Tahiti v Police HC Auckland CRI 2010-404-330

[2010] NZHC 1936

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-330

WAYNE TAHITI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 November 2010

Appearances: A Hart and T J Darby for the Appellant

P Singh for the Respondent

Judgment:      4 November 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 4 November 2010

At 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 2213, Auckland

Parnell Law, PO Box 37748, Auckland 1151

TAHITI V POLICE HC AK CRI-2010-404-330  4 November 2010

[1]      Mr Tahiti was found guilty after a defended hearing in July 2010 on one charge of possession of cannabis for supply.  The charge was summarily laid.  The amount of cannabis involved was 56 grams.

[2]      In  sentencing Mr Tahiti,  Judge Everitt  rejected  home detention  as  being

“inappropriate” and:

a)       Imposed a term of imprisonment of nine months; and

b)Ordered the forfeiture of the money found in Mr Tahiti’s wallet at the time of his arrest, namely $422.60.

[3]      Mr Tahiti was also disqualified from driving for six months.

[4]      Mr Tahiti appeals all aspects of his sentence.  In particular he says that the term of imprisonment imposed was manifestly excessive, that the Judge was wrong to decline to consider home detention and that the forfeiture of the money was outside the empowering provision, being s 32 of the Misuse of Drugs Act 1975 (the Act).

[5]      The portion of Judge Everitt’s sentencing notes that is critical to each aspect of the appeal reads as follows:

[3]       Counsel has attempted to suggest that the time spent in custody should be the sentence.   Alternatively, any sentence of imprisonment the Court look at a sentence of home detention or community detention.  That is totally inappropriate.  I don’t know when the message is going to get through to people who possess large quantities of cannabis for the sale to people will go to prison when they are found out.

[4]       There are no mitigating circumstances whatsoever in this particular case.  No credit for any plea of guilty so the maximum penalty is going to be imposed  subject  to  any  matters  that  I might  wish  to  take  into  account, personal circumstances are not ignored but they are given very little weight. If people want to disseminate an evil substance through society then they are going to pay the penalty and I note this man has five children.  No doubt he would  be  quite  happy  for  his  five  children  all  to  come  home  smoking cannabis every day as he does according to the probation officer’s report.  I have no sympathy, as one can gather, for people like Mr Tahiti.

[5]       Under the principles of the Sentencing Act he must be called to account  and  deterred  from  this  behaviour.     I  note  he  is  addicted  to

substances.  He has a history which of recent times is possessing utensils and methamphetamine and he is now no doubt pursing that habit by selling cannabis to all and sundry, persons over the age of 18.  He has expressed a wish, through counsel, Ms Harte, that he would like to undergo some form of rehabilitation.   Well he has not done much until now to express that motivation in any concrete action.   However, I will make some allowance for that.

[6]       In  the  circumstances  he  has  come  pretty  close  to  getting  the maximum.  This was a pre-meditated, well thought out occupation of selling cannabis, he had all the materials ready, he had the silver foil cut, he had the scales to weigh it and he had the money that he had been receiving from sales.

[7]       He is convicted and sentenced to nine months imprisonment with standard and special conditions to terminate six months from termination date of the sentence as set out in the probation officer’s report.   Home detention is out of the question as not reflecting society’s concern, people like Mr Tahiti who are disseminating an evil substance throughout the community.  The community work sentence will be cancelled as part of this sentence.   I did have in mind to continue it but I will cancel it on this occasion.   There is an order for forfeiture of $422.60 cash located by the police as the proceeds of crime and there is an order for destruction of the cannabis paraphernalia and equipment.

[6]      It is against the background of these comments that each of the grounds of appeal fall to be considered.

Term of imprisonment

[7]      Most  of  the  time  allocated  for  hearing  the  appeal  was  occupied  by Mr Darby’s careful submissions in relation to the term of imprisonment imposed by Judge Everitt.   The reason for this was that Mr Darby was enjoining me to differ from the approach that appears to have been uniformly taken by other High Court judges to the issue of the “jurisdictional limit” (or, as Mr Darby would have it, the “sentencing cap”) imposed by s 6(3) of the Act.

[8]      I  attempt  to  summarise  Mr  Darby’s  argument  in  the  subparagraphs  that follow:

a)       Prosecutions and convictions under s 6 of the Act that relate to a Class C controlled drug such as cannabis may be brought and entered either summarily or on indictment.

b)Where the indictable jurisdiction is engaged, s 6(2) applies and the maximum sentence is eight years imprisonment.

c)       Where the summary jurisdiction is engaged, s 6(3) applies and the penalty that can be imposed by the District Court is limited by that subsection to imprisonment for one year (or a fine of up to $1000).

d)The  Court  of  Appeal’s  guideline  or  tariff  judgment  relating  to sentences for cannabis cultivation,[1]  which can be applied by analogy to sentencing for possession for supply, is predicated on three broad categories of offending.   The sentencing starting point for category two offending (small-scale cultivation that nonetheless has a commercial aspect or profit purpose) was said by the Court generally to be between two and four years imprisonment;

[1] R v Terewi [1999] 3 NZLR 62.

e)        Where category two offending is dealt with summarily in the District

Court  such  a  starting  point  is  necessarily  inapt  because  of  the

12 month sentencing limit.

f)        The  tariff  for  sentencing  in  the  District  Court  for  category  two offending should be adjusted to take account of the much lower sentencing limit.   Thus if the two to four year band is appropriate where the maximum sentence is eight years, by analogy a band of three to six months would be appropriate for category two offending where the maximum sentence was 12 months.

[9]      Mr Darby submitted that it followed from this analysis that in the case under appeal Judge Everitt was wrong to regard Mr Tahiti’s (category two) offending as warranting something “approaching the maximum” penalty available to him and therefore in adopting a starting (and end) point of nine months imprisonment.

[10]     As  I have indicated Mr Darby very fairly accepted that his was not the approach  favoured  by  the  numerous  High  Court  judges  who  have  previously

considered what appear to be similar arguments, namely that s 6(3) somehow alters the maximum sentence in cases such as the present.  He took me (inter alia) to the decisions in Barker v Police,[2]  Brinkley v Police,[3]  Cameron v Police,[4]  Taitimu v Police[5] and Carseldine v Police.[6]   He submitted, however, that with the exception of Neazor J in Brinkley none of the judges who have thus far considered the matter has

[2] Barker v Police HC Dunedin CRI-2010-412-11, 13 May 2010. 

[3] Brinkley v Police HC Nelson M No 87/90, 12 November 1990.

[4] Cameron v Police HC Wellington AP 17/03, 18 March 2003.

[5] Taitimu v Police HC Whangarei CRI2007-488-43, 31 July 2007.

[6] Carseldine v Police HC Hamilton CRI-2005-419-88, 23 August 2005

given any reason for preferring what he termed the “jurisdictional” approach.  That approach is perhaps best encapsulated in the following passage from Durie J’s judgment in Cameron at [5]:

The appellant's argument, in my view, is based upon a misconception that s

6(3) adjusts the maximum sentence. In fact it does no more, in my view, than allow for sentencing by the District Court up to a jurisdictional limit. Section

153A(6) Summary Proceedings Act 1957 allows for an offender to be dealt

with summarily following a guilty plea, in which event a District Court Judge may sentence the offender to imprisonment for a term not exceeding one year in terms of s 6(3) Misuse of Drugs Act. However, overall liability remains the same. The court may also decline jurisdiction (s 28F(3) District Courts Act 1947) and the offender may be referred to the High Court for sentence. The result, in my view, is that s 6(3) does not require or invite a departure from ordinary sentencing regimes. It simply sets a jurisdictional ceiling. If, after considering the appropriate penalty for the case, according to all the usual criteria and principles as appropriate to the particular circumstances, the Judge considers that in the final result the penalty on a particular charge must exceed imprisonment for more than one year, then the matter should be referred to this Court; but, if not, then the District Court may deal with it.

[11]     I should perhaps also record that the reason given by Neazor J in Brinkley for preferring the “jurisdictional” approach was simply that the contrary argument made in that case (which appears to have been similar to that advanced by Mr Darby before me) “offends common sense”.

[12]     Regardless of whether Mr Darby is correct that reasons have not been given in other cases, it seems to me that good grounds for preferring the “jurisdictional” approach do exist.

[13]     In particular it seems to me that sentencing for category two cases occurs on a continuum that encompasses, but is not limited to, the two to four year “standard” range.   The Court of Appeal in Terewi expressly contemplated that category two cultivation cases requiring sentences below that range would exist, in particular where notwithstanding the existence of a profit motive, any sales were infrequent and of limited extent.  There is necessarily a further degree of flexibility in light of the fact that the Terewi categories can only be regarded as guidelines in relation to

sentences for possession for supply: R v Pearson.[7]

[7] R v Pearson CA 02/03 and 03/03, 24 June 2003 at [28].

[14]     Viewing  the  standard  Terewi  range  in  this  way  is,  in  my  view,  an  apt reflection of the fact that the offence committed under s 6(1)(e) (for example) is the same, regardless of whether the charge is brought or prosecuted summarily or on indictment.  In my view Mr Darby’s preferred approach risks distorting that fact and undermining the statutory intent because it would require treating an offence that is laid summarily under s 6(1)(e) (for example) as if it were different from an offence that is laid indictably under the same provision.

[15]     In saying that I accept that it may be difficult to see why Parliament has chosen to deal with the matter as it has in s 6.  In this respect Mr Darby drew my attention in particular to the different approach taken to the distinct offences of common assault contained in s 196 of the Crimes Act 1961 and s 9 of the Summary Offences   Act   1981   (the   former  having   a   maximum   penalty  of   one   years imprisonment   while   the   latter   having   a   maximum   penalty   of   six   months imprisonment or a fine not exceeding $4000).  But s 6 as drafted is nonetheless the reality with which the Court is faced.

[16]     I also accept that, as the Court of Appeal said in R v Webber,[8] the matters of process that flow from the way Parliament has drafted s 6 is potentially confusing; that is a matter I return to below.  However in terms of the issue that is presently before me I merely repeat my view that it is possible to have regard to the Terewi guidelines in a way that is entirely consistent with the way Parliament has chosen to

deal with the matter regardless of whether sentencing is taking place under s 6(2) or s 6(3).

[8] R v Webber [1999] 1 NZLR 656.

[17]     What this means in practice is that other than in those relatively rare cases where a starting point within the two to four years is adopted by the District Court but is then heavily discounted to a final sentence of 12 months or under on account of specific mitigating features, the category two cases dealt with by that Court will always be those requiring a starting point below the standard Terewi range.  As has been noted in most of the cases to which Mr Darby referred me (see for example Miller J in Barker at [6]) committal to the High Court for sentencing routinely occurs in any case where the 12 month cap presents a difficulty.

[18]     It follows that, with the greatest respect to Mr Darby’s submissions, I do not accept that a different (albeit analogous) tariff applies in relation to category two cases that are brought, determined and sentenced summarily.   Accordingly I can discern no error of principle in Judge Everitt’s approach.  The nine month starting and end point is plainly consistent with what the Court said in Terewi about less serious category two cases, a fact that seems to me to be confirmed by reference to sentences imposed in other cases involving comparable offending; see by way of example only Barker v Police (supra) and R v Pearson (supra).

[19]     The last matter to which Mr Darby directed my attention in relation to this ground of appeal is, however, worthy of separate mention.  That is that in standard pre-trial disclosure documents reference is usually made to not only the charge that has been laid against the accused but also to the applicable maximum penalty for that charge.  Mr Darby submitted (and I accept) that important decisions may be taken by an accused based at least in part on the degree of jeopardy in which he perceives himself to be, including the jeopardy represented by the advised maximum penalty.

[20]     In the present case (and I have no reason to think that this is not standard practice) the caption summary provided to Mr Tahiti as part of the disclosure process referred   to   the   maximum   penalty   for   his   offending   as   being   12   months imprisonment.  No doubt that is because the charge had been laid, and was expected to proceed, summarily.  The advice is not, however, correct, because it ignores the

possibility of a District Court judge committing the accused for sentencing to the High Court in the event that the appropriate end sentence appears to him to be over the 12 month jurisdictional limit.  It seems to me that this is another variant on the difficulties that underlie comments made by the Court of Appeal in Webber (supra) and by Harrison J in Faataape v Police.[9]

[9] Faataape v Police HC Rotorua CRI 2009-463-73, 30 November 2009.

[21]     While I do not accept that this issue is one that might lead to the present appeal being allowed it nonetheless does give pause for thought.  I therefore merely add my voice to those who have gone before and reiterate that legislative attention appears to be required.  In the meantime, the prosecuting authorities may also wish to  give  some  thought  to how  they address  this  issue  in the  criminal disclosure context in future.

Home detention

[22] As plainly recognised by Judge Everitt, home detention was a sentencing option that was available to him. However as the passage quoted at [5] above makes clear he was of the firm view that such a sentence would not meet what he regarded as a particular need for deterrence. I note that the focus on deterrence is consistent with the view expressed by the Court of Appeal in Terewi at [15]:

The paramount consideration is, we repeat, the deterrence of others, and by that means to reduce the prevalence of cannabis use and dependence in this country. Others who might be contemplating becoming involved in cannabis production or dealing will not be likely to be much deterred when they can see that, if detected, they are likely to escape imprisonment. Section 21A is not intended for such circumstances. It is directed at deterring reoffending by the person being sentenced – "by holding a prison sentence over the offender’s head" (R v Petersen [1994] 2 NZLR 533 at 537), which is not the paramount consideration in sentencing for drug offending. In Petersen this Court said of s21A:

It is available to be used in cases of moderately serious offending but where it is thought there is a sufficient opportunity to reform, and the need to deter others is not paramount. [Emphasis added in the original]

[23]     I of course accept that home detention is not properly termed a community based  sentence  and  is  thus  not  analogous  to  the  suspended  sentences  under

consideration in Terewi.   I also accept that the Sentencing Act 2002 was enacted after the decision in Terewi and that home detention is not to be regarded as a soft option; in appropriate circumstances the need for deterrence can also be met by such a sentence: R v Iosefa.[10]

[10] R v Iosefa [2008] NZCA 453 at [41].

[24]     That said, however, the assessment made by French J in Ebdell v Police[11]

[11] HC Christchurch CRI-2009-409-4831, 30 July 2009

appears apt particularly in the present case.  She said:

[35]     Most importantly, the Judge was not saying the sentence of home detention does not have a deterrent aspect, but simply that in this case the particular circumstances required more. That was a view that was clearly open to him. As recent Court of Appeal decisions such as R v Edmonds [2009] NZCA 152 and R v Taiepa [2009] NZCA 120 make clear, there is no prevailing presumption as such in favour of home detention, and that in cases where denunciation, individual and general deterrence are of particular significance, the Court will seldom interfere in the sentencing Judge’s assessment of home detention as a realistic alternative or not. I am mindful, too, of what was said in R v D [2008] NZCA 254, where the Court talked about affording greater weight to the views of the sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried. As the Court of Appeal said, the sentencing Judge from those jurisdictions “will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.”

[25]     I acknowledge that in Tauariki v Police[12]  (a decision commended to me by Ms Hart) Harrison J allowed an appeal against a refusal to impose home detention notwithstanding the deference that is usually to be accorded the sentencing judge’s evaluation.  He did so because in that case the learned District Court Judge had failed to give any, or appropriate, weight to the principle of rehabilitation, which in conjunction with Mr Tauariki’s  youth led Harrison J to form the view that the imposition of a sentence of imprisonment was wrong.   Understandably, Ms Hart urged upon me that the case was in this respect on all fours with the present.

[12] HC Christchurch CRI 2009-409-147

[26]     There can be little doubt that, on the face of Judge Everitt’s sentencing notes quoted above, Mr Tahiti’s prospects of rehabilitation were not regarded as a factor that militated in any significant way against a sentence of imprisonment.  However it is nonetheless plain that he did give that issue some thought.  In particular he noted

that Mr Tahiti had expressed a desire to be rehabilitated to the writer of the pre- sentence report.  He simply accorded that desire little weight.

[27]     To the extent that Ms Hart nonetheless sought to rely on Tauariki in this respect it seems to me that as well as the important distinction (for sentencing purposes) between the respective ages of Mr Tauariki (17) and Mr Tahiti (41) there is a further signal difference between the Tauariki case and the present.

[28]     Because Mr Tauariki had pleaded guilty to the (robbery) offences with which he had been charged, the sentencing judge had had little if any opportunity to form his own view of his character.  By contrast, in Mr Tahiti’s case, Judge Everitt had presided over a full defended hearing and as a result had formed strong (and overwhelmingly dim) views as to certain aspects of Mr Tahiti’s character.  By way of example the learned judge recorded that

Much of what Mr Tahiti told me was a ‘concoction of nonsense’ and completely different from his statement made to the Police in material parts.

...

The scales, he said, were used for the purposes of weighing his panadol.  I reject that, it is nonsense.  He used the scales to weigh the cannabis as he was going to break it up – these ounces, in my view, into cannabis tinnies, in the 62 ziplock bags he had.

...

He said that he had the [five] cellphones for the purposes of some business he had in mind of repairing and selling them, which he has not done.  He has no evidence of having any skills at all in repairing cellphones.

...

He  then  attempted  to  blacken  the  police  by  suggesting  that  he  was “mouthing off”, cheeky or whatever to Officer English at the police station so therefore Officer English determined that he was going to charge him with a more serious offence.  That was never put to the officer .... I reject it entirely, it has been made up, a nonsense, by Mr Tahiti.

The evidence is overwhelming.  The attempt to rebut, to prove the contrary, the presumption failed quite dismally.  All that I have heard from Mr Tahiti is just a “pack of lies”, quite untrue. ... The excuses, the reasons he has put up failed to meet to go anywhere near satisfying me on the balance of probabilities.  It is just rubbish, but I have heard from him.

[29]     It is against this rather swingeing assessment of Mr Tahiti’s credibility that Judge Everitt was then called upon to assess and weigh Mr Tahiti’s commitment to, and prospects of, rehabilitation.  It is in my view unsurprising that Judge Everitt was sceptical.   It seems to me that it is precisely in a case such as the present that particular weight can and should be accorded to the assessment of the sentencing judge in relation to the home detention issue.

[30]     For all the above reasons I do not consider that grounds have been made out upon  which  I  could  properly  interfere  with  the  learned  District  Court  Judge’s exercise of discretion and this aspect of the appeal must also be dismissed.

Forfeiture

[31]     The ground of appeal in relation to the forfeiture under s 32 of the Misuse of Drugs Act of the $422 found in Mr Tahiti’s possession was squarely focussed on paragraphs [14] and [15] of the Court of Appeal’s decision in Bishop v R[13]  which state:

[13] Bishop v R [2010] NZCA 66.

[14]     Section 32 requires proof that money found in the possession of the accused was received “by that person in the course of or consequent upon the commission of that offence”. The words “that offence” have been held, by this Court in R v Collis, to limit the forfeiture jurisdiction to money that can be linked to the particular offence or offences with which a person has been charged.   The issue in Collis was whether a Judge ought to have ordered money seized under the authority of a search warrant to be retained by the Crown, if making such an order conflicted with the terms of s 32. Both Casey and Hardie Boys JJ considered that s 32 was unavailable in the circumstances  of  the  case  because  no  link  between  the  money  and  the offence in issue could be established.  The Crown was thus ordered to return the money.   Dissenting, Wylie J took the view that the issue fell to be decided strictly under s 199(3)(a) of the Summary Proceedings Act 1957, meaning that, on his view, proper disposal of property seized could be distinguished from property ordered to be forfeited.

[15]      We were not asked by the Crown to reconsider Collis. While we find it strange that the legislation has not been amended since Collis was decided in 1990, we accept that authority requires us to set aside the s 32 order. The sum of $15,000 cannot have been derived from the offence of possession of cannabis  for  sale,  to  which  Mr  Bishop  pleaded  guilty,  because,  self- evidently, the cannabis in question had not been sold.

[16]      We indicated that we were prepared to hear argument on whether the sum of $15,000 could nevertheless be forfeited as being in the nature of a “float” which was to be used to acquire more cannabis, ie was to be used for the  purposes  of  the  commission  of  further  similar  offending,  cf  the alternative  basis  for  forfeiture  provided  by  s  32.  Ms  Laracy,  however, advised that the Crown did not wish to contend that the money found was a float and therefore in effect consented to the forfeiture order being set aside.

[33]     Unlike Ms Laracy in the Court of Appeal, Ms Singh before me did wish to contend that the money found in Mr Tahiti’s possession was in the nature of a “float” which was to be used to acquire more cannabis and thus for the purposes of the commission of further offending.

[34]     Judge Everitt’s sentencing notes make it clear that he viewed the cash found by Police as the “proceeds of crime”.  He thus did not (and, it seems, was not asked to)  turn  his  mind  to  the  specific  issue  raised  by  the  Bishop  decision.    In  his substantive judgment the learned Judge also referred to Mr Tahiti’s evidence (which he did not accept) that the money was effectively “change” that was left over from an earlier purchase of cannabis which had turned out to be of a lower grade (and thus cheaper) than he had expected.

[35]     In  my view  it  is  open  to  me  to  conclude  that  Mr  Tahiti  was  supplying cannabis on an ongoing basis and that the “float” analysis should be adopted in that context.   Although there is no suggestion that Mr Tahiti was a major dealer, the scales and the five cellphones found in Mr Tahiti’s possession point to activity of more than a one-off or incidental nature.  It is a reasonable inference that Mr Tahiti would use the money to purchase more cannabis which he would then on-sell.  I am therefore not prepared to interfere with the forfeiture ordered by the learned District Court Judge.

Disqualification from driving

[36]     No separate argument was advanced before me for setting aside this aspect of Judge Everitt’s sentence and I have no basis upon which I could conclude that there is any error of principle in his approach in that respect.

[37]     Notwithstanding the very valiant efforts made on Mr Tahiti’s behalf by both

his counsel, the appeal is dismissed.

Rebecca Ellis J