The Queen v Wilmshurst

[2006] NZCA 127

IN THE COURT OF APPEAL OF NEW ZEALAND

CA152/06

THE QUEEN

v

STEPHEN TREVOR WILMSHURST

Hearing:13 June 2006

Court:Robertson, Gendall and Venning JJ

Counsel:K M Daniels for Appellant

K Raftery for Crown

Judgment:15 June 2006 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Gendall J)

[1]       The appellant was sentenced to an effective term of one year nine months imprisonment at the High Court at Wellington after pleading guilty to five charges of possession of cannabis for supply, five charges of supplying cannabis and one of offering to supply cannabis.  Leave to apply for home detention was declined.  He appeals only against that aspect of the sentencing.

Background

[2]       The drug offending for which the appellant pleaded guilty occurred between 20 December 2004 and 28 July 2005 when the appellant conducted a cannabis dealing operation from his home in Masterton.  He was operating a commercial tinnie house.  The sentencing Judge recorded the facts upon which he sentenced as follows:

[2]       The facts are that from December 2004 Wairarapa police had been regularly receiving information that your address was being used for the distribution of street level packages of cannabis – that is, tinnies of cannabis – sufficient to make between three and four average size joints.  As a result of this information, the police commenced surveillance of the address.  That surveillance revealed a large number of people visiting for short periods and then leaving, and persons who were stopped afterwards were in possession of tinnies….

[3]       On 17 June 2005, an undercover officer purchased a cannabis tinnie for $20 from you.  He made purchases of the same size and for the same price on 25 June and 14 July.  On 27 July, an officer purchased a quantity of cannabis for $40 from you.

[4]       On 28 July, an officer purchased an ounce of cannabis for the sum of $260.  You told the officer that you had obtained that quantity from a friend and were selling it on his behalf.  You say through your counsel that you made no profit on that transaction, but it is clear that you were involved in it.  As the officer was leaving, you told him that you were getting in some really good cannabis the following week and that that could be purchased, and that is the subject of the charge of offering to supply.

[5]       On 28 July, the police executed a search warrant at your address.  While they were executing the warrant, you threw a plastic container into the fire.  That was subsequently retrieved and found to contain four sealed bags of cannabis.  You were searched and two small sealed bags of cannabis were located in your back pocket, and a sum of money in assorted denominations totalling $2,080 was located in your wallet.

[6]       One of the charges is a representative charge covering a period in respect of which transactions through a bank account which it is alleged was used to deposit the proceeds of your dealing was operated.  Your counsel disputes that those monies, the deposits into that account, were the proceeds of dealing.  That is a matter which is the subject of a separate application to deal with those proceeds….

[7]       For sentencing purposes, I take into account that the origin of the funds in that account is disputed.  I do, however, take into account that your plea of guilty involves an admission that you were dealing in cannabis over the period in question.

[3]       The payments into the bank account to which the Judge was referring comprised a total of $74,800 between 5 January and 21 July 2005.  It is a matter to which we will return, but we observe that the appellant later consented to the forfeiture of the balance of the funds, namely $9,645, left in that account.

[4]       In imposing sentence the Judge regarded the cannabis offending as being commercial dealing falling squarely within the range of Category 2 in R v Terewi [1999] 3 NZLR 62 (CA) and took as a starting point two and a half years. The appellant had a total of 26 previous convictions but the Judge did not view them as being any aggravating feature in the sentencing exercise. He allowed a significant discount for the guilty plea which resulted in the sentence of one year nine months imprisonment.

[5]       In dealing with the application that leave be granted to the appellant to apply for home detention the Judge said:

In offending of this type, and in particular offending which has occurred in the home, home detention would not be appropriate.  The only matter that I consider calls for some consideration is your state of health and the fact that you have appointments with health practitioners in the next few months to address those matters.  Those are capable of being dealt with by arrangements through the prison service and should be made for you to attend those appointments, and they do not lead me to the view which I would otherwise take, namely that home detention should not be granted, should be changed.  Accordingly, leave to apply for home detention is refused.

Counsel’s submissions

[6]       Mr Daniels on behalf of the appellant submitted that the Judge failed to give proper regard to the personal circumstances of the appellant, including his health and what counsel said was “relatively low-level” of cannabis involved.  He further submitted that the appellant would not be returning to his former home if home detention was granted and that references supporting the appellant, and provided to the Judge, showed that he was held in high regard in the community.

Discussion

[7]       The refusal of the Judge to grant leave to apply for home detention jurisdiction, arose because the sentence was less than two years imprisonment and the requirement to grant or refuse leave existed.  Section 97(3) as amended in July 2004 changed the emphasis to remove what had earlier been said to be a “presumption” in favour of granting leave to apply for home detention.  The present s 97(3) makes it clear that any such presumption no long applies.  Leave to apply for home detention may only be granted if the Court is satisfied that it is appropriate, taking into account the nature and seriousness of the offence, the circumstances and background of the offender and any relevant matters in the victim impact statements (the latter matter has no application in the present circumstance).  The Court’s role is to sift out those cases where it is clear that home detention is not relevant, and whilst the threshold is not to be set too high, in cases where home detention is clearly inappropriate and not viable, leave should be refused. 

[8]       A discretion is given to the sentencing Judge and the Act provides limited guidance as to how that discretion should be exercised.  An overall view is required, as this Court observed in R v Hakiwai CA19/03 30 May 2003, and the determination in each case is essentially a matter for the broad discretionary judgment of the sentencing judge, having regard to the purposes of rehabilitation and reintegration aimed at by the home detention provisions. 

[9]       In this case the drug dealing offending of the appellant spanned a 6-7 months period and he clearly was a major participant in the operation of a “tinnie house”, selling cannabis on a regular commercial basis.  We do not think that such activity can be categorised as “relatively low-level”.  Clearly the offending fell within the second category in R v Terewi (as above).  The Judge noted that the range of two to four years imprisonment and that

A lesser starting point may be justified where sales are infrequent and small.

However, he held that the appellant’s involvement appeared to take him outside that exception.  We agree and are inclined to regard the criminality as falling at least into the middle of the second category, which could have justified a starting point of three years.  The Judge benevolently took two and a half years imprisonment as his starting point and did not increase that for aggravating features such as the appellant’s previous criminal convictions.  The discount or concession that he gave for the guilty pleas was significant and the effective sentence of one year nine months imprisonment could be regarded as lenient. 

[10]     The offending over a substantial period was serious and can be illustrated by the payments deposited into the appellant’s bank account over a six months period totalling $74,800.  Those payments were regular and frequent and sums in excess of $1,000, (sometimes totalling up to $9,000 over any eight-days period) on a recurring basis were made.  Claims by the appellant that these funds were acquired from legitimate activity have a hollow ring.  He withdrew his opposition to a Crown application to forfeit the balance in such account.  The number, size and regular frequency of the deposits suggested a significant part was ill-gotten gains and in related proceedings Mr Wilmshurst withdrew his objection to forfeiture of the balance in the account.

[11]     We are satisfied the Judge did not err in the exercise of his discretion in declining to grant leave.  He gave as his reasons “offending of this type” clearly referring to the serious nature of it and “in particular offending which has occurred in the home”.  Mr Daniels says that the appellant if on home detention would not be in his former home but that overlooks the fact that the offending occurred from residential premises.  Submissions were made to the Judge that the appellant had some troubling health concerns which the Judge said were capable of being dealt with through the prison service and did not lead him to change the view that home detention should not be granted.

[12]     In any event ameliorating features were clearly taken into account by the Judge in reaching the lenient sentence that he did.  Home detention was inappropriate due to the nature and seriousness of the repeated offending, and the 26 previous convictions of the appellant.  The Judge was fully entitled to exercise his discretion in declining leave to apply for home detention.  There is no basis for this Court to interfere with that decision.

Result

[13]     The appeal is dismissed.

Solicitors:
K M Daniels, Masterton for Appellant
Crown Law Office, Wellington for Respondent