Griffiths v The Queen

[2004] NZCA 28

IN THE COURT OF APPEAL OF NEW ZEALAND

CA421/03

THE QUEEN

v

DAVID JOHN GRIFFITHS

Coram:McGrath J
Hammond J
Chambers J

Appearances:  K Clews for the Appellant

G C de Graaf for the Crown

Judgment (on the papers):     23 March 2004 

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

1. The appellant, Mr Griffiths, was found guilty by a jury in the District Court in October 2003 of one charge of possession of a Class B controlled drug (methamphetamine) for the purposes of supply and one charge of possession of a pipe for the purpose of  committing  an offence against the Misuse of Drugs Act 1975.  On 7 November 2003 he was sentenced by Judge Thorburn to a term of one year and nine months imprisonment.  Leave to apply for home detention was refused.  Mr Griffiths now appeals against the sentence on the grounds that the Judge erred in refusing leave to apply for home detention and failing to remit $13,741.40 in fines owed by the appellant.

2. This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

The facts

1. The charges arose from the execution of a search warrant at an address at which Mr Griffiths was boarding on 2 December 2002.  He had moved to that address shortly prior to the offending as a result of his previous living arrangements becoming untenable. That address was, in the words of the sentencing Judge, a venue at which it was obvious that there was active drug use and, in all probability, a place from which methamphetamine was being sold or possessed for purposes of transactions and dealing by others. Three others occupied the address.

2. On the date of the search, police located the appellant at the address.  On closer inspection, Mr Griffiths was found to have ten snap-lock bags secreted in a special ripped portion of the leg of his trousers.  Each contained a small amount, approximately 0.03 grams, of methamphetamine.  In addition, a pipe used for smoking methamphetamine was found in his room.

3. Mr Griffiths maintained at trial that the methamphetamine found in his possession was intended for his own use, and had been given to him by a flatmate in consideration for some work done.

The sentence in the District Court

1. The sentencing Judge accepted that Mr Griffiths was not a person with any entrenched traits of drug abuse or drug convictions but a person who had rather allowed his life to become affected by drug use.  He had no prior convictions for drug-related offending.  His reputation among people who knew him and his employers, the Judge considered, was excellent and if drugs could be removed from his life he could become a useful citizen.  Taking those considerations into account and the general principles in R v Wallace & Christie [1999] 3 NZLR 159, the Judge imposed what he considered “an extremely merciful sentence” of one year and nine months imprisonment.

2. In relation to home detention, the Judge considered that, given the need for sentences to be overtly deterrent in respect to drug dealing, the principle of deterrence still had to be exemplified in this case.  Accordingly, leave to apply for home detention was declined.

The appeal

1. Mr Clews submitted that the Judge had failed to apply the principles in s97(3) of the Sentencing Act 2003 or was plainly wrong in his decision not to grant leave to apply for home detention.  He referred us to R v Barton [2000] 2 NZLR 459, in which this Court said, in respect of s21D of the Criminal Justice Act 1985, that the Court's role was to sift out those cases where it can be clearly said that home detention is not relevant (at 463). Mr Clews submitted that Mr Griffiths was in fact an excellent candidate for home detention.

2. Miss de Graaf submitted that there was nothing in the sentencing notes or the material before the Judge to indicate that His Honour had erred in principle in denying Mr Griffiths leave to apply for home detention.  The sentencing Judge, as the trial Judge, was well placed to weigh up the factors for and against leave.  The Judge was entitled to consider whether allowing home detention would undermine the deterrent purpose of the sentence.  It was well within the Judge’s discretion to conclude that the mitigating factors in favour of leave were outweighed by the need for deterrence in this particular case.

Discussion

1. The starting point is that leave to apply for home detention must be given, unless it would be inappropriate. 

2. Undoubtedly there were a number of positive features in Mr Griffiths’ case:  he had not previously served a term of imprisonment;  there was a lack of previous prior convictions;  and the offending is at the lower end of the scale.  As against that, some concerns were expressed in a pre-sentence report about Mr Griffiths’ prospects of rehabilitation and the most serious charge was one of possession for the purposes of supply of methamphetamine. 

3. It was clearly this last factor which weighed most heavily with the Judge.  He expressly said that his decision not to reserve leave for home detention was based on the “nature and seriousness of the offence”.  As to the need for deterrence in drug cases, this Court said in R v Hakawai CA19/03, 30 May 2003, para [11] that the importance of deterring drug offending can appropriately be taken into account by the sentencing Judge when considering home detention in drug cases. 

4. That being so, we do not consider there to have been any error of principle in the Judge’s exercise of his discretion, nor can it be said that he was plainly wrong in the exercise of that discretion.  It is apparent from the Judge’s comments that he considered both the nature and the seriousness of the offence (as required by s93(3)(a)), and the circumstances and background of the appellant (as required by s97(3)(b)).

5. As to the appeal against the failure to remit the fines, that matter clearly involved the exercise of a direction.  There was no error of principle, nor was the Judge plainly wrong.

6. Accordingly, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington