Thomas v The the King

[2022] NZHC 2494

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000274

[2022] NZHC 2494

BETWEEN

STEPHEN CHARLES THOMAS

Appellant

AND

THE KING

Respondent

Hearing:	27 September 2022
Counsel:	DB Stevens for Appellant BS Rorrison for Respondent
Judgment:	3 October 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 3 October 2022 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. DB Stevens, Auckland.

THOMAS v R [2022] NZHC 2494 [3 October 2022]

The case

[1]                  Stephen Thomas received a sentence of 10  months’  home  detention  and 100 hours’ community work for possessing cannabis for the purpose of supply.1 He appeals sentence. An appeal must be allowed if there was an error in the sentence and a different one should be imposed.2 Or, in short, if the sentence is manifestly excessive.3

Background

[2]                  Police   executed   a   search   warrant    at    Mr   Thomas’   Torbay    home 25 September 2019. They found 738 grams of cannabis head packaged in several bags. Police also found digital scales, many unused self-sealing plastic bags, another 34 grams of cannabis head (in two bags) and $12,200 cash.

[3]                  Mr Thomas unsuccessfully challenged the legality of the search. He pleaded guilty to a single charge of possessing cannabis for supply 11 June 2021.

[4]                  Mr Thomas filed an affidavit before sentencing. He described himself as a long-time user of cannabis, in part for pain relief. He said he had “no idea” how much cannabis was in his home and he traded cannabis with friends using “a barter system”. Mr Thomas said the cash was the product of lawful work. The Crown appears to have accepted the explanation; it abandoned a forfeiture application in relation to the cash.

[5]                  Mr Thomas also filed affidavits from others, saying Mr Thomas was of good character. Mr Thomas was aged 60 by the time of sentencing.

[6]                  In July 2010, Mr Thomas was convicted of possessing utensils in relation to methamphetamine. In December the same year, he was twice convicted of possessing cannabis for the purpose of supply. He received a four-month sentence of home detention beginning 9 August 2011.

1      R v Thomas [2022] NZDC 15021.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[7]                  Judge B A Gibson considered the offending fell within band two of R v Terewi.4 He adopted a starting point of two years and four months’ imprisonment. The Judge deducted 15 percent for Mr Thomas’ guilty plea and commuted what would otherwise have been a sentence of 24 months’ imprisonment to 10 months’ home detention and 100 hours’ community work.

The appeal

[8]                  Mr Thomas argues the starting point was too high, guilty plea credit insufficient, and allowance should have been made for good character and time on bail. On his behalf, Mr Stevens contends the appropriate sentence should be community detention and intensive supervision.

Analysis

[9]                  Mr Stevens’ identifies several decisions in which lower starting points for broadly similar offending have been adopted.5 In each, the offending was in band one of Terewi, not band two. As observed, Judge Gibson treated the offending as within band two. Mr Stevens does not argue, at least directly, that classification was wrong. Rather, he contends there was no “significant commerciality” and a lower starting point should, therefore, have been adopted. Mr Stevens offers 18 months as the appropriate figure.

[10]              The parties appear to have been content to approach the question of band placement as one for submission (rather than requiring a disputed facts hearing).6 On this topic, the Judge said:7

The defendant’s counsel submits that some of the cannabis was for his own use. I accept that. The pre-sentence report notes that he has a view of cannabis as being a harmless drug that ought to be legalised in New Zealand. He is perfectly entitled to that view, but it remains a prohibited drug under the Misuse of Drugs Act 1975 and, like everyone else, he is expected to comply with the law and not simply those laws he agrees with.

4      R v Terewi [1999] 3 NZLR 62.

5      Hartley v Police [2014] NZHC  2304,  Parker  v  Police  HC  Wellington  CRI-2007-485-150, 27 February 2008 and R v Dronsfield [2021] NZHC 3042.

6      Sentencing Act 2002, s 24.

7      R v Thomas, above n 1, at [3]–[6].

The defendant has previous convictions for supply of cannabis plant in 2010 for which he was sentenced to four months’ home detention as well as community work and also for methamphetamine utensils that were found in his possession but, these are his only convictions. He is 60 years old and working as a self-employed builder.

He appears to be a regular user of cannabis and, on the last occasion as I have noted, he was sentenced to an electronically-monitored sentence. A sentence of community detention and intensive supervision is recommended which, of course, in the hierarchy of sentencing, are sentences deemed to be less serious than that of home detention.

The outcome, in any event, depends on the starting point. I accept the matter falls, as the Crown submits, within band 2 of R v Terewi, which is still the leading case, and which provides for starting points of imprisonment of two to four years. The Crown has provided various cases where different starting points were adopted and submits that two years eight months, which was the starting point adopted in R v Litt is appropriate and that seems to me reasonably comparable with the starting point I have in mind here but I think I need to recognise, in the starting point, the fact that part of the cannabis would have been for the defendant’s own use and so the starting point I propose to adopt is one of two years and four months imprisonment.

[11]              Where a case sits in terms of band placement is a critical aspect of a sentencing Judge’s function. An appeal Court may take a different view from that at first instance, but only if the lower Court erred. On his own evidence, Mr Thomas deals in cannabis for reward. The amount found was more than 27 times above the presumption.8 Again, many of the cases identified by Mr Stevens involved no commercial element. For these reasons, I am not persuaded the Judge was wrong to place the offending within band two.

[12]              Like Judge Gibson, I consider R v Litt is, overall, the most analogous case.9 Mr Litt possessed cannabis “totalling just over one kilogram”.10 There were the “usual indicia of dealing … snaplock bags, tinfoil and digital scales” and 29 mature cannabis plants.11 However, no cash was found. Heath J adopted a starting point of three years’ imprisonment. Mr Litt’s offending was more serious. He possessed more cannabis, including growing plants.12

8      I place no weight on the cash given the Crown’s abandonment of the forfeiture application.

9      R v Litt HC Hamilton CRI-2011-024-326, 25 August 2011. Police v Lang [2015] NZHC 3107 is somewhat similar. In that case, Collins J observed the starting point of 18 months’ imprisonment was lower than that normally adopted. The Judge remitted the case to the District Court. Lang is therefore not authority in support of an 18-month starting point.

10 R v Litt, above n 9, at [3].

11 At [3]

12 There was no cultivation charge.

[13]              All this suggests the starting point of two years and four months was about right.

[14]              Mr Thomas was charged 30 September 2019; he pleaded guilty 11 June 2021. Mr Stevens contends that despite this delay, the Judge should have given Mr Thomas the full discount of 25 percent. Mr Stevens relies on the fact Mr Thomas also faced receiving charges, and these were ultimately withdrawn.

[15]              Maximum credit for a guilty plea is ordinarily reserved for the situation when a defendant pleads guilty at the first reasonable opportunity. Even then, other factors, such as the strength of the prosecution case, and whether a defendant has benefited from a plea arrangement, are relevant.13 Mr Thomas did not plead guilty at the first reasonable opportunity. Rather, he sought to exclude the evidence against him, in the hope the charge would fail. A similar situation occurred in R v Paki:14

The Judge noted a submission on behalf of the appellant explaining the delay on the basis of a wish to test the legality of the search warrant, and that once all the available information to make that assessment had been made a decision was reached to plead guilty. However, the largest discounts for guilty pleas are those where guilt is immediately acknowledged and not those where guilt exists but accused test matters tactically before acknowledging fault. In the latter case, of course, accused persons are not penalised but they cannot expect the same discounts as if they had owned up at the earliest opportunity.

[16]              Full credit would, therefore, have been wrong in principle. It would also be unfair to those defendants who plead guilty at the first reasonable opportunity.

[17]              The  Judge  made  no  allowance  for  good  character.  That,  contrary  to   Mr Stevens’ submission, is also unremarkable given Mr Thomas’ prior cannabis offending,15 and his acknowledgement of enduring cannabis possession and use.

[18]              This leaves the question of a reduction for bail conditions. Mr Thomas was on bail for nearly three years.16 He was subject to a curfew between 10 pm and 5 am, but no other significant restriction. A small deduction for this feature could have been

13     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

14     R v Paki CA165/05, 5 September 2005 at [9].

15     That offending is now some time ago, but it too involved a controlled drug for supply. Moreover, it was sufficiently serious to attract a sentence of home detention.

16     Sentencing did not occur until 5 August 2022.

made.17 However, the Judge converted a 24-month prison sentence to 10 months’ home detention—a favourable substitution.

[19]For all these reasons, the sentence is not manifestly excessive.

[20]              This leaves one topic. Mr Thomas’ real concern lies not with the sentence, but with its restriction on his ability to work. Mr Thomas operates two businesses: a building business and a firewood business. He ordinarily works long hours. Unsurprisingly, it is a standard condition of home detention a defendant not leave the home.18 However, a probation officer may allow a defendant to leave, including to seek or engage in employment.19 Mr Thomas may raise this issue with his probation officer.20

Result

[21]The appeal is dismissed.

……………………………..

Downs J

17     Kreegher v R [2021] NZCA 22.

18     Sentencing Act 2002, s 80C(2)(b).

19     Section 80C(3)(ii).

20     Xu v Department of Corrections [2019] NZHC 472.