The Queen v Dennis Noel Lomas
[2003] NZCA 158
•24 July 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA113/03
THE QUEEN
v
DENNIS NOEL LOMAS
Hearing:22 July 2003
Coram:Blanchard J
Laurenson J
Doogue JAppearances: D S Niven for Respondent
J M Jelaś for Crown
Judgment:24 July 2003
JUDGMENT OF THE COURT DELIVERED BY DOOGUE J
Introduction
[1] This is an application by the Crown for leave to appeal against a sentence of eighteen months supervision and a special condition of such sentence. The application is brought upon the basis the sentence is manifestly inadequate and wrong in principle for the following reasons:
a)The sentence imposed did not satisfy the correctly identified purposes of denunciation or deterrence, there being no punitive element in the sentence;
b)The sentencing Judge failed to consider the statutory criteria of s.46 of the Sentencing Act 2002 before imposing a sentence of supervision; and
c)The third special condition imposed by the sentencing Judge, that the respondent give lectures on drug addiction and its consequences, is inappropriate having regard to the respondent’s personal circumstances.
[2] The respondent pleaded guilty upon arraignment in the District Court at Whangarei to attempting to manufacture a Class B controlled drug, namely methamphetamine, on or about 9 March 2001.
[3] The sentencing Judge accepted that in the ordinary course imprisonment was bound to follow an offence relating to methamphetamine. However, he took the view that there were exceptional circumstances which entitled him to depart from the ordinary course, and impose the sentence under appeal, subject to three special conditions, namely that the respondent:
a)Is to attend such psychological and psychiatric assessment as directed;
b)Is to attend and complete such courses as may be directed for drug/alcohol addiction, personal and family skills; and
c)Is to prepare for the Probation Officer an appropriate list for attendance at secondary schools in the Whangarei area and to give an appropriate lecture on drug addiction and its possible consequences on at least six occasions during the term of supervision, all with the intention of bringing home to the community the necessity to denounce and to avoid drug addiction and involvement with methamphetamine in his area.
[4] The respondent generally opposes the appeal and says that the sentence imposed was within the discretion of the sentencing Judge. However, the respondent assents to the appeal against the third special condition being upheld.
Background circumstances
[5] On 9 March 2001 the respondent placed a portable gas barbecue inside the bedroom of his home and lit it. He was alone in the house at the time. He proceeded to heat an unknown substance inside a clear Pyrex jug upon the barbecue. The substance ignited and exploded. The respondent received severe burns to 45 per cent of his body.
[6] The respondent was airlifted to Middlemore Hospital where he remained in the intensive care unit for thirteen days. Two years after the accident he has ongoing plastic surgery requirements which require further extensive remodelling surgery. He has ongoing daily dressing requirements to his burns. He has ongoing skin sepsis and marked hypertension and requires medication for that. He suffered severe swelling of his legs and feet and needs to have them mostly elevated. Medical opinion is expressed that the respondent was “virtually killed” in the explosion and will, for the balance of his life, carry extensive, painful scarring and will likely always need further and ongoing surgery. The same medical practitioner expressed the view that he did not think the respondent’s hygiene requirements could be achieved in jail and that imprisonment would, most likely, cause significant deterioration of his medical condition. Such medical opinion has not been disputed.
[7] The Police were not alerted to the incident at the respondent’s home until 13 March 2001. A search warrant was obtained and executed. As a result of the execution of the search warrant it was established that there were traces of methamphetamine on the wall of the bedroom as well as on the gas barbecue. Instruments used in the illicit manufacture of drugs, including methamphetamine, were found.
[8] On 4 July 2001 the respondent, having partially recovered from his injuries, was spoken to by the Police. He declined to make any statement. He was charged with attempting to manufacture methamphetamine. On 10 February 2003 he pleaded guilty to such a charge on arraignment at trial.
[9] The respondent was aged 37 years at the time of the offence. He is married with two children aged 12 and 16 years.
[10] The respondent began using cannabis at the age of 16 years on a social basis, but after a serious injury in a car accident in 1985 he began using it regularly for back pain relief. He has six minor convictions in respect of cannabis within the last 20 years. The maximum penalty imposed in respect of such offences was a fine of $150.00.
[11] The respondent acknowledged that at the time of the offence his marriage was in difficulties and he was depressed at not being able to obtain full-time employment and at about that time he began using methamphetamine to ease his depression. He said that he purchased the substance and that his wife was not aware he was using it. Subsequent to the accident at the time of the offence, the respondent says his marriage has strengthened and that his wife has been a very strong support for him. His wife informed the Probation Officer that life had been very difficult as the respondent suffered depression and needed constant company and help with his injuries. The respondent expressed his distress to the Probation Officer for the pain and stress his actions have brought on his family and, in particular, a daughter who has developed a skin disorder, apparently triggered by stress.
[12] The respondent did not feel that he needed drug counselling. He was adamant he was not now using illegal substances and expressed a determination to remain drug-free in the future. The pre-sentence report by the Probation Officer accordingly did not recommend any assistance for drug abuse, but did recommend a psychological assessment and possible ongoing counselling, having regard to the respondent’s ongoing depression and emotional problems.
[13] The sentencing Judge had, in addition to the pre-sentence report, various medical reports, already briefly summarised, and a number of letters of support from family, including the daughter with the apparent stress-related skin disease, and friends.
Sentencing remarks
[14] The Judge noted various of the matters already traversed. He accepted the Crown submission, based on R v Wallace [1999] 3 NZLR 159, that the manufacture of Class B controlled drugs required denunciation and deterrence and that a custodial sentence was normally called for, as that is the only way in which denunciation and deterrence can normally be achieved. He took the view that a term of imprisonment in the range of six to ten months was the appropriate penalty. He accepted that if he followed that course he would have given the respondent leave to apply for home detention because of his current disabilities and the impact of them upon his family. This was in the context of the respondent’s plea of guilty and the event being his first major drug offence. However, the Judge concluded he was able to depart from that approach because of the exceptional circumstances relating to the respondent and the Judge’s view that having regard to those circumstances the Parole Board would almost certainly grant home detention if leave were given to apply for it.
[15] In imposing the special conditions that he did the Judge took the view that, despite the respondent’s denial of an ongoing drug problem, it was wise for him to be assisted, if need be, in respect of his previous problem and associated aspects. However, he imposed the third special condition in relation to the six lectures on drug addiction without reference to counsel.
The application for leave to appeal
[16] At the heart of the application is the submission that the sentence of supervision imposed did not contain any element of deterrence or denunciation, as was required of the Judge, but was simply a rehabilitative sentence.
[17] It was further submitted for the Crown that the sentencing Judge’s error arose through a combination of usurping the Parole Board’s function and placing undue weight upon the respondent’s injuries and other personal circumstances. It was submitted that it is wrong in principle for a sentencing Judge to pre-empt the Parole Board’s decision to grant the respondent home detention and to determine that that likely outcome was a relevant consideration for not imposing imprisonment. It was submitted the functions of the sentencing Judge and of the Parole Board should be kept separate.
[18] It was further submitted it was implicit that the sentencing Judge considered imprisonment was the appropriate sentence and that, having reached that initial view, it was wrong in principle for him not to impose a custodial sentence because home detention might be granted. It was submitted the error in principle flows from the fact the sentencing Judge failed to recognise that home detention is still a sentence of imprisonment tailored to provide a punitive element.
[19] The Crown accepted that the respondent’s personal injuries and circumstances were relevant to the length of the custodial sentence, but not, it was submitted, to the substitution of an inappropriate sentence for an otherwise appropriate sentence. It was submitted the appropriate sentence would have been, as the Judge had predicated, a period of imprisonment with leave to apply for home detention. This could have been combined with the deferment of the sentence under s.100 of the Sentencing Act 2002. Such a sentence would have met the purpose of the sentencing correctly identified by the sentencing Judge.
[20] It was accordingly submitted for the Crown that the appropriate length of sentence on appeal should be six months imprisonment, notwithstanding that it was submitted the range of six to ten months identified by the sentencing Judge was too low.
[21] It was further submitted that in any event the sentence of supervision was inappropriate and the statutory basis for imposing it was not met, in that there was no finding that such a sentence would reduce the likelihood of the respondent re-offending. It was submitted that the conditions of supervision were not primarily focussed upon rehabilitation and accordingly the sentence was not available. In any event, it was submitted that the sentencing Judge could only impose special conditions that related to a programme under s.50 of the Sentencing Act 2002, or if the conditions satisfy the criteria contained in s.52(1) of that Act. The conditions imposed did not address either of these factors.
[22] The respondent supported the sentence imposed as being within the range properly available to the sentencing Judge as an exercise of his discretion, having regard to the fact that the offence was an attempt and not the offence of manufacturing. The mitigating circumstances relating to the offence were stressed, and in particular the absence of any evidence of commercial gain, together with the lack of previous involvement in drug dealing charges for Class B drugs. In addition there were the mitigating circumstances that have earlier been touched upon.
[23] For the respondent the circumstances relating to his injuries and the medical opinion expressed and traversed were stressed. It was submitted the sentencing Judge approached the sentencing in accordance with the proper principles but determined, having regard to the exceptional circumstances of the case, that it was appropriate to depart from those principles and that was within his sentencing discretion.
[24] It was submitted for the respondent that the sentencing Judge did not usurp the functions of the Parole Board, but had reached his decision regarding the appropriate sentence based on the material before him.
[25] The respondent agreed it was preferable the third special condition imposed by the sentencing Judge be quashed.
Discussion
[26] In the ordinary case we accept entirely the respondent’s offending would inevitably have led to a sentence of imprisonment. However, this case is quite outside the ordinary. It was doubtless open to the sentencing Judge to have imposed a sentence of imprisonment and to have deferred it for a sufficient period to enable the respondent to apply to the Parole Board for home detention. If he had followed that course the present appeal would not have resulted. We accept that imprisonment, and on the medical evidence the inevitable home detention that would have followed, would have contained an element of denunciation in respect of the respondent’s offence. However, the consequences of the respondent’s offence were so horrendous for him and his family that they constituted a deterrent and form of denunciation of his offence far in excess of anything the Court could impose. More than two years after the event the respondent still faces operative treatment as a result of which he is likely to lose toes because of the consequences of his foolish and illegal action. In such circumstances we consider that the sentencing Judge cannot be criticised for imposing a more merciful sentence than would otherwise have been justified.
[27] It has to be remembered that it was stated by this Court in R v Cargill [1990] 2 NZLR 138, 140:
Appeals by the Crown against sentence are not for borderline cases. Their legitimate scope is confined to cases where there is solid ground for treating the sentence as manifestly inadequate or inappropriate. The right of a sentencing Judge to show mercy in the special circumstances of a particular case must always be borne in mind. But if a sufficiently clear case is made out by the Crown this Court will increase a sentence, regrettable though it is to have to add to punishment once it has been imposed on an offender.
[28] Whilst, therefore, another Judge may well have adopted the course proposed by the Crown in the present case, we are not disposed to uphold the appeal simply because the present Judge has not followed that process, but has decided instead to exercise mercy in the extraordinary circumstances of the case.
[29] Nor are we persuaded that the sentence of supervision was not open to the sentencing Judge in the circumstances of this case. We accept that under s.46 of the Sentencing Act 2002 such a sentence can only be imposed
… if the Court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
We think it was open to the sentencing Judge to take the view that the likelihood of the respondent’s further offending would be reduced if his rehabilitation was assisted, together with his reintegration into the community. Whilst the sentence of supervision may not, of itself, be denunciatory, it does impose controls on the offender in the context of an institutional relationship, the offender’s sentence to supervision being under the supervision of the Probation Officer: R v Grennell, CA 211/88, 12 September 1988. We certainly read the sentencing Judge’s sentencing notes as a clear indication he regarded the sentence of supervision as a way of assisting the respondent to avoid lapsing back into a reliance on drugs in the way he had behaved for a substantial period of time.
[30] However, when it comes to the third special condition imposed by the Judge, we think it appropriate it be quashed given the agreement of the parties that that should result. The condition was not discussed prior to the sentence being imposed. Its consequences for both the community and the respondent have not been considered. The only statutory provision which could possibly justify the condition was s.52(2)(c) of the Sentencing Act 2002 if the Court thought the condition would reduce the likelihood of further offending by the respondent. However, it is hard to see how the condition fulfils that criterion, having regard to the overall circumstances of this case. The other special conditions imposed can be seen to be clearly linked to such an objective. The third condition cannot. We therefore accept the submissions for the parties that that condition should be quashed.
Result
[31] The application for leave to appeal against sentence is granted. The appeal is, however, dismissed except to the extent that the third special condition imposed in respect of the sentence of supervision relating to six lectures on drug addiction is quashed.
Solicitors:
Crown Law Office, Wellington
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