Evans v Police

[2014] NZHC 2612

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-38 [2014] NZHC 2612

BETWEEN

TANE HARE EVANS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	23 October 2014
Appearances:	C Muston for Appellant MB Smith for Respondent
Judgment:	23 October 2014

ORAL JUDGMENT OF TOOGOOD J

EVANS v NEW ZEALAND POLICE [2014] NZHC 2612 [23 October 2014]

[1]      Tane Hare Evans appeals against a sentence of 22 months’ imprisonment imposed on him by Judge Greg Davis following a guilty plea to one charge of attempting  to  manufacture  methamphetamine.1      The  maximum  penalty  for  the

offence is 10 years’ imprisonment.2

Facts

[2]      The appellant’s involvement in the manufacture of methamphetamine came to light on 29 January 2014, when police were alerted to an explosion and a fire at a rural address in Pakotai.   Mr Evans and another man, Arthur Cornelius, received serious injuries in the explosion of a clandestine methamphetamine laboratory in a shed and both were transported to hospital.   Mr Evans was treated for extensive burns to his hands, arms and face but Mr Cornelius died of his injuries the next day.

[3]      The shed was totally destroyed in the fire but based on the remains of the equipment that the police could retrieve from the scene, they determined this was a large  laboratory  capable  of  producing  large  quantities  of  methamphetamine. However, the actual quantity of methamphetamine being produced at the time of the explosion was unable to be determined.

[4]      The police summary of facts stated a police officer’s belief that Mr Cornelius

was the primary offender and that the appellant was an assistant.

Sentence in the District Court

[5]      In sentencing the appellant, Judge Davis considered that the main purposes and principles of sentencing to be taken into account were those of holding the appellant accountable, denouncing and deterring his conduct and protecting the public.   The Judge took a starting point of two years six months’ imprisonment,

relying on the tariff case of R v Fatu.3    Despite the fact that the precise quantity of

1      Police v Evans DC Kaikohe CRI-2014-027-584, 22 August 2014.

2      Misuse of Drugs Act 1975, s 6(1)(b); Crimes Act 1961, ss 72 and 311.

3      R v Fatu [2006] 2 NZLR 72 (CA).

methamphetamine being produced could not be established, the Judge was satisfied from the extent of the operation that the appellant must have been involved with producing methamphetamine in commercial quantities.   The Judge accepted that Mr Cornelius was the principal offender but he treated the appellant’s claims to have been involved only in a very limited capacity with some suspicion. Accordingly, the Judge found that the appellant should be sentenced in accordance with Band 2 of

Fatu, halved because the charge was only for an attempt to manufacture.4   The Judge

said that this recognised the scale of the operation and the fact the production of drugs appeared to have been well under way, given there was an explosion.

[6]     In considering the personal circumstances of the appellant, the Judge acknowledged he has a criminal history but did not find it substantial enough to warrant an uplift to the starting point sentence; the history being mostly driving offences and wilful damage.   The Judge referred to the appellant’s family circumstances.  He also noted the penalty that the appellant had already paid in terms of the burns he suffered and the psychological trauma engendered by Mr Cornelius’s death, but he held that that was not something he could take into account in sentence. However the Judge did allow a full discount of 25 percent for the appellant’s guilty plea which was entered as soon as the charges were amended to one charge of attempting to manufacture. This gave a final sentence of 22 months’ imprisonment.

[7]      The Judge then considered whether home detention was appropriate, asking whether the purposes and principles of sentencing could be achieved by a sentence other than imprisonment.   The Judge noted that the appellant did have a suitable home  detention  address  but  stated  that,  in  his  view,  the  courts  have  taken  the approach that it is a rare case in which the manufacture of methamphetamine does not result in a sentence of imprisonment.  The Judge said “there was nothing at all remarkable in the pre-sentence report that would lead the Court to a position that

anything other than a sentence of imprisonment should be imposed”.5

4      See for example R v Towgood HC Whangarei CRI-2005-088-3563, 12 February 2008.

5      Police v Evans above, n 1 at [15].

[8]      Mr Muston  argued  that  the  Judge  failed  to  give  any  genuine  and  real consideration to the proposition that this was one of the exceptional cases justifying a sentence of home detention rather than imprisonment.   He emphasised that the appellant  had  no  prior  history of drug offending,  that  he was  not  the principal offender and was involved only as an assistant, and argued that there was no evidential basis for the Judge’s scepticism about the extent of Mr Evans’s involvement.    Counsel  argued  that  although  it  was  a  reasonable  inference  that Mr Cornelius, the now-deceased principal offender, was engaged in a commercial operation, there was no evidence of what the appellant stood to gain from his minor involvement.   In my view, that submission fails to acknowledge that the appellant himself is the only person who can now explain why he was involved.   In his statement to the Police he said only that he played a minor part; if he had done so only as a favour or out of the goodness of his heart, he could have said so.   The obvious and commonsense inference is that he stood to make money out of the manufacture of a Class A drug which sells for thousands of dollars.

[9]      Mr Muston  submitted  correctly  that  a  sentence  of  imprisonment  is  not inevitable for offending of this kind.  He referred me to the 2007 judgment of Simon France J in R v Vujcich6 as an example of a case in which the personal circumstances of the offender were relied upon to impose a sentence of 11 months’ home detention for possession of methamphetamine for supply.  Reaching the view that a jail term of

22 months would be appropriate for the offending, after taking into account all mitigating factors, the Judge then turned to consider what was then “the new sentence” of home detention.   He noted that Parliament did not exclude particular offences  from  its  ambit  and  accepted,  therefore,  that  home  detention  must  be regarded as an option for Class A drug dealing.  As the Judge said, the factors that bring the sentence within the home detention range (that is, under two years’ imprisonment) necessarily also indicate that the offending, if commercial, is at the

lowest end.

6      R v Vujcich HC Hamilton CRI-2006-019-2640, 19 November 2007.

[10]     Simon France J said that home detention should be seen as a statement by Parliament that, where appropriate, persons should be kept out of prison.   He continued:7

The dilemma one deals with in this area of drug offending is that one is often seeking to deter addiction driven offending; low-level dealing, and low-level manufacture, are often centred as much on ensuring a continued personal supply as reflecting any dreams or plans of great financial gain.

[11]     The Judge then referred to several factors which enabled him to impose a sentence of home detention on that occasion, including the low-level of the commerciality, the offender’s good previous record and stable home environment and a recognition that home detention is in itself intended to be, and is, a punitive sentence.

[12]     That  case  demonstrates  that  sentencing  in  this  area  is  very  much  a discretionary exercise.   While there are some similarities between the personal circumstances of the offender in Vujcich and this appellant, the difference between that case and this, of course, is that the Judge determined in Vujcich that there was a low-level  of  commerciality  given  the  quantity  of  drugs  involved.    Here,  I  am satisfied that this was a serious attempt at commercial profit-making from the manufacture of an evil and destructive drug and that, although the appellant’s role was  relatively minor,  it  was  nonetheless  deliberate and  intended  to  benefit  him financially.

[13]     Mr Muston was critical of the District Court Judge for not explaining by reference to the details of the appellant’s personal circumstances why he rejected the submission that the appellant should have been treated as one of the exceptional cases  justifying  home  detention.    But  a Judge  is  not  required  to  explain  every element of his or her reasoning process and it is clear that the Judge applied his mind both to the possibility of home detention and to the question of whether the appellant and the proposed address were suitable for that sentence.  The Judge concluded, as in my view he was  entitled  to  conclude,  that  there was  nothing at  all  remarkable

justifying that outcome.

7 At [22].

[14]     In opposing the appeal, Mr Smith cited a passage in R v Andersen in which

Allan J said:8

[26] The Court is generally reluctant to grant home detention in cases involving class A drugs… There are cases in which home detention is indeed granted,  but  they  tend  to  be  relatively  few  and  far  between,  and  to  be referable to the particular circumstances of the offender.

[27] … The scourge which methamphetamine is must properly be reflected in the imposition of custodial sentences and not unduly diluted by the ready granting of leave to apply for home detention….

[15]     There are a number of cases in addition to Andersen which support Judge Davis’s view that that the Court should only rarely grant home detention in respect of offending involving Class A drugs, including R v Hutcheson,9 R v Stillwell,10 and

R v Towgood.11

Discussion

[16]     Section 250 of the Criminal Procedure Act 2011 states that the Court must allow an appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.   In any other case, the Court must dismiss the appeal.12

[17]     Here, the Judge made express reference to the fact that this was serious offending and said that it was necessary to send a message to the public that those who chose to engage themselves in this sort of activity irrespective of the scale must be prepared to go to prison for it.13   In other words, after considering the possibility and the appellant’s suitability for a sentence of home detention, the Judge concluded that the important purpose of denunciation and deterrence in this case could not be

achieved by anything less than imprisonment.

8      R v Andersen HC Auckland CRI-2005-084-577, 21 February 2006.

9      R v Hutcheson HC Christchurch CRI-2007-409-228, 13 December 2007.

10     R v Stillwell HC Whangarei CRI-2005-027-2241, 13 February 2007.

11     R v Towgood HC Whangarei CRI-2005-088-3563, 12 February 2008.

12     Criminal Procedure Act 2011, s 250(3).

13     Police v Evans, above n 5.

Conclusion

[18]     Deciding whether a particular case is exceptional calls for judgment and discretion. Although another judge may have come to a different view in the case of this appellant,  I cannot  say that Judge Davis  was made an  error in refusing to sentence the appellant to home detention.  I dismiss the appeal.

……………………………………..

Toogood J