The Queen v Quintin Mark Taikato
[2001] NZCA 241
•29 August 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA176/01 |
THE QUEEN
V
QUINTIN MARK TAIKATO
| Hearing: | 29 August 2001 |
| Coram: | Thomas J Anderson J Hammond J |
| Appearances: | A R Burns for Solicitor-General |
| P G Mabey QC for Respondent | |
| Judgment: | 29 August 2001 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
Nature of the Appeal
The Solicitor-General seeks leave to appeal against sentences imposed on the respondent for offences in respect of the Class C controlled drug cannabis. The respondent pleaded guilty in the District Court to three offences for which he was arrested and charged in October 2000, and two offences for which he was arrested and charged in March 2001. The October 2000 offences were cultivating cannabis, possession of cannabis for supply, and selling cannabis. The March 2001 offences were cultivating cannabis and possession of cannabis for supply. He was remitted to the High Court for sentence. For the October 2000 offences he was sentenced to 18 months imprisonment, and on the later offences he was sentenced to two years imprisonment, the terms to be concurrent. The High Court Judge granted the respondent leave to apply to the District Prisons Board for home detention.
The October 2000 offences
In October 2000 the police executed a search warrant at the respondent’s home. There they found 92 30 cm high seedlings growing in potting bags and 66 10 cm high seedlings in two bins. In the boot of the respondent’s car was a bucket containing 982 grams of good quality cannabis head having a street value of about $6000. Whilst the search was being conducted the respondent returned to his home in a vehicle which was carrying empty potting bags similar to those already found. Wire netting and other equipment commonly used for gardening purposes were also in the vehicle.
The respondent admitted that he had just been planting 30-40 seedlings, that he had been growing cannabis for five years, and selling from time to time over the past two years. The police found $11,000 in the respondent’s home and he admitted that $5500 of this was the proceeds of selling cannabis.
The March 2001 offences
On 30 March 2001 a private security operation was being conducted in the Fletcher Challenge Forests land in the Mamakus. A car in which the respondent was an occupant failed to stop for security staff on one of the forest roads and was pursued for a short distance until it crashed. The respondent ran from the vehicle into the forest but was eventually located by a police dog handler. The car contained 10 cannabis plants, each of two metres and freshly harvested. These were wrapped in shade cloth and were of good quality. Also in the vehicle was a box containing wet cannabis with a dry weight of about 1.9 kilograms. Lower grade leaf with a dry weight of approximately 7 kilograms and of a type commonly used for manufacturing cannabis resin was found along with a kleensak with cannabis leaf and head having an estimated dry weight of 1.25 kilograms and another small quantity of quality head. In all the cannabis located and seized comprised 10 mature plants and more than 10 kilograms, in dry weight, of cannabis material.
Although the respondent’s immediate reaction was to deny ever having been in the car and to explain that he was there by coincidence in the course of illegal hunting, he eventually pleaded guilty. The offending occurred whilst he was on bail, awaiting trial, on the October matters.
The reasons for sentence
The information before the sentencing Judge included the summaries of facts, a pre sentence report, a written plea for leniency from the respondent’s parents, a seasonal employer’s reference, and a petition by 15 people in support of a plea for home detention. The Judge had the benefit of an address by a kaumatua pursuant to s 16 of the Criminal Justice Act 1985. He also had a copy of the respondent’s offence history which included three counts of selling cannabis in 1990, three counts of possessing cannabis, the most recent being in 1997, and sundry offences of no present relevance. Significantly the offences of selling cannabis in 1990 led to a sentence of two years three months imprisonment.
The Judge noted that the respondent was in a stable, permanent relationship with responsibilities to two children. He expressed the view that the respondent had in recent years been subjected to pressures largely of an economic nature. The pre sentence report states that the respondent was currently unemployed and awaiting seasonal work on which he relies. It also reported that his parents were living in substandard accommodation which was affecting their health, and that negative thoughts about his parents’ living conditions contributed to his offending. His own cannabis use and a similar dependency by his wife were also contributing factors.
The Judge considered that the offending lay within the second category identified in R v Terewi [1999] 3 NZLR 62 which contemplates a sentence of imprisonment in the range of two to four years. He did not accept the prosecution estimate of $100,000 street market value for the October seedlings, but found that the cannabis involved in the March 2001 offending probably had a value in the range of $30,000-$50,000. He identified as aggravating factors the offending whilst on bail, the amounts of money involved, and the fact that the respondent had not been deterred by the sentence of imprisonment imposed in 1990.
Mitigating factors were seen in the pleas of guilty and the high regard in which the respondent was held by his whanau. The respondent’s personal qualities were regarded by the Judge as significantly mitigating. He referred to them in this way:-
What I regard as being most important from a mitigating point of view is that you seem to have qualities which, if they are developed and if you are prepared to turn your life around, will be of immense value to your whanau. And to as great an extent as I am permitted to I want to ensure that you are not dealt with in such a way that those qualities are crushed and not allowed to develop.
The qualities to which the Judge referred are exemplified in his commitment to his marae, involving much unpaid work, and leadership qualities he had shown in relation to his whanau. The pre sentence report referred to a willingness to address offending behaviour and awareness of the need for professional help in rehabilitation. The respondent was skilled in carving and was versing himself in tikanga Maori.
The Judge recognised that the sentence he was to impose would be regarded as lenient and that given the aggravating circumstances a sentence of imprisonment of three years or even more might properly be imposed, but he declined to for reasons expressed as follows:-
But the reason why I am doing it is that the extra term of months which I could impose on you I do not consider in the round are going to do you much good.
Submissions on behalf of the Appellant
Counsel submitted that overall the offending fitted more expediently within the second category of Terewi than the third but that it was at the upper end of that second category, thereby indicating a starting point of four years imprisonment. Any discount for the guilty pleas ought recognise that although the pleas in respect of the March 2001 offences were entered reasonably promptly, the same could not be said about the October 2000 crimes. Further, the respondent’s conviction was inevitable in the light of the evidence including admissions. Nor could the guilty pleas be taken without question as indicative of remorse or rehabilitation because in terms of the pre sentence report the respondent was asserting he had pleaded guilty to protect his family rather than because of his own culpability. Other than the guilty pleas, in the Crown’s submission, there was little by way of mitigation. Any mitigating element of potential had to be weighed against the respondent’s age, 35 years, and the fact of offending not only whilst on bail but after having had a previous firm sentence of imprisonment. On the other hand, the aggravating factors, including the offending whilst on bail, were serious, as was the need for deterrence and for consistency of sentencing. Overall, in the Crown’s submission, the minimum sentence should have been three and a half years imprisonment.
Submissions on behalf of the Respondent
Mr Mabey responsibly acknowledged that the sentence was lenient but submitted that it was deliberately so for the reasons indicated by the Judge. He submitted that this Court should be reluctant to interfere with a judicial discretion to show mercy or leniency, but that if this Court felt obliged to intervene it should not increase the sentence beyond the three year minimum period proposed by the Crown at the time of sentencing.
Decision
With respect to the learned sentencing Judge the sentence, even without the order granting leave to apply for home detention, is manifestly inadequate. Both the October 2000 offending and the March 2001 offending fell within the second category of Terewi. Since there were quite separate periods of offending, consideration could well have been given to cumulative sentences. The later offending is seriously aggravated by its having occurred whilst the respondent was on bail. Considerations of personal deterrence are important where an offender has previously served a firm sentence of imprisonment for similar offending but has not been subsequently dissuaded, even whilst on bail, from cannabis dealings of a commercial nature. We are not diverted to leniency on the basis that a longer, appropriate sentence would not do the respondent any good. Sentencing in this area is primarily informed by considerations of deterrence and punishment rather than the prospect of benefit to the offender.
Counsel, in written submissions, acknowledged that leniency in individual cases is always a possibility if the facts are exceptional and the evidence supports that approach. It was submitted that this is not such a case, and we agree. There are few mitigating factors, let alone any which are exceptionally mitigating. On the contrary, there are significantly aggravating factors in the respects already mentioned. A sentence which correctly exemplifies punishment, deterrence, reasonable consistency of approach for offending of this nature, and the particular mitigating factors could be not less than three years imprisonment and might well be more. Consistent, however, with this Court’s approach in respect of successful appeals by the Crown, and indeed with the Crown’s stance at the original sentencing, we think a sentence of three years imprisonment should be imposed. Accordingly leave to appeal is granted, the sentences of imprisonment and order granting leave to apply for home detention are quashed, and in respect of each count a sentence of three years imprisonment is imposed, the terms to be concurrent.
Solicitors
Crown Law Office, Wellington
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