R v Stainton

[2008] NZCA 370

IN THE COURT OF APPEAL OF NEW ZEALAND

CA377/2008
[2008] NZCA 370

THE QUEEN

v

DESMOND TAHATA STAINTON

Hearing:15 September 2008

Court:Robertson, Wild and Cooper JJ

Counsel:N J Utting for Appellant

T Epati for Crown

Judgment:17 September 2008 at 9.30 am

JUDGMENT OF THE COURT

A        THE APPEAL AGAINST SENTENCE IS DISMISSED.

BThe appellant is to surrender himself to the Mangakino Police Station at noon on Monday 22 September 2008 to continue his term of imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       The appellant pleaded guilty under s 153A of the Summary Proceedings Act 1957 to one charge of possession of cannabis oil for the purposes of supply and one charge of possession of cannabis for the purposes of sale.  He appeals against an effective sentence of nine months’ imprisonment on the basis that it was manifestly excessive and that the Judge erred by imposing a term of imprisonment when he should have imposed a sentence of home detention.

[2]       The factual circumstances were described by Judge McGuire as follows:

[2]       . . .  the Police executed a search warrant at your house in Mangakino on 10 March of this year.  They found at your house four cannabis bullets and on top of the fridge, they found a tub of cannabis oil.  Further, 29 tubs of cannabis oil were located in the master bedroom, a tub being the base of a tablet blister pack filled with cannabis oil which are common measures for selling cannabis oil at street level.  The police found a computer at your address where records were kept of sales and money owed to you for drugs purchased.  There was also a mobile phone used by customers to arrange purchases and that was also located by the police.

[3]       Your partner was spoken to.  She said that both she and you sold cannabis bullets and tubs of cannabis oil from the address.  You told the Police that you only sold cannabis bullets and that the cannabis oil was for your own use and that you had purchased 30 tubs from a friend.  You said that you had been selling drugs for two to three months.

[3]       Mr Stainton’s case before the District Court Judge was advanced on the basis that, as he had received a positive pre-sentence report and had taken active steps to deal with his use of cannabis, the matter should be dealt with by way of a community based sentence. 

[4]       The Judge, in response, said:

[6]       If other people were not affected by what you have been doing, Mr Stainton, I would be the first to encourage the rehabilitation that you have commenced upon and leave you in the community.  But I am not prepared to do that because you have been spreading harm in your community by selling drugs and that is what the Court of Appeal has told us in Terewi, that the primary position in sentencing for drug dealing is deterrence.  Mr Maze, in very measured submissions from the Crown, says that I can pull back from the starting point of category 2 in Terewi and I do so.

[5]       The Judge took an 18 month starting point and gave a “massive discount” for the steps taken, but said that the message had to be sent that “if you deal in drugs you go to jail”.

[6]       Two matters have changed since the District Court sentence.  It is now apparent that home detention could occur at the appellant’s mother’s address, rather than the address that he shared with the mother of his children (who is still awaiting trial in respect of her offending arising from the same circumstances).  This is a relevant but not conclusive factor and the actual address was not a factor specifically mentioned by Judge McGuire.

[7]       Secondly, the personal circumstances of Mr Stainton are different in that his now wife is expecting a fourth child and there is employment immediately available for him.

[8]       Ms Utting stressed that in the Crown submissions in the District Court it was acknowledged that, because of the limited extent of Mr Stainton’s sales of cannabis, home detention was an available sentence, although we note this was a concluding remark in the Crown’s submissions which otherwise contended strongly that a full time custodial sentence was required.

[9]       Before us, the Crown noted the comments of this Court in R v Paki CA165/05 2 September 2005:

[12]     We accept that the declining of leave to apply for home detention is usual in cases involving offending over a period of time and where that offending has occurred in a home environment.  This is particularly so in cases of drug offending.  The possibility of returning home, to the scene of offending, a relatively short time after conviction, could tend to undermine the deterrent aspect of sentencing in such cases, and detract from the authority of the judicial process in the eyes of the public.  But the judicial discretion must not be fettered, even if sparingly exercised in the types of cases we have mentioned.

[10]     This was under a previous home detention regime, but the impact is unaltered.

[11]     Ms Utting has carefully advanced everything that can be said on Mr Stainton’s behalf, but the critical issue for this Court is whether the exercise of the discretion of the sentencing Judge was wrong.

[12]     Judge McGuire’s concern about deterrence and denunciation were proper factors taken into account.  It was clear that he had regard to the requirement under s 15A of the Sentencing Act to consider the possibility of something less than a term of imprisonment, an exercise which is influenced by ss 8(g) and 16 of the Sentencing Act. 

[13]     It is clear that the Judge assessed all relevant issues.  The sentencing notes are not expansive (which is thoroughly understandable in a busy list) but all relevant matters have been considered.

[14]     It is instructive to note that recently this Court in R v Hill [2008] 2 NZLR 381 said:

[41]     Finally, we should note that it is now well established that home detention is unlikely to be granted where a person is convicted of dealing in a drug from his or her home (see, for example, R v Paki Court of Appeal, CA165/05, 5 September 2005) at para [6]).

[15]     There is no basis for us to interfere with the exercise of discretion and the appeal must be dismissed.

[16]     Mr Stainton must report to the police station at Mangakino at noon on Monday 22 September to continue the sentence of imprisonment upon which the District Court Judge granted him bail pending the hearing of the appeal.

Solicitors:
Crown Law Office, Wellington