Greacen v The Queen

[2016] NZHC 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000197 [2016] NZHC 2015

BETWEEN

WADE GREACEN

Appellant

AND

THE QUEEN Respondent

Hearing:	22 August 2016
Appearances:	Ron Mansfield for the Appellant David Wiseman for the Respondent
Judgment:	29 August 2016

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 29 August 2016 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

GREACEN v THE QUEEN [2016] NZHC 2015 [29 August 2016]

Introduction

[1]      Following a sentencing indication Mr Greacen, the appellant, pleaded guilty. The Judge who gave the indication noted the final sentence would either be imprisonment or, if the pre-sentence report was sufficiently favourable, home detention. A pre-sentence report was ordered.

[2]      Two months later Mr Greacen appeared for sentence.  While a pre-sentence report had been prepared it did not include home detention appendices as directed by the Court. This was not due to any fault on the part of the appellant.

[3]      At sentencing, counsel for Mr Greacen, Mr Mansfield, applied for a one week adjournment to enable the Department of Corrections (“Corrections”) to examine the appropriateness and availability of home detention and to prepare a home detention appendix.   The application was not opposed by the Police.   However, the Judge refused the adjournment and proceeded to sentence Mr Greacen to a term of imprisonment of two years and three months.

[4]      He now appeals that sentence.   He asks that it be quashed and that he be re-sentenced in this Court or, alternatively, the matter be remitted back to the District Court for re-sentencing.

Background facts

[5]      The background facts can be stated quite simply.    The charge arose from a police operation which targeted a female associate of the appellant’s known as Tuk.

[6]      On 15 July 2015 Mr Greacen was a passenger in Tuk’s car.   Intercepted private communications led the Police to believe that Tuk was acquiring methamphetamine for Mr Greacen.  Tuk’s car was followed and the Police saw her enter a residential address.  Mr Greacen remained outside in the car.  Tuk returned to the car and drove Mr Greacen to the downtown ferry terminal where he boarded a ferry to Waiheke.

[7]      When the ferry arrived at the Matiatia Wharf Mr Greacen was stopped by the Police.   He was searched and found to be in possession of 19.7 grams of methamphetamine.

[8]      He maintained the drug was for his personal use and for the personal use of others on the island who had contributed to its purchase.  He said he bought large quantities  of  methamphetamine  because  he  was  employed  and  to  avoid  more frequent trips back to the city.

[9]      After  his  arrest  Mr  Greacen  moved  back  to Auckland  city  and  then  to Otorohanga where his parents live.  This was for the purpose of completing a drug rehabilitation programme.

[10]   Pending sentence Mr Greacen was enrolled in the Waitakere Bridge Rehabilitation Programme where he regularly attended meetings while waiting for placement on the intensive treatment programme in Hamilton. There he had the support of family and was able to live with his parents in Otorohanga.

[11]     Since filing his notice of appeal Mr Greacen successfully applied for bail. Furthermore, he has not only been successful in obtaining a place in the Hamilton Bridge Programme but has also successfully completed that programme.

Sentencing decision

[12]     At Mr Greacen’s sentence indication on 22 April 2016 the Judge considered the offending was aggravated by the quantity of methamphetamine and a previous conviction for methamphetamine possession.  The Judge considered the appropriate starting  point  was  three  years’ imprisonment  because  the  offending  fell  within

Band 2 of R v Fatu.1    He indicated a 20 per cent discount would be available in

recognition of the early guilty plea which would bring the sentence down to one of

two years and five months’ imprisonment.  He observed that any further discounts

would be considered once the pre-sentence report became available but indicated the

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

final sentence would be either imprisonment, or if the pre-sentence report was sufficiently favourable, home detention.

[13]     At the sentencing on 17 June 2016 the Judge referred to the pre-sentence report and, in particular, the observation that Mr Greacen appeared remorseful and insightful of his need to get help.   His Honour also noted the report referred to Mr Greacen being diagnosed with attention deficit disorder at the age of 14 and Mr Greacen’s expressed view that his use of methamphetamine calmed his impulsive thoughts and behaviour.

[14]     The Judge referred to the Salvation Army’s assessment for enrolment in its Bridge Programme.  That assessment recorded Mr Greacen as having addiction and dependency issues raising concerns about his motivation.

[15]     His  Honour  reduced  the  three  year  starting  point  by  seven  months  in recognition of Mr Greacen’s guilty plea.  He also accepted as sincere Mr Greacen’s expressions of remorse, justifying a further reduction to two years and three months’ imprisonment.

[16]     However, the Judge expressed the view that the report and the information available to him indicated that Mr Greacen had “… done too little too late …”.  He was not persuaded Mr Greacen was making serious rehabilitative efforts such that a sentence of home detention would be appropriate.

[17]     Mr Greacen was sentenced to two years and three months’ imprisonment.

Approach to appeal

[18]     Appeals against sentence to this Court are governed by s 250 of the Criminal

Procedure Act 2011 (“the Act”) which requires the Court to allow the appeal if:

(a)       for any reason there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should be imposed.

[19]     In any other case the Court must dismiss the appeal.2

[20]     Thus there is a dual cumulative requirement that for the appeal to succeed there must not only be an error but that a different sentence should be imposed.

[21]     An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning or as a result of additional material submitted on the appeal which obviates the first instance sentencing decision.3

Was there an error in the sentence imposed on the conviction?

[22]     Mr Mansfield, for Mr Greacen, submits that the Judge should have adjourned the hearing so that a complete pre-sentence report could be provided.  In making this submission he relies on s 26A of the Sentencing Act 2002 which provides:

“26A   Pre-sentence reports when considering sentence of community detention or home detention

(1)       If  the  court  is  considering  a  sentence  of  community detention or home detention, the court must direct a probation officer to prepare a pre-sentence report for the court in accordance with subsection (2).

(1A)     If a probation officer intends to recommend to the court a sentence of community detention or home detention, the probation officer must prepare a pre-sentence report in accordance with subsection (2) and provide it to the court.”

[23]     Thus it is plain that if the Court is considering a sentence of home detention it must direct the probation officer to prepare a report for the Court in accordance with s 2.   That report must include information regarding the suitability of the proposed home detention residence and the other factors set out in s 26A(2)(a)-(c).

[24]     The circumstances of the present case are similar to those which confronted the Court of Appeal in R v Harriman.4   There the defendant was sentenced without a pre-sentence  report  but  with  a  psychiatric  report,  in  circumstances  where  a

pre-sentence  report  with  a  home  detention  appendix  had  been  sought  by  the

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

3      R v Shipton [2007] 2 NZLR 218 (CA).

4      R v Harriman [2009] NZCA 156.

sentencing Court.  The appeal was allowed with the Court noting it was not open to the Judge to sentence without a pre-sentence report.  On the question of the home detention appendix the following was said:

“[25]    In  addition,  a  judge  had  directed  a  home  detention  appendix, suggesting that that was considered a possible sentence.  The psychiatrist’s report did not (and could not) deal with the issues of suitability of address and occupation to which that appendix is directed: s 26A of the Act.   A sentencing judge should have awaited information to ascertain whether it was  desirable  (from  the  perspective  of  both  Mr  Harriman  and  the community) that he remain in the community subject to a sentence of home detention rather than being in prison).”

[25]     A similar situation also arose in Sefesi v Police.5   There the appellant did not have a complete pre-sentence report and an adjournment was wrongfully declined to permit Corrections to complete it.  Correction’s inability to complete the report was due to the appellant’s repeated failure to attend scheduled appointments.   Despite that McKenzie J allowed the appeal, ordered a pre-sentence report with appendices and re-sentenced the appellant.

[26]     Mr Wiseman, for the Crown, responsibly accepts that in the present case the Judge should not have embarked on sentencing without a complete pre-sentence report.   I agree with counsel that the effect of s 26A of the Sentencing Act is that sentence should not have been passed on Mr Greacen as a matter of law.

[27]     However, in terms of s 250 of the Act, having been satisfied there was an error in the sentence imposed, I must also be satisfied that a different sentence should now be imposed.  I am so satisfied for the reasons which follow.

Should a different sentence be imposed?

[28]     Mr Mansfield submits that a sentence reduction of at least five months should have  been  applied  by  the  Judge  in  consideration  of  Mr  Greacen’s  compelling personal mitigating circumstances.  These include the evidence of significant efforts at rehabilitation undertaken by Mr Greacen since his arrest, his personal circumstances including his diagnosis of attention deficit disorder and his supportive

family.

5      Sefesi v Police HC Wellington CRI-2010-485-68, 17 September 2010.

[29]     Mr Wiseman submits that it was available to the Judge, on the information before him at sentencing, to decline Mr Greacen a further discount for these personal mitigating circumstances.   He submits that to do so would be consistent with the established approach of the Courts when considering the personal circumstances of a defendant in cases involving commercial dealing in drugs.6

[30]     However Mr Wiseman, very fairly and properly, accepts that the full extent of Mr Greacen’s rehabilitative efforts may not have been apparent to the Judge at the sentencing.   Furthermore, since being sentenced Mr Greacen has  completed the Salvation Army’s Bridge Programme.   As a consequence, it may well be that a further discount in consideration of his rehabilitative efforts would be appropriate. That, of course, would be a matter for the sentencing Judge to determine were I to order that the matter be remitted back to the District Court.

[31]     Such an approach would be consistent with the Court of Appeal’s decision in R v   Hill7    which   also   involved   a   defendant   whose   level   of   possession   of methamphetamine fell within Band 2 of Fatu.

[32]     Given the new material which was not available to the sentencing Judge I am satisfied  that  he  might  properly  give  significant,  even  decisive,  weight  to  the prospects of or efforts at rehabilitation particularly given the evidence the defendant has successfully completed such a programme.

[33]     In Mr Greacen’s circumstances, Mr Wiseman accepts there may be further discounts available to Mr Greacen which would bring his end sentence down to a level where eligibility for a sentence of home detention would be engaged.

[34]     Thus the second limb of s 250 of the Act is met, namely that a different sentence should be imposed.  What that should be is properly a matter for the Judge who will have the benefit of considerably more information than was the case when

he sentenced Mr Greacen on 17 June 2016.

6      Jarden v R [2008] NZSC 69; R v Wallace & Christie [1999] 3 NZLR 159 (CA); R v Honan

[2015] NZCA 94.

7      R v Hill [2008] NZCA 41.

[35]     Accordingly, the appeal must be allowed.

Disposition

[36]     Mr Mansfield submits this Court should sentence Mr Greacen rather than remit the matter back to the District Court.  However, as I discussed with counsel at the hearing, I am not inclined to adopt that approach.  The proper course is for me to order a pre-sentence report with appropriate appendices.   However, the sentence indication was given by the Judge who sentenced Mr Greacen.  He is best placed to re-sentence.   I can see no advantage in this Court duplicating the efforts of the District Court.

Result

[37]     The appeal is allowed.

[38]     I direct a pre-sentence report containing home detention appendices pursuant to s 251 of the Act.

[39]     Counsel are to consult with the Registry of the District Court at Auckland for the purpose of setting this matter down for sentence.

Moore J

Solicitors:

Mr Mansfield, Auckland

Crown Solicitor, Auckland