Hape v Police

[2016] NZHC 855

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000070 [2016] NZHC 855

BETWEEN

DARRYL HAPE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 May 2016
Appearances:	L S Fulton for Appellant C D Piho and D B Stevens for Respondent
Judgment:	2 May 2016

ORAL JUDGMENT OF PALMER J

Solicitors / Counsel:

L S Fulton, Barrister, Auckland

Kayes Fletcher Walker, Auckland

HAPE v NEW ZEALAND POLICE [2016] NZHC 855 [2 May 2016]

Facts

[1]      On 12 February 2015, the Police executed a search warrant at the residence of Mr Darryl Hape and found 67 cannabis tinnies weighing 36 grams, as well as

$140.

[2]      Mr Hape aged 32, admitted that he had sold tinnies to friends and family for money.  He pleaded guilty to six charges. This included one charge each of:

(a)       possession of cannabis, a class C controlled drug, with a maximum

penalty of eight years’ imprisonment;

(b)      the sale of cannabis with the same maximum penalty; and

(c)       breach of community work with a maximum penalty of three months’

imprisonment or a $1,000 fine.

[3]      I note in respect of the last offence that the Crown will file and serve a memorandum  as  to  whether  this  was,  or  was  not,  the  same  offence  for  which sentence was given on 22 July 2014.

[4]      Mr Hape also pleaded guilty to three charges of failure to answer District Court bail, each carrying a maximum penalty of one year imprisonment or a $2,000 fine.

[5]     On 3 March 2016, Judge Thomas sentenced Mr Hape to 18 months’ imprisonment for each of the cannabis charges.  The Judge adopted a starting point of two years, in accordance with the lowest end of the scale prescribed by the Court of Appeal in R v Terewi for the sale of cannabis.1   He discounted that by the full 25 per cent for a guilty plea.  He did not apply any other discounts.  He did not order home detention.  Judge Thomas imposed sentences of two months’ imprisonment for

each of the other charges and he ordered that the sentences be served concurrently.

1      R v Terewi [1999] 3 NZLR 62.

Arguments

[6]      Mr Hape appeals against the sentence.   He accepts that two years was the appropriate starting point.   His counsel submits on his behalf that the sentence should have been home detention rather than imprisonment, and that the sentencing should have been adjourned to allow assessment of a suitable pre-sentence report. That, it is said, would be consistent with the requirement of s 8(e) of the Sentencing Act  2002  to  take  into  account  the  desirability  of  consistency  in  sentencing,

particularly with five cases which are cited.2    It would also, it is said, be consistent

with the requirement of s 8(f) of that Act to impose the least restrictive outcome appropriate in the circumstances.   It would also be consistent, it is said, with the requirement on the court under s 16(2) of the Sentencing Act not to impose imprisonment as a sentence unless the court is satisfied that it is imposed for a purpose specified in the Act, which cannot be achieved by another sentence and that no other sentence would be consistent with the principles of s 8.

[7]      The  Crown  submits  in  response  that  Judge  Thomas  made  no  error  in imposing a sentence of imprisonment.   Mr Piho says there is no presumption in favour of home detention and that a principal purpose of sentencing in cannabis cases  is  deterrence.    He  says  the  Judge  considered  that  Mr  Hape’s  history  of breaching court-imposed sanctions meant that Mr Hape had “done his dash” and that imprisonment was the least restrictive sentence appropriate in the circumstances.  He says it was open to the Judge to give little if any weight to previous compliance with home detention given his subsequent failures to appear.  He says the five cases cited were not appeals and were otherwise distinguishable and that, given this, the Judge was not required to adjourn the sentencing hearing or call for reports on home

detention.

2      R v Lambert  HC Palmerston North CRI 2008-054-2923, 20 November 2008; R v Palmer [2009] NZHC 1998; R v Roberts and Tautari [2009] NZHC 1916; R v Wihongi and Cook [2009] NZHC

2474; R v Hampton [2008] NZHC 1958.

Decision

[8]      Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied there is an error in the sentence and that a different sentence should be imposed.

[9]      The key issue is whether it was open to Judge Thomas to decide that home detention was not appropriate where the offender has a history of breaching court orders.

[10]     Here, amongst his convictions, Mr Hape had:

(a)       a conviction for breaching a community work order of the court in

2014;

(b)these three convictions for failing to answer District Court bail to which Mr Hape pleaded guilty; and

(c)       six convictions in 2010-2011 of failing to answer District Court bail. [11]     Court orders are not there to be ignored.

[12]     It is entirely possible that prison will not be good for Mr Hape.   But his conduct in failing to abide by previous court orders, together with his cannabis offending, means that it was and is, in my view, reasonable for the court not to be satisfied that he will abide by conditions imposed with a sentence of electronic monitoring.   I do not consider that Mr Hape serving a previous sentence of six months’ home detention without breach disentitles the court from reaching that view. That sentence was served in 2011 before the most recent breaches on which Judge Thomas sentenced Mr Hape.

[13]     I consider that the five cases cited by Ms Fulton are distinguishable.  Three of them were line calls where special circumstances tipped the balance in favour of

home detention.3    Two of them involved offenders responsible for the care of children.4   None of them involved the history of ignoring court orders.

[14]     Also, as the Crown submits based on Daw v R, there was no requirement on the court to call for a pre-sentence report on home detention when the court had concluded that home detention was not appropriate.5

[15]     It follows that I am not satisfied that there was an error in Judge Thomas’

sentence.  I therefore decline the appeal.

Palmer  J

3      R v Lambert, R v Palmer, and R v Wihongi and Cook, above n 2.

4      R v Lambert and R v Roberts and Tautari, above n 2.

5      Daw v R [2011] NZCA 581 at [13].