Ngarimu v Police HC Rotorua AP 4/2001

[2001] NZHC 436

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY AP 4/2001

BETWEEN MERE NGARIMU
Appellant

AND NEW ZEALAND POLICE
Respondent

Date of Hearing: 1 June 2001

Counsel: V L Thorp for Appellant
A M Simperingham for Respondent

Judgment: 1 June 2001

ORAL JUDGMENT OF PRIESTLEY J

Introduction

[1] This is an appeal against sentence. The appellant was sentenced in the Gisborne District Court on 23 May 2001 to a term of six months imprisonment. Leave was granted to apply for home detention.

[2] The appeal against sentence was lodged promptly and an application for bail was made pending the determination of the appeal. Because of perceived delays in having that bail application heard, the Executive Judge in Auckland directed that the file be transferred from the Gisborne Registry to the Rotorua Registry solely for the purpose of determining the substantive appeal.

The Facts

[3] The circumstances of this care are novel. The facts raise important aspects of sentencing policy for that reason alone. The Court accepts that the offending was totally out of character so far as the appellant was concerned.

[4] The offending has attracted a considerable amount of publicity. As is clear from both counsels’ submissions and also from the victim impact reports, the offence was one which seems to have divided the Gisborne community on philosophical grounds.

[5] The specific charge laid under the Misuse of Drugs Act 1975 was that the appellant supplied to other people, namely the staff of her employer, a Class C Controlled Drug namely a cannabis preparation.

[6] The facts are adequately canvassed in the summary of facts which was before the learned District Court Judge. In essence, on 15 March 2001, the day before the actual offence, the appellant baked a cake which included the novel ingredient of approximately five mgs of cannabis butter. The cannabis butter was supplied by a co-offender about whose involvement I have no information. The next morning the appellant took the cake to her place of work, the Four Seasons Pack House. This Pack House is a viable economic concern of the Gisborne area and employed approximately forty-four members of staff.

[7] The appellant herself had apparently consumed a slice of the cake whilst en route to work. Both the pre-sentence report and her counsel suggest that by the time the appellant arrived at work she was already high. To some extent this may have impeded the appellant in mitigating promptly the consequences of her stupidity once those consequences became apparent. There is a suggestion both in counsel’s submissions and in the pre-sentence report that the appellant was unaware that the cannabis cake was to be shared at her work place. I accept that the appellant may not have appreciated the extent of what in fact occurred, but nonetheless one must question why she took the cake to work at all if ingestion by some of her work mates at least, was not contemplated.

[8] In any event on the morning of 16 March 2001 approximately thirty-four staff members consumed pieces of the cake. Its potent effects soon became obvious. People began to suffer from headaches, dizziness, nausea and hallucinations. Many workers, as is apparent from the victim impact reports, found it difficult to concentrate on their work and were distressed.

[9] One victim impact report, signed by two workers who were sympathetic to the appellant’s predicament, summed it up with some piquancy. The effects on them were reaction time being greatly reduced; loss of body feeling; increased heartbeat; bloodshot eyes and temporary memory loss. These two “victims” stated that they were not strangers to this feeling. I accept that some of the workers involved may well have had previous experience of the side effects of cannabis use. However, that was clearly not the case with all members of the work force.

[10] Ambulance staff were called. The Pack House had to be closed down. Sixteen staff members were taken to hospital. According to the summary of facts at least two of those were kept in hospital for a number of hours for observation. One victim impact report refers to longitudinal symptoms, where the victim for a week following the incident suffered from dizziness, light-headedness, nausea, lethargy and an irritable nature at home.

[11] Although the appellant did not volunteer what she had done on the morning in question (she was apparently asked whether she knew whether there was a problem with the cake but said nothing), I am prepared to attribute that failure in part to her own condition. She herself was not a habitual user of drugs and I accept she has had no involvement at all with cannabis. From what I have heard from her counsel and also from the contents of the pre-sentence report, the appellant has hitherto led an exemplary life. I shall say more about this shortly. She did, however, plead guilty at a relatively early opportunity and is entitled on sentencing principles to be given credit for that.

Sentencing Principles

[12] The sentencing notes of A G Adene DCJ are commendably short and focused. He observes that unlike many incidences of offences involving cannabis this offence could not properly be described as a victimless crime. He refers to the case as being “without precedent in New Zealand” and refers to the “unwitting stupefaction” of other people.

[13] This aspect clearly concerned the sentencing Judge who regarded the circumstances of the offending as being in many respects “worse . . . than the mainstream cases of supplying cannabis to others [who] are willing and knowing participants”. He correctly referred to the appellant appearing for sentence as being a paradoxical matter. He incorrectly describes her as a 52-year-old woman when she is a mere 47. He refers to her unblemished record, her hard work and her personality. The sentencing Judge correctly states that the appellant is entitled to substantial credit for her guilty plea and states that he has given as much weight as he can to her personal circumstances, subject to the caveat that there were limits to how much weight he could give in all the circumstances of the case.

[14] The pre-sentence report describes the appellant as being a hard worker. I am told from the bar that she is currently the breadwinner of the family although, as I understand it, the dependent whanau at the moment is limited to herself, her husband and two children. Previous employers speak highly of her. She is actively involved in her Church. Her wider whanau is of some prominence in the Gisborne area. I have no hesitation in accepting that she is distraught and, more importantly, feels ashamed by what she did. To her credit she made personal apologies to the various victims. This is not a case of somebody who has had any involvement with drugs in the past. The report correctly assesses the appellant as being at low risk of reoffending and in no need of any official oversight. The pre-sentence report’s recommendation was periodic detention and a suspended prison sentence.

Counsels’ Submissions

[15] Much of the thrust of Ms Thorp’s focused and powerful submissions will already be apparent in previous sections of this decision. Counsel’s primary submission was that the six-month term of imprisonment was excessive in the light of the circumstances of both the offence and the offender. Although not put quite this way it was apparent from Ms Thorp’s submissions that she considered the sentencing Judge should have given greater weight to the appellant’s personal circumstances and should also have put into the scales possible restorative justice principles. In counsel’s submission a sentence of periodic detention would satisfy the need to construct a sentence which had a deterrent aspect and so too would a suspended prison sentence.

[16] For the Crown Mr Simperingham referred to the prevalence of cannabis use in the Gisborne area and reminded the Court that deterrence was an important feature. In his submission it would be undesirable if, by giving a suspended sentence to the appellant, a message was sent to the community that this particular offender had “walked away” without any significant punishment. Mr Simperingham accepted that for the appellant the term of imprisonment imposed was severe. He did not, however, see it as being manifestly excessive. In that regard I refer to the Court of Appeal decision of R v Wallace [1999] 3 NZLR 159 which stresses that the personal circumstances of an offender are not to be prioritised. He also referred me to what in his submission was an analogous case, that of R v Traber CA 73/92 (13 May 1992), where the Court of Appeal upheld a three-year sentence in a case involving the manufacture, supply and possession of cannabis oil to friends where there was no commercial element.

Decision

[17] I consider this to be a finely balanced case. There are two features which would make sentencing difficult for any Judge. The first feature is the novelty of the offending to which I have referred. Counsel have not been able to refer me to any case where an edible product containing cannabis as an ingredient has featured. The second feature is the personal circumstances of the appellant who has an unblemished record; who appears for the first time in the criminal Court at the age of 47 after an laudable career assisting both her family and the community; and who clearly has had no involvement at all with drugs or cannabis.

[18] The aggravating features of the case, however, despite its novelty are those which have been canvassed by both the sentencing Judge and which are also apparent from the summary of facts. This is not a situation where a cannabis cake had been supplied in jest or otherwise at a private party. Nor can the appellant seriously contend that she did not know she was concocting a cake which contained an illegal substance. It is clear from the pre-sentence report that she had some anxiety about this aspect and asked a number of questions designed to allay her fears that the cannabis butter might in some way be noxious. What in my judgment justifies a deterrent sentence in this particular case is the fact that a large number of people were exposed, against both their knowledge and will, to the side effects of cannabis. Sixteen people being hospitalised, even for a short period of time, is alarming.

[19] Secondly, although I accept that the figures in the victim impact report may not be totally accurate, the resulting closure of the Pack House cost the appellant’s employer a figure in the vicinity of $25,000.

[20] Thirdly, although the side effects of cannabis did not spill over to other victims the fact remains that a significant number of the appellant’s co-workers were working in a semi-industrial situation with machinery, plant, tractors and nail-guns. The diminution of judgment from which a number of the workers suffered could well have resulted in a catastrophic accident.

[21] In my judgment, therefore, a Court needs to weigh the deterrent aspect because of these three features. A different sentence would have been justified had the eaters of the cake had prior knowledge and/or consented to it. That was not the case here. There is also the risk, as Mr Simperingham said, that if too light a sentence had been imposed the wrong message would be sent to the community suggesting that activity of this sort was a mere prank; not serious; something to be laughed at. As I have just said, the fact that sixteen co-workers needed hospital treatment and also the potential risks of people in a work place being impeded by a narcotic, require the Court to take a robust view.

[22] Now all this is most unfortunate from the appellant’s point of view. I have no doubt at all that she is distraught and ashamed. The lack of judgment which she displayed has had effects on both her and of course on her co-workers far beyond anything which she ever contemplated. However, the appellant must accept that she and her co-offender were the perpetrators of the consequences which flowed from her baking what she obviously hoped would be an innocuous cake.

[23] The threshold which the appellant has to cross is to convince this Court that the sentence is manifestly excessive. It might possibly have been the case that a sentence constructed in a different way could have given greater weight to the many positive features of the appellant’s character referred to by her counsel. Nonetheless such an approach, although it may well have been unimpeachable on appeal, would in my judgment have run the risk of minimising the seriousness of the novel features of this particular offence.

[24] Although I do not myself totally agree with the sentencing Judge’s comments to the effect that this offence was in some respects worse than a “mainstream case” of supplying cannabis, I do not detect in the way the learned District Court Judge has approached the sentencing task that he has given that feature undue weight or that it has flawed in some way his final sentence.

[25] At the end of the day I regard the sentence imposed as being well within the band of permissible sentencing options for an offence of this type. I have laid some emphasis on the novel aspects of this case and I am satisfied that for a case of this type the sentence of six months imprisonment was appropriate. With respect, it seems to me that the sentencing Judge has given as much weight as he possibly could to the appellant’s many positive qualities by granting leave to apply for home detention.

[26] It is to be hoped that the appropriate Prison Board gives considerable weight to the appellant’s many positive qualities and the needs of her family and whanau and also her very focused approach to improving the lives of those with whom she lives and works. Keeping this woman in prison any longer than necessary would not serve any useful purpose in my view. But for the offence which she committed and the need for some form of community disapproval to be expressed, she would not, of course, be there at all.

[27] Because I do not consider the sentence imposed in the Gisborne District Court on 23 May 2001 to be manifestly excessive the appeal cannot succeed. It is dismissed.