Simi v The Queen
[2016] NZHC 1794
•4 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-204 [2016] NZHC 1794
DEDRICK SIMI
v
THE QUEEN
Hearing: 1 August 2016 Appearances:
M Edgar for the Appellant
H Benson-Pope for the RespondentJudgment:
4 August 2016
JUDGMENT OF THOMAS J
This judgment was delivered by me on 4 August 2016 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Kayes, Fletcher and Walker, Auckland.
SIMI v R [2016] NZHC 1794 [4 August 2016]
Introduction
[1] The appellant, Dedrick Dallas Simi, pleaded guilty following a sentence indication to seven charges of selling cannabis and one charge of possessing methamphetamine.
[2] He now appeals against his sentence of 25 months’ imprisonment, on the basis that the Judge took the top of the range indicated by him at the sentence indication before deducting mitigating factors and did not consider home detention which he had signalled as possibly appropriate.
Factual background
[3] Mr Simi was part of a wider cannabis dealing operation, in which nine other individuals were charged with supplying and selling cannabis. The operation involved cannabis supply and distribution networks set up by three principal offenders, who sourced the cannabis, prepared it into saleable amounts and supplied it to others for on-selling purposes.
[4] The cannabis was prepared and distributed to associates who either sold the cannabis “tinnies” from their houses or through a “dial a tinnie” service whereby members of the public could text members of the network and have cannabis delivered to their house. Text data obtained from the accused’s phones over the course of the Police investigation estimated the combined sale of cannabis as in the range of $25,000 - $30,000 per week.
[5] On 5 June 2015, Mr Simi was recorded sending messages to one of the principal offenders, to buy cannabis from him, and texting others to announce he was “back on deliveries”. Other text messages to similar effect were recorded on 16 June
2015, 9 July 2015, 29 July 2015, 14 August 2015, 16 August 2015, and 25 August
2015. In other text exchanges he arranged times and places to meet with various individuals.
[6] There were eight meetings between Mr Simi and the one of the principal offenders to obtain more cannabis for sale in June 2015 (mostly on consecutive
days), seven meetings in July 2015 (from 24 – 30 July) and 20 meetings in August, with two meetings a day at times.
[7] The seven charges of receiving and selling bags of pre-prepared tinnies involved selling bags containing 35 – 37 tinnies. The Crown estimated that the sale of at least one bag of tinnies per day from 10 June 2015 until his arrest on
4 November 2015, would equate to 7 ounces of cannabis per week (almost 200 grams) and $4,200 in sales. This equates to 7 kg of cannabis and $87,000 in sales.
[8] When Mr Simi was arrested, he was found with a small amount of a substance identified as methamphetamine in his wallet.
Personal background/reports
[9] The pre-sentence report for Mr Simi was dated 27 June 2016. It recommended imprisonment, and recorded Mr Simi’s relaxed approach to his offending, including comments that he thought marijuana should be legal and that he was attempting to be a positive influence on the other boys in the gang. The report indicated that Mr Simi saw his offending as relatively minor, and saw no problems with his continued gang associations. His responses to the report writer could be considered as flippant and did little to satisfy the probation officer about the risk of reoffending. As Mr Simi had never been subject to a community-based sentence, there were no identified barriers to his compliance with such a sentence.
[10] The other reports and references provided for Mr Simi were more positive. Mr Simi had attended group therapy sessions with Tupu Pacific Alcohol, Other Drug and Gambling Services, missing one session. A character reference was provided from the Chair of the Caterpillar Trust, a programme for supporting youth in the local community, which noted that Mr Simi had spent time assisting him with helping youth at afterschool activities.
District Court Decision
[11] On 9 May 2015, Judge Winter gave a sentence indication for Mr Simi and his co-offenders.1 The Judge described the operation, and the roles of the principal offenders. He set out the “dial a tinnie” service saying it was run by Mr Simi. The Judge noted that an estimate of sales made by the drug dealing houses and the “dial a tinnie” service suggested that the enterprise was selling some 28 ounces or 1008 tinnies a week, with a return of some $20,160.2
[12] The Judge identified R v Terewi as the relevant guideline judgment, and referred to R v Mains as a comparable case.3 He described the operation as a “mature, sophisticated and premeditated commercial operation”, falling within band three of Terewi.
[13] The Judge divided the defendants into “tiers” of offending, with Mr Simi underneath the three principal offenders who were in charge of sourcing the cannabis, preparing the tinnies and organising their delivery with lower-level associates. For the primary offenders, he indicated starting points of 4 years 10 months (58 months), 3 years six months (42 months) and 3 years 3 months (39 months) respectively. The Judge saw Mr Simi’s culpability as higher than the retail sellers of tinnies at the lower end of the structure, but less than the tier one
offenders.4
[14] The Judge found that Mr Simi was operating his service from 10 June onwards, and there was a pattern of communication between him and the principal offender who was responsible for reloading his taxi service when he required more cannabis to sell. He noted that the charges involved receiving and selling pre- prepared cannabis tinnies, with each sale containing 35 – 37 tinnies, but that he came into the operation later than the principal offenders. The Judge acknowledged the additional methamphetamine charge for which the Crown sought an uplift.
[15] The Judge rejected counsel’s submission that a starting point of 18 – 24
months’ imprisonment should apply to allow a community based sentence. He stated
1 R v McIndoe DC Papakura CRI-2015-092-012100, 9 May 2016.
2 At [11].
3 R v Terewi [1999] 3 NZLR 62 (CA) and R v Mains [2015] NZHC 2750.
that Mr Simi’s meetings with the principal offenders indicated “a degree of more intense participation in the sales” as more than just a driver. He was collecting one of the principal offenders’ money and was trusted enough to do so.
[16] Ultimately, the Judge signalled a starting point of three years, with one month uplift for the methamphetamine charge (37 months total). He considered a one month deduction for Mr Simi’s restrictive bail conditions was appropriate. Applying a full Hessell discount resulted in an indicated sentence of 27 months’ imprisonment, from which there could be further deductions as a result of any comments contained in a positive pre-sentence report. The final sentence indication was therefore of a “range between 24 and 27 months’ imprisonment”. The Judge called for a home detention appendix but said he “would not indicate that sentence”.
[17] Mr Simi pleaded guilty and was sentenced on 1 July 2016.5 Judge Winter commented that Mr Simi’s pre-sentence report did not reflect well on him, but that he would put much of that to one side. Although his probation officer had obviously not taken a positive view of him, Mr Simi had letters showing he had completed rehabilitation programmes with the Tupu Pacific Alcohol & Other Drug & Gambling Service counselling, and from the Caterpillar Trust showing his passion for counselling youth. Based on that, Judge Winter stated that he could “deduct a modest amount from the end sentence of 27 months’ imprisonment that I had originally
decided on in my sentence indication.”6
[18] The Judge deducted two months, to reach an end sentence of 25 months’ imprisonment. The Judge commented that the two year mark for home detention had not been reached and said that, even if his end sentence for Mr Simi had reached below two years, the need for deterrence and to hold the defendant accountable made home detention inappropriate.
Appellant’s submissions
[19] Counsel for the appellant acknowledged that the pre-sentence report was not positive, and said it did not address Mr Simi’s time at rehabilitation or his positive
time spent within the community. Mr Edgar said that, given the Judge explicitly put
5 R v Simi [2016] NZDC 12129.
the report to one side while acknowledging his other mitigating features, home detention should have been considered.
[20] The Judge stated that he would not have granted home detention even if the end sentence had been 24 months. Counsel submitted that the reason for this statement was unclear other than the normal denunciation and deterrence objective in drug sentencing generally. Counsel said this view ignored the original premise on which the sentence was structured, and the Judge failed adequately to acknowledge the efforts at rehabilitation.
Respondent’s submissions
[21] In the Crown’s submission, the three year starting point was consistent with recent authorities. The offending was in the upper end of band two of Taueki, and in Mr Benson-Pope’s submission, a higher starting point could have been warranted.7
The one month discount for restrictive bail conditions was warranted, and in any event there were two breaches of the 24 hour curfew which could have justified a lesser discount.
[22] The two month discount given for Mr Simi’s participation in rehabilitative programmes was generous considering the negative contents of the pre-sentence report, said Mr Benson-Pope.
[23] In the Crown’s submission, the end sentence was in line with previous authorities and appropriately took into account the relevant mitigating factors, and was at the lower end of the range suggested by the Judge in his sentence indication. The end sentence prevented consideration of home detention, and in any event, given the risk of reoffending, lack of remorse and the scale of the drug offending, the Judge was entitled to conclude that deterrence and the protection of the community outweighed the desirability of a rehabilitative sentence.
Appeal against sentence
[24] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:
7 R v Ali HC Whangarei CRI-2008-088-4124, 15 May 2009; Lord v R [2012] NZCA 276.
[25] for any reason, there is an error in the sentence imposed on conviction; and
[26] a different sentence should be imposed.
[27] In any other case, the Court must dismiss the appeal.8
[28] The Court of Appeal in Tutakangahau v R has recently confirmed that s
250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.9 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.10
[29] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:11
(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.
[30] The High Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given,
rather than the process by which the sentence is reached.12
8 Criminal Procedure Act 2011, s 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
10 At [33], [35].
11 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
12 Ripia v R [2011] NZCA 101 at [15].
Analysis
[31] In R v Terewi the Court of Appeal adopted three categories for cannabis cultivation offending:13
Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a noncommercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s 6(1)(e) and (1).)
Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
Category 3 is the most serious class of such offending. It involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.
[32] The Court of Appeal has stated the categories in Terewi, while geared towards cultivation, are equally applicable to dealing offending.14
[33] In this case, the overall operation was in band three, although at the lower end of the potential scale of commerciality.15 This was reflected in the fact that the ring-leader of the operation was given a starting point of four years, ten months’ imprisonment.
[34] The appeal did not challenge the starting point but, in any event, the starting point of three years adopted for Mr Simi, which places him around the middle of
category two, cannot be criticised.
13 R v Terewi [1999] 3 NZLR 62 (CA) at [4].
14 Bishop v R [2010] NZCA 66 at [19]; R v Leighs CA360/02, 15 September 2003 at [11].
15 See, for example, R v Te Whata CA474/04, 8 April 2005 and R v Singh HC Hamilton CRI 2009-
419-18, 25 February 2009.
Indicated range
[35] The appellant took issue with the fact the Judge commenced his assessment of Mr Simi’s position by taking the higher of what the appellant maintained was the range of indicated sentences, prior to consideration of any credit as a result of the pre-sentence report.
[36] What the Judge, in fact, said in the sentencing indication was:
I would, therefore, indicate a range of between 24 and 27 months’ imprisonment. I would call for a home detention appendix but I would not indicate that sentence.
[37] Mr Edgar submitted that, at the sentencing indication, the Judge left the door open regarding the possibility of home detention and by calling for the report, the Judge must be assumed to have been of the opinion when, giving the sentence indication, that there was the potential for an end sentence of home detention.
[38] In my assessment, the appellant has misconstrued the Judge’s comments at the sentencing indication. First, the Judge clearly articulated his approach. He took a starting point of 36 months with an uplift for the methamphetamine charge and a corresponding reduction in respect of restrictive bail. He then applied a full 25 per cent guilty plea discount, which reduced the overall sentence to 27 months’ imprisonment, and left the possibility of a further discount based on the pre-sentence report. The Judge clearly stated that the guilty plea discount resulted in a sentence of
27 months’ imprisonment “subject to further deductions as a result of any comments
contained in a positive pre-sentence report”.
[39] The Judge could not, therefore, be considered to have indicated that 24 months was the potential sentence prior to the consideration of any mitigating factors which might have arisen from the pre-sentence report. The Judge made it clear that the deductions would be from 27 months and not 24 months. His reference to a range of between 24 and 27 months was to give Mr Simi an indication of the likely level of discounts which might apply should there have been a favourable pre- sentence report.
[40] The Judge also made it clear that he was not indicating a home detention sentence. He called for a report to address the possibility of home detention but did no more than that. Indeed, he would have been criticised, in the circumstances, had he not called for the report.
Pre-sentence report
[41] The Judge allowed a two month discount for the positive reference about Mr Simi and his attempts at rehabilitation. Mr Simi was not entitled to a discount for previous good character.
[42] The reality was that Mr Simi did not receive a positive pre-sentence report. Quite the contrary. In my assessment, the Judge was very fair when, on sentencing, he took the approach of laying much of the report to one side. He said he did so because it was clear that, for whatever reason, the probation officer had gained a dim view of Mr Simi. The Judge then balanced that against Mr Simi’s efforts at rehabilitation and the information contained in the letter from the representative of the Caterpillar Trust. Again in my assessment, the Judge cannot be faulted for the way in which he dealt with the information before him.
[43] While Mr Simi deserved some credit for attending alcohol and drug counselling, he missed one of five sessions, therefore having an attendance rate of 80 per cent.
[44] Mr Simi’s work with the Caterpillar Trust was clearly to his credit and he received a discount in that regard.
[45] Finally, if anything, the Judge’s approach resulted in a slightly more generous sentence. He deducted mitigating factors from the point he had reached including credit for the guilty plea. The orthodox approach is that credit for the guilty plea is deducted from the result after having made allowance for mitigating factors. The
effect of this is that the guilty plea discount is slightly less than if the discount is applied to the higher figure.16
Restrictive bail
[46] There was no challenge or complaint about either the one month uplift for methamphetamine offending, or the one month reduction for restrictive bail conditions, which effectively balanced each other out.
[47] Mr Simi was bailed on a 24 hour curfew in November 2015. This was relaxed in early February 2016 to allow Mr Simi absences for the purposes of undertaking contract work. In March 2016, the curfew was further relaxed to 7pm –
7am daily.
[48] There are four breaches of bail recorded on the charging documents: on 4 and
29 December 2015, when Mr Simi failed to present himself at the door; on
11 February 2016 by breaching curfew; and on 29 February 2016 where the breach was recorded but details not provided.
[49] The Sentencing Act allows for reductions in sentences to reflect the restrictions associated with bail by electronic monitoring.17 In my assessment, the Judge was comparatively generous in allowing a reduction of one month in respect of restrictive bail conditions when there was no electronic monitoring and there were a number of breaches.
Guilty plea
[50] The Judge gave Mr Simi the maximum discount for a guilty plea. Mr Simi first appeared on these charges on 4 November 2015. He entered not guilty pleas on the 25 November 2015 and requested a sentencing indication on 5 February 2016. The sentencing indication was not given until 9 May 2016 and it was accepted on
19 May 2016.
16 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607. In this case, this would make a difference of two weeks only, in any event.
17 Sentencing Act, s 9(2)(h). Other cases have also recognised that reductions in sentence may be given to take account of bail with similarly restrictive conditions: see, for example, Beckham v R [2012] NZCA 603, [2013] 1 NZLR 613 at [137].
[51] Mr Edgar referred to the fact there was a considerable amount of data to be considered given the text data obtained from the accused’s telephones. Furthermore, there was an issue as to the quantum of cannabis involved. The Crown confirmed that it had accepted the full 25 per cent discount for a guilty plea. It could, however, still be considered generous in the circumstances. This was not a case of the defendant immediately accepting responsibility by a guilty plea with issues as to quantum left to a disputed facts hearing.
[52] For the foregoing reasons, I am satisfied that there was no error in the Judge’s
approach and the end sentence was appropriate.
Home detention
[53] The end sentence was therefore not at the level when home detention could have been considered. Even if it had been, the Judge articulated his reasons why he would not have exercised his discretion to impose a sentence of home detention, saying it would not be a consistent penalty bearing in mind Mr Simi’s involvement in the offending. Nor would it reflect the need for deterrence and the need to hold Mr Simi to account for his part in the commercial drugs operation.
[54] As Mr Benson-Pope observed, sentencing for those convicted of drug dealing offences often results in an offender’s personal circumstances being considered subordinate to the importance of deterrence, although that does not mean they are irrelevant.18
[55] I am satisfied that the sentence was not manifestly excessive.
Possession of methamphetamine
[56] The only other matter on which to comment relates to Mr Simi’s sentence for possession of methamphetamine, in respect of which the sentencing Judge imposed an uplift of one month. That was not challenged on appeal. However, on the Friday before this Monday sentence appeal hearing, Mr Edgar received a communication
from the police officer in charge of the case. That informed Mr Edgar, apparently,
18 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
that the analysis of the substance found in Mr Simi’s possession disclosed it was in fact sugar rather than methamphetamine. Counsel did not wish to have the opportunity to file submissions on this point but will reflect on it and it may be that Mr Simi will appeal his conviction. Although this issue was not before me, it could be observed that Mr Simi’s his guilty plea allows the inference that he believed he was in possession of methamphetamine. In any event, I take that matter no further. The point is that, even without the increase in sentence for this charge, the sentence
cannot be considered manifestly excessive.19
Result
[57] For the reasons given, the appeal is dismissed.
Thomas J
19 Removing the one month uplift for methamphetamine possession results in a sentence of 24.75 months’ imprisonment based on a starting point of 36 months, with 3 months total deducted for restrictive bail and positive steps, less a 25 per cent guilty plea discount.
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