Brooks v The Queen

[2017] NZHC 3270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000452

[2017] NZHC 3270

BETWEEN

PETER JAMES BROOKS

Appellant

AND

THE QUEEN

Respondent

Hearing:	19 December 2017
Appearances:	C Farquhar on behalf of I Brookie for the Appellant H Steele for the Respondent
Judgment:	19 December 2017
Reasons:	20 December 2017

REASONS JUDGMENT OF HINTON J

Counsel/Solicitors

Ian Brookie, Barrister, Auckland Meredith Connell, Auckland

BROOKS v R [2017] NZHC 3270 [19 December 2017]

[1]                 The appellant, Mr Peter Brooks, was sentenced to nine months’ home detention, having pleaded guilty to one representative charge of selling the class C controlled drug cannabis pursuant to ss 6(1)(e) and (2)(c) of the Misuse of Drugs Act 1975. The maximum penalty is eight years’ imprisonment.

[2]The appellant now appeals his sentence of nine months’ home detention.

Facts

[3]The facts of the appellant’s offending are brief.

[4]                 Police enquiries in respect of an unrelated matter included analysis of the appellant’s cell phone text message data over a  period  of one month  - (17 June –  17 July 2016).

[5]                 During that period, the appellant sold, or made arrangements to sell, the class C controlled drug cannabis on approximately 60 separate occasions to unknown individuals. He predominantly sold either $50 (2-3 grams) bags or $100 (5-6 grams) bags.

District Court decision

[6]                 On 10 November 2017, Judge N R Dawson in the Auckland District Court sentenced the appellant to nine months’ home detention.

[7]                 Judge Dawson first noted the appellant’s age and his previous convictions. Judge Dawson recorded that he had read the pre-sentence report and medical certificates filed with the Court. He then noted the purposes of sentencing, to denounce the appellant’s conduct, deter the proliferation of cannabis throughout the community and the appellant’s rehabilitation prospects.

[8]                 Judge Dawson considered the commercial aspect of the appellant’s offending, and the appellant’s two relevant previous convictions with respect to  cannabis. Judge Dawson also noted the appellant’s remorse and the fact he pleaded guilty at the callover stage.

[9]                 Judge Dawson adopted a starting point of two years’ imprisonment, after considering the guideline judgment of R v Terewi.1 From that starting point, one month was deducted for the appellant’s remorse and five months for the appellant’s guilty plea. Judge Dawson then commuted the sentence of 18 months’ imprisonment to an end sentence of nine months’ home detention.

Relevant law

[10]              Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied that for any reason there was an error in the sentence imposed on conviction, and a different sentence should be imposed.

[11]              While s 250 of the Criminal Procedure Act makes no reference to “manifestly excessive”, this principle is “well-engrained” in the approach of the courts to sentence appeals. Whether the sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached. The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.2

Discussion

[12]The appellant raises effectively two points on appeal.

[13]              The appellant says that the starting point of two years was in error. However, the starting point is at the bottom of the relevant band of Terewi3 and it is not for me to depart from Court of Appeal authority. The nature of the appellant’s offending, which clearly involved commercial drug dealing, does not justify going below a starting point of two years.

[14]              Secondly, the appellant says that the Judge failed to take into account the appellant’s personal circumstances and that taking those circumstances into account, the sentence of home detention failed to accord with the sentencing principles set out

1      R v Terewi [1999] 3 NZLR 62 (CA).

2      Larkin v Ministry of Social Development [2015] NZHC 680 at [24] and [25].

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

in s 8(g), s 8(h) and s 8(i) of the Sentencing Act 2002 – namely that the least restrictive outcome appropriate in the circumstances should be imposed, the need to take into account circumstances that mean a sentence that would otherwise be appropriate is disproportionately severe, and the need to take into account the offender’s personal, family, whānau, community and cultural background when imposing a sentence with a partly or wholly rehabilitative purpose.

[15]              With regard to the personal circumstances, the Judge had only the medical reports, PAC report and submissions. I have the benefit of a detailed affidavit of the appellant. Mr Steele, for the Crown, kindly did not oppose admission of that affidavit.

[16]              I consider that, although the Judge made reference to the medical certificates and the PAC report, he did not in fact take into account the appellant’s personal circumstances. He made no actual reference to those circumstances. Nor, as I say, did he have the information I have. In particular, both of the appellant’s parents are elderly and infirm. His mother is on oxygen 24 hours a day. His father has had heart surgery and is incapacitated to a degree that he is not able to run his fishing charter business. Mr Brooks moved to Paihia specifically to look after them and assist with the business. He has been filling that role for some time now. All of this is after the offending in question, which occurred in Auckland. Mr Brooks also has personal health issues as he suffers from heel spurs, which have just recently been operated upon.

[17]              I agree that it is also relevant that Mr Brooks has moved from Auckland, where the offending took place, and advises that he is no longer using cannabis himself.

[18]              I have decided that there was an error in the sentence imposed. In my view, a combined sentence of community detention, supervision and community service, is the least restrictive outcome that is appropriate in the circumstances and takes into account the particular circumstances of the offender, including providing for a rehabilitative purpose in terms of pro-social activity.

[19]              Accordingly, I quash the sentence of home detention and replace it with a sentence of six months’ community detention on the following conditions:

(a)Mr Brooks will report to Community Probation at 17-19 Station Road East, Kaikohe within 24 hours of being sentenced.

(b)The  sentence  of   community   detention   is   to   be   served   at   681 Puketona Road, Paihia with the curfew from 1800hrs to 0600hrs, Monday to Sunday inclusive.

[20]              Mr Brooks is also to be subject to six months’ supervision. Alongside the standard supervision conditions, Mr Brooks is subject to the following special conditions:

(a)Mr Brooks is not to possess, consume or use any alcohol or drugs not prescribed to him.

(b)Mr Brooks is to submit to a urine sample or blood testing analysis as and when requested to do so by Police or Probation.

(c)Mr Brooks is to attend an assessment for a drug treatment programme or counselling, as directed by a probation officer. He is to attend and complete any counselling, treatment or programme as recommended by the assessment, as directed by and to the satisfaction of a probation officer.

[21]              In addition, Mr Brooks is to complete 100 hours of community work. The probation service, when considering placement for community work, will need to take account of Mr Brooks’ physical incapacity in terms of s 61 of the Sentencing Act 2002.

--------------------------------------------------

Hinton J