McPadden v Police HC Hamilton CRI-2011-419-38
[2011] NZHC 649
•17 June 2011
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2011-419-38
BENJAMIN PETER MCPADDEN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 16 June 2011
(Heard at Hamilton)
Counsel: LJR Wilkins for Appellant
J O'Sullivan for Crown
Judgment: 17 June 2011 at 9:00 AM
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 17 June 2011 at 9:00 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
LJR Wilkins, Barrister, Hamilton
J O’Sullivan, Almao Douch, Hamilton ([email protected] )
MCPADDEN V NEW ZEALAND POLICE HC HAM CRI-2011-419-38 17 June 2011
Introduction
[1] On 19 April 2011, Judge JE Maze sentenced Benjamin Peter McPadden to a total of 10 months’ imprisonment, with standard and special conditions of release to extend for four months after the sentence expiry date, for the following offences:
(a) Possession of cannabis for supply; (b) Possession of cannabis;
(c) Theft of a licence plate; (d) Breach of bail;
(e) Breach of release conditions (four charges); (f) Breach of a community work sentence.
[2] Various sentences were imposed on each of the charges. On the charge of possession of cannabis for supply, Mr McPadden was sentenced to nine months’ imprisonment, plus the extended release conditions, and on one of the charges of breach of release conditions he was sentenced to a cumulative term of one month’s imprisonment. Terms of imprisonment imposed on the other charges were to be served concurrently.
[3] Although the appellant appears to have intended to appeal against all of the sentences, Mr Wilkins made it clear in his submissions that the only challenge was to the term of nine months’ imprisonment on the charge of possession of cannabis for supply.
The facts
[4] The circumstances of the appellant’s apprehension were that he was found in possession of a backpack containing 10 “tinnies” of cannabis leaf material with a total weight of approximately 10 grams. Also inside the backpack were a pair of
scissors, a large roll of tinfoil and $185 in cash. The appellant had $430 in cash in his wallet. He was serving a sentence of community work, and was on bail in relation to other charges, at the time of his arrest.
The District Court Judge’s approach
[5] The sentencing Judge accepted the submission that the offending was driven by the appellant’s drug addiction and said that it was “low end offending, hardly sophisticated.” The Judge referred to a somewhat negative pre-sentence report, which included a reference to the appellant’s previous convictions for drug offences. I note, however, that those offences were relatively minor and did not involve any element of dealing. Whereas the pre-sentence report characterised the appellant’s sentiments towards his apprehension as regret, and noted that the appellant had failed to express any remorse for his offending, the Judge took a more benevolent view in light of a letter written by the appellant and submissions made on his behalf. She noted expressions of remorse and an apparent determination to reform.
[6] Having regard to the fact that the charge of possessing cannabis for supply had been laid summarily, with the result that the maximum penalty which could be imposed by the District Court Judge was one of 12 months’ imprisonment,1 the Judge took a starting point of 10 months’ imprisonment.
[7] The Judge then added a further two months’ imprisonment, because the appellant had offended while on bail, bringing the sentence to 12 months, against which she then allowed a 25 per cent discount for the immediate pleas of guilty.
[8] The Judge accepted submissions about the prospect of the appellant’s reformation and rehabilitation, and imposed standard and special release conditions for an extended period with a view to assisting rehabilitation, including attendances at a Medium Intensity Rehabilitation Programme and completion of an appropriate
alcohol and drug programme. She declined leave to apply for substitution of the
1 Section 6(3), Misuse of Drugs Act 1975.
sentence of imprisonment by one of home detention. I understand from counsel that no suitable accommodation was available.
The basis for the appeal
[9] In support of the appeal against the imposition of nine months’ imprisonment on the cannabis dealing charge, Mr Wilkins argues that there was an inconsistency between the characterisation of the offending by the Judge as the “desperate addictions of a drug addict” and “low-end offending”, and her later description of it as being “towards the upper end of the scale.” Mr Wilkins also suggested that the Judge’s uplift of two months’ imprisonment, for the aggravating factor of the offence having been committed while on bail, was inappropriate and negated any discount for the guilty plea. He also argued that an inadequate discount was given for the appellant’s remorse and his desire to undertake substance abuse counselling.
[10] For these reasons, he says, the sentence of nine months’ imprisonment was manifestly excessive. Given that home detention was not an option, Mr Wilkins properly conceded that it is unnecessary to consider whether any alternative to imprisonment could have been imposed through applying the principles of ss 8(g) and 16(1) of the Sentencing Act 2002.
Discussion
[11] In my view, it is proper to categorise this offending as being within Category 2 in R v Terewi,2 which the Court of Appeal describes as encompassing small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. While the present case involves a dealing, rather than a cultivating, offence, the Courts have nevertheless adopted the Terewi approach to cases of possession for supply.3 The significance of the Terewi categories is that they rank the offending on a scale of commercial activity, with Category 3 being for
purely personal use; Category 2 involving small-scale commercial activity; and
2 R v Terewi [1999] 3 NZLR 62, at [4].
3 Kemp v Police, HC New Plymouth CRI-2008-443-6, 27 February 2008; Barker v Police HC Dunedin CRI-2010-412-11, 13 May 2010.
Category 1 involving large-scale commercial activity. These categories are equally applicable to dealing.
[12] The maximum penalty for cultivation of cannabis is a rather anomalous seven years’ imprisonment,4 compared to eight years’ imprisonment for possession of cannabis for supply;5 so there is no distortion in treating cultivation and dealing as analogous. The starting point for sentencing on Category 2 offending was said by the Court of Appeal in Terewi to be between two and four years’ imprisonment.6
[13] It appears that the Judge may have erred in assuming that, for sentencing purposes, the starting point to be taken was limited by the District Court’s sentencing jurisdiction of 12 months’ imprisonment. It has been made clear, however, in cases such as Carseldine v Police,7 Lambess v Police8 and Tahiti v Police,9 that the limitation on the sentencing jurisdiction of a District Court Judge in s 6(3)10 does not
call for any departure from ordinary sentencing principles. As the Court said in
Cameron v Police:11
... s 6(3) does not require or invite a departure from ordinary sentencing regimes. It simply sets a jurisdictional ceiling. If, after considering the appropriate penalty for the case, according to all the usual criteria and principles as appropriate to the particular circumstances, the Judge considers that in the final result the penalty on a particular charge must exceed imprisonment for more than one year, then the matter should be referred to this Court; but, if not, then the District Court may deal with it.
[14] I accept the submission for the Crown that, in this case, the offending could be described at the lower end of Terewi Category 2. Ms O’Sullivan submitted this made the appellant susceptible to a starting point of around two years’ to two years three months’ imprisonment, but I consider the overall circumstances, including the likelihood that the appellant was dealing primarily to support his own heavy use of
cannabis and methamphetamine, to justify a starting point of 20 months.
4 Section 9(2) Misuse of Drugs Act 1975.
5 Section 6(2)(c) Misuse of Drugs Act 1975.
6 At [4].
7 Carseldine v Police HC Hamilton CRI-2005-419-88, 2 August 2005.
8 Lambess v Police HC Hamilton CRI-2008-419-88, 26 November 2008.
9 Tahiti v Police HC Auckland CRI-2010-404-330, 4 November 2010.
10 Misuse of Drugs Act 1975.11 Cameron v Police HC Wellington AP17/03, 18 March 2003 at [5].
[15] I consider the Judge was entitled to regard the fact that the appellant was serving a community work sentence and was on bail at the time of the offending to be aggravating features, and the addition of two months’ imprisonment on that basis was open to her.
[16] On an appeal against sentence, the High Court may quash or vary a sentence that is “clearly excessive”.12 It is not necessary that this Court should agree with the exact route taken by the District Court to reach an appropriate sentence.
[17] Taking a starting point of 20 months’ imprisonment, and adding two months for the aggravating features, the appellant was liable to imprisonment for a period of around 22 months. Applying a guilty plea discount of 25 per cent would bring the sentence down to around 17 months. Using this approach, the appellant has ended up being treated in a manner which might be seen as generous. It cannot reasonably be said to have been manifestly excessive.
[18] While the appellant may not see it in these terms, it is strongly arguable that the period of enforced separation from his drug-infested lifestyle, followed by several months of supervision and rehabilitative intervention, provides him with a far better prospect of reform than if the Judge had decided not to imprison him.
[19] The appeal is dismissed.
.......................................
Toogood J
12 Summary Proceedings Act 1957, s 121(3)(b).
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