R v Leone

[2009] NZCA 325

IN THE COURT OF APPEAL OF NEW ZEALAND

CA419/2009
[2009] NZCA 325

THE QUEEN

v

STANLEY LEONE

Hearing:20 July 2009

Court:William Young  P, Randerson and Asher JJ

Counsel:A J Haskett for Appellant

J M Jelas for Crown

Judgment:24 July 2009 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1]       On 13 July this year (and following a trial before Stevens J and a jury) the appellant was found guilty on counts alleging the supply and possession for supply of a class B controlled drug, being either gamma-hydroxybutyrate (GHB) or gamma-butyrolactone (GBL).  He applied for bail pending sentence but this application was opposed by the Crown because of the likelihood of imprisonment and was dismissed by Stevens J. 

[2]       He now appeals.

[3]       As we understand it, the case against the appellant primarily related to one transaction in which he sold 20 litres of GHB or GBL for $20,000.  This was a wholesale transaction and the purchaser, Robert Haarhaus, was a significant drug-dealer in his own right.  An empty 20 litre container with traces of GHB or GBL was found at Harrhaus’ house.  Also found by the police at the appellant’s house were two other containers (one a 20 litre and the other a 5 litre container) each of which contained traces of the GHB or GBL.  His explanation for these containers was that he had been given them by Haarhaus for purposes associated with painting.  It remains to be seen what the Judge makes of that explanation.

[4]       In his judgment, Stevens J addressed the test under s 13 of the Bail Act 2000. In determining whether the appellant had satisfied the onus of establishing that it would be in the interests of justice for bail to be granted, the Judge placed primary reliance on the likelihood, as he saw it, of the appellant receiving a sentence of imprisonment (s 13(3)(a)).  He also took into account the other criteria listed in s 13(3).

[5]       Although Mr Haskett, who appeared for the appellant, stressed the comparatively lengthy remand (over a month) and the appellant’s personal circumstances (28 years old, married, a young child, financial responsibilities, compliance with bail conditions before trial and absence of prior convictions), the appeal was presented primarily on the basis that imprisonment is not inevitable and that a sentence of home detention may be imposed.  Broadly, Mr Haskett argued that either the Judge was wrong when he concluded that the appellant was likely to receive a sentence of imprisonment or that he saw such a sentence as more likely than it truly is.  We think it right to focus on this aspect of the argument, because the likelihood or otherwise of a sentence of imprisonment is, in the present context, plainly the most significant bail consideration.

[6]       The general considerations which are relevant to a bail determination are provided for in s 8 of the Bail Act whereas s 13 is applicable post-conviction.  That section provides:

13       Exercise of discretion when considering bail pending sentencing

(1)       If a defendant is found guilty or if a defendant pleads guilty, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

(2)       The onus is on the defendant to show cause why bail should be granted.

(3)       When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:

(a)whether the defendant is likely to receive a sentence of imprisonment:

(b) the likely length of time that will pass before the defendant is sentenced:

(c) the personal circumstances of the defendant and the defendant's immediate family:

(d)       any other consideration that the court considers relevant.

(4)       If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.

We note in passing that the words “instead of” in s 13(3) are a little awkward. Some of what appears in s 8 is relevant post-conviction as well as pre-conviction (for instance ss 8(1)(a) and (c) and (2)(a), (c), (d) and (e)).  We think it plain that the policy considerations which underpin those subsections can be brought to account under the general words of s 13(3)(d).

[7]       More relevantly for present purposes, the likelihood or otherwise of imprisonment being imposed is referred to in both s 13(3)(a) and (4).  We are of the opinion that when trial judges consider bail following conviction, they should address the likelihood of imprisonment as relevant in the following respects:

(a)If imprisonment is not a real or substantial possibility, s 13(4) will apply (and bail would ordinarily be granted).

(b)Under s 13(3)(a) the judge must not only address whether there is a real or substantial possibility of imprisonment but also form a view as to how likely it is that such a sentence will be imposed.  The more likely (or probable) a sentence of imprisonment, the more likely it is that bail will be refused.

[8]       Sentencing for offences of GHB and GBL was reviewed in R v Adams [2008] NZCA 171 but in respect of offending which was more serious than that of the appellant. That case therefore provides little direct assistance in fixing a starting point in this case. In terms of the more general guidance provided by R v Wallace and Christie [1999] 3 NZLR 159 (CA), the maximum starting point is five years. At the bail hearing, before Stevens J, the prosecutor suggested that an appropriate starting point for this offending would be five years imprisonment. Before us, however, Crown counsel accepted that a five year starting point was on the high side and that something lower, perhaps four years, might be appropriate. We are inclined to agree with this concession although we understand that there are disputes between the Crown and defence as to the purity of the drugs involved and the precise role of the appellant, disputes about which the Judge will no doubt have at least some preliminary views. The way in which these issues are resolved is likely to prove to be very important in terms of the ultimate starting point which is adopted.

[9]       The only mitigating feature is the appellant’s prior good character – a consideration which is usually afforded only limited weight in cases involving commercial drug dealing. 

[10]     Against that background we turn to what the Judge said in his bail judgment:

[8]       The first consideration, directed at the interests of justice, is whether the accused is likely to receive a sentence of imprisonment.  The answer to this question in the present circumstances must surely be yes.  Mr Hart submitted that he will be presenting submissions directed at a possible sentence of home detention.  I cannot pre-judge that submission at this stage.  This offending occurred in the transitional period covered by an amendment to the Sentencing Act.  Therefore, in accordance with the Court of Appeal decision in R v Hill [2008] 2 NZLR 381, it may be possible for defence counsel to persuade the Court that a sentence of home detention could be imposed, even though it would be very difficult, if not impossible, to bring any sentence of imprisonment down to two years, which is the normal qualifying sentence of short duration required for a sentence of home detention.

[9]       The difficulty at the moment is that I do not have any of the reports, which have been requested as set out above.  What I am aware of are the facts of the case.  The offending is for two charges involving Class B controlled drugs, which is of course serious.  Such offending involves a substantial amount of GHB/GBL and supply to a major drug dealer at a significant wholesale price as discussed above.

[11]     For reasons already indicated, the Judge understandably did not wish to be precise as to what he had in mind in terms of probable sentence.  He did not adopt the Crown’s five year starting point proposition.  But even so, and although he was not dismissing the possibility of a home detention sentence out of hand, he thought that there would be difficulties getting the appropriate sentence down to the point where home detention would be appropriate on the R v Hill [2008] 2 NZLR 381 (CA) approach. We see nothing in what he said that we disagree with. As well, the bare possibility that a sentence of home detention might be imposed does not itself engage s 13(4) and is not logically inconsistent with a refusal of bail.

[12]     All in all, the judge was far better placed than we are to form the judgment required under s 13.  We can only interfere with the decision made by the Judge if we can conclude that his assessment as to the likelihood of imprisonment was wrong.  As is apparent, we are not persuaded that this is so and accordingly we dismiss the appeal.

Solicitors:
Crown Law Office, Wellington