Leather v R
[2011] NZCA 59
•10 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA541/2010 [2011] NZCA NO 59 |
| BETWEEN GEOFFREY DAVID BRYANT LEATHER |
| AND THE QUEEN |
| Hearing: 21 February 2011 |
| Court: O'Regan P, Chisholm and Priestley JJ |
| Counsel: J M Holmes and C Andersen for Appellant |
| Judgment: 10 March 2011 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe total sentence of six years imprisonment is quashed and replaced with a total sentence of five and a half years imprisonment.
CIn particular, the sentences on all the Tauranga charges are quashed and replaced with concurrent sentences of 18 months imprisonment on counts 1—5 and one years imprisonment on count 6. This sentence of 18 months imprisonment is cumulative on the sentence of four years imprisonment for the Auckland offending.
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REASONS OF THE COURT
(Given by Chisholm J)
Introduction
Having pleaded guilty in the Auckland District Court to 10 charges involving the cultivation of cannabis and related offending the appellant was sentenced by Judge Rollo to a total of six years imprisonment.[1] He appeals against that sentence on the grounds that it was manifestly excessive. In particular he contends that the starting point was too high, there is an unjustifiable disparity between his sentence and the sentences of his co-offenders, the totality principle was offended, and insufficient discount was given for mitigating factors.
The offending
[1] Leather v R DC Tauranga CRI-2009-070-10028, 22 July 2010.
The offending can be divided into two categories that can be conveniently described as the “Auckland offending” and the “Tauranga offending”.
The Auckland offending
On 17 December 2008 a search warrant was executed at Auckland addresses the police believed were being used by the appellant and two other persons, Simon Prest and Shaun Kennedy, for a major cannabis operation.
At 6D Enterprise Drive, Henderson, the police located a large and complex growing operation. It utilised a number of rooms, including six climate controlled shipping containers, as growing rooms. A total of 1217 cannabis plants were located, of which 979 were mature. Growing equipment including soil, pots, lights, fans and fertilisers were found as well as four 28 gram bags containing dried cannabis head. The activities at this address gave rise to count 1 (which jointly charged the appellant and his two co-offenders with cultivating cannabis).
A storage facility described as National Mini Storage at 7 Tony Street, Henderson, was found to contain numerous growing chemicals and equipment as well as electronic scales, pots, lights and numerous resealable plastic bags. There were also two boxes containing 26 large bags of cannabis head totalling 4.5kg in weight. This offending gave rise to count 2 (which charged the appellant and his two co-offenders with possession of cannabis for sale).
The third property at 8 Preston Avenue, Henderson, did not involve the appellant’s two co-offenders. Two rooms in the house, which had extraction fans and light fittings, had been previously used for growing cannabis. Another room currently being used for growing cannabis contained 48 plants. Cannabis seed packets, numerous snap lock bags, a tub containing dried cannabis leaf, and a total of $649 in cash were also located. Count 3, alleging cultivation of cannabis by the appellant alone, arose from these activities.
The remaining charge (count 4) was a representative count alleging that the appellant and his two co-offenders had sold cannabis between June and December 2008.
The Tauranga offending
This offending, which gave rise to six charges against the appellant alone, was revealed when a search warrant was executed at the appellant’s Tauranga address on 3 December 2009.
The search revealed a sophisticated cannabis growing operation with key items throughout the house. A total of 17 cannabis plants, 77 seedlings and 49 grams of cannabis head were located. There was also extensive equipment including extractor fans, lighting, plastic sheeting blacking out some of the windows and chemicals. This offending gave rise to count 2 alleging that the appellant had cultivated cannabis.
When he was spoken to by the police the appellant admitted that after he had moved from Auckland to Tauranga he had used cuttings from a previous crop in Auckland. This admission resulted in count 1 (cultivation of cannabis).
The appellant also told the police that he had sold 7 lb (3.1kg) of cannabis for $24,000 in Auckland during mid 2009 and that he had received about $10,000 from those proceeds. Count 3 (sale of cannabis) resulted.
In addition, the appellant admitted that he had sold 4 lb (1.18 kg) in Tauranga for $16,000 of which he had received about $6000. This resulted in count 4 (sale of cannabis).
Count 5 (possession of cannabis for sale) and count 6 (possession of equipment for cultivation) related to the cannabis and equipment found on the site when the search was undertaken.
The Tauranga offending occurred while the appellant was on bail in relation to the Auckland offending.
The appellant
By the time he was sentenced on all charges on 22 July 2010 the appellant was 25 years of age. He was a first offender.
The probation officer reported that after completing schooling to the seventh form level the appellant held responsible positions within the financial sector until being made redundant. Following that he briefly worked for a gardening business before becoming unemployed. The appellant told the probation officer that he (the appellant) had become addicted to methamphetamine and was cultivating cannabis to enable him to meet substantial debts that had been incurred as a result of that addiction.
According to the probation officer the appellant was “intelligent, educated, articulate, and co-operative”. It was the probation officer’s view that the appellant was genuinely remorseful and showed a high level of insight into his offending. The risk of re-offending was assessed as low.
Sentencing of the appellant’s co-offenders
By the time the appellant was sentenced, both his co-offenders, Mr Prest and Mr Kennedy, had been sentenced in the High Court and those sentences were taken into account by Judge Rollo. Given that disparity is an issue, it is helpful to provide a context for the appellant’s sentencing by first referring to the sentencing of his co-offenders.
Mr Prest
Mr Prest had pleaded guilty to the two Auckland charges involving Enterprise Drive and the National Mini Storage facility. In addition, he had pleaded guilty to cultivation and possession for supply at two other locations that did not involve the appellant or Mr Kennedy. Winkelmann J described the offending at these other two locations as “commercial (although not large commercial) cultivations”
At the time of sentencing Mr Prest was 41 years of age. An unrelated previous conviction was disregarded by Winkelmann J. The probation officer’s report indicated that Mr Prest suffered from bi-polar disorder, there was a low risk of re-offending, and that he had significant insight into his offending.
Adopting the cultivation of cannabis at Enterprise Drive as the lead offence Winkelmann J started at six years imprisonment, and then applied an uplift of one year to reflect Mr Prest’s personal offending at the two addresses which she repeated was “at a commercial level”. Having reached a notional sentence of seven years imprisonment Winkelmann J then applied a 25 per cent discount for Mr Prest’s guilty plea and a further 35 per cent (making a total discount of 60 per cent) for “other matters which have been raised with me by the Crown”. The end sentence was two years, eight months imprisonment.
Mr Kennedy
Mr Kennedy had pleaded guilty to both the Enterprise Road and National Mini Storage offending.
At the time of the sentencing he was 27 years of age. It appears that he did not have any previous convictions. The prospect of re-offending was considered to be low.
Harrison J adopted Winkelmann J’s starting point of six years for the Enterprise Road offending. There were no uplifts. On the mitigating side the Judge noted that the appellant had pleaded guilty, was hard working and well thought of by his friends and employers, and was under the influence of “others”. Taking those factors into account Harrison J deducted two and a half years (approximately 41 per cent) for mitigating factors without giving any indication as to the split between the guilty plea and other factors. The end result was a sentence of three and a half years imprisonment.
Sentencing of the appellant
Having indicated that he would adopt the approach of the High Court Judges in relation to the Auckland offending, Judge Rollo said:
[7] There is, however, a difference, as Ms Booth [for the Crown] has pointed out. Both High Court Judges took a starting point, for the Auckland offending, of six years’ imprisonment, seeing the extensive commercial cultivation in the premises at 60 Enterprise Drive, Henderson, as the lead offence. Winkelmann J gave an uplift of one year for other Auckland offending by Mr Prest.
[8] In your instance, as Ms Booth has satisfied me, you also have alternative offending at the 8 Preston Avenue, Henderson address, which shows greater culpability than that of Mr Preset for his other Auckland offending, referred to by Winkelmann J. In your case, it seems appropriate to me to reflect that greater culpability, with an uplift for that further Auckland offending of 18 months’ imprisonment. That would take your offending in the Auckland indictment to a high point of seven and a half years’ imprisonment. That is to be compared with seven years for Prest and six years for Kennedy, who did not share the same totality of offending in Auckland.
Given the uplift of 12 months for Mr Prest, the appellant contends that there was no justification for an uplift of 18 months in his case.
Turning to the uplift that should be applied for the Tauranga offending, the Judge decided:
[12] ... This was serious additional offending involving a substantial amount of cannabis plants, leaf and sales, which you admit. I consider an uplift of four years is warranted, particularly placing considerable emphasis on the fact that whilst you were subject to very serious drug offences, you have come to Tauranga and offended in exactly the same way whilst on bail. That would leave a top point for the totality of your offending of 11 and a half years.
[13] Ms Booth submits that a totality approach then must be adopted, which properly should reduce the starting point, before discount, down to nine to nine and a half years. I agree. I adopt the figure of nine years for totality, which is a reduction of two and a half years from the top point. That is to be compared with top points for your co-offenders of seven years for Mr Prest and six years for Mr Kennedy. They of course do not have the further offending in Tauranga committed whilst on bail and the additional Auckland offence, contained in count 1 of the Tauranga indictment.
It is the appellant’s case that the reduced starting point of nine and a half years was still too high.
Finally the Judge considered mitigating factors. Having noted that the appellant’s plea was “not at the earliest time”, he allowed a 25 per cent discount and arrived at six years, nine months imprisonment. A further nine months was deducted for personal circumstances. The end sentence was six years imprisonment.
The appellant’s argument in more detail
There is no challenge to the six year starting point. But, as already mentioned, the appellant contends the uplift of 18 months for the appellant’s personal offending was incompatible with the uplift for Mr Prest’s personal offending. Mr Holmes emphasised that in this respect Judge Rollo had not explained why the culpability of the appellant was greater than the culpability of Mr Prest. He argued that the uplift should not have been any more than one year.
The second main plank of the appeal is that the additional uplift of four years for the subsequent offending in Tauranga was excessive. Mr Holmes noted that an uplift of four years effectively placed the offending in category 3 of R v Terewi.[2]Rather than imposing a cumulative sentence, he submitted, the Judge should have imposed concurrent sentences because the offences were similar in kind.
[2] R v Terewi (1999) 3 NZLR 62 (CA).
Mr Holmes then argued that the sentence imposed was wholly out of proportion to the gravity of the offending and that the total sentence offended the totality principle. Amongst other things, this reflected the cumulative approach that had been erroneously adopted by the Judge.
Finally, counsel argued that the sentencing Judge had placed inadequate weight on mitigating factors. A “very substantial discount” should have been allowed for the early guilty pleas, co-operation with the authorities, previous good character, and remorse. The end sentence was incompatible with those imposed on the appellant’s co-offenders. It should not have been more than four years imprisonment.
Discussion
An appeal against sentence focuses on the end result rather than the path by which it was reached. This is especially important in the case of multiple offending where the ultimate issue is whether the total sentence reflects the overall criminality of the offending and the offender: See R v Xie.[3] Given that situation we can respond to most of the issues raised by the appellant relatively briefly.
[3] R v Xie [2007] 2 NZLR 240 (CA) at [17] and [18].
First, although the Judge was correct to impose an uplift for the Auckland offending relating to the Preston Avenue operation, which did not involve the appellant's Auckland co-offenders, we consider the 18 month uplift was too high given the summary of facts. However, that reflects the path by which the sentence was reached and we do not regard it as a critical issue.
Secondly, we do not accept that the Judge erred by approaching the matter on the basis that the Tauranga offending justified a cumulative sentence. While this offending might have been similar in kind to the Auckland offending, it constitutes separate offending in terms of time and place. The Judge’s approach accorded with s 84 of the Sentencing Act 2002 and a cumulative sentence was entirely justified, especially taking into account that the Tauranga offending was committed while the appellant was on bail for the Auckland offending.
Thirdly, although the Judge made his adjustment for totality (11 and a half years down to nine years) part way through the sentencing process, the orthodox approach is to make any adjustment that might be required on account of totality at the end of the process. We will therefore return to the issue of totality with reference to the sentence finally imposed in the District Court.
Fourthly, we consider that the discount applied by the Judge was within the range available to him. Apart from the 25 per cent for the guilty plea, the Judge gave a further nine months (12 per cent) for personal circumstances. Thus, the overall discount of 37 per cent was relatively close to the discount received by Mr Kennedy. And the very substantial discount of 60 per cent for Mr Prest reflected matters that had been raised by the Crown which did not feature in the appellant’s sentencing. We are therefore satisfied that there is no disparity with the discounts given to the appellant’s co-offenders.
Finally, we accept that the Judge’s reference to count 5 also being cumulative on the four years for the Auckland offending was a slip of the tongue. We will correct that error in due course.
Now we return to the critical issue whether the total sentence of six years imprisonment reflects the overall criminality of the offending and the offender. While we accept that this was serious offending, we have been persuaded that the sentence of six years imprisonment was manifestly excessive. To some extent this might reflect the unduly harsh approach the Judge took to the appellant’s personal offending in Auckland.
In our view the uplifted starting point for the Auckland offending should not have been greater than seven years and we consider three years was sufficient for the Tauranga offending. We would allow about 15 per cent for the personal factors referred to earlier and would adopt the Judge’s 25 per cent for the guilty pleas. We would then adjust the end result to five and a half years imprisonment to ensure that the end sentence fairly reflects the totality of the appellant’s offending.
Result
The appeal against the overall sentence of six years imprisonment is allowed. That sentence is quashed and replaced with an overall sentence of five and a half years imprisonment.
This will be achieved by quashing all the sentences on the Tauranga charges and replacing them with concurrent sentences of 18 months imprisonment on counts 1-5 and one years imprisonment on count 6. The sentence of 18 months imprisonment will, however, be cumulative on the sentence of four years imprisonment for the Auckland offending.
Solicitors:
Crown Law Office, Wellington for Respondent
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