Paul v The Queen
[2011] NZCA 589
•24 November 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA501/2011 [2011] NZCA 589 |
| BETWEEN SHILO CHARLES PAUL |
| AND THE QUEEN |
| Hearing: 9 November 2011 |
| Court: Wild, Chisholm and Potter JJ |
| Counsel: R Vigor-Brown for Appellant |
| Judgment: 11 November 2011 at 10 am |
| Reasons: 24 November 2011 at 3.30 pm |
JUDGMENT OF THE COURT
A The time for appealing is extended.
B The appeal, which is against sentence, is allowed.
CThe sentences totalling two years and three months imprisonment are quashed and replaced with a sentence of home detention for eight months on the conditions set out in [40].
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
On 11 November 2011 we delivered a results decision allowing this appeal against sentence, quashing the sentences totalling two years and three months imprisonment, and replacing them with a sentence of eight months home detention.[1] We indicated that the reasons for that decision would be delivered in due course. These are the reasons.
Introduction
[1] Paul v R [2011] NZCA 574.
Having pleaded guilty to manufacturing cannabis oil and hashish, cultivating cannabis, receiving (2), driving whilst disqualified (3), and breach of bail, the appellant was sentenced on 27 May 2011 to a total of two years and three months imprisonment. The three indictable charges involving drugs attracted concurrent sentences of 18 months imprisonment. Cumulative sentences totalling nine months were added for the receiving and disqualified driving.
Before those sentences were imposed the appellant had entered a plea of not guilty to a charge of burglary that was alleged to have occurred around the same time as the offending for which he was sentenced. Subsequently the appellant was convicted on the burglary charge and a sentence of three months imprisonment, concurrent on the sentences already being served, was imposed.
Although this appeal against sentence focuses on the sentences imposed for the drug offending, the underlying submission is that the cumulative sentences totalling two years and three months imprisonment were either wrong in principle or manifestly excessive. The appellant contends that the sentencing requirements of the case could have been achieved by a sentence of home detention.
The appeal is almost two months out of time. An extension of time is not opposed by the respondent and is granted accordingly.
The offending
In July 2010 the appellant was disqualified from driving for six months. On 15 November 2010 he was found driving a motor vehicle. False particulars were given to the police. A week later, on 22 November 2010, he was observed by a police officer to be driving a motor vehicle but it was not possible to stop him at the time because the police were attending to another urgent incident. Later that day he was again found to be driving a motor vehicle.
The remaining offending (other than the burglary on which he was later sentenced) was exposed when the police executed a search warrant at the appellant’s address on 25 November 2010.
A cell phone, portable USB stick, Ugg boots and a surge protector found at the appellant’s premises gave rise to the first charge of receiving (the value of the items was under $500). The second receiving charge arose from the discovery of a television set at the premises (valued at between $500 and $1000).
The facts relating to the drug offending were set out in a statement of facts that had been agreed upon between the prosecution and defence.[2] According to this agreed summary the following were located at the appellant’s premises:
(a)cannabis hashish weighing 279 grams and having a street value of $2500;
(b)cannabis oil weighing 15.5 grams and having a street value of $1000;
(c)cannabis leaf weighing 1073 grams; and
(d)66 cannabis seedlings of which 64 were approximately two inches tall and two were larger (10 inches tall).
This agreed summary recorded that the appellant told the police that he had made the hashish and oil for his own use to save money that he would otherwise have spent on drugs. He indicated that the leaf found in the laundry (454 grams) was left over from the manufacture of hashish and oil the previous evening.
The appellant
[2]It seems that another summary of facts concerning the manufacture of cannabis oil and possession for supply of cannabis oil was also before the Court at sentencing. However, the charge of possession for supply of cannabis oil was withdrawn and this summary should not have been before the Court.
At the time he was sentenced to imprisonment in May 2011 the appellant, who was 25 years of age, lived with his partner and their three children aged nine, six and four. He has five previous convictions in the District Court which attracted a conviction and discharge, fines, and in one case 40 hours community work. That offending included possession of cannabis and drink driving.[3]
[3]The appellant’s previous record indicates that his breath alcohol content when the offence was committed on 3 July 2010 was 480 micrograms per litre of breath.
For nine years until 2010 the appellant was employed in the forestry industry, having been a crew manager for the last three years. In 2010 his life took a significant turn for the worse when he was demoted for speeding in a work vehicle. Unwisely he over-reacted by handing in his resignation because he considered the demotion was unjustified. As a result he was unemployed for approximately eight months and the family experienced financial and other problems. It was during this period that the offending giving rise to this appeal occurred.
Ultimately, after the offending had occurred, the appellant and his partner were able to obtain employment. The appellant was employed in the demolition field and his employer reported to the probation officer that the appellant was “a good worker and has a high work ethic”. That employment continued until the appellant was sentenced to imprisonment.
The probation officer reported that the appellant’s response to the community work sentence imposed in 2010 was positive; there was a low risk of re-offending; the appellant was able to express insight into his offending which appeared to have arisen from the financial stress following his resignation from his previous employment; he had good family support; and he was described by his family as “a good father and partner”. The appellant was assessed as suitable for an electronically monitored sentence and a sentence of community detention/ community work/supervision was recommended.
Four letters of support from family members were also before the Judge. In broad terms these letters indicated that the appellant, his partner and their children were a close family unit, there was considerable whanau support, and the authors of the letters wanted the appellant to get his life back on track and were confident that he could do so.
When this appeal was heard in Auckland the appellant’s partner travelled to Auckland to support the appeal.
Sentencing in District Court
Having traversed the background to the sentencing Judge Ingram observed:[4]
I have received a probation report in respect of you, which your counsel rightly says has some positive features, and the recommendation is for community detention, community work, and supervision. I regret to say I cannot accept that recommendation in the circumstances. Somebody who behaves as you have been behaving in relation to driving whilst disqualified in my view simply is not suitable for an electronically monitored sentence. You do not do what the Court tells you. That is what those convictions for driving whilst disqualified mean to me. If you cannot comply with Court orders, you will not be getting a sentence which allows you to go home where you have to comply with the Court order.
Later[5] the Judge returned to the issue of home detention and indicated that the appellant’s disregard of court orders in relation to the driving whilst disqualified indicated that he was “totally unsuitable” for home detention and that such a sentence would be wrong in principle where the appellant had been “so determinedly criminal over a period of time”.
[4] At [4].
[5] At [11].
In relation to the starting point for the drug offending the Judge said:[6]
… there is absolutely no doubt that there was a commercial element behind all this. The quantity of drugs and the amount of manufactured material leaves me in no doubt at all that this was not entirely for your personal consumption. The question is, where do I start, given both the cultivation and the manufacturing? …
The Judge then accepted the Crown’s suggestion and adopted a starting point of two years imprisonment, being the bottom of category 2 in R v Terewi.[7]
[6] At [6].
[7] R v Terewi [1999] 3 NZLR 62 (CA).
Having reached that conclusion the Judge decided that there should be cumulative sentences for the receiving and disqualified driving. That conclusion is not challenged by the appellant. Then the Judge took into account the aggravating features of the offending: extent of the manufacturing operation and cannabis growing; premeditation; and the appellant’s previous record. On the mitigating side the Judge took into account the guilty plea and the age of the appellant.
Adopting the drug charges as the lead charges, the Judge started at two years imprisonment, allowed a discount of 15% (four months) for the guilty plea and a further two months for the appellant’s “youth”. On each of the drugs charges the appellant was sentenced to 18 months imprisonment (concurrent). A further cumulative sentence of three months was imposed in relation to each charge of receiving (a total of six months) and the appellant was sentenced to three months imprisonment on each of the driving whilst disqualified charges (cumulative on the other sentences but concurrent between themselves).[8] These sentences totalled two years and three months.
This appeal
[8]It is apparent from the Judge’s sentencing remarks that he thought that the maximum sentence for the driving whilst disqualified offences was three months. In fact the maximum sentence for the third offence was two years.
Mr Vigor-Brown was not counsel when the appellant was sentenced. We are grateful to him for the depth of his analysis which we are confident left us better informed than the sentencing Judge.
At the forefront of Mr Vigor-Brown’s argument was the submission that the appellant had pleaded guilty to the drug offending on the basis of the agreed summary of facts. That summary included the appellant’s assertion that the drugs were for his own use. To the extent that the Crown wished to assert a commercial purpose there should have been a disputed facts hearing under s 24 of the Sentencing Act 2002. It was wrong for the appellant’s sentencing counsel to concede a commercial purpose even at a low level. If those arguments were accepted a possible solution would be to refer the matter back to the District Court for a disputed facts hearing and re-sentencing.
Apart from the wrongly made concession just referred to, there was no sound basis on which the sentencing Judge could draw the commerciality inference that he did. Of the total quantity of cannabis leaf found at the premises (1073 grams), about half had been utilised the night before to manufacture cannabis oil and hashish and this leaf was spent and of no value. Thus the Judge’s approach involved a significant element of double counting. Added to that the quantity and value of the hashish had been overstated because it was still wet. While the cultivation of cannabis for the appellant’s own use was acknowledged, there were no indicia of commerciality such as scales, deal bags, tick lists, cash, et cetera.
Given those factors the two year starting point used by the Judge was too high. A starting point of 18 months would have been appropriate and in accordance with Terewi. Applying this starting point and the discounts used by the Judge for the drug offending, the end sentence for the drug offending should have been 13 months imprisonment (subject to the issue of home detention). Once the cumulative sentences totalling nine months were added the total sentence should have been 22 months imprisonment which would bring the sentence within the home detention range.
In relation to home detention Mr Vigor Brown submitted that the Judge had given too much weight to denunciation and deterrence and insufficient weight to the least restrictive outcome (s 8(g)) and the desirability of keeping offenders in the community (s 16). It was submitted that in all the circumstances the Court should have accepted that the appellant would successfully complete a community based sentence.
In support of the proposition that home detention was the appropriate outcome Mr Vigor-Brown noted: the appellant’s addiction to drugs since intermediate school; his relatively brief previous offending, all of which attracted community based sentences; his employment history, the circumstances surrounding the “spree” offending giving rise to the sentences under appeal; his successful rehabilitation after apprehension; self referral to the alcohol and drug counselling service in Rotorua and successful completion of that programme; positive family support; a positive probation officer’s report and recommendations.
Crown’s response
Mr Raftery submitted that the sentence of imprisonment was fair and within the range available to the sentencing Judge. He noted that at sentencing the appellant was represented by experienced counsel and that a commercial element to the drug offending had been accepted by his counsel. Given the absence of any signal from the appellant that the facts were in dispute, the Judge was entitled to act as he did and the sentence was not manifestly excessive.
Even if allowance is made for the drying of the hashish and the fact that about half the cannabis leaf had been used for the manufacture of hashish/oil, there were still significant quantities which justified the conclusion reached by the Judge that this was low level commercial offending within category two of Terewi. The starting point of two years for the drug offending had also been supported by the submissions presented on behalf of the appellant. Denunciation and deterrence were dominant considerations and the concurrent sentences of 18 months for the drug offending were appropriate.
In the alternative, even if the Court found that the sentence was manifestly excessive a sentence of imprisonment was nevertheless the appropriate outcome. The Judge’s findings as to the gravity of the offending were legitimate and his concerns that the appellant would fail to comply with a community based sentence were valid.
Initially Mr Raftery supported Mr Vigor-Brown’s suggestion that if this Court was concerned about the factual aspects of the matter it should be referred back to the District Court for a disputed facts hearing and re-sentencing. His concern was that without a disputed facts hearing this Court would be proceeding “without full information”.
Discussion
Given the parallels between this case and R v Gatenby[9] it is convenient to start by considering that decision. It involved an appeal to this Court against a sentence of two years and three months imprisonment for cultivating cannabis. Although the appellant maintained at sentencing that the cultivation was to provide cannabis for his own use, not for a commercial purpose, the sentencing Judge found that the cultivation was for a commercial purpose. There was no disputed facts hearing in terms of s 24 of the Sentencing Act.
[9] R v Gatenby CA511/04, 28 April 2005 at [15].
When considering whether the finding of a commercial purpose could stand this Court concluded that s 24(2)(c) governed the position.[10] It reasoned:[11]
… Cultivation of cannabis may be for personal use or for a commercial purpose. The guilty plea, at least in the context of this summary of facts (which did not directly assert the existence of a commercial purpose), did not establish one purpose to the exclusion of the other. It follows that the existence of a commercial purpose was an “aggravating fact” in terms of s 24(3)(a)...The appellant’s personal use assertion, although dubious, cannot be rejected out of hand, as wholly implausible or manifestly false. Proof beyond reasonable doubt was necessary. The finding cannot stand.
Although the Court was originally minded to remit the case back to the District Court for a disputed facts hearing, it concluded that s 385(3) of the Crimes Act 1961 did not permit that course. Under those circumstances the Court decided to resolve the appeal on the information then available. It found that the cultivation was for the appellant’s personal use and the sentence was reduced accordingly.
[10]That section provides that if a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other, the prosecutor must prove beyond reasonable doubt the existence of any disputed aggravating fact.
[11] At [15].
Since that appeal was decided s 385(3) of the Crimes Act has been amended to enable this Court to remit a case back to the sentencing court in terms of paragraph (c) of s 385(3). However, given the view that we have taken of the matter (which we will explain shortly) and the fact that the appellant has already been in custody for almost six months, we have decided that we should determine the matter ourselves on the information that is currently available.
To the extent that more than one drug was involved and there was a concession at sentencing by the appellant’s counsel that the drug offending involved a commercial element, this case is not on all fours with Gatenby. Nevertheless, the appellant was entitled to be sentenced for the drug offending on the basis of the agreed statement of facts. While we have a good deal of sympathy for the sentencing Judge’s situation in light of the concession made by the appellant’s counsel at sentencing, we are satisfied that the Judge’s conclusion that the drugs were for commercial purposes has given rise to an injustice.
Our conclusion reflects a number of factors: when compared with the appellant’s assertion in the agreed statement of facts that the drugs were for his own use, the Crown’s allegation of a commercial purpose was clearly a disputed aggravating fact in terms of s 24(2)(c); challenges by the appellant to the usable quantities of cannabis leaf, which were not seriously disputed by the Crown before us; absence of any evidence of dealing; and the possibility that the Judge was influenced by a summary of facts that should not have been before him. This is the summary referred to in footnote 2 at [9] above. That summary recorded that the appellant had told the police that the hashish and oil “would supplement his income”.
Even if it was open to the Judge to conclude that there was an element of commerciality we note that category 2 was described in Terewi at [4] in this way:
Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where the sales are infrequent and of very limited extent a lower starting point may be justified.
(Our emphasis)
Given the absence of any evidence of sales and also the absence of any indicia of commerciality, this case comes within the emphasised words. We agree with Mr Vigor-Brown that the appropriate starting point was 18 months imprisonment rather than the two years adopted by the Judge. Once the discounts and cumulative sentences applied by the Judge are taken into account the end sentence is within the home detention range.[12]
[12]The calculation is 18 months less 15% (2.7 months) = 15 months (rounded down) less 2 months = 13 months plus 9 months = 22 months imprisonment.
When considering whether home detention is the appropriate response it is important to place the relevant offending in context. Before it occurred the appellant had a relatively brief list of prior convictions, none of which had resulted in a custodial sentence. The spree of offending occurred during a crisis in the appellant’s life, albeit a crisis largely of his own making. Once he came to his senses after being apprehended he took positive steps towards rehabilitation. He obtained employment. He also referred himself to a drug rehabilitation programme, successful completion of which has been verified by the Rotorua Alcohol & Drug Counselling Service (it seems likely that this information was not before the Judge). All of this was reflected in the very positive probation officer’s report and the recommendation for a community based sentence.
We agree with Mr Vigor-Brown that the Judge’s approach to home detention failed to give sufficient weight to the least restrictive outcome in terms of s 8(g) of the Sentencing Act and the desirability of keeping the appellant in the community in terms of s 16. We are satisfied that when all the circumstances are taken into account this is a case where the purposes referred to in s 16(2)(a) can be achieved by a sentence other than imprisonment, namely, a sentence of home detention.
Earlier[13] we arrived at a notional sentence of 22 months imprisonment. For present purposes that can be translated into a sentence of 11 months home detention. However, an adjustment needs to be made to reflect that the appellant has been in prison since 27 May 2011 and the duration of the home detention is reduced to eight months accordingly.
Result
[13] At [35].
The time for appealing is extended and the sentences totalling two years and three months imprisonment are quashed.
A sentence of eight months home detention is substituted. The conditions relating to the home detention are:
(a)Upon release from prison the appellant is to travel directly to 7A Bell Road, Rotorua, where he is to await the arrival of a probation officer and security officer.
(b)The appellant is to reside at 7A Bell Road for the duration of the sentence.
(c)He is not to possess or consume alcohol and/or illicit drugs for the duration of the sentence.
(d)He is to undertake such family and/or parental responsibilities as are negotiated with, and approved by, a probation officer.
(e)He is to report to a probation officer as directed.
(f)If required by the probation officer he is to attend, and complete, any further drug and alcohol programme to the satisfaction of the probation officer and programme provider. Details of the appropriate programme are to be determined by the probation officer.
We conclude by adding a message to the appellant. Hopefully his time in custody will have driven home to him the importance for himself and his family of breaking his drug habit and avoiding offending in the future.
Solicitors:
Crown Law Office, Wellington for Respondent
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