Devereux v Police
[2017] NZHC 167
•16 February 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-105 [2017] NZHC 167
BETWEEN JON-PAUL DEVEREUX
Appellant
AND
NEW ZEALAND POLICE First Respondent
DEPARTMENT OF CORRECTIONS Second Respondent
CRI-2016-409-140
BETWEEN BRETT JAMES DRAKE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 14 February 2017 Appearances:
M Starling for the Appellants
C Bernhardt and C Martyn for the RespondentsJudgment:
16 February 2017
JUDGMENT OF MANDER J
[1] The appellant, Jon-Paul Devereux, was convicted on charges of cultivating and selling cannabis, possessing methamphetamine, assaulting a female, intentional damage and breach of community work. He was sentenced to 11 months home
detention.1
1 Police v Devereux [2016] NZDC 16884.
[2] The appellant, Brett Drake, was convicted on charges of possessing cannabis for sale, possessing methamphetamine, and possessing a knife and an imitation firearm. He was sentenced to 26 months imprisonment.2
[3] Both appellants have appealed their sentences on the basis the starting point adopted in respect of their cannabis offending was too high and has resulted in manifestly excessive sentences. Their cases are quite separate and they were sentenced by different Judges, however, because of the common issue arising on their respective appeals, namely the appropriate application of the guideline judgment of R v Terewi, they have been heard together.3
Background
Mr Devereux
[4] In May last year the police executed a search warrant at Mr Devereux’s residence. They located cannabis growing in a shed behind the garage. Inside the shed were compartments containing trays of growing medium. One of the areas contained six cannabis plants nearing maturity being grown under lights. In the other compartment there were three trays of soil with cannabis seeds planted for germination. There were various filters and pieces of equipment used to try to avoid detection as a result of the usual cannabis odour.
[5] When spoken to by police about cultivating cannabis, Mr Devereux admitted that he had grown cannabis for a long time but this was only his second grow at the address since he had moved there late in the prior year. He admitted selling cannabis and that he typically would sell one $50 bag of cannabis to supplement his income, although at times he had sold as many as ten $50 bags in a week.
Mr Drake
[6] Mr Drake’s offending was detected as a result of a search of his vehicle. He
was found to be in possession of a knife, a BB gun, and 110.74 grams of cannabis in small bags. A set of silver scales were also found, and $3,120 in cash. Items
2 Police v Drake [2016] NZDC 23914.
3 R v Terewi [1999] 3 NZLR 62 (CA).
consistent with Mr Drake’s consumption of methamphetamine were located, and he
was also found to be in possession of 60 Ritalin tablets.
District Court sentencing
Mr Devereux
[7] In sentencing Mr Devereux, Judge Gilbert adopted a starting point of two years imprisonment. The Judge held:4
[11] In my view the cannabis operation that you were running could fairly be characterised as being towards the lower end of band 2 in the leading case of R v Terewi. That may not mean a whole lot to you but the Court of Appeal has said that where there is a commercial element to drug dealing, as there was in your case, even for small operations, the starting point is between two and four years’ imprisonment. As I say, this is at the lower end, but it is not at the lowest end of Band 2 by any stretch in my view.
(Citations omitted)
[8] For the drug-related offences Judge Gilbert therefore took a starting point of two years imprisonment. Taking into account the principle of totality he uplifted that two year starting point by six months to reflect the other charges, and in particular the offence of male assaults female which the Judge described as a nasty and frightening incident endured for some time by the victim.
[9] After applying a 25 per cent discount for guilty pleas an end point of 22 months imprisonment was arrived at, which ultimately resulted in an end sentence of
11 months home detention and 100 hours community work.
Mr Drake
[10] In respect of Mr Drake, on the leading charge of possession of a Class C controlled drug for sale, Judge Strettell also adopted a starting point of two years imprisonment. The Judge remarked that he was guided by the Court of Appeal
decisions of R v Gray and R v Terewi, and that those decisions indicated a starting
4 Police v Devereux, above n 1.
point of two years for the commercial supply of drugs.5 Judge Strettell further remarked:6
[8] Mr Starling suggested that there has been at least in his experience a weakening of that approach and that Judges have looked to imposing (sic) in circumstances lesser terms of imprisonment than that and I suspect on some occasions even addressing commercial supply that one can get below the two years because it is only a starting point but I know of no direction or approach generally held by the Courts that commercial drug dealers are now being sentenced to sentences that are significantly less than the two year period referred to in those cases.
[11] Judge Strettell considered that a starting point of two years was not unreasonable in the present case. Taking into account totality, a six month uplift was applied for Mr Drake’s other offending and to mark his previous convictions. This resulted in an end starting point of 30 months imprisonment. After a four month discount was applied for guilty pleas an end sentence of 26 months imprisonment was arrived at.
Approach to appeal
[12] The Court must allow an appeal against sentence if it is satisfied there has been an error in the sentence imposed and that a different sentence should be imposed.7 The sentence will be manifestly excessive if it can be demonstrated that having regard to the seriousness of the offence and the culpability of the offender the sentence is significantly more severe than should otherwise have been imposed. The focus must be on the end result not the process by which the sentence was reached.
An appellate Court will not interfere with the legitimate exercise of judicial discretion.8
The appeal
[13] In written submissions the appellants’ counsel contended that the guidance provided in R v Terewi should be reconsidered by this Court having regard to its vintage and what was described as “societal shifts” in the approach to cannabis
offending. That submission can swiftly be dispensed with. This Court has no
5 R v Gray [2008] NZCA 224; R v Terewi, above n 3.
6 Police v Drake, above n 2.
7 Criminal Procedure Act 2011, s 250.
8 Maihi v R [2013] NZCA 69 at [21].
jurisdiction to overturn or revise the Court of Appeal’s guideline judgment. If sentencing levels in respect of cultivation and distribution of cannabis are to be recalibrated that is a matter for the Court of Appeal or the Supreme Court.
[14] A related submission that legislative changes since R v Terewi should have resulted in a reappraisal of that case also does not stand scrutiny. A similar argument was made before the Court of Appeal in White v R, on the basis of amendments to the Sentencing Act 2002, and in particular changes to the home detention provisions.9 The Court of Appeal held the amendments had no effect on the continued application of R v Terewi. A similar earlier argument put before the same Court in R v McGilp based on a submission that legislative changes resulting in the
abolition of suspended sentences called for a re-evaluation of R v Terewi was likewise rejected.10
Discussion
[15] It is indisputable that the District Court in each case was correct to approach the sentencing exercise by applying the guideline judgment of R v Terewi. A submission was made in oral argument on behalf of Mr Devereux that the sales to which he admitted were insufficient to classify his cultivation of cannabis as being for a commercial purpose. It was suggested his sales of cannabis were for the purpose of covering the costs associated with this cultivation which was primarily for his own personal purposes.
[16] That submission overlooks Mr Devereux’s own admission that he typically sold a bag of cannabis each week to supplement his income. However, in any event, it is not uncommon for cultivators to have dual objectives. Having regard to Mr Devereux’s admission of at times selling up to $500 of cannabis per week and the nature of the growing operation in a shed “kitted out” for the purpose of cultivating cannabis, Judge Gilbert was entitled to conclude that the offending fell into Category 2 of R v Terewi. That conclusion is reinforced when regard is had to the
Court of Appeal’s description of the type of activity which falls into the lesser
9 White v R [2010] NZCA 565.
10 R v McGilp (2006) 23 CRNZ 526 (CA).
Category 1 group which involves the growing of a small number of cannabis plants for personal use without any sale to another party occurring or being intended.
[17] Category 2 offending is described by the Court of Appeal in R v Terewi in the following terms:11
Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between 2 and 4 years but where sales are infrequent and of very limited extent a lower starting point may be justified.
[18] The essential complaint made on the appeal is that the sentencing Judges unduly restricted their approach to the appropriate starting point because of a misapprehension that the mandatory minimum starting point was one of two years imprisonment. The contest on appeal largely centred on whether the sentencing Judges had erred in approaching their sentencing task in such a way. The focus was on the way they had couched their sentencing remarks in applying the guideline decision.
[19] I doubt whether much is to be gained from a forensic examination of the language used by the sentencing Judges in applying the guidance provided by the Court of Appeal. The short point is that in each case a starting point of two years imprisonment was taken by each of the sentencing Judges to reflect the assessed commerciality of the cannabis offending. Because Category 2 of R v Terewi does contemplate a lower starting point for commercial offending where sales are infrequent it is necessary for me to consider whether the two year starting point adopted by the sentencing Court in the circumstances of the individual cases has resulted in a manifestly excessive sentence.
[20] Neither the appellants nor the Crown traversed relevant sentencing authorities in the argument presented before me. There are, of course, countless Category 2 cannabis sentencing decisions, and the circumstances of each case invariably are different. However, I have sought to undertake my own albeit limited review in
order to gauge whether the starting points adopted were excessive.
11 R v Terewi, above n 3, at [4].
[21] In R v Edmonds the defendant was found to be in possession of 65 cannabis plants, eight mother plants and 42 seedlings.12 The plants were in black plastic planting bags and were grown indoors under controlled lighting. Also located were boxes of fertiliser, extractor fans, and other items relating to cultivation. The sentencing Judge found there was a commercial element to the offending and adopted a starting point of three years imprisonment. On appeal, the Court of
Appeal held that the starting point was manifestly excessive. The Court was of the opinion that the cultivation “could only be described as basic and relatively unsophisticated”. Referring to R v Terewi, the Court of Appeal held that:13
... the categories are for guidance in assessing comparative culpability, they do not fix it. For offending falling within Category two the judgment in Terewi states that the range available to the sentencing Judge is generally between two and four years before adjustment for special factors. But there is the additional direction that if the commercial element is small a lower starting point might be justified. The decision does not state that for all cannabis offending having a commercial element, however small, the sentence must be no less than imprisonment for two years.
[22] The Court of Appeal, in allowing the appeal, adopted a starting point of two years before allowing a 25 per cent reduction for the appellant’s guilty plea. This resulted in an end sentence of 18 months imprisonment.
[23] In Mowberry v R the appellant was found to be in possession of 57 cannabis plants.14 Electronic timers, a dehumidifier and heat pumps were also located. Judge Garland in the District Court adopted a starting point of two years imprisonment, placing the operation at the lower end of Terewi Category 2. On appeal, Gendall J, citing R v Edmond, held that the operation being very basic and the degree of commerciality being minor a starting point of less than 24 months was warranted. The appeal was allowed and a starting point of 18 months imprisonment was adopted. A discount for the appellant’s guilty plea resulted in an end sentence of six
months home detention.
12 R v Edmonds CA23/02, 28 May 2002.
13 R v Terewi, above n 3, at [9].
14 Mowberry v R [2012] NZHC 969.
[24] In Needham v Police the appellant was found to be in possession of 10 potted cannabis plants growing under heat lamps.15 A further 236 grams of dried cannabis, four large mature plants drying in a hot water cupboard and 631 grams of frozen cannabis stalks were also located. Additionally, 47 grams of dried cannabis was located in the appellant’s car. A starting point of six months was adopted and upheld on appeal.
[25] In R v McDonald the appellant was found with 14 cannabis tinnies and a one ounce bag of cannabis, in total amounting to 41.21 grams.16 When his house was also searched 48 small cannabis plants in an elaborate shed setup were also found. A two year starting point was adopted with a further 25 per cent reduction for an early guilty plea.
[26] In R v Rauhihi the defendant was found to be in possession of 72 cannabis plants, and further quantities of wet and dried cannabis with an equivalent weight of
326 grams. 17 After an extensive review of relevant sentencing decisions a starting
point of 15 months imprisonment was adopted.18
[27] Lest it be thought that starting points below two years for offending that falls into the lower end of Category 2 is some recent development, the Court of Appeal, as far back as R v Edmonds in 2002, has recognised that adopting a starting point below the two to four year bracket is appropriate for offending at the lower end of Category
2 of Terewi. In 2006 the Court of Appeal, in R v McGilp, in declining to reassess sentencing policy for low-end commercial cannabis growing, observed that there is flexibility in the approach to be taken to such offending.19
[28] In that case a search warrant had located 98 cannabis cuttings and seedlings
and 58 cannabis plants on the appellant’s property. Cannabis cultivation
paraphernalia and 201 grams of cannabis material was also located. A diary recorded
15 Needham v Police [2013] NZHC 688.
16 R v McDonald HC Whangarei CRI-2011-088-3522, 5 September 2011.
17 R v Rauhihi HC Palmerston North CRI-2008-031-1438, 1 May 2009.
18 Waghorn v Police HC Invercargill CRI-2008-425-1, 4 March 2008; R v Stuthridge HC Auckland CRI-2007-404-254, 6 November 2007; R v McGilp, above n 10; R v Marshall HC Whangarei CRI 2008-029-216, 16 December 2008; R v Timoti HC Tauranga CRI-2004-087-2197, 17 March
2005; R v Fenton CA 247/99, 11 October 1999.
19 R v McGilp, above n 10.
sales which netted some $3,320, although $1,600 was in dispute. The appellant accepted he was jointly responsible for the cultivation and sales with his brother. The District Court adopted a starting point between 15 and 18 months imprisonment which was reduced to 12 months for the appellant’s guilty plea. The Court of Appeal accepted the offending was at the very lowest end of Category 2. While emphasising that imprisonment remained an appropriate response for such offending, it considered the sentencing Court was right to take a starting point “well below” the two to four years referred to in Terewi.
Decision
Mr Devereux
[29] As I have already observed, each case must turn on its own circumstances. There are limitations on the extent to which comparisons can be made with other cases and there will always be a range of sentences available to a sentencing Court in the exercise of its discretion. However, there is also a fundamental need for some level of consistency in the starting points adopted for like offending.20 Because of the described nature of Mr Devereux’s cannabis setup, the fact only six mature cannabis plants were located at the time of the execution of the search warrant, and the apparently limited sales he had made, I consider a lower starting point should
have been selected by the District Court. A starting point of 15 months would have more adequately reflected the level of his offending when regard is had to the approach that has been taken by the Court of Appeal and this Court to similar and more serious offending in the past.
[30] I am mindful that it is the ultimate sentence imposed on Mr Devereux which I must assess. I have considered whether adjusting the starting point for the cannabis cultivation offending requires a recalibration of the sentence of six months imposed on the charge of male assaults female. There were some particularly violent features of that offending, however, I consider they were adequately reflected in the six month cumulative term of imprisonment. Combining the balance of the approach taken by the District Court to the sentencing exercise with the adjusted starting point
of 15 months imprisonment for the cannabis cultivation results in an end sentence of
20 Sentencing Act 2002, s8(e).
16 months imprisonment. Commuting that sentence to one of home detention, a final sentence of eight months home detention is reached.
[31] Accordingly, the appeal is allowed. The original sentence of 11 months home detention is set aside and in its stead replaced with one of eight months home detention. The imposition and application of special and standard conditions by the District Court stand. A sentence of 100 hours community work, reparation and the orders for the destruction of the drugs and paraphernalia remain unaffected.
[32] For completeness, I record that an original appeal challenging Judge Gilbert’s ruling admitting evidence obtained from the search of Mr Devereux’s property was abandoned.
Mr Drake
[33] There can be no question of the commerciality of the circumstances in which Mr Drake was found in possession of the packaged cannabis. This together with a set of scales and some $3,120 in cash leaves no doubt as to his dealing activities. In R v Gray the Court of Appeal confirmed the range of two to four years imprisonment for small scale commercial dealing in cannabis.21 In that case the appellant, described as a regular and consistent dealer in cannabis over the period of the police’s electronic surveillance of him, sold in excess of two pounds of cannabis. He was sentenced on the basis of a starting point of three years imprisonment. That
starting point was upheld by the Court of Appeal.
[34] I confess to having some difficulty reconciling the guidance provided by the Court of Appeal in R v Terewi nominating a range of sentence of between two to four years imprisonment for small-scale commercial dealing (in which Mr Drake undoubtedly was engaged) with the authorities that I have already reviewed. However, I accept there is an identifiable error in Judge Strettell’s observation which suggests that terms of imprisonment for commercial supply can only be achieved as
a result of deductions from the base starting point of two years and, at least
21 R v Gray, above n 5.
implicitly, the Court cannot take a lower starting point for such low level commercial offending.
[35] By a combination of taking into account the authorities I have reviewed and making an appropriate adjustment for the level of offending and the approach to sentence in R v Gray, resulting as it did in a starting point of three years imprisonment, I am satisfied that I am obliged to substitute a lesser starting point in the case of Mr Drake.
[36] Accordingly, I again take a starting point of 18 months imprisonment. Applying the approach taken by the District Court to the balance of the sentencing exercise, namely an effective uplift of six months (taking into account totality), to reflect other drug-related offending, the presence of weapons and Mr Drake’s criminal record, and applying the same 13 per cent discount for the entry of his guilty pleas, a term of 20 months imprisonment is the end result.
[37] The appeal is therefore allowed. The sentence of 26 months imprisonment is set aside and substituted with one of 20 months imprisonment on the charge of possession of cannabis for sale. In relation to all other charges the concurrent terms of imprisonment of three months remain undisturbed, as do the orders for the destruction of the knife, the BB gun, and utensils.
Solicitors:
Michael Starling Barrister, Christchurch
Raymond Donnelly & Co, Christchurch
18