Preston v The Queen

[2010] NZCA 27

IN THE COURT OF APPEAL OF NEW ZEALAND

CA532/2009
[2010] NZCA 27

BETWEENCRAIG COLE PRESTON

Appellant

ANDTHE QUEEN

Respondent

Hearing:15 February 2010

Court:William Young  P, Wild and Heath JJ

Counsel:G Boot for Appellant

B D Tantrum for Respondent

Judgment:24 February 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal, which is against sentence only, is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1]        Did the Judge err in deciding not to sentence the appellant to home detention?  That is the issue on this appeal by Mr Preston against a sentence of 20 months imprisonment imposed on him in the District Court at Hamilton on 28 August 2009 by Judge Burnett.[1]

[1]R v Kenney DC Hamilton CRI-2008-019-8348, 28 August 2009.

[2]        For the appellant, Mr Boot contends that the appropriate sentence was 10 months home detention. 

Background

[3]        Mr Preston was sentenced on one charge of supplying the Class A drug methamphetamine, and also on two summary charges, one of possession of LSD, the other possession of cannabis.  The Judge also sentenced Mr Preston for a breach of his bail. 

[4]        All the drug charges arose out of what the Police found when they executed a search warrant at the home of Mr Preston’s co-offender, Mr Kenney, on 26 September 2008.  Concealed in one of Mr Preston’s shoes the Police found three snaplock bags containing a total of 2.1 grams of methamphetamine.  Mr Preston also had three LSD tabs, a small amount of cannabis, and $210in cash in his wallet.  His fingerprints were found on a plastic bag containing a large number of snaplock bags, and on a “tick list”.

[5]        The Police seized the appellant’s cellphone, and subsequently identified 15 occasions on which Mr Preston had sold, or offered to sell, methamphetamine in quantities varying between a gram and a point.  The appellant was arrested and charged.  He claimed the methamphetamine concealed in his shoe was for his own use, at a party he and Mr Kenney were about to go to.

[6]        The appellant pleaded guilty after his committal for trial. 

The Judge’s sentence

[7]        The Judge sentenced Messrs Kenney and Preston together.  Mr Kenney faced an additional charge of receiving.  He was 26 – two years older than Mr Preston.  Analysis of Mr Kenney’s cellphone showed that he had sold or offered to sell methamphetamine on at least 30 occasions.  The effective sentence imposed on Mr Kenney was three years imprisonment.

[8]        Dealing with Mr Preston, the Judge began by placing his methamphetamine offending in Band 1 of R v Fatu.[2]  As Fatu suggests starting points for this band in the range of two to four years,[3] Mr Boot felt unable to contest the Judge’s sentencing starting point of two and a half years imprisonment.  The Judge then reduced that to 20 months imprisonment, to allow for Mr Preston’s guilty pleas.  She imposed lesser, concurrent sentences on the other charges.

[2]R v Fatu [2006] 2 NZLR 72.

[3]At [34].

[9]        Turning to the question of whether the sentence should be home detention as opposed to imprisonment, the Judge assessed that deterrence and denunciation must take precedence over the appellant’s “favourable background”.  Her concern was that Mr Preston had either supplied or offered to supply methamphetamine on 15 occasions. 

[10]       This assessment was influenced by several factors.  First, although Mr Preston expressed remorse, including in an undated “To whom it may concern” letter, the Judge commented:

[23]       Although there are expressions of remorse, the prisoner has not really accepted the harm that he brings to the community by his offending.  ...  His customers may indeed have become strongly addicted with all the ramifications for those individuals, their families, their friends, and of course the community itself, all of which is frequently observed in the community but has not yet been acknowledged by this prisoner.  Such damage cannot be underestimated.

[11]       Consistent with this was Mr Preston’s unwillingness to give up his own “P habit”.  The Judge referred to this comment in the pre-sentence report:

...  Mr Preston’s drug use, in particular his use of methamphetamine, “P” is assessed as harmful, however he does not view it as such.  Mr Preston described himself as a “social” user who consumes what he considered to be a moderate intake on weekends.

[12]       Secondly, the Judge’s reference to Mr Preston’s “favourable background” was to the information she had in the pre-sentence report that Mr Preston had enjoyed a loving and supportive upbringing by parents who were at a loss to comprehend his offending.  The Judge made the point that Mr Preston had offended despite his favourable background.  Relevant here is that Mr Preston was convicted on 11 May 2007 of burglary and possession of instruments for burglary, and sentenced to 115 hours community work.  The Judge noted that the pre-sentence report recorded that Mr Preston’s compliance with that sentence “was not good and a number of letters from Probation were sent to him to remind him of the need to comply with that sentence”.

[13]       The pre-sentence report also recorded that Mr Preston had $4,510 in fines outstanding for some 16 infringement offences, most of them traffic offences.

[14]       Mr Preston’s breach of bail occurred on 4 June 2009, when he failed to appear for arraignment on the charges, and was further remanded in custody.  He had been living at home with his parents at the time. 

[15]       On the basis of all these matters, the Judge imposed sentence in these terms:

[24]       I am of the view that there is a lesson yet to be learnt by this prisoner and the least restrictive outcome is in my view a term of actual imprisonment rather than on home detention and the end sentence is 20 months.  To address rehabilitation I impose standard and special release conditions to continue for six months beyond sentence expiry date.  The special release conditions are to address drug offending and is set out as the last condition in the pre-sentence report.

Submissions for appellant

[16]       Mr Boot acknowledged the difficulty of appealing against a discretionary sentencing decision such as that involved here.  He relied on this Court’s decision in R v Hill[4]  as authority for the appropriateness of home detention for offending of this type. 

[4]R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

[17]       Mr Boot listed the following as the factors indicating that home detention was the appropriate sentence:

(a)Guilty pleas at “an appropriate early stage”.

(b)The appellant’s relative youth (23) at the time of the offending, and his good family background.

(c)The general remorse he has shown.

(d)His willingness to listen to advice and obtain appropriate counselling.

(e)The period he has now spent in custody has “clearly been a significant deterrent”.

(f)The assessment by the probation officer that he is at low risk of re-offending.

Decision

[18]       Another Judge may have sentenced this 24 year old, appearing for the first time for drug offending, to home detention.  Indeed, that was the recommendation in the pre-sentence report to the Judge, and the proposal was that he be detained in his parents’ home.  What this Court said in R v D applies here:[5]

In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending.  The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other.  In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.  He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.  The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

[5]R v D [2008] NZCA 254 at [66].

[19]       We are not persuaded that the Judge erred in sentencing the appellant to imprisonment, and declining home detention.  The Judge did not overlook any of the factors urged upon us by Mr Boot, and he did not contend otherwise.  The position is simply that the Judge considered imprisonment was the appropriate sentence, consistent with the need to denounce Mr Preston’s dealing in methamphetamine, and to deter Mr Preston, who had at least evinced an intention to continue to use methamphetamine himself.  This view was one that was open to the Judge.

Result

[20]       The appeal is dismissed.  The sentence imposed by the Judge stands.

Solicitors:

Crown Law Office, Wellington for Respondent