The Queen v Solomon Harrison

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 192/02

THE QUEEN

SOLOMON HARRISON

Hearing:	24 July 2002
Coram:	Tipping J
Ellis J Panckhurst J
Appearances:	J A Farrow for Appellant
J M Jelas for Crown
Judgment:	25 July 2002

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

This appeal against sentence relates to the imposition of nine months imprisonment upon charges of supplying cannabis oil, a class B drug, and possession of that same drug for the purpose of supply. Sentence was imposed in the District Court at Dunedin on 20 June 2002. The hearing of the appeal has been accorded priority in light of the short term of imprisonment imposed and in lieu of the need to consider an application for bail pending appeal, which was earlier indicated.
The facts of the case are best explained by setting out the police summary in full:
After receiving information on 29 June 2001 police executed a search warrant on a motor vehicle near Mosgiel.
The defendant was searched and a cap of cannabis oil was found in his possession (in a pouch of tobacco).
On returning to the Dunedin Police Station a full search was carried out and located hidden in the defendant’s sock was a container which held eight caps of cannabis oil.
The defendant stated that he had bought the cannabis oil in bulk the previous evening. He further stated that he originally had 10 caps and that he had given one to the driver of the vehicle in payment for petrol.
When questioned about this the defendant stated he normally paid cash but had none available.
HARRISON further stated that a cap of oil would last him up to about a week.
The defendant is a 37 year old man who has previously appeared.
The appellant challenged the admissibility of the search evidence whereby his possession of the cannabis oil was unearthed and which, in turn, resulted in his admission that he had supplied one capsule of the drug to an acquaintance. That challenge was not heard until April 2002. When a ruling was delivered in favour of the Crown the appellant entered pleas of guilty to the two charges. In these circumstances the sentencer accepted that the pleas were not last minute ones, and normal credit should be given for their entry.
In support of the appeal Mr Farrow advanced a range of interconnected submissions. In essence he contended that a sentence of imprisonment was clearly excessive, the offences being ones which could have been met by a fine or community work in conjunction with a suspended sentence of imprisonment. In support of this contention counsel noted : the appellant had no previous convictions for drug dealing, the entry of pleas of guilty, that he was subject to restrictive bail conditions for an extended time, that the offending precipitated the end of his long-term relationship, that at the time of sentence the appellant was in full-time employment as a fisherman and was “drug free”, and that there was no commercial element to the offending.
As to this last point counsel submitted that the appellant’s pleas were entered on the basis that the capsules in his possession were for his own use and for supply to acquaintances, not for commercial sale. An observation of the Judge that “the police had good reason to believe that you might be in possession of this substance and that you were believed to be dealing in it, either at work, or certainly amongst your work colleagues” was criticised by counsel as inconsistent with the summary of facts and derived from something said in the course of the s344A hearing. It was contended that the pleas were entered, and accepted, on the basis there was no commercial aspect to the appellant's dealing, that is that any supplies of cannabis oil were to acquaintances and not for financial gain.
It was perhaps unfortunate that the Judge’s sentencing remarks contained the observation to which exception was taken. However, we are sceptical of the appellant’s version since on the basis of the material contained in the summary of facts there would seem to be no explanation for the appellant’s possession of a quantity of capsules of cannabis oil, at work, concealed in a container, in turn hidden in his sock, unless he was motivated to deal in the drug. Hence we do not view the case in the terms for which counsel contended.
Mr Farrow’s essential submission was that the Judge was wrong to reject the option of a suspended sentence in the particular circumstances of this case. He urged that suspension was appropriate given the criminality involved and in light of the appellant’s personal circumstances. In particular that he had taken steps to address his drug use and was in full-time employment as a fisherman at the time the sentence was imposed.
We do not agree. This was a case which involved dealing in drugs. As this Court has said on many occasions personal circumstances must be given an importance subservient to the need to impose deterrent sentences. We agree with the submission of Crown counsel that a short term of imprisonment was appropriate and that it was certainly within the range available to the sentencing Judge.
However, the sentence of imprisonment was coupled with a grant of leave to the appellant to apply for home detention. We are in no doubt that such order was an integral part of the sentencing package. Moreover, counsel advised that an application for release had been successfully pursued with the result that the appellant as recently as last Monday, 22 July, was released to home detention at an address in Milton. In consequence of that the appellant assisted by counsel had sought the imposition of terms which would enable him to return to work as a fisherman. As the Judge noted in his sentencing remarks the appellant was then employed on a fishing boat operating out of Bluff which meant that he was at sea for ten days followed by a shorter period of leave. No doubt the Judge was influenced in his decision to grant leave by the knowledge that the appellant had such employment available to him.
Regrettably for administrative reasons which counsel explained the appellant is not in a position to return to his employment. Apparently the probation service consider it inappropriate for a detainee resident in Milton to undertake work as a fisherman on a boat operating from Bluff. This highly relevant information only surfaced in the last few days and has caused us to reconsider the appeal on a basis and for reasons which were not of course available to the sentencing Judge. Attainment of a home detention situation whereby the appellant was also able to return to gainful employment has not proved possible. This is a new and significant factor. We consider it requires us to reconsider a sentence which otherwise was correct in principle and unimpeachable.
In these particular circumstances we have concluded that the better course is to allow the appeal and substitute a suspended sentence of imprisonment. That term shall be nine months imprisonment suspended for twelve months. We do so because of the importance which we attach to ensuring that the appellant continues in employment. In the event that end is attainable with a suspended sentence, but not if the appellant has the status of a home detainee.
We also gave consideration to whether some additional penalty (probably a fine) was also required. On balance we have concluded that such is not necessary. As noted earlier the appellant was on restrictive bail terms for an extended time until he was sentenced, but of even more consequence he spent one month in custody prior to his release last Monday. That was the first time which he had spent in prison. We consider it should have provided a short, sharp shock as to the implications of involvement in drug dealing.
It is necessary for the appellant to appreciate the significance of a suspended sentence. We therefore record that if in the next twelve months he is convicted of an offence punishable by imprisonment the appellant will be liable to have the suspended term activated in whole or in part. We direct that a copy of this decision be provided to him.

Solicitors:
Webb Farry, Dunedin, for Appellant
Crown Law Office, Wellington

[2002] NZCA 179

25 July 2002