O'Connell v Police

[2012] NZHC 3286

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-040 [2012] NZHC 3286

BETWEEN  DARYL ROSS O'CONNELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 December 2012

Counsel:         A Dallison for Appellant

SA Law for Respondent

Judgment:      6 December 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 6 December 2012 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL

Paul Keegan (New Plymouth) for Appellant

C&M Legal (New Plymouth) for Respondent

O'CONNELL V POLICE HC NWP CRI-2012-443-040 [6 December 2012]

Introduction

[1]      Mr O’Connell appeals a sentence of 18 months’ imprisonment imposed on

him by Judge DC McKegg in the District Court at Hawera on 10 September 2012.

[2]      An appeal against sentence proceeds by way of rehearing.  That is to say, I am required to form my own view on the material before me as to the appropriate sentence in the circumstances of the case.   That does not mean that I, in effect, resentence.   However, if I decide that the sentence imposed by the District Court Judge was manifestly excessive, I have to substitute the sentence I find to be appropriate.

Background

[3]      Mr O’Connell  appeared  before the District Court Judge on  a number  of charges.  The first was manufacturing cannabis oil.  The maximum penalty for that offence is 14 years’ imprisonment.  The charge arose from a search of the appellant’s address.   In his bedroom was found a Pyrex bowl containing a small quantity of cannabis oil.  The appellant accepted that the cannabis oil was his and said that he had made it for his own use.  There is no allegation that there is any commercial element to this charge.

[4]      The remaining charges are unrelated.  They are one charge of receiving stolen property and one charge of unlawful possession of a firearm.  Both charges related to three rifles. At the time that the Police spoke to the appellant at his address about the cannabis oil, they asked him whether there was anything else in the house they needed to know about.   The appellant then told them about the firearms.   The firearms  were  valued  at  around  $2,000.    The  appellant’s  explanation  for  his possession of them was that a friend had asked him to look after them.

The District Court Judge’s sentence

[5]      The District Court Judge placed emphasis on the appellant’s record of prior

offending.  He noted that the appellant had nine convictions for drug offending and

13 convictions for dishonesty, the majority of those being burglary.  He considered that he had to deal with the two sets of offences cumulatively.

[6]      So far as the drug offence is concerned, the District Court Judge accepted that it  was  “a  low  level  charge”,[1]   being  the  manufacture  of  cannabis  oil  for  the appellant’s own use.   He fixed a starting point of nine months’ imprisonment and uplifted  that  sentence  to  12 months’ imprisonment  on  account  of  the  previous convictions.

[1] R v O’Connell DC Hawera CRI-2012-043-1314, 10 September 2012, at [6].

[7]      The District  Court  Judge considered  the receiving charge to  be the lead charge.    He  set  the  starting  point  as  12 months’ imprisonment.    However,  that starting point seems to have included an uplift for the appellant’s prior convictions and also an assessment of the totality factor.

[8]      The District Court Judge gave the appellant a 25% discount for the early guilty pleas and apportioned the end sentence of 18 months’ imprisonment equally between the drugs charge and the receiving charge.   The charge of unlawful possession of firearms was allocated six months’ imprisonment concurrent with the sentence on the receiving charge.   The sentences on the drugs charge and the receiving charge were cumulative.

[9]      The District Court Judge also ordered an extended period of parole beyond the sentence expiry date, but that is not a matter which I need to consider because it has  not  been  raised  as  a  factor  in  the  appeal,  and  in  my view  that  is  entirely appropriate.

The appellant’s submissions

[10]     The appellant submits that the District Court Judge failed to take into account a significant mitigating circumstance, namely the co-operation which the appellant gave to the Police.  The appellant also submits that the District Court Judge did not pay proper attention to the totality principle.

[11]     The appellant accepts that the starting points adopted by the District Court

Judge were appropriate and that cumulative sentences had to be imposed.

[12]     The  appellant  submits  that  the  appropriate  end  sentence  was  12 months’ imprisonment.  This would be reached by taking a further discount of three months for co-operation and a further three months for proper observance of the totality principle.

[13]     At the sentencing, Mr Keegan, then representing the appellant, made oral submissions to the District Court Judge on the appellant’s co-operation with the Police.  He handed to the Judge (and, for the first time, to Crown counsel) a copy of email exchanges in which a member of the Police confirmed that the appellant had given  the  Police  information  which  allowed  the  Police  to  locate  a  further  four firearms and which also resulted in the prosecution of another named person.  This was referred to, I am told, in open Court and it was also discussed openly in the appeal before me, so I do not feel constrained in setting out the details here.  The District Court Judge did not mention this matter in his sentence.

[14]   The appellant submits that on the authorities his co-operation was not inconsequential, there needs to be a proper incentive for offenders to co-operate, and that accordingly a further three months’ discount should have been given.

[15]    So far as totality is concerned, the submission is that taken together – particularly having regard to the low level drug offending – a further three months’ discount should be given.

The respondent’s submissions

[16]     Ms Law for the respondent submits that the final sentence of 18 months’ imprisonment is well within the range available to the District Court Judge.  Ms Law says that the District Court Judge could have imposed a sentence of two years’ imprisonment.   On the authority of R v Hadfield,[2]  the District Court Judge would probably  have  kept  the  discount  for  co-operation  out  of  his  sentencing  notes,

although it is conceded that there was no confidential memorandum attached to the Court file as should be the case if the Judge had been following the procedure recommended by the Court of Appeal in Hadfield.

[2] R v Hadfield CA337/06, 14 December 2006.

[17]     Ms Law tendered a further letter from the Police.  This confirmed that the appellant  had  co-operated  to  the  extent  of  providing  information  that  allowed firearms to be located.  However, the letter does not say that any further prosecution arose from the information and I can infer that it might not have because the letter says that the information was provided on the basis that the owner of the property would not face charges relating to the firearms.  It also says that the appellant did not offer  any  further  information,  nor  would  he  name  any  of  his  co-offenders. Ms Dallison for the appellant had not seen this letter prior to the appeal hearing commencing and I note that the letter is undated.

[18]     I am concerned with identifying the appropriate sentence for the respondent’s offending.   I can receive evidence if that is necessary.   Part of my jurisdiction is triggered if I am satisfied “that substantial facts relating to ... the offender’s character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court”.[3]

[3] Summary Proceedings Act 1957, s 121(3)(b).

[19]     If the respondent had wanted me to accept the contents of the letter as fact then it should have had them verified by affidavit and applied, on notice, for me to accept the affidavit as evidence in the appeal.  The appellant would then have been able to address the issue. As it is, the appellant is taken by surprise.

[20]     My options are to adjourn the hearing of the appeal to enable the letter to be verified and for the appellant to consider the matter, or to reach my decision based on the material before the District Court Judge.   Ms Law does not apply for the former and I opt for the latter.  I do so because I do not consider that the differences between the Police advice handed up at sentencing on behalf of the appellant and that contained in the letter provided by Ms Law are so great, and would impact so greatly on my decision, that the interests of justice require an adjournment.  I will take it that the appellant provided the Police with information that led directly to the

recovery of four firearms and, indirectly, to the arrest of another man.   That is a degree of co-operation which is less than fulsome but which should accrue some credit to him in his sentencing.

Discussion

[21]     Manufacturing a small quantity of cannabis oil for personal use by a first offender can attract a sentence of around six months’ imprisonment.[4]   End sentences may well be non-custodial depending on the background circumstances.[5]

[4] R v Latta [1985] 2 NZLR 504.

[5] For example, Pearce v Police HC Invercargill CRI-2005-425-26, 13 December 2005.

[22]     In this case, with just a “small quantity”[6] of cannabis oil found in a bowl, and it being accepted that there was no element of commercial gain, I find that nine months as a starting point was not available to the District Court Judge.  In my view, the range available was four to six months’ imprisonment.

[6] It seems never to have been weighed.

[23]     The District Court Judge was entitled to impose an uplift because of the

appellant’s previous convictions for drug offending. These were:

2002               Cultivating cannabis  Fined $500

2004               Possession of cannabis and               1 month imprisonment

utensils  concurrent with other offending

2009               Possession of cannabis  Convicted and discharged

2010               Possession of cannabis (x2)              Community work

2010               Possession of cannabis  Intensive supervision

Possession of cannabis oil

Possession of methamphetamine and utensils

[24]     However, the uplift should have been modest.  The previous convictions are all for relatively minor offending and none are for manufacturing.  The uplift of three months chosen by the District Court Judge represents one-third of the starting point

of nine months.  In my view, the highest starting point available was six months and

a maximum uplift of two months could have been imposed.  This makes the final

starting point eight months’ imprisonment.

[25]     For  the  receiving charge,  the  cases  support  a  starting  point  for  property valued at around $2,000 of perhaps six to eight months.[7]    However, firearms are in my view in  a more serious  category.   Taking  into  account  that  they were  also unlawfully in  the  appellant’s  possession,  a  starting  point  of  at  least  12 months’ imprisonment is appropriate.  Again, an uplift for the appellant’s criminal history of dishonesty is necessary.   There are, by my count, 29 such convictions spanning a

[7] See the review undertaken by Duffy J in Aurupa v Police [2012] NZHC 2750.

period between 2001 and 2011.  They are mostly for burglary but, significantly, in

2008 the appellant was sentenced to 120 hours’ community work on a conviction for receiving.  This extensive history warrants an uplift of 50%, so I calculate that an appropriate starting point for this offending was 18 months’ imprisonment.

Discounts

[26]     Guilty  pleas  were  entered  at  the  first  reasonable  opportunity,  so  a  25% discount is available.[8]  For the drugs charge that means an end point of six months’ imprisonment.

[8] Hessell v R [2011] 1 NZLR 607 (SC).

[27]     For the receiving charge, it is first necessary to consider the effect to be given to the appellant’s co-operation with the Police.  The respondent, on the authority of Hadfield, submits that a discount of 10% to 15% should be afforded.  The appellant submits that three months’ discount (which equates to about 17%) on the 18 months’ overall sentence would be appropriate.  Ms Dallison, for the appellant, submits that his co-operation was not inconsequential and it is important that offenders be incentivised to provide the Police with information.

[28]     The cases are clear that meaningful co-operation should be rewarded.  The extent of the discount depends on the value of the co-operation.  Here, four firearms were recovered as a direct consequence of the appellant’s help.  I have also taken it

that indirectly another person was prosecuted.  But it is the recovery of the firearms

which I find to be significant.  They are inherently dangerous, and more so when circulating as stolen weapons outside the licensing system that regulates the lawful owners  of  firearms.    I  would  allow  a  discount  of  around  15%  and  reduce  the

18 months  by  the  three  months  sought  by  the  appellant;  in  other  words,  to

15 months’ imprisonment.

[29]     It is now necessary to apply the 25% discount for the early guilty pleas.  That brings an end point of (in the round) 11 months’ imprisonment.

Totality

[30]     The above analysis yields cumulative sentences of six months’ imprisonment on  the  drugs  charge  and  11 months’  imprisonment  on  the  receiving/unlawful possession charges.  A total of 17 months’ imprisonment.  The final issue is whether, standing back  and  considering  the overall  criminality of  the offending,  and  the circumstances of the offender, a sentence of 17 months’ is disproportionate.  There is no science to this inquiry; it is a matter of judgment.

[31]     In  my  view,  it  is  not  disproportionate.     The  offending  involved  the juxtaposition of Class B drug manufacture and receiving three stolen firearms.  The appellant did not hold a firearms licence.   Drugs and firearms are a dangerous combination.  The appellant is a recidivist offender with many prior convictions for dishonesty and  for drugs.   The pre-sentence  report  identifies  a  lifestyle and  an attitude which put him at a high risk of reoffending.  In making these observations, I am not penalising the appellant again for factors already assessed in calculating terms of imprisonment.  They are simply factors which must influence the inquiry as to whether in all the circumstances of this offending by this offender the sentence of

17 months’ imprisonment is disproportionate.

Manifestly excessive

[32]     The District Court Judge reached the view that 18 months’ imprisonment

should be imposed on the appellant.   My analysis reaches a total end sentence of

17 months’ imprisonment.   It does not matter that I would apportion the sentence between the charges differently.  It is the end result to which I must have regard.[9]

[9] R v MacCulloch [2005] 2 NZLR 665 (CA).

[33]     It is not for me to substitute my view for that of the District Court Judge unless I have identified an error which has led him to impose a sentence which is manifestly excessive.   Sentencing is not a precise exercise.   Here the one month difference cannot reasonably be said to have resulted in manifest excessiveness.

Decision

[34]     The appeal is dismissed.

Brewer J