R v Enoka

[2016] NZHC 47

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000046 [2016] NZHC 49

BETWEEN

JACKSON JAMES TODD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 February 2016
Appearances:	S Saunderson-Warner for Appellant C E R Power for Respondent
Judgment:	2 February 2016

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Dunedin

Copy to:            S A Saunderson-Warner, Dunedin

TODD v NEW ZEALAND POLICE [2016] NZHC 49 [2 February 2016]

[1]      On 17 November 2015 Mr Todd was sentenced to two years, two months imprisonment on a number of charges.1     He appeals against the sentence on the grounds that it is manifestly excessive.

[2]      The offending on which Mr Todd was sentenced was recorded by the Judge as follows.

[3]      First on 23 May 2015, Mr Todd drove a motor vehicle while the proportion of alcohol in his breath exceeded the allowable limit.   He had 641 micrograms of alcohol per litre of breath.

[4]      On 5 June Mr Todd breached a sentence of intensive supervision which had been imposed in January 2014.  He failed to report as directed.  On the same day, 5

June, he became involved in dealing in cannabis.  Mr Todd faced a representative charge that between 5 and 12 June he was in possession of cannabis for the purposes of supply.  An examination of text messages from his telephone revealed that he was regularly making arrangements to meet unknown persons at various secluded locations around Queenstown, at various times of the day.

[5]      In addition to the representative charge Mr Todd faced a specific separate charge of possession of cannabis for supply relating to 14 June.  At about1.15 am that day the police found him in the driver’s seat of his car outside a party they had been called to.   When they approached Mr Todd they saw cannabis crumbs throughout the car and cannabis at his feet in a small zip up bag. The total amount of cannabis found pursuant to a search of Mr Todd’s car was 80 grams.

[6]      On 14 June Mr Todd was driving in Cromwell in excess of the speed limit. When stopped by the police evidential breath testing procedures returned a concentration of 86 micrograms of alcohol per 100 millilitres of blood.

[7]      Mr Todd then failed to answer District Court bail on 17 June 2015.

1      New Zealand Police v Todd [2015] NZDC 23195, per Judge M B T Turner.

[8]      On 21 July 2015 Mr Todd was again found in a car.   A search of the car located  two  grams  of  cannabis  plant  material  together  with  a  bong  used  for consuming cannabis.

[9]      In structuring his sentence the Judge took the two charges of possession of cannabis for supply as lead offences.  He noted the offending fell within category 2 of R v Terewi2 and took a starting point of two years, six months for that offending. He then uplifted that by three months to take account of previous drug offending (albeit not supply) and of the fact the offending occurred whilst subject to a sentence of intensive supervision.  From that the Judge allowed a full 25 per cent discount for

the early guilty pleas. That reduced the sentence for the lead charges to 24 months.

[10]     In relation to the drink driving offending the Judge took a total sentence of three months imprisonment for the May and June offending, reducing that to an end sentence of two months.  The Judge imposed sentences of one month for the breach of supervision, failing to answer Court bail and possession of utensils.  All of those were imposed by way of concurrent sentences.  The Judge also wiped fines of $1872 substituting another concurrent sentence of one month’s imprisonment.   The total sentence imposed was two years, two months’ imprisonment.  The Judge then made appropriate orders for disqualification and associated orders under the provisions of the Land Transport Act 1998.

[11]     The  appeal  is  advanced  on  the  basis  that  the  sentence  imposed  was manifestly excessive.

[12]     The appeal is under the Criminal Procedure Act 2011.  The Court of Appeal have made it clear in Tutakangahau v R that the former approach still applies:3

[30]      The practical effect of preserving the approach applied to date is that the appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, in the words of Shipton, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal. If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.29

Hammond J used the terminology of an error “vitiating” the sentence but it

2      R v Terewi [1999] 3 NZLR 62.

3      Tutakangahau v R [2014] 3 NZLR 482, at [26]–[36].

may be more helpful to consider the issue in terms of whether the error is material. That was the terminology used in Te Aho v R where this Court said:

This Court does not lightly quash a sentence of imprisonment, and in the absence of a material error in the sentencing process which requires a re-assessment of the sentence, or a clearly excessive sentence, will not intervene.

[31]      The Court in Te Aho went on to state that “it must be shown that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances”.

(footnotes omitted)

[13]     To support the appeal Ms Saunderson-Warner submitted it was manifestly excessive as the Judge had fallen into error in adopting the starting point of two years, six months for the cannabis offending.   She submitted that the Judge was wrong to have taken a two year, six month starting point and that the representative charge relied on by the prosecution and the comments Mr Todd had made that were intercepted from his telephone records were simply “bravado” and further that the Judge had failed to take account of Mr Todd’s personal cannabis use which was clear from the reports before the Court.

[14]     Given that submission it is necessary to consider the representative offending. The summary of facts to which Mr Todd pleaded records that on 7 June 2015, he sent a text message to an associate which indicated that he had sold 50 “50s” over the weekend.  Drug dealers commonly call bags containing between four and five grams of cannabis “50s”, as they are sold for $50 a bag.  On the basis of that text message and taking the lower amount of four grams of cannabis Mr Todd had said that he had sold 200 grams of cannabis over the weekend.

[15]     On the afternoon of 10 June he was asked by an unknown person if he had “two” to which he replied “yes”.  The same evening a different person asked him if he was still in town because he needed “a half”, which the Judge inferred was a half an ounce of cannabis with a street value of around $200.  About an hour later Mr Todd was contacted by another unknown person asking for “three”, to which Mr Todd indicated he could accommodate that and arranged to meet them the following day.

[16]     On 11 June Mr Todd was asked by another unknown person if he had “one”, to which he replied, “Tomorrow buddy.  Out of town”.  That person contacted him again the following day to arrange to meet.

[17]     Those communications disclose that Mr Todd had significant amounts of cannabis available to him and that he was involved in the supply of cannabis in a reasonably large amount.  It supports the clear text message he sent that he had sold

50  “50’s”  over  the  weekend.    The  suggestion  that  that  comment  was  simply “bravado” is made for the first time on appeal.  He pleaded guilty to the summary of facts recording that text message and did not take the matter to a disputed fact hearing.

[18]     Further, the Judge would have been well aware that Mr Todd was a personal user of cannabis given the reference to the bong in the car and the reports before the Court.   Even making some allowance for Mr Todd’s personal use of cannabis the amounts involved and disclosed in the summary of facts were sufficient so that the offending clearly fell within category 2 of Terewi.  It was well open to the Judge to take a starting point of two years, six months for the offending.

[19]     As discussed with counsel and properly acknowledged by Ms Saunderson- Warner in any event it is the ultimate end sentence which is the focus of the Court on appeal.

[20]     In the present case the end sentence of two years, two months’ imprisonment is entirely within range for the totality of the offending and given Mr Todd’s personal circumstances.   Indeed it might be said the ultimate end sentence imposed of two years, two months’ imprisonment could be seen as generous towards Mr Todd.   It would have been open for the Judge to have imposed cumulative sentences on some of the offending or to otherwise have uplifted the starting point for the lead offending further to take account of the failure to answer District Court bail, for the wiping of the fines and for the fact the offending occurred whilst on bail.  By dealing with the failure to answer District Court bail, the wiping of the fines and the breaches of the supervision order in a concurrent way there has been little sanction for that aspect of the offending.

[21]     It could also be said that the full discount of 25 per cent afforded Mr Todd in relation to the cannabis offending was generous given the telephone records the police had and the physical evidence the police had in relation to the offending.  As the Supreme Court noted in Hessell v R4 the strength of the Crown or police case is a relevant factor in the assessment of the appropriate reduction.

[22]     For all of those reasons I am satisfied the ultimate sentence imposed was clearly not manifestly excessive. The appeal is dismissed.

Venning J

4      Hessell v R [2010] NZSC 135.