Da Silva v Police
[2015] NZHC 1213
•3 June 2015
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CRI-2015-418-000003 [2015] NZHC 1213
BETWEEN DAMINGO JOSEPH DA SILVA Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 29 May 2015 Appearances:
M Zintl for Appellant
D L Elsmore for RespondentJudgment:
3 June 2015
JUDGMENT OF GENDALL J
Introduction
[1] This is an appeal against sentence for drug offending and assault offences, to which the appellant, Damingo Joseph Da Silva (Mr Da Silva) pleaded guilty.
[2] On 29 August 2014, Mr Da Silva confronted a male he knew in a West Coast supermarket. This man fell victim to an assault by Mr Da Silva, resulting from the latter’s belief that this acquaintance had made disparaging comments about Mr Da Silva’s children. When the man refused Mr Da Silva’s request to go outside and talk, he was punched in the face, which knocked him unconscious. The victim suffered severe bruising and cuts to his face, near his eye.
[3] Later, on 17 October 2014 whilst he was on bail for the offending noted above, the Police went to Mr Da Silva’s home. Upon their arrival, an elaborate cannabis operation was discovered in a large shipping container next to the house. A total of 48 well-manicured, mature cannabis plants were being grown under lights.
Mr Da Silva also had in his possession cannabis oil. He claimed the plants were for
DA SILVA v NEW ZEALAND POLICE [2015] NZHC 1213 [3 June 2015]
his personal use. Finally, Police located a number of utensils for smoking the cannabis and cannabis oil.
[4] Mr Da Silva came before Judge Couch in the District Court at Greymouth for sentencing on 14 April 2015.1 In total, he received a sentence of 19.5 months’ imprisonment, consisting of:
(a) Assault:2 six months’ imprisonment imposed;
(i) Starting point of eight months’ imprisonment (considered to be
near to the most serious type of assault);
(ii)Discount of two months (25 per cent) for the prompt entry of a guilty plea;
(iii) End sentence of six months’ imprisonment imposed;
(b) Cultivation of cannabis:3 one year, one month and fourteen days’
imprisonment (cumulative);
(i) Starting point of 14 months’ imprisonment;4
(ii)Uplifted by four months by the aggravating features that the operation continued while Mr Da Silva was on bail for the assault charge and previous serious drug offending involving cannabis;
(iii)Discount of four and a half months for the prompt entry of a guilty plea;
(iv) End sentence of 13.5 months imposed;
1 Police v Da Silva [2015] NZDC 6263.
2 Crimes Act 1961, s 196 (maximum penalty: one year imprisonment).
3 Misuse of Drugs Act 1975, s 9(1) (maximum penalty: seven years’ imprisonment).
4 Judge Couch observed that the offending did not fit well into either category one or category two of R v Terewi [1999] 3 NZLR 62 (CA).
(c) Possession of cannabis oil:5 one month (concurrent); (d) Possession of utensils:6 one month (concurrent)
[5] Mr Da Silva now seeks to appeal the sentence on two grounds. First he takes the view that the end sentence was manifestly excessive. Secondly, there is a challenge to the refusal of Judge Couch to impose a sentence of home detention.
Jurisdiction
[6] Mr Da Silva is able to appeal the sentence imposed as of right.7 This Court, as first appeal Court,8 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.9 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act
1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).10
[7] Toogood J recently captured the essence of the test in Larkin v Ministry of
Social Development:11
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[8] In addressing home detention, it is useful to note two points at the outset. Both are trite. First, the availability of home detention has not rendered superfluous short terms of imprisonment.12 Secondly, a claim that home detention ought to have
been imposed necessarily attacks the exercise of a judicial discretion – a successful
5 Misuse of Drugs Act 1975, s 13 (maximum penalty: one year imprisonment/$500 fine).
6 Sections 7(1)(a) and 7(2)(b) (maximum penalty: three months’ imprisonment/$500 fine).
7 Criminal Procedure Act 2011, s 244.
8 Section 247.
9 Section 250.
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
11 Larkin v Ministry of Social Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].
12 R v Stainton [2008] NZCA 370; Kincaid v R [2010] NZCA 384 at [29]; Polyanszky v R [2011] NZCA 4 at [13]; Heta v R [2012] NZCA 267 at [21].
challenge must therefore surmount the requisite hurdle for doing so. There must be a material discretionary error.13 In the context of drug offending occurring in the home, establishing a material error can be difficult, given the guidance of the Court of Appeal in Bryant v R:14
… 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.
[9] With these principles in mind, I now turn to consider the merits of
Mr Da Silva’s appeal.
Submissions of appellant
[10] I will first address submissions made by counsel.
[11] Mr Zintl, counsel for Mr Da Silva, submits that Judge Couch erred in taking a starting point of 14 months’ imprisonment on the cultivation of cannabis charge. The result, it is claimed, is that the end sentence was manifestly excessive. By reference to various authorities, Mr Zintl asserts that the starting point should have been “in the vicinity of six months’ imprisonment”.15
[12] From that starting point, Mr Zintl states that Judge Couch failed to have regard to Mr Da Silva’s genuine remorse. He says further that no regard was paid to Mr Da Silva’s genuine steps towards rehabilitation, and that he had obtained a job as a cleaner, and his family were financially reliant on him. Finally, it was noted that Mr Da Silva had voluntarily attended counselling sessions. As best I can tell, Mr Zintl offers no end point, but it seems that his ultimate contention is that the end sentence should be substantially reduced and that a sentence of home detention
should be imposed.
13 See Doolan v R [2011] NZCA 542 at [39]; James v R [2010] NZCA 206 at [17]; Heta v R [2012] NZCA 267.
14 Bryant v R [2011] NZCA 512 at [24].
15 Broadmore v Police HC Dunedin CRI-2010-412-36, 27 October 2010; R v Rauhihi HC Palmerston North CRI-2008-031-1438, 1 May 2009; R v McGilp CA124/07, 7 June 2006; R v Stuthridge HC Auckland CRI-2007-404-254, 6 November 2007; Kirk v Police (1997) 15 CRNZ
122.
Submissions of respondent
[13] Ms Elsmore, for the Crown, drew my attention to several cases in establishing that the starting point, and end point, were within the available range.16
[14] Before me, it seems neither party took any real issue with the sentence imposed in relation to the assault charge, nor the concurrent sentences imposed in relation to the remaining drug offending. Nonetheless, I will consider the sentences in their totality when considering this appeal.
Discussion
Was the end sentence manifestly excessive?
[15] I now move to consider the first aspect of Mr Da Silva’s appeal – whether the sentence imposed was manifestly excessive.
[16] On reflection, and taking into account all the circumstances here, I consider this offending falls within the very upper echelons of category one, or at the lower end of category two of R v Terewi.17 Indeed, it seems to me quite implausible that there was no element of commerciality in the refined operation in this case involving
48 well-manicured, productive cannabis plants. Mr Da Silva’s claim of personal use, like that in Butler v Police18 and R v Gatenby19 in somewhat similar circumstances, is dubious to say the least. And even if I were to leave on one side these issues of commerciality, such a large number of plants here under cultivation clearly warrant a starting point of 14 months in line with the authorities in this area such as Butler v Police and R v Gatenby. In these circumstances, and in light of those and other
authorities provided to me, I can discern no error in the approach taken by
Judge Couch in setting a starting point at 14 months’ imprisonment.
[17] I am also satisfied that the uplifts applied by Judge Couch were within the range available to him. Mr Da Silva’s previous drug offending required a condign
16 R v Fenton CA247/99, 29 September 1999; Butler v Police HC Wanganui CRI-2009-483-42, 4
November 2009; R v Gatenby CA511/04, 28 April 2005; Police v Clothier [2012] NZHC 2348.
17 R v Terewi [1999] 3 NZLR 62 (CA).
18 Butler v Police (HC) Wanganui, CRI-2009-483-42, 4/11/2009.
19 R v Gatenby (CA) CA511/04, 28/4/2005.
response, in which deterrence and denunciation are at the fore. An uplift of four months, for both previous convictions for serious drug offending and for the fact that the present drug offending continued while Mr Da Silva was on bail, in my judgment is quite appropriate. Finally, in the face of an overwhelming Crown case, the fact that Judge Couch afforded the full 25% discount of four and a half months for a guilty plea might be seen as generous.
[18] This leaves Mr Zintl’s final submissions concerning remorse, rehabilitative prospects, and the fact that Mr Da Silva’s family is financially reliant upon him. In the circumstances of this case, as I see it, these arguments do not bear significant weight. Ordinary remorse was accounted for in the generous discount for a guilty plea. As to the other matters, it is well known that personal mitigating features such as these assume a less important mantle in cases of drug offending. This is particularly so where this is neither Mr Da Silva’s first offence, nor can the offending be said to be simply opportunistic. Through his earlier unfavourable acquaintances with the judicial system, it might well be thought that the consequences of such actions should have been uppermost in Mr Da Silva’s mind here. That he has paid no heed to this has now resulted in foreseeable consequences which have come to bear.
[19] As a final cross-check, standing back and considering the totality of the offending, under all the circumstances here, I am of the view that there is no sensible basis upon which I could disturb the end sentence of 19.5 months’ imprisonment for the four offences in question.
Should home detention have been imposed?
[20] Given the conclusion I have reached above, it is still necessary for me to consider whether home detention should have been imposed.
[21] Having reached a firm view that there is no basis upon which the short-term of imprisonment imposed can be impugned, I am also of the view that declining home detention on the basis it was not an acceptable alternative was an entirely proper exercise of Judge Couch’s discretion.
[22] It is well known, as I have noted above, that offending occurring in one’s home, and especially drug dealing and operations from home, are viewed particularly seriously. Any invitation to return to that environment as an appropriate sentencing option will be subject to the closest scrutiny. While Mr Da Silva has been provided with a number of references, which are testament to his character, that is not sufficient to allay the very real concerns which now confront this Court, particularly given the fact that this has represented Mr Da Silva’s third serious drug conviction.
[23] Therefore, in all the circumstances here, I do not consider home detention to be a suitable sentencing option.
Outcome
[24] The appeal against sentence is dismissed. The end sentence was within the available range and there is no rational basis for challenging Judge Couch’s refusal to sentence Mr Da Silva to home detention.
...................................................
Gendall J
Solicitors:
Hannan & Seddon, Greymouth
Raymond Donnelly & Co, Christchurch
12
0