Head v Police

[2017] NZHC 1733

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-52 [2017] NZHC 1733

BETWEEN

ADAM RAYMOND HEAD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 June 2017
Appearances:	R J M G Glover for Appellant S J Mallett and S Dayal for Respondent
Reasons:	25 July 2017

REASONSFOR JUDGMENT OF NICHOLAS DAVIDSON J (DISMISSING APPEAL AGAINST SENTENCE)

Introduction

[1]      This appeal against sentence was dismissed on 28 June 2017.1       These

Reasons follow.

[2]      Mr Head appeals against a sentence of 27 months imprisonment for three sets of charges.2  The first set relates to cultivation of cannabis, possession of utensils, possessing medicine in an unlabelled container, and possession of utensils for cannabis and methamphetamine use.   The second set relates to assault and wilful damage.  The third set relates to unlawful possession of a shotgun.  The Summary of Facts refers to the possession of a loaded crossbow but a charge of possession of an

offensive weapon was withdrawn.

1      Head v New Zealand Police [2017] NZHC 1462.

2      Police v Head [2017] NZDC 8202.

HEAD v NEW ZEALAND POLICE [2017] NZHC 1733 [25 July 2017]

[3]      The  appellant  primarily  appeals  on  the  grounds  that  the  Judge  erred  by imposing an end sentence that was manifestly excessive, and that a lesser term of imprisonment or a term of home detention should have been imposed.

Summary of Facts

[4]      During the execution of a search warrant on 15 July 2017, the appellant was found to be in possession of two sealed bags of cannabis head, a meth pipe and an unlabelled medicine container containing pills believed to be Diazepam.   He was also  found  in  possession  of  a  cannabis  pipe,  18  cannabis  seedlings,  and  other growing equipment.

[5]      On 26 July 2017, the appellant had a verbal altercation with his partner. While she lay on a couch, he placed one arm around her head and the other around her arm and squeezed her hard.  When she left the room and came back, she was subject to further abuse, and her bathroom mirror and other light fittings were smashed by the appellant using a hammer.

[6]      On 23 November 2015, the police were called to a disturbance on the street outside the appellant’s residence.   He admitted possession of the shotgun in his vehicle. A search under the Search and Surveillance Act 2012 resulted in the police recovering a shotgun with 22 shotgun cartridges, and a crossbow for which there is no charge. The shotgun and crossbow were ready to discharge.

District Court Sentencing

[7]      His Honour Judge O’Driscoll identified the lead offending as the unlawful possession of a shotgun, and adopted a starting point of two years imprisonment.  He uplifted the sentence by nine months for the drug related offences, and three months for  common  assault  and  wilful  damage.  The  Judge  discounted  the  sentence  by

25 per cent for the guilty pleas. The end sentence was 27 months imprisonment.

Jurisdiction

[8]      Mr Head appeals as of right.3   Such an appeal must only be allowed if the Court is satisfied that there is an error in the sentence and a different sentence should be imposed.  If either element is not satisfied, the appeal must be dismissed.

[9]      The focus is on the correctness of the end result, not the process by which the sentence was reached.4   This Court must only intervene if it considers the sentence is manifestly excessive, and not justified under sentencing principles.5   The Court will not interfere with the exercise of judicial discretion, or tinker with the sentence.6

Analysis

Was the starting point manifestly excessive?

[10]     Mr Glover submits that 27 months imprisonment imposed on the charge of unlawful possession of the shotgun is manifestly excessive.   He submits that the Judge adopted a sentence of two years for this offending and then uplifted it by nine months to reflect the drug offences, and a further three months for the assault and wilful damage charges.  He imposed 27 months for the possession of the firearm, and concurrent sentences  for the other offending which lead to the end sentence of

27 months.

[11]     Mr Glover submits that if His Honour intended to increase the sentence for the firearm charge, he should have justified that, instead of simply increasing it without further comment.

[12]     Section 85(4) of the Sentencing Act provides:

(4)      If only concurrent sentences are to be imposed, –

(a)       the most serious offences must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending, and

3      Criminal Procedure Act 2011, s 244.

4      Tutakangahau v R [2014] NZCA 269, [2015] 3 NZLR 482 (CA) at [36].

5      Ripia v R [2011] NZCA 101 at [15].

6      Maihi v R [2013] NZCA 69 at [21].

(b)      each of the lesser offences must receive the penalty appropriate to that offence.

[13]     In accordance with s 85(4) of the Sentencing Act, the sentence of 27 months imprisonment for the lead charge should reflect the totality of the offending.

[14]     Mr Glover further submits that in light of the case law referred to this Court,

27 months imprisonment is outside the range of the sentence available.  He refers to Fowler v R,7  where the Court of Appeal quashed a sentence of imprisonment and replaced it with 50 hours of community service on a charge of unlawful firearm possession.   However in Fowler the sentencing judge was held to have erred by imposing a sentence without having regard to a completed copy of the probation officer’s report.   At the time of that appeal, the appellant had been remanded in custody for over three months. Due to the error identified and the time already served, the Court quashed the appellant’s sentence of imprisonment and substituted it

with community service.

[15]     Mr  Glover  also  submits  that  in  Kulimoeanga  v  R,8   McIlroy  v  R,9   and

R v Swain,10 the “uplift” for the charge of possession of a firearm was between 12 to

18 months. However, the lead offences were much more serious than here; injuring with intent to cause grievous bodily harm, aggravated robbery, and murder respectively.  The uplift for unlawful possession of a firearm in those circumstances would be reduced, when addressing totality.

[16]     Mr Glover referred to Nuku v R, and Moore v Police, where the starting points  for the lead  offence of possession  of  a  firearm  were 18  and  17  months respectively.11   The starting points were specific to the circumstances, but similar to the starting point adopted by Judge O’Driscoll.

[17]     Mr Mallett for NZ Police as Respondent, refers to Long v Police,12  where

Justice Ronald Young held that a starting point  of 20 months imprisonment on

7      Fowler v R [2016] NZCA 233.

8      Kulimoeanga v R [2016] NZCA 129.

9      McIlroy v R [2016] NZCA 86.

10     R v Swain [2015] NZHC 3241.

11     Nuku v R [2016] NZCA 179; Moore v Police [2015] NZHC 3113.

12     Long v Police , HC Palmerston North CRI-2009-454-39, 8 October 2009.

charges of unlawfully possessing a firearm, unlawful possession of a pistol, and one charge each  of unlawfully possessing  explosives  and  ammunition.    His  Honour brought to account the fact that the firearms were not presented, there was no gang association, and no previous convictions for such offending.

[18]     Mr Mallet referred to Herewini v Police, where the appellant was found with a loaded sawn-off shotgun under the front passenger seat of his vehicle.13    He was in possession of two large hunting knives and a cross bow. Moore J traversed the authorities:

[23]      In R v Richardson the Court of Appeal upheld a starting point of two years’ imprisonment for possession of a sawn-off shotgun and a shotgun. The sawn-off shotgun was found under a bed in the house and the other gun was loaded and found in the boot of the car.14

[24]     Torea v R, Martel v Police and Byles v R had similar circumstances and adopted starting points between two years and six years and six months’ imprisonment.15

[25]      In Dewes v Police John Hansen J upheld a starting point of two years and six months’ imprisonment for possession of a sawn-off shotgun which was located in the appellant’s car.16 This case share strong similarities to the present. His Honour noted that the fact that the weapon had been taken out in a car made it more serious than a case where the weapon was found hidden in a building. In that decision the Judge also noted that there was no gang association involved.

[19]     Moore J held that a starting point of two and a half years was “well within the

Judge’s discretion”.

[20]     Mr Mallett submitted that while Herewini involved more weapons, a further factor in this case included cartridges found alongside the weapon.   Hence, it is submitted that the 24 months starting point was “perhaps stern” but within range.

[21]     He submitted the guideline judgments for cannabis offending remains that of the Court of Appeal in R v Terewi,17 and the offending here fell within category one,

growing  a  small  number  of  cannabis  plants  for  personal  use.    By  itself,  the

13     Herewini v Police [2014] NZHC 2396.

14     R v Richardson CA450/02, 25 March 2003.

15     Torea v R [2011] NZCA 96; Martel v Police HC Hamilton CIV-2010-419-69, 4 October 2010;

Byles v R [2013] NZCA 18.

16     Dewes v Police HC Christchurch A60/03, 12 June 2003.

17     R v Terewi [1993] 3 NZLR 62.

cultivation charge would attract a non custodial sentence, but as the appellant had two sealed bags of cannabis head, a meth pipe, cannabis pipe and  Diazepam, a nine months prison sentence was within the range available.

[22]     The Judge did not uplift for the appellant’s previous drug related convictions. He did not impose any uplift to reflect that much of the offending was committed while on bail.   That to some extent, balances the point on appeal advanced by Mr Glover, that the sentencing judge did not bring to account some factors, such as participation in the restorative justice process.

[23]     Mr Mallett submits that this is not a case where the sentence should be tailored to reach a two year threshold for home detention to be considered.

[24]     I agree that the offending here is comparable with Herewini. In both cases a loaded shotgun was found in the defendant’s vehicle, and both defendants had in their possession a crossbow. Herewini was slightly more serious given the modification of the weapon (being sawn-off), but here 22 cartridges were found alongside the shotgun. I conclude that a starting point of two years imprisonment was within the range available in the Judge’s discretion.

Miscellaneous grounds of appeal

[25]     Mr Glover also submits that the District Court erred in not giving sufficient weight  to  the appellant’s good  behaviour  between  1994  and  2012,  his  letter of remorse, and the probation officer’s recommendation of home detention.

[26]     The Judge was entitled to regard those factors as of little weight.   Indeed, I see little relevance in good behaviour up to five years ago in the current sentencing exercise.

[27]     I find limited merit to the appellant’s submission that the Judge failed to expressly take into account the outcome of the restorative justice conference. Section

10  of  the  Sentencing  Act  requires  the  Court  to  take  into  account  any  offer,

agreement, response, measure or other action to make amends.18   The outcome of the conference,  where  the  appellant  demonstrated  remorse  and  apologised  for  his actions, were material in the sentencing exercise. However, even if the Judge took the outcome of the conference into account, the change to the end sentence would have been negligible. Judge O’Driscoll applied a three month uplift for the assault and wilful damage charges.  In my view, that was generous.  Any adjustment to the end sentence to take this factor into account would be minimal.

Disposition

[28]     For these Reasons, the appeal was dismissed.

……………………………………………….

Nicholas Davidson J

Solicitors:

R J M G Glover, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch

18     Sentencing Act 2002, s 19(1).