M v Police HC Dunedin Cri-2007-412-13

[2007] NZHC 1795

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2007-412-000013

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 June 2007

Counsel:        S L Cole for Appellant

C E R Power for Respondent

Judgment:      6 June 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      The  appellant  was  charged  with  two  offences.     The  first  was  one  of conspiracy to supply ecstasy between April and May 2006.  The second was a charge of supplying the same drug on 12 April 2006.  The appellant entered pleas of guilty to both charges on request and prior to the occurrence of a preliminary hearing.

[2]      He appeared in the District Court on 2 May 2007 when Judge O’Driscoll imposed a sentence of 16 months imprisonment and declined leave to  apply for

home detention.  This appeal is directed to the latter aspect, the declining of leave.

M V NZ POLICE HC DUN CRI-2007-412-000013  6 June 2007

[3]      The present charges arose in the context of a larger police operation which included the obtaining of interception warrants in relation to both text messages and telephone conversations.  One of the principal targets of the police operation was a man whom I shall refer to as Paterson.

[4]      With reference to the substantive charge of supplying ecstasy on 12 April, the background  was quite  straight-forward.    Mr M    had  acquired  a  quantity of ecstasy and he was asked by Paterson whether he could supply him with seven tabs of the drug.   The obvious inference to be drawn is that Paterson was the initial supplier and that he borrowed back seven tabs of the drug by way of loan and on the basis that they would be replaced when Paterson was in a position to do so.

[5]      The circumstances of the conspiracy charge, however, are somewhat more elusive.   The gist of the Crown case reflected a number of contacts which had occurred between these  same two  men  in the  period  April to  May 2006.    The contacts typically took the form of requests by Mr M   for the supply of drugs to himself.   For example, on one occasion he referred to a big weekend which was coming up and that he would have a number of people who were needing drugs. Whether those conversations were consummated in the sense that actual supplies occurred and whether there were then on-sales is, to a degree, problematic.  At least there was no direct evidence as to what followed the intercepted conversations and text messages.

[6]      That is the position if one has regard only to a summary of facts which I will refer to as the short form summary.   In the course of argument  this morning it became apparent that two summaries of fact were prepared in this case.  The longer form summary, which ran to three rather than two pages, was certainly annexed to the Crown memorandum which was  filed  for the purposes of sentencing  in the District Court.  It contained some important additional material.  For example, with reference  to  13  April,  there  was  reference  to  a  payment  of  $1,600  made  by Mr M   to Mr Paterson in exchange for 38 tablets of ecstasy.  This information and other information did not appear in the short form version of the summary of facts.

[7]      There  was  some  considerable  debate  in  the  course  of  submissions  this morning as to which summary was the correct one and as to which summary had accompanied the entry of the pleas  of guilty.    However,  in  the  end  result,  the conclusion was reached that whichever summary was the correct one was perhaps of limited relevance.

[8]      Reading Judge O’Driscoll’s sentencing remarks as a whole it is apparent that Mr M   was sentenced on the basis that he was a dealer in ecstasy at street level. There was no express finding to that effect.   However, the cases which the Judge referred to by way of comparison, and the sentencing method which he adopted, all point clearly to the conclusion that he regarded this as a case of street level drug dealing.  The Judge adopted a starting-point of two years imprisonment.  He made an allowance of eight months for the prompt pleas of guilty and hence arrived at the end sentence of 16 months which was ultimately imposed.

[9]      Importantly,   there   is   no   appeal  against   the   sentence   of  16   months imprisonment.  It is largely for that reason that I am not troubled by the difficulties which surround the summary of facts in this case.

[10]     However, the conclusion which the Judge obviously reached that Mr M   was dealing in drugs is, in my view, an important one in relation to the issue which is before me, leave to apply for release to home detention.  It is one thing to grant leave to someone convicted of offending in relation to a class B drug where that drug is for personal consumption.    It  is  another  to  grant  leave  where  someone  is  a  dealer involved with the drug for commercial reasons.

[11]     In declining leave, Judge O’Driscoll said this:

[23]   As far as leave to apply for home detention is concerned I am not prepared to grant you leave to apply for home detention.  The reason is this, first there is a need for deterrence, secondly you have a previous conviction for possession for supply in 2003 which is a relatively short period of time before this offending.   Notwithstanding the sentence of imprisonment that was imposed and you being granted leave to apply for home detention in

2003 you have re-offended.   I accept that Mr Ross [the co-offender in the same police operation] was granted leave to apply for home detention and he had previous convictions.   However his last conviction for a drug offence where he was imprisoned was 1996, a gap of 11 years.

[24]   I am, as I have said, taking into account the nature and seriousness of the offending and your background and circumstances where you have continued to re-offend.  I am not prepared to grant leave to apply for home detention.

[12]     Mr Cole has advanced two arguments in support of his contention that the Judge exercised his discretion wrongly.  His first and major point was that the Judge failed to take into account information largely emanating from the appellant’s employer concerning both the availability of ongoing employment and the value which the appellant represents to his employer’s business.

[13]     His second argument was to the effect that declining leave in this case was out of line with the approach followed in other comparable cases, particularly some arising out of this same police operation.

[14]     The  appellant,  I  note,  is  aged  30  years.    He  has  a  number  of  previous convictions including some for dishonesty and some which are drug-related.   The most relevant of them is a conviction in April of 2003 for possession of cannabis for the purpose of supply.  It was this conviction which gave rise to the sentence referred to by Judge O’Driscoll, namely a sentence of eight months imprisonment with leave to apply for home detention.  It is apparent from the pre-sentence report that leave was indeed granted in that instance and that the appellant performed his obligations in a satisfactory manner.

[15]     The report also indicates that the appellant is in a steady relationship.  He has a partner and a child whom he supports.  There is also a good deal of material before me concerning his employment history over the last three to four years.  From this it is readily apparent  Mr  M    is  a  good  worker  and  highly  thought  of by  his employer who remains anxious to retain his services.   He works in what might be termed a foreman capacity, organising both work and other employees.  Hence it can be said that there are a number of positives in the pre-sentence report.

[16]     Did the Judge overlook the positive factors, in particular those relevant to the availability of ongoing employment?  I do not consider that he did.   The portion I have quoted from the sentencing remarks indicates that the Judge focused on the seriousness of the offending and the previous chance which the appellant enjoyed in

relation to a drug-dealing offence, where he was granted leave.  In light of that focus Judge O’Driscoll concluded that leave on this occasion was inappropriate.  The fact that he did not expressly avert to the employer and the availability of ongoing work in the context of his remarks about home detention, does not convey to me that he overlooked that aspect.   To the contrary, it is implicit in what he said that he had those aspects in mind but considered they were outweighed by the seriousness of the offending.

[17]     Is this case out of line with others where leave has been granted?  I do not propose to canvass some of the other cases which were referred to in argument. Indeed I am somewhat doubtful whether this line of argument is appropriate in the present context.  It is the case that where, for example a sentence of imprisonment has been imposed, which is so disproportionate to that in other like cases as to give rise to a legitimate sense of injustice capable of bringing the administration of justice into disrepute, that a sentence may have to be adjusted on that account.  Whether this reasoning is equally applicable with reference to the discretion to grant leave to apply for release to home detention may well be debatable.

[18]     But in any event I am not persuaded that the present case is out of line with any of the other cases to which reference has been made.  Indeed, this impresses me as  a  fairly  orthodox  exercise  of  the  discretion  where  the  Judge  concluded  the appellant was dealing in drugs and that the offending was at a level which precluded home detention as a realistic option.  He therefore declined leave and I can see no basis to differ from that view.

[19]     The appeal is dismissed.

Solicitors:

S L Cole Barrister, Dunedin for Appellant
Wilkinson Adams Lawyers, Dunedin for Respondent