Tomars v R
[2013] NZCA 54
•14 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA850/2012 [2013] NZCA 54 |
| BETWEEN CHRISTOPHER MORRIS TOMARS |
| AND THE QUEEN |
| Hearing: 5 March 2013 |
| Court: White, MacKenzie and Mallon JJ |
| Counsel: D R James for Appellant |
| Judgment: 14 March 2013 at 12.00pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
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REASONS OF THE COURT
(Given by MacKenzie J)
The appellant appeals against a sentence of two years three months imprisonment imposed by Heath J in the High Court at Whangarei on 3 December 2012 on nine charges of offering to sell cannabis, five of selling cannabis, and three of possessing cannabis for supply.[1] The District Court had declined jurisdiction following the entry of guilty pleas in that Court.
The offending was detected during the course of a police operation in Northland targeting places at which the police believed cannabis was being sold. The offending occurred in the period between 16 December 2011 and 28 June 2012. The five charges of sale, two of the charges of possession, and two of the charges of offering to sell involved offers or sales of ‘tinnies’ and ounce bags to special duty police officers. The remaining seven charges of offering to sell arose from text messages on the appellant’s cellphone discussing ounce quantities. One charge of possession arose from execution of a search warrant at the appellant’s home. A plastic shopping bag containing a mixture of cannabis leaf and cannabis head material was located, as well as two snap lock bags containing in total approximately one and a half ounces (42 grams) of cannabis head.
[1] R v Tomars [2012] NZHC 3241.
The Judge fixed a starting point of three years. He said:
[8] The first thing I am required to do is to identify the nature of the dealing operation. This was commercial dealing. It was for financial gain. You showed an ability to procure supplies readily. That is then confirmed by your sales in both ounces and tinnies. It suggests a medium size operation.
[9] The starting point I must take is in the range between two and four years imprisonment. Being as generous as I can, I would put that at the midpoint and use a starting point for sentence of three years imprisonment.
The Judge then considered personal factors and made no adjustment to the starting point on that account. Finally, he allowed a credit of 25 per cent to recognise the early guilty pleas. That left an end sentence of two years three months imprisonment. The Judge noted that meant that home detention was not available. He commented that the appellant’s counsel had made out a good case for home detention had it been possible for that to be done.
Mr James for the appellant submits that a sentence of home detention should have been imposed. He advances two alternative bases for the proposition that the sentence of imprisonment otherwise imposed should have been two years or less. First, he submits that the three years starting point was manifestly excessive. Second, he submits that if a starting point of three years would have otherwise been appropriate, the appellant’s personal circumstances justified a lower starting point, or a deduction from the starting point, so as to achieve a sentence, before the guilty plea discount, of not more than two years six months.
We deal first with the starting point. Mr James submits that the three year starting point was beyond the appropriate range for this offending and that the appropriate range was two years three months to two years nine months. He relies upon a number of cases of offenders sentenced by Heath J at or about the same time as the appellant, arising out of the same police operation. Starting points of two years six months, and two years, were adopted in those cases.[2] Mr James also relies on R v Paki.[3]
[2] R v Phillips [2012] NZHC 3255; R v Sauer [2012] NZHC 3262; R v Lyall [2012] NZHC 3245.
[3] R v Paki CA165/05, 5 September 2005.
Mr Marshall for the Crown submits that, for a medium-sized commercial cannabis operation, a starting point at the middle of category 2 in R v Terewi is unassailable.[4] He refers to R v Reardon,[5] R v McLaine,[6] Leonard v R,[7] and Lord v R,[8] as supporting the starting point, and submits that Paki is distinguishable as involving smaller quantities and being characterised as “a relatively low-grade but persistent commercial enterprise”.[9]
[4] R v Terewi [1999] 3 NZLR 62 (CA).
[5] R v Reardon CA459/03, 19 April 2004.
[6] R v McLaine CA355/00, 30 November 2000.
[7] Leonard v R [2012] NZCA 71.
[8] Lord v R [2012] NZCA 276.
[9] R v Paki at [8].
We think that the appellant’s activities are best described as “a relatively low-grade but persistent commercial enterprise” rather than, as the Crown characterises it, “a medium-sized commercial cannabis operation”.
We deal first with the other cases from this operation. As the sentencing Judge in all four cases, Heath J was well placed to make an assessment of the relative scales of the offending of each offender. Of the cases cited, the starting point adopted for the appellant was the highest by six months. A comparison of the sentencing notes suggests that the appellant’s was the most serious of that offending. It extended over the longest period of time and involved the largest number of transactions. We would not differ from the Judge’s assessment of the relative culpability of the appellant in comparison to other offenders netted in this operation.
When the scale of the offending is compared to the other cases relied on, we assess the Judge’s starting point as being at or towards the top of the available range, but not above the available range. It was not manifestly excessive. Another judge might have adopted a lower starting point within the available range. But it is trite law that sentencing involves the exercise of a discretion and that different judges may make different assessments. Provided the starting point adopted by the judge is within range (as we have held it was), it is not sufficient for the appellant to show that another judge might have adopted a lower starting point. We therefore reject the appellant’s first submission.
We turn to the second submission. We have found that Heath J’s starting point was within the available range, with the consequence that the end point was above the point at which home detention is possible. We have also acknowledged that a lower starting point would have been available with the consequence that the end point would be at or below the point for home detention. Mr James submits that, having regard to the principle of sentencing in s 8(g) of the Sentencing Act 2002, that the court must impose the least restrictive outcome appropriate in the circumstances, the Judge should have adopted a starting point which would have led to the availability of home detention. In effect, Mr James submits that the Judge erred in principle in not doing so.
The least restrictive outcome is to be imposed in accordance with the hierarchy of sentences in s 10A. In considering the place of home detention within that hierarchy of sentences, the Court must have regard to s 15A, under which it may impose a sentence of home detention only if it would otherwise sentence the offender to a short term sentence of imprisonment. A sentence should not be artificially tailored to enable an offender to have the benefit of the home detention option.[10] The Judge did not err in principle in first fixing a starting point without having regard to whether the option of home detention would be available.
Mr James also submits that the Judge erred in failing to allow a discount for the appellant’s personal circumstances. He refers to the requirement under s 8(i) to take into account the offender’s personal, family, whanau, community, and cultural background, in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose. He submits that some allowance could have been made in the light of the appellant’s clear record since 2003, the fact that there has been no prior offending under the Misuse of Drugs Act 1975, his family responsibilities and his commitment to them, his indications of remorse, and the availability of employment in a useful trade of stone masonry.
[10] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [35].
The assessment of personal factors is quintessentially an exercise of discretion by the sentencing judge. Heath J took the appellant’s personal circumstances into account. He said:
[10] Mr James, who has probably said everything on your behalf that could be said today, has submitted that your good character should count in your favour. It is clear that you have led a good life up until the time you began this offending, from the time you were last convicted. You are obviously a good craftsman and that is evidenced by the employment that would be available to you were you not to go to jail. The difficulty I have, however, is that the prior convictions necessarily mean that you cannot rely wholly on prior good character. Certainly you have reformed yourself, but that is simply neutral in the assessment I have to make.
We have carefully considered the material available in the pre-sentence report, and in the other material which the appellant has, through his counsel, provided. That material leads us to the conclusion that the Judge has not erred in the exercise of his discretion in making no allowance, upward or downward, for personal circumstances.
Mr James submits that there are helpful signals in the pre-sentence report, a criminal record with unrelated and 10 year old offences, family responsibilities and family support. He submits that it should not be contrary to sentencing policy for a sentence at the lower end of the range to be adopted. That is a submission which counsel could properly make to the sentencing judge. On appeal, however, the question is not whether a lower sentence range would have been available. The question is whether the end sentence was manifestly excessive, or arrived at by reasoning which involves an error in principle. For the reasons we have given, we are satisfied that neither is the case.
The appeal is dismissed.
Solicitors:
Palmer Macauley, Kerikeri for Appellant
Crown Law Office, Wellington for Respondent
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