Batchelor v The Queen

[2018] NZHC 3279

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2018-442-13

CRI-2018-442-14 [2018] NZHC 3279

BETWEEN

JOHN CHARLES BATCHELOR

Appellant

AND

THE QUEEN

NEW ZEALAND POLICE

Respondents

Hearing:

12 December 2018

Appearances:

A J D Bamford for the Appellant

K L Kensington for the Respondent

Judgment:

12 December 2018

JUDGMENT OF COOKE J

[1]    Mr Batchelor pleaded guilty to one charge of cultivating cannabis,1 two charges of possessing of cannabis,2 two charges of possessing utensils for consuming cannabis3 and one charge of unlawfully possessing a firearm.4 On 21 August 2018, he was sentenced to 14 months’ imprisonment by Judge Ruth in the District Court at Nelson.5 Mr Batchelor appeals against his sentence on the grounds that it was manifestly excessive.

[2]    At the conclusion of the hearing I indicated that the appeal was allowed and a sentence of four and a half months’ imprisonment would be substituted. These are the reasons for that decision.

1      Misuse of Drugs Act 1975, s 9; maximum penalty seven years’ imprisonment.

2      Section 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment.

3      Section 13(1)(a) and (3); maximum penalty one year’s imprisonment.

4      Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment.

5      R v Batchelor [2018] NZDC 17466.

BATCHELOR v R [2018] NZHC 3279 [12 December 2018]

Summary of offending

[3]    In the early morning on 26 March 2018, Mr Batchelor was in a Toyota Hilux near Nelson when it crashed into a tree after losing control on a left-hand bend. The vehicle suffered extensive frontal damage and caused considerable damage to a traffic island, a speed sign and the tree. The vehicle was being driven by another person. They had with them a .308 calibre rifle, fitted with a pistol grip, suppressor and a tripod. Mr Batchelor does not have a firearms licence, but the driver did.

[4]    Upon realising police were in the area, Mr Batchelor left the vehicle with the rifle, hiding it in  nearby  bushes.  Police  dogs  were  deployed  and  located  both Mr Batchelor and the rifle. When he was arrested, Mr Batchelor was also found to be in possession of one unused .308 round and one used .308 round. He was also in possession of approximately five grams of cannabis head.

[5]    Mr Batchelor was charged with careless driving, possessing cannabis and unlawfully possessing a firearm and ammunition. The careless driving charge was later dropped after it was accepted by police that he had been a passenger in the vehicle. The unlawful possession of ammunition charge was also later dropped. In the meantime, Mr Batchelor had been granted bail to an address in Paraparaumu.

[6]    On 5 August 2018, police carried out a bail check at the address. Mr Batchelor was not present at the time, but another occupant let police into the shed where he was staying. The shed smelt strongly of cannabis, so police invoked a statutory search power.6 A plastic container was found, which contained 4.36 grams of cannabis. A pipe and bong were also located. On a mezzanine area of the shed, there were 10 small cannabis plants under a large heat lamp. Mr Batchelor was charged with cultivation of cannabis, possession of cannabis and possession of utensils as a result.

[7]The two sets of charges were dealt with together.

6      Search and Surveillance Act 2012, s 20.

Personal circumstances

[8]    Mr Batchelor is 49 years old. He has a little over 100 previous convictions, including 48 drug-related convictions and nine firearms convictions. Of his drug- related convictions, eight relate to cannabis, although most of those are historic apart from two possession convictions over the past two years. Much of the drug-related convictions are for dealing in methamphetamine, and these convictions are mostly from the 1990s. However, Mr Batchelor was sentenced to two years’ imprisonment for dealing in methamphetamine in 2017. Mr Batchelor was sentenced to eight months’ home detention for unlawfully possessing firearms in 2014.

District Court decision

[9]    On 21 August 2018, Judge Ruth sentenced Mr Batchelor in relation to both sets of charges after he pleaded guilty. Judge Ruth noted that there was some evidence that Mr  Batchelor  had  been  self-medicating  with  the  cannabis.  He  observed  that  Mr Batchelor’s absence from his bail address was, in fact, a breach of his 24-hour curfew. He also canvassed Mr Batchelor’s lengthy criminal history.

[10]   Judge Ruth set an overall starting point for all charges at 18 months’ imprisonment. The Judge uplifted this by six months for previous offending, the fact a breach of bail was involved and for “other aggravating features which are apparent from the summary of facts”. He then gave a two-month discount to take into account the three-and-a-half months Mr Batchelor had spent on restrictive bail, as well as his health difficulties. He then gave a 25 per cent discount for guilty plea. Finally, he gave a three-month discount for custodial time served. This resulted in a total end sentence of 14 months’ imprisonment.

Approach on appeal

[11]   An appeal against sentence is an appeal against a discretion. Section 250 of the Criminal Procedure Act 2011 requires the Court to allow the appeal if, and only if:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[12]   The Court of Appeal has explained that whether a sentence is “manifestly excessive” continues to be an important guide to finding an error.7 The Court of Appeal has also explained:8

The discretion to vary [a] sentence [on appeal] is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.

[13]   If the end sentence is within range, then the appeal court will not change it, even if the lower court made an error to reach that end sentence.

Ground of appeal

[14]Mr Batchelor appeals his sentence on the following grounds:

(a)the overall starting point was too high; and

(b)no uplift was justified for the breach of bail and the uplift for previous offending was disproportionate.

[15]   The appeal also advances the point there was no jurisdiction to grant a discount for custodial time served.

First ground of appeal – starting point

[16]   Mr Bamford, counsel for Mr Batchelor, submitted that cannabis offending of this kind did not warrant a prison sentence. He nevertheless had accepted before the District Court that a short sentence of imprisonment might have been a pragmatic course of action given that Mr Batchelor had already served about three months by the time he was sentenced. He indicated that he was taken by surprise by the starting point, and ultimate sentence determined by the Judge. Mr Bamford referred to the tariff case R v Terewi, which provides that cultivation of a small number of cannabis

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

8      At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].

plants for personal use will be “almost invariably dealt with by a fine or other non- custodial sentence.”9 He also referred to Riches v New Zealand Police, where Nation J canvassed a number of recent authorities dealing with cultivation of cannabis for personal use, all of which resulted in fines or community-based sentences.10 On appeal Mr Bamford suggested that a starting point of four months’ imprisonment should be adopted for the cannabis offending, taking into account the related possession and utensils charges.

[17]   Mr Bamford submitted that the firearms offence needed to be viewed in context. Mr Batchelor had been out hunting with the driver of the vehicle, who was also the owner of the rifle. The driver was licenced to hold firearms. Mr Bamford conceded that Mr Batchelor should not have left the firearm in a public place, but pointed out that the maximum penalty for unlawful possession of a firearm is only three months’ imprisonment. He suggested that two months’ imprisonment would have been appropriate in this case.

[18]   Ms Kensington, counsel for the Crown, accepted that Judge Ruth’s sentencing approach was unorthodox, but she contended that the end sentence was not manifestly excessive. In relation to the starting point, she emphasised the need to properly take into account the fact that there were two separate sets of charges involved. She referred to several cases where sentences of imprisonment had been imposed for cultivating cannabis.11 She also pointed out that the firearms offending was on the serious end of the scale, involving a high-powered rifle with a suppressor and tripod, possession of ammunition and the danger arising from leaving it in a public place. Overall, she submitted that 18 months’ imprisonment was within the acceptable range, even if it was at the upper-limit.

Analysis

[19]   With respect to the cannabis offending, the appropriate starting point is set out by the Court of Appeal in R v Terewi.12 As Nation J recognised in Riches v

9      R v Terewi [1999] 3 NZLR 62 (CA) at [4].

10     Riches v New Zealand Police [2017] NZHC 2035.

11     Needham v Police [2013] NZHC 688; McNamara v Police HC Palmerston North CRI-2009-454- 12, 1 April 2009; and Broadmore v Police HC Dunedin CRI-2010-412-36, 27 October 2010.

12     R v Terewi, above n 9.

New Zealand Police the subsequent enactment of the Sentencing Act 2002 has reiterated the desirability of a non-custodial sentence for this kind of offending.13 I also note the observation of the Court of Appeal in R v Smyth that it is possible there may be some future reconsideration of the tariffs for this kind of offending in light of changing social attitudes to cannabis use and the subsequent passage in the Sentencing Act 2002.14 This would suggest that the Court should exercise considerable care before adopting imprisonment as a start point with this kind of offending.

[20]   Given that Mr Batchelor has now served some time in prison, for practical reasons Mr Bamford accepted a sentence of imprisonment was appropriate. I accept his submission that any imprisonment as a starting point in this case would not be greater than four months. The cases referred to by Ms Kensington were all more serious than the instant case, and involved lower starting points than that adopted by Judge Ruth:

(a)In Needham v Police, a starting point of six months’ imprisonment was adopted for 10 potted cannabis plants, 236 grams of dried cannabis head, four mature cannabis plants and 631 grams of frozen cannabis stalks.15

(b)In McNamara v Police¸ a starting point of six months’ imprisonment was adopted for cultivation of 18 cannabis plants.16

(c)In Broadmore v Police¸ a starting point of 15 months’ imprisonment was adopted for cultivation of 62 cannabis plants, with an uplift of six months for nine further plants cultivated while on bail.17

[21]   The quantity of cannabis involved in Mr Batchelor’s offending is lower than any of the above cases. I do not consider that the possession and utensils charges add significantly to the level of offending, given that the cultivation occurred for personal

13     Riches v New Zealand Police, above n 10.

14     R v Smyth [2017] NZCA 530 at [17].

15     Needham v Police, above n 11.

16     McNamara v Police, above n 11.

17     Broadmore v Police, above n 11.

use. Ms Kensington did not challenge Mr Batchelor’s claim that the cultivation was for this purpose. Given the observation in Terewi that cultivation of a small number of cannabis plants for personal use will generally lead to a non-custodial sentence, this may have been the more appropriate outcome as suggested in Riches v New Zealand Police and the authorities summarised by Nation J in that case.18

[22]   With respect to the firearms offending, I also accept Mr Bamford’s submission that an appropriate starting point would have been approximately two months’ imprisonment. While the fact Mr Batchelor was fleeing an accident scene provides some context to why Mr Batchelor was unlawfully in possession of such a weapon, it does not detract from the significant risk to public safety involved in him leaving that weapon in a public place.   I note, however, that the weapon was not loaded, and    Mr Bamford advises that the bolt was removed and not with the rifle. Moreover the rifle was only left, and intended to be left in a public place for a short space of time, and it was concealed.

[23]   On the whole, I am satisfied that the starting point adopted by Judge Ruth was well beyond the upper limit available for the totality of the offending, and resulted in a manifestly excessive end sentence. I accept Mr Bamford’s submission supporting an overall starting point of six months’ imprisonment, taking together the two distinct types of offending.

Second ground of appeal - uplift

Previous convictions

[24]   Mr Bamford submitted that any uplift for previous convictions had to be proportionate to both the nature and scale of the previous offending and to the starting point adopted for the current offending.19 While he accepted that Mr Batchelor’s extensive criminal history warranted an uplift, he pointed out that most of his previous offending involved dealing rather than possession. He also submitted that the six- month uplift was too high compared to the starting point.

18     Riches v New Zealand Police, above n 10.

19     Tiplady-Koroheke v R [2012] NZCA 477 at [24]; and Taylor v R [2012] NZCA 332 at [46].

[25]   Ms Kensington submitted that Mr Batchelor’s list of previous convictions is extensive and more than justified the six-month uplift on its own. In particular, she highlighted that Mr Batchelor has very recent convictions for possession of cannabis, a very large number of drug-related convictions across the course of his adult life and several firearms convictions. Ms Kensington submitted that these convictions demonstrate that Mr Batchelor has a tendency to commit the exact kinds of offending he is presently charged with, and this bears on the overall assessment of his culpability. A further aggravating factor of the offending is that it occurred while Mr Batchelor was on bail for other cannabis offending, arising from the 26 March charges.20

[26]   I consider that an uplift of no more than two months would have been appropriate on both sets of offences. It is beyond question that Mr Batchelor has an extensive history of similar offending. I do, however, take into account that his previous convictions for drug dealing offences are less relevant to the present offending, which solely concerned personal use. An uplift of two months would sufficiently recognise the need for increased denunciation of recidivist offending and the fact that he was on bail.21 In the context of a six-month starting point, this represents a 33 per cent increase. An uplift higher than this would be disproportionate for Mr Batchelor in the circumstances of the lower starting point I have adopted.

Breach of bail

[27]   Mr Bamford also explained the circumstances of Mr Batchelor’s breach of the 24-hour curfew. Mr Batchelor was at the emergency department in hospital at the time, and he provided the Court with a copy of his discharge papers as evidence.    Mr Bamford submitted that no uplift was warranted for the breach in those circumstances. Ms Kensington did not seriously resist this submission. I agree that no further uplift was warranted for the breach of bail arising from Mr Batchelors’ absence from his bail address.

20     Sentencing Act 2002, s 9(1)(c).

21     Sentencing Act 2002, s 7(1)(e) and 9(1)(c).

Other aggravating factors

[28]   Mr Bamford also criticised Judge Ruth for double counting by uplifting for “other aggravating features which are apparent from the summary of facts”. It appears likely that the Judge was referring to the fact that the second set of cannabis offending occurred while Mr Batchelor was subject to bail conditions. I have already taken this factor into account.

Summary

[29]   Accordingly, a total uplift of two months was appropriate in Mr Batchelor’s circumstances. This partially follows from the fact I have found that the starting point was manifestly excessive. But for the fact that Mr Batchelor has already served time, it may have been a case where a non-custodial sentence was appropriate.

[30]   Finally Mr Bamford noted that Judge Ruth had given a three-month discount for time served in prison, which was unavailable. Ms Kensington suggested that the erroneous discount could be viewed as mitigating some of the other aspects of Judge Ruth’s sentencing that were at the higher end.

[31]   The three-month discount cannot be allowed to stand, as it is contrary to s 82 of the Sentencing Act 2002. Parliament has tasked the Department of Corrections, rather than the Court, with accounting for time served in pre-sentence detention.22 In the absence of that discount, the end sentence imposed by Judge Ruth would have been 17 months’ imprisonment, which reinforces that the sentence was manifestly excessive.

Conclusion

[32]   I have reached the conclusion that the end sentence imposed by Judge Ruth was manifestly excessive. An appropriate starting point for a custodial sentence would have been no more than six months’ imprisonment. An uplift of no more than two months would have been appropriate to take into account Mr Batchelor’s previous convictions. Applying the two-month discount given by Judge Ruth for time spent on

22     See Parole Act 2002, s 90.

restrictive bail and Mr Batchelor’s health difficulties gives a preliminary sentence of six months’ imprisonment. Applying the 25 per cent discount for guilty plea results in an end sentence of four-and-a-half months’ imprisonment.

Result

[33]For these reasons the appeal against sentence was allowed.

[34]   Mr Batchelor’s lead sentence for cultivating cannabis was reduced from 14 months’ imprisonment to four-and-a-half months’ imprisonment. The standard release conditions imposed by Judge Ruth remained, but run from Mr Batchelor’s new sentence expiry date. The concurrent sentences on the other charges remained.

[35]   By my calculation, Mr Batchelor had now spent more than six months in prison. That is beyond his statutory release date, so I understood he was to be immediately released following my judgment.

Cooke J

Solicitors:

Bamford Law, Nelson

Crown Solicitors, Nelson