Dellaway v R

[2010] NZCA 100

IN THE COURT OF APPEAL OF NEW ZEALAND

CA743/2009
[2010] NZCA 100

BETWEENDEAN FREDERICK GEORGE DELLAWAY

Appellant

ANDTHE QUEEN

Respondent

Hearing:18 March 2010

Court:O'Regan, Rodney Hansen and Simon France JJ

Counsel:R G Glover for Appellant

K A L Bicknell and A C Walker for Respondent

Judgment:25 March 2010 at 3 pm

ORDER OF THE COURT

Leave to appeal out of time is granted, but the appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1]        Mr Dellaway appeals the sentence imposed on him in relation to three representative charges of supplying cannabis to persons under the age of 18, and charges of cultivating cannabis, possessing cannabis, disqualified driving and breaching community work.  The apparent final sentence is two years nine months’ imprisonment.[1]

[1]      R v Dellaway DC Christchurch CRI 2008‑009‑8278, 27 March 2009.

[2]        We use the word apparent because the primary appeal ground is that the sentencing remarks are confused, and that the final sentence is unclear.  It is submitted the sentencing exercise fails in its task of adequately informing what sentence the offender has received in relation to his offending.

[3]        An appeal against conviction was abandoned prior to the hearing, and is dismissed.

Factual background

[4]        The three charges of supplying cannabis involved encouraging young persons who visited his house to use cannabis which was supplied to them by Mr Dellaway.  The three children concerning whom charges were laid on the first occasion were aged between 13  and 14 years.  The charge of cultivation arose from a search of Mr Dellaway’s garage which revealed 15 plants growing.  The possession of cannabis charge arose at the same time.

[5]        Concerning driving while disqualified, this was the seventh conviction for that offence.  The sixth occasion had occurred five months earlier.  In relation to that earlier offence Mr Dellaway was sentenced to 80 hours community work.  Mr Dellaway completed 41 hours, and then just stopped attending.  This is the basis of the breach of community work, another type of offending that appears in various form on his record with considerable regularity.

Submissions

[6]        As noted, the appeal is somewhat unusual in that the primary challenge is to the structure and clarity of the sentencing exercise.  It is convenient therefore to set out the relevant portions of the sentencing remarks before setting out counsel’s submissions:

[9]         I deal with the term of imprisonment by way of lead sentences on the supply charges, and all of the other sentences will be inclusive.  I have to first fix a starting point guided by the authorities and counsel’s references.  In a convoluted way I fix the overall starting point as follows.

[10]       In relation to the three supply charges I fix it primarily at two years but uplift it for the aggravating features I have referred to by six months to arrive at two years and six months.  In relation to driving while disqualified I start at six months and add six months, that is another year, and in relation to the breach of community work I start at two months and uplift that by another to bring it to three months which is the maximum penalty for that offence.

[11]       All of those figures added together arrive at three years and nine months.  I have to take into account totality and reduce that by six months, which brings it down to three years and three months.  You are not entitled, of course, to any credit for guilty pleas in relation to the matters on which you were found guilty but, in relation to the lesser charges, I give you a credit of three months for the guilty pleas plus an additional three months for the other mitigating factors relating to personal circumstances, which is six months which, if the arithmetic is correct, means that the overall sentence will be one of two years and nine months imprisonment.  You are sentenced accordingly on each of the supply charges.

[12]       On the cultivation charge you are sentenced to six months imprisonment.  On the possession simpliciter charge to three months imprisonment; on the driving whilst disqualified to nine months imprisonment and on the breach of community work to two months imprisonment.  All of the sentences run together, that is a total of two years and nine months imprisonment.  On the driving while disqualified charge you are disqualified from driving for 12 months and one day with effect from the 31^st of January next year which is when your present disqualification runs out.

[7]        Mr Glover submits it is unclear what sentence the Judge has imposed.  In his submission Mr Dellaway has been sentenced twice on the cannabis supply charges to different terms (with the suggestions being first two years six months’ imprisonment ([10]) and then two years nine months’ imprisonment ([11]).

[8]        It is likewise submitted that the driving and possession charges are made both cumulative and concurrent at the same time.

[9]        Mr Glover submits the sentencing remarks fail the basic requirements of intelligibility and of informing the accused of his sentence and how it is structured.  He draws in aid comments of the Parole Board made when Mr Dellaway first appeared (represented by Mr Glover).  The Board observed in its decision:

2.… With all due respect to the Learned Judge there appears to be an error in the way that His Honour has both reached the starting and end points.  More than that, however, there is an inconsistency between the sentencing notes and the warrant of committal held by the prison.  The warrant states that Mr Dellaway is serving an effective sentence of two years and nine months on the cannabis charges.  That is incorrect when one looks at Judge Noble’s sentencing notes.[2]

[2]Parole Board Christchurch, 5 January 2010, per Judge Crosbie, Messrs Lewis and Thomson, at [2].

[10]       Finally we note there is a brief submission by Mr Glover on the quantum of the sentence which we will address in the course of our discussion.

Decision

[11]       For the avoidance of doubt we commence our discussion by stating that the warrant accurately reflects the sentences that the Judge imposed.  Further, those sentences both individually and collectively were appropriate.  The final outcome is that Mr Dellaway is subject to a sentence of two years nine months’ imprisonment.

[12] Turning to the sentencing remarks it is important to read paragraphs [10] to [11] against the background of paragraph [9]. In paragraph [9] the Judge states two things:

(a)He is going to capture all the offending by imposing a lead sentence on the supply charges that reflects the culpability for all the offences;

(b)         He needs to first identify starting points.

[13]       In paragraph [10] what the Judge then does is identify those starting points in relation to the three groups of offending – cannabis, disqualified driving and breach of community work.  At the same time the Judge applies the relevant aggravating factors to each offence and adjusts the starting point accordingly.

[14] This is orthodox sentencing. So too is the next step contained in the first sentence of paragraph [11]. The offending is unrelated, so the sentences are added together. That produces a cumulated total of three years nine months.

[15]       At that point there are three tasks still required of a sentencing Judge:

(a)          Adjust the sentence for mitigating factors;

(b)Consider if the combined totals need adjusting in light of the totality principle;

(c)If they do, work out what to do with the individual sentences to achieve the adjusted total.

[16] This is what the Judge does in paragraph [11]. Having mitigated and applied totality, his Honour is left with a final sentence of two years nine months’ imprisonment. That is longer than any single sentence he has assessed as being appropriate, so adjustment is needed.

[17]       There are two ways to achieve the goal.  First, cumulate two or more sentences to get to the total.  Sometimes that works easily; sometimes you have to adjust the underlying terms to get to the right total.  Alternatively, increase the longest sentence by the amount needed to reach the right total, and then make everything else concurrent.  That is what the Judge did here.  It is legitimate, as long as the increase to the lead sentence does not produce a sentence on that charge that is wholly disproportionate to the offending.  In this case it necessitated adjusting the intended sentence of 30 months by adding another three.  That is not a large adjustment and was certainly open to the Judge.

[18]       It is important to appreciate that the totality principle, if it requires an adjustment, inherently means that otherwise appropriate individual sentences may have to somehow be changed.  Sometimes totality can be achieved by making concurrent that which would normally be cumulative.  Sometimes however, it can require that an otherwise appropriate sentence has to itself be changed.

[19]       To turn then to the specific criticisms.  First, the Judge did not identify two years six months as the final sentence for the supply of cannabis.  Read in light of paragraph [9], that figure can be seen to be what it is – the aggravated starting point.  Second, the Judge did not make the driving offences both concurrent and cumulative.  He initially cumulated the aggravated starting points to produce a total for the purposes of assessing totality.  In the end, however, he imposed concurrent terms for everything.

[20]       Again for the avoidance of doubt the sentences are:

(a)supplying cannabis – two years nine months’ imprisonment, being a figure that represents the period of time to which Mr Dellaway should be sentenced for all his offending;

(b)         Cultivating cannabis – six months’ imprisonment;

(c)          Possessing cannabis – three months’ imprisonment;

(d)         Disqualified driving – nine months’ imprisonment;

(e)         Breach of community work – two months’ imprisonment.

[21]       It is apparent the Judge has done one thing that he has not articulated.  The earlier approach he took meant that initially the mitigating factors were applied globally to a total sentence but not attached individually to any sentence.  In identifying the final concurrent sentences – i.e. sentences which do not affect the amount of time Mr Dellaway will spend in jail – his Honour has applied discounts to disqualified driving and breach of community work, no doubt to reflect the existence of mitigating factors.

[22]       The Judge himself identified that his method was convoluted.  Perhaps it was, but we make no criticism; sometimes sentencing is quite complex and sometimes it just does not all come out as clearly as one wants.  We make again the point this Court has stressed on numerous occasions – the key issue on appeal is whether the final total sentence is available and within range.  Rarely will the route to it be of appellate significance.

[23]       Turning to that key issue, two years nine months’ imprisonment was by no means excessive.  Mr Dellaway grew cannabis, and he supplied it on numerous occasions to young persons.  The three children concerning whom charges were laid on the first occasion were 13 and 14 years old.  It is offending that requires the firmest denunciation. 

[24]       The appeal is out of time.  Mr Dellaway has filed an affidavit explaining the reasons, and the Crown does not oppose.  Leave to appeal out of time is accordingly given but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent