The Queen v Raymond John Papuni

[2003] NZCA 189

IN THE COURT OF APPEAL OF NEW ZEALAND

CA124/03

THE QUEEN

v

RAYMOND JOHN PAPUNI

Coram:Keith  J
Blanchard J
Tipping J

Appearances:  A R Laurenson for Appellant

J M Jelaś for Crown

Judgment (On the papers):     11 August 2003 

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence

1. The appellant was convicted after trial by jury in the District Court at New Plymouth of possession of cannabis for the purpose of sale. He was sentenced to 15 months imprisonment and refused leave to apply for home detention. This appeal relates solely to that refusal.

Relevant Facts

1. On 13 June 2002 the police executed a search warrant at the appellant’s home address. During the course of this search the appellant was seen moving from the house to a garden shed carrying a white bucket. When police searched the shed they found the white bucket, which contained thirteen snap lock plastic bags each packed with approximately one ounce of cannabis. The cannabis had an estimated value of around $3,000. Also found in the bucket were 260 grams of cannabis leaf.  In the appellant’s wallet there was found a list of names and numbers, described by the police as a “tick list”.

2. When spoken to by police, the appellant acknowledged that the cannabis was his, but said that it was for his personal use. In particular, the appellant said it was to relieve pain resulting from an old back injury. The appellant said that he had grown the cannabis himself and packaged it into bags for his convenience. He also explained that the “list” was simply a record of his friends and acquaintances.

3. The appellant was charged with cultivating cannabis and being in possession of cannabis for supply. He was acquitted of the cultivation charge, very likely because there was no evidence that cannabis had been grown at his home address. On the possession charge the appellant somewhat unrealistically maintained his defence at trial that the cannabis was for his personal use, not supply.

The District Court Decision

1. The Judge began by recording the background to the offending and noting that the Crown’s case at trial had been that the appellant was not selling cannabis, but had the cannabis in his possession for future sale. Possession of some cannabis for personal use had been accepted.

2. As part of the background, the Judge noted many of the positive aspects of the appellant’s circumstances: the pre-sentence report assessed the appellant as being highly motivated to change, but recommended imprisonment with home detention being considered; the appellant’s back injury had been confirmed; a character reference suggested that the appellant was honest and reliable; a report from Taranaki Health stated that the appellant was participating in counselling sessions with a view to addressing his alcohol and drug problems.

3. The Judge then recorded that “there is effectively a presumption in favour of home detention unless the Court considers it is inappropriate taking into account the nature and seriousness of the offence, the circumstances and background of the offender and any other factor the Court considers relevant”.

4. The Judge concluded that looking at the circumstances overall “home detention [was] inappropriate and leave to apply for home detention is refused”. Two factors were singled out for special mention: the nature and seriousness of the offending and the fact it occurred at home. The Judge said that in a case involving drug offending at home with a “commercial aspect” the deterrent purpose of the sentence would not be met by allowing home detention. The Judge was aware that the appellant was a solo parent with three children and that imprisonment would impact upon his family obligations, but noted that the appellant’s mother could take over the primary care role.

Grounds of appeal

1. The appellant submitted that the Judge confused the issue of granting leave to apply for home detention under s97(3) of the Sentencing Act 2002 with actually granting home detention, which is a matter for the Parole Board. It was said that the cases cited by the Judge were not concerned with granting or refusing home detention, but with whether leave to apply to the Parole Board was appropriate. The Judge was said to have concluded that as he would not have granted home detention he would not grant leave. It was submitted that the Judge erred in this respect because the success of a home detention application was not a concern of the courts.

2. It was also submitted that the Judge gave insufficient weight to the mitigating factors, which included the appellant’s responsibility as a father, his motivation to address his addiction through counselling, his general good character, and the fact a “significant proportion” of the cannabis in his possession was for his own use.

3. Finally, it was submitted that the Judge gave too much weight to the fact the cannabis had been found at the appellant’s home. It was said that in the two cases referred to by the Judge where applications for leave to apply for home detention had been refused (R v Marino (CA425/01, 12 March 2002), Sinclair v Police (HC, Hamilton Registry, 21 March 2001)) the defendants had sold cannabis from their homes.  As there was said to be no evidence that the appellant had actually conducted sales from home in this case, it was submitted that the Judge should have drawn a distinction between selling from home and being found in possession of cannabis at home for future supply.  The failure to draw this distinction resulted in too much weight being given to the location of the offending.

Decision

1. We do not think the Judge has been shown to have erred in the exercise of his discretion under s97(3) of the Sentencing Act by refusing leave to apply for home detention. Although in parts of the judgment reference is made to home detention as opposed to leave to apply for home detention, it is clear that the two were not confused. The Judge directed himself correctly to the factors identified in s97(3) and the appropriate cases, which are relevant only to the question of leave. Indeed, the passage referred to by the Judge from Sinclair v Police explicitly makes reference to “leave for home detention”: para [15]. Moreover, it is clear from the Judge’s concluding remarks that he was properly addressing the question of leave: “leave to apply for home detention is refused”: para [29].

2. As part of assessing whether leave should be granted, the Judge was entitled to take into account whether home detention was appropriate in the circumstances. Section 97(3)(d) allows “any other factor that the court considers relevant” to be taken into account. One relevant factor is whether home detention would be consistent with the purposes and principles of the Sentencing Act, which necessarily involves an assessment of whether home detention would be appropriate in light of these purposes and principles. As long as it is appreciated that the Judge’s role is not to determine the merits of a home detention application, this is a permissible consideration. In this case, the Judge was entitled to consider whether allowing home detention would undermine the deterrent purpose of the sentence.

3. It was also open to the Judge to conclude that the mitigating factors in favour of leave were outweighed. We are not persuaded that insufficient weight was given to these factors. They were clearly at the forefront of the Judge’s mind given their prominence in the judgment, and the Judge reminded himself that only the presence of a “significant factor” could justify refusing leave. The Judge had also considered the impact on the appellant’s family, by recognising that the appellant’s mother was available to take over the primary care role. In the circumstances, the Judge was entitled to find that the nature and seriousness of the offending, and particularly the fact it occurred at the home, were significant enough when taken together to outweigh the mitigating factors, and that possession of cannabis for commercial purposes would not be sufficiently deterred if home detention was available.  It is also not without significance that the appellant has, since being convicted, continued to deny the offending.

4. It has not been shown that the approach taken by the Judge was inconsistent with the cases. Leave for home detention was refused in R v Marino, where the applicant received a sentence of 18 months for possession and supply of cannabis, some of which was supplied from the home. Although the offending in that case was more serious, the applicant had pleaded guilty to all the charges against her. This Court concluded that the applicant’s motivation to rehabilitate herself, and the impact on her family, which included five children, was outweighed by a need to impose a deterrent penalty. 

5. Leave to apply for home detention was also refused in Sinclair v Police. There the applicant had been sentenced to 12 months imprisonment for possession and sale of cannabis. The applicant had made sales of cannabis from her home, which was regarded by the sentencing Judge as a significant factor in denying leave. Although that case had involved sales of cannabis, as opposed to possession for future sale, the applicant had pleaded guilty.

6. We are not persuaded that the Judge placed too much weight on the cases to which he referred and that he was wrong to rely upon them in the absence of evidence of actual sales from the home.  The cases establish that where the deterrent purpose of a sentence will be undermined by home detention, leave to apply for home detention may be refused. For the reasons already referred to, it was open to the Judge to conclude that the deterrent purpose of the sentence would not be met if home detention were made available.  There was ample evidence of an intention to make sales.  The home was plainly to be used as a base, if only for keeping the cannabis.  The offending of which the appellant was convicted did occur at the home.

7. For these reasons the appeal is dismissed.

Solicitors:
Govett Quilliam, Wellington for Appellant
Crown Law Office, Wellington