Dingemans v The Queen

[2013] NZCA 355

IN THE COURT OF APPEAL OF NEW ZEALAND

CA118/2013
[2013] NZCA 355

BETWEEN	BOBBY DINGEMANS Appellant
AND	THE QUEEN Respondent

Hearing:	31 July 2013
Court:	Harrison, Panckhurst and Ronald Young JJ
Counsel:	B L Sellars for Appellant J M Jelas for Respondent
Judgment:	7 August 2013 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.

BThe sentence of two years and one month imprisonment is quashed.

CIn substitution a term of five months home detention is imposed on the conditions set out in this judgment at [15].

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. On 19 February 2013 Bobby Dingemans pleaded guilty in the District Court at Manukau to three charges of supplying equipment or materials for cultivating cannabis.  Judge Andrée Wiltens sentenced him to two years and one month imprisonment.[1]  Mr Dingemans now appeals on the ground that the sentence imposed was manifestly excessive. 

Background

[1]R v Dingemans DC Manukau CRI-2012-004-5329, 19 February 2013.

1. The facts are slightly unusual and well publicised.  Mr Dingemans was employed as the Auckland Area Manager of a retailer called Switched On Gardener (SOG).  SOG is a nationwide chain of indoor growing stores.  The police targeted the retailer and its employees when conducting a covert investigation into the sale and supply of growing equipment and materials to cannabis growers.

2. The police categorised the offenders within SOG into three tiers.  Counsel and sentencing judges in various jurisdictions have proceeded upon an acceptance of that categorisation.  Tier 1 included SOG’s director, Michael Quinlan, and national managers; Tier 2 comprised area managers including Mr Dingemans and Brendon Lineham; and Tier 3 was made up of employees or managers of individual stores.  Mr Dingemans supervised five Auckland shop managers and retail assistants and worked in the Whangarei store; he also reported to the Tier 1 management team. 

3. Count 1 was the most serious of the three which Mr Dingemans faced.  It was of a representative nature, alleging that over a two year period Mr Dingemans supplied equipment or material capable of being used for cultivating cannabis knowing that it was to be used for that purpose.  Other than this generic description, the summary of agreed facts provides little information.  In particular, there were no details about volumes of material and equipment supplied by the stores under Mr Dingemans’ control or of financial revenue or net profit attributable to criminal activities.  The pre-sentence report records Mr Dingemans’ advice that he was subject to directions to sell products and meet sales targets. 

4. Counts 2 and 3 were relatively minor, alleging that on two separate occasions Mr Dingemans sold books on indoor marijuana horticulture and hydroponics.

Starting point

1. Judge Andrée Wiltens enjoyed a particular familiarity with SOG’s modus operandi.  He had presided at the lengthy trial of Mr Quinlan and other Tier 1 offenders.  Subsequent to sentencing Mr Dingemans, the Judge sentenced Mr Quinlan to four years and three months imprisonment on his conviction following guilty verdicts at trial on 16 representative counts of supplying materials and equipment for the purpose of cultivating cannabis.  Another Tier 1 offender was sentenced to three years and nine months imprisonment.  A third received a sentence of 12 months home detention.

2. In the District Court the Crown submitted that an appropriate starting point for the totality of Mr Dingemans’ offending was three years imprisonment.[2]  This submission was based upon starting points adopted by three different District Court Judges when sentencing three Tier 1 offenders in other North Island stores.  An uplift was apparently suggested for Mr Dingemans because he was higher up the management chain.  Mr Dingemans’ counsel in the District Court, Mr Foley, suggested a starting point in the range of two to two and a half years imprisonment.  The Judge adopted two years and eight months imprisonment. 

   [2]The Judge incorrectly recorded that the Crown starting point was three and a half years imprisonment. 

3. Before us, Ms Sellars was originally content to adopt a two and a half year starting point.  However, at the conclusion of argument she revised that figure down to two years imprisonment.  That is because a brief analysis reveals that the sentences imposed on the three nominated Tier 1 offenders provide an unreliable foundation for fixing an appropriate starting point for Mr Dingemans’ sentence.  In each case the Tier 1 offender was convicted of a number of discrete and reasonably serious cannabis cultivation and dealing charges. 

4. By contrast unlike any of the 10 other SOG offenders, Mr Dingemans was not convicted of cannabis dealing or cultivation for his own financial benefit.   That factor placed the Tier 1 offending in a significantly more serious category and justified a lesser starting point for Mr Dingemans.  Furthermore, there is no evidence Mr Dingemans derived any commercial advantage from his offending other than his modest managerial salary.

5. Accordingly, we are satisfied that a starting point of no more than two years imprisonment should have been applied to Mr Dingemans’ offending. 

Guilty plea

1. Mr Dingemans pleaded guilty shortly before trial.  The Judge, while specifying that a 10 per cent reduction for this factor was appropriate, applied an actual discount, as Ms Jelas points out, of seven months or 22 per cent.  Ms Sellars originally submitted that this allowance was inadequate.  However, she did not pursue that submission in argument. 

Result

1. The starting part of two years and eight months imposed was too high.  A proper starting point was no more than two years.  In the result the sentence of two years and one month imprisonment is manifestly excessive and is quashed.

Home detention

1. Ms Jelas responsibly accepts that home detention is an appropriate alternative in this case.  Mr Dingemans, who is 31 years of age, has one previous conviction for cultivating cannabis for which he was fined $500.  The Probation Service has identified an address at 10A Evans Road, Waitakere, as suitable to serve a sentence of home detention. 

2. The appropriate term of home detention is five months fixed by: (a) adopting a starting point of two years imprisonment; (b) allowing a discount of four months or just below 20 per cent for Mr Dingemans’ guilty plea; (c) allowing a further discount of 10 months from that figure to allow for five months of imprisonment already served by Mr Dingemans, equal to time served with parole of 10 months; and (d) halving the balance of 10 months to reflect the fact that Mr Dingemans would not otherwise be eligible for parole when serving a term of home detention. 

3. Mr Dingemans is sentenced to a term of home detention of five months on the conditions that:

   (a)He travels directly to 10A Evans Road, Waitakere at 9 am on Friday, 9 August 2013, following his release from prison and there awaits the arrival of a probation officer and the security monitoring company.

   (b)He remains at that address for the duration of his home detention sentence and does not leave the address without his probation officer’s prior approval.

   (c)He does not consume or purchase alcohol or illicit drugs for the duration of his home detention sentence.

Solicitors:
Crown Law Office, Wellington for Respondent