The Queen v Husband
[2000] NZCA 227
•9 October 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA262/00 CA263/00 |
THE QUEEN
V
MURRAY STEWART HUSBAND
GREGORY DALE HEATH
| Hearing: | 21 September 2000 |
| Coram: | Tipping J McGechan J Fisher J |
| Appearances: | WNP van Vuuren for Appellants KBF Hastie for Crown |
| Judgment: | 9 October 2000 |
| JUDGMENT OF THE COURT DELIVERED BY MCGECHAN J |
These are appeals, heard together, against refusal of leave to apply for home detention.
There are differences between the two.
The Husband Appeal
Appellant Husband was convicted after trial of possession of cannabis for supply. Twenty grams of cannabis plant contained in twenty 1 gram bags were found in his car, and $4,000 in cash was found on his person. A further 5 grams of cannabis, some sealable plastic bags, pipes, scales and (later) one cap of cannabis oil were found at his home. These latter items were the subject of summary charges not presently in issue.
Husband was a user. He claimed the cannabis located was for his own use. He claimed the cash came from non-dealing sources. The Judge regarded the cash as, or mainly as, the proceeds of drug dealing; but its character still is in dispute.
Husband did not accept the verdict, but there is no appeal against conviction.
Husband is aged 37. He is now an unemployed beneficiary. He has a stable defacto relationship, with dependent children. He has his own house. He has a cannabis dependency. He has made some belated efforts to reduce dependency. Some good references were produced on sentencing. His previous offending has been of a minor character, not drug related, and has not led to anything beyond periodic detention and/or supervision.
The Judge sentenced in orthodox fashion. It was considered a commercial element was involved given the $4,000 found. The case was put as within category 2 in R v Terewi [1999] 3 NZLR 62. Personal circumstances were noted, but given little weight in light of the need for deterrence. The Judge considered there were no exceptional circumstances which would justify a suspended sentence. The Judge also noted, however, that only 20 grams were involved. Given that small amount, and absence of previous convictions, a sentence of 18 months imprisonment was imposed. It was relatively lenient, and no appeal has been lodged as to the term concerned.
The Judge dealt with the question of home detention very briefly. In the body of the decision it was said:
“I am quite satisfied that leave to apply for home detention would not be appropriate given the nature of the offending”.
The Judge subsequently filed a minute dated 18 August 2000 which explained the reference to “the nature of the offending” as involving features (a) that Husband had set out from his home (b) the sum of $4,000 in cash and (c) the items subsequently found at Husband’s house. The minute records “it seemed to me that the accused was essentially operating from his home”. The minute goes on to refer to experience gained in the capacity as a District Prison Board Chairman that in relation to drug offenders there is a “lack of any effective control over, or monitoring of, visitors to the address of a home detainee”.
The status and propriety of a minute of this character will be the subject of later comment.
The Heath Appeal
Heath was convicted after trial of possession of utensils for administration of a class B prohibited drug (s13(1)(a) Misuse of Drugs Act 1975). He was acquitted of a more serious charge of possession of a class B prohibited drug for supply.
Heath had been stopped in his car, which was searched. A small set of scales was found. They carried traces of methamphetamine. A personal search revealed $2,600 in his underpants. That money was returned to him, it appears before trial. Heath gave vague explanations, which have not improved since. He is said to have been in breach of area restriction conditions of bail on other offending at the time he was apprehended. He was aggressive and uncooperative.
Heath is aged 38, unemployed, recently out of a defacto relationship, with some dependants. He has a gang background, which he claims (with some support from the probation officer) is now behind him. He has had alcohol and substance abuse problems. He needs help with those problems, but in the probation officer’s view is reluctant to accept any formal structures. He was reluctant to undergo supervision.
Heath has previous convictions for drug and other offending. The drug offending involves a 1989 conviction for possession of cannabis, a 1990 conviction for possession of cannabis for supply for which he was imprisoned for 3 months, and a 1993 conviction for possession and cultivation in respect of which he was sentenced to periodic detention for 7 months. There has been other lesser offending since.
Again the Judge (who sentenced Heath shortly after Husband) sentenced in orthodox fashion. The Judge noted the maximum sentence was 12 months. He noted Husband’s aggressive attitude towards police, the $2,600, and the unsatisfactory explanations given. The Judge specifically noted the scales were for the purposes of supply of methamphetamine as a dealer. The need for deterrence was seen. Note was taken of Heath’s age and previous drug convictions. Imprisonment was seen as necessary, and in view of the Class B character of the drug a term of 6 months was imposed. Suspension was dismissed as inappropriate. There is no appeal against that sentence.
The Judge dealt with the question of home detention in the body of his sentencing remarks in these brief terms:
“Further I am further am not satisfied [sic], given the nature of the offence and the seriousness of it, that home detention would be appropriate either and leave to apply is declined.”
In a further minute dated 18 August 2000 the Judge stated that in his declining leave to apply the reference to the “nature and seriousness of the offence” reflected the “class of drug involved” and the “surrounding circumstances, i.e. the accused’s possession of a significant quantity of cash”. The Judge states in the minute that he “was influenced also” by the Appellant’s previous convictions for drug offences.
Appellant’s Submissions
Appellant’s counsel submitted the purposes of the scheme for home detention are (i) financial savings (ii) to punish by restricting liberty but at the same time allowing discharge of family and work commitments (iii) to facilitate rehabilitation, thus minimising risk of re-offending.
Appellant’s counsel protested (i) that the Judge’s “single priority” had been “to avoid the possibility of re-offending”, with no consideration given to other purposes, notably interests of his family and rehabilitation. (ii) the Judge had unduly elevated the threshold for grant of leave to apply. While the appropriate threshold was phrased in various ways in written submissions and during argument, counsel ultimately settled upon the Barton formulation under which leave is to be granted unless home detention would be clearly inappropriate. (R v Barton [2000] 2 NZLR 459). It must always be remembered that the granting of leave does not imply that home detention itself will be permitted. The leave jurisdiction of the Court is a filtering mechanism to ensure that cases having no realistic prospect of home detention cannot be brought before the Prison Boards
In approaching decision counsel submitted the Court should look at stability influences, propensity to ignore authority or chances given, the prospects of rehabilitation, and propensity to re-offend. Counsel submitted a “significant combination” of adverse features of this character would be necessary for leave to be refused on the stated threshold.
Turning to Husband, counsel pointed to his stable family situation, and potential for employment. There are no features, it was said, which point to any propensity to ignore authority. Previous response to community based sentences has been good. Husband, it was said, “seems committed” to rehabilitation through his own efforts, the pre-sentence report being supportive. Propensity to reoffend was to be gauged against absence of relevant previous convictions, and remorse over the impact upon his family. In that light, counsel submitted, it could not be said grant of leave would be clearly inappropriate. The “nature” as referred to by the Judge was, on balance, not such that leave ought not to be granted. There was no evidence of actual sale. The source of the money found in his possession remains in dispute, with a further hearing scheduled. While Husband may have weighed and packaged the cannabis at home, there is no evidence of dealing from his home, and no evidence to support the conclusion of an ongoing operation from that location. The case was advanced as bearing a “striking resemblance” to R v Barton supra in which leave was granted by this Court. The Judge’s concerns over home detention for drug offenders were misplaced. If a special regime had been intended, it would have been legislated. Counsel adopted observations in Berryman v Police (unreported, High Court Dunedin, 23 June 2000, AP 15/00, Panckhurst J), which emphasised that in such cases all factors must still be taken into account. Moreover, counsel added, there was no evidence of visitors coming to Husband’s house to purchase.
Turning to Heath, counsel acknowledged the issue was “not as clear-cut” but negative features did not justify declining leave. Heath still had contact with his former de facto and his children. He had another child locally. He had (unspecified) potential for employment. Response to previous sentences generally was good, although a periodic detention review was necessary before completion of sentence in 1993. Breach of bail conditions at time of arrest on current offending is denied. The pre-sentence report had recommended periodic detention, indicating no compliance problems were foreseen. Although reluctant to accept formal rehabilitation assistance, that reluctance was accompanied by changes in lifestyle and “ostensible” curtailing of alcohol showing a personal commitment. Previous drug offending 1989-1993 was all for cannabis. There have been no drug convictions since 1993. Heath’s claimed disengagement from gang involvement, and his residence in a small community, were put as reducing risks. The Class B nature of the drug “ought to have little bearing”. The class of drug is not determinative. Leave has been granted even in Class A cases. The cash, to which the Judge referred, had been given back to Heath. Undue weight was given to previous offending, many years ago and at a time of gang involvement. There was no element of dealing in breach of a suspended sentence or of significant ongoing activity. Again, the Judge had set the threshold too high.
As an additional concern, counsel pointed to the proximity of Heath’s sentencing to that of Husband. While the Judge’s minute regarding Heath does not refer in like fashion to difficulties faced by District Prison Boards over drug offenders, there is room for concern those difficulties might still have been influential. Counsel submitted such concerns should have “minimal influence only” on the Court’s consideration.
Crown Submissions
Crown submissions at hearing reviewed the Judge’s sentencing notes, including the two minutes, in full. R v Barton supra was put as “directly relevant”. The “nature of the offending” and “general deterrence” were to be balanced with the “circumstances of the offender”; “attitude, prospects for rehabilitation and previous response to sanctions”. Husband was put as a small time dealer from his house. The dealing from the house was a relevant circumstance. While Heath was not a dealer from his house, his previous circumstances and history of drug and other offending were relevant.
Principles
We approach this matter in terms of R v Barton supra. While there are no “fixed rules” as to exercise of the discretion, apart of course from s 21D(3), we accept as a useful guideline inquiry whether home detention would be clearly inappropriate. That raises a very wide range of circumstances, not necessarily confined by Barton or by factors raised in submissions in this case. There are no exhaustive checklists. An overall view always is needed.
While it is rather too simple to submit the Judge concentrated almost entirely upon risks of reoffending, we are satisfied that on both applications the Judge approached exercise of his discretion too narrowly. That is perhaps manifest in Husband’s case, where the Judge referred only to “the nature” of the offending, rather than the prescribed “nature and seriousness”; but independently is plain in both cases from the minutes which the Judge filed. In neither case was account taken of any favourable circumstances of the offenders. To the opposite effect, the Judge held possession of cash – in Husband’s case still in dispute, and in Heath’s case given back – was an unfavourable indicator. In Husband’s case there was also an emphasis upon the difficulties experienced from a District Prison Board’s perspective over lack of control over visitors. There was no evidence of visitors resorting to Husband’s house to purchase cannabis.
There is error in principle and we must revisit the applications along broader lines.
Husband’s Appeal
Husband’s conviction involved a small (below presumption) quantity. It was a Class C drug, cannabis plant. While a large sum of cash was found, with its origins still a live issue some care is needed over weight to be given to that fact. Husband has no previous drug related or other serious convictions. The Judge correctly appreciated this was an offence of lesser seriousness for its type and scale, imposing only 18 months imprisonment.
Husband has a stable home situation, with a partner and dependants. He has a home, and prospects of employment. It is disturbing that he does not accept the verdict involving dealing, but all other indicators as to prospects of rehabilitation are positive. There is reason to believe those prospects will be improved for a person who has not previously been imprisoned if allowed home detention as compared to continued prison custody. There are no strong indicators he may reoffend. We do not dismiss concerns as to use of the home in the past for at least the packaging of cannabis, and do not ignore understandable concerns expressed as to the difficulty in monitoring visitors to the homes of home detainees, but those factors are not to be given undue weight, especially where (as here) there is no suggestion Husband’s home was or will be used as a sales point. Such difficulties and possible monitoring matters are highly fact dependent, and in this case can be left with confidence to the District Prisons Board.
Looking at the matter overall, we consider Husband is not a case where home detention is clearly inappropriate. Leave should be granted. That, of course, is not to be taken as expressing any view as to the course which the District Prisons Board should take. That is a matter for the Board entirely.
Heath’s Appeal
Heath’s appeal involved possession of scales for measurement of the Class B drug methamphetamine. He was acquitted on a contemporaneous count of possession of methamphetamine for supply, but the Judge was entitled to conclude the scales were in possession for dealing purposes. While Class B character, or even Class A character, is not determinative, additional deterrent questions are of course raised. It was not correct to give added weight to the money, which had been given back to Heath, but even with that put aside the offending was intrinsically serious.
Heath’s personal situation is not encouraging. He no longer has a stable domestic situation. He does not have a home or household of his own, though he seems serious in a desire to retain contact with his children. He is not employed. His situation scarcely can be described as stable. His attitudes are not impressive. He was, at least arguably, in breach of bail when apprehended. His attitude to the Police was aggressive. While he claims, with some support, to have severed gang connections, it would appear he remains confrontational. He has some concerning previous convictions, including dealing for which he has been imprisoned. He has not learned. Other offending has continued. His unwillingness to accept formal rehabilitative structures such as supervision diminishes confidence in any genuine prospects of rehabilitation. There is a worrying prospect of continued offending. A personal deterrent is needed.
Looking at the matter overall, this presents as a significantly different case from that of Husband. We consider, on the necessary wider approach, that leave should not be granted.
The Judge’s Minutes
The Judge decided after these appeals were brought to file the minutes referred to above. They expanded on his rather cryptic earlier reasoning. This is not a course which we would endorse. Sentencing is a public exercise and a Judge's reasons for taking a particular course should be expressed in public and in the presence of the person being sentenced. While the Judge was in this case no doubt seeking to be helpful to this Court, the appearance of an ex post facto minute can be one of retrospectively bolstering an earlier conclusion in the face of a challenge on appeal. The statement in R v Barton (supra) at paragraph 13 (page 463) that "extensive" reasons cannot be expected for home detention decisions, does not mean that very compressed reasons can then be expanded following an appeal. The proper course is for the Judge to give at the time of sentencing such reasons as the circumstances require. While nothing extensive is required, the Judge should give sufficient reasons for the refusal to grant leave to explain the basic reasoning process. This both informs the person being sentenced and facilitates review on appeal, if such becomes relevant.
In this case, the minutes being novel, we requested the Crown to file a memorandum, after hearing, stating the Crown’s attitude to that practice in general terms and what attention should be given to the minutes in this case. A memorandum was filed stating that the Crown does not ask the Court to take the minutes into account in determining these appeals. In this particular case, it would not be appropriate to disregard these minutes, on which earlier argument focused. That particularly is so as, somewhat ironically, material in the minutes was of some assistance to the appellants. This is not to be taken as a precedent. In future, reasons should be stated within sentence, and such minutes should not be filed.
Decisions
(1) Husband’s appeal is allowed. Leave is granted to Husband to apply to a District Prisons Board for release to home detention.
(2) Heath’s appeal is dismissed.
Solicitors
Petrie Mayman Clark, Timaru, for Appellants
Crown Law Office, Wellington
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