Newton v Police

[2019] NZHC 1245

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-24

[2019] NZHC 1245

BETWEEN

CHAINEY BEAU NEWTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

29 May 2019

Appearances:

J Spelman for Appellant

A R van Echten for Respondent

Judgment:

4 June 2019

JUDGMENT OF GRICE J

Introduction

[1]        Mr Newton appeals against a sentence of 16 months imprisonment together with disqualification from driving for six months, post release conditions and $100 reparation.

[2]        The sentence followed his pleas of guilty on nine chares. The lead charge and the focus of the appeal was a representative charge of offering to sell cannabis.

[3]        The primary ground of appeal is that the sentence was manifestly excessive because the judge erred by adopting a starting point which was too high.

[4]The issues on appeal are:

NEWTON v NEW ZEALAND POLICE [2019] NZHC 1245 [4 June 2019]

(a)Did the judge err in adopting the guidelines set out in R v Terewi, as this was a guideline judgment for sentencing developed in a concerning cultivation of cannabis where this is a case of offering to sell cannabis?

(b)Did the judge err in adopting band 2 of Terewi as being the context in which to consider the sentence?

(c)Even if either of those were the case or otherwise was the final sentence within the available range?

Background

[5]        Mr Newton pleaded guilty to nine charges on 19 February 2019. On 5 April 2019 in the District Court. Mr Newton was sentenced as follows:

(a)On one representative charge of offering to sell cannabis,1 the lead charge, Mr Newton was 16 months’ imprisonment and six months of special release conditions which included that he is not to possess or consume non-prescribed drugs or alcohol; he is to attend and complete an appropriate alcohol and drug counselling programme; he is to reside at an address approved by his probation officer and is not allowed to move without written approval; and he is to notify his probation officer before starting, terminating or varying any employment or voluntary work;

(b)On one charge of possession of methamphetamine,2 Mr Newton was sentenced concurrently to one-month imprisonment on the same conditions and an order was made to destroy the drugs;

(c)On  one  representative  charge  of  breaching  release  conditions,3   Mr Newton was sentenced concurrently to one-month imprisonment on the same conditions;

1      Misuse of Drugs Act 1975, 6(1)(e); maximum penalty of eight years’ imprisonment.

2      Sections 7(1)(a) and 7(2); maximum penalty of six months’ imprisonment and $1,000 fine.

3      Sentencing Act 2002, s 96(1); maximum penalty of one-year imprisonment and $2,000 fine.

(d)On two representative charges of dishonest use of a document for pecuniary advantage,4 Mr Mr Newton was sentenced concurrently to three months’ imprisonment on the same conditions and sentenced to pay $100 reparation by way of $10 instalments per week once he was released;

(e)On one charge of receiving,5 Mr Newton was sentenced concurrently to one-month imprisonment on the same conditions;

(f)On one charge of breaching bail,6 Mr Newton was convicted and discharged;

(g)On one charge of dangerous driving,7 Mr Newton was sentenced concurrently to one-month imprisonment on the same conditions and disqualified from holding or obtaining a drivers licence for six months from 5 April 2019;

(h)On one charge of failing to stop,8 Mr Newton was convicted and discharged.

[6]        In summary, Mr Newton was sentenced to 16 months’ imprisonment, disqualification from driving for six months starting on 5 April 2019, six months of post-release conditions, and $100 in reparation.

[7]        As I have said, Mr Newton appeals his sentence on the grounds it was manifestly excessive because the Judge erred by adopting a starting point that was too high due to inappropriate reliance on the tariff decision of R v Terewi.9

4      Crimes Act 1961, s 228(1)(b); maximum penalty of seven years’ imprisonment.

5      Sections 246 and 247; maximum penalty of three months’ imprisonment.

6      Bail Act 2000, s 38(a); maximum penalty of one-year imprisonment and $2,000 fine.

7      Land Transport Act 1998, s 35(1)(b); maximum penalty of three months’ imprisonment and $4,500 fine.

8      Sections 52A(10(a)(ii) and 53A(3); maximum penalty of $10,000 fine.

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

Factual background

Offering to sell cannabis

[8]        Between 18 March 2018 and 23 April 2018 Mr Newton offered to sell cannabis to multiple parties on 27 different occasions. Each pound bag is worth $350, which is the amount Mr Newton specified. He offered to sell a total of 15 ounce bags (worth

$5,250), eight tinnies (worth $160) and 15 fifty bags (worth $750).

[9]        Examples of the texts sent by Mr Newton include “Uptoo wna by ounce 350 [sic]” or “You wna buy fat fiddy bag a bud [sic]” or “Hey bro its chain I have got skunk tins and fifty bags if you keen orknow anyone k sweet get a hold of me if you if you do [sic]”.

Possession of methamphetamine

[10]      On 7 December 2018 Mr Newton was a passenger in a car that was pulled over by the police. It was searched and two point bags of methamphetamine containing .2 grams was discovered. Mr Newton said it was his and he planned to smoke it.

Breaching release conditions

[11]      Upon his release from prison on 29 November 2017 Mr Newton was informed of his release conditions. One of those conditions was that he was to report to a probation officer when directed. On 8 March 2018 Mr Newton signed a written instruction which stated he must report to Community Corrections every Thursday until advised otherwise.

[12]      On 29 March, 5 April and 12 April 2018 Mr Newton failed without reasonable excuse to report to his probation officer. He had been given warnings about non- compliance.

Receiving

[13]      Mr Newton came into possession of a bank card belonging to the complainant after their home had been burgled on 24 August 2018. He was reckless as to whether it had been stolen as he didn’t know the pin or persons name on the front of it.

Dishonest use of a document for pecuniary advantage

[14]      On 24 August 2018 Mr Newton used the paywave function of the stolen card at a Z service station while attempting to buy cigarettes worth $73.90. the cost of replacing the card was $10. Reparation of $100 was sought.

Breaching bail

[15]On 18 September 2018 Mr Newton breached his bail.

Failing to stop

[16]      On the evening of 29 November 2018 Mr Newton was the driver of a car in Paeroa. A marked patrol car activated its lights and sirens behind the car to signal it to pull over. Instead of pulling over the car accelerated and drove evasively.

Dangerous driving

[17]      Mr Newton, in the course of the above incident, drove up to a speed of 70 kilometres per hour in a 50 kilometre per hour zone, making several turns. He drove through a stop sign, and then accelerated to 100 kilometres per hour while still in a 50 kilometre zone. He lost control of the car while turning around a corner and slid sideways into a curb. He continued to drive for a short time before parking in a residential address. He then ran away from the car, leaving the passengers in it.

The sentencing

[18]      The Judge noted that when Mr Newton committed the crimes for which he was being sentenced he was subject to release conditions. Having noted that, the Judge specified offering to sell cannabis as the lead charge before her.

[19]      The Judge said she had  read  the pre-sentence report before her and  that    Mr Newton was said to be at a high risk of reoffending. She also noted he had shown no remorse and that he had a number of convictions for breaching various sentences in the past. The recommendation in the report was a sentence of imprisonment.

[20]      The Judge also recognised that purposes of sentencing that she must follow were to denounce Mr Newton’s offending; deter him and others from committing the same offences and to protect the community from him. She also said that she must consider the general desirability of consistency with appropriate sentencing levels and the information provided to the Court on the effect on the victim of the offending.

[21]      The Judge adopted R v Terewi as the guideline judgment for offering to supply cannabis.10

[22]      The Judge said it was acknowledged that in this offending involved a degree of premeditation and commerciality. There was a degree of frequency in his offers to sell in the period of text messages.

[23]      With particular regard to the amounts involved and the frequency of the offers, the Judge was of the view a starting point of 18 months’ imprisonment was appropriate on the lead charge, with an uplift of six months for the other offending. This brought the sentence to an overall starting point of 24 months’ imprisonment.

[24]      The aggravating factors related to the offending were the fact Mr Newton was still subject to release conditions. An uplift of two months was applied for that factor. This left the total starting point at 26 months’ imprisonment.

[25]      Mr Newton’s guilty plea meant he was entited to a 25 per cent discount for his guilty plea, which the Judge calculated as being worth an eight and a half months discount. This resulted in the sentence being reduced to 17 and a half months’ imprisonment.

[26]      On a totality basis, the Judge lowered that sentence further to 16 months’ imprisonment. She also imposed standard release conditions to apply for six months following the sentence expiry. Mr Newton was disqualified from driving for six months on the dangerous driving charge. He was also to pay $100 in reparation to the complainant. Mr Newton’s sentences were concurrent.

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

Standard of appeal

[27]      Mr Newton has brought his appeal under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason) a) an intrinsic error in the sentence imposed and b) a different sentence should be imposed.11 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.12 As articulated in R v Peters:13

[13] As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.

Analysis

Applicability of Terewi

[28]      Ms Spelman, for Mr Newton, argues that R v Terewi should not be used as a guideline judgment in cases involving offering to sell cannabis as it is a case concerned with the cultivation of cannabis. She argues that although the maximum penalties are the same for the two offences, offering to sell cannabis is “logically” less serious than growing it.

[29]      Ms Spelman referred to the fact that R v Fatu, another tariff case, is presently under review by the Supreme Court. She submitted that R v Fatu is a methamphetamine tariff case that applies to “offending involving supply, importation or manufacture of methamphetamine” but not supply.14 Although I note that Fatu does cater for supply as is noted in the heading cited, Ms Spelman’s point was that one of the issues in the argument before the Supreme Court in support of the review of the principles in Fatu was that there had been an unprincipled extension of the sentencing

11     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.

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

13     R v Peters CA12/03, 14 May 2003 at [13].

14     R v Fatu [2006] 2 NZLR 72 at [3].

principles to include supply simpliciter. The Crown submitted that the fact that the Fatu principles were under review was no reason not to apply the Terewi principles in this case.

[30]      Ms Spelman also points to R v Te Rure as authority for the fact that when a case involves conspiracy to manufacture, rather than manufacture itself, there is a reduction in penalty.15 The point being that planning to do something illegal is less serious than actually doing it.

[31]      The thrust of the argument to distinguish Terewi is that both cultivation and possession for supply involve an offender actually growing the plant or having enough of it to sell. In this case it was submitted, Mr Newton simply offered to sell the plant to others. He was not found with the cannabis that he had been trying to supply.

[32]      Ms Spelman submits this case is essentially a “conspiracy” case dressed up as supply. Mr Newton is not, however, charged with conspiracy. He is charged with offering to sell cannabis. The offences are not the same.

[33]      However, the thrust of Ms Spelman’s submissions were that case involved unsophisticated attempts to sell cannabis. This was evident she said from the text messages. Mr Newton did not actually possess any cannabis and therefore there was no clear culpability accessible as to the quantity he had available to sell. She said he was not selling for profit but rather to feed his own methamphetamine habit.

[34]      Ms Spelman does acknowledge that in R v Keefe the Court of Appeal found that R v Terewi was applicable in cases of possession of cannabis for supply:16

[11]  … Though Terewi involved cannabis  cultivation  rather  than possession for supply, there are analogues in terms of sentencing in circumstances such as this. No basis has been made out for this Court to intervene and amend the sentence.

15     R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [25]–[27].

16 R v Keefe CA275/02, 28 November 2002 at [11].

[35]      I also note that R v Terewi has been applied in numerous High Court decisions involving offering to sell cannabis.17

[36]      In my view Terewi was a case which could appropriately applied by the sentencing Judge in the circumstances. No error was made.

[37]I dismiss this ground of appeal.

Appropriate category in Terewi

[38]      In R v Terewi the Court of Appeal set out categories of offending for cultivating cannabis as follows:18

Category 1: consists of the growing of a small number of cannabis plants for personal use only by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited…

Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.

Category 3 is the most serious class of offending. It involves large scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be 4 years or more.

[39]      In 2010, the High Court in R v Merton remarked that the bands in Terewi were “a little outmoded now and the categories that the Court of Appeal describe to limit the bands here are not necessarily to be followed slavishly as if they were acts of Parliament”.19

17     R v Henry [2012] NZHC 3264; Fearnley v R [2106] NZHC 2395; R v Christison [2012] NZHC 2067.

18     R v Terewi, above n 7, at [4]

19     R v Merton HC Auckland CRI-2009-044-2520, 7 May 2010 at [13].

[40]      In 2017, the Court of Appeal in R v Smyth accepted that Terewi may require reconsideration, noting:20

[17]  Mr McKenzie for Mr Smyth submits that the leading   tariff decision of this Court for cultivation of cannabis, R v Terewi, is no longer good law and should be revisited in light of changing social attitudes towards cannabis cultivation and consumption. We accept that Terewi, which was decided in 1999, may require reconsideration given changing social attitudes and the subsequent passage of the Sentencing Act 2002. However, this is not an appropriate case in which to embark on reconsideration of that tariff decision because we did not have the benefit of detailed submissions and fully developed argument. It is also not necessary to determine whether Terewi remains good law for the purposes of disposing of this appeal.

[41]      However, the case remains good law. No new tariff case has been issued albeit the application of the principles in Terewi should be tempered by the above comments.

[42]      The sentencing Judge determined that Mr Newton’s offending fell within band two of Terewi due to the amounts and frequency of offerings indicated in the text messages. Ms Spelman submits that band 2 was inappropriate and a starting point of 10 months’ imprisonment should have been taken. She states the present facts are less serious than the following:

(a)R v Edmonds:21 starting point of 24 months’ imprisonment for possessing 65 cannabis plants, eight mother plants and 42 seedlings in planting bags indoors under controlled lighting.

(b)Mowberry v R:22 18 months’ imprisonment starting point for possession of 57 cannabis plants, electronic times, dehumidifier and heat pumps.

(c)Needham v Police:23 a six month starting point was upheld on appeal for possession of 10 plants, 236 grams of dried cannabis, four mature drying plants, 631 grams of frozen cannabis stalks, and 47 grams of cannabis discovered in his car.

20     R v Smyth [2017] NZCA 530 at [17] (citations omitted).

21     R v Edmonds CA23/02, 28 May 2002.

22     Mowberry v R [2012] NZHC 969.

23     Needham v Police [2013] NZHC 688.

(d)R v Rauhihi:24 15 month starting point adopted for possession of 72 cannabis plants and 326 grams of cannabis.

(e)R v Devereux:25 15 months imprisonment starting point adopted for six plants under lights, three trays of seeds and other equipment. Mr Devereux also admitted to seedling. 1 to 10 $50 bags to supplement his income a week.

[43]      Ms Spelman says that all these decisions are more serious than this case and so indicate a 10 month starting point.

[44]      Ms van Echten pointed to R v Andrews which notes that there is no “twilight area”. Offending involving commerciality must be regarded as being in category 2 of Terewi.26 I note that the Judge did land on the very low starting point end of the band to recognise the minor nature of the offending. Nevertheless, reasonable amounts of cannabis and value were apparently being dealt. Nothing is before the Court that suggests the starting point taken was inappropriate in this case.

[45]      In addition, considering the number of offences involved in the sentencing, the sentence might be described as lenient even having had the benefit of Ms Spelman’s careful submissions about Mr Newton’s real need for assistance with rehabilitation. She submitted he had not had that assistance to date and would not have in prison.

[46]      I also note the Judge could have imposed a higher uplift considering the numerous offences for which Mr Newton was sentenced and the fact this offending occurred while Mr Newton was subject to release conditions.

Conclusion

[47]The appeal is dismissed.

Grice J

24     R v Rauhihi HC Palmerston Norther CRI-2008-031-1438, 1 May 2009.

25     Devereux v Police [2017] NZHC 167.

26     R v Andrews [2000] 2 NZLR 509 at [9].

Solicitors:

Crown Law Office, Wellington