R v Honan
[2015] NZCA 94
•25 March 2015 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA617/2014 [2015] NZCA 94 |
| BETWEEN | THE QUEEN |
| AND | REUBEN ANTHONY HONAN |
| Hearing: | 5 March 2015 |
Court: | French, Asher and Williams JJ |
Counsel: | A Markham for Appellant |
Judgment: | 25 March 2015 at 4.00 pm |
JUDGMENT OF THE COURT
The Solicitor-General’s application for leave to appeal against sentence is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Judge Tompkins sentenced Mr Honan to 12 months’ home detention in the Christchurch District Court for possession of methamphetamine for supply and attempting to manufacture methamphetamine.[1]
[1]R v Honan DC Blenheim CRI-2012-006-1533, 30 September 2014.
The Solicitor-General seeks leave to appeal the sentence on the ground that it is manifestly inadequate.
Background
On about 22 August 2012, Mr Honan and an associate, Mr Adams, began the process of manufacturing methamphetamine at a residential property in Diamond Harbour, near Christchurch. The property was being rented by Mr Adams. During the process there was an accident and Mr Honan received significant chemical burns to his arms and legs. After attempting to treat the burns himself, he was eventually hospitalised for three weeks.
While Mr Honan was in hospital, the police executed a search warrant at the Diamond Harbour property. They discovered areas of discolouration. Subsequent testing confirmed that the address was highly contaminated due to the presence of methamphetamine. Police also searched a Mazda motor vehicle seen leaving the address and discovered a small quantity of methamphetamine, drug utensils and $28,735 in cash. The car was registered to Mr Honan and being driven at the time by Mr Adams. Mr Adams told police the money belonged to him although later he claimed that it belonged to Mr Honan. For his part Mr Honan denied any knowledge of the money.
Shortly after his discharge from hospital, Mr Honan drove from Palmerston North to Wellington with his four year old son and a female associate, Ms Antunovich, in a Range Rover. The car belonged to Mr Honan. On 29 September 2012, on the journey back to the South Island, the vehicle was stopped and searched by police at Picton. In the boot, the police found a bag containing 23.3 grams of methamphetamine with a street value of approximately $23,300.
At the time, Mr Honan offered no explanation for the discovery of the methamphetamine.
On 1 October 2012, Mr Honan was charged with possession for supply of methamphetamine. He was granted bail to reside in Auckland where he commenced a residential treatment programme for drug addiction at Odyssey House. He pleaded guilty to possession for supply on arraignment on 28 May 2013.
On 1 November 2013, Mr Honan was charged with attempting to manufacture methamphetamine at the Diamond Harbour address in 2012. It is unclear why it took so long to bring the charge. In any event, Mr Honan pleaded guilty at his first appearance on 4 November 2013.
The sentencing on the two charges (attempting to manufacture and possession for supply) was delayed to allow Mr Honan to complete the Odyssey House programme.
The District Court sentencing
In his sentencing notes, Judge Tompkins acknowledged that on one view of it 12 months’ home detention for these offences was an “extraordinarily lenient” outcome.[2] However, he considered that the community’s wider interests in rehabilitation and reintegration of serious drug offenders back into the community should in this case outweigh the “more normal” Class A sentencing principles of deterrence, denunciation and protection.[3]
[2]At [21].
[3]At [20].
It is clear that the Judge was particularly impressed by the fact that Mr Honan had successfully completed the demanding 18 month Odyssey House programme and was in employment, as well as doing voluntary work. Further, that he was so highly regarded by his employer that the latter was willing to pay the cost of de-contaminating the Diamond Harbour house by way of an advance on Mr Honan’s wages. The total cost of the de‑contamination was $70,000 which after deducting the cash found in the Mazda meant the employer was agreeing to pay approximately $42,000 on behalf of Mr Honan.
Unfortunately, the Judge did not follow usual sentencing practice. He did not, as required by this Court,[4] identify any starting point. Nor did he quantify the adjustments he was making in respect of personal mitigating and aggravating factors. As a result, no reasons have been provided as to how it was that the Judge considered Mr Honan could be eligible for home detention in terms of the mandatory requirement that home detention is only available if the offender would otherwise have been sentenced to a short term of imprisonment of two years or less.[5]
[4]R v Taueki [2005] 3 NZLR 372 (CA) at [43].
[5]Sentencing Act 2002, s 15A.
The Judge did record submissions made by Mr Honan’s counsel, Mr Harrison, on these issues. Accordingly we have proceeded on the basis that the Judge should be taken to have adopted Mr Harrison’s sentencing methodology.
Was the sentence manifestly inadequate?
The starting point
It was common ground that the amount of methamphetamine (23.3 grams) put the possession for supply offending in band two of Fatu, meaning a starting point of around four to four and a half years’ imprisonment.[6]
[6]R v Fatu [2006] 2 NZLR 72 (CA).
Where counsel differed was as to the extent of the uplift required for the fact of the second charge (the attempting to manufacture charge). Mr Harrison suggested that an uplift of only six months was warranted because both offences occurred within a very short space of time of each other and both were a product of Mr Honan’s addiction and his then chaotic lifestyle.
We do not accept that submission. The two charges were separate offending and, although there is no doubt that Mr Honan is an addict, there is also no doubt that there was an element of commerciality in both instances. Further, as this Court held in Fatu, a manufacturer is, for obvious reasons, considered more blameworthy than a supplier.[7]
[7]At [22].
We accept the Crown’s submission that under Fatu the attempted manufacturing charge on its own should have attracted the starting point band of four to 11 years’ imprisonment subject to an adjustment to reflect that it was an attempt.
In our view, having regard to totality, the appropriate overall starting point for both sets of offending should have been in the vicinity of seven years’ imprisonment.
This contrasts starkly with the starting point presumably accepted by the Judge of four and a half years. That starting point in our view was out of kilter with authority and did not properly reflect the culpability of the offending.
Factors personal to Mr Honan
Aggravating factors
Mr Honan has previous convictions for drug offending. They include a 2004 conviction for conspiring to manufacture a Class B controlled drug for which Mr Honan received a term of imprisonment of one year and eight months, cumulative on an earlier term for manufacture of a Class B controlled drug of two and a half years’ imprisonment. There are also convictions for possession of Class A and Class B drugs in 2002 and 2001.
It was common ground that these convictions warranted an uplift of six months’ imprisonment.
Mitigating factors
We have assumed in our reconstruction of the sentencing exercise that after taking previous convictions into account, the Judge must have arrived at a sentence of five years’ imprisonment before considering mitigating factors personal to Mr Honan.
Those mitigating factors were the significant efforts Mr Honan had made to rehabilitate himself, the reparation payment made on his behalf and the forfeiture of his Range Rover worth $45,000, together with his guilty pleas.
By our calculations, working backwards from the two year home detention threshold and assuming the Judge gave the permissible maximum discount of 25 per cent for the guilty pleas,[8] the discount allowed for personal mitigating factors (other than the guilty pleas) must have been approximately 46 per cent of the Judge’s starting point.
[8]The Crown took no issue with a discount of 25 per cent for the guilty pleas; Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
We accept Mr Honan was entitled to discounts for these matters notwithstanding this was drug offending where the sentencing imperatives are denunciation and deterrence and where personal factors often carry little or no weight.[9] However, in our view, the amount of the discounts was patently excessive. In our view, at best, the mitigating factors (other than the guilty pleas) warranted a discount no greater than 20 per cent.
[9]Horsfall v R [2012] NZCA 97 at [15], Chen v R [2009] NZCA 445 at [174] and [188].
It follows that in our assessment, after credit for the guilty pleas the appropriate end sentence was a sentence in the order of four and a half years’ imprisonment calculated as follows:
(a)starting point – 7 years’ imprisonment
(b)six month uplift for previous convictions – 7 and a half years
(c)twenty per cent discount for mitigating factors – 6 years
(d)twenty five per cent discount for guilty pleas – 4 and a half years
Home detention was not available.
In seeking to argue otherwise, Mr Harrison relied heavily, as indeed did Judge Tompkins, on the decision of this Court in R v Hill.[10] Mr Harrison contended that Hill and other authorities such as R v Stempa[11] and R v Hoddinott[12] show that imprisonment is not an inevitable outcome for drug dealing and that non‑custodial sentences may be imposed in those rare cases where the offender has not just promised to undertake treatment but has actually done so with significant results. Mr Harrison submitted that the present case was in the same category and indeed was on all fours with Hill where home detention was also imposed and where the discount for personal mitigating factors was in the order of 35 per cent.
[10]R v Hill [2008] NZCA 41.
[11]R v Stempa [2008] NZCA 254.
[12]R v Hoddinott (1992) 9 CRNZ 262 (CA).
We accept that the presumption of imprisonment in s 6(4) of the Misuse of Drugs Act 1975 may be displaced and that non-custodial sentences for drug dealing have been sanctioned by this Court as occurred in Hill. However, in our view Hill was a very different case. There is no suggestion that the offender in Hill had previous convictions for drug dealing, there was only one charge, the amount of methamphetamine was much less (6.3 grams) and although the age is not given it is implicit that the offender was young. Mr Honan was in his late forties at the time of his offending.
There is a further troubling aspect to this case and that is disparity with co‑offenders.
Mr Adams, who had been involved in the Diamond Harbour offending, was also charged with attempted manufacture of methamphetamine. He pleaded guilty to that charge and to another charge of allowing premises to be used for the manufacture of methamphetamine. The latter charge arose out of the fact that he was the tenant of the premises. He was sentenced by a different District Court Judge to a term of imprisonment of three years and four months.[13]
[13]R v Adams DC Christchurch CRI-2013-009-8595, 5 February 2014.
The female associate with Mr Honan in the vehicle containing the 23.3 grams of methamphetamine was charged with being a party to possession for supply. She defended the charge but was found guilty at trial. It was not alleged that she was in possession of the methamphetamine or had any financial interest, only that she was assisting the primary offender, Mr Honan. She had no previous convictions and the sentencing Judge, Judge Tuohy found that she was “very much” under Mr Honan’s influence.[14] He sentenced her to a term of 18 months’ imprisonment, later commuted to eight months’ home detention when a suitable home detention address became available.
[14]R v Antunovich DC Blenheim CRI-2012-006-1533, 13 August 2014 at [15].
When sentencing Mr Honan, Judge Tompkins noted the sentences that had been imposed on the co-offenders,[15] but did not consider them further. We agree with the Crown that the disparity between end sentences is marked and unjustified, further highlighting the inadequacy of the sentence that was imposed on Mr Honan.
[15]R v Honan, above n 1, at [4].
In our assessment, the sentence imposed on Mr Honan bears all the hallmarks of a sentence being artificially tailored to achieve a desired outcome, something this Court has said sentencing judges must not do.[16] The starting point was too low, the discount for mitigating factors was excessive and there was no consideration of parity with co-offenders.
[16]See for example R v Edwards [2006] 3 NZLR 180 (CA) at [24] and [46].
We are satisfied that the sentence was manifestly inadequate.
What should this Court do now?
Mr Honan has now served six months of his 12 months’ home detention. It has gone well. He has remained drug free, continues to regularly attend at Odyssey House and continues to be strongly supported by his employer. He has been offered an apprenticeship that would commence in May.
Were we to quash the sentence of home detention and substitute a sentence of imprisonment, the substituted sentence would be in the vicinity of two years’ imprisonment having regard to the fact that this is a Solicitor-General’s appeal and that Mr Honan has been on home detention for six months.
However, the Court has a residual discretion. Even if a sentence is manifestly inadequate, the appellate Court may be reluctant to intervene if that would cause injustice to the individual offender.[17] In particular the Court may be more disinclined to interfere where a community-based sentence has been imposed and being successfully undertaken, than where an inadequate prison sentence is at issue.[18]
[17]R v Donaldson (1997) 14 CRNZ 537 (CA) at 20.
[18]Ibid.
The reason for that reluctance was well articulated in the decision of R v Donaldson:[19]
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.
[19]Ibid.
After careful consideration, we have decided on balance that in all the circumstances the most just course of action is to allow Mr Honan to remain in the community and complete his sentence of home detention. We are concerned that if Mr Honan were to be sent to prison now for two years, an apparently rehabilitated offender who has earned a useful place in our community might suffer a severe reversal of position. It could well undermine all the good work that has been done, to Mr Honan’s detriment and to the detriment of the community.
This outcome should not be taken as an endorsement of the approach taken by the sentencing Judge. Rather, it reflects the circumstances of this particular case, the length of the likely substituted sentence, the lack of direct victims and the other considerations mentioned in Donaldson.
Outcome
We reiterate that the sentence under appeal was manifestly inadequate and inappropriate. The end sentence should have been in the vicinity of four and a half years’ imprisonment.
However, for the reasons given, we decline, in the circumstances of this case, to interfere with the sentence. The Solicitor-General’s application for leave to appeal is accordingly declined.
Solicitors:
Crown Law Office, Wellington for Appellant
30
6
0