Rangitaawa v Police

[2013] NZHC 1141

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000016 [2013] NZHC 1141

CATRINA MECHELLE RANGITAAWA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 May 2013

Counsel:         R O Nicholson for Appellant

R B Annandale for Respondent

Judgment:      16 May 2013

ORAL JUDGMENT OF KATZ J

Counsel:

R B Annandale, Almao Douch, Crown Solicitor, Hamilton

R O Nicholson, Barrister, Hamilton

RANGITAAWA V NEW ZEALAND POLICE HC HAM CRI-2013-419-000016 [16 May 2013]

Introduction

[1]      The appellant, Catrina Rangitaawa, pleaded guilty in the District Court to one count of possessing cannabis for the purposes of sale/supply, which is an offence under s 6(1)(f) of the Misuse of Drugs Act 1975.

[2]      On 5 April 2013, Ms Rangitaawa was sentenced to 10 months imprisonment. She appeals that sentence on the grounds that:

(a)       it is manifestly excessive; and

(b)      the Judge erred in not granting her home detention.

I will consider each ground of appeal in turn, after briefly setting out the key facts.

Facts

[3]      Ms Rangitaawa is a 46 year old single mother. At the time of sentencing she was living in a Housing Corporation home with her uncle and four of her five children, aged 11, 12,  17, and 19.   She receives an invalid’s benefit,  as she is partially blind (having only 20% vision).

[4]      On 9 November 2012, the police attended Ms Rangitaawa’s address on an unrelated matter. They found Ms Rangitaawa in possession of a bag of cannabis.  A search was conducted, revealing a snaplock bag containing 15.36 grams of cannabis, two cannabis tinnies, $170 cash located in a money container in the lounge and snaplock bags which contained cannabis residue.

[5]      Ms Rangitaawa says she offended because she needed money as she could not afford to pay her bills. There was some dispute as to whether some of these bills related to what could be described as “luxury” items such as Sky TV or an internet connection.  However, nothing turns on the issue.  A friend suggested that she could deal cannabis as a means of supplementing her income and she did so.

[6]       Ms Rangitaawa’s only previous conviction is for cannabis cultivation, some

16 years ago, in 1996.

Is the sentence manifestly excessive?

[7]       The first ground of appeal is that the sentence is manifestly excessive.  In an appeal against sentence, the Court may confirm the sentence; or if the sentence is one which is “clearly excessive or inadequate or inappropriate”, or the Court had no jurisdiction to impose that sentence, or substantial facts relating to personal history were not before the sentencing Court, then the Court may quash or vary the sentence or part of it.1

[8]      In R v Monkman, the Court of Appeal considered the factors that would make

a sentence “manifestly excessive.”2

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily  observed  with  respect  to  that  offence;  the  place  which  the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

[9]      When considering whether the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal observed in Ripia v R:3

… this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive.  The  route  by  which  the  judge  reached  that  outcome  will  be relevant to the analysis, but seldom in itself pivotal.

1            Summary Proceedings Act 1957, s 121(3).

2            R v Monkman CA445/02, 3 March 2003 at [6].

3            Ripia v R [2011] NZCA 101 at [15].

[10]     The  approach  to  be  taken  to  appeals  under  s  121(3)  of  the  Summary

Proceedings Act 1957 were set out in Yorston v Police where the Court said:4

(a) There must be an error vitiating the lower Court's original sentencing

discretion: the appeal must proceed on an ‘error principle.’

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion. ”

[11]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Sentencing approach of District Court Judge

[12]     The Judge took a starting point of 2 years’ imprisonment, the bottom end of band 2 in R v Terewi.5  While the quantity of cannabis and cash found was small, there was plainly evidence of cannabis dealing.   A one third discount was then applied for Ms Rangitaawa’s guilty plea and remorse.

[13]   The Judge acknowledged that a sentence of imprisonment would be exceptionally difficult for Ms Rangitaawa and her family. There will be a great burden placed on those needing to support Ms Rangitaawa’s family while she is incarcerated. Accordingly, the Judge afforded a further discount “to lessen the impact upon those who are innocent of all of this but who are greatly affected by your

offending”.6   The Judge reduced the sentence to 10 months imprisonment. Implicitly

the final discount was 6 months.

Was the starting point appropriate?

[14]     Ms Rangitaawa argued that the starting point was too high.  She submitted that while her offending would ordinarily fall into band 2 of Terewi, this is one of

4      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]—[15].

5      R v Terewi [1999] 3 NZLR 62 (CA).

6      Police v Rangitaawa DC Hamilton CRI-2012-019-7236, 5 April 2013 at [7].

those cases where the Terewi bands need to applied flexibly. She argued that a starting point of lower than 2 years imprisonment should have been taken given the short duration of offending.   She also noted that the charges were laid summarily rather than indictably.

[15]     There can be little doubt that this offending falls into band 2 of Terewi. While the amount found was less than the 28 grams of cannabis plant at which the statutory presumption of purpose of supply or sale is triggered, Ms Rangitaawa admitted that she sold cannabis to help pay her bills. Items such as snaplock bags containing cannabis residue were found at the scene. Ms Rangitaawa was clearly running a small scale commercial cannabis supply operation.

[16]     A starting point of lower than 2 years can be taken for band 2 cases “where sales are infrequent and of very limited extent”.7   There is little to suggest however that this commercial operation was anything but an on-going one. It appears that the only thing that prevented Ms Rangitaawa continuing to deal cannabis was the fact she got caught. In light of that and her admitted commercial motive, the 2 year starting point at the bottom of the band was appropriate.

[17]     I further note that even if the starting point had been too high, any severity would have been ameliorated by the very generous discounts applied by the Judge. The Judge gave the maximum discounts available for Ms Rangitaawa’s guilty plea and remorse.  This was despite the Judge noting that Ms Rangitaawa did not show any particular insight into her offending and the pre-sentence report writer clearly being sceptical as to the genuineness of any remorse.

[18]     Further, following a one-third (eight months) reduction for the guilty plea and remorse, the Judge reduced the sentence by a further six months to lessen the impact of the sentence on Ms Rangitaawa’s family.

[19]     The end sentence was accordingly well within the range that can properly be justified by accepted sentencing principles.

7      R v Terewi [1999] 3 NZLR 62 (CA) at [4].

Was home detention the appropriate sentence?

[20]     The second ground of appeal was that the Judge erred in not sentencing

Ms Rangitaawa to home detention rather than imprisonment.

Relevant legal principles

[21]     The Court of Appeal considered an appeal against a refusal to grant home detention in James v R:8

[17] We record that an appeal against a refusal to grant home detention does  not  provide  an  opportunity  to  revisit  or  review  the  merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[22]     Further, in Manikpersadh v R the Court of Appeal stated that:9

...the proper approach of an appellate Court in cases such as this is that “the   choice   between   home   detention   and   a   short   sentence   of imprisonment  is  the  exercise  of  a  fettered  discretion,  with  appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.

Approach of District Court Judge

[23]     On 1 February 2013 the Judge provided Ms Rangitaawa with a sentence indication. The Judge noted that the offending fell within the lower end of Terewi Band 2 as the amount of cannabis was relatively small and it “was not a particularly significant operation.” A starting point of two years imprisonment was indicated. Taking into account a guilty plea and other possible discounts, the Judge noted the

possibility of home detention, concluding that:10

8      James v R [2010] NZCA 206 at [17].

9      Manikpersadh v R [2011] NZCA 452 at [12].

10     New Zealand Police v Rangitaawa, DC, Hamilton, 1 February 2013 [2].

I am not going to say yes or no to home detention at this point.  I would seek a pre-sentence report.   Depending on the outcome, depending on what is contained in the pre-sentence report, I would be prepared to at least consider a  sentence  of  home  detention.    That  is  as  high  an  indication  of  home detention as I can give at the moment.

[24]     The  pre-sentence  report  subsequently  provided  to  the  Court  recorded, amongst  other  things,  that  Child,  Youth  and  Family  Services  (“CYFS”)  had expressed concern about Ms Rangitaawa’s drug use “most notably in 2011 when there were several notifications made to their service reporting Ms Rangitaawa and her friends were misusing substances at her address.”   It was further noted that CYFS had:

expressed considerable concerns for the safety and welfare of the children who are residing at the address should Ms Rangitaawa receive an electronically monitored sentence…these concerns are based on an extensive history   of   family   violence   and   misuse   of   alcohol   and   drugs   by Ms Rangitaawa.   Child   neglect   has   also   been   substantiated   against Ms Rangitaawa in the past due to misuse of alcohol and other activities such as partying and fighting at her address.

[25]     The report writer accordingly concluded that the proposed address was not suitable for home detention due to concerns for the safety and welfare of the children who reside at the address

[26]     Ms Rangitaawa’s alleged shortcomings as a parent appeared to be the sole factor weighing against home detention.  The report writer noted that there did not appear  to  have  been  any  issues  with  compliance  by  Ms  Rangitaawa  with  her previous community based sentence.  She was assessed as “possessing a high level of ability to comply with any sanction imposed by the Court.”  Further, given that Ms Rangitaawa only had one previous conviction, 16 years ago, she was assessed as presenting a low level risk of re-offending as well as a low level of risk of harm to others “based on the nature of her current offending and previous conviction.”

[27]     In sentencing Ms Rangitaawa the Judge noted that at the time of the sentence indication whether home detention was a “likely possibility was going to turn very heavily on the contents of the pre-sentence report.” The Judge then observed that the pre-sentence report did not recommend home detention “in rather strong terms.” The Judge noted the concerns of CYFS, but also observed that “if your children were

without their mother for a period of time that is not going to be of much help to them

either.” The Judge concluded that:

While some of the concerns of the probation officer are expressed in general terms, I can understand why Community Probation feel that the current home environment and your approach to it is not a particularly healthy place for you or for your children.

[28]     Given the concerns expressed in the pre-sentence report the Judge concluded that home detention was not the least restrictive outcome available in the circumstances, and that imprisonment was appropriate.

Did the Judge err in refusing to grant home detention?

[29]     Ms Rangitaawa apparently only received a copy of the pre-sentence report the day before sentencing, which limited her ability to respond in any detail to the CYFS allegations contained within it regarding her parenting.

[30]     In this Court she submitted, through counsel, that the Judge gave too much weight to those aspects of the pre-sentence report.   Counsel advised that her instructions were that Ms Rangitaawa last had contact with CYFS in relation to her family three years ago, and the contact was minimal and positive in nature. The concerns raised by CYFS were, she said, historic in nature.   Further, there are no convictions to reflect the concerns, and no Police involvement.   Indeed counsel for Ms  Rangitaawa  advised  that  her  instructions  were  that  Ms Rangitaawa’s  only involvement with CYFS in recent years has been when CYFS placed two young girls in her care. Those children were said to have been later removed from her care due to their disruptive behaviour, rather than any concerns over her capability as a carer. I note however that there is no affidavit evidence before the Court in support of these submissions.

Discussion

[31]     Courts  quite  properly  give  considerable  weight  to  the  contents  of  pre- sentence reports.  However in this case I have concluded after careful consideration that  the  Judge  gave  undue  weight  to  the  concerns  attributed  to  CYFS  in  the pre-sentence report.  Although a CYFS employee (who is not identified) appears to

have made a number of serious allegations regarding Ms Rangitaawa’s parenting behaviour I note that:

(a)      There is no evidence before the Court of any police involvement with the family in relation to child welfare issues.

(b)Ms  Rangitaawa  has  never  been  charged,  let  alone  convicted,  in relation to any allegations of child neglect or abuse.

(c)      It   appears   that   CYFS   may   itself   have   placed   children   in Ms Rangitaawa’s care, although I can give that limited weight in the absence of affidavit evidence.

(d)Ms Rangitaawa is currently a full time “stay at home” mother (or was prior  to  being sentenced  to  prison).  Due to her extremely limited vision she apparently spent most of her time at home.  CYFS does not however, appear to have seen this as an issue warranting action.  It did not take any steps to remove her children from her care.

[32]     In this context the concerns attributed to CYFS regarding Ms Rangitaawa being sentenced to home detention at the family home are somewhat difficult to understand.  If CYFS believe Ms Rangitaawa’s children are at risk in their own home then clearly the onus is on them to take appropriate steps to mitigate such risks. They do not appear to have done so, over an extended period.  Sentencing Ms Rangitaawa to home detention would not alter the status quo in any way.  She is already a full- time “stay at home” parent.  It is not in my view appropriate to, in essence, seek to have generalised  child  welfare issues addressed “through the back door” in the context of sentencing Ms Rangitaawa on drug offending charges.

[33]     Counsel advised me that since to Ms Rangitaawa was imprisoned one of her children is now being cared for by an elder sibling and another is being cared for by an aunt. Two children remain with an uncle in their family home.

[34]     The  Courts  are  appropriately  reluctant  to  sentence  an  offender  to  home detention at the address where the offending occurred.  However in appropriate cases Courts  will  allow sentences  of  home  detention  despite  an  offender  having  sold cannabis from home, even in cases where children have been at the home detention address.11   Each case will turn on its own facts.

[35]     If there were a significant risk that Ms Rangitaawa would continue to deal drugs  from  the  family  home  that  would  militate  against  a  sentence  of  home detention.      I   note   however   that   the   pre-sentence   report   writer   assesses Ms Rangitaawa’s risk of re-offending as low.  This is not therefore a situation where the probation service has expressed a concern that Ms Rangitaawa will continue to deal drugs from her home if she is released on home detention.

[36]     The sole reason advanced in the pre-sentence report for not recommending home detention was the concerns expressed by CYFS.  In my view the Judge did err in placing undue weight in this aspect of the report.   I note however that, due to the pre-sentence  report  only  being  received  by  Ms  Rangitaawa  the  day  before sentencing, the sentencing Judge did not have the benefit of the comprehensive submissions and information which has been available to me on the hearing of this appeal.

[37]     There are separate statutory processes for addressing child welfare concerns. Sentencing  Ms Rangitaawa  to  imprisonment  is  not  an  adequate  or  appropriate mechanism for addressing any underlying child welfare issues.  The two processes should  not  be  conflated.    To  the  extent  that  there  are  legitimate  child  welfare concerns unrelated to the particular offending before the Court,  these should be addressed separately by CYFS.

[38]     The concerns expressed by CYFS must be viewed in context.   They are simply one factor, but not necessarily a determinative one, in the sentencing process. It  is  also  necessary to  consider the various  other matters  addressed in  the pre- sentence report.  Almost without exception the other matters which are addressed

indicate that home detention would be an appropriate sentence in this case.

11     R v Croft [2012] NZHC 3010; R v Keegan [2012] NZHC 3019.

[39]     The offending is very much at the lower end of the scale – the amount of cannabis  involved  is  approximately  half  the  amount  which  would  trigger  the statutory presumption of supply.   Ms Rangitaawa is assessed in the pre-sentence report as being at low risk of re-offending and low risk of harm to others. She is a single parent on an invalid’s benefit (due to partial blindness) with four dependent children.   She has the support of her family and both her elder daughter and her uncle have written letters to the Court expressing their support for her and outlining her sad personal circumstances.  The pre-sentence states that she possesses “a high level of ability to comply with any sanction imposed by the Court.” She has almost no prior convictions – being one conviction 16 years ago.  No other issues are raised in the pre-sentence report that would be an impediment to a sentence of home detention.

[40]     Taking all of these factors into account I have concluded that the sentence of imprisonment should be quashed and replaced with a sentence of home detention. Such a sentence would adequately meet the sentencing principles of deterrence and denunciation in this case and would hold Ms Rangitaawa accountable for her actions. No  doubt  the  6  weeks  or  so  she  has  spent  in  prison  will  have  given  her  an opportunity to reflect on the serious impact of her criminal offending on both herself and her family and the likely consequences should she re-offend.

[41]     Following the Judge’s methodology, I take the end sentence of 10 months imprisonment and add back in the six month discount which he gave to reflect the hardship on Ms Rangitaawa’s family of her being imprisoned.  This would result in a prison term of 16 months imprisonment.  In lieu of that a sentence of 8 months home detention would be appropriate.   Taking into account the period of imprisonment already served, an end sentence of 6 months home detention is appropriate.

Result

[42]     The sentence of 10 months imprisonment imposed in the District Court is quashed.

[43]     A sentence of 6 months home detention is substituted on the following terms:

(a)       Upon  release  from  custody  the  appellant  is  to  travel  directly  to

28 Montgomery Crescent, Bader, Melville, Hamilton.

(b)The  appellant  is  to  remain  at  that  address  until  the  arrival  of community   probation   services   and   the   electronic   monitoring company.

(c)       The appellant is not to possess or consume illegal drugs or synthetic cannabis.

(d)The  appellant  is  to  attend  any  drug  or  alcohol  assessments  or programmes directed by the probation service.

Katz J