P v Police HC Invercargill CRI 2005-425-26

[2005] NZHC 392

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2005-425-000026

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2005

Appearances: D G Slater for Appellant

S N McKenzie for Respondent

Judgment:      13 December 2005

ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN

[1]      This is an appeal against sentence by   P  .  He was before the District Court for sentence on four charges, the most serious of which was production of a class B controlled drug, cannabis oil.  It was laid indictably.  He was also for sentence on charges of possession of cannabis plant material; possession of materials which were spotting knives and cones; and resisting a police constable.

[2]     The learned District Court Judge imposed a sentence of six months imprisonment on producing the class B controlled drug, granting leave to apply for home detention.  In relation to the cannabis material the Appellant was discharged.

On  the  charge  of  possession  of  utensils  he  was  sentenced  to  one  month

P  V POLICE HC INV CRI 2005-425-000026  13 December 2005

imprisonment.  On the charge of resisting the police constable he was sentenced to

14 days imprisonment; both concurrent with the sentence imposed for the class B

drugs.

[3]      On 16 August this year the police executed a search warrant on a Riverton property occupied by P   and two others.   A number of cannabis related items were located by the police; which included spotting knives, spotting needles, cones which are used for spotting cannabis oil, and enough cannabis leaf to make six cannabis cigarettes.  Of more significance, on the property was located an empty 1.5 litre “Coca-Cola” bottle that contained cannabis leaf that appeared as though it had recently been soaked in Isopropyl alcohol.   It was approximately half full.   An almost empty container of Isopropyl alcohol was located in the kitchen.  Further searching of the property located the other half of the “Coca-Cola” bottle, also containing cannabis which had clearly been strained through a filter at the bottom of the bottle.  That was part of the process of producing cannabis oil.

[4]      The resisting the police charge arose from later the same day.  When the Appellant was approached by the police he became aggressive and upset.  He was uncooperative and had to be arrested.  Ultimately he acknowledged that the leaf and utensils found at the property were his and he admitted using the leaf and Isopropyl Alcohol to make about two teaspoons of cannabis oil.

[5]      The Appellant is aged 21 with previous convictions, although neither have anything to do with drugs.  There is a drink driving charge and a common assault charge.  I also note it appears that this young man has a number of other motoring offences, and has outstanding fines of over $4,000.  Notwithstanding the amount of fines being outstanding, the probation service recommended that a fine be imposed for this offending.  The Appellant is employed and would appear to be in receipt of a reasonable income.  He had a letter of support from his employer and is described as a good worker, reliable and obedient, doing what he was told.

[6]      The Judge referred to cases that the Crown relied on, namely R v Wallace [1999] 3 NZLR 159 and R v Latta [1985] 2 NZLR 504. In particular he relied on the following citation from Latta at 506:

…  Even for a first offender apparently making small quantities for personal use only, we would regard a sentence of up to six months imprisonment as generally appropriate at the present time.  …

[7]      The Judge accepted that the drugs were for personal use and he accepted that the quantity was extremely small.  Notwithstanding that, he felt that he was bound, particularly by Latta, and felt he could not resile from a sentence of imprisonment in the circumstances.

[8]      The Crown, on the basis of Wallace and Latta had submitted to the Judge that an appropriate sentence for this offending, which is the production of approximately two teaspoons of cannabis oil, warranted a sentence of between 12 and 18 months.

[9]      While the submissions to the Judge focused on ss 7 and 9 of the Sentencing Act, there appears to be no reference to s 8 of that Act.  Ms McKenzie on appeal has submitted that notwithstanding the passing of the Sentencing Act 2002 previous tariff cases apply.  While I accept that, the legislative framework that now controls the sentencing process, and the principles and purposes applicable, must be borne in mind.

[10]     Also of significance, it seems to me, was the failure of counsel to refer the Judge to the decision of R vHarding (CA 308/92, CA 348/92, 11/12/92) to which I shall return.

[11]     Mr Slater submits that given this young man’s minor previous offending, the fact there were no previous drug offences, the fact of his good reference and work records, and the fact of the minor amount of drugs involved, it was wrong to impose a custodial sentence; and indeed the Judge was wrong to hold effectively that he was bound by Wallace and Latta to impose a custodial sentence.

[12]    Wallace and Latta are hardly cases that assist in terms of the drugs and quantities involved in this case.  In Wallace the appellants were involved in the manufacture,   supply   and   possession   of   methamphetamine   which   was   then categorised as a class B drug.   Latta was involved in the manufacture of a considerable amount of homebake.

[13]     While it is true in Latta the Court said for the manufacture of small amounts a starting point of six months imprisonment would normally be appropriate, it is appropriate to cite from the decision at more length.  Although it was dealing with homebake the Court said at 506:

…  But there can be no time when it is more necessary for the Courts to use their sentencing powers firmly in the hope of deterrence than at the early stage of the growth of a new social evil.  Whatever can reasonably be done by sentencing policy to stop homebake manufacture spreading further must be done now.   It has to be remembered that people do not embark on manufacture, even by fairly simple methods, casually.   A good deal of planning and preparation is involved.  With this type of activity there is accordingly reasonable ground for thinking that prospective penalties will from time to time deter at least some from a disastrous and insidious course.

For those reasons we think it must be made clear that imprisonment will be the normal penalty for homebaking morphine or heroin.  People may begin in quite a small way, but there are the inevitable temptations and tendencies already mentioned.  Of course, sentencing Judges cannot be bound rigidly by  any  policy;  the  particular  facts  of  individual  cases  require consideration.   Nevertheless it has to be said that only in special circumstances would a non-custodial sentence be justifiable.  Even for a first offender apparently making small quantities for personal use only, we would regard a sentence of up to six months imprisonment as generally appropriate at the present time.  A year would not necessarily be excessive.

(emphasis added)

[14]     Of course, in that case the Court of Appeal were dealing with the beginning of  the  influx  of  homebake  morphine.    That  required  a  relatively  sophisticated process, far more sophisticated than the simple soaking of cannabis leaf in Isopropyl alcohol and the straining of it.   While the production of cannabis oil requires conscious and premeditated steps, they are nothing like as sophisticated or as extensive as is required in the manufacture of say methamphetamine in Wallace or homebake morphine as in Latta.

[15]     A  decision  dealing  with  cannabis  oil  is  the  decision  of  Harding.    The offender Harding faced one count of possession of cannabis oil for supply, and one count of possession of 13.8 grams of cannabis plant, possession of 50 capsules or 93 grams of cannabis oil.  Another offender, Martin, faced three counts of selling to an undercover constable a total of 253 capsules of cannabis oil over a three week period for a total of $4,910.  Martin also faced one count of selling cannabis plant for $150.

[16]     Harding was sentenced to nine months periodic detention and Martin to 12 months.  On the Solicitor-General’s appeal the sentence was quashed and substituted with one year’s imprisonment for each offender, the Court of Appeal noting that both had pleaded guilty at an early stage.

[17]     That can be contrasted with the present case.  In Harding it was clearly for commercial purpose.  A significant amount of cannabis oil was involved.  The value sold  to  the  undercover  constable  alone  was  nearly  $5,000.    Between  the  two offenders there was a total of well over 300 capsules of cannabis oil involved and yet the Court deemed a sentence of 12 months imprisonment, even allowing for the fact it was the Solicitor-General’s appeal, was appropriate.

[18]     A further factor is the Sentencing Act.  While I accept the general proposition advanced by Ms McKenzie that the Sentencing Act does not suddenly override tariff sentences and guidelines, the principles set down in s 8 must be borne in mind, as must the purposes in s 7 and the aggravating features in s 9.  Indeed, it seems to me that in any case of sentencing a Court must focus on s 8.

[19]     In this case s 8(a) requires a Court to take into account the gravity of the offending in the particular case, including the degree of culpability of the offender. This is accepted by the Crown as low level offending.  Indeed, one could put it at the lowest level for this type of offending.   The Court must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by maximum penalties prescribed.  Again, it is enough to say that this is low level.  Subsection (c) has no relevance in this case, nor does (d).  Subsection (e) requires the Court in general to attempt to attain consistency of sentence for similar offenders committing similar offences.  Subsection (f) deals with the impact on victims which is irrelevant for this particular exercise.  Subsection (g), importantly, requires the Court, because it uses the term “must”, to impose the least restrictive outcome that is appropriate in the circumstances.  Subsection (h) requires the Court to  take  into  account  the  particular  circumstances  of  the  offender  that  means  a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instant, be disproportionately severe.  Subsection (f) takes into account personal matters, family, whanau, community and cultural

background.  Finally subs (j) takes into account the outcome of historical justice processes which are irrelevant here.

[20]     It  seems  to  me  in  this  case  the  provisions  of  s 8  cannot  be  ignored,  in particular the requirement to impose the least restrictive outcome.  With due respect to   the Judge, I do not read either Wallace or Latta as saying a sentence of imprisonment must be imposed for low level class B manufacture.  As the President made clear in Latta at 506, and I repeat the sentence “Of course, sentencing Judges cannot be bound rigidly by any policy; the particular facts of individual cases require consideration.”

[21]     In this case it was low level offending.   The amount of cannabis oil could only be worth but a few dollars, there is no estimate of value put forward.  It was unsophisticated, and it was accepted by the Judge as for the Appellant’s own use.

[22]     In all of those circumstances I feel the Judge has erred by feeling he was bound to impose a custodial sentence because of the Court of Appeal decisions. While that is the normal course of events, sentencing requires sufficient flexibility to allow sentences to be appropriately imposed to deal with individual circumstances, notwithstanding that in drug cases personal circumstances do not count for all that much.

[23]    In my view, this matter can be adequately dealt with by a non-custodial sentence.  Accordingly, the sentence of imprisonment is quashed.  The Appellant is sentenced to 150 hours community work.  He is sentenced to supervision for a period of 12 months to enable this man to get the assistance that he clearly needs.  He is also to undergo any such programmes as directed by Community Services.

Solicitors:

D Slater, Invercargill for Appellant

Preston Russell Law, Invercargill for Respondent

CC:

Judge Butler