith submitted he effectively wrote his own sentence in this case.  Regrettably for this appellant he presented the Judge with few options other than imprisonment.

[9]      The sentence was not manifestly excessive and the appeal must be dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Dunedin for Respondent