Potene v Police HC Hamilton CRI 2007-470-01

[2007] NZHC 1661

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-470-01

ROBYN RANGITAWA POTENE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 February 2007

Appearances: L Te Kani for the Appellant

S Litt for the Respondent

Judgment:      23 February 2007

ORAL JUDGMENT OF PRIESTLEY J (Appeal on Sentence)

Solicitors:

L Te Kani, Tauranga

S Litt, Crown Solicitor, P O Box 19-173, Hamilton

POTENE V NZ POLICE HC HAM CRI 2007-470-01  23 February 2007

Introduction

[1]      This is an interesting and finely balanced appeal.  There is a large measure of common  ground  between  counsel.     I  have  been  assisted  by  their   focused submissions.

Sentence

[2]      The appellant was sentenced to a term of 15 months imprisonment by Crosby DCJ in the Tauranga District Court on 8 December 2006.  Leave to apply for home detention was refused.

[3]      Something  briefly  needs  to  be  said  about  the  relevant  offending.    The appellant at that time was aged 43.   She appeared on four charges.   There is no dispute over the summary of facts.

[4]      Three of the convictions were for sale of cannabis. The fourth conviction was for offering to supply cannabis plant. Under the Misuse of Drugs Act each of those four charges carries a maximum penalty of eight years imprisonment.

[5]      At the time of the offending the appellant appears to have had a lease for and was operating, at least for part of the day, a takeaway shop.  This takeaway shop in Te Puke was, according to the summary of facts, in Cameron Road, immediately opposite Te Puke High School.   It was also a short distance away from Te Puke Primary School.

[6]      Three offences were committed by the appellant selling a tinnie (cannabis wrapped in tinfoil) to an undercover policeman.  The fourth charge relates to offering to  supply  a  bag  of  cannabis,  which  offer  went  to  the  extent  of  the  appellant secretively opening a plastic snaplock bag containing cannabis and showing it to the police officer involved.

[7]      The appellant was represented in the District Court by a Queen’s Counsel. She entered guilty pleas for all charges.  The Judge had before him materials which

suggested the appellant had an active involvement in various community groups in Te Puke.  She also had responsibility for two adopted children aged 13 and 8.  So far as her criminal history is concerned, although she has accumulated five convictions between  1985  and  2004,  none  of  those  related  to  drugs.    There  was  a  2004 conviction for receiving and an assault in 1997, both of which were dealt with by way of fine or coming up for sentence if called upon.

Jurisdictional Error in the Sentence

[8]      The Judge’s route to the 15 month end sentence is unremarkable.  However, his attention was not drawn to the fact that the four charges the appellant faced were laid indictably.   Relevant to s 153A of the Summary Proceedings Act 1957 the appellant pleaded guilty before depositions.

[9]      It is common ground between counsel that, when convicted summarily, the maximum penalty which can be imposed under s 6(3) of the Misuse of Drugs Act

1975 is one of 12 months imprisonment.   These jurisdictional factors have been examined by the Court of Appeal in R v Hoe [2001] 2 NZLR 633 at [11] and also in R v McLeod [1988] 2 NZLR 65 (CA). In a situation, as here, where a person is convicted summarily of qualifying offences which may justify a sentence in excess of 12 months, the correct procedure is for the Judge to decline jurisdiction and remand to the High Court for sentencing. This was not done here.

[10]     The written submissions of the appellant’s counsel initially suggested that the jurisdictional error should be fixed in concrete and that I should interfere with the sentence to the extent of quashing it and reducing it to a figure below the 12 month maximum.    However,  on  mature  reflection  Mr  Te  Kani,  and  in  my  judgment properly so, accepts the preferable course of action, urged on me by Ms Litt, is quite simply to quash the District Court sentences as having been imposed ultra vires and re-sentence the appellant on the same basis as if she had been remanded to this Court as she should have been.

[11]     Accordingly the appeal is allowed and the four concurrent sentences of 15 months imprisonment imposed in the Tauranga District court on 8 December 2006 are quashed.

Manifestly Excessive

[12]     Heroically Mr Te Kani submitted that a 15 month term would be manifestly excessive.    There  was  no  quarrel,  either here or in  the  District  Court,  that  the offending fell at the bottom end of the second category stipulated in R v Terewi [1999] 3 NZLR 62 (CA) and that the appropriate start point was one of two years.

[13]   There is no suggestion by Ms Litt that an end sentence of 15 months imprisonment is manifestly inadequate.  She submits, however, that a 15 month term is well within range and that it is a sentence I should replicate in this Court.  Mr Te Kani on the other hand submits that the District Court gave inadequate weight to the fact that the appellant had no prior convictions under the Misuse of Drugs Act and that she had a supportive family, added to which was her community involvement.

[14]     There is force,  I think, in Ms  Litt’s submission that the absence  of any convictions under the Misuse of Drugs Act is not so much a mitigating factor as the absence of what would be an aggravating factor if it were present.

[15]     By giving a discount, from a two year start point, of nine months in my judgment the Judge has appropriately reflected both the early guilty pleas and also the various mitigating factors relevant to the offender.  I see no reason to alter that end sentence or to impose something different.   Accordingly the sentence of this Court on all four charges on which the appellant was convicted is one of 15 months imprisonment.  Such terms are to be served concurrently.

Home Detention

[16]     Section 97(3) of the Sentencing Act provides:

97       Court  must  consider  granting  offender  leave  to  apply  for  home detention in certain cases

…

(3)       The court may grant the offender leave to apply to the New Zealand Parole Board under section 33 of the Parole Act 2002 for home detention only if the court is satisfied that it would be appropriate to grant leave, taking into account—

(a)      the nature and seriousness of the offence; and

(b)      the circumstances and background of the offender; and

(c)       any relevant matters in the victim impact statement in the case.

[17]     The Judge dealt with the submission for leave to apply for home detention to be granted in the following fashion.  He referred to the provisions of s 97(3).   He referred to the Court of Appeal’s judgment   R v Rosevear (CA238/05 29 August

2005).   That decision involved what the Court described as determined and sophisticated offending involving the production of the Class B drug cannabis oil. The Judge then reflected on the recent amendment to s 97 which has little application to the issue and concluded thus:

[11]      One of the reasons I have referred to the support that you have from people is that personal circumstances are relevant in relation to the discretion to permit leave to apply.   For me, while your personal circumstances are important, what weighs heavily against that is that in my view the principle feature today is one of deterrence.  That deterrent aspect in my view would be lost in the circumstances of your case and this offending if leave to apply for home detention was granted.  As I have said, the starting point in your case is two years imprisonment.

Having imposed the 15 month sentence he declined leave to apply.

[18]     Ms Litt submits that having regard to the various aggravating factors of the offending including the willingness of the appellant to sell to strangers; the fact that the tinnies were being regularly packaged and available; the presence of her retail activities opposite a high school; and a need for deterrence, the Judge’s refusal was correct.   Although the Sentencing Act principle of deterrence is not specifically mentioned in s 97(3) Ms Litt submits, correctly so, that the relevant purposes and principles of the Sentencing Act must overarch that provision.

[19]     Mr Te Kani submits that the Judge, in exercising his s 97(3) discretion, has effectively ignored the various personal qualities of the appellant referred to in the pre-sentence report, particularly the fact that she has a supportive family.   Mr Te Kani also submitted (there being no dispute to this from Ms Litt) that the written submissions by the Crown to the Judge incorrectly stated that the appellant’s home address was being used in the offending.  It is clear from the summary of facts that although the appellant was operating a business from the Cameron Street takeaway bar it was not her home address.   The Judge does not refer to this factor in his sentencing notes.   Nonetheless Mr Te Kani submits that the incorrect submission may to some extent have influenced the Judge.  I doubt whether that would be the case, because in para [2] of his sentencing notes, after having heard the summary of facts read out in open Court the Judge correctly refers to the “Cameron Road Takeaway” in Te Puke.

[20]     The difficulty I have with the Judge’s approach to the question of leave is that although he has correctly identified the relevant statutory provisions (s 97(3)) he does not appear to have referred specifically to the s 97(3) criteria.   He refers to people prepared to support the appellant but that, in his judgment, was outweighed heavily by the need to deter.

[21]     There is little authority on the issue.  But I do note that small scale suppliers of cannabis have from time to time been granted leave to apply for home detention in the High Court.  Such cases are found in R v Pulham (HC WHA CRI 2006-029-169

12 October 2006 Miller J); R v Sibley (HC WHA S05-029-1338 13 April 2006

Nicholson J) where six tinnies were sold to undercover officers on four occasions in a  prisoner’s  home;  and  in  R  v  Edwards  (HC  WHA  CRI-2005-088-004443  25

September 2006 Asher J).  Interestingly these three cases are all emanating from the Whangarei Registry.  I do not regard them as being hugely persuasive and for that reason have not invited counsel to comment on them.  Nonetheless, granting leave to apply for home detention in roughly comparable cases, is not unknown.

[22]     I do not criticise the Judge for giving heavy emphasis to deterrence.   That aggravating factor however should primarily be reflected in the areas of start points and credits for mitigating factors.  Under the current legislation, in deciding whether

or not to grant leave, courts are very much aware that the substantive decision is not theirs but a Parole Board’s.

[23]     In my judgment there are sufficient positive features about the appellant’s circumstances including her domestic situation, her community involvement, her family support and the absence of previous drug convictions, to justify a Court leaning reasonably strongly towards granting leave in a case such as this.

[24]     I  do  not  share,  with  respect,  the  Judge’s  assessment  that  the  need  for deterrence weighs heavily against those factors I have just itemised.  Accordingly I think the preferable course of action is for me to grant to the appellant leave to apply for home detention.  I accordingly do so.

Addendum

[25]     Ms Litt has responsibly pointed out to me that no order was made by the Judge to reflect the Crown’s request that the seized cannabis be destroyed.  I order accordingly.

.........................................… Priestley J