The Queen v Evans

[2006] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

CA444/05

THE QUEEN

v

MARK LEWIS EVANS

Hearing:23 May 2006

Court:O'Regan, Arnold and Ellen France JJ

Counsel:A J S Snell for Appellant

S B Edwards for Crown

Judgment:7 June 2006 

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe sentence imposed in the High Court is quashed and replaced by a sentence of 16 months imprisonment.

CLeave to apply for home detention is granted.

REASONS

(Given by O’Regan J)

Introduction

[1]       The appellant was convicted in the District Court at Hastings on one charge of possessing cannabis for supply.  The District Court declined jurisdiction and he was remanded to the High Court at Napier for sentencing.  He was sentenced by Williams J in the High Court at Napier to a term of imprisonment of two years six months.  He appeals against that sentence.

Background

[2]       The appellant was transporting cannabis in his vehicle.  The vehicle was involved in an accident.  As a result of this, the appellant left a number of packages he was carrying with a nearby garage.  The packages were later discovered by police.  They contained approximately 500 grams of cannabis together with a set of electronic scales.  The majority of the cannabis was located in individual snap-lock bags.  The street value of the cannabis was estimated as falling between $3500 and $5600. 

[3]       The appellant entered a guilty plea under s 153A of the Summary Proceedings Act 1957 within a month of being charged. 

Sentence

[4]       Williams J found that the appellant was in category two of R v Terewi [1999] 3 NZLR 62 with the result that a two to four year starting point was applicable.

[5]       The Judge took a three year starting point.  The amount of the cannabis together with its packaging and value were considered as aggravating factors which took the sentence to three years and nine months’ imprisonment before mitigating circumstances were considered. 

[6]       The Judge then turned to mitigating factors, which consisted primarily of the early guilty plea.  This took the final sentence to two years and six months’ imprisonment.

Submissions

[7]       Counsel for the appellant, Mr Snell, submitted that the Judge failed to take into account the full circumstances of the case.  At sentencing, the appellant maintained that he was merely transporting the cannabis to another location.  He acknowledged that the bulk of the cannabis was not for him: he said he was to receive approximately one ounce as a reward for acting as a courier.  Crown counsel, Ms Edwards, contended that the Judge did not reject this explanation, but clearly took the view that the quantity and value of the cannabis, together with the packaging, were factors to be taken into account in assessing the appellant’s culpability as a person willing to become involved with a commercial drug dealing enterprise.

[8]       Mr Snell also submitted that the correct application of Terewi in this case would suggest that a lower starting point ought to have been adopted.  Ms Edwards submitted that quantity found (approximately 18 times the amount triggering the statutory presumption for supply), packaging and presence of scales all indicated the commercial nature of the venture.  She argued that this was not a case where the commercial element was so small as to justify a lower than usual starting point.

[9]       Mr Snell submitted that the Judge erred by concluding that the aggravating factors of the offending warranted a nine month increase to the three year starting point.  The Crown accepted this was in error as it resulted in an effective double counting of aggravating factors which, in terms of this Court’s decision in R v Paikea CA116/04 21 September 1999 at [23], ought to be “part and parcel of the mix of factors which were relevant to the fixing of the starting point”.

[10]     Mr Snell also submitted that the Judge gave insufficient credit for a number of mitigating factors: the appellant’s limited involvement, remorse, steps taken to address his cannabis addiction, previous good character (including a prior act of heroism), lack of prior convictions, positive pre-sentence report and a number of references attesting to his positive involvement in his local community.  The appellant had no previous drug convictions and, indeed, no convictions at all apart from a historic conviction from the early 1980s for a minor firearms offence.

[11]     The act of heroism was his chasing and restraining a bank robber, and giving what the police described as “competent and credible” evidence at the trial of the robber at which the robber was convicted.  That trial took place in 1997.

[12]     Mr Snell submitted that the sentence imposed was inconsistent with more lenient sentences imposed on other offenders in recent cases.  To this end, Mr Snell referred to a number of decided cases.  He placed particular reliance on R v Ridout CA120/02 19 September 2002.  The facts of that case had some similarities to those of the present case, but the difference was that the considerable quantity of cannabis found by the police was said to have a wholesale value of $70,000 - $80,000.  In that case a sentence of three years imprisonment was reduced on appeal to two years six months imprisonment.

[13]     Overall, Mr Snell submitted that this was a “bottom end” category two supply case (in Terewi terms).  He said the starting point should have been around two years, with a discount of the same order as that given by the Judge resulting in a final sentence of around 16 months’ imprisonment.

[14]     Conversely, Ms Edwards contended that the crucial question was whether or not the final sentence (no matter how it is arrived at) was manifestly excessive.  She submitted that the sentence in the present case was consistent with the range established in Terewi and with subsequent sentencing decisions.  She argued that the discount afforded in the instant case, of one year and three months, or 33 percent, in circumstances where the sentencing Judge concluded that “conviction would have been inevitable”, was extremely generous.  She suggested that, if a starting point of three years was taken, with due credit for the early guilty plea and other mitigating circumstances to the limited extent appropriate, the resulting sentence would be between two and two-and-a-half years’ imprisonment.  She therefore submitted that the sentence imposed in the High Court, while at the upper end of the permissible range, was not manifestly excessive.

Discussion

[15]     It was rightly accepted by the Crown that the starting point of three years nine months in this case was too high.  The Judge’s decision to add nine months to his initial starting point of three years for aggravating features did involve double counting of the kind identified in Paikea at [23]. The starting point of three and half years taken by this Court in that case, which involved a cannabis growing and dealing operation of some sophistication, illustrates that the starting point in this case was too high.

[16]     Crown counsel urged us to simply revert to the Judge’s initial starting point of three years, and to uphold the final sentence by taking a less generous view of the mitigating factors.  Crown counsel did acknowledge that a three year starting point would be at the top end of the available range.  We do not accept that it would be appropriate to adopt the approach advocated by the Crown.

[17]     Rather, we go back to the decision of this Court in Terewi, where the characteristics of category two are described in the following terms (at [4]):

Category 2:  encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. 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.

[18]     The only proven offending in this case is the single instance of possession for supply admitted by the appellant.  The Judge clearly had some scepticism that this was the only time the appellant had been involved in drug dealing.  He commented at [10] of his sentencing notes that the appellant had been a cannabis user for a quarter of a century and it seemed unlikely that this would have been the only time in the whole of that period that he had been involved in a commercial enterprise.  But the appellant was before the Court for a single incident and was sentenced for that alone.  Given the comparatively limited amount of, and value of, cannabis involved in this offending, we believe that a starting point of about two years was appropriate in the present case.  This was a single incident, the amount of cannabis was limited, the potential gain was also limited and there was no indication of cultivation.  Although the intended sale had the hallmarks of commerciality, there was no evidence of repetitious offending.

[19]     The discount of 33% for the early guilty plea, lack of prior criminal history and (to the extent that they can be given weight in cases of this sort) personal characteristics of the appellant was generous but justified.  Applying that discount would result in a sentence of 16 months imprisonment. 

[20]     Crown counsel properly conceded that, in the event that we were to determine that the sentence should be two years imprisonment or less, it was appropriate to grant leave to apply for home detention in this case.  We are satisfied that, having regard to the previous good record of the appellant and his positive involvement in the community, it is appropriate to grant leave to apply.  In fact, we were told from the bar that the appellant has become entitled to apply for “back end” home detention and has made such an application.  The granting of leave will ensure that he is not prevented from pursuing that application.

Result

[21]     We allow the appeal.  The sentence imposed in the High Court is quashed, and replaced by a sentence of 16 months imprisonment.  We grant leave to the appellant to apply for home detention.

Solicitors:
Crown Law Office, Wellington