Grainger v The Queen

[2017] NZHC 2483

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-24

CRI-2017-425-27 [2017] NZHC 2483

BETWEEN

HOLLY LOUELLA GRAINGER

Appellant

AND

THE QUEEN

Respondent

Hearing:	9 October 2017
Appearances:	R Eagles for Appellant S McKenzie for Crown
Judgment:	11 October 2017

JUDGMENT OF MANDER J

[1]    The appellant, Ms Holly Grainger, was sentenced to a total of three years imprisonment on charges of possession of cannabis for supply, offering to supply cannabis, burglary, and intentional damage.1 She appeals that sentence alleging it is manifestly excessive. In respect of the burglary offending, she alleges she received a disproportionately severe sentence in comparison to her co-offenders.

Background

[2]    The police executed a search warrant at Ms Grainger and her partner’s home in December 2015. Text messages show that Ms Grainger had three ounces of cannabis which she had packaged for sale and offered to sell to a number of people. Ms Grainger admitted this offending, and said it was a joint venture with her partner.

1      R v Grainger [2017] NZDC 10958.

GRAINGER v R [2017] NZHC 2483 [11 October 2017]

[3]    The second set of offending occurred while Ms Grainger was on bail for this cannabis offending. In January 2016, she and four associates unlawfully entered a residential address. Ms Grainger confronted and threatened a man sleeping in one of the bedrooms with a crowbar. A second occupant of the address was stood over by one of Ms Grainger’s associates, and threats made about what would happen should he call the police. Ms Grainger went to a third occupant’s bedroom and, after threatening this person with the weapon, demanded the return of a pool table which she claimed was not his property.

[4]    Ms Grainger then proceeded to smash a television screen, a window and a door. She took $80 from the victim’s wallet and a mobile phone valued at $150. Four mag wheels were taken from the garage by Ms Grainger and her associates. One of her associates also took an amplifier from one of the victim’s cars, the window of which Ms Grainger smashed.

[5]    When apprehended by the police, Ms Grainger admitted smashing items and taking the money and phone. Initially charged with aggravated burglary, Ms Grainger pleaded guilty to burglary during her trial.

Sentencing

[6]    Judge Callaghan sentenced Ms Grainger on the basis the cannabis offending represented the most serious offending. The Judge observed that it was apparent from the number of people that Ms Grainger texted about the cannabis that this was not a one-off event but rather ongoing commercial drug dealing. Following the guidance provided by the Court of Appeal in R v Terewi a starting point of two years and four months was adopted, which was slightly lower than the two years and six month starting point adopted for her partner who also faced a charge of cannabis cultivation.2

[7]    In relation to the burglary offending, Judge Callaghan considered Ms Grainger to be one of the main offenders. He referred to her use of a weapon to intimidate the occupants and her destruction of property. A starting point of 18 months imprisonment was adopted.

2      R v Terewi [1999] 3 NZLR 62 (CA).

[8]    Applying the totality principle, the Judge reduced the cumulative starting point to one of three and a half years. A 20 per cent reduction was applied in recognition of Ms Grainger’s guilty pleas, which was held to have resulted in an overall sentence of three years. A concurrent sentence of one month was imposed on the intentional damage charge.

The appeal

[9]Ms Grainger brings her appeal on two bases:

(a)the starting point in relation to the drug offending was manifestly excessively; and

(b)the burglary sentence was disproportionate when compared with the sentences received by Ms Grainger’s co-offenders.

The drug offending

[10]   Mr Eagles submitted on behalf of Ms Grainger that the sentencing Judge had erred in his assessment of the relevant facts. When concluding that Ms Grainger was engaged in ongoing drug dealing, the Judge observed that she had received 25 responses to her text in relation to the availability of cannabis. The correct position was that Ms Grainger had sent texts to some 13-14 people, to which only one replied. Mr Eagles also referred to the Judge’s reference in his sentencing remarks to “40 seedling pots and three ounces of cannabis”, but that Ms Grainger, unlike her partner, had not been charged with cultivation of cannabis.

[11]   I do not consider either of those factual issues caused Judge Callaghan to fall into error in his approach to Ms Grainger’s sentencing. The Crown accepts the Judge did overstate the number of transactions evidenced by the text messages. However, it is apparent that there were multiple established contacts who were offered cannabis which supports the sentencing Court’s conclusion that the offending involved ongoing drug dealing. The Crown described this activity as being street level dealing, falling within category 2 of Terewi. On the hearing of the appeal that categorisation was not disputed by Mr Eagles. In my view it is an accurate description of where Ms

Grainger’s conduct falls across the spectrum of this type of commercial cannabis offending.

[12]   Judge Callaghan was clearly  cognisant  in  setting  the  starting  point  for  Ms Grainger’s cannabis offending that her partner faced an additional charge of cultivation of cannabis. Specifically,  when  justifying a  lesser  starting point  for  Ms Grainger to that taken in respect of her partner, the Judge expressly noted that he faced this additional charge.

[13]   While acknowledging that Band 2 of Terewi applied, Mr Eagles submitted that Ms Grainger had played a lesser role in the offending which was occurring within the household, and that the starting point was too high having regard to her limited actions, which he submitted “may well have been... to some extent at the behest of her partner”. Mr Eagles submitted that a starting point of only one year to 18 months imprisonment was appropriate.

[14]   A starting point of between two and four years is generally appropriate for small scale dealing in cannabis for the purpose of deriving a profit. Where sales are infrequent or of a very limited extent a lower starting point may be justified.3 While Terewi was a cannabis cultivation case, its application to the sale of cannabis is well entrenched. Similarly, the proposition that lower starting points should be adopted where charges relate to the supply of cannabis as opposed to cultivation has long been rejected by the Court of Appeal. It described the nature of cannabis growing and distribution as being closely analogous.4

[15]   A review of sentences imposed for small scale commercial cannabis operations demonstrates that starting points can vary widely. I undertook such a review in Devereux v Police where starting points of two years and less were imposed in relation to similar amounts of cannabis, as in the present case, although the focus in that appeal was on cultivation.5 The variation in the starting points is perhaps the inevitable consequence of each case turning on its own circumstances. Furthermore, as the Court

3      R v Terewi, above n 2, at [4].

4      R v Gray [2008] NZCA 224.

5      Devereux v Police [2017] NZHC 167.

of Appeal recognised in R v McGilp when declining to reassess sentencing policy for low-end commercial cannabis growing, there will be flexibility in the approach to be taken to such offending.6 The sentencing discretion of the individual Judge at first instance when applying the guidance provided by the category 2 Terewi Band is to be recognised.

[16]   As I observed in Devereux, there are countless category 2 cannabis sentencing decisions and the circumstances of each case invariably are different. I do not intend to repeat the exercise of reviewing the sentencing decisions referred to in that case. It is sufficient for present purposes to refer to three cases.

[17]   In Devereux itself, cannabis was found growing in a shed behind a garage. There were a number of plants at various stages of maturity and various pieces of growing equipment. The offender admitted he had grown cannabis for a long time for his own use and would sell a small amount to supplement his income. The sentencing Judge, having correctly classified it as low-end category 2 offending, took a starting point of two years imprisonment. Following analysis of a number of approximately comparable cases, that sentence was reduced on appeal to 15 months.

[18]   In Tomars v R, the sentencing Judge adopted a starting point of three years imprisonment on a total of 17 charges of possession for supply, supply, and offering to supply cannabis.7 Nine of the charges arose out of offers of sales of “tinnys” and ounce bags of cannabis to police officers. The others arose from text messages on the appellant’s cell phone discussing ounce quantities, and one from 1.5 ounces of cannabis seized in a search. On appeal, three years was said to be “towards the top of the available range, but not... manifestly excessive”.

[19]   In Reedy v Police, Dunningham J upheld a starting point of two years on appeal.8 There, the police had found at the appellant’s house a bucket containing four 1 ounce bags of cannabis and, in his car, $9,000 in cash.

6      R v McGilp (2006) 23 CRNZ 526 (CA) at [19].

7      Tomars v R [2013] NZCA 54.

8      Reedy v Police [2015] NZHC 1069.

[20]   In the present case, the amount of cannabis, three ounces; the ongoing nature of this offending, which despite the Judge’s error in relation to the number of texts was still a feature; and the joint nature of Ms Grainger and her partner’s cannabis operation were all factors which the sentencing Court was entitled to take into account in setting a starting point.

[21]   As I have already observed, each case must necessarily turn on its own circumstances. There are limitations on the extent to which comparisons can be made with other cases because there will always be a range of sentence available to a sentencing Court in the exercise of its discretion. However, there is also the need for some level of consistency in the starting points adopted for like offending.9 Subject to considerations of tinkering when assessing the resulting ultimate sentence, I consider some adjustment to the starting point is justified.

[22]   A starting point of two years imprisonment appears to me to more accurately reflect where Ms Grainger’s cannabis offending fits across the spectrum of category 2 offending. While a lesser starting point could have been taken as I have already observed, the amount of cannabis, the apparent ongoing nature of the offending, and the joint enterprise between the two offenders, means a sentencing Court would be entitled to conclude a term of imprisonment at the bottom of the nominated range was available, but perhaps no more. A two year sentence also better reflects the fact that Ms Grainger was not facing the additional charge of being a party to her partner’s cultivation.

Burglary offending

[23]   Judge Callaghan took a starting point of 18 months imprisonment for the burglary offence. That starting point was well within range and it is not contested otherwise.10 When the totality principle was applied, the effective starting point for the burglary charge reduced to one of 14 months imprisonment.

9      Sentencing Act 2002, s 8(e).

10     See Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189; Pui v R [2014] NZCA 332; Heald v R

[2014] NZCA 143.

[24]   Two of Ms Grainger’s co-offenders, McLean and MacAskill-Reid, pleaded guilty at an early stage to aggravated burglary. The sentencing Judge adopted a starting point of two years and six months in respect of them, and applied substantial but legitimate discounts. This resulted in an end sentence of one year and five months in respect of McLean, which was commuted to eight and a half months home detention. MacAskill-Reid’s final sentence was six months home detention. The two other offenders, Ms Williams and Mr Kelly, who proceeded to trial together with Ms Grainger before pleas were entered to the reduced charge of burglary, received community-based sentences.

[25]   It was accepted that Ms Williams was “essentially a bystander”, and the Crown did not oppose her being sentenced to supervision. Mr Kelly was a first offender who had offered reparation and was described as remorseful. He was sentenced to 180 hours community work. It was submitted on behalf of Ms Grainger that Kelly instigated the burglary, as it was he who had complained to her that the pool table had been taken. However, that is merely background to how these events unfolded, and it is apparent that but for Ms Grainger’s involvement matters would not have escalated as they did. While the approach to Mr Kelly was no doubt lenient, the sentencing Court’s approach was understandable having regard to his personal circumstances.

[26]   It is a well-recognised principle that there needs to be parity between co- offenders when imposing sentence. However, it is also equally well-established that parity does not mean imposing identical sentences. What is required is to “[treat] like cases alike and others with due regard for relative differences”.11 Disparity in sentences between co-offenders may lead to reduction of a sentence on appeal only where the disparity between the sentences imposed cannot be justified and is gross.12

[27]   As Mr Eagles recognised, the imposition of imprisonment on the burglary charge was largely the result of a starting point of imprisonment for the drug offending. The cumulative seriousness of the two discrete pieces of offending excluded home detention which may otherwise have been entertained by the sentencing Court for the

11     R v Kohey (2003) 20 CRNZ 62 (CA) at [20].

12     R v Rameka [1973] 2 NZLR 592 (CA); R v Lawson [1982] 2 NZLR 219 (CA); Singh v R [2013] NZCA 245.

burglary offending. No error is apparent in the way Judge Callaghan approached the burglary sentencing and none has been identified. The different sentencing outcomes in respect of Ms Grainger’s co-offenders are readily able to be reconciled once their individual circumstances are taken into account. As a result, the differences in the sentence imposed do not give rise to any sustainable issue of disparity.

Arithmetical discrepancy

[28]   Judge Callaghan arrived at a total starting point for the two sets of offending of three years and six months imprisonment (42 months). Applying a 20 per cent discount, as the Judge did for Ms Grainger’s guilty pleas, results in a starting point of 33-34 months (33.6 months), rather than the three years (36 months) as calculated. The Judge may well have rounded the figure up to three years, but the difference becomes of some significance when combined with a potential four month adjustment to the cannabis dealing starting point that might otherwise be considered as tinkering.

Result

[29]   Applying the adjusted starting point for the cannabis offending of two years to the effective 14 month cumulative starting point for the burglary results in a cumulative starting point of three years and two months imprisonment. A 20 per cent reduction for the entry of guilty pleas results in a sentence of two years and six months imprisonment.

[30]   Accordingly, the appeal is allowed. The sentence of three years imprisonment on the charges of possession of cannabis for sale, offering to sell

cannabis and burglary is quashed and substituted with a sentence of two years and six months imprisonment. The one month concurrent term of imprisonment on the charge of intentional damage is not affected.

Solicitors:

Eagles Eagles & Redpath, Invercargill Crown Solicitor, Invercargill