Grootjans v Police

[2019] NZHC 2183

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-000064 [2019] NZHC 2183

BETWEEN

KAINGA JACKSON GROOTJANS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 August 2019
Appearances:	E Reilly on behalf of A Schulze for the Appellant G Banuelos for the Respondent
Judgment:	3 September 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 3 September 2019 at 11.00 am

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Lance Lawson, Rotorua Gordon Pilditch, Rotorua

GROOTJANS v POLICE [2019] NZHC 2183 [3 September 2019]

[1]This is an appeal against sentence.

[2]        On 24 June 2019, Judge Snell in the District Court at Rotorua sentenced     Mr Grootjans appellant on the following charges, to which he had pleaded guilty:

(a)Possession of cannabis for supply and two charges of possession of utensils.1 These charges involved 643 grams of cannabis, some in one-ounce plastic ziplock bags and the rest loose, a box of unused bags and a large set of scales.

(b)Possession of methamphetamine.2 This involved a wallet containing

1.88 grams.

(c)Possession of cannabis.3 This involved 27 grams of cannabis.

(d)Two x thefts (under $500).4 These both related to failing to pay for petrol that Mr Grootjans had put into his vehicle.

(e)Two x failure to answer District Court bail.5

(f)Breach of release conditions.6

(g)Breach of community work.7

[3]        The end sentence was two years and six months’ imprisonment. The Judge reached that sentence by fixing a starting point of two years and six months’ imprisonment for the charge of possession of cannabis for supply. He then uplifted

1      Misuse  of  Drugs  Act  1975,  s  6(1)(c)  and   s  13(1)(a).     Maximum penalty is eight years’ imprisonment and one year’s imprisonment or a fine not exceeding $500 respectively.

2      Misuse of Drugs Act 1975, s 7(1)(a). Maximum penalty is six months’ imprisonment or a fine not exceeding $1,000.

3      Misuse of Drugs Act 1975, s 7(1)(a). Maximum penalty is three months’ imprisonment or a fine not exceeding $500.

4      Crimes Act 1961, ss 219 and 223(d). Maximum penalty is three months’ imprisonment.

5      Bail Act 2000, s 38(b). Maximum penalty is one year’s imprisonment.

6      Sentencing Act 2002, s 96(1). Maximum penalty is one year’s imprisonment or a fine not exceeding $2,000.

7      Sentencing Act 2002, s 71(1)(a). Maximum penalty is three months’ imprisonment or a fine not exceeding $1,000.

the starting point by six months for all of the remaining charges. He then uplifted further by four months for the breach of release conditions and the fact some of the offending occurred while on bail, and was similar to that for which he was originally sentenced. He then declined to give a discount for mitigating factors, particularly alleged remorse, and finally allowed a discount of 25 per cent for the guilty pleas, although they had come well after the laying of the charges.

[4]        A sentencing appeal is by way of rehearing. The Court is guided by the sentencing Judge’s reasoning, but must make its own decision. The sentence should only be disturbed if the Court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.8

[5]        As is well known, it is the end sentence of two years and six months’ imprisonment to which I must have regard, not the process by which the Judge reached that sentence.9

[6]        The appellant submits that the sentence was manifestly excessive on the grounds that:

(a)the starting point of two years and six months’ imprisonment for the charge of possession of cannabis for supply was excessive;

(b)the uplift for the remaining convictions was excessive;

(c)the uplift for offending while subject to release conditions and bail conditions was excessive; and

(d)there was a failure to give a discount for mitigating factors.

[7]        The respondent submits that none of these matters was in error and, in any event, standing back, the end sentence was not manifestly excessive.

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

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

[8]        Both counsel agree in terms of the starting point for the charge of possession of cannabis for supply that this offending falls within band 2 of R v Terewi, given the indicia of commerciality.10 However, the appellant says that this case should have been at the lowest point of the range for band 2, that range being two to four years and the respondent says that two years, six months was well within the available range.

[9]        I agree with the respondent that a starting point of two years and six months’ imprisonment was available to the sentencing Judge, although not necessarily well within the range. I accept that the case of Kennedy v Police on which the appellant relies is an outlier in terms of sentencing cases for possession of cannabis for supply.11

[10]      I have considered the line of cases referred to by the Crown and note that, for example, in Watt v Police, the appellant pleaded guilty to possession of cannabis for supply, amongst other charges.12 He was found in possession of 69 small bags of cannabis, each weighing a gram, as well as eight slightly larger bags containing three to four grams of cannabis, so about 100 grams in total. This Court imposed a starting point of two years’ imprisonment for this offending, i.e. at the bottom of category 2. It was considered to be small-scale offending without much indicia of commerciality, apart from the fact that the cannabis was packaged as “deal bags”.

[11]Watt is clearly at a lower level than this one.

[12]      I refer also to R v Pelikani, where the defendant pleaded guilty to one charge of possession of cannabis for supply, again amongst other charges.13 The defendant was found in possession of 179 cannabis tinnies (one gram each), a separate snaplock bag that contained 77.4 grams of cannabis head and $2,690 in cash. The total amount of cannabis was about 260 grams. A starting point of two years and six months’ imprisonment was imposed. The facts of that case are no more serious than this one. The evidence of commerciality is similar overall and the quantity of cannabis is much less than here.

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

11     Kennedy v Police [2017] NZHC 3066.

12     Watt v Police [2014] NZHC 3055.

13     R v Pelikani [2014] NZHC 930.

[13]      Ms Reilly submits that there is very little evidence of commerciality here because there is no cash or evidence of actual sales. However, I am satisfied given the amount of cannabis involved, the one-ounce plastic ziplock bags, some with cannabis in them, and the large set of scales, that there is sufficient evidence of likely street-level dealing here.

[14]      I consider that the starting point of two years, six months sits fairly within the range of the cases supplied to me. I therefore cannot say that the starting point is in error.

[15]      I observed to counsel that, ignoring Terewi, I would consider such a starting point on the high side. Terewi is now 20 years old. Society’s view of the appropriate penalty for cases such as this has probably changed somewhat. However, I consider I am bound by Terewi and the appellant did not contend otherwise.

[16]      I consider the uplift of six months’ imprisonment for the other offending could have been a little less, but at most this would only have been a matter of one or two months less. That alone would not make the sentence manifestly excessive. I agree with the appellant that each of the additional offences is quite minor, but they clearly have a cumulative effect. Unfortunately, as I observed in Court, Mr Grootjans does little to help himself, or his counsel.

[17]      Similarly, the uplift of four months for the breaches of bail and release conditions is not really objectionable and Ms Reilly sensibly acknowledged that to be the case.

[18]      That leaves only the matter of a discount for remorse and I consider it was well open to the Judge to decline to give such a discount. Remorse is a matter of assessment and I certainly could not say he was wrong. Further, given the speed with which the appellant reoffended following his previous offending, I would be highly sceptical about remorse, at least at the point of the sentencing in the District Court.

Conclusion

[19]I therefore have to dismiss the appeal.

[20]      I have already observed that there is some substance in Ms Reilly’s submission that the sentence is stern in light of the approach to sentencing in recent times. That, of course, is not a ground for appeal in the absence of demonstrated error. I understand that Mr Grootjans comes up for parole in October this year. I hope that he is performing well in the medium-intensive rehabilitation programme, which I understand he is currently undergoing, and that he completes the programme as soon as possible. If he does well, hopefully he will be released on parole at an early opportunity. More hopefully still, he will aim to make the most of life out of prison by straightening out his act. I do not see his recent round of convictions as ruling that out.

[21]      Finally, I would like to thank both counsel for their succinct and helpful submissions.

Hinton J