McConnel v R

[2013] NZCA 303

IN THE COURT OF APPEAL OF NEW ZEALAND

CA329/2013
[2013] NZCA 303

BETWEEN	CATHERINE MCCONNEL Appellant
AND	THE QUEEN Respondent

Hearing:	11 July 2013
Court:	Stevens, Heath and Cooper JJ
Counsel:	B Meyer for Appellant D G Johnstone and W N Fotherby for Respondent
Judgment:	16 July 2013 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

1. Ms McConnel appeals against a sentence imposed by Judge Collins, in the District Court at Auckland, on 3 May 2013.  She was sentenced to a term of one year and 11 months imprisonment on one charge of possessing the Class C controlled drug cannabis plant for supply, and one of selling cannabis plant to an undercover police officer.[1] 

   [1]R v McConnel DC Auckland CRI-2012-004-10250, 3 May 2013 [Sentencing notes].

2. The appeal is advanced on the ground that the sentencing Judge erred in imposing imprisonment, as opposed to home detention.

Background facts

1. In May 2012, a Police operation began designed to target the sale of both cannabis plant and tinnies at street level.  At about 4.36 pm on 15 May 2012, a police officer (using an assumed name) went to an address in Grey Lynn.  He spoke to Ms McConnel, who was behind a steel security gate.

2. After Ms McConnel introduced herself, the constable asked if he could purchase two cannabis tinnies from her.  She agreed.  The tinnies were handed over, at a price of $40. 

3. Some days later, police officers executed a search warrant at Ms McConnel’s address.  During the search nine tinnies were found in her bedroom. 

Personal factors

1. At the time of sentence Ms McConnel was aged 32 years.  She has six previous convictions for drug related offending, the last one of a similar nature being in April 2005 for possession of a cannabis plant for supply. 

2. In an interview with a probation officer, Ms McConnel was recorded as having “expressed minimal regret for her current offending and presented as a person with limited insight into her drug use and illegal lifestyle”.  The probation officer also recorded that Ms McConnel had said “I was bored” and needed “something to do”, as an explanation for her offending.  The accuracy of those comments was put in issue at the sentencing hearing in the District Court, and before us.

3. Notwithstanding those comments, the probation officer recommended a sentence combining supervision, community detention and community work.  The report indicated that Ms McConnel had a history of drug abuse and accepted that she would need to attend a Community Alcohol and Drug Services assessment and programmes.  The probation officer said:

   Community detention is recommended as a punitive sentence.  Supervision (9 months) is recommended, this will enable Community Probation Service to oversee and support her through her rehabilitative process.  Community work is recommended as a reparative (sic) sentence to the community.

4. Ms McConnel’s criminal history included a failure to answer District Court bail (2012) and two occasions when she had breached community work (2005 and 2006).

Sentencing in the District Court

1. Judge Collins described Ms McConnel’s offending as “brazen”.[2]  He pointed to her willingness to sell to a stranger, without first attempting to develop any degree of trust.  The Judge also took account of the fact that Ms McConnel was “quite happy to take the risk and take it for commercial gain”.  The Judge characterised her offending as “part of a retail cannabis plant dealing operation”.[3]  The fact that she was selling cannabis from her home was also relevant to sentencing. 

   [2]Sentencing notes at [3].

   [3]Ibid.

2. Judge Collins applied the sentencing guideline judgment of this Court in R v Terewi.[4]  He regarded the offending as “commercial” in nature, thereby requiring a starting point of between two and four years imprisonment. 

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

3. The Judge took a starting point of two years.  That was uplifted for the two previous convictions for possession of cannabis plant for supply.  An uplift of four months was used.  The Judge regarded the guilty plea as the only mitigating factor.  Because of its timing, a credit of 15 per cent was given, rounded to five months.  That left an end sentence of one year and 11 months imprisonment.  That sentence is not, itself, challenged as being clearly excessive.

4. The next step was for the sentencing Judge to consider whether to commute the sentence to one of home detention.  The principles on the circumstances in which that might occur were articulated by this Court in Doolan v R.[5]  Delivering the judgment of the Court in that case, Stevens J said:

   [38]      ... In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.

   [39]     In terms of appellate review of such sentencing decisions, the court on appeal must focus, as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision.

   (Footnote omitted.)

Analysis

[5]Doolan v R [2011] NZCA 542. As to the approach of this Court see also Manikpersadh v R [2011] NZCA 452 and Bryant v R [2011] NZCA 512.

1. It is necessary to assess the correctness or otherwise of the sentencing Judge’s decision not to impose home detention on the basis that it represents an exercise of a discretion.  His reasons were:

   [9]       In the pre-sentence report the pre-sentence writer observes that you expressed minimal regret for your current offending, and presented as a person with limited insight into your drug use and illegal lifestyle.  You told the pre-sentence report writer that you offended because you were bored and needed something to do.

   [10]     I know that Mr Meyer takes issue with that but that is how you presented to the report writer, and they are the comments that you made.  I have to say that that is consistent with your list of previous convictions.

   [11]     Also relevant to the question of whether or not you be granted an electronically monitored sentence is that this offending occurred from your home, and that counts very much against it.  Also you have two convictions for two breaches of community work one in 2005 and one in 2006.  You have also convictions for breaching bail and other Court orders.  You also, as I have noted with counsel, have two previous convictions for what are defined or deemed to be drug dealing offences.

   [12]     Ms [McConnel] I have come to the view that you have been treated very leniently in the past, and you somehow think that that is a right of passage and you are entitled to offend and to be treated leniently and to be released back into the community.  Well, all of the principles and purposes of sentencing are at play here but most importantly is the need to deter you and to protect the community.  Whether you agree or whether a number of people in the community agree that cannabis causes harm, I am not particularly concerned with those contrary views.  Parliament has said it is illegal, and you have only had to be in the work that I have been in for the last 25 years to see the damage it does.  It is always I feel somewhat ironic that someone can stand before a Court for dealing in drugs and then claim their own addiction as a reason for being treated leniently with the suggestion that they were not doing any harm.

   [13]     So Ms [McConnel] for those reasons and the fact of your previous convictions, the fact of selling from home, and the fact that I see little or no remorse on your behalf I am not satisfied that you have any real interest in rehabilitation.  It is my view that home detention is inappropriate and the least restrictive outcome in your case is one of imprisonment.  So on that basis you will be sentenced to 23 months’ imprisonment and that is the sentence I pass now.

2. In oral submissions, Mr Meyer put his attack on the sentence on the basis that the Judge had given too much weight to what he regarded as an absence of remorse and a general unwillingness to undertake rehabilitative programmes; particularly when those aspects of the probation officer’s report were in issue.  The answer to that submission is one made by Mr Fotherby for the Crown.  The weight a Judge attaches to a particular factor is not a basis to challenge the exercise of a discretion.

3. We can discern no error of principle in the Judge’s approach.  The issue was one of weight, for the sentencing Judge’s evaluation.  The Judge did not fail to take account of any relevant factors.  Nor did he take account of any irrelevant ones.  In any event we are satisfied that the sentence was one that the Judge was entitled to impose, having regard to the factors to which he referred: in particular, prior breaches of bail and community based sentences, the fact that the offending took place in the home, and the apparent lack of remorse and real interest in taking rehabilitative steps arising from previous conduct, as well as what was reported to the probation officer.[6]

Result

[6]Sentencing notes at [10]–[13], set out at [14] above.

1. For those reasons, the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent