Police v Lang

[2015] NZHC 3107

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-000072 [2015] NZHC 3107

BETWEEN

NEW ZEALAND POLICE

Appellant

AND

JAN FULTON LANG Respondent

Hearing:	8 December 2015
Counsel:	C M Gisler for Appellant C J Tennet for Respondent
Judgment:	8 December 2015

JUDGMENT OF COLLINS J

Introduction

[1]      This judgment explains why I am allowing the Solicitor-General’s appeal against a sentence of a $1500 fine imposed on Ms Lang by Judge Davidson in the Wellington District Court on 8 October 2015.  The sentence was imposed in relation to one charge of possession of cannabis for sale or supply and reflected a sentence indication, which Judge Davidson gave Ms Lang on 8 October 2015.1   I am allowing the appeal because I am satisfied Judge Davidson made a significant error in the sentence he imposed and that Ms Lang should now receive a different sentence.

[2]      I am quashing the sentence imposed and remitting this case back to the District Court.  Ms Lang may wish to seek leave in the District Court to vacate her guilty plea.  If Ms Lang’s plea is not changed, pre-sentence reports, including a home

detention report will be required before Ms Lang is re-sentenced.

1      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c). Maximum penalty of eight years’ imprisonment.

NEW ZEALAND POLICE v LANG [2015] NZHC 3107 [8 December 2015]

[3]      In giving my reasons I will explain:

(1)       the background to Ms Lang’s offending;

(2)       Judge Davidson’s decision;

(3)       appeal principles for Solicitor-General’s appeals;2

(4)       the error in the sentence imposed;

(5)why I am satisfied a different sentence should now be imposed in this case; and

(6)       my conclusions.

Background

[4]      On 1 June 2014 at about 5.45 am, the police conducted an enquiry on an unrelated matter at Ms Lang’s address in Wellington.  When Ms Lang opened her door, the police officer noticed a strong smell of cannabis coming from inside the address. The police undertook a search of the property.

[5]      Located in a 10 litre paint container in the living room were 150 zip lock bags of cannabis material weighing approximately 3 grams each.  Located in another 10 litre paint container under the first container were six zip lock bags of cannabis head material weighing approximately 28 grams each.   In other containers in the living room were approximately another 39 grams of cannabis.   In total, 657 grams of cannabis was found in Ms Lang’s possession.

[6]      Inside a set of drawers in the living room was a set of digital scales and under the coffee table were boxes of unused zip lock bags.  Ms Lang stated that she was the

sole occupant of the address and the cannabis was for her personal use.

2      I will refer collectively to prosecutors’ appeals brought by the Crown with the consent of the

Solicitor-General in this judgment as “Solicitor-General’s appeals”.

Judge Davidson’s decision

[7]      Judge Davidson gave Ms Lang a sentence indication on 8 October 2015.  He adopted a starting point of 18 months’ imprisonment.  Judge Davidson observed that a two year starting point would be too high in the circumstances of this case as there was no evidence of actual sales of cannabis by Ms Lang.

[8]      Judge Davidson determined that Ms Lang was entitled to discounts for her guilty  plea,  her  prior  good  record  and  her  exemplary  personal  circumstances. Judge Davidson observed Ms Lang’s work history was “impressive”, as was her commitment to community work.  Judge Davidson was shown a copy of Ms Lang’s CV, which shows she has had a successful work history.  She has also been an active member of a sports club.   A reference from a member of that sports club was presented to Judge Davidson.   No other information about Ms Lang’s community work was presented to Judge Davidson.

[9]      Judge Davidson noted that it would “be wrong to send [Ms Lang] to prison”.3

He considered that home or community detention would not be satisfactory as such a sentence would restrict Ms Lang to the home where the offending took place.

[10]     Judge Davidson considered that a sentence of community work would be inappropriate  in  the  circumstances  of  Ms  Lang’s  case  because  she  already participated in community work on a voluntary and regular basis.  Judge Davidson was satisfied that the embarrassment of a conviction for offending in itself a punishment for Ms Lang.  He determined a fine of $1500 was a “significant” penalty.

Legal principles governing Solicitor-General’s appeals

[11]     The fact a defendant has pleaded guilty following a sentence indication does not affect the right of a prosecutor to appeal the sentence imposed.4

[12]     Section  246  of  the  Criminal  Procedure Act  2011  (the Act)  sets  out  the

prosecutor’s right to appeal against a sentence.   Section 250 of the Act governs

3      Police v Lang DC Wellington CRI-2014-85-6366, 8 October 2015 at [7].

4      Criminal Procedure Act 2011, s 245.

sentence appeals from the District Court to the High Court.  Section 250(2) of the

Act provides:

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction;  and

(b)      a different sentence should be imposed.

[13]     It  is  well-established that  an  appellate  Court  should  not  interfere  with  a sentence imposed by a District Court Judge unless the sentence is manifestly inadequate or wrong in principle.5    In particular, the Court should not substitute its own opinion for that of the sentencing Judge.6

[14]     It is also well-established that a sentence should not be increased pursuant to a Solicitor-General’s appeal unless, on a review of the facts and circumstances of the case, it is clear that the sentence which was imposed was manifestly inadequate or the Crown is able to point to some error in principle upon which the Judge acted.7

The error in the sentence imposed

[15]     From the outset, I am not satisfied that Judge Davidson made a significant error in the starting point he adopted.  The quantity of cannabis found in Ms Lang’s possession placed her case in band two of the categories set out by the Court of Appeal in R v Terewi8 and therefore justified a starting point of between two to four years’ imprisonment.  Although a starting point of 18 months is lower than the range normally adopted for the amount of cannabis found in Ms Lang’s possession, the starting point adopted by Judge Davidson was not in itself manifestly inadequate. Ultimately however, the focus of my attention must be on the end sentence imposed

by Judge Davidson.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[36].

6      Wells v Police [1987] 2 NZLR 560 (HC) at 565.

7      R v Donaldson (1997) 14 CRNZ 537 (CA) at 549; citing R v Wihapi [1976] 1 NZLR 422 (CA) at

424 and R v Pue [1974] 2 NZLR 392 (CA) at 392.

8      R v Terewi [1999] 3 NZLR 62 (CA). See Police v Baker HC Wellington CRI-2005-485-157,

21 February 2006 at [14]; citing R v Manaena (Gillies) HC Napier CRI-2004-020-1348, 30 July
2004; R  v  Pearson CA2/03, CA3/03, 24  June 2003;  R v  Rihari HC Whangarei -S05102,
23 September 2005.

[16]     I  am  satisfied  that  Judge  Davidson  adopted  a  process  that  resulted  in  a sentence that was structured to reach a non-custodial result which could not be justified according to the well settled purposes and principles of the Sentencing Act

2002.9   In my assessment, at the very least, after applying generous discounts for the

late guilty plea, Ms Lang’s lack of previous convictions and prior good character, Judge Davidson should  have considered  adopting a provisional end sentence of around 12 months’ imprisonment.

[17]     At that point, a sentence of home detention in the vicinity of six months would have been appropriate having regard to the purposes and principles of the Sentencing Act as set out in ss 7 and 8 of that Act.

[18]     The approach taken by Judge Davidson meant he failed to have due regard to: (1)     holding Ms Lang accountable for the harm done to the community;10 (2)  promoting a sense of responsibility in Ms Lang for that harm;11

(3)       denouncing her conduct;12

(4)       deterring others from committing the same type of offence;13

(5)the gravity of the offending as it involved a significant amount of cannabis;14

(6)       the seriousness of the charge of possession for sale or supply of a

Class C drug;15 and

(7)the general desirability of the Courts to impose consistent sentences for offences.16

9      R v Kennedy [2011] NZCA 109 at [32].

10     Sentencing Act 2002, s 7(1)(a).

11     Section 7(1)(b).

12     Section 7(1)(e).

13     Section 7(1)(f).

14     Section 8(a).

15     Section 8(b).

[19]     In my assessment, a sentence of approximately six months’ home detention would have been the most appropriate sentence in the circumstances of Ms Lang’s case.

Why the appeal must be allowed

[20]     Appellate courts have consistently said that on a Solicitor-General’s appeal the considerations justifying an increase must speak more powerfully than those which justify a reduction and that an appellate court is more reluctant to increase than it is to reduce a sentence.17    Appellate courts have generally adhered to the following well-established guidelines:

(1)The appellate court will generally only increase a sentence in “clear cut” cases.18

(2)Care  must  be  taken  to  ensure  that  the  appellate  court  does  not override the sentencing Judge’s discretion to take a merciful approach or to adopt a course calculated to achieve rehabilitation, even in cases which would normally call for a deterrent sentence, particularly if the Judge has presided over the trial.19

(3)Even  if  the  Court  determines  that  the  sentence  is  manifestly inadequate or based upon a wrong principle, it will still be reluctant to interfere if this would cause injustice to the offender.

[21]     In particular, an appellate court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with than cases where an inadequate custodial sentence is in

issue.20

16     Sentencing Act 2002, s 8(e).

17     R v Wihapi, above n 7, at 434.

18     R v Beaman CA177/82, 16 November 1982.

19     R v Wihapi, above n 7 and R v Hunter [1985] 1 NZLR 115 (CA) at 121.

20     R v  Clark CA266/81, 10 March 1981; R v Parker CA246/87, 29 April 1988; R v Peters

CA309/85, 11 April 1986.

[22]     What the Crown is seeking in this case is at the very least a substitution of the

$1500 for a term of home detention.  The Sentencing Act 2002 establishes that home detention is not a custodial sentence.21

[23]     I am satisfied the criteria for allowing a Solicitor-General appeal have been met in this case.  My reasons for reaching this conclusion are:

(1)The sentence imposed was manifestly inadequate when compared to cases of this kind, which are usually dealt with by the imposition of either a prison sentence or a sentence of home detention.

(2)While Ms Lang was a first offender and has been a decent member of the community, her circumstances are not particularly different from many first time offenders.

(3)While requiring Ms Lang to undergo a process of re-sentencing will no doubt be distressing for her, I am satisfied that it would not cause an injustice for Ms  Lang to be sentenced in  accordance with the purposes and principles I have set out in this judgment.

[24]     Ms Lang has already paid the fine of $1500 imposed by Judge Davidson. That is a factor that will be taken into account when Ms Lang is re-sentenced. Taking that factor into account, Judge Davidson may very well reach an end sentence that is less than the sentence which I have said in paragraph [19] should have been imposed when Ms Lang was sentenced on 8 October 2015.

Conclusion

[25]     The appeal is allowed.  Ms Lang’s case is remitted back to the District Court

for re-sentencing.

21     Sentencing Act 2002, s 80A(5):  An offender sentenced to home detention is not in custody while serving the sentence.

[26]     Ms Lang may consider applying to vacate her guilty plea.  If the guilty plea is not vacated then pre-sentence reports, including a home detention report will be

required before Ms Lang is re-sentenced.

D B Collins J

Solicitors:

Crown Solicitor, Wellington for Appellant

Dominion Law, Kingsland, Auckland for Respondent