Brown v Police

[2019] NZHC 3365

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-000030

[2019] NZHC 3365

BETWEEN

HARLEY JAMES BROWN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 December 2019
Appearances:	M J Taylor-Cyphers for Appellant R D Smith for Respondent
Judgment:	17 December 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1]    On 3 July 2019, Judge Phillips sentenced Harley Brown to two years and three months’ imprisonment on charges of cultivation of cannabis, possession of equipment and material for the cultivation of cannabis, and possession of cannabis for supply. He now appeals that sentence on the grounds that the starting point was too high, the sentence of imprisonment fails to take proper account of his rehabilitative needs for his addiction and mental health, and the sentence is not the least restrictive outcome that is appropriate in the circumstances.

Facts

[2]    Mr Brown is 24 years old and lived in a three bedroom flat in Dunedin. He had specifically rented this flat to convert the two spare rooms into cannabis growing

BROWN v NEW ZEALAND POLICE [2019] NZHC 3365 [17 December 2019]

rooms. Mr Brown had constructed three indoor growing tents between the two spare rooms and had pulled the curtains to control the lighting.

[3]    Mr Brown had taken cuttings (clones) for propagation off two cannabis plants referred to as a “mother plant” to ensure its type and quality is replicated. He then placed each clone into a growing medium and then into a plastic cup of soil. In total there were 132 seedling clones in one of the growing tents. One of the other tents was set up with 12 mature cannabis plants, approximately one metre in height. They had been well cared for and were ready for harvest. Mr Brown connected an air ventilation ducting system, venting into the ceiling from the growing chambers.

[4]    Police executed a search warrant at Mr Brown’s flat on 21 June 2018. A total of 144 cannabis plants were seized, along with a quantity of dried cannabis head materials which had been packaged for sale. This was made up of 20 $50 bags, each weighing two grams. There was a further 22 grams of dried cannabis which had not been packaged. Also located were 127 new plastic bags of the size used for packaging two gram amounts, together with digital scales.

[5]    The value of the 12 mature plants was assessed as being around $8,400. While the summary of facts said the potential value of the 132 seedlings was $92,400, a statement from a police officer, Detective Neil Lowden, reassessed this to be conservatively worth $79,200. The value of the dried cannabis was $1,550.

District Court decision

[6]    Judge Phillips began by referring to the guideline judgment of R v Terewi, saying “there cannot be any argument here that your offending falls within … category 2”, being a “small-scale cultivation of cannabis plants for a commercial purpose”, thus attracting a starting point  which  is  generally  between  two  and  four years’ imprisonment.1 The Judge said the offending was not on the cusp of category 2 and, taking into account all the charges, he adopted a starting point of  two years and nine months’ imprisonment. In doing so he also said it would not be

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

right for him to set a starting point so he could ensure the end sentence could be converted to home detention.

[7]    The Judge considered the cultural report which had been prepared under s 27 Sentencing Act 2002, but did not consider there was any clear or logical connection between the matters raised in the report and the offending. He did not consider it could mitigate Mr Brown’s culpability.

[8]    The Judge allowed a 10 per cent discount for Mr Brown’s good character, his background and, to a limited extent, his youth. Mr Brown entered guilty pleas late, 11 months after charges were laid, so the Judge only allowed a credit of 10 per cent. The end sentence reached was two years and three months, which the Judge considered reflected Mr Brown’s criminality and culpability. The Judge imposed a concurrent four month sentence for possession of equipment and a concurrent one year sentence for possession for supply.

Principles on appeal

[9]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.5

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

4      Ripia v R [2011] NZCA 101 at [15].

5      Skipper v R [2011] NZCA 250 at [28].

Submissions

Appellant’s submissions

[10]   Ms Taylor-Cyphers, for Mr Brown, submits that the end sentence was manifestly excessive because the starting point was too high and out of line with authorities. She also submits that the sentence fails to address Mr Brown’s rehabilitative and mental health needs, and a sentence of imprisonment is not the least restrictive appropriate in the circumstances. She seeks a sentence of home detention, taking into account the more than five months Mr Brown has spent in prison since sentencing.

[11]   Ms Taylor-Cyphers accepts that Mr Brown’s offending fall within category 2 of Terewi. However, she submits that the starting point should be at the lower end of that scale, around two years’ imprisonment. She refers to R v Lyall,6 R v Walters,7 R v Latham,8 R v Baird,9 as comparators, the first three of which had starting points of two years, and where in Baird, a more serious case, had a starting point of three years.

[12]   Counsel submits that Mr Brown was due credit for his lack of prior relevant convictions, his age,  his remorse,  and his prospects of  rehabilitation.  She notes   Mr Brown was on bail for eleven months and did not breach once and this was a factor in the pre-sentence report recommending home detention.

[13]   Ms Taylor-Cyphers makes reference to the Court of Appeal’s recent decision of Zhang v R, noting the Court recognised the need for a rehabilitative response where offending was motivated by addiction.10 She submits that the significance of Zhang in Mr Brown’s case is that it reinforces the Court’s ability and willingness to consider community-based sentences in cases of drug supply.

[14]   Ms Taylor-Cyphers submits that the appropriate end sentence would be one of home detention. The proposed address is not the house where the offending occurred,

6      R v Lyall [2012] NZHC 3245.

7      R v Walters [2012] NZHC 1750.

8      R v Latham [2007] NZCA 552.

9      R v Baird HC Nelson CRI-2010-042-1994, 17 August 2010.

10     Zhang v R [2019] NZCA 507.

but rather an address with significant pro-social support from Mr Brown’s mother and partner.

Respondent’s submissions

[15]   Mr Smith submits that the sentence imposed by the Judge is within the available range and cannot be described as manifestly excessive having regard to the circumstances of the offending, the limited relevance of Zhang to this offending, and the delay in Mr Brown’s guilty plea.

[16]   In response to the submission that the starting point was too high, Mr Smith highlights the premeditation, sophistication and scale of the offending. In the circumstances, Mr Smith submits that a starting point of two years and nine months, below the mid-point of category 2 of Terewi, was within the available range and the offending could not be considered to fall at the bottom of category 2. He also rejects Ms Taylor-Cyphers’ comparisons with other cases as misplaced saying those cited can be distinguished on the basis of the scale or the purpose of the cultivation in those cases. For comparison, Mr Smith refers to Wallace v R, which has similar facts to the instant offending, including a similar value of cannabis, where Gendall J upheld a starting point of three years.11

[17]   In terms of the discount given for personal mitigating factors, Mr Smith is sceptical of the claim that Mr Brown is addicted to cannabis. The only evidence to that effect is the single comment Mr Brown made to the pre-sentence report writer. Mr Smith also submits that reliance on Zhang is misplaced, given it relates specifically to methamphetamine offending and addiction. There is nothing in the judgment to give the impression that the Court intended it to apply to cannabis offending in the way counsel proposes.

[18]   Mr Smith submits that the Judge applied sentencing purposes and principles properly, and as such, in reaching an end sentence of two years and three months’ imprisonment, there was no option to convert the sentence to home detention. He also notes that it is significant that Mr Brown chose to delay the entry of his guilty plea for

11     Wallace v R [2014] NZHC 2329.

11 months. Had he pleaded guilty at an early stage, it is clear the end sentence would have fallen within a range where a combination of community-based sentences could be considered.

[19]   Mr Smith highlights that it would be improper to try to artificially tailor a sentence so as to arrive at an end point of less than two years’ imprisonment, where such an end sentence is not justified by a principled sentencing approach.

Leave to appeal

[20]   A preliminary matter, which was dealt with by an informal oral application, was that the appeal was filed approximately six weeks out of time. Ms Taylor-Cyphers explained the difficulties in acting for a prisoner on legal aid and, in particular, in arranging for the appellant to sign documents in person.

[21]   Mr Smith took no issue with the delay and I am satisfied it was fairly explained. Leave to appeal out of time is granted.

Analysis

[22]   In  my  view,  there  can  be  no  criticism  of  the  starting  point.   While   Ms Taylor-Cyphers referred to several cases where slightly lower starting points were adopted, I consider those cases distinguishable.12 As the submissions for the respondent pointed out, there are also comparable cases where higher starting points were adopted and the Judge was correct to set the sentence by reference to the guideline decision in Terewi, to achieve consistency. This was a commercial operation where there was an intention to sell cannabis and it clearly fell within category 2 of Terewi, warranting a starting point of two to four years. There was also the other related offending which had to be taken  into  account  too.  The starting point  of two years nine months was therefore well within range.

[23]   The Judge then allowed a 10 per cent discount for personal mitigating factors, including Mr Brown’s good character, his difficult background and, to a limited extent, his youth. Although the Judge acknowledged the cultural report, he said it did not

12     R v Lyall, above n 6; R v Walters, above n 7; and R v Latham, above n 8.

really reveal any systemic deprivation which was causative of offending. I accept that is correct. However, the report provides a more detailed insight into Mr Brown’s background and potential.

[24]   It is clear from the cultural report that Mr Brown has abilities. He finished school and completed NCEA Level 3. He has also attempted further study on multiple occasions, including completing nearly a year of tertiary study towards an electrical engineering qualification. However, he appears to be aimless and has not been able to find a sense of purpose or make good decisions. This is attributed, at least in part, to an unstable family life. His parents separated when he was young and while he saw his father regularly, he was often drinking. His mother entered a new relationship when he was approximately six years old. She was reluctant to enforce any boundaries with her son.

[25]   By the time Mr Brown left school he was a frequent user of marijuana and then synthetic cannabis. He had brief stints of fulltime employment, including at the freezing works and at Subway, but he has struggled to find any purpose in his work. The report says that Mr Brown has a lot of potential but needs guidance and support in place to achieve that. It notes that he more recently had developed a new group of friends and a new girlfriend, and they have been a more positive influence on him.

[26]   Although Mr Brown described having an addiction to synthetic cannabis before it was outlawed, the only evidence of an addiction to ordinary cannabis is a statement in the pre-sentence report where he described cannabis as an addiction which he used to help manage anxiety.

[27]   That said, the pre-sentence report noted that Mr Brown had not used cannabis since he was charged and described him as a low risk offender who had “a good ability to comply and good prognosis in regard to further offending”. It recommended home detention.

[28]   The issue is whether, looked at in totality, this information warranted a more substantial discount than the 10 per cent discount given by Judge Phillips.

[29]   Ms Taylor-Cyphers suggested that the Court of Appeal’s decision in Zhang, the recent guideline judgment for sentencing in methamphetamine offending, can be applied by analogy to this case. That case recognised that addiction which is causative of offending is a mitigating consideration which may justify a sentence discount of up to 30 per cent.13

[30]   However, I do not see Zhang as intended to be directly applicable to cannabis dealing offences in the way proposed by Ms Taylor-Cyphers. The revised sentencing bands, and the comments on their application, are intended to recognise the significant social harm caused by those who commercially deal in methamphetamine while also acknowledging that some offenders are really only dealing in methamphetamine to support their own addiction. The judgment specifically notes that methamphetamine addiction can cause “the prioritisation of the narcotic over needs such as food, shelter and personal relationships” and this can have a bearing on a defendant’s culpability.14 The Court of Appeal recognised, therefore, that it may be proper in some cases to reflect this as a mitigating circumstance when deciding on sentence.

[31]   However, in my view, the decision in Zhang is simply an application of general sentencing principles to a specific type of offence. Rather than assuming the sentencing  bands  in  Terewi  should  be  modified   by  reference   to   Zhang,   as Ms Taylor-Cyphers urged, I consider that I must simply look at the evidence of mitigating circumstances as it relates to this offender, and this offending, to see whether the Judge erred in applying no more than a 10 per cent discount. That said, I must also bear in mind the need for deterrence with commercial drug offending. As the Court of Appeal stated in Terewi:15

[13] As with any drug offending for the purpose of profit making, the personal circumstances of the offender whose activities fall within Categories 2 and 3 are usually not to be given much significance in the sentencing process. The fundamental requirement is that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.

[32]   In this case, I do not consider there is evidence before the Court of a debilitating addiction such that would justify a specific discount in the sentencing process. Indeed,

13     Zhang v R, above n 10, at [149].

14     R v Terewi, above n 1.

15 At [145].

the pre-sentence report reflects the fact that this was a sophisticated and well organised operation which was pursued by Mr Brown primarily because he “saw an opportunity to be more financially stable by selling a small amount and to save himself some money by growing his own”.

[33]   However, the reports also paint a clear picture of a man with significant potential to rehabilitate and rebuild a life without criminal drug offending, provided he maintains the course he began on while he was on bail and engages with the assistance that is being made available to him.

[34]   While acknowledging that personal circumstances tend to be relegated in importance to the need to deter those who are dealing in drugs, they also cannot be ignored. In my view, the combination of Mr Brown’s remorse, his previous lack of offending history, his potential for rehabilitation and his relative youth warranted a combined discount of 20 per cent for personal mitigating factors. That would take the starting point of two years nine months to two years three months.

[35]   It is unclear why Mr Brown’s guilty pleas were so late, particularly as the cultural report records that he says he gave a statement admitting his offending when he was arrested. Without any explanation for the 11-month delay, I cannot see any issue with the Judge’s 10 per cent discount.

[36]   Applying that discount to the revised sentence would take the end sentence to 24 months. That falls, just, within the definition of a short-term sentence and as such, home detention is available.

[37]   I was advised that the address with his mother is still appropriate and available. Accordingly, I would convert the balance of Mr Brown’s prison sentence to home detention, to be served at the address which was assessed in the pre-sentence report.

[38]   Taking into account the five and a half months spent in custody, he should serve a further six months and two weeks of home detention. The special conditions recommended in the pre-sentence report are to apply in addition to the standard conditions.

Conclusion

[39]   The appeal is allowed. The sentence of two years and three months’ imprisonment is quashed. Mr Brown  is  to  serve a  sentence of  six  months  and  two weeks’ home detention, at the address identified in the pre-sentence report, commencing Wednesday 18 December 2019. The following special conditions are to apply:

(a)To attend and complete an appropriate alcohol and drug counselling/treatment programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.

(b)Undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a Probation Officer.

(c)Not to possess, consume or use any drugs not prescribed to you.

Solicitors:
RPB Law, Dunedin

M J Taylor-Cyphers, Barrister, Dunedin