R v Frederick Renata Hakiwai
[2003] NZCA 81
•30 May 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA19/03
THE QUEEN
v
FREDERICK RENATA HAKIWAI
Hearing:22 May 2003
Coram:McGrath J
Laurenson J
Doogue JAppearances: E J Forster for Appellant
G C de Graaff for the Crown
Judgment:30 May 2003
JUDGMENT OF THE COURT DELIVERED BY McGRATH J
Introduction
[1] On 29 November 2002 the appellant, who had been convicted by a jury of cultivation of cannabis and having cannabis in his possession for purposes of sale, was sentenced by the District Court to 18 months imprisonment. The Judge refused him leave to apply for home detention. He appeals against that aspect of his sentence.
The facts
[2] On 5 April 2002 a police constable walking near his home observed over the fence a large cannabis plant growing on a domestic property. He proceeded to search the property under the Misuse of Drugs Act. At the rear of the house he found five substantial and mature cannabis plants each of which was between two and three and a half meters in height. There were also two cut stems indicative of a recent harvest. There was evidence that the value of the five plants, once harvested, would have been around $16,800. On the basis of these facts the appellant was charged with cultivation of cannabis. He pleaded guilty to the charge on arraignment.
[3] The police also located cannabis on two other separate parts of the searched premises. Cannabis head from a previous harvest of good quality was found drying in a shed. The weight was 3 kilograms with a least half a pound of head per plant. Other cannabis was located in a sleep-out on the property used by the appellant. Some of it was laid out on newspaper for drying. A sack of poorer quality cannabis was found under the bed. Further cannabis was located in a box in the sleep-out in which were also ounce size plastic bags and cannabis seeds.
[4] On the basis of what the police had found in the sleep-out the appellant was charged with possession of cannabis for the purpose of sale. He pleaded not guilty to the charge and at his trial put forward the defence that the cannabis was for his own personal use and occasional use by his friends. He was convicted by the jury. The Judge sentenced him to 18 months imprisonment on each charge to be served concurrently. In relation to the submission by the appellant’s counsel that he should give leave to apply for home detention the Judge said:
There is now settled authority to the effect that home detention may not be appropriate where deterrence is the Courts first objective, as it must be in drug dealing cases. More particular it seems to me there are very pertinent provisions in the new Sentencing Act, namely the lack of a supervised environment, your proven willingness to take advantage of that, to abuse your family’s hospitality and undertake large scale illegal activity on the property, all of which militate against you being granted lease to seek home detention. In those circumstances, you will come before the Parole Board at an early stage. If your character is better than this offending would suggest, you will have the opportunity of showing that and earning yourself early release.
Submissions
[5] Mr Forster, for the appellant, submitted that the Judge erred in principle in deciding not to grant leave to apply for home detention. He argued that granting such leave was now, under the Sentencing Act 2002, the general practice rather than an exception in any case where a sentence of imprisonment for two years or less was imposed. He also argued that under the statutory scheme the Parole Board can make a decision on whether to grant home detention after a more detailed examination of the circumstances of the convicted offender than can a sentencing Court. He emphasised that under the Act the sole question for the sentencing court was that of leave to apply for home detention rather than whether it should be granted.
[6] Mr Forster also took issue with what he said was the Judge’s emphasis on deterrence as a reason for excluding home detention. He said that the grant of leave to apply for home detention by a sentencing Judge did not substantially lessen the force of deterrence in a sentence of imprisonment as whether home detention was ultimately permitted remained a matter for the Parole Board’s discretion. He took issue with the significance attached by the Judge in this case to the fact that the offending occurred at the appellant’s home, and said that there was no sound reason for favourably distinguishing the position of those who undertook commercial drug offending away from where they lived. It was unfair that they should receive a lesser punishment through the home detention mechanism.
[7] Mr Forster argued that the Parole Board would generally be in a better position than a sentencing court in a case such as the present to decide whether it was appropriate for home detention to be granted. Under the 2002 Act it was open for home detention to be granted on a marae or a place other than the former residence of the prisoner if that was thought appropriate (cf definition of “home detention” in s2 of the 2002 Act). Finally he pointed out that under the Sentencing Act one of the purposes of sentencing was to assist in the offender’s rehabilitation and reintegration into the community (s7(1)(h) of the Sentencing Act 2002).
[8] Ms de Graaff for the Crown submitted that it was the Court’s function under s97(3) of the Act to sort out those cases in which it was inappropriate that home detention be granted. She said that was essentially what the Judge had done in this case. She submitted that the scheme of the Act did not allow for delegation of the Court’s decision to the Parole Board which was the effect of the appellant’s argument.
[9] Ms de Graaf submitted that deterrence did not have the prominence in the reasoning of the Judge which the submissions made on behalf of the appellant had suggested. Deterrence was a relevant consideration and to the extent it weighed with the Judge in his decision to refuse leave to apply for home detention it did not result in a decision that was plainly wrong. She argued it was open to the Judge to place the weight he did on the fact that offending had occurred at the appellant’s home and to treat that as a factor strongly indicating that home detention was inappropriate.
Decision
[10] The role of the Court under the Sentencing Act 2002, in relation to home detention as a means of serving a sentence of imprisonment, is set out in s97(3):
The Court must grant the offender leave to apply to the New Zealand Parole Board under section 33 of the Parole Act 2002 for home detention unless the court is satisfied that it would be inappropriate 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; and
(d) any other factor that the court considers relevant.
The starting point under this provision is that leave to apply for home detention generally will be granted in respect of a qualifying sentence. Leave will not be granted, however, if there are factors concerning nature and seriousness of the offending, the circumstances and background of the offender, what is said in the victim impact statements or otherwise, which satisfy the Court it would be inappropriate to grant leave. Under the previous legislation the sentencing court’s decision had been characterised by the Court as “the removal of a barrier, rather than the granting of home detention:” R v Barton [2000] 2 NZLR 459 at para 12. That remains the position under the 2000 Act. The Court is required to identify those cases where home detention would be inappropriate. Thereafter the Act provides that decisions are for the Parole Board to make. Under s97(3) the determination in each case is essentially a matter for the broad discretionary judgment of the sentencing court, but having regard to the purposes of rehabilitation and reintegration served by home detention provisions, the threshold for granting leave should not be set too high.
[11] Two factors were mentioned by the Judge in giving his reasons for refusing home detention in this case. The first was that as deterrence is necessarily the court’s first objective in drug cases, there was settled authority that home detention may not be appropriate for them. As we see it that is the extent to which the Judge treated deterrence as a factor indicating that home detention was inappropriate in the appellant’s case. As “the nature and seriousness of the offence” is relevant to determining whether home detention is inappropriate, the importance of deterring offending of the kind being considered can properly be taken into account by a sentencing judge. The overall gravity of the offending in the particular case (which the Judge will have decided warrants less than 2 years imprisonment) must also of course be taken into account. It would not have been open to the Judge to have effectively excluded further consideration of home detention simply because it involved cultivation of cannabis for commercial purposes. Section 93 of the Act requires consideration of all specified factors and others that the Court considers relevant.
[12] We are satisfied that in this instance the Judge has not made the error of putting too much emphasis on the need for deterrence. He treated deterrence as a factor which indicated that he should focus on the particular circumstances of the offending in making his decision. He also, as required, had regard to the circumstances of the offender including the Probation Officer’s positive report and confirmation that the appellant enjoyed the support of both his parents. But the lack of a supervised environment for home detention, reflected in the fact he had offended at his parent’s home in the grounds of which he was living at the time, was a serious concern. This was clearly a relevant consideration under s97(3)(d). It led the Judge to decide that home detention was inappropriate in this case.
[13] In assessing the weight to be given to the situation at the appellant’s home the Judge had the advantage of hearing the evidence at the appellant’s trial, including that of the appellant. The evidence at the trial addressed the circumstances at the family home in relation to extensive use of cannabis much of which the appellant was supplying. While this evidence was largely given by the appellant himself, in an endeavour to dispel the inference that he had a commercial motive for what he cultivated, it was open to the Judge to develop the concern he did over the lack of oversight or supervision in the home.
[14] The appellant did claim at his trial that his mother was unaware of his cultivation activity as she did not come out to the sleep-out on the property. The pre-sentence report, however, indicated that his mother was at least aware that the appellant smoked cannabis although she did not consider it had any great effect on his work output or motivation to be physically active.
[15] The fact that drug offending of the kind presently being considered took place in an offender’s home will not invariably be a factor indicating home detention is inappropriate: R v Husband (2000) 18 CRNZ 229, para [28]. In that case, unlike the present, there was no suggestion the appellant’s home was being used as a distribution point. All circumstances must be considered. In the present case it was however open under s97 to the Judge, as a matter of discretionary judgment, to give the weight he did to what the location of the offending indicated in relation to the inappropriateness of detention in his home. It was not at any stage suggested that home detention at a separate location was practicable and the Judge did not have to consider that prospect.
[16] Finally we are satisfied that the Judge explained to the appellant in the course of sentencing the basic reasons why he had decided home detention was inappropriate. He did so in a way which made clear he had addressed the factors required by s97 and which of them had carried significant weight in reaching his decision. What the Judge did in giving reasons was adequate for the occasion.
[17] For these reasons we are satisfied that it was open for the Judge to decide home detention was inappropriate in this case. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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