The Queen v Raihana

[2007] NZCA 152

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 479/06
[2007] NZCA 152

THE QUEEN

v

HORI TE IHI RIMITIRIU RAIHANIA

Hearing:16 April 2007

Court:Glazebrook, Randerson and Ronald Young JJ

Counsel:M J Faleauto for Respondent

M D Downs for Appellant

Judgment:24 April 2007 at 3pm

JUDGMENT OF THE COURT

Leave to appeal is granted but the appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]       The Solicitor-General seeks leave to appeal against a sentence of 400 hours community work imposed by Judge Hubble in the District Court following the respondent’s conviction after trial for possession of  cannabis for supply.  The appeal is brought on the grounds that the sentence was wrong in principle and manifestly inadequate. 

The facts

[2]       On 22 July 2005 the police searched a storage unit leased by the respondent and found approximately 5.5 kgs of cannabis plant material.  The majority of this was of good saleable quality.  Most of the material had been broken down into approximately 20 small snaplock bags each containing one ounce of cannabis and 12 one pound bags.  Evidence was adduced that the cannabis was worth approximately $40,000–$90,000.  A set of electronic scales was also found in the storage unit.

[3]       The evidence disclosed that the respondent had leased the unit since December 2000 under a false name.  The respondent regularly visited the storage unit over a period of approximately one month prior to his arrest, staying only for a few minutes on each occasion.

[4]       The respondent denied selling cannabis and storing the drug for that purpose.  He testified that he possessed all of the cannabis for palliative relief.  He had been involved in a serious car accident in 1980.  Although the respondent continues to suffer health problems as a consequence of that accident, the verdict clearly implies that the jury rejected the respondent’s evidence on the critical issue.

The Judge’s sentencing remarks

[5]       The Judge noted that, despite the jury’s verdict and the clear evidence of commercial drug dealing, the respondent continued to deny he was involved in selling cannabis.  The Judge regarded the sheer quantity of the drug as the principal aggravating circumstance.  However, he considered that there were substantial mitigating circumstances.  He took into account the respondent’s previous good character including the fact that he had no prior convictions of any kind.  He accepted that the respondent had severe health problems resulting from the accident and that he had been introduced to cannabis for pain relief.  He noted that, by the time of sentencing, the respondent had been in custody for approximately one month.

[6]       While accepting that the case clearly fell within Band 2 of R v Terewi [1999] 3 NZLR 62 (which would have warranted a starting point of between two and four years imprisonment), the Judge considered the respondent’s case justified his exercising the prerogative of mercy. The Judge was clearly influenced by the presence in court of a substantial number of the respondent’s whanau and eloquent pleas made on his behalf by at least one prominent member of the community. The respondent comes from a well-known and respected East Coast family who proposed to the Judge that he should leave his urban based community and return to a relatively remote East Coast town where he would be close to his family. He would then undertake a restorative justice programme, serving a sentence of community work. The family would take responsibility to ensure he completed his sentence and would focus on his rehabilitation. Reference was made to the concept of whakama (shaming) of the respondent by his community.

[7]       The Judge considered he was entitled to take into account these cultural aspects, the health factors affecting the respondent, the contribution the respondent had made in the education field and the proposals outlined by the family.  In imposing the sentence of 400 hours community work, the Judge acknowledged the likelihood that the Crown would appeal.

Appellant’s submissions

[8]       Mr Downs accepted the mitigating factors identified by the Judge were relevant to sentencing but submitted they were neither exceptional nor sufficiently compelling to warrant the imposition of a non-custodial term given the seriousness of the offending.

[9]       Mr Downs submitted that the offending was primarily commercial in nature and that a sentence in the range of two to three years imprisonment would ordinarily be expected.  Given the mitigating factors identified by the Judge, Mr Downs accepted that a significant reduction in term (from say two and a half years to 18 months) would be justified.  Given that the respondent has now completed his community work sentence, Mr Downs submitted it would be appropriate for this Court now to impose a sentence of 12 months imprisonment.

[10]     Mr Downs referred us to the decision of this Court in R v Andrews [2000] 2 NZLR 205. The Full Court confirmed that any dealing or cultivating charge involving any commercial element, no matter how small, should attract a starting point for sentence between two and four years imprisonment. There was no “twilight area” between commercial and personal use. The scale of the commercial element could be a factor in determining where to start within this range or could be taken into account when considering whether a sentence should be suspended (under the provisions of the Criminal Justice Act 1985 then in force).

[11]     The case is instructive because it discussed factors relating to the personal circumstances of the offender which might be considered sufficiently unusual to amount to exceptional circumstances justifying the exercise of the power to suspend a sentence.  It was held that neither a long-standing problem with arthritis nor post‑arrest rehabilitation efforts undertaken by the appellant could be regarded (either singly or together) as exceptional circumstances.  Despite the firmly expressed views on this issue, the Full Court nevertheless dismissed the Solicitor‑General’s appeals since their primary purpose had been to reinforce the need for exceptional circumstances before sentences for the cultivation and supply of cannabis could be suspended.  That purpose had been achieved.

[12]     While acknowledging the limited utility of a comparative case analysis in this sentencing field, Mr Downs drew our attention to the decisions of this Court in R v Ridout CA120/02 19 September 2002 and R v Coronno CA 366/01 6 December 2001.  These related appeals concerned sentences after a plea of guilty to charges of possession of cannabis for supply.  The dry weight of the cannabis at issue was estimated to be 12.4 kgs with an estimated wholesale value of $70,000 ‑ $80,000.  The principal offender (Mr Ridout) had his sentence reduced on appeal from three years to two and a half years and Mr Coronno’s sentence was reduced from two and a half years to two years.  Of particular interest is the Ridout appeal in which it was held, amongst other things, that no allowance should be made for his illegal consumption of cannabis due to chronic pain caused by arthritis but the Court could take into account the disability itself.  Despite the guilty plea, a substantial sentence of imprisonment was upheld.

Respondent’s submissions

[13]     Mr Faleauto emphasised on the respondent’s behalf the fact that he had now completed his community service sentence in good faith; his previous good character; the importance of cultural considerations relevant to sentencing as already outlined; and the need to ensure the Court does not override the discretion of the sentencing Judge to take a merciful approach or to adopt the course calculated to achieve rehabilitation, even in cases which would normally call for a deterrent sentence – R v Donaldson (1997) 14 CRNZ 537, 549.   Mr Faleauto referred to a number of other authorities but the great bulk of these were decided before Terewi and are distinguishable for that reason.  In any event, each case must be considered on its own facts.

[14]     The respondent’s younger brother was also permitted to address the Court.  He has substantial experience as a prison officer and is a responsible and respected member of the community. He impressed us with his candid assessment of his brother’s predicament and gave us valuable insights into the community work programme completed by the respondent and the efforts which the wider family have been making towards his rehabilitation.  He accepted that both he and the respondent were aware that an appeal was filed by the Solicitor-General shortly after the sentence was imposed in the District Court, but we accept that the sentence was nevertheless completed in good faith.  Indeed, we accept the explanation given by Mr Raihania Junior that the respondent and the family considered it was important to keep faith with the undertaking given to the sentencing Judge: that the sentence be carried through to its conclusion.

[15]     During the course of argument, members of the Court questioned whether the respondent had accepted the finding of guilt given that he had not done so at the time of sentencing.  In response, the respondent personally advised the Court that he fully accepted the findings of the Court and, in particular, the guilty verdict.

Discussion

[16]     This case has caused us considerable anxiety.  There can be no doubt that the quantity of cannabis involved and the obvious commercial elements of the offending justified a starting point of around two and a half years imprisonment as suggested by the Crown.  The case falls squarely within the middle of Band 2 of Terewi.  There were undoubtedly substantial mitigating factors relating to the respondent’s personal circumstances which would have justified a reduction from the starting point.  Nevertheless, it must also be recognised that the respondent was not entitled to any discount for a guilty plea and that, at the time of sentencing at least, he had not accepted the jury’s verdict.  On that basis, the suggestion by the Crown before us that an appropriate sentence would have been 18 months imprisonment is a generous concession.

[17]     We are satisfied there are no exceptional circumstances which would have justified a non-custodial sentence.  A previous good record, family support (even in the context of the cultural dimension discussed above) and the consumption of prohibited drugs for palliative reasons are not generally to be considered (whether separately or collectively) as justifying the imposition of a non-custodial sentence in a case as serious as this. 

[18]     But the difficulty we have is that the respondent has, in good faith, carried out the sentence of the Court and, in our view, it would now be unjust to depart from that course and impose a sentence of imprisonment even at the level of 12 months suggested by Mr Downs.  As this Court pointed out in Donaldson at 550, “the Court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with than where an inadequate custodial sentence is in issue”.   It follows that any decision to reverse a non-custodial sentence and replace it with a term of imprisonment is not lightly undertaken, particularly when the non-custodial sentence has been completed. 

[19]     We accept the submission made by Mr Downs that the Sentencing Act 2002 and the current trend towards sentencing guidelines focus more strongly than in the past on consistency in sentencing and, for that reason, the scope for departure from clearly established guidelines will be diminished.  While the respondent has, at least since December last, been aware that the sentence was subject to appeal, he has removed himself from his former urban environment, carried out his sentence of community work in full and has remained in the remote East Coast area where his elderly father and some other family members reside.  As well, even if belatedly, he has now accepted the findings of the jury which clearly rejected his plea that he was not involved in the supply of cannabis to others on a commercial scale.  Given these factors, we consider it would be unjust to allow the Solicitor-General’s appeal by imposing a sentence of imprisonment. 

[20]     This case should not be taken as an indication that offenders who promptly carry out non-custodial sentences will be able to thereby avoid the later imposition of a custodial term in cases where the original sentence is clearly inadequate.  It is a case determined on its own facts.  We were particularly influenced by the good faith fulfilment of the undertaking given to the Judge by the respondent and his family which was relied upon by the Judge in sentencing.  This included the respondent’s relocation and the additional measures taken by the family to avoid his reoffending.

[21]     We conclude by observing that this case illustrates the limited sentencing options available under the Sentencing Act for offending of this kind.  The stark choice between a custodial sentence and community work meant that the sentencing Judge, faced with a difficult and limited choice, felt constrained to adopt the lenient approach he did in order to accommodate both the rehabilitative concerns and the cultural dimensions present in the case.  We express the hope that the broader range of sentencing options proposed in the Criminal Justice Reform Bill currently before Parliament will, if passed, enable a more effective tailoring of sentences in this type of case than is possible under the existing legislation.

Result

[22]     Leave to appeal is granted but the appeal is dismissed for the reasons given.

Solicitors:

Crown Law Office, Wellington.