Jones v The Queen

[2010] NZCA 119

IN THE COURT OF APPEAL OF NEW ZEALAND

CA712/2009
[2010] NZCA 119

BETWEENCOLIN TREVOR JONES

Appellant

ANDTHE QUEEN

Respondent

Hearing:3 March 2010

Court:Randerson, Priestley and MacKenzie JJ

Counsel:R J Stevens for Appellant

M Inwood for Respondent

Judgment:1 April 2010 at 11.30 a.m.

JUDGMENT OF THE COURT

The appeal is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

Introduction

[1]        In June 2009 the appellant pleaded guilty on arraignment to seven of the 12 counts he faced in the Palmerston North District Court.[1] 

[1]      R v Jones DC Palmerston North CRI-2008-054-1155, 16 June 2009. 

[2]        His trial then proceeded on the other five counts, the most serious of which was kidnapping.  The jury acquitted the appellant.

[3]        In October 2009 Judge Garland sentenced him on the seven charges for which he had been convicted.[2] These were the four charges of assault laid under s 196 of the Crimes Act 1961; one charge of assault with a weapon laid under s 202C(1)(a); a charge of unlawful possession of a firearm laid under s 45(1)(b) of the Arms Act 1983; and a charge of cultivating cannabis laid under the Misuse of Drugs Act 1975.

[2]      R v Jones DC Palmerston North CRI-2008-054-1155, 30 October 2009.

[4]        The cannabis cultivation charge attracted the lead sentence of three and a half years’ imprisonment.  The Arms Act charge was visited with a cumulative sentence of one year’s imprisonment.  The four assault charges and the charge of assault with a weapon attracted  concurrent sentences of one month’s imprisonment each.

[5]        This appeal challenges the four and a half year term on the ground that it is manifestly excessive.

Background

[6]        The appellant’s offending took place in the early hours of a Saturday morning in March 2008, 15 months before his trial and his pleas, in and around the appellant’s rural property near Pahiatua.  His victims were four youths, all aged 15 at the time, who were school contemporaries of the appellant’s son.

[7]        The four victims had heard the appellant cultivated cannabis on his property and resolved to travel there to take some of it.  They stopped their car, walked across paddocks to a shed where cannabis plant and associated cultivation equipment was housed, helped themselves to some plants, and walked back to their car.  Noticing lights at the appellant’s home they drove away but were pursued by a vehicle driven by the appellant.  They lost control at a corner and crashed into a paddock. 

[8]        On getting out of the car they encountered the appellant holding a .308 rifle which he pointed at them as they attempted to flee.  The appellant threatened to shoot them if they did not return to the car.  On realising that he was dealing with four of his son’s school friends the appellant lowered the rifle and offered to help them extricate their car.  The youths got into the appellant’s vehicle, whereupon he drove to his home, hitting one of the victims as he did so.  On arriving at the home the appellant yelled at and abused the youths.  He hit one of them on the face with the butt of his firearm.  At some stage in the home the magazine of the rifle was removed and the weapon cocked which ejected a live round.  The three other youths were hit.  Further threats and abuse followed. 

[9]        Eventually the appellant and the youths returned to the crashed car.  The appellant retrieved some of the cannabis.  He helped tow the vehicle out of the paddock.

[10]       The appellant’s cannabis cultivation operation was substantial.  It was housed in a disused pigsty on the property.  The growing operation comprised 76 plants.  In a garden area a further 121 plants, all healthy and well tended, were discovered by the police.  The total wet cannabis weight was 90 kg.

[11]       When sentenced the appellant was 42.  He and his partner have two teenage sons.  At the time of his offending he was operating a fire wood business but had significant financial problems.  Between his offending and sentencing he was adjudicated bankrupt.

[12]       The appellant had a significant criminal history although, with the exception of a cannabis cultivation charge committed whilst he was on bail in respect of which he was convicted and discharged, the bulk of his prior relevant offending took place prior to 1997.  In 1990 he had been sentenced to two years and three months imprisonment for possessing cannabis for supply.  He had four previous convictions for unlawful possession of a firearm and five convictions for offences involving violence.  The probation report assessed the appellant as being at medium risk of further offending.

Timing of guilty pleas

[13]       When arrested the day after his offending the appellant effectively admitted the assaults, possession of an unlicensed firearm which he stated he used mainly for hunting, and the cannabis cultivation.

[14]       In addition to the seven charges to which he eventually pleaded guilty the appellant faced three further unlawful possession charges laid under the Arms Act, a further charge of assault with a weapon (a torch), and the more serious charge of kidnapping.

[15]       At his first appearance in court the appellant entered not guilty pleas to all the charges he faced.  His counsel in subsequent discussions with the police made it clear he would plead guilty to all charges provided the kidnapping charge was withdrawn.  This offer was repeated at depositions and was the subject of discussion with the Crown at the appellant’s first call-over.

[16]       The appellant’s plea bargain was not acceptable to the Crown.  Thus his trial proceeded on the remaining five counts after his arraignment.  In respect of all five the appellant was acquitted.

The sentence

[17]       The Judge described the appellant’s cannabis cultivation operation as being large scale cultivation comprising 197 plants.  He identified as aggravating features the fact that the rifle presented by the appellant was loaded; that actual violence was employed against the four victims; contents of the victim impact statements; the victims’ vulnerability; and the appellant’s previous cannabis and Arms Act convictions.

[18]       The Judge accepted that the appellant’s guilty pleas entitled him to a mitigation credit.  The Judge closely analysed R v Hessell.[3]  He concluded that the appellant’s delay in entering guilty pleas was for tactical reasons which, in terms of [45](a) of Hessell pointed to a smaller than usual reduction.

[3]      R v Hessell [2009] NZCA 450.

[19]       With reference to the tariff case of R v Terewi[4] the Judge considered the appellant’s cultivation operation lay at the upper end of category two or the lower end of category 3.  He adopted as his start point four years imprisonment (being common to both bands).  He considered the Arms Act charge, particularly having regard to the fact that the rifle was loaded and that it had been used in connection with the appellant’s drug offending, should attract a start point of 18 months imprisonment.  Although Mr Stevens, in his submissions, attacked this figure, given that the Judge eventually imposed a 12 month sentence for the firearms charge, and given our view on overall totality, this ground of appeal largely falls away.

[4]      R v Terewi [1999] 3 NZLR 62.

[20]       The assaults on the four youths, which did not lead to significant physical injury, should attract a start point of three months imprisonment.

[21]       By these assessments the Judge’s total start points amounted to five years and nine months.

[22]       To that figure the Judge has then applied a six month uplift to reflect the aggravating features of the appellant’s previous offending.  He then applied a ten per cent discount to reflect the mitigating factor of the guilty pleas, reaching an overall sentence of five years and eight months imprisonment.  This figure he then reduced to four and a half years to reflect the totality principle.

Submissions

[23]       Mr Stevens accepted the Judge’s four year start point for the cannabis cultivation charge.  His submissions focused on the 18 month start point the Judge indicated for the Arms Act charge; excessive weight given to the appellant’s previous convictions; insufficient credit for the guilty pleas; and failure to have regard to the appellant’s personal circumstances.

[24]       On the Arms Act charge counsel submitted that the appellant lived on a rural property, and although unlicensed, legitimately used the rifle for hunting.  The use of the rifle during his offending was not pre-meditated and was of relatively short duration in a situation where the appellant became aware of unknown nocturnal intruders.

[25]       The six month uplift for previous convictions, counsel submitted, was unwarranted given that previous firearms offences had been committed 18 or 19 years previously.  The cannabis conviction entered in 2008 should not have been regarded as a previous conviction. 

[26]       This Court’s Hessell judgment had not been delivered when the pleas were entered but counsel submitted a discount of greater than ten per cent was appropriate.  Importantly the appellant had indicated his willingness to plead guilty immediately in the wake of the offence.  His tactical stance of maintaining not guilty pleas until the kidnapping charge was withdrawn was fully justified, given his subsequent acquittal.

[27]       Finally the Judge’s sentencing notes were silent on the predicament of the appellant’s partner and two children.

Discussion

[28]       The Judge erred in applying the ten per cent mitigating reduction before reducing the sentence to reflect totality.  It is clear from Hessell that the reduction to reflect a guilty plea should be calculated as a proportion of the total sentence that would otherwise be imposed.[5]  However, applying the ten per cent reduction to a greater sentence is an error which probably worked in the appellant’s favour, depending on how the Judge would have assessed totality.

[5] At [14].

[29]       The Judge was confronted with a broad range of offending.  He needed to assess overall culpability, yet ensure the end sentence properly reflected totality.  With the exception of the stage at which he applied the ten per cent discount, the Judge has closely followed the prescribed R v Taueki[6] methodology and has, at various stages, correctly identified all relevant features.

[6]      R v Taueki [2005] 3 NZLR 372

[30]       Matters to be assessed in pitching a sentence to reflect overall culpability include the extent of the cannabis cultivation operation; the fact that there were four victims; and the deployment of the firearm.  The firearm was not used for defensive purposes.  It was deliberately placed in the appellant’s car in which he pursued the victims and was deployed after their vehicle crashed.

[31]       Aggravating features undoubtedly include the presence of a loaded round in the chamber, the youth of the victims, and the sustained nature of the assaults one of which was serious.  The others, although minor, were terrifying. 

[32]       We do not consider that the Judge was wrong to give a modest uplift to reflect similar previous offending, particularly having regard to the significant two years and three months custodial sentence imposed on the appellant for possessing cannabis for supply in 1990.  Repeat offending, albeit some years later, has significance.  We do not consider the Judge gave that factor excessive weight.

[33]       Given that the lead sentence was imposed under the Misuse of Drugs Act, and the clear authority that personal circumstances cannot be given much weight, we do not place much significance on counsel’s fourth point.

[34]       As to the guilty pleas, a discount of ten per cent is appropriate where a guilty plea is entered or indicated three weeks before the commencement of trial.[7]  That did not happen in this case.  Despite the appellant’s admission of part of the offending at an early stage, he did not promptly enter guilty pleas and clearly adopted a tactical approach.  Even if there were some modest increase in the ten per cent discount the Judge allowed, the end sentence would not have been altered significantly.  The appellant, in any event, has had the benefit of the Judge applying a discount to a figure other than the one which would have been imposed.

[7]      R v Hessell [2009] NZCA 450 at [15].

[35]       We consider the end sentence is stern and at the top of the permissible range.  But we are not satisfied the four and a half year term of imprisonment is manifestly excessive.  This was a sizable and relatively sophisticated cannabis cultivation operation.  The offending included the presentation of a firearm and assaults on four young people.  A deterrent sentence was called for.

Result

[36]       For these reasons the appeal is dismissed.

Solicitors:

Fanselows, Wellington for Appellant

Crown Law Office, Wellington for Respondent