McWatt v Police HC Christchurch CRI 2010-409-227

[2010] NZHC 2284

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000227

JASON WILLIAM MCWATT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 December 2010

Counsel:         R G Glover for Appellant

C J Boshier for Respondent

Judgment:      16 December 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      On 8 November the appellant was sentenced in the District Court to an end sentence of 14 months’ imprisonment in relation to two charges of using a forged document and one charge of cultivating cannabis.  The appeal was initially presented on the basis that the sentence was so disparate with that imposed upon a co-offender as to require the intervention of this Court to cure what could only be viewed as a miscarriage of justice in terms of the relativity between the two sentences.  However, as shall become apparent, there is another way of looking at the matter as well.

[2]      The  two  offences  of  using  a  document  occurred  on  5  June.    A  forged prescription relating to 84 Clonazepam tablets was created and then twice presented

JASON WILLIAM MCWATT V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000227  16 December

2010

at pharmacies.  This occurred at Riccarton at about 3.40 in the afternoon and half an hour later at Bush Inn.  On both occasions the pharmacists were alive to matters and nothing was dispensed in response to the forged prescriptions.  The offenders made off when it became apparent that behind-the-scene inquiries were being made.

[3]      On 5 July police found a cannabis cultivating operation in a wardrobe at the appellant’s address.  It comprised four adult plants, 11 seedlings and paraphernalia necessary to  grow  plants  in  such  an  environment.    There  was  also  some  stalk material which indicated that this was the continuation of an ongoing growing operation.

[4]      In sentencing Mr McWatt the Judge adopted a starting-point of two years’ imprisonment.  How this term was arrived at was not articulated.  In particular, there was differentiation between the two different types of charges.  Nor reference to the basis upon which the two years had been calculated.  The Judge then gave credit for the appellant’s guilty pleas and what he termed “the other matters that I have referred to in the probation report” and arrived at an end sentence of 14 months’ imprisonment.   Hence, a deduction of 10 months, or about 40 per cent from the starting point, was allowed.

[5]      The  pre-sentence  report  referred  to  what  the  writer  termed  a  generally positive response to a 12 month intensive supervision sentence which the appellant had served in the recent past.  There was also reference to his attending Alcoholics Anonymous and Narcotics Anonymous meetings and, hence, something to suggest that the appellant was motivated to address a raging addiction problem.  I take it that it was these aspects which influenced the significant deduction from the starting- point.

[6]      The appellant is 41 years of age.  He has a very lengthy conviction list mainly for offences of dishonesty and a significant number which are drug-related.  He also has other offending, for example driving matters and the like.  Nonetheless, the pre- sentence report writer had recommended community detention and supervision.

[7]      I turn then to the disparity argument.  The same day, a little earlier, the Judge had sentenced Rochelle Turnbull to eight months’ home detention.   She had been Mr McWatt’s partner throughout the time relevant to the charges.  She faced seven charges of using a document likewise for prescriptions and one charge of altering a document.   She was aged 38 years, had 11 previous convictions incurred between

1999 and 2008 for offences of dishonesty.   On one occasion she had been sent to prison  for  a  short  time.    As  noted,  she  was  sentenced  to  eight  months’  home detention, whereas, of course, the appellant received 14 months’ imprisonment for his involvement in two of the using a document charges and the cannabis offence.

[8]      To my mind there are real difficulties in entertaining a disparity argument in the circumstances of this case.  As Ms Boshier pointed out, the appellant is a little older  than  his  co-offender  but,  more  importantly,  has  227  previous  convictions which have accrued from 1985 to 2009.  Indeed, over 100 of these relate to using a document, or altering a document, or obtaining property by a cheque type offending.

[9]      In  short,  he  is  undoubtedly  a  recidivist  offender  in  relation  to  using  a document and related offences.  I do not think a disparity argument is available.  In that regard I am also influenced by Ms Boshier’s observation that an eight month sentence of home detention will be served in full, whereas the appellant, in serving a short term sentence of imprisonment, will be released after serving half of the term. Hence, the relevant comparison is between eight months’ imprisonment and eight months’ home detention.

[10]     However, as discussed with counsel, there is also an issue concerning the makeup of the prison sentence which was imposed.  At my invitation counsel viewed the offending on a discrete basis and made submissions with reference to what the individual charges should have incurred by way of a starting-point.  As I have noted, the Judge adopted a global figure of two years.  I have, therefore, had the benefit of various submissions as to what the relevant offences could have been worth.   Ms Boshier, for example, submitted that a 12 month term for the two using a document charges could well have been warranted.  She further suggested that six months for the cultivation  charge  would  have been  appropriate,  given  that  this was  not  an insignificant growing operation committed by somebody who had a relevant drug

record.  Finally, she posed an uplift of six months’ imprisonment on account of the appellant’s poor record.  This, of course, produced the same end starting-point of 24 months before the 10 month allowance was made to arrive at the 14 month end sentence.

[11]     In my view these charges, assessed individually, cannot support a starting- point  of  two  years’  imprisonment.    Two  offences  of  using  a  document  in  this manner, even committed by a recidivist, in my view could warrant no more than eight months’ imprisonment.   Some uplift was required to recognise his appalling record and, in that regard, I allow three months.

[12]     With  reference  to  the  cannabis  offending,  this  was  offending to  produce cannabis for personal use and, as Mr Glover urged, by a man who has an addiction to pain killing drugs as a result of a serious accident in which he was involved in the late 1990s.   Although one must approach that sort of argument with considerable caution, I think that four months’ imprisonment was the appropriate term for the cultivation charge.

[13]     This produces a starting-point of 15 months before allowance is made for the guilty plea and any other mitigation of the kind described in the pre-sentence report. I do not understand how a reduction of 10 months was made in this instance.  To my mind a reduction of five months is as much as was warranted, which produces an end sentence of 10 months’ imprisonment..

[14]     The Judge was also required to consider home detention.   I agree with his conclusion as to that aspect and need add nothing to his comments.  However, for the reasons I have given, I allow the appeal to the extent the sentence of 14 months’ imprisonment is quashed and a sentence of 10 months’ imprisonment is substituted. That sentence is to be attributed as to seven months to the using a document charges and three months to the cultivation charge, these to be cumulative given that they are

disassociated offences.

Solicitors:

Rupert Glover Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent