Police v Wilson HC Whangarei Cri-2011-488-4
[2011] NZHC 478
•12 May 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2011-488-000004
NEW ZEALAND POLICE
Appellant
v
PHILLIP JOHN WILSON
Respondent
Hearing: 12 May 2011
Appearances: Mr D B Stevens for Appellant
Ms M Scally for Respondent
Judgment: 12 May 2011
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
NEW ZEALAND POLICE V WILSON HC WHA CRI-2011-488-000004 12 May 2011
[1] Mr Wilson pleaded guilty in the District Court to charges of being in possession of methamphetamine for supply and supplying methamphetamine. The maximum sentence for both offences is life imprisonment.
[2] On 8 February 2011 His Honour Judge Davis sentenced Mr Wilson to 12 months home detention, together with post-release conditions for a period of 12 months[1]. The Solicitor-General now given his consent to an appeal by the informant against the sentence that the Judge imposed. The appeal is advanced on the basis that the sentence was manifestly inadequate and/or occasioned by errors in principle on the part of the sentencing Judge.
The facts
[1] New Zealand Police v Wilson DC Whangarei CRI-2010-088-004763, 8 February 2011
[3] The facts giving rise to the charges can be described very briefly. They arise out of a search by the police of Mr Wilson’s home on 22 October 2010. The search warrant that the police were executing on that date did not apparently relate to drugs, but to other issues. When the police searched Mr Wilson, they found a plastic bag containing a small amount of methamphetamine on his person, together with
$2,500.00 cash in his right front trouser pocket.
[4] The police then searched Mr Wilson’s dwelling under the provisions of s 18 of the Misuse of Drugs Act 1975. During this search they located more cash together with 2.2 gram of methamphetamine, having a total value of $2,200.00. The police also discovered electronic digital scales containing methamphetamine traces, and two documents bearing similarities to what are commonly known as “tick lists”. In total, the police located almost $5,000.00 in cash, either on Mr Wilson’s person or in the dwelling. This forms the basis of the supply charge. The 2.2 grams of methamphetamine that the police found inside the dwelling form the basis of the charge of possession for supply.
The sentencing hearing
[5] There was some debate in the District Court as to where the appropriate starting point lay. This was no doubt caused by an argument as to the extent to which the cash found in Mr Wilson’s possession related to past sales of methamphetamine. In the end, it appears that the Judge accepted, on the basis of an affidavit filed on Mr Wilson’s behalf, that part of the cash represented the proceeds of sale of a vehicle. I say this because the Judge directed that the sum of $2,500.00 was to be returned to Mr Wilson.
[6] The Judge appears to have accepted, therefore, that past sales had produced cash receipts totalling approximately $2,500.00. This would equate to approximately 2.5 gram of methamphetamine.
[7] The Judge selected a starting point of three years imprisonment as reflecting the totality of Mr Wilson’s culpability on both charges. Neither counsel takes issue with that starting point on appeal. He then added an uplift of three months to reflect Mr Wilson’s previous convictions for drug-related offending. No issue is taken with that aspect of the sentence either.
[8] The Judge then gave Mr Wilson a discount to reflect his relatively early guilty plea. This left him with a preliminary end point of 26 months imprisonment. At that point the Judge said[2]:
… The Court of Appeal have also indicated that in situations where end sentences of somewhere in the order of two years and three months are arrived at, it is appropriate to also consider whether home detention should be arrived at looking at the offending and looking or giving consideration as to whether or not it would be available to a particular [defendant]. In my view, given the guilty plea that has been entered early and the prospects of rehabilitation which Mr Wilson says he wants to embark on, it is appropriate that a further discount be available to him of two months such that a final end point of 24 months’ imprisonment is available to Mr Wilson.
[2] At [13]
[9] Having reached an end sentence of 24 months imprisonment, the Judge turned his mind to the issue of whether or not a sentence of home detention was
appropriate. He concluded that issue in Mr Wilson’s favour in the following
paragraph from his sentencing notes[3]:
[3] At [14]
I then need to turn by mind to whether or [not] home detention is appropriate. Mr Fairley, in this instance, pitched the case for Mr Wilson quite properly as being one whether Mr Wilson is genuine in the expression of his desire to “kick the habit”, if I can use that phrase, and if I am convinced that he is genuine in that desire than I should grant him home detention. However, if I am not convinced that that is the case then Mr Fairley quite properly pitches his submission it as being one where home detention should be denied. In my view, it is a finely balanced exercise but it is one in my opinion that if we do not offer Mr Wilson the chance to “kick the habit” as I have described it then we will probably not get a chance to do so in the future.
The appeal
[10] On appeal, counsel for the police submits that the Judge erred in principle in reducing the sentence from 26 months imprisonment to a final end point of 24 months imprisonment. He contends that there is no authority of the Court of Appeal to indicate that, in cases involving end sentences of around two years imprisonment, the Court should give consideration to reducing the sentence further in order to bring the sentence within the range in which home detention is available. Counsel also submits that Mr Wilson’s previous convictions, and sentences that he had previously received for similar offending, meant that he was, in reality, not a candidate for home detention at all.
Decision
[11] I agree with the Crown that, if the Judge considered that there was Court of Appeal authority to indicate that properly constructed end sentences should be reduced further simply to reflect the fact that they are close to an end sentence of two years imprisonment, that would appear to be an error of principle. Counsel were unable to refer me to any Court of Appeal authority indicating that a sentencing Judge should reduce an appropriate end sentence other than in accordance with the principles and purposes of sentencing contained in the Sentencing Act 2002.
[12] In the present case, however, I do not consider that this issue takes the matter any further. The Judge was clearly minded to give Mr Wilson a credit for his professed desire to rehabilitate himself, and one cannot quibble with a reduction of two months to reflect that factor. I therefore take the view that the Judge was entitled to proceed on the basis that an end sentence of two months imprisonment was appropriate.
[13] I have considerable sympathy with the Crown’s second submission. Mr Wilson has now amassed several previous convictions for drug-related offending. This commenced with a conviction in November 2004 for possession of instruments and possession of utensils. In October 2005 he was convicted of cultivating cannabis, and then in May 2007 he was convicted of distributing cannabis. The latter charge led to a sentence of community work and community detention.
[14] Of more significance, however, are convictions that were entered after 2007. On 21 August 2009, Mr Wilson was sentenced to ten months home detention on several charges. These included selling drugs, possession of methamphetamine for supply, possession of cannabis plant, unlawfully possessing a firearm and burglary. Subsequently, on 30 March 2010, Mr Wilson was convicted on another charge of being in possession of cannabis. This led to the imposition of a further month’s home detention.
[15] Mr Wilson then breached his home detention conditions in May 2010, and was sentenced to three months imprisonment on that charge on 2 August 2010. On the same date, he was sentenced to a concurrent term of three months imprisonment on another charge of breaching home detention conditions on 18 June 2010. He was also sentenced to community work on a charge of being in possession of cannabis plant.
[16] The end result, therefore, is that Mr Wilson has received two previous sentences of home detention for drug-related offending. He has then breached the conditions of his home detention on two separate occasions. In those circumstances, I agree with the Crown that, at first sight, the prospect that another sentence of home
detention would be imposed on further drug-related offending would appear to have been remote.
[17] The Judge was clearly motivated by the prospect that Mr Wilson had turned the corner, and had recognised the need to rehabilitate himself and quit his involvement with drugs. That fact is obvious from the passage cited earlier from the Judge’s sentencing remarks[4]. There was, however, little concrete evidence confirming the sincerity of this desire. The pre-sentence report was relatively bleak, and assessed Mr Wilson as having a low to moderate level of motivation to change.
The report noted that, beginning in 2008, Mr Wilson has continuously progressed up the sentencing hierarchy until he received the sentence of home detention in 2010. The recommendation contained in the report was for a sentence of imprisonment.
[4] At [9]
[18] Ordinarily, one would expect there to be concrete evidence of a desire to rehabilitate and effect a change of lifestyle before that factor could be determinative in selecting a sentence of home detention rather than imprisonment[5]. In the absence of such evidence, I consider that the only realistic option that was open to the Judge as at 8 February 2011 was a sentence of imprisonment.
[5] See R v Hill [2008] NZCA 41 at [39]
[19] Importantly, however, the principles to be applied in a Solicitor-General’s appeal are somewhat different to those to be applied on an offender’s appeal against sentence. In R v Duncan[6]and R v Donaldson[7]the Court of Appeal has confirmed that on a Solicitor-General’s appeal the Court should not interfere unless the sentence imposed is manifestly inadequate, or some error in principle is identified. The considerations that justify an increase in sentence must be more compelling than those that might justify a reduction.
[6] CA 253/2008, 14 October 2008
[7] (1997) 14 CRNZ 537
[20] In Duncan the Court said[8]:
[8] At [74]
These principles reflect the Court's appreciation of the harsh effect of substituting a non-custodial sentence for a prison sentence. In many circumstances there can be an element of inhumanity in doing so. An
offender must initially look at his or her pending sentencing with considerable trepidation and, in many cases, intense hope that a non- custodial sentence will be imposed, especially when that prospect is encouraged by their counsel. If in real jeopardy they will almost certainly be overwhelmed with relief if they in fact receive a non-custodial sentence. Although they will in all probability be advised of the right of appeal statutorily vested in the Solicitor-General and be apprehensive, they must necessarily feel elated that the primary sentencing process has been completed and imprisonment has been avoided. Hope may convert itself into confidence that the Judge's sentence will be upheld. In the meantime they have been at liberty. They have rejoined their family or friends and returned to their work and daily routine. They may have undertaken treatment or therapy where that has been recommended or stipulated as a condition, and such treatment may well be proving successful. With an appreciation of these considerations any decision to reverse a non-custodial sentence and replace it with a term of imprisonment is not lightly undertaken. The Court, indeed, is most reluctant to do so.
[21] Had I been required to determine this appeal on 9 February 2011, I would have had no compunction in allowing the appeal and sentencing Mr Wilson to two years imprisonment. I now need, however, to consider the present situation. This includes the fact that Mr Wilson spent three and a half months in custody on remand before being sentenced. That is equivalent to a seven month prison sentence. He has now also served more than three months of the sentence of home detention. That equates, roughly, with a sentence of six months imprisonment. Given that this is an informant’s appeal, I would be required to impose a sentence that is at the lower end of the available range. This means that I would need to impose a sentence that would require Mr Wilson to service about five to five and a half months in prison before being subject to automatic release.
[22] The issue for present purposes is whether the principles and purposes of sentencing require me to select that outcome rather than to permit him to remain on home detention for the next nine months.
[23] Although this was not a borderline case originally, it has now reached that status. This is because the Probation Service has confirmed that Mr Wilson is complying with the conditions of his home detention. His partner has also provided me with a letter confirming that he has remained drug-free, and that she is committed to ensuring that that remains the case. She says that she has given him one last chance to sort out his life.
[24] When I take those factors into account, it tips the balance against sending Mr Wilson back to prison. I am concerned that such an outcome may have a retrograde effect, given the progress that he appears to have made. For that reason I have concluded that, although the appeal clearly has merit, nevertheless in the particular circumstances of this case I am not prepared to disturb the sentence that the Judge imposed.
[25] Mr Wilson needs to know, however, that the Court now views him as a recidivist drug-dealer. Should he breach his home detention conditions or offend in a similar way in the future, he must know that there will be absolutely no prospect of home detention, and that a custodial sentence will be inevitable.
Result
[26] The appeal is dismissed.
Lang J
Solicitors:
Crown Solicitor, Whangarei
Thomson Wilson Law, Whangarei
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