Oates v The King

[2023] NZHC 1349

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2023-488-0014

[2023] NZHC 1349

BETWEEN

MATTHEW OATES

Appellant

AND

THE KING

Respondent

Hearing:	4 April 2023
Appearances:	D J Blaikie for Mr Oates A Goodwin for the Crown
Judgment:	31 May 2023

JUDGMENT OF ROBINSON J

[Sentence appeal]

This judgment was delivered by me on 31 May 2023 at 2:00 pm.

Registrar/ Deputy Registrar

Solicitors/Counsel: MWIS, Whangarei D J Blaikie, Kaikohe

OATES v R [2023] NZHC 1349 [31 May 2023]

Introduction

[1]    On 8 February 2023 Matthew Oates was sentenced at the Kaikohe District Court to 27 months’ imprisonment1 after pleading guilty to charges of cultivating cannabis (x 1),2 selling cannabis (x 22),3 and offering to sell cannabis (x 15).4

[2]    Mr Oates appeals his sentence. He says the sentence was manifestly excessive because: the starting point of three years’ imprisonment adopted by the Judge was too high; and discounts applied in recognition of his guilty plea and personal circumstances were too low. He also says that some discount should have been given to reflect that Mr Oates may face the prospect of having assets forfeited under the Criminal Proceeds (Recovery) Act 2009.

The offending

[3]    On 2 August 2022 Mr Oates signed a Police summary of facts which recorded that he would plead guilty to the charges arising out of the offending it described. That offending is summarised below.

[4]    At about 5:46 am on Thursday, 15 April 2021 Police executed a search warrant at Mr Oates’ home address. That is a coastal rural property, approximately four hectares in size. It has a large garden, a two-bedroom house, a large three-bay garage and a detached one-room sleepout. There are also three sheds and a small glasshouse on the property.

[5]    During the search of the house the Police located a small amount of cannabis and $5,420 cash in three areas in the home. When the Police searched the property, they located 66 cannabis plants growing in three different locations. Three of the plants were located growing in pots in a small glasshouse near the sleepout. 44 plants were found growing inside three grow tents located within one of two sheds on the property. Each of the plants was individually planted in ten litre pots and was growing

1      Police v Oates [2023] NZDC 2096.

2      Misuse of Drugs Act 1975, s 9. Maximum penalty seven years’ imprisonment.

3      Sections 6(1)(e) and (2)(c).  Maximum penalty eight years’ imprisonment.

4      Sections 6(1)(e) and (2)(c).  Maximum penalty eight years’ imprisonment.

under high intensity discharge lights. There were also fans and an active carbon filter in each of the tents. Nineteen plants were located in the second shed.

[6]    The Police carried out a yield test. A Court cannabis expert also estimated the potential yield of cannabis head per plant to be approximately two ounces (56 grams) of manicured seedless cannabis head. Police accept that Mr Oates would have personally used some of the cannabis. Excluding the three plants found in the glasshouse, the summary of facts records that if the remaining 63 plants each produced two ounces of cannabis head the total yield would be 126 ounces. Using an average price of $300 per ounce this would value the cannabis at $37,800.

[7]    Police also seized two telephones. The text messages on these phones between 3 December 2020 and 7 April 2021 give rise to the 37 charges against Mr Oates of selling and offering to sell cannabis. In relation to six of those charges, the quantity sold or offered for sale could not be identified. Of the remaining 31 charges: 21 charges relate to sales of a total of 36 ounces of cannabis; and 10 charges relate to offers to sell 32 ounces.

[8]    The summary of facts also reveals that the 37 sales or offers to sell were made to eight individuals.

The sentence appeal

[9]    Applying the principles set out in the Court of Appeal’s guideline judgment in R v Terewi the Judge adopted a starting point of three years’ imprisonment.5 The Judge gave Mr Oates a 15 per cent discount to reflect his guilty pleas. He also allowed a five per cent discount in recognition of matters set out in a report prepared pursuant to s 27 of the Sentencing Act 2002.

[10]   Mr Blaikie for Mr Oates submits that the Judge erred in all respects. As noted, he submits that the starting point was too high and that the discounts of 15 per cent and five per cent were each too low.

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

[11]   Mr Blaikie also points out that the Judge made factual errors. First, the Judge calculated the amount of cash found in Mr Oates’ house as $10,840,6 but it was only half that amount.  The Judge appears to have double counted the breakdown of the

$5,420 cash referred to in the Police summary of facts. Secondly, the Judge noted that “The total value of sales has been estimated by the Police and not challenged by you at $19,000”.7 Mr Blaikie correctly points out that the summary of facts actually identifies the total value of cannabis sold and offered for sale was $19,000 (being

$10,000 sold and $9,000 offered for sale).

[12]   On the other hand, and in my view more significantly, the Judge also appears to have made an arithmetic error in Mr Oates’ favour. Having determined to discount Mr Oates’ three-year term of imprisonment by 20 per cent the Judge imposed an end sentence of 27 months. The nine-month discount is a discount of 25 per cent.8

Law on appeal

[13]   This Court must allow Mr Oates’ appeal if it is satisfied that there is an error in the sentence imposed; and a different sentence should be imposed.9 Otherwise, the Court must dismiss the appeal.10 A starting point that is too high, or the application of an incorrect discount are examples of errors that can justify appellate intervention.11

[14]   The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.12 When a defendant appeals the Court’s decision the appeal Court will consider whether the sentence is manifestly excessive when applying s 250(2). Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.

6      Police v Oates, above n 4, at [3].

7 At [6].

8      Neither counsel made reference to this in their oral or written submissions, but it is something the Court must take into account in determining Mr Oates’ appeal.

9      Criminal Procedure Act 2011, s 250(2).

10     Section 250(3).

11     Tutakangahau v R [2014] NZCA 729, [2014] 3 NZLR 482 at [32].

12     Tutakangahau v R at [36]; and Te Aho v R [2013] NZCA 47 at [30].

Grounds of Appeal

[15]   As mentioned, in advancing Mr Oates’ sentence appeal Mr Blaikie relies on four grounds of appeal. I deal with each in turn.

First ground of appeal: starting point

[16]   As noted above, the Judge adopted a starting point of three years’ imprisonment, applying the guideline judgment in R v Terewi. In doing so the Judge held that:13

… I accept that sentencing has been somewhat mitigated in recent years as changing attitudes are quite properly reflected in sentencing levels, however, the starting point must be the Court of Appeal decision in Terewi that I am bound by.

[17]   On appeal Mr Blaikie submits that the starting sentence of three years’ imprisonment was too high and should have been two years and six months. He said that sentencing for cannabis in the District Court is inconsistent and submitted that this reflects how cannabis offending is viewed differently by different sections of the community. In any event, Mr Blaikie suggested that there has been a “strong tendency” in sentencing for cannabis offending to arrive at end sentences that do not require imprisonment.

[18]   In R v Terewi the Court of Appeal set out categories for offending for cultivating cannabis as follows:14

Category 1: consists of the growing of a small number of cannabis plants for personal use 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.

13     Police v Oates, above n 4, at [9].

14     R v Terewi, above n 5, at [4].

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.

[19]In 2017, the Court of Appeal in R v Smyth recorded that:15

[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 the light of changing social attitudes towards cannabis cultivation and consumption. We accept that Terewi, which was decided in 1999, may require reconsideration given change in social attitudes and the subsequent passage of the Sentencing Act 2002. However, this is not an appropriate case in which to embark on a 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.

[20]More recently, in Smith v R the Court of Appeal commented that:16

[12] We accept that this Court has previously recognised that Terewi “may require reconsideration given changing social attitudes and the subsequent passage of the Sentencing Act in 2022”. That would necessarily include revisiting the penalties associated with offending within the Terewi categories. For present purposes, however, those categories apply as originally formulated.

[21]   So, despite some recognition by the Court of Appeal that Terewi may require reconsideration, the Judge was correct that it continues to apply.

[22]   By way of comparison with Mr Oates’ case, Mr Blaikie refers me to a sentencing decision in the District Court where a defendant received a sentence of nine months’ supervision and 250 hours’ community work, having pleaded guilty to cultivating cannabis and unlawfully possessing a firearm. The sentencing notes were not yet available, but Mr Blaikie provided the summary of facts. According to that summary, 110 cannabis plants were found within the defendant’s home. The summary records that the Police did not believe the defendant’s explanation that he was growing the cannabis for personal use. However, unlike Mr Oates, that defendant was not charged with selling or offering to sell cannabis.

15     R v Smyth [2017] NZCA 530 (footnotes omitted).

16     Smith v R [2022] NZCA 606 (footnotes omitted).

[23]   Mr Oates’ cultivation of 66 female cannabis plants had an estimated yield of 126 ounces or 3.57 kilograms. Although I accept that Mr Oates was using some of this cannabis to sustain his not-insignificant personal habit, nevertheless there was clearly a commercial element to it. Over the course of 22 transactions, he sold at least 36 ounces; and on 15 occasions he offered to sell at least 32 more. The cultivation was small-medium in scale. In my view there was a moderate degree of sophistication with two sheds having been installed with a high intensity lighting system and an extraction fan being used.

[24]   The Judge’s starting point of three years is in the middle of the Terewi category 2. The Crown submits that starting point is easily justified and could have been higher. I agree with Mr Blaikie that it was also open to the Judge to adopt a lower starting point. However, I do not accept Mr Blaikie’s submission that the three-year starting point was manifestly excessive.

Second ground of appeal: guilty plea

[25]   The Judge gave Mr Oates a 15 per cent discount for his guilty pleas. The Judge thought Mr Oates’ guilty plea came too late to justify a higher discount. He found as follows:17

[14] In your favour, there are your pleas of guilty. Hessell v R sets out how sentencing judges should approach discounts for pleas. There is a later decision of Moses v R. You did not plead guilty at the first available opportunity. The first available opportunity is when the case is called for the first or second time. An offender knows whether he has committed the offence. If he is caught and at the first or second appearance stands up and says: “Yes, I did it,” without even receiving any disclosure as to how strong the case was against him then he should get a full credit of 25 per cent. Your plea came well after the first charges were filed and, in fact, almost 16 months. However, you are entitled to some, in my view, and I propose to give you 15 per cent.

[26]   Mr Blaikie submits that this discount was too low. He says Mr Oates advised the Court and the Police at a relatively early date that he would plead guilty once a satisfactory summary of facts could be agreed.

17     Police v Oates, above n 1 (footnotes omitted).

[27]   Mr Oates was charged on 2 July 2021. A minute of Judge Shortland in the District Court at Kaikohe dated 14 September 2021 records that on that date there were “strong intimated guilty pleas to the possession of cannabis charges and there are multiple  charges”.18     Judge  Shortland  remanded  the  matter  without  plea  until   5 October 2021, but recorded intimated guilty pleas. Judge Shortland anticipated that this would allow counsel and the officer in charge time to “tidy all matters up when they come to court next, then formal guilty pleas can be entered to the appropriate charges”.

[28]   Mr Blaikie submits that subsequently the administration of the matter was substantially delayed by Covid restrictions which cannot fairly be attributed to Mr Oates. He says that for “various reasons” a satisfactory summary of facts could not be agreed upon until shortly before a disputed facts hearing was to be held. As noted, Mr Oates signed that summary of facts on 2 August 2022. Mr Blaikie advises that the matter was then put off for sentencing on 26 October 2022, but again, “for various reasons” did not occur until 8 February 2023.

[29]   Mr Blaikie informs me further that during the sentencing the Police prosecutor acknowledged that the Police were advised relatively early in the proceeding of     Mr Oates’ intention to plead guilty, and conceded that in the circumstances a discount for a guilty plea should be between 20 and 25 per cent.

[30]   Mr Blaikie referred me to the Supreme Court decision in Hessell v R.19 In that case the Supreme Court held that it would be too rigid to require a defendant to always plead guilty before entering a disputed facts process in order to be eligible for the maximum discount.20 Instead, judges should assess the value of the plea in the particular circumstances, rather than scale the discount with reference to the exact timing of the plea.21

18     Police v Oates DC Kaikohe CRI-2021-027-408, 14 September 2021 (Minute of Judge Shortland) at [2].

19     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

20 At [61].

21 At [61].

[31]   Mr Blaikie emphasises that no date was set for trial because trial was never contemplated. Mr Oates made it clear as soon as possible that he intended to plead guilty. Although a disputed facts hearing was scheduled, this was also resolved. Counsel says that Court resources have been saved and Mr Oates was entitled to more credit for that. He says Mr Oates cannot be blamed for Covid-related procedural delays.

[32]   For the Crown, Mr Goodwin submits that the Judge’s assessment of the discount was appropriate in circumstances where the evidence against Mr Oates was strong, and the guilty plea not finally entered until 16 months after the charges were laid.

[33]   In the sentencing notes, the Judge did not refer to Mr Oates’ early intimation of a sentencing guilty plea; nor the resolution of the disputes about the relevant facts; nor Mr Oates having signed the summary of facts and confirmed his  guilty  plea on 2 August 2022, six months prior to sentencing. However, Mr Oates was represented by Mr Blaikie and I proceed on the basis that the Judge had all that relevant material before him. Nor did the Judge refer to any concession by the Police prosecutor that the discount should be in the range of 20 – 25 per cent; although the extent of any discount is ultimately a matter for the Court.

[34]   Although in my view the Judge would have been justified in applying a 20 per cent discount, I do not consider the 15 per cent discount he did apply was so low as to be an error. In any event, in circumstances where the Court appears, inadvertently or otherwise, to have given Mr Oates an extra five per cent discount additional to the discounts he expressly applied, I would not allow Mr Oates’ appeal on this basis alone.

Third ground of appeal: background factors - s 27 report

[35]   On the other hand, with the greatest respect to the Judge, I accept Mr Blaikie’s submission that the Judge erred in applying only a five per cent discount in respect of the matters described in Mr Oates’ s 27 report.

[36]Having briefly summarised the contents of the s 27 report the Judge held:

[19] It is not necessary for me to go through the s 27 report in any great detail in this decision, suffice to say that I have read it and re-read it. The ultimate question is, does what has occurred to you in your earlier life mean that you were more likely to grow and sell cannabis? That is, were you more likely to become a drug dealer? Has that affected why you have? I find there is little nexus between what is in the report and that. You did this to make money. I am prepare[d] to give you a modest further discount of five per cent.

[37]   Mr Oates is 61 years old.   The s 27 report records that at 14 years of age    Mr Oates was in a serious car accident which left him facially disfigured. He was bullied and socially isolated as a result. At 16 years of age his sister, to whom he was very close, introduced him to marijuana and heroin. He continued to struggle through school but had difficulties learning. He used drugs habitually. At 18 years of age, he was in another car accident in which he was severely injured with a broken back. He was prescribed opiates to alleviate the pain. His drug use became drug addiction.

[38]   After years of use and with some effort, including self-referral to a rehabilitation centre, Mr Oates was eventually able to get control of his heroin addiction. He graduated from the rehabilitation course and has remained clear of heroin. However, his cannabis use has continued.

[39]   Approximately 30 years ago Mr Oates and his partner were the subject of a home invasion. Mr Oates’ partner was badly assaulted, and Mr Oates shot and killed one of the intruders. He was charged and tried for murder, but the charge was ultimately dismissed under what was then s 347 of the Crimes Act 1961.

[40]   Since then, Mr Oates and his partner have lived something of a reclusive life. He has had difficulties integrating into the local communities in which he has lived. He has had recurring disputes with neighbours. He is said to be suffering from high levels of anxiety and post-traumatic stress disorder (PTSD). He suffers from depression and continues to be a regular user of cannabis.

[41]   Mr Goodwin for the Crown submits that the five per cent discount appropriately recognised the connection between Mr Oates’ background as set out in the s 27 report and his offending. He submits that the Judge was right to find that the

nexus between Mr Oates’ background factors and his offending was not particularly strong. Counsel refers to Waho v R22 and Carr v R.23

[42]   More recently, the Supreme Court in Berkland v R confirmed that where it can be established that an offender’s background was an operative or proximate cause of their offending, that is likely to be a potent sentencing factor.24 Proximate afflictions may include addiction or mental illness.25 The Supreme Court observed as follows:26

[109] But requiring operative or proximate cause in every case sets the bar too high. We prefer the Carr standard of causative contribution. It captures background factors that are, as we explain below, the more diffuse drivers or the intergenerational sources of offending; factors that would be excluded as insufficiently connected under a stricter causation standard. These contributory factors are important because they can provide rational explanations for why an offender has come to offend. Contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment. Contributory depravation, including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely. Where these factors do help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purpose of sentencing.

[43]   Applying these principles, as I must, I am satisfied that Mr Oates’ background as described in the s 27 report demonstrates at least a strong causal nexus between his background and his offending. I am satisfied that the injuries Mr Oates suffered in two car accidents during his formative years have had adverse physical, psychological and social consequences for him through his adult life including drug addiction and isolation. The invasion of his home and the shooting fatality for which Mr Oates was charged (but then discharged) with murder must have exacerbated those difficulties. Although much of the information in the s 27 report is self-reported it is corroborated to some extent by his pre-sentence report. Mr Oates accepts that he has a cannabis addiction and that he requires assistance to address that. Mr Oates’ previous convictions over a long period for possession of cannabis are consistent with that.

22     Waho v R [2020] NZCA 526.

23     Carr v R [2020] NZCA 357 at [60].

24     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

25 At [108].

26     Footnotes omitted.

[44]   I am also satisfied there is a causal connection between these factors and Mr Oates’ offending. Drug use has featured throughout Mr Oates’ life, starting in adolescence following the first of his two motor accidents. More than forty years later, Mr Oates now lives a relatively isolated and reclusive life. He was growing cannabis for his own use, and also for sale. In identifying the causal connection between Mr Oates’ background and his offending, I also take into account that, as other courts have acknowledged, there has been a change in social attitudes to cannabis over the past 25 years. This is not in any way to condone or excuse Mr Oates’ offending, but in my view it is part of the context in which the causes of Mr Oates’ offending need to be assessed. In all of the circumstances I would allow a 20 per cent discount to reflect the various matters personal to Mr Oates that have contributed to his offending.27

Fourth ground of appeal: Criminal Proceeds (Recovery) Act 2009

[45]   Finally, I do not accept Mr Blaikie’s submission that a further discount should be made to reflect the possibility that Mr Oates may suffer the adverse effects of forfeiture orders. It is not clear what (if any) orders have been sought, nor what Mr Oates’ response to any such application may have been. In general terms there is merit in Mr Goodwin’s submission that it would be contrary to the policy of both the Sentencing Act 2002 and the Criminal Proceeds (Recovery) Act 2009 to allow sentencing discounts simply because it is possible that forfeiture orders may be sought and made.

Conclusion – totality of discount

[46]   The Judge discounted Mr Oates’ sentence by 25 per cent (including the five per cent error in Mr Oates’ favour). I find the Judge erred in allowing a discount of only five per cent in respect of matters raised in the s 27 report. I consider a total discount of 35 per cent is appropriate: 20 per cent for the background factors; and 15 per cent for the guilty plea. The 10 per cent difference of 3.6 months’ imprisonment is significant in the context of an end sentence of 27 months’ imprisonment.28

27     Notwithstanding these conclusions, I agree with the Judge’s observation at [18] that the matters set out in the final paragraphs of page eight of the s 27 report are unhelpful and unnecessary.

28     See, for example, Jackson v Police [2022] NZHC 3300 at [22].

End sentence

[47]   It follows from my analysis that the end sentence of imprisonment for two years and three months was manifestly excessive. In applying a 35 per cent discount to the starting point of three years’ imprisonment, the appropriate end sentence is a term of imprisonment of 23 months (rounded down from 23.4 months).

[48]   Because the final sentence is a short-term sentence of imprisonment, I am obliged to consider whether home detention is appropriate.29 In my minute of 3 May 2023, I asked the Department of Corrections to prepare an amended pre-sentence report that complies with s 26A of the Sentencing Act 2002. I received that report on 26 May 2023. Both counsel declined the opportunity I gave them to make submissions about that report.

[49]   The proposed home detention residence is out of Northland. It is technically feasible  and suitable for electronic monitoring.  Its sole occupant  is  a  friend of   Mr Oates’ who the Department of Corrections has assessed to be suitable. That person supports Mr Oates and consents to him residing at the address whilst on home detention. A probation officer has visited that person at the address and explained the requirements and conditions of home detention.

[50]   I am satisfied that this is a case where a sentence of home detention will properly satisfy the sentencing principles of deterrence and denunciation, as well as holding Mr Oates accountable for his offending.30 It will recognise the seriousness of his offending and the extent of Mr Oates’ culpability.31 It is also the least restrictive sentence available in the circumstances.32

[51]   Mr Oates was sentenced to imprisonment on 8 February 2023. As such he has spent almost four months in prison. But for that I would substitute Mr Oates’ sentence of 23 months imprisonment with a sentence of 12 months home detention. However,

29     Sentencing Act 2002, s 16(2).

30     Section 7.

31     Section 8(a).

32     Section 8(g).

from that I deduct eight months to allow for the four months Mr Oates has served in prison. That leaves an end sentence of home detention of four months.

Result

[52]   The appeal against the sentence is allowed. The sentence of two years’ three months’ imprisonment is quashed and a sentence of four months’ home detention is imposed, to:

(a)commence on 1 June 2023;

(b)be served at the  address specified  in the pre-sentence  report dated  26 May 2023; and

(c)be subject to the proposed special conditions of home detention set out in that report.

Robinson J