Bishop v R

[2010] NZCA 66

IN THE COURT OF APPEAL OF NEW ZEALAND

CA529/2009

[2010] NZCA 66

BETWEEN  FREDERICK CHARLES BISHOP

Appellant

ANDTHE QUEEN Respondent

Hearing:         17 February 2010

Court:            William Young  P, Wild and Heath JJ Counsel:         R L Thomson for Appellant

M F Laracy for Respondent

Judgment:      16 March 2010         at 11.30 am

JUDGMENT OF THE COURT

A        The appeal against the sentence of two years eight months imprisonment

on the charge of possessing the Class C controlled drug cannabis for the purpose of sale is allowed.   That sentence is set aside and a sentence of two years three months imprisonment is substituted.

BThe cumulative sentence of one month’s imprisonment on the receiving charge stands, as do the concurrent sentences imposed on the remaining charges.

C        The order requiring forfeiture of the sum of $15,000 is set aside.

REASONS OF THE COURT

(Given by Heath J)

FREDERICK CHARLES BISHOP V R CA CA529/2009  16 March 2010

Introduction

[1]      Mr Bishop was charged, in the District Court at Auckland, with one count of possessing the  Class  C  controlled  drug,  cannabis,  for  the  purpose  of  sale,  three  of receiving stolen property, one of possessing a pipe for the purpose of consuming the Class  A  controlled  drug,  methamphetamine  and  one  of  possessing  explosives (25 ‘Rio 20-Super Game 32’ shotgun cartridges).

[2]      The receiving charges arose out of separate incidents that occurred between

24 March and 3 November 2007.   The remaining charges all relate to items found during the course of a search of Mr Bishop’s residence, on 3 November 2007.

[3]      Mr Bishop was due to stand trial on 2 March 2009.   At that time he entered pleas of guilty to five counts.  On the remaining two (both alleging receiving stolen property) he was discharged.   A pre-sentence report was requested and Mr Bishop was remanded until sentence.

[4]      On 30 July 2009, Judge Paul imposed an effective sentence of two years and nine months imprisonment.[1]    He ordered a sum of $15,000, found during the course

[1] R v Bishop DC Auckland CRI-2007-004-25333, 30 July 2009.

of  the  search  on  3  November  2007,  to  be  forfeited.          An  order  destroying  items located during the search was also made.

[5]      Mr  Bishop  appeals  against  the  sentence  imposed  on  the  grounds  that  it  is manifestly excessive.

Facts

[6]      At about 3pm on 3 November 2007, police officers attended at Mr Bishop’s residence  in  Massey  to  execute  a  search  warrant.   Their  intention  was  to  recover property  they  believed  to  have  been  stolen.   Mr  Bishop  lived  at  the  address  with three  flatmates. At  the  time  the  police  officers  called  at  the  address  two  of  the flatmates were present but the accused was not.

[7]      The officers located stolen property in the garage.   They entered the house. Some  methamphetamine  was  located  in  one  of  the  flatmate’s  bedrooms. Powers contained  in  ss 18(2)  and  (3)  of  the  Misuse  of  Drugs  Act  1975  were  invoked  to search the premises for drugs.

[8]      In Mr Bishop’s bedroom, a quantity of 25.6 grams of cannabis was located in

a zip-lock bag, in a sock within the laundry basket.   In the same basket the police officers  located  $15,000  in  cash  (in  $20  notes),  in  a  black  bag. Amongst  the photographs taken by the Police inside the house were photographs showing two sets of electronic scales found in the appellant’s wardrobe, and a further set  of kitchen scales found in his en-suite.  The presence of these scales was not mentioned in the summary of facts before the sentencing Judge.  A methamphetamine pipe was found in  a  brown  leather  jacket  in  the  wardrobe  of  that  bedroom,  with  0.3  of  a  gram  of methamphetamine being found in another leather jacket.   There was also a box  of Rio-20 super game 32 shotgun cartridges in the bedroom.  They were on the shelf in the wardrobe.

Sentencing in the District Court

[9]      Judge  Paul  took  the  charge  of  cannabis  dealing  as  the  lead  charge  for sentencing  purposes.   He  accepted  that  the  cannabis  formed  part  of  a  small  scale commercial  enterprise,  triggering  a  starting  point  of  between  two  and  four  years imprisonment.[2]

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

[10]     The Judge  approached   sentencing   on   the   basis   that   denunciation   and deterrence were the primary sentencing goals.  He took a starting point of two and a half years imprisonment, reflecting his view that the $15,000 located at the address represented money associated with the sale of cannabis.

[11]     As  personal  aggravating  factors  the  Judge  took  account  of  the  fact  that offending occurred while Mr Bishop was on bail on other charges and his history of drug  related  offending. An uplift of  six  months  was  provided. A  credit of four

months  for  the  late  guilty  pleas  resulted  in  a  sentence  of  two  years  eight  months imprisonment on the lead charge.

[12]     The  Judge  imposed  a  cumulative  sentence  on  the  receiving  charge,  of  one month on the receiving charge,  leaving an  end sentence  of two  years nine months imprisonment.  Concurrent sentences were imposed on other charges.

Issues raised on appeal

[13]     In written submissions filed in support of the appeal, Ms  Thomson,  for Mr Bishop, raised three points on   which   she   contended   Judge   Paul   erred   in constructing the end sentence.  However, following receipt of Ms Laracy’s written submissions for the Crown, Mr Bishop’s position was reconsidered. The need to do

so arose from a concession on the part of the Crown about the lack of jurisdiction for the order that $15,000 be forfeited under s 32 of the Misuse of Drugs Act 1975.

[14]     Section 32 requires proof that money found in the possession of the accused was received “by that person in the course of or consequent upon the commission of that offence”. The words “that offence” have been held, by this Court in R v Collis,

to limit the forfeiture jurisdiction to money that can be linked to the particular offence or offences with which a person has been charged.[3]   The issue in Collis was whether a Judge ought to have ordered money seized under the authority of a search warrant  to  be  retained  by  the  Crown,  if  making  such  an  order  conflicted  with  the terms of s 32. Both Casey and Hardie Boys JJ considered that s 32 was unavailable in the circumstances of the case because no link between the money and the offence in  issue  could  be  established.  The  Crown  was  thus  ordered  to  return  the  money. Dissenting,  Wylie  J  took  the  view  that  the  issue  fell  to  be  decided  strictly  under s 199(3)(a) of the Summary Proceedings Act 1957, meaning that, on his view, proper disposal  of  property  seized  could  be  distinguished  from  property  ordered  to  be forfeited.[4]

[3] See R v Collis [1990] 2 NZLR 287 (CA) at 293 per Casey J, and at 300 per Hardie Boys J

[4] At 302 per Wylie J dissenting.

[15]     We  were  not  asked  by  the  Crown  to  reconsider  Collis. While  we  find  it strange that the legislation has not been amended since Collis was decided in 1990,

we accept that authority requires us to set aside the s 32 order.  The sum of $15,000 cannot  have  been  derived  from  the  offence  of  possession  of  cannabis  for  sale,  to which  Mr  Bishop  pleaded  guilty,  because,  self-evidently,  the  cannabis  in  question had not been sold.

[16]     We indicated that we were prepared to hear argument on whether the sum of

$15,000 could nevertheless be forfeited as being in the nature of a “float” which was

to be used to acquire more  cannabis, ie was to  be  used  for  the  purposes the commission  of  further  similar  offending,  cf  the  alternative  basis  for  forfeiture provided  by  s  32. Ms  Laracy,  however.  advised  that  the  Crown  did  not  wish  to contend  that  the  money found  was  a  float  and  therefore  in  effect  consented  to  the forfeiture order being set aside. In addition, she conceded that it was inappropriate for the Court to take into account the $15,000 in assessing the commerciality of the offending to which Mr Rogers pleaded guilty.

[17]     We  do  not  accept  that  the  Crown’s  latter  concession  is  a  proper  one.     At sentencing, counsel for the appellant sought to explain the $15,000 on the basis that the appellant, in common with other people, had lost confidence in banks and kept his  money at  home.   The  Judge  rejected  that.   He  took  the  view  that  the  $15,000 came from the sale of cannabis and demonstrated a number of sales.[5]   That approach was open to the Judge.

[5] R v Bishop at [9]–[10] and [14].

[18]     Even so, we consider the Judge’s starting point  of  two  and  a  half  years imprisonment was too high. That was  exactly  the  sentencing  starting  point  this Court adopted in R v Bryant.[6] There,  the  appellant  and  another  man  were apprehended  walking  out  of  the bush with 44 kilograms of freshly cut  cannabis. After the Police had dried  this off  it  weighed  approximately five  kilograms. The men explained that they had come  across the cannabis plot while out pig hunting, and harvested it for their own use. It was accepted that the appellant was a heavy user  of  cannabis, and there was no other (beyond the sheer quantity  involved)

[6] R v Bryant [2009] NZCA 287.

evidence of commerciality.  The Court fixed a starting point of two and a half years, having reviewed sentences imposed by the Court in R v Rakatau[7]  and R v Gray.[8]

[7] R v Rakatau [2007] NZCA 21.

[8] R v Gray [2009] NZCA 31

[19]     R v Terewi  requires  a  starting  point  for  sentence  of  between  two  and  four years  for  a  small  scale  cultivation  of  cannabis  plants  with  the  object  of  deriving profit.[9]    Mr Bishop was a low-level dealer.  We consider that a starting point of two years  should  be  taken  to  reflect  the  nature  of  his  offending. This  Court  has confirmed previously that the Terewi guidelines are also relevant to dealing offences: see R v Leighs.[10]

[20]     To that should be added an uplift to recognise aggravating factors personal to the  offender.           They  involve  Mr  Bishop’s  history  of  drug  related  offending  and offending while on bail.   We agree with the Judge’s uplift of six months to reflect those aggravating features.

[9] See category 2 in Terewi at para [4].

[10] R v Leighs CA360/02 15 September 2003 at [11].

[21]     There are no mitigating factors other than the guilty pleas.   The sentencing was before R v Hessell.[11]    On the basis of the pre-Hessell authorities, a discount of

[11] R v Hessell [2009] NZCA 450 at [15].

10 per cent is appropriate.[12]    That represents a credit of three months, bringing the

[12] See R v Fonotia [2007] NZCA 118, [2007] 3 NZLR 338 at [50] and the cases there cited.

end   sentence,   for   the   cannabis   offending,   down   to   two   years   three   months imprisonment.

[22]     The receiving charge was discrete offending. In our view, the Judge  was right  to  impose  a  cumulative  sentence  of  one  month’s  imprisonment  in  respect  of that offending.  We do not disturb that sentence.  It follows that the end sentence that ought to have been imposed was one of two years four months imprisonment.

Result

[23]     The appeal is allowed, with the following consequences:

(a)       The sentence of two years eight months imprisonment on the charge

of possession of cannabis for supply is set aside and substituted with a sentence of two years three months imprisonment.

(b)The   cumulative   sentence   of   one   month’s   imprisonment   on   the receiving  charge  stands,  as  do  the  concurrent  sentences  imposed  on the remaining charges.

(c)       The order requiring forfeiture of the sum of $15,000 is set aside.

Solicitors:

Crown Law Office, Wellington for Respondent