Dyer v Police
[2014] NZHC 2961
•26 November 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2014-404-000267 [2014] NZHC 2961
BETWEEN KEVIN DYER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 24 November 2014 Appearances:
J F O'Halloran for Appellant
G E Hughes for RespondentJudgment:
26 November 2014
(RESERVED) JUDGMENT OF ANDREWS J [Appeal against sentence]
This judgment is delivered by me on 26 November 2014 at 12 noon pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
DYER v NEW ZEALAND POLICE [2014] NZHC 2961 [26 November 2014]
Introduction
[1] On 7 March 2013 the appellant, Mr Dyer, pleaded guilty in the District Court at Waitakere to one charge each of cultivating cannabis (contrary to s 9(1) of the Misuse of Drugs Act 1975) and possessing cannabis pipes (contrary to s 13 of the Misuse of Drugs Act). On 18 July 2014, Judge Glubb sentenced him to two years’ imprisonment.1
[2] Mr Dyer has appealed against his sentence on the ground that it is manifestly excessive, in that the Judge adopted an excessive starting point for the cultivation charge, failed to recognise his rehabilitative efforts while on bail, and erred in excluding home detention as a sentencing option.
Background facts
[3] On 18 December 2012, the police executed a search warrant at Mr Dyer’s home address in Massey. The Police summary of facts stated that behind a removable wall, the police found a hidden growing room where 43 cannabis plants and 16 cannabis seedlings were being cultivated. Mr Dyer admitted to taking care of these plants and stated that he began the operation five months prior to the raid.
[4] The Police summary further stated that if each of the 43 cannabis plants were harvested three times every year, it was estimated that this growing operation would have yielded between 129 ounces (at one ounce per plant) and 387 ounces (at three ounces per plant) per year. This was disputed at the sentencing and on appeal. In these quantities, the police stated that at a price of $350 per ounce, the cannabis yield could have netted Mr Dyer between $45,150 (one ounce per plant) to $135,450 (three ounces per plant) per year.
[5] In a downstairs bedroom, the police also found two metal pipes both containing remnants of burnt cannabis in their bowls. Mr Dyer admitted that the
pipes were his, and that he used them to smoke cannabis.
1 R v Dyer DC Waitakere CRI-2012-090-8929, 18 July 2014.
District Court sentencing
[6] In sentencing Mr Dyer, the Judge took the cultivation of cannabis as the lead offence. He considered that the cultivation was in category 2 of the guidelines set in R v Terewi2 and adopted a starting point of two years and eight months’ imprisonment.
[7] In coming to this conclusion, the Judge considered that there was a degree of premeditation due to the size of the cultivation operation and the false wall to disguise the growing room, that the growing operation was of moderate size and fairly sophisticated, and that there was some level of commerciality. In coming to this conclusion, the Judge accepted the police’s estimate of the value of the cannabis yield of between $45,130 and $135,000, and did not accept the defence’s submission that the level of offending should only be assessed in relation to one harvest per year.
[8] The Judge considered that there were no aggravating or mitigating features personal to the offender and so no discount or uplift was applied to the starting point for these factors. However, the Judge allowed the maximum 25 per cent discount for Mr Dyer’s early guilty plea. This resulted in an end sentence for the cultivation charge of 24 months’ imprisonment.
[9] In relation to the possession of utensils charge, the Judge sentenced Mr Dyer
to one month’s imprisonment, to be served concurrently.
[10] The Judge declined to sentence Mr Dyer to home detention rather than imprisonment. His Honour considered that the principal sentencing purposes of denunciation, deterrence and accountability required a term of imprisonment. The Judge reasoned that the offending was serious and this needed to be considered. Further, the offending was committed at the address at which Mr Dyer would be serving the sentence of home detention, and taken together a sentence of home detention would not be appropriate.
Approach on appeal
[11] This appeal is to be considered under the provisions of the Summary Proceedings Act 1957. Under s 121(3)(b) of the Act, an appeal against sentence is a general appeal by way of rehearing. A sentence may be quashed or varied if it is established that it is “clearly excessive or inadequate or inappropriate”. However, an appeal is not a second shot at sentencing. The High Court will not intervene where a sentence is within the range that can be properly be justified by accepted sentencing principles. While it is important to look at how a sentence is constructed, it is the end result that matters.
Grounds of appeal
[12] On behalf of Mr Dyer, Ms O’Halloran submitted first, that the starting point of two years and eight months’ was too high taking into account the disputed yield produced by the cannabis plants; and secondly, the Judge failed to give a discount for Mr Dyer’s rehabilitative efforts while on bail; and thirdly, the Judge erred in not granting home detention. It is necessary to address each submission in turn.
Commerciality
[13] At the start of the appeal hearing, I asked counsel whether it was being asserted that the Judge ought to have held a disputed facts hearing, in respect of whether there was an element of commerciality in Mr Dyer’s cannabis growing operation. It appeared from the Police summary of facts that Mr Dyer denied any commercial aspect to his offending. I referred counsel to the judgments of the Court of Appeal in R v Gatenby,3 and in Paul v R,4 in which the Court held that if the element of commerciality was denied, then a disputed facts hearing was required to establish it beyond reasonable doubt. Ms O’Halloran advised me that Mr Dyer
accepted that there was an element of commerciality in his offending.
Was the starting point excessive?
[14] Ms O’Halloran advanced two main grounds supporting this submission: first, that the Judge incorrectly decided that the amounts generated by the cannabis plants found in the room would have yielded between $41,150 and $135,450 if sold, and secondly, that the starting point was in any event too high.
The yield of cannabis
[15] Ms O’Halloran submitted that prior to the sentencing, the defence had raised an issue with the yield set out in the summary of facts, suggesting that the yield should have been restricted to a single crop of between one to three ounces from the actual number of plants found. Based on a price of $350 per ounce, if sold, this would have amounted to between $15,050 and $51,600. On appeal, Ms O’Halloran accepted that there was evidence on which the Judge could reasonably have concluded that the yield should be assessed on the basis of three crops each year. However, she submitted that the Judge had wrongly sentenced Mr Dyer on the basis of each plant producing three ounces of cannabis at each crop, rather than one ounce. She submitted that the Judge should have conducted a disputed facts hearing on this point.
[16] I am not persuaded that a disputed facts hearing was required. The Judge did not say that he was assessing Mr Dyer’s offending on the basis of the upper end of the yield range. Nor did he say he was using the lower end. The Judge assessed the operation as “not the largest commercial operation but a commercial operation nonetheless”. In the light of Mr Dyer’s acknowledgement that there was an element of commerciality in his offending, the Judge did not err in sentencing on the basis he did. I am not able to conclude from the Judge’s assessment that the Judge approached Mr Dyer’s sentencing on the basis that the potential yield of his offending was at the top end of the Police estimates.
The starting point
[17] In Terewi the Court of Appeal set out three categories for cultivating cannabis, where category 1 covers growing of a small number of cannabis plants for
personal use by the offender without any sale to another party occurring or being intended, and category 2 covers small-scale cultivation for a commercial purpose; that is, with the objective of deriving a profit. The Terewi categories are defined by the quantities and value (actual and potential of the marketable cannabis produced). In this case the estimated yield was between 129 and 387 ounces per year, valued at between $45,150 to $135,450 if sold. The Judge placed Mr Dyer’s offending as being “well within the scope of category 2”, in which the starting point is generally between two and four years’ imprisonment.
[18] The Judge referred to the starting points in R v Warren,5 (involving 287 plants, with an estimated value of the potential yield of between $430,000 and
$4.35m (wholesale) or $1.3m and $7.8m (retail), where the starting point was two years and six months’ imprisonment), R v Latham,6 (involving 63 plants nearing maturity, with an estimated value of $205,000, where the Court of Appeal held that a starting point of two years’ imprisonment was appropriate), and R v Bearsley,7 (involving 175 plants of varying maturity in a buried container, with an estimated annual yield of $100,000, where the starting point was three years and six months’ imprisonment).
[19] Ms O’Halloran submitted that regardless of the conclusion on the first point as to the proper yield, the Judge erred in adopting a starting point of two years and eight months’ imprisonment. She considered that the offending fell within the top of category 1 or the bottom of category 2, and that the starting point should be in the vicinity of two years’ imprisonment.
[20] For the Police, Mr Hughes submitted that the Judge was entitled to sentence Mr Dyer on the basis of the range of potential yield set out in the Police summary of facts. He referred to sentencing decisions in which counsel had agreed that sentencing should proceed on the basis of a value that was at about the mid-point of the estimated value of the potential yield. Thus, in Warren, the agreed basis for
sentencing was a value of $205,000, and in R v Hawke,8 the range of the value of the
potential yield was between $87,500 and $125,000 (wholesale) and $102,850 and
5 R v Warren HC Hamilton CRI-2011-073-184, 13 September 2011.
6 R v Latham [2007] NZCA 552.
7 R v Bearsley HC Tauranga CRI-2009-070-4244, 19 June 2009.
8 R v Hawke HC Auckland CRI-2009-044-10006, 24 August 2010.
$205,700 (retail) and sentencing had proceeded on an agreed value of $100,000. There had been no such agreement here, but Mr Hughes submitted that the starting point in this case was within range for a yield at around the mid-point of the Police estimates, and appropriate when compared with those cases.
[21] I accept Mr Hughes’ submission that the Judge was entitled to use the mid- point in the Police estimates as the basis for assessing the starting point. In this case, the mid-point was a potential yield of $90,300. However, in setting the starting point, the Judge should also have taken into account the fact that there was no evidence of actual sales. In Terewi, the Court of Appeal considered that where sales are infrequent and of a very limited extent a lower starting point may be justified. Here there was no evidence of sales. Bearing that in mind, I have concluded that the starting point of two years eight months’ imprisonment was outside the available range. It should have been in the region of two years and three months’ imprisonment.
[22] An uplift of two months should then have been applied to reflect Mr Dyer’s overall offending, and need for a deterrent sentence demonstrated by his previous convictions for cannabis offending. This results in an adjusted starting point of two years and five months’ imprisonment.
Discounts from the starting point
[23] The Judge did not give any discount for Mr Dyer’s rehabilitative efforts. Mr Dyer underwent some alcohol and drug addiction counselling prior to sentencing. He was said to have abstained from using cannabis for two months in 2013 following the counselling but then slipped back into using cannabis, although he had cut back on his use. Ms O’Halloran submitted that the Judge should have applied a discount in recognition of Mr Dyer’s efforts at rehabilitation. Mr Hughes submitted, first, that the Judge was not required to give a discount and, secondly, that the Judge had in fact given Mr Dyer’s rehabilitative efforts specific consideration. I have concluded that, in order to recognise and encourage Mr Dyer’s rehabilitation, a discount of two months should have been given, adjusting the starting point to two years and three months’ imprisonment .
[24] As the Judge recognised, Mr Dyer is entitled to a 25 per cent discount for his early guilty plea. This results in an end sentence of one year eight and months’ imprisonment.
Home detention
[25] The final question is whether home detention should have been ordered. The Judge considered that the proposed home detention address was unacceptable, being the address where Mr Dyer had offended. Ms O’Halloran submitted that if the proposed address were the only issue precluding Mr Dyer being sentenced to home detention, then the Court should give him leave to apply for substitution of a sentence of home detention, in the event that a suitable address became available. Mr Hughes submitted that Mr Dyer’s offending was sufficiently serious to make a sentence of home detention inappropriate. He submitted that a sentence of imprisonment is the least restrictive appropriate sentence.
[26] I am not persuaded that the Judge was wrong to refuse home detention. I accept that the nature of the cannabis-growing operation established at his home was such that it would not have been appropriate for him to be sentenced to home detention at that address. No other address was put forward. In the circumstances, a sentence of imprisonment was the least restrictive appropriate sentence.
[27] Ms O’Halloran has submitted that another address may be available, although no alternative address has been assessed for suitability. I have concluded that if an address were to become available, and if Mr Dyer were able to continue with the drugs counselling he was engaged in earlier, then a sentence of home detention could be contemplated. There is no basis on which home detention could be ordered at this point. However, pursuant to s 80I of the Sentencing Act 2002, the Court can give leave for an application to be made for substitution of a sentence of home detention.
Result
[28] Mr Dyer’s appeal against sentence is allowed. The sentence of two years’ imprisonment is quashed and a sentence of one year and eight months’ imprisonment imposed in its place. The concurrent sentence on the charge of possessing cannabis
pipes remains in place. Mr Dyer is given leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention, in the
event that a suitable address becomes available.
Andrews J
5