Cormack v Police

[2014] NZHC 2017

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-26 [2014] NZHC 2017

BETWEEN

DANYA ELIZABETH CORMACK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	25 August 2014
Appearances:	J Fraser for Appellant M-J Thomas for Respondent
Judgment:	25 August 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

CORMACK v NEW ZEALAND POLICE [2014] NZHC 2017 [25 August 2014]

[1]      Ms Cormack pleaded guilty in the District Court to three charges of being in possession of cannabis for the purpose of supply and one charge of selling cannabis. On 16 May 2014, Judge Turner sentenced Ms Cormack to an effective sentence of one year nine months imprisonment.1   She appeals against the sentence on the basis that the Judge ought to have imposed the lesser sentence of home detention.

Background

[2]      The charges against Ms Cormack were laid as a result of a police operation that was conducted between December 2012 and  November 2013.   During this operation,  the  police  identified  Ms  Cormack  as  being  involved  in  the  sale  of cannabis in the Otago and Southland areas.   The police intercepted text messages sent to and by her.   These revealed that between July and October 2013, she was involved in the purchase and subsequent sale of cannabis.  During July and August

2013 she met with her supplier on four occasions, purchasing between one and two ounces of cannabis on each occasion.   On 18 October 2013 she purchased three ounces of cannabis, and on 20, 25 and 26 October 2013 she purchased ounce quantities of cannabis although the exact quantity is unclear.  She re-packaged all of the cannabis into bullet form and sold bullets for $25.00 each.

[3]      When  the  police  apprehended  Ms  Cormack,  she  acknowledged  her  drug dealing activities.   She said it had been occurring for approximately a year, and explained it on the basis of the need to supplement her income in order to feed her family.

The sentence

[4]      It was common ground in the District Court that the offending fell within category two identified in R v Terewi.2   This calls for a starting point of between two and four years imprisonment.  The Judge selected a starting point of two years six months imprisonment, and Ms Cormack does not take issue with this aspect of the

sentence.

1      R v Cormack DC Invercargill CRI-2013-025-2579, 16 May 2014.

2    R v Terewi [1999] 3 NZLR 62.

[5]      The Judge imposed an uplift of two months imprisonment to reflect the fact that Ms Cormack has been convicted on several occasions of charges relating to cannabis between 2004  and 2009.   The Judge then applied a discount of three months to reflect mitigating factors other than the guilty pleas, and a full discount of eight  months  (or 25  per cent)  to  reflect  guilty pleas.   These  produced  the end sentence of one  year nine months imprisonment.   No issue is taken with these aspects of the sentence.

[6]      The  Judge  did  not  consider  that  a  sentence  of  home  detention  was appropriate.  He was concerned at the fact that Ms Cormack has previously served a sentence of home detention with drug-related offending, but that the sentence had not deterred her from becoming involved in such activities again.   He was also concerned at the fact that her offending appeared to have escalated from the use of drugs personally to engaging in drug dealing activities.  The Judge did not consider that a sentence of home detention would adequately meet the purposes and principles of sentencing, including those of deterrence, denunciation and the need to hold the offender accountable. This is the issue that forms the basis of the appeal.

Decision

[7]      A decision whether or not to impose a sentence of home detention involves the exercise of a judicial discretion.  The discretion is not unfettered, because it must be exercised having regard to the purposes and principles of sentencing contained in the Sentencing Act 2002.   Nevertheless, an appellate court will not interfere with such a decision unless it is satisfied that the judicial officer exercising the discretion has erred in principle, has failed to take into account a relevant principle or has taken into account an irrelevant principle.

[8]      In  the  present  case,  Ms  Cormack  faced  several  hurdles  in  relation  to  a sentence of home detention.   First, she has already served sentences of home detention in the past for drug-related activity.   This has not deterred her from offending in a similar manner again.  Secondly, the Court of Appeal emphasised in R v Hill that sentences of home detention in the present context will generally only be

considered where the offending is at the lower end of the scale.3    Ms Cormack’s offending cannot be viewed as falling within that range of offending.   Thirdly, a sentence of home detention may not pay adequate regard to the sentencing purposes of denunciation, deterrence and the need to hold the offender accountable.  Finally, Ms Cormack now has an established pattern of drug-related offending.  There must be a risk that, if she is sentenced to another term of home detention, she will again become tempted to become involved in such activity.

Result

[9]      Taking those factors into account, it cannot be said that the Judge erred in refusing to impose a sentence of home detention.   The appeal against sentence is

accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Invercargill

Counsel:

John K Fraser, Invercargill

3            R v Hill CA 559/07 29 February 2008