Needham v Police

[2013] NZHC 688

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000017 [2013] NZHC 688

BETWEEN  JOHN CHARLES NEEDHAM Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 April 2013

Counsel:         L Brown for Appellant

I R Murray for Respondent

Judgment:      9 April 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 2.45pm on the 9th day of April 2013.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      Mr Needham pleaded guilty to one charge of cultivation of cannabis (s 9(1) of the Misuse of Drugs Act 1975) and was sentenced to four months’ imprisonment by Judge Mill in the Lower Hutt District Court.  He appeals against that sentence on two grounds, namely:

(a)       The Judge did not properly consider home detention as a sentence;

(b)The Judge did not properly consider relevant mitigating factors when arriving at the final sentence.

NEEDHAM V NEW ZEALAND POLICE HC WN CRI-2013-485-000017 [9 April 2013]

[2]      Mr Needham is 57 years old, physically disabled and a life-long drug user. On 26 November 2012, police executed a search warrant at the Upper Hutt address where Mr Needham lived with his brother, who is a co-offender.  Police discovered ten potted cannabis plants, all less than 30 cm in height, growing under heat lamps. They also discovered 236 grams of dried cannabis head, 4 large mature plants drying in the hot water cupboard and 631 grams of frozen cannabis stalks.   There was a further 47 grams of dried cannabis head in two small plastic bags in Mr Needham’s car.

Previous convictions

[3]      Mr Needham has 92 convictions dating back to 1973, mostly for drugs, theft and assault.   He has 20 drug-related convictions, the first of which he received in

1977.  His last offence was committed in 2005 and his last drug offending occurred in 2000.

Pre-sentence report

[4]      The  pre-sentence  report  said  Mr  Needham  is  unlikely to  comply with  a community-based sentence.  The pre-sentence report recorded Mr Needham’s belief that his drug use is justified and that he is entitled to grow cannabis for personal consumption within his own home.   He refused to agree to undertake drug and alcohol counselling.  He has suffered brain injuries and more recently a stroke, so he is not able to complete a sentence of community work.  Mr Needham’s address in Upper Hutt was assessed as unsuitable for an  electronically monitored  sentence because the police fear that he will encourage his brother, who lives at the same address,  to  engage  in  hard drug use (because  Mr Needham  is  on  a  methadone programme). Therefore a sentence of imprisonment was recommended.

[5]      The   District   Court   Judge   adopted   a   starting   point   of   six   months’ imprisonment.  That was then reduced by one third to four months’ imprisonment on account of the appellant’s prompt guilty plea and “personal circumstances”.1   In light of the ruling in Hessell v R2  that the discount given for a guilty plea should not exceed 25 per cent (which would have given a final sentence of four and a half

months), the Judge must have intended the further two week discount to be justified by personal mitigating factors.

[6]      The Judge refused to grant home detention for two reasons:

(1)The Judge noted that Mr Needham’s brother and co-offender lived at the nominated address;  and

(2)The Judge found, based on the pre-sentence report, that Mr Needham would be likely to  continue to  use and  grow  drugs  at  his  home, despite defence submissions to the contrary.3

Powers on appeal

[7]      Sections 115(4) and 119(1) of the Summary Proceedings Act 1957 provide that this is a general appeal to be heard by way of rehearing.   The onus is on Mr Needham to satisfy me that the grounds of appeal have been made out and that I should differ from the original decision, but I must come to my own view on the

merits.4

[8]      In an appeal against sentence, the Court may confirm the sentence; or if the

sentence is one which is “clearly excessive or inadequate or inappropriate”, or the

court had no jurisdiction to impose that sentence, or substantial facts relating to

1      Police v Needham DC Lower Hutt CRI-2012-032-3557, 7 March 2013 at [8].

2      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

3      Police v Needham DC Lower Hutt CRI-2012-032-3557, 7 March 2013 at [6].

4      Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

personal history were not before the sentencing court, then the Court may quash or vary the sentence or part of it.5

[9]      In R v Monkman, the Court of Appeal considered the factors that would make

a sentence “manifestly excessive”:6

Whether a sentence can be said to be manifestly excessive turns on the maximum  sentence  prescribed  by  law  for  the  offence;     the  level  of sentencing customarily observed with respect to that offence;   the place which  the  conduct  in  question  assumes  on  the  scale  of  seriousness  of offences of that type;  and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

[10]     When considering whether the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal observed in Ripia v R:7

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive.   The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

Defence submissions

[11]     In her submissions Ms Brown, counsel for Mr Needham submits that the Judge erred in not imposing home detention because Mr Needham’s brain injury prevented him from adequately expressing his now apparent intention to rehabilitate. Further the address selected was in fact suitable as his brother could relocate.   In relation to the second ground of appeal, Ms Brown submits that Judge Mill failed to give an adequate discount to recognise Mr Needham’s personal mitigating factors of

having suffered a brain injury and more recently, a stroke.

5      Summary Proceedings Act 1957, s 121(3).

6      R v Monkman CA445/02, 3 March 2003 at [6].

7      Ripia v R [2011] NZCA 101 at [15].

Analysis

Allowance for personal factors

[12]     It is convenient to deal with the second ground of appeal first.  As I noted earlier,8  the Judge discounted Mr Needham’s sentence by two weeks (or eight per cent) for personal mitigating factors.  Although the Judge did not specifically state that the factors considered were the appellant’s brain injury and stroke, there is no suggestion that there were any other potential mitigating factors to be considered.  A discount of eight per cent is consistent with the discounts given for moderately serious brain injuries in the cases cited by Ms Brown – 10 per cent in Paki9 and less

than 12.5% in Harpur.10   I am not satisfied that this ground of appeal has been made

out.

Should home detention have been imposed?

[13]     I now turn to the first ground of appeal relating to home detention. The Court of Appeal has held that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in

the court below”.11     The question  I must ask is whether the Judge erred when

applying the relevant purposes and principles of sentencing.12

[14]     One of the relevant purposes of a sentence may be to assist the offender’s rehabilitation.13    Another relevant principle is that the Court must impose the least restrictive  outcome  that  is  appropriate  in  the  circumstances.14      The  Judge  did consider  whether  home  detention  would  help  Mr  Needham  rehabilitate,  but

concluded that his attitude towards drugs meant this was unlikely.15     Ms Brown

8 See [5] above.

9      R v Paki [2012] NZHC 3494 at [36].

10     R v Harpur [2012] NZHC 1748 at [29].

11     Manikpersadh v R [2011] NZCA 452 at [12].

12 At [14].

13     Sentencing Act 2002, s 7(1)(h).

14     Sentencing Act 2002, s 8(g).

15     Police v Needham DC Lower Hutt CRI-2012-032-3557, 7 March 2013 at [5]-[6].

submits that Mr Needham does in fact wish to cease using cannabis and rehabilitate, but was unable to convey this lucidly to the probation officer because of his brain injury.   Ms Brown submits that Mr Needham rejected attendance of further rehabilitative programmes because he already had adequate tools and methods to rehabilitate himself.  In light of his failure to do so to date, I find this unlikely.

[15]     On the evidence before the Judge, it was open to him to conclude that the probation officer’s report offered a more objective assessment of Mr Needham’s prospects of rehabilitation, and that a sentence of home detention was inappropriate because it would likely lead to Mr Needham cultivating cannabis at his home again. I am not satisfied that the Judge erred when applying the relevant purposes and principles  when  exercising  his  discretion  not  to  impose  a  sentence  of  home detention.

[16]     The fact that Mr Needham’s brother and co-offender resides at the address militates  against  home  detention  because  his  presence  makes  it  less  likely  that Mr Needham would cease cultivating cannabis.  Ms Brown submits that the brother could relocate if necessary.  That proposition is unverified.  In any case, even if the brother does relocate, Mr Needham’s attitudes to rehabilitation are still such that home detention would not have been appropriate.

Conclusion

[17]     The appeal is dismissed.

D B Collins J

Solicitors:

Public Defence Service, Wellington for Appellant

Crown Solicitor, Wellington for Respondent