Everleigh v Police

[2013] NZHC 3177

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2013-470-30 [2013] NZHC 3177

BETWEEN  DOUGLAS JAMES EVERLEIGH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   28 November 2013

Appearances:           P G Mabey QC for Appellant

N Belton for Respondent

Judgment:                28 November 2013

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Tauranga

EVERLEIGH v POLICE [2013] NZHC 3177 [28 November 2013]

[1]      On 9 October 2013 Douglas Everleigh was sentenced in the District Court, Tauranga to imprisonment for four months for cultivation of cannabis on 15 April

2013.

[2]      Mr Everleigh was convicted and discharged of a related possession offence. He was also convicted of possessing a firearm without a licence and discharged as to that offence.  There was an order as to destruction of the firearm.  He appeals his sentence of imprisonment as manifestly excessive.

[3]      Mr Everleigh had pleaded to the cultivation offence and others, at a summary hearing at which he defended an unrelated theft charge, as to which he gave evidence and was successful.  Judge Wolff formed a poor impression of him, however, which he  found  confirmed  in  Mr  Everleigh’s  pre-sentence  report.     It  described  Mr Everleigh as lacking in remorse, as resentful and as imbued with a sense of entitlement.

[4]      At that stage also Mr Everleigh was unwilling to serve a sentence of home detention; and that meant, the Judge said, that he had to elect between community detention, and some related sentence, on the one hand, and a sentence of imprisonment on the other.   Ordinarily, the Judge said, Mr Everleigh’s offences would not warrant imprisonment.  But even having regard to s 16 of the Sentencing Act 2002, nothing short of that would serve.

[5]      The Judge took a six month starting point and reduced it by two months to counter any suggestion, I gather, that he had been too influenced by his subjective assessment of Mr Everleigh, or by that of the probation officer.   He imposed the sentence under appeal, four months imprisonment.

Submissions

[6]      Mr Mabey QC submits that the Judge was, nevertheless, unduly influenced by his subjective impression of Mr Everleigh on a charge irrelevant to the offences for sentence.  He was also unduly influenced by the pre-sentence report, which Mr Everleigh continues to dispute as to accuracy and completeness.

[7]      This, Mr Mabey QC submits, was low level cannabis offending without any commercial element and Mr Everleigh’s last related conviction was in 2004. Imprisonment was disproportionate.  That apart, he submits, Mr Everleigh was only unwilling to serve home detention because he feared he would lose his job.   His employer now stands behind him.  He consents to that sentence.

[8]      For the police Mr Belton submits that the sentence lay within the Judge’s discretion.  According to R v Terewi1  this would be category one offending.   The Court there said that where cannabis is cultivated for personal use, as it was here, mostly that will warrant a fine or some other non custodial sentence.   But, where there  is  persistent  offending,  periodic  detention  or  a  short  prison  term  may  be merited.

[9]      Mr Everleigh’s previous convictions demonstrate, Mr Belton submits, that Mr Everleigh is an entrenched cultivator of cannabis for personal use.   He has five convictions  for  possession  between  1991  –  2004.    He  has  three  for  cultivation between 1992 – 2002.  Also convictions for possession of an offensive weapon and unlawful possession of a firearm and breaches of community work.

Decision under appeal

[10]     On 15 April 2013, as the Judge narrated, two quantities of cannabis were found on a search of Mr Everleigh’s property.  In a bedroom there was cannabis head laid out to dry and parts of cannabis plant hanging from a string between two walls; in all some 500 grams.  Found in another bedroom was unlicensed firearm, a .303 rifle with the bolt and magazine detached.

[11]     The Judge accepted that Mr Everleigh cultivated and possessed the cannabis for his own use, but remarked that the quantity he possessed was significant.  He also accepted that the firearm was for recreational use and did not support the inference that Mr Everleigh was cultivating and possessing cannabis for supply.  That is why, ordinarily, as the Judge said, these offences would not warrant a sentence of imprisonment.

[12]     The Judge also referred, as he was obliged to do, to the prohibition in s 16(2) of the Sentencing Act 2002.  Imprisonment is not to be imposed unless nothing short of   that   sentence   would   serve   to   promote   the   purposes   of   accountability, responsibility, deterrence and the like.

[13]     The tipping point, so far as the Judge was concerned, was first of all Mr Everleigh’s apparently entrenched attitude, suggesting that if he were allowed to remain  within  the  community,  particularly  if  subject  only  to  a  sentence  of community detention, he would continue to consider himself entitled to cultivate for personal use and obtain firearms at will.

[14]     The Judge supported that inference by referring to Mr Everleigh’s previous convictions.   He was spared the need to consider whether a short term of imprisonment  ought  to  be  commuted  to  home  detention  because  Mr  Everleigh himself had taken that off the table.

Conclusions

[15]     A sentence of imprisonment, as s 16 itself establishes, is, as the Court of Appeal said in R v Rawiri,2 ‘a measure of last resort’, and that is more especially so since 2007 when the home detention sentence was introduced with other changes giving greater emphasis to sentences within the community.

[16]     On my own review of Mr Everleigh’s offending I agree with the Judge that ordinarily a sentence of imprisonment would not be warranted even though, as Mr Belton says, the amount of cannabis Mr Everleigh possessed was significant.  Nor was Mr Everleigh’s possession of a firearm without a licence especially aggravating. The issue is whether the Judge was nevertheless compelled to conclude that, despite the s 16 prohibition, nothing less than imprisonment would serve.

[17]     The Judge’s subjective assessment of Mr Everleigh, and that of the probation officer,  do  not  supply a sufficient  basis  for that  conclusion.    It  had  also  to  be supported objectively by reference to Mr Everleigh’s previous related offending.

[18]     Mr Everleigh has offended in the ways relevant with some persistence since

1981.  It may be also that his convictions do not reflect what he says himself; that he has cultivated and possessed cannabis persistently.  But his related convictions cease in 2004 and his offending before then was not so persistent as to place him beyond a community based sentence.

[19]     I conclude that, despite the fact that the Judge was alert to s 16, the grounds on which he decided that it did not apply were insufficient and the sentence that he imposed  was  disproportionate.    To  my mind  a  sentence  of  three  months  home detention would be a proportionate response to this offending.

[20]     I cannot impose that sentence now because I lack a report for the purpose. Apart from anything else, Mr Everleigh has changed his address.  I am in a position to impose that sentence on 12 December 2013.   I should be grateful for a home detention appendix to Mr Everleigh’s pre-sentence report to be prepared as soon as

possible.

P.J. Keane J