Lord v R
[2012] NZCA 276
•26 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA654/2011 [2012] NZCA 276 |
| BETWEEN HILO LORD |
| AND THE QUEEN |
| Hearing: 12 June 2012 |
| Court: White, Rodney Hansen and Fogarty JJ |
| Counsel: H S Edward for Appellant |
| Judgment: 26 June 2012 at 3.00pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
The appellant, Mr Hilo Lord, pleaded guilty on 18 July 2011, to six offences against the Misuse of Drugs Act 1975:
(a)four charges of selling a Class C controlled drug, cannabis, contrary to s 6(1)(e); and
(b)two charges of possessing cannabis for supply, contrary to s 6(1)(f).
On 15 September 2011 he was sentenced in the District Court to two years two months’ imprisonment. He now appeals that sentence.
The ground of appeal is that the sentencing Judge erred in taking as a starting point of two years nine months when in “similar cases” the starting point range was between two years and two years six months.
Offending
During November and December 2010 the police mounted a special operation that was code-named “Strike”. The operation stemmed from continuing concerns expressed by members of the Rotorua community about the sale and supply of illicit drugs. A number of undercover police officers were tasked with visiting various addresses within the area where they would attempt to purchase controlled drugs.
The appellant sold cannabis on a total of four occasions over a nine week period. Three times the sale was to an undercover police officer and the fourth to a member of the public. The sales were for small amounts of cannabis. The appellant was selling small snap-lock bags known as “baggies” containing approximately one gram of cannabis, which is sufficient for two cannabis cigarettes. The first sale was for one bag. The second sale, the next day, was for another bag. The third sale was for a single bag. The fourth sale was identified when the police stopped a vehicle leaving the appellant’s address and the driver was found in possession of three cannabis baggies which he had just purchased.
Relevant law
It was common ground that the leading decision guiding sentencing is the decision of this Court in R v Terewi.[1] It was also common ground that the offending could be described as “small scale commercial” and fell to be determined within category 2 as defined in Terewi as follows:[2]
Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
[1] R v Terewi [1999] 3 NZLR 62 (CA).
[2] At [4].
Mr Edward, for the appellant in this Court, relied on six cannabis sentencing decisions, all of which had a starting point of less than two years nine months.
R v Hauparoa[3] involved a sale of six tinnies over a month to undercover police. The Court adopted a Crown submission that the proper starting point was two and a half years. The offender had no previous convictions, was 60 years of age and was regularly using cannabis to try and limit the pain from an injury. As a result he had been pushed into low-level drug dealing.
[3] R v Hauparoa HC New Plymouth CRI-2008-043-3111, 16 December 2008.
R v Harris[4] involved three counts of selling cannabis, which had been discovered in an undercover police operation where two police officers purchased two tinnies each on the same day. The offender also admitted that he was regularly selling cannabis. The Court took a starting point of two years’ imprisonment.
[4] R v Harris HC Whangarei CRI-2008-088-4127, 19 February 2009.
In R v Heremaia[5] there was a plea of guilty to two counts of selling cannabis to an undercover police officer on two occasions approximately one month apart. A starting point of two years was adopted.
[5] R v Heremaia HC Whangarei CRI-2008-088-4116, 25 March 2009.
The next case, R v Hohepa[6] involved three charges of selling cannabis and one charge of offering to sell two cannabis cigarettes. The cannabis had been discovered in an undercover police operation in Taranaki. A starting point of two years’ imprisonment was adopted.
[6] R v Hohepa HC New Plymouth CRI-2008-021-1155, 15 December 2008.
In R v Roberts and Tautari[7] the defendants were charged with counts of selling cannabis and possession of cannabis for supply. The context was trade from a tinnie house. Ms Tautari sold four cannabis tinnies to an undercover officer, who noticed she had a bag containing 10–14 tinnies. Mr Roberts sold two tinnies and a search of his address revealed a further 18 tinnies ready for sale. Two and a half years was the starting point for each defendant.
[7] R v Roberts and Tautari HC Whangarei CRI-2008-088-4129, 16 July 2009.
In R v Franklin[8] the Police found tinnies in the home of two brothers who admitted that they were for sale. A starting point of two years was adopted.
Reasons of Judge McGuire on sentencing
[8] R v Franklin HC Whangarei CRI-2008-088-5973, 13 July 2009.
Having set out the material facts of the offending already recorded in this judgment,[9] the Judge turned to the pre-sentence report, noting that: the appellant was 25 years old and was employed as a seasonal worker interspersed with being on an invalid’s benefit and an unemployment benefit;[10] he was a regular smoker of cannabis;[11] he was living in the drug culture and did not display any motivation to make changes;[12] and he had a record of breaches of home detention making him an unsuitable candidate for such sentences.[13] The Judge also noted that it was hard to figure out whether the appellant’s lack of interest in making his life better was due to a poor educational background, lack of ambition or simply due to the fact that he was doing drugs on a daily basis, so he had no interest in thinking about changing or energy to do so.[14]
[9] R v Lord DC Rotorua CRI-2011-063583, 15 September 2011 at [2]–[6].
[10] At [8]–[9].
[11] At [9].
[12] At [10].
[13] At [10].
[14] At [11].
The Judge then turned to the public interest, noting that the Bay of Plenty, including Rotorua, was the only region of the country where the use of cannabis was increasing.[15]
[15] At [12].
The Judge was unimpressed by the argument that only small amounts of cannabis were involved in the sales. He noted:[16]
… the experience that this Court has with tinnie houses is that these days it is rare, extremely rare, almost unheard of, when a tinnie house is raided, for there to be much cannabis found. What happens is that the tinnie house is supplied with cannabis on a very regular, often daily basis, or even more frequently than once a day. That is so when the police raid, they do not find a whole lot of cannabis, likewise with money.
[16] At [15].
For these reasons the Judge concluded:[17]
So I am a little uneasy at the proposition that this is at the lower end of category 2, to my mind it is closer to the middle, perhaps slightly on the lower side of the middle of category 2.
I conclude that the appropriate starting point in your case is a sentence of two years and nine months imprisonment.
[17] At [15]–[16].
The Judge then allowed a 20 per cent discount for the plea of guilty, reducing the sentence to two years two months.
Discussion
It is apparent from this analysis that the Judge has included in his assessment of the culpability of the offending the appellant’s drug lifestyle. The Judge has applied his mind to R v Terewi.[18]There is no indication that the Judge had the range of authorities presented in this Court placed before him.
[18] Above n 1.
On appeal the Crown cited R v Dean,[19] a case of conspiracy to sell cannabis, possession of cannabis for supply, and dealing in cannabis from two flats over a period of seven weeks. There were four purchases of cannabis, and the offender was found with 31 tinnies at his address. The Judge adopted a starting point of two years nine months’ to three years’ imprisonment.[20]
[19] R v Dean HC Auckland CRI-2010-004-21077, 13 May 2011.
[20] At [19].
Counsel for the appellant before Judge McGuire had submitted an appropriate starting point was between two years and two years six months. The Judge’s starting point was only three months above that range.
On this range of authorities the Judge could have taken a starting point of below two years nine months. But that does not mean that his starting point was beyond the available range. The Judge on these facts was entitled to place the offending in the lower middle band of category 2 in Terewi.
The end sentence of two years two months’ imprisonment cannot be described as excessive.
Mr Edward argued that one of the consequences of that sentence was that his client was not entitled to automatic release after serving half the period of imprisonment. To obtain that consequence the sentence would have to be less than two years. We are sure that Judge McGuire was well aware of the consequences of a sentence of two years two months in terms of the Parole Act 2002. It is commonplace for the sentencing issue to be whether the term of imprisonment should be less than two years. Generally parole consequences are irrelevant to sentencing. There is nothing in the circumstances of this offending warranting departure from that general principle.[21]
[21]R v Stockdale [1981] 2 NZLR 189 (CA) at 190–191; R v Mwai [1995] 3 NZLR 149 (CA) at 157; and R v Staynor CA31/96, 7 August 1996 at 5.
Mr Edward also noted his client has now served 16 months, from which we infer that the Parole Board has declined to release him. We do not consider that a decision of the Parole Board after sentencing is relevant on an appeal against the sentence.
We agree with the Crown’s submission that the starting point adopted by Judge McGuire was within the range available to him and that the end sentence was not manifestly excessive.
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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