R v Kennedy
[2011] NZCA 109
•28 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA859/2010 [2011] NZCA 109 |
| BETWEEN THE QUEEN |
| AND PATRICK ARTHUR KENNEDY |
| Hearing: 15 March 2011 |
| Court: Harrison, Courtney and Clifford JJ |
| Counsel: S Edwards for Applicant |
| Judgment: 28 March 2011 at 3 pm |
JUDGMENT OF THE COURT
The Solicitor-General’s application for leave to appeal against sentence is declined.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
In sentencing the respondent, Patrick Kennedy, Judge Rea acknowledged the dilemma not infrequently posed by two conflicting sentencing purposes.[1] On the one hand was the need to punish serious drug offending. On the other hand was the need to recognise and promote Mr Kennedy’s positive steps towards rehabilitation. The latter factor prevailed, resulting in a non-custodial sentence and generating this application by the Solicitor-General for leave to appeal against what he says was a manifestly inadequate sentence or one which was wrong in principle.[2]
[1] R v Kennedy DC Napier CRI-2009-020-5725, 8 December 2010.
[2]Pursuant to the Crimes Act 1961, s 383(2).
Mr Kennedy pleaded guilty to two counts of cultivating cannabis prior to trial in the District Court at Napier. He pleaded guilty to possessing a sawn-off shotgun during the trial. He was found guilty by the jury on the remaining charge of possessing cannabis for the purpose of sale. Judge Rea treated the cultivation charges as the lead or index charges. He sentenced Mr Kennedy to 12 months home detention and 400 hours community work on each concurrently. A fine of $5,000 was imposed on the possession for sale charge.
Ms Edwards, counsel for the Solicitor-General, submits that the starting point of three years imprisonment adopted by the Judge was too low in terms of this Court’s guideline judgment in R v Terewi;[3] that the discount of one year allowed for personal mitigating features was excessive; and that a sentence of home detention did not adequately address relevant sentencing goals, specifically denunciation and deterrence.
Circumstances
[3] R v Terewi [1999] 3 NZLR 62 (CA).
The relevant facts fall into a narrow spectrum. When executing a search warrant at Mr Kennedy’s home in late 2009, the police found over 10 kilograms of cannabis head in the house and 40 plants growing outside. There were 21 ounce bags containing cannabis, an accepted denomination in cannabis dealing, in a blue drum. There were three other blue drums containing 9.7 kilograms of good quality loose cannabis head material. Some lower quality cannabis and several thousand cannabis seeds were also found. Apart from the cannabis, there were two sets of digital scales; a number of resealable plastic bags; a single-barrelled 12 gauge shotgun with a laser sight; some other drug paraphernalia; and $8,860 in cash.
In the opinion of a drug expert called for the Crown, the cannabis if sold could have realised between $70,000 and $185,000, depending on when and in which denominations it was sold.
District Court
Starting point
Given the quantity of cannabis in his possession, Mr Kennedy carried the burden of proving that none of the cannabis was for sale.[4] Once he was found guilty, Judge Rea had to consider the commerciality involved in order to determine Mr Kennedy’s level of culpability.
[4] Misuse of Drugs Act 1975, ss 6(1)(f) and 6(6);
In the Judge’s view, the amount of cannabis found in Mr Kennedy’s possession was “huge” and, given that some of it was packaged, it was difficult not to infer that at least some was for supply.[5] However, “there were no overt signs of sales” other than some admitted bartering.[6] The Judge found that there was a commercial aspect to Mr Kennedy’s possession of the cannabis; but how much he was to sell was dependent on opportunities.[7]
[5] At [5].
[6] At [11].
[7] At [16].
Mr Kennedy may have been fortunate that the Judge appeared to accept as genuine his assertion that the firearm was used for pig hunting, given the Judge’s observation that that was the “normal excuse put forward for unlawful possession” of firearms.[8] While acknowledging Mr Kennedy’s “raging cannabis habit”, the Judge concluded his claims about how much he used were implausible taking into account the physiological effects of such high consumption. Nonetheless, the Judge accepted that Mr Kennedy was completely in a cannabis “thrall” – it was his reason for living.[9]
[8] At [13].
[9] At [7].
The Judge placed the offending at midway in band 2 of Terewi, which mandated a starting point of three years imprisonment.
Mitigating features and home detention
Judge Rea dealt with the mitigation and home detention compendiously. Having identified the starting point, he considered whether a sentence other than imprisonment was appropriate. He noted,[10] citing this Court’s decision in R v Hill,[11] that in some cases personal mitigating circumstances such as the effort “to rid oneself of a drug addiction” could justify a sentence of home detention where otherwise imprisonment would be appropriate.
[10] At [14].
[11] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
The Judge observed that Mr Kennedy had “made every post a winner” since the search warrant was executed[12] and that:
[8] It is not often, it has to be said, that a jury is told that the best thing that has happened to somebody is that they have been remanded in custody but that is the very submission that Mr Fairbrother has made. It would seem from the material that I have from the Probation Officer’s report and the individual references that many people have gone to a good deal of trouble to provide, that Mr Kennedy has returned to a totally law abiding life and will continue to be a contributing member of the community in which he is living.
[12] At [18].
Judge Rea considered that “by a fine margin” a sentence of home detention could fulfil the sentencing purposes of denunciation and deterrence.[13] As Ms Edwards notes, this observation implies that the Judge applied a discount of one year or one third of the starting point for mitigating factors. That is because eligibility for home detention requires a “short-term sentence”,[14] defined for the purposes of the Sentencing Act 2002 as two years imprisonment or less.[15]
[13] At [16].
[14] Sentencing Act, s 15(1)(b).
[15]The combined effect of s 4(1), definition of “short-term sentence”, of the Sentencing Act and s 4(1), definition of “short-term sentence” of the Parole Act 2002.
The Judge sentenced Mr Kennedy to a term of 12 months’ home detention, the maximum period available for a sentence of home detention,[16] on both charges (concurrently) of cultivation. As noted above, there were additional penalties of community work and a fine.
Appeal
Starting point
[16] Section 80A(3).
Terewi remains the applicable authority on sentencing levels or tariffs for cultivation and possession for sale offending.[17] As noted, the Judge concluded that Mr Kennedy’s offending was in the middle of category 2 offending as described in Terewi:[18]
... encompassing small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
[17]See R v Gray [2008] NZCA 224 to the effect that no distinction is to be drawn from whether the lead charge is cultivation or supply.
[18] Terewi at [4].
However, the Judge had earlier found that, based on the amounts of cannabis only, the offending was more properly characterised as at the top end of category 2, “but more likely” as lower category 3 of Terewi.[19] Category 3 is the most serious class of cannabis dealing involving large scale commercial growing, usually with a considerable degree of sophistication and organisation, where on 1999 values annual revenues would be in the vicinity of $100,000 in cash or kind and a starting point of four years imprisonment is appropriate.[20] In Mr Fairbrother’s submission, the Judge’s conclusion that it was mid-category 2 offending reveals the extent to which he considered the cannabis was for Mr Kennedy’s personal use. In the absence of evidence of sales, Mr Fairbrother submits that the Judge made the correct subjective assessment as to the commercial extent of Mr Kennedy’s operation.
[19] At [9].
[20] Terewi at [4].
However, given that absence of evidence of past sales, Ms Edwards submits that Mr Kennedy’s culpability is to be measured according to his intent to conduct future sales. In that respect, she says, the quantity of cannabis is the central piece of evidence. Therefore, unsurprisingly, Ms Edwards relies on earlier authorities of this Court, where the starting point adopted was in a similar or higher range but the quantities of cannabis were significantly lower, to support her primary submission that the starting point adopted by the Judge was plainly inadequate.
Three of those authorities provide comparative assistance. In R v Duncan a starting point of three years’ imprisonment on a charge of possession for supply was upheld where the quantity was 1.26 kilograms of cannabis[21] (but there was evidence of other drug possession and use). In R v Gray, a starting point of two and a half years imprisonment for possession for sale of over 3.5 kilograms of cannabis was upheld on appeal.[22] In R v Bin Af If a total of 6.7 kilograms of dried cannabis together with 38 mature plants and the roots of 16 others attracted a four and a half year starting point[23] (but that was a sophisticated operation over two properties where the appellants were found to have equipment estimated at a value of around $40,000 to support the operation). Also relevant, although not cited by counsel, is R v Raihania[24] (a Solicitor-General’s appeal) where a starting point of two and a half years was treated as appropriate and where the amount of cannabis found was 5.5 kilograms with an estimated street value of $40,000–$90,000.
[21] R v Duncan [2009] NZCA 18.
[22] R v Gray [2009] NZCA 31.
[23] R v Bin Af If [2009] NZCA 290.
[24]R v Raihania [2007] NZCA 152.
In our judgment Ms Edwards is correct. A two stage approach is required to assess the starting point in this case. At the first stage, based on amounts of cannabis only, Judge Rea himself accepted that Mr Kennedy’s offending would be likely placed at the lower end of Terewi category 3. Mr Kennedy’s possession of the pistol is excluded from the assessment given the Judge’s finding that the weapon was used for pig hunting. While the Judge did not fix the starting point, his acceptance that Mr Kennedy’s offending was at the lower end of Terewi category 3 implies a starting point of at least four years. We are satisfied that that term would have been an absolute minimum based on quantity alone.
At the second stage, Judge Rea effectively reduced the notional starting point to three years to represent an allowance for Mr Kennedy’s personal use of the cannabis. While this exercise is necessarily subjective and we appreciate that the Judge was well placed to undertake it, it is regrettable that he did not quantify the reduction or explain his reasoning. Mr Fairbrother invites us to infer that the net amount assessed by the Judge as being for sale was considerably less than the original quantity of 10 kilograms.
We cannot accept Mr Fairbrother’s submission; the adjusted starting point adopted by the Judge of three years would require an assumption that he allowed at least 50 per cent or five kilograms for personal use. The Judge’s finding about the consumption demands imposed by Mr Kennedy’s cannabis addiction could never account for anywhere the allowance made.
We must start afresh. The “huge” quantities, as the Judge described them, of cannabis found in Mr Kennedy’s possession, the large amount of cash, the drug paraphernalia and the scales all suggest that the bulk of the drug was for sale. Mr Kennedy was dealing, or at least intended to deal, in a very substantial way. In our judgment, an allowance for personal use of two kilograms would be most generous. A net figure for sale purposes would be about eight kilograms. The ultimate starting point would have been a minimum of three and half years imprisonment.
Mitigating factors
Judge Rea relied heavily on Mr Kennedy’s apparent rehabilitation. He recognised Mr Kennedy’s own positive view of his remand in custody; it was a period of enforced deprivation. In a letter to his now wife written while he was on remand, Mr Kennedy described how his body “freaked out” as it suffered withdrawal, but then how he had begun soon after to notice the physical benefits of being drug-free. Affidavits provided in support of Mr Kennedy showed dramatic changes in his mood and behaviour since his apprehension. He has, in Mr Fairbrother’s words, “retrieved” his long-term relationship with his now wife.
A balanced testimonial was provided from his employer, who owns a building business. He had been reluctant to engage Mr Kennedy because his personal experience was that reformed drug-addicts were generally speaking unreliable and in particular susceptible to relapse. He insisted on random drug testing as a condition of employment. In the employer’s view Mr Kennedy has been a reliable, mature, willing and excellent worker, and relevantly, to his knowledge had remained drug-free. His affidavit provided considerable personal as well as professional support to Mr Kennedy.
Finally, Mr Kennedy was assessed by the probation officer to be at low-risk of re-offending.
Judge Rea relied on this Court’s decision in R v Hill as support for a sympathetic approach to reforming drug addicts in sentencing.[25] Ms Edwards distinguishes Hill on the basis that the offender in that case was younger, was participating in a community programme, and had no relevant previous convictions. Further, Mr Kennedy had admitted that the primary reason he had been able to give up cannabis was because he was remanded in custody. Ms Edwards submits that the discount of one third or one year afforded to Mr Kennedy was excessive.
[25] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
We acknowledge that the Judge faced a difficult sentencing exercise. In orthodox terms, a person appearing for sentence following verdicts of guilty at trial cannot expect a significant discount against the starting point. The largest item of possible credit, traditionally given to a plea of guilty, is unavailable. Other personal circumstances carry much less weight. And Mr Kennedy had a previous conviction for cultivating cannabis in 1998.
In borderline cases a Judge is often able to recognise the real prospect of rehabilitation by an unusually high discount to justify imposing something less than a custodial sentence. But this was not a borderline case. In our judgment, applying an adjusted starting point of three and a half years imprisonment, an allowance of six months for personal mitigation would have been appropriate. Mr Kennedy’s exceptional steps along the path to rehabilitation would not have spared him from a term of imprisonment of three years. Home detention would not have been an available option.
It is thus unnecessary for us to address Ms Edwards’ submission that the Judge erred in principle in imposing the sentence of home detention, even if it was at the maximum of 12 months.
Decision
If we grant the Solicitor-General’s application for leave, our powers when determining an appeal of this nature are governed by s 385 of the Crimes Act 1961 which relevantly provides:
(2A) This subsection applies to—
(a) an appeal to the Supreme Court or the Court of Appeal against sentence:
(b) an appeal to the Supreme Court against a decision of the Court of Appeal on appeal under section 383 against sentence.]
[(3) On any appeal to which subsection (2A) applies, the Court of Appeal or the Supreme Court must—
(a) dismiss the appeal; or
(b)if it thinks that a different sentence should have been passed,—
(i) quash the sentence and replace it with another sentence warranted in law (whether more or less severe) that the Court thinks ought to have been passed; or
(ii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or
(c)remit the case to the Court that imposed the sentence with a direction that such Court take an action of the kind described in paragraph (b)(i) or (ii) in accordance with any directions given by the Court of Appeal or the Supreme Court as the case may be.
The Solicitor-General’s appeal must be determined on a principled basis. The words of s 385(3)(b) are mandatory. We are satisfied that a term of imprisonment should have been imposed. If we granted leave, our duty would be to quash the sentence of home detention and community work and substitute it with a finite term of imprisonment. That would be the only sentencing alternative available to us.
However, the circumstances present a dilemma. Mr Kennedy was sentenced on 8 December 2010, over three months ago. He has served a quarter of his term of home detention and completed most of his community work. By all accounts, he has vindicated the Judge’s faith by continuing constructively along the path of rehabilitation. In recognition of this reality, and with commendable fairness and responsibility, Ms Edwards does not seek the imposition of the term of imprisonment. She advises that the Solicitor-General’s objective in bringing this application was to ensure that the original sentence imposed by Judge Rea does not have precedential value for offending of this type, especially in the Hawkes Bay area. We have already endorsed that objective.
The Solicitor-General’s approach is consistent with previous authorities in this Court: see R v Donaldson,[26] R v Nathan,[27] R v Raihania[28] and R v D.[29] All recognise the weight to be given to humanitarian factors and post sentence progress when determining Crown appeals. However, we record that the settled line of authority in this Court affirming a Judge’s discretion to impose a merciful sentence, starting with R v Wihapi[30] and discussed in R v Fate,[31] does not assist. This was not a case where the Judge imposed a sentence for reasons of mercy arising from special or exceptional circumstances; instead, the process adopted suggests that the sentence was structured to reach a non-custodial result which could not be justified according to settled principles.
[26]R v Donaldson (1997) 14 CRNZ 537 (CA).
[27]R v Nathan CA209/06, 29 November 2006.
[28]R v Raihania [2007] NZCA 152; see at [17] above.
[29]R v D [2008] NZCA 254.
[30]R v Wihapi [1976] 1 NZLR 422 (CA).
[31]R v Fate (1998) 16 CRNZ 88 (CA) at 93–94.
In our judgment, it is proper to give decisive weight to the Solicitor-General’s objective at the threshold stage of determining whether to grant leave to appeal. That objective is, at a general or policy level, to ensure that this sentence does not have precedential value while not disturbing the actual sentence imposed. Thus the appropriate course is to acknowledge the Solicitor-General’s acceptance that society’s interests would not be served by sentencing Mr Kennedy now to a term of imprisonment by declining leave.
Result
The Solicitor-General’s application for leave to appeal is declined.
Solicitors:
Crown Law Office, Auckland for Appellant
L Lafferty, Napier for Respondent
11
8
0