Riddell v Police

[2012] NZHC 2826

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-57 [2012] NZHC 2826

BETWEEN  JENNA ELLEN RIDDELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 October 2012

Counsel:         M McGhie for Appellant

J Rhodes for Respondent

Judgment:      25 October 2012

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Tauranga

M McGhie, Tauranga

JENNA ELLEN RIDDELL V NEW ZEALAND POLICE HC ROT CRI 2012-463-57 [25 October 2012]

[1]      On 26 September 2012 Jenna Riddell was sentenced in the District Court, Whakatane, to home detention for six months and 200 hours community work for a single offence: possession on 6 August 2012 of four cannabis tinnies containing 5.5 grams of cannabis head for the purpose of sale or supply. She appeals her sentence as manifestly excessive.

[2]      Ms Riddell first contends that in taking a 12 month starting point for her offence, the maximum sentence able to be imposed within the summary jurisdiction, the Judge effectively deemed her offence to be amongst the most serious of its kind and that it was, in fact, far from that order of seriousness. The Judge's starting point, she contends, ought not to have been any greater than six months.

[3]      Ms Riddell's second ground is that, once the Judge had decided to impose on her a sentence of home detention, he ought, as is conventional, to have fixed the term at half the prison term appropriate. He saw that as nine months. From a starting point of six months, it ought to have been no greater than three months.

[4]      By way of background, Ms Riddell relies on two letters to which the Judge did not refer. One said that she had sought drug and alcohol counselling with Ngati Awa Social Services. The other confirmed that she had attended weekly sessions for five weeks.

Fact summary

[5]      The uncontested summary of facts narrates, succinctly, that on 6 August 2012

Ms Riddell's home address was searched on warrant and that the four cannabis tinnies were found in her handbag. She then said, it narrates, that she had bought them for $20 the Friday before, to sell to Tauranga friends, but they had no money and so she had kept them.

[6]      The summary went on to say that Ms Riddell had previously appeared before the Court, as indeed she had twice before. On 27 April 2011, on her second appearance, she was sentenced to 300 hours community work for possession of cannabis for supply. Her other conviction was irrelevant.

Pre-sentence report

[7]      Ms Riddell, according to her pre-sentence report, is aged 25 years. She has two children, aged five and a two and a half years. At the time of her offending she was undertaking a free course at her children's Kohanga Reo. Her report describes her as a social person, family orientated and very close to her mother and grandparents.

[8]      The report identified as the reasons why Ms Riddell had offended, that she used cannabis, as did her friends and associates. It said that she lacked insight and that,  while  she  expressed  remorse,  she  justified  and  minimised  her  offending. Equally, her report rated her as at medium risk of re-offending and highly likely to comply with a community based sentence. She had completed her community work without incident.

[9]      Her report recommended that she be sentenced to supervision and community work. It  recommended  against  home detention  as too  restrictive,  given her two young children. It did not advance community detention because the police had described her house as a well known tinnie house and her as a well known dealer.

Sentence

[10]     The sentencing Judge, Judge Everitt, began by saying that Ms Riddell was considered by the police to be a well known dealer and that she had a previous related conviction. His duty on sentence, he said, had to be to 'crack down on the spread of cannabis by people who are selling it to make money'.

[11]     The Judge had considered, he said, declining jurisdiction. Instead he took as his starting point for sentence the maximum sentence within his ability to impose in the summary jurisdiction for this offence, 12 months imprisonment; a starting point he apparently fixed by taking into account Ms Riddell's previous related conviction. He allowed Ms Riddell a three month discount for her plea.

[12]     In that way the Judge arrived at a potential sentence of imprisonment of nine months. Instead he elected to impose on Ms Riddell the sentence under appeal, six months home detention and 200 hours community work.

First ground of appeal

[13]     Ms Riddell's counsel first contends that, in taking a 12 month starting point, the maximum sentence he was able to impose in the summary jurisdiction, the Judge must have deemed her offence, under s 8(c) of the Sentencing Act 2002, to be one warranting the maximum penalty. It was not of that order. The combined weight of the four tinnies was 5.5 grams. There was no actual supply and no profit made.

[14]     The  maximum  penalty  for  supply  of  cannabis,  to  which  s  8(c)  applies, however, is that able to be imposed indictably, eight years. Section 8(c) does not apply to the 12 month limit on sentence in the summary jurisdiction. Judges in the summary jurisdiction  are free,  indeed  obliged,  to  set  any sentence they  impose against the tariff in R v Terewi, which contemplates a minimum sentence of two years, though lesser starting points where sales are infrequent or of very limited

extent.[1]

[1] R v Terewi [1999] 3 NZLR 62; R v Gray [2008] NZCA 224; R v Pearson CA02/03/03, 24 June

2003; Tahiti v New Zealand Police HC Auckland CRI 2010-404-330, 4 November 2010.

[15]     The issue is rather whether the Judge made any error in taking as he did a 12 month starting point, particularly when he characterised Ms Riddell as a well known dealer,  relying  not  on  the  agreed  summary  of  facts,  but  rather  on  a  statement attributed to the police by the probation officer who assessed her. (That the police considered Ms Riddell's home a well known tinnie house, by contrast, did not inhibit the Judge from imposing home detention on her.)

[16]     Ms Riddell's counsel relies on two cases to say that the Judge took too high a starting point.[2] Neither is clearly in point. Both involved more serious offending and

the sentences imposed turned on a range of factors that do not apply here. By

contrast, to take another case, R v Heremaia,[3] where the offender sold four tinnies on two separate occasions to an undercover officer, Stevens J took a starting point of two years and that is more nearly, but not exactly, in point.

[2] R v Maats & Kaa HC Gisborne CRI 2010-016-1863-64, 14 December 2010; R v Christie HC Rotorua CRI 2008-070-3855, 22 September 2008.

[3] R v Heremaia HC Whangarei CRI 2008-088-4116, 25 March 2009.

[17]     Counsel for the police relies also on sentences imposed by District Court Judges in the Bay of Plenty following Operation Kiwi but they too involve actual sales and an array of discretionary considerations that are not directly helpful.

[18]     No doubt such examples can be multiplied, pointing one way and the other. They simply illustrate that the Judge's 12 month starting point was open to him if he reached it, as he did, by taking into account also Ms Riddell's previous conviction.

Second ground of appeal

[19]     Ms Riddell's second ground of appeal is that, imposing home detention on her, the Judge ought to have halved the term of imprisonment he arrived at, and which I have held to be open to him, nine months.

[20]     In R v Bisschop[4] the Court of Appeal held that 'halving is not a matter of law'. The Court held that more than a 'mathematical process' is involved. It said this:

Once  the  jurisdiction  to  impose  home  detention  exists  through  what otherwise would have been a short-term prison sentence, then the home detention term, if granted, is to be fixed after an overall assessment of all factors relevant to the offender, and consistent with the purposes and principles of the Sentencing Act, including imposing the least restrictive sentence appropriate.

[4] R v Bisschop [2008] NZCA 229 at [17] - [19].

[21]     The Judge did not then make any error of law. The question remains whether the sentence he imposed was still manifestly excessive in its totality. It was, after all, a six month term of home detention coupled with 200 hours of community work. My own conclusion is that, in each respect, the sentence was excessive.

[22]     Ms Riddell purchased the cannabis to sell to friends and the transaction was commercial. She is not, however, to be deemed on that basis alone, even with her

previous conviction, to be a well known drug dealer. She is, moreover, a mother with two young children and they too must be taken into account in fixing a sentence proper to her as well as to her offence.

[23]     A sufficient deterrent sentence in Ms Riddell's case, I consider, would be four months home detention and 100 hours community work. The sentence imposed on her will therefore be set aside and the sentence that I have just identified substituted

in its stead.

P.J. Keane J