Pawa-Buckton v Police HC Auckland CRI-2010-463-81
[2011] NZHC 14
•14 January 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-463-81
BETWEEN AARON MICHAEL PAWA-BUCKTON Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 14 January 2011
Counsel: JD Munro for Appellant
CM Ryan for Respondent
Judgment: 14 January 2011
ORAL JUDGMENT OF RODNEY HANSEN J
Solicitors: Mr JD Munro, P O Box 7140, Wellesley Street, Auckland 1141
Meredith Connell, DX CP24063 for Respondent
AARON MICHAEL PAWA-BUCKTON V NEW ZEALAND POLICE HC AK CRI-2010-463-81 14 January
2011
Introduction
[1] Mr Pawa-Buckton pleaded guilty in the Rotorua District Court to charges of cultivating cannabis, possession of equipment for cultivating cannabis and theft of electricity. He was remanded to this Court for sentence on 9 March 2011. Judge McGuire declined an application for bail pending sentence. Mr Pawa-Buckton appeals against his decision.
[2] The appeals turn on the way in which the Judge exercised his discretion under s 13 of the Bail Act 2000 which provides as follows:
13 Exercise of discretion when considering bail pending sentencing
(1) If a defendant is found guilty or if a defendant pleads guilty, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.
(2) The onus is on the defendant to show cause why bail should be granted.
(3) When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:
(a) whether the defendant is likely to receive a sentence of imprisonment:
(b) the likely length of time that will pass before the defendant is sentenced:
(c) the personal circumstances of the defendant and the defendant's immediate family:
(d) any other consideration that the court considers relevant.
(4) If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.
[3] In R v Leone[1] the Court of Appeal had the following advice for judges considering s 13:
[1] R v Leone [2009] NZCA 325.
[7] ... We are of the opinion that when trial judges consider bail following conviction, they should address the likelihood of imprisonment as relevant in the following respects:
(a) If imprisonment is not a real or substantial possibility, s
13(4) will apply (and bail would ordinarily be granted).
(b) Under s 13(3)(a) the judge must not only address whether there is a real or substantial possibility of imprisonment but also form a view as to how likely it is that such a sentence will be imposed. The more likely (or probable) a sentence of imprisonment, the more likely it is that bail will be refused.
As Ms Ryan pointed out, however, a consideration of s 13(3) is not to be confined to the likelihood of imprisonment. Relevant post-conviction factors arising under s 8 may also be taken into account – Leone.[2]
[2] At [6].
[4] That said, the critical issue for the purpose of this appeal is whether Mr Pawa-Buckton is likely to receive a sentence of imprisonment. Judge McGuire concluded it was likely that he would be sentenced to imprisonment. Mr Munro presents his case on the basis that that assessment was wrong.
Background facts
[5] The facts are, of course, crucial to the assessment under s 13. They are as follows, drawing on the agreed summary of facts.
[6] When the police executed a search warrant at Mr Pawa-Buckton’s home on
30 October 2010, they found an indoor cannabis-growing operation in a bedroom. There was a lighting system and an extraction fan to regulate air temperature and maintain the flow of air. There were fertilizers found in the garage. There were 68 healthy cannabis plants, ranging in height from 15 – 35 cms. Mr Pawa-Buckton had inserted a piece of wire into the electricity meter box which prevented the meter wheel spinning and reading any power usage.
[7] When spoken to, Mr Pawa-Buckton admitted responsibility for the operation. He said the plants were around three weeks old. His intention was to plant them out
in the bush when they were bigger. He said he had tampered with the meter so that he could pay less for his electricity bill at the address. He said he had been doing this for about two weeks.
Judge’s decision
[8] In considering the likelihood of a sentence of imprisonment, Judge McGuire carefully reviewed a number of sentencing decisions relied on by defence counsel appearing (not Mr Munro) in which a sentence of home detention had been imposed or considered to be available. There was particular reliance on R v Latham[3] in which cultivation of cannabis was also associated with the theft of electricity. The other cases considered by the Judge were all High Court sentencing decisions.
[3] R v Latham [2007] NZCA 552.
[9] The Judge found all decisions distinguishable, either on their facts or because of the personal circumstances of the offender. He judged the offending to fall “firmly” within category 2 of R v Terewi[4] and therefore likely to yield a sentence of
imprisonment. He said:[5]
Regrettably in this case, with the sophistication of this operation, the theft of power, the deal bags, the scales and so on, the preliminary view that I have formed firmly is that this was within category 2 of Terewi and, as I say, likely to yield a term of imprisonment without home detention. That ultimately is entirely for the discretion of the High Court when sentencing, but what it means for today’s purposes is that the defendant has failed to make out his grounds for bail pending sentence.
[4] R v Terewi [1999] 3 NZLR 62.
[5] At [26].
[10] Judge McGuire was clearly of the view that Mr Pawa-Buckton was not able to rely on personal circumstances or previous good character in order to significantly mitigate a starting point determined by category 2 of Terewi, increased by the aggravating offending of theft of electricity Although, at 22, he is a relatively young man, he has regularly appeared before the courts, albeit for relatively minor
offending.
Discussion
[11] In his submissions, Mr Munro relied solely on Latham to support his submission that a sentence of imprisonment was in fact not likely. He also relies on a material error in the Judge’s reasoning brought about, on the one hand, by an apparent error as to the relevant facts and, on the other, by his omission to take into account a significant mitigating circumstance.
[12] In Latham the appellant had pleaded guilty to cultivating cannabis over a period of a year and stealing electricity over a period of almost two years. He was sentenced to two years two months imprisonment on the cultivation charge and 14 months concurrent imprisonment on the theft charge.
[13] Mr Latham had cultivated a total of 254 plants, 8 in containers outside and the rest in a roof cavity in his home. 117 of the plants were mature, in the sense of producing buds suitable for harvesting. There was evidence of a commercial purpose in the presence of hand-held scales, tin foil and snaplock bags. The sentencing Judge had accepted that the offending was within category 2 of Terewi. She rejected a submission that the entire crop was for the appellant’s personal use. She adopted a starting point of three years after taking into account aggravating factors, including the theft of electricity.
[14] After discussing the relevant factors, the Court of Appeal was “unable to conclude” that Mr Latham’s offending fell within category 2 of Terewi and therefore merited a starting point of three years imprisonment. The Court said[6]:
... We take the view that although the number of plants and other indicia of cultivation were reasonably significant, the likely yield was modest and the evidence of supply, rather than sale, to others was minimal. We conclude the appellant’s offending was on the border-line of Categories 1 and 2 of Terewi and bear in mind the appropriate sentences discussed in that case for such offending. In light of that, our view is that the appropriate starting point, even taking into account the aggravating factors identified by the Judge and the duration of the theft of electricity, was imprisonment in the region of two years or a little more.
[6] At [26].
[15] In the result, the appeal was allowed and a sentence of one year and four months imprisonment substituted on the charge of cultivating cannabis. The sentence of theft of electricity was correspondingly reduced to ten months imprisonment. Leave to apply for home detention was granted.
[16] I am bound to accept Mr Munro’s submission that the facts of this case are less serious than Latham. Obviously, the number of plants involved is significantly less and most were smaller and younger than the plants in Latham. In these circumstances, it would not be safe to infer commercial supply coming within category 2 of Terewi from the cultivation of seedlings alone. As any gardener knows, it is one thing to sprout a packet of seeds. It is another thing altogether to rear them to maturity.
[17] In Latham, of course, there was corroborating evidence of intention to supply. Contrary to the comments and observations of the Judge quoted in [26], that is not the case here. Although Ms Ryan has not had an opportunity to check with her counterpart in Rotorua, I accept, on the basis of Mr Munro’s submissions, that there was no evidence that scales were found at the premises or of deal bags (plural) being present. The photographic evidence indicates that a single plastic bag was found. These factors were plainly material to the Judge’s finding that the offending came within category 2 of Terewi.
[18] While, ultimately, that assessment will be for the sentencing Judge, on the information available at this stage, and having regard in particular to the approach of the Court of Appeal in Latham, I would not be prepared to anticipate sentence on a basis that categorised the offending any higher than the border-line of categories 1 and 2 of Terewi. Even taking into account the theft of electricity (on facts much less serious than in Latham), I consider that there is a good prospect that any prison sentence would be short enough to permit a sentence of home detention to be considered.
[19] The apparent omission, to which I referred earlier, was Mr Pawa-Buckton’s employment prospects. It may be that this circumstance was not referred to Judge McGuire. If so, that was a significant oversight. A letter from Prime BOP Limited,
written today, confirms that Mr Pawa-Buckton had been employed with the company since June 2009 as a general labourer. He is described as a reliable worker who generally put in a good day’s work. He was often available for weekend and off-site work which was much appreciated by his employer. When the leading hand of his line was absent, Mr Pawa-Buckton filled the role of leading hand. His permanent position has been lost but his employers say that they would definitely consider employing him if they had a position available. If he were to be released on bail, he would be employed on a casual basis.
[20] It is not without significance, in my view, that until the current offending, Mr Pawa-Buckton had not reoffended during the period of employment. I do not overlook that at the beginning of the relevant period there were some breaches of bail but both his employment record and his recent criminal history provide grounds for cautious optimism that Mr Pawa-Buckton may be maturing. That will plainly be a material consideration when it comes to sentence.
[21] Ms Ryan argued that even if a short sentence of imprisonment were to be appropriate, a sentence of home detention was no more than a “bare possibility”: see Leone.[7] I do not agree. Again, while emphasising that an assessment of personal mitigating circumstances will be a matter for the sentencing Judge who will be obviously much better informed than I am, I consider that a sentence of home detention will be a realistic option if the Judge adopts a starting point in line with the approach taken in Latham.
Decision
[7] At [11].
[22] For these reasons, I am of the view that the Judge erred in refusing to grant bail to Mr Pawa-Buckton. The appeal is allowed. Bail is granted on conditions that he:
(a) Reside at 30A Frank Street, Koutu, Rotorua; and
(b) Not possess or consume illicit drugs.
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