R v Police HC Napier CRI 2005-441-17
[2005] NZHC 260
•19 May 2005
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY
CRI 2005-441-17
R
Appellant
V
NEW ZEALAND POLICE
Respondent
Hearing: 18 May 2005
Appearances: A M Courtney for Appellant
R J Collins for Respondent
Judgment: 19 May 2005 at 10.00 am
RESERVED JUDGMENT OF MILLER J
Introduction
Mr R appeals against an effective sentence of 16 months imprisonment.
He was convicted and sentenced in the District Court at Napier on 7 April, having pleaded guilty to the following charges:
Cultivation of cannabis; s.9(1)
Misuse of Drugs Act
16 months imprisonment
Possession of cannabis for
supply; s.6(I)(e) Misuse of Drugs Act
12 months imprisonment
R V NEW ZEALAND POLICE HC NAP CRI 2005-441-17 19 May 2005
Sale of cannabis; s.6(1)(e) Misuse of Drugs Act
9 months imprisonment .
Possession of utensils for
consumption of cannabis; s.3 1(a) Misuse of Drugs Act
1 month imprisonment
Leave was granted to apply for home detention.
The appeal is brought on grounds of disparity. It is said that Mr R 's sentence was excessive having regard to the sentence imposed by the same Judge on the same day in relation to another offender, Aaron Francis Taylor, who was sentenced to nine months imprisonment on two charges, one of cultivation of cannabis and the other of possession of cannabis for the purpose of supply.
The background
The facts are that the police found at Mr R 's address a sophisticated cannabis growing operation set up in a shipping container. It included grow lights, a fan, timer, temperature gauge, and an air purifier. They found 14 large cannabis plants, a large cardboard box containing 419 grams of dried cannabis, and a bucket containing 77 grams of cannabis stalk material and dried leaf In an adjoining enclosure there were 14 smaller plants and five seedlings. In the garage was found a further 60 grams of cannabis, empty film canisters which had contained cannabis, some cannabis seeds, and utensils for smoking cannabis.
Mr R said the cannabis was mostly for his own use to alleviate back pain, but he admitted that he had recently sold about a dozen bullets to associates.
Mr R is aged 57. He has several previous convictions, mostly for driving although he has one conviction in 1985 for cultivating cannabis and one conviction for shoplifting. The pre-sentence report acknowledged that in many ways he does not fit the usual profile of cannabis dealers, because he has a number of positive attributes as reflected in the testimonials that were provided. He had suffered two back injuries and some degeneration of the spine, which together meant
he is unable to work. The probation officer considered that he was unlikely to reoffend.
The sentencing notes
Judge Adeane held that the case fell within category 2 of R v Terewi [1999] 3 NZLR 62, being small scale cultivation of cannabis for commercial purpose. No issue is taken with that conclusion. In such cases, the starting point is generally between two to four years, although a lower starting point may be justified if sales are infrequent and of a very limited extent.
Judge Adeane recorded the facts and Mr R 's personal circumstances, including a painful spinal condition to which he attributed his interest in cannabis. He said that the Courts hear that explanation so often that it has become difficult to doubt that some people do get relief in this way which they cannot find anywhere else. He noted the previous conviction. Although a long time ago, it demonstrated an interest in cannabis involving cultivation over a very long period. He expressed reservations about the proposition that Mr R was remorseful, saying it has to be recognised that he held views about cannabis and cannabis cultivation which do not accord with the law. He held that the offending was perfectly deliberate and well organised and, in an apparent reference to Taylor, said the impression of personal problems overflowing into very occasional cannabis dealing is not quite as strong in Mr R 's case.
The Judge then held that the least starting point that could be adopted was two years imprisonment in accordance with Terewi. He then made an allowance for an early guilty plea and to a lesser extent the personal circumstances. That led to the final sentence of 16 months imprisonment.
The approach on appeal
On appeal, the appellant must show that this sentence was clearly excessive or inappropriate, or that substantial facts relating to the offence or the offender were
not before the District Court Judge or that the facts were not substantially has placed before or found by the District Court.
Viewed alone, it is plain that the sentence of 16 months imprisonment was within the range available to the Judge. Whether or not only 12 bullets had previously been sold, the operation clearly had a commercial purpose. There were four charges, and in this case the totality principle would tend' to increase the effective sentence.
However, the sole point taken on appeal is that the sentence is manifestly excessive because of the disparity with Taylor's sentence. Ms Courtney submitted that disparity of treatment of unrelated offenders justifies a reduction in sentence where the disparity is unjustifiable and gross.
Mr Collins emphasised that Taylor was not a co-offender. Taylor's sentence is not an appropriate basis on which to interfere with a sentence that, on its face, is within the range available to the sentencing Judge. Intervention could be justified only if the disparity was such as to bring the administration of justice into disrepute. Anything less would lead to District Court Judges routinely being required to justify sentences by reference to sentences passed by other Judges.
Judges must aspire to consistency in sentencing, while recognising that in many instances comparisons among sentences imposed on unrelated offenders is of little value because of the infinite diversity of circumstances and potential for differences of judicial opinion about the weight to be attached to them. For that reason, an appellate Court will not intervene on this ground unless the disparity is unjustifiable and gross, or such as to lead an informed and disinterested observer to believe that something had gone wrong with the administration of justice: R v Rameka [1973] 2 NZLR 592, R v Lawson [1982] 2 NZLR 219. Such a disparity would justify intervention even if Mr R 's sentence was within the range available to the sentencing judge: R v Wimmer (CA 408/90, 7 February 1991).
In Wimmer, the Court of Appeal considered discrepancies between two sentences for arson. The offenders were unrelated and different Judges were
involved. There was no tariff case. In one case, the offender had been sentenced to 12 months imprisonment. In the other, the sentence was eight months periodic detention with supervision and a compensatory payment of $1,000. The Court did not criticise either sentence in itself It noted that in the second case, the Judge had frankly stated that he was extending mercy.
Notwithstanding that, the Court concluded that it was impossible not to feel a sense of misgiving over the disparity in the two sentences in the same court within three days of each other. The appellant clearly felt a strong sense of injustice, and any impartial observer, aware of the circumstances of both cases, would no doubt consider that something had gone wrong with the even-handed administration of justice. On principles of overall fairness, and to ensure that justice should be seen to be done, it was appropriate that the appellant's sentence be brought into better proportion with the lenient sentence extended to the other offender.
Disparity in this case
Mr Collins appeared for the Police in this case and Taylor's. It is important to record that he agreed with Ms Courtney's submission that there was no material distinction in overall criminality. Taylor had fewer plants and cannabis material in his possession, but he admitted selling more in the past and had a large number of seeds. He also had a ticklist and a much more recent conviction for cannabis possession in 2001. Like Mr R , his explanation for becoming involved in cannabis was that he used it for pain relief. His personal circumstances differed in that he had a partner and a dependant child, and there were some psychological factors. I infer that Judge Adeane extended leniency to him on account of those circumstances.
Mr Collins responsibly acknowledged that Mr R might feel aggrieved, having been treated relatively harshly compared to the lenient sentence passed on Taylor. Taylor was not charged with selling cannabis, but that offence was clearly disclosed on the depositions and admitted by Taylor. Counsel did not suggest that the difference in personal circumstances was material; in cases involving sale of drugs, they are of secondary importance.
Ms Courtney submitted that the Judge's scepticism regarding Mr R 's remorse was misplaced. His apprehension had a marked effect on Mr R and his family, and he had taken steps to obtain alternative medical treatment for his back pain. The pre-sentence report was very positive. There was relatively little evidence of genuine remorse in Taylor's case.
Ms Courtney also emphasised that Mr R pleaded guilty before depositions, while Taylor pleaded guilty on arraignment. The informations in Taylor's case were laid in May 2004, and depositions were held on 6 September. He pleaded guilty at a callover on 8 November. In R 's case, the informations were laid on 8 November 2004, and he pleaded guilty on 8 March 2005. The timing of a guilty plea is relevant, because an early plea is indicative of true remorse and saves the costs of preparation for depositions and trial.
I accept these submissions. I conclude that this is a case in which Mr R might feel with justification that the disparity in sentence is unjust. Both the explanation for the offending and its criminality are very similar. Because the same Judge was involved, the difference is not explained by legitimate differences of judicial opinion regarding the weight to be attached to sentencing criteria in the circumstances of any given case. On the contrary, a disinterested observer, knowing the circumstances, might conclude that the substantial seven month disparity between the nine months imprisonment imposed on Mr Taylor and the 16 months imprisonment imposed on Mr R was unjustifiable and gross.
The appeal will be allowed. The sentence of 16 months imprisonment will be set aside and a sentence of nine months imprisonment substituted on the charges of cultivation of cannabis and possession of cannabis for supply, resulting in an effective sentence of nine months imprisonment. The sentences on the other two charges and the Judge's order that Mr R would have leave to apply for home detention are not affected by this decision.
Delivered at 10.00 am this 19th day of May 2005.
F Miller J
Solicitors:
A M Courtney, Napier for Appellant
Crown Solicitors Office, Napier for Respondent
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