Bryant v R
[2011] NZCA 512
•12 October 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA425/2011 [2011] NZCA 512 |
| BETWEEN DONALD RICHARD BRYANT |
| AND THE QUEEN |
| Hearing: 3 October 2011 |
| Court: O'Regan P, Stevens and Andrews JJ |
| Counsel: P F Wicks for Appellant |
| Judgment: 12 October 2011 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
The appellant, Mr Bryant, pleaded guilty in the District Court to various charges under the Misuse of Drugs Act 1975. The most serious charges, laid on an indictable basis, concerned selling a Class C controlled drug, namely cannabis, to persons over the age of 18 years and having cannabis plant in his possession for the purpose of supply. The appellant also pleaded guilty to charges laid in summary jurisdiction of being in possession of cocaine, ecstasy and cannabis resin. The District Court declined jurisdiction and committed the appellant to the High Court for sentence.
The appellant was sentenced by Lang J to two years imprisonment.[1] He appeals against that sentence on the basis that the Judge erred in imposing imprisonment rather than a sentence of home detention. The alleged errors include placing weight on the long periods of unsupervised boredom experienced by those in home detention, leading to a temptation of re-offending, and giving insufficient weight to the appellant’s medical disabilities. An additional ground of appeal is that the Judge erred in not reducing the end sentence of imprisonment further by taking into account the appellant’s medical condition.
[1] R v Bryant HC Auckland CRI-2011-004-3292, 21 June 2011.
For the purposes of the appeal, the appellant filed an affidavit in which he deposed to no longer smoking cannabis and not wanting to be involved with it or other drug in the future. He also described the living circumstances at his home address, the back half of which is a music studio and from which he worked as a musician. The appellant also relied on an affidavit from his partner regarding the circumstances in which he would live and the supervision she would provide if his appeal were successful and a sentence of home detention imposed.
The respondent submits that the Judge took the appropriate approach on sentencing in relation to the fettered judicial discretion to choose between home detention and a short term of imprisonment. In carrying out such evaluative task the Judge placed the correct weight on various relevant considerations and no error has been shown that warrants appellate intervention.
Factual background
On 23 February 2011 police executed a search warrant at the appellant’s residential address in Auckland. On searching the premises, the police found four cake tins on a kitchen table containing a total of 190 grams of loose cannabis plant material; a further 67.5 grams of cannabis plant material in a kitchen drawer; some 12 grams of cannabis resin in the freezer; approximately 134 grams of cannabis plant material in an upstairs office area; a tea cup containing pills, including ecstasy; and 0.3 grams of cocaine. Resealable bags and electronic scales were also found in the vicinity of the drugs. In the upstairs office area, the police found $4,060.00 in cash. There was also a small television monitor which displayed live footage of the footpath directly outside the front door of the appellant’s address, captured by a closed circuit television camera mounted above the door.
In explanation the appellant stated that he sold cannabis from his house and had done so for the last two years. His customers were people he knew and most of the cash found on the premises comprised the proceeds of cannabis dealing. The appellant also stated that he was a habitual user of cannabis and that the other drugs found were for his own personal use.
According to a medical report from his doctor, the appellant suffered a spinal injury four years ago. An MRI scan revealed spinal stenosis. Whilst the appellant had recovered, he suffered a further back injury in 2009. The appellant has consequently suffered “prolonged and severe pain” for most of the past three years and has required several spinal injections to help him manage the pain. He also has diabetes.
High Court sentencing
The factual basis for the sentencing is conveniently summarised in the Judge’s sentencing remarks as follows:[2]
You present as a retail dealer in drugs. In many ways the operation can be described as what is colloquially known as a tinnie house, where retail customers come and purchase small quantities of cannabis. Typical sales are in the region of $20 for a cannabis bullet. I infer that the bulk of the cash that was found represented sales made in this way. I consider that the closed circuit television was part of the paraphernalia that you surrounded yourself with for security purposes during your drug-dealing activities. I accept, however, that there is nothing to suggest that you were selling to all and sundry who came to the property. The likelihood is that you were selling to friends and associates who knew where to come to buy cannabis.
[2] At [8].
Lang J took a starting point of two years, 10 months imprisonment on the lead charges of selling cannabis and being in possession of cannabis plant for supply. This included an uplift to reflect the appellant’s other drug charges, for which concurrent sentences were imposed. As the appellant also had historic cannabis-related convictions, a further uplift of three months was warranted. However, a discount of 10 months was applied for the appellant’s guilty pleas, as a well as a further discount of three months to reflect his “good qualities” and the services he had rendered to the community as a musician, which also included a component for his professed desire to reform. This brought the sentence to two years imprisonment.
On the issue of whether a sentence of home detention ought to be imposed, the Judge stated:
[26] Before imposing a sentence of home detention the Court must be satisfied that it sits appropriately with the purposes and principles of sentencing. One of these is to hold people accountable for their offending and to deter both the offender and other like-minded individuals from engaging in similar behaviour in the future. Having said that, the Court is also required to impose a sentence that is the least restrictive outcome in the circumstances, and that assists the offender to rehabilitate himself or herself and to become reintegrated in the community.
[27] In R v Hill the Court of Appeal embarked upon a useful discussion of home detention in the context of drug-related offending. It did so whilst the transitional provisions of the home detention legislation were in force, so to that extent the case is not directly on point. Nevertheless, the Court of Appeal did make a number of useful points in its judgment.
[28] The Court emphasised that the Court must adhere to the principles and purposes of sentencing as set out in the Sentencing Act 2002. It pointed out also that home detention in the drug-related context will generally only be available where the offending falls towards the lower end of the spectrum. For offending that falls higher in the spectrum, a sentence of home detention will be inappropriate because it will not properly serve the principles and purposes of deterrence, denunciation and accountability.
[29] There are always dangers when an offender is sentenced to home detention for drug dealing offending. The danger is two-fold. One danger presents itself for the offender, and the other is a danger for the wider community. The danger to the offender is that home detention can lead to long periods of boredom whilst in a relatively unsupervised environment. For a person with a long-standing association with drugs, that can lead to a virtually inevitable temptation to resort to the use of drugs in order to pass the time in a more pleasurable way. It also presents a temptation, particularly if the offender is serving a sentence at his or her own premises, to re-engage in offending of the very type that has led to the sentence being imposed in the first place.
[30] The second danger is that the community may perceive home detention to be a softer option than imprisonment. Although it is a deterrent sentence of its type, it certainly sits lower in the hierarchy of sentences than does a sentence of imprisonment. For that reason the danger if the sentence is imposed inappropriately is that the deterrent aspects of the sentence will be lost, and the community may consider that drug dealing offences are no longer being dealt with in a deterrent fashion. In any case involving drug dealing issues of deterrence, denunciation and accountability must be to the forefront.
[31] Weighing those factors in the balance, I conclude that your drug dealing cannot be said to be at the lower end of the spectrum. Rather, you appear to have been involved in it in a reasonably busy way, and for a lengthy period of time. Your very lengthy association with the drug also, I consider, leads to a significant risk of the likelihood of re-engaging with the use and possible sale of cannabis in the event that a sentence of home detention is imposed.
(Footnotes omitted.)
Submissions for appellant
Counsel for the appellant submits that the Judge erred by placing weight on the factor that home detention could lead to long periods of boredom whilst in a relatively unsupervised environment, without having any evidence before him as to the appellant’s living conditions. The Judge was merely postulating on a possible scenario which was not in fact accurate. Now the position is different because the Court has affidavit evidence both from the appellant and his partner as to the precise circumstances that would exist and the availability of adequate supervision.
Counsel further submits that the Judge erred in giving insufficient weight to the appellant’s medical disabilities. While Lang J recognised that the appellant had “very significant medical disabilities that [cause] you a great deal of discomfort”,[3] this factor did not feature specifically either when the Judge was applying the discount for mitigating factors or when determining the appropriateness of a sentence of home detention. Counsel cited R v Verschaffelt[4] as authority for the proposition that some leniency may be appropriate when, due to a medical condition, prison would constitute a more severe penalty for the particular offender.
[3] At [21].
[4] R v Verschaffelt [2002] 3 NZLR 772 (CA).
Counsel therefore submits that the Judge should have further reduced the end sentence of imprisonment by specifically taking into account the appellant’s medical conditions. Moreover, given the appellant’s multiple medical problems, and the significant difficulty he faces in serving a sentence of imprisonment when compared with a person in good health, this supports the appropriateness of home detention as an available alternative to imprisonment.
Submissions for respondent
Ms Bicknell accepts that where a medical condition or disability would constitute a disproportionately severe penalty, some leniency might be afforded in sentencing.[5] But there is no requirement for the Judge to allow a specific reduction in sentence length to recognise the state of the appellant’s health. Moreover, in the medical report on the appellant’s medical condition there is no suggestion that the appellant’s medical needs cannot be met by the Department of Corrections. On the contrary, the doctor concludes that the appellant’s “multiple medical problems can be managed within the Prison Service”. Counsel submits that the Judge was clearly alive to the appellant’s medical disabilities.[6] The fact that no specific discount was applied in respect of the appellant’s health does not mean that there was a failure to take proper account of his health or the effect of imprisonment upon him. Overall, the difficulties that the appellant might experience are not so far out of the ordinary that they could be said to render the sentence disproportionately severe.
[5] See Sentencing Act 2002, s 8(h).
[6] See [21] of the sentencing remarks.
With respect to the Judge’s decision not to impose a sentence of home detention, counsel referred to the observations of this Court in R v Manikpersadh as follows:[7]
… the choice between home detention and a short sentence of imprisonment is the exercise of fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below.
[7] Manikpersadh v R [2011] NZCA 452 at [12].
Counsel also cited the decision of this Court in James v R[8] as authority for the proposition that an appeal against a refusal to grant home detention is not an opportunity to revisit or review the merits. The critical question is whether the appellant has shown that there was an error made by the sentencing judge.
[8] James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.
Ms Bicknell said that the Judge properly considered the relevant principles and purposes of sentencing in the Sentencing Act in relation to the issue of home detention. He properly cited the decision of this Court in R v Hill.[9] When the Judge referred to the two particular dangers where home detention is imposed for drug dealing offending, where that offending has occurred from the home, the Judge was reflecting the reality of the prospect that the offender might be tempted to reoffend or that the deterrence of such a sentence may not be evident to the public.
[9] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
Counsel submits that in any event, the Judge properly weighed the appropriateness of a sentence of home detention where the drug dealing offending had occurred in a home context. He also took into account the level of the drug dealing concerned and the length of time (over 35 years) that the appellant had been associated with cannabis. There was no identifiable error in the approach taken by the Judge that would permit intervention by this Court.
Discussion
Appropriateness of end sentence of imprisonment
The only issue here is whether the Judge ought to have allowed a further specific discount for the appellant’s medical condition and disabilities as part of the mitigating factors personal to the offender. Although the Judge did not make particular reference to the appellant’s medical condition when fixing the level of discount for mitigating factors, there is no doubt that he was well aware of the existence of the medical condition factor. The Judge clearly appreciated the appellant’s “very significant medical disabilities”. We agree with the Crown submission that a medical condition or disability that might constitute a disproportionately severe penalty may in appropriate cases result in some leniency being shown in sentencing. But there is no requirement for a Judge to allow a specific reduction in sentence length because of the health of the offender.
Plainly the Judge did not consider that the medical disabilities of the appellant were such as to mean that imprisonment would constitute a disproportionately severe sentence. We agree with the Crown submission that the medical report accepts that any medical problems experiences by the appellant can be managed by the Department of Corrections.
With respect to the discount made for mitigating factors, we note that the Judge allowed a discount to reflect the good qualities of the appellant and his services rendered to the community. Part of this discount was to acknowledge his “professed desire to reform”.[10] The Judge rightly seemed quite sceptical about this prospect and noted that the three months discount given could be described as “generous”. We agree. To the extent that any allowance needed to be made for the appellant’s medical condition, we are satisfied that it is properly encompassed within the further three month discount applied by the Judge.
Home detention
[10] At [24].
The appellant faces two difficulties in seeking to persuade us that the Judge erred in not opposing a sentence of home detention. The first is the well established principle that home detention is unlikely to be granted where a person is convicted of dealing in drugs from his or her home.[11] The second hurdle is, as counsel for the appellant acknowledged, that this Court has said that when an offender is on the cusp of home detention, the Court will ordinarily defer to the assessment of the sentencing judge.[12]
[11] See R v Stainton [2008] NZCA 370 and R v Paki CA165/05, 5 September 2005.
[12] See R v D(CA253/2008) [2008] NZCA 254 at [66].
We are not satisfied that the Judge erred in making the evaluative assessment as to the appropriateness of a sentence of home detention. First the Judge correctly applied the principles established by this Court in R v Hill. In particular the Judge applied the relevant principles and purposes of sentencing as set out in the Sentencing Act.
It is true that the Judge referred, when dealing with the dangers of sentencing an offender to home detention for drug dealer offending, to the risk of “long periods of boredom whilst in a relatively unsupervised environment”. We accept that the Judge did not have an evidential basis for that statement in the absence of specific information about the precise living conditions of the appellant were a sentence of home detention to be imposed. However, we do not consider that that observation detracts from the overall proposition that sentencing a person to home detention for drug dealing offending that occurred from the home is problematic. The key point is that where the drug dealing has been undertaken from a home environment, sending the offender back into that same environment will usually be inappropriate because it will not properly serve the principles and purposes of deterrence, denunciation and accountability.
In this case the further information available from the affidavit from the appellant and his partner shows that such proposition would be undoubtedly true. The appellant would be free to return to his home (albeit restricted at all times to that address) but nevertheless free to continue on with his daily work and music regime as applied previously. Apart from the above noted restriction, his life would be allowed to continue unimpeded.
With respect to the Judge’s evaluation of home detention versus imprisonment, for the reasons already discussed,[13] we are not satisfied that the appellant’s medical condition is such as to alter the balance in favour of home detention.
[13] At [20] above.
In short, we are not satisfied that the appellant has demonstrated any error of principle that would call for appellate intervention on the issue of home detention.
Result
The appeal against sentence is dismissed.
Solicitors:
Swarbrick Beck Mackinnon, Auckland for Respondent
Crown Law Office, Wellington for Respondent
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