May v Police

[2012] NZHC 1777

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-36 [2012] NZHC 1777

BETWEEN  WILLIAM ROY MAY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 July 2012

Counsel:         W W Lawson for Appellant

L L Owen for Respondent

Judgment:      19 July 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Lance Lawson, Rotorua

Crown Solicitor, Rotorua

MAY V NEW ZEALAND POLICE HC ROT CRI 2012-463-36 [19 July 2012]

The appeal

[1]      Mr  May appeals  against  an  effective  sentence  of  two  years  two  months imprisonment.  That sentence was imposed in the District Court at Rotorua on 22

June 2012.

[2]      Although the offending occurred in early 2011, Mr May pleaded guilty to the relevant offences at an early time.  Sentencing was deferred while other charges were resolved.  As it happens, while they were dealt with by the District Court Judge at the same time, they do not assume any significance in the issues before me today.

Facts

[3]      On 16 February 2011, police officers executed a search warrant at Mr May’s residential address.   He lived on the shores of Lake Rotoiti, at the hot pools site. That place is accessible only by boat.

[4]      A search of the basement area located two indoor cannabis growing areas. Each had lights with oscillating fans.  Both were in use.  In total, 41 cannabis plants were found; measuring between 12cm and 55cm in height.  They were of different maturities.   It is accepted that the growing arrangements were not particularly sophisticated.

[5]      A number of plants and pots were identified as having come into Mr May’s possession after a burglary had occurred at an address in Ngongotaha.   It is not suggested that Mr May was a party to the burglary; rather, as a result of receipt of text messages, Mr May was asked by a female associate to assume responsibility for growing the plants.   A chain-saw was also purchased by Mr May, that had been stolen in the course of the burglary.

[6]      Mr May was a heavy cannabis user.   Quantities of cannabis material were found at Mr May’s home.  They were located under the house, in a kitchen cabinet and in the master bedroom.  Utensils for the cultivation and consumption of cannabis

were also located. A sum of $7,400 in cash was located in a bucket under the house, wrapped in a way which suggested that it might be connected with the sale of cannabis.

Sentencing in the District Court

[7]      Mr May was sentenced by Judge Weir.   After reciting relevant facts, the Judge discussed the commerciality of the arrangement as a prelude to considering an appropriate starting point on the lead charge of cultivating cannabis.  Sentencing on that charge must proceed in accordance with the guidelines set out in R v Terewi.[1]

[1] R v Terewi [1999] 3 NZLR 62 (CA), at para [4].

[8]      One aspect of the Judge’s assessment of commerciality assumes importance. It relates to the location of the sum of $7,400 in cash.  An attempt had been made, through an affidavit filed by a third party, to explain that at least $7,000 of that sum had been paid to Mr May as consideration for a boat.

[9]      While it is clear that the Crown disputed the veracity of the affidavit evidence at sentencing, it was not at any time put to Mr May through his counsel, what weight that would be attached to the disputed fact if it went against Mr May’s interests and was regarded as detrimental and material to the sentence to be imposed.[2]   Despite Judge Weir’s view that the evidence was implausible, it is unnecessary for me to resolve the issue today.

[2] Sentencing Act 2002, s 24(2)(a).

[10]   Judge Weir concluded that the amount of cannabis located was “quite significant” and that the method of operation “whilst unsophisticated, indicates an intent that it be an ongoing operation”.   He referred also to “evidence of the previously harvested cannabis plant material at the address”.[3]

[3] Police v May DC Rotorua CRI 2011-063-1848, 22 June 2012, at para [8].

[11]     The Judge took a starting point of two years and three months imprisonment on the cultivation charge.   That starting point was increased by a period of six months, to reflect aggravating factors.   Those factors related to Mr May’s prior

criminal record.  Mr May had previous convictions for similar offending.

[12]     The Judge gave a credit of nine months imprisonment “to take account of Mr May’s pleas of guilty and all of the factors that have been referred to in terms of remorse and the rehabilitative steps that had undertaken to address Mr May’s drug addiction”.[4]    On that basis an end sentence of two years imprisonment would have been imposed.

[4] Police v May DC Rotorua CRI 2011-063-1848, 22 June 2012, at para [20].

[13]     Nevertheless,  Judge  Weir  treated  the  receiving  offence  as  distinct  and requiring a cumulative sentence.  That general approach, subject to application of the totality principle,[5] falls within the scope of circumstances in which cumulative sentences may properly be imposed.   Section 84(1) of the Sentencing Act 2002 provides:

[5] Sentencing Act 2002, s 85(2).

84Guidance  on  use  of  cumulative  and  concurrent  sentences  of imprisonment

(1)       Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

....

[14]     On the receiving charge, two months imprisonment was imposed; making an end sentence of two years two months imprisonment.

Submissions

[15]     For Mr May, Mr Lawson has submitted that the starting point taken by the Judge was too high, an excessive uplift was used for previous convictions and an insufficient credit given for personal mitigating factors.  Mr Lawson was concerned about comments that tend to permeate the District Court Judge’s sentencing remarks in which the veracity of Mr May was consistently put in question.

[16]     Ms Owen, for the Crown, supported the Judge’s calculation of sentence, and

the reasons given for arriving at the end sentence.  She submitted that a sentence of two years and two months imprisonment was not manifestly excessive.

Analysis

(a)      The sentence of imprisonment

[17]     I deal with the points raised by Mr Lawson in the order in which I referred to them earlier.

[18]     First, I refer to his criticism of the starting point for sentence.  Based on the assumption that the money was the proceeds of a cannabis dealing operation, it could have been argued that the starting point was too low.  But, there was no suggestion that Mr May was involved in dealing.  There was disputed evidence that was not put to Mr May to provide an opportunity for the witness to be cross-examined.  Given the other circumstances that arose, the starting point that was fixed at the lower end of the applicable scale identified in Terewi cannot be gainsaid.   I do not consider there is any merit in the criticism of the starting point taken.

[19]     I take a different view in relation to both the uplift for previous convictions and the credits for rehabilitative efforts and remorse.  I do not, on the information available to me, take the same view of Mr May’s veracity as was taken by the Judge. I am in just as good a position to assess the information before me.  No witnesses were cross-examined before the Judge.  What follows is an assessment based upon my own evaluation of the relevant material.

[20]     The cannabis related convictions were historical in nature.   Mr May had convictions of that type during the period between 2000 and 2003.  While there were other convictions after that time, they would not, in my view, be sufficiently connected to the principal charges on which the sentence was imposed to justify any significant uplift.  Given the historical nature of the cannabis related convictions, I assess the relevant uplift as three months imprisonment, as opposed to the period of six months imprisonment taken by the Judge.  There is a real risk that Mr May might suffer a double penalty for some of his earlier convictions were the uplift put at any higher level.

[21]     In  relation  to  credits,  I  consider  that  the  remorse  expressed  and  the rehabilitative efforts undertaken are both consistent with a degree of good faith on the part of Mr May.  In relation to his efforts at rehabilitation, it is clear that they have been prompted by what occurred when he was arrested but I cannot see any reason to penalise him for that fact.  In my view, two months’ credit should be given for remorse and rehabilitation which, having taken into account the starting point and uplift, would leave a provisional sentence at this stage of two years and four months’ imprisonment.

[22]     It is then necessary to bring the guilty pleas to account.  Applying the usual credit from Hessell v R[6], I allow a period of seven months, based on a 25% credit. That brings the sentence on the cultivation charge down to one year nine months’ imprisonment.

[6] Hessell v R [2011] 1 NZLR 607 (SC) at para [75].

[23]     I have already indicated that the imposition of a cumulative sentence in respect of the receiving charge was unexceptional.   Adding the sentence of two months’ imprisonment,  an  end  sentence  of  one  year  11  months’ imprisonment results.

[24]     That is a sufficient difference, in my view, to hold that the sentence was clearly excessive.  It is necessary then to consider whether the sentence can properly be commuted to one of home detention.

(b)      Home detention

[25]     While the Judge expressed some views on the issue of home detention, they were not made in the context of a decision whether or not to commute the sentence otherwise to be imposed.  For that reason, I prefer to carry out my own assessment, rather than to treat the appeal as one against the exercise of the Judge’s discretion.

[26]     The power to impose a sentence of home detention arises out of s 15A of the

Sentencing Act 2002.  The prerequisites set out in s 15A(1) are met.  The issue is whether it was necessary for the Court to impose a sentence of imprisonment to meet

the sentencing goals to which s 16(2)(a) of the Sentencing Act refers.  Those goals (set out in s 7(1) of the Act) are holding the offender accountable for the harm done to the community by the offending, promotion of a sense of responsibility for and acknowledgement of that harm, denunciation of the conduct in which the offender was involved, deterrence to prevent the offender and others from committing the same or similar offences and to protect the community from the offender.

[27]     Section 16 also requires the Court to satisfy itself that no other sentence would be consistent with the application of the principles set out in s 8 of the Act. For present purposes, the most important of those principles is the need to impose the least restrictive outcome, having regard to the hierarchy of sentences set out in s 10A(2) of the Act.[7]

[7] Sentencing Act 2002, s 8(g).

[28]     In my view, the sentence of imprisonment is not necessary.  The sentencing goals to which I have referred can be met adequately through a lengthy sentence of home detention.   Ordinarily, I would have imposed a term of 12 months home detention.   However, to reflect the fact that Mr May has already spent time in custody, that will be reduced to a term of 10 months.

[29]     I also consider that it is necessary to impose a special condition requiring Mr May to undertake any programme in relation to his drug addiction that may be required by a probation officer.   I am satisfied that such a condition is necessary because of the significant risk of further offending, standard conditions alone would not adequately reduce that risk and the special condition I impose would have the

effect of reducing the risk of such further offending.[8]

Result

[8] Ibid, s 80D(2).

[30]     The  appeal  is  allowed.     The  sentence  of  two  years  and  two  months imprisonment is set aside.

[31]     In lieu thereof, on each of the relevant charges, Mr May is sentenced to a term of home detention of 10 months.   He shall reside at 344 State Highway 33, Mourea for the duration of the sentence.  He shall comply with the requirements of electronic monitoring as directed by a probation officer.  Mr May shall undertake any programme in relation to his drug addiction as may be required by a probation officer.  He shall not possess or consume alcohol or illicit drugs for the duration of the sentence.  Otherwise, standard conditions of home detention apply.

[32]     Given the hour, I direct that the sentence of home detention commence from

10am tomorrow.  Mr May shall be released from Waikeria Prison at that time.  He shall travel directly to the home detention address and meet, at an agreed time, tomorrow with a probation officer who can make arrangements for the sentence to be

commenced.

P R Heath J