Gibbs v Police HC Auckland CRI 2009-404-326

[2010] NZHC 161

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2009-404-000326

BETWEEN  TROY JOHN GIBBS

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 February 2010

Appearances:  Q Duff for the Appellant

Ms F Cuncannnon for the Respondent

Judgment:      23 February 2010

ORAL JUDGMENT OF PRIESTLEY J

(Appeal against sentence)

Counsel/Solicitors:

Q Duff, P O Box 7512, Wellesley Street, Auckland 1141.  Fax: [phone]

Ms F Cuncannon, Meredith Connell & Co, P O Box 2213, Auckland 1140.  Fax: [phone]

GIBBS V NEW ZEALAND POLICE HC AK CRI-2009-404-000326  23 February 2010

The Appeal

[1]      This appeal challenges a total sentence of two  years  and  seven  months imprisonment imposed on the appellant by  Judge  L  H  Moore  in  the  North  Shore

District Court in September 2009.

[2]	The appeal, which has been extremely competently handled by both counsel,
has	at	its  heart  the  submission  that  various  matters  relevant  to  the  appellant’s

personal circumstances were not given sufficient weight by the Judge.

The Offending

[3]      The appellant was sentenced on  four  charges  to  which  he  pleaded  guilty. Two were laid under the Misuse of Drugs Act 1975.  These were supplying the Class

A drug methamphetamine and possessing the Class C drug cannabis for the purpose

of  supply.   The  other  two  charges  were  under  the  Crimes  Act  1961. These  two charges essentially related to the same offending, namely obtaining a stolen cheque form and then somehow deploying that stolen cheque to withdraw just over $7,000 from the victim’s account.

[4]      There  were  two  agreed  summaries  of  fact  relating  to  these  offences  with which the appellant, through his then counsel, agreed.

[5]      Clearly the drug offending was of concern.   The appellant was at that stage (September  2008)  residing  in  Milford  with  certain  members  of  his  family.             The charges  are  based  on  the  appellant  supplying  two  tinnies  and  on  another  occasion supplying  three   points   of   methamphetamine. These   transactions   involved   an undercover  police  officer  who  was  involved  in  a  wider  police  operation  targeting drug offending on the North Shore.

[6]      When  the  police  executed  a  search  warrant  in  early  October  2008  certain paraphernalia was found, and it appears that on a former occasion an area underneath the  house  had  been  set  up  to  grow  cannabis.  It  is  important  to  observe  that  the appellant was not charged with cultivating cannabis.

[7]      The  appellant  made  a  full  admission  to  the  police.   He  stated  he  had been selling approximately six or seven tinnies a week and had  on  occasions  been involved  in  transactions  to  the  value  of  between  $400  and  $1,000. He  had  not, however, had any previous involvement with methamphetamine.

[8]      At the time of the offending the appellant was 19.  He seems to have been a tattooist by trade. He had previous convictions which included matters which had been dealt with by way of fine in  the main, including  assaults  and  disorderly offences. His previous drug offending was dealt with  in  the  North  Shore  Youth Court in 2004 and 2005 and properly should be overlooked for sentencing purposes.

Structure of the Sentence

[9]      In  addition  to  the  matters  I  have  already  canvassed  in  this  judgment,  the Judge  had  before  him  two  pre-sentence  reports.        It  is  clear  from  the  information contained in those reports that the appellant had made a number of efforts to try to place his life back on a more even keel.   He had, with some assistance from the Te Puna  Hauora  programme,  found  himself  a  house  some  distance  from  his  former home;  obtained  a  measure  of  support  from  his  father  (with  whom  he  had  not previously   lived);   undergone   various   programmes   which   included   an   anger management  programme;  and  was  taking  positive  steps  to  set  up  his  tattooing business on a firm footing.   (This later aspect had not been placed before the Judge and was not referred to in the pre-sentence report).

[10]     These  efforts  clearly  and  with  some  justification  impressed  the  probation officer,  who  in  the  28  August  2009  report  recommended  home  detention. An appendix to the report confirms suitability of the appellant’s address.  An earlier pre- sentence report (June 2009) had assessed the appellant as being a moderate risk, with the caveat that this risk might be heightened if there was no intervention in the drug area.

[11]     It is really common ground between counsel that, on the basis of the information available to him, the Judge’s  sentencing methodology cannot   be seriously attacked. Ms Cuncannon’s submission was that the end sentence was well

within range.  Mr Duff’s submission is that greater weight should have been given to some  of  the  appellant’s  personal  circumstances  in  an  effort  to  bring  the  sentence down to a level where home detention could have been imposed, thereby resulting in a  sentence  which  was  the  least  restrictive  and  certainly  assisting  the  appellant’s rehabilitation.

[12]         The Judge, having canvassed the facts,  chose  to  use  the  methamphetamine offending as the lead sentence.   He described the appellant’s operations as being in the  nature  of  an  “actual  tinnie  house”  with  the  business  being  willing  to  deal  in methamphetamine.  He observed, consistent with s 6(4), that the appellant’s personal circumstances  could  only  be  given  limited  weight. He  referred  to  counsel’s submissions and the positive factors contained in the pre-sentence report.

[13]     Turning to the drug charges his Honour reached the view that a start point of three and a half years was appropriate.   From that he gave a discount of just over a third (commenting that this was probably beyond  the  appellant’s  entitlement). Having come down to two years and three months for the methamphetamine charge,

he then cumulated the sentence for the dishonesty charges of four months, reaching the end sentence of two years and seven months.  The cannabis charge was dealt with by way of a concurrent sentence of 12 months imprisonment.

[14]     The Judge’s parting comments were:

[17]     You have to appreciate that the explanation that you were dealing in drugs essentially to feed your own methamphetamine habit carries with it the inevitable  sense  that  you  were  prepared  to  have  others  join  you  in  hell  at your encouragement and, frankly, things do not get much worse than that.

Discussion

[15]     There is no quarrel over the relevant authorities here which include R v Fatu[1],

[1] R v Fatu [2006] 2 NZLR 72

so far as the methamphetamine offending is concerned, and R v Terewi[2]  so far as the cannabis  offending is  concerned. This  was  commercial  dealing in  both drugs.  In

terms of R v Fatu, being low level supply of less than 5 gms, the start point would be

between two and four years.  In terms of R v Terewi exactly the same band for small scale cannabis dealing.  Although an argument could be made for coming in towards the  bottom  of  those  two  bands  the  Judge  was  dealing  here,  on  the  appellant’s admission, with some sustained dealing in  cannabis coupled with the sale of three points of methamphetamine.

[2] R v Terewi [1999] 3 NZLR 62

[16]     It is hard to quarrel with a start point of three and a half years although, with respect, that could have been classified in the circumstances as slightly on the high side.

[17]     The  Judge’s  comments  (supra  [14])  relating  to  this  activity  being  used to sustain the appellant’s own drug habits clearly would have carried across  to  the dishonesty charges. There might have been  a  case  for  dealing  with  those two charges by way of a concurrent sentence rather than a cumulative sentence. The sum involved was large.  However, by deploying the relatively low figure of four months it seems to me the Judge has had careful regard to the totality principle.

[18]     Where  perhaps  the  appellant  can  regard  himself  as  being  lucky is  the  very generous  discount  which  the Judge  gave  of  over  one  third  on the  drug charges. I note that a conviction was not entered until late April 2009 which was six months after  the  first  call.          In  terms of R v  Hessell[3](not  applicable  in April 2009) a somewhat lower discount would have been given.   Nonetheless it seems to me the generosity of the discount probably subsumes any extra weighting the Judge might have given to the appellant’s rehabilitative efforts.

[3] 2009 NZCA 450 CA 170/2009 2 October 2009

[19]     I have some sympathy with Mr Duff’s submissions, as indeed I do with the appellant’s predicament. The stark reality, however, is that the appellant’s overall culpability, both in respect of his drug dealing and also in respect of his deployment

of the cheque, really put the appropriate end sentence considerably over the two year period  at  which  home  detention  must  be  considered,  or  perhaps  an  end  sentence slightly above two years where a court might be disposed to be lenient and merciful to reinforce rehabilitative efforts.

Result

[20]     On  this  basis  I  am  of  the  view,  and  for  the  reasons  stated  in  the  previous sections of this judgment, that it cannot be claimed the end sentence of two years and seven months is clearly excessive having regard to the appellant’s overall culpability and the relevant aggravating and mitigating features.

[21]     Although  the  appeal  must  be  dismissed,  my  strong  recommendation  to  the prison authorities and the Parole Board is that they take cognisance of the positive steps taken by the appellant between October 2008 and September 2009 to rehabilitate himself and turn his life around.  It would be my hope, and I trust not a forlorn one, that whilst in prison the appellant has been exposed to programmes to build on those positive features and that the Parole Board will give close attention, where it is possible, to release him into an environment equivalent to that which led to the original favourable second pre-sentence report to which I have referred.

[22]     For  these  reasons,  and  despite  my  recommendations,  there  is  no  basis  to interfere with Judge Moore’s sentence.  The appeal is thus dismissed.

.......................................… Priestley J