Wallace v Police

[2016] NZHC 2659

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000336 [2016] NZHC 2659

BETWEEN

ALEXANDER IAN WALLACE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 November 2016
Counsel:	M J English for Appellant HDL Steele for Respondent
Judgment:	7 November 2016

ORAL JUDGMENT OF DOWNS J

Solicitors:

Public Defence Service, Auckland.

Meredith Connell, Auckland.

WALLACE v POLICE [2016] NZHC 2659 [7 November 2016]

The appeal

[1]      This  is  an  appeal  against  sentence.    On  5  October  2016  Judge  Glubb sentenced the appellant to a term of 12 months’ imprisonment in relation to a charge of permitting premises to be used for the commission of an offence contrary to the Misuse of Drugs Act 1975.1

Background

[2]      The  facts  are  blessedly  simple.    On  14  June  2015  Police  went  to  the appellant’s home where he lived with his two teenage sons.  Their precise age is not before me but I understand both were in their “mid teens”.  Police found cannabis throughout the home.   In one bedroom, Police found seven large cannabis plants growing hydroponically in a wardrobe equipped with lamps, fans and some form of ventilation.  In the same room, a further 35 small cannabis plants were growing.

[3]     In a second bedroom, Police found two large cannabis plants growing hydroponically in a similarly modified wardrobe.  In the laundry there were 40 small cannabis  plants  growing  in  a  clear  container,  and  in  the  kitchen,  Police  found cannabis plant off-shoot material (which I understand to be of low value) weighing approximately 550 grams.

[4]      One of the appellant’s sons said the cannabis was his.   The appellant said nothing to countermand that proposition.

[5]      The appellant was then 42 years old.   In March 2014 he was convicted of possessing cannabis for the purpose of supply.  He was sentenced to a term of six months’ community detention and 15 months’ intensive supervision.  In May 2013 the appellant was convicted of cultivating cannabis.   He was sentenced to four months’ community  detention,  12  months’ intensive  supervision  and  100  hours community work.  The appellant has four other convictions for low-level cannabis

offending between 1991 and 2002.

1      Police v Wallace [2016] NZDC 19735.

[6]      The appellant entered a plea of guilty on the morning of trial.  The charge, until then, had alleged actual cultivation on his part.

[7]      Judge  Glubb  adopted  a  starting  point  of  12  months’  imprisonment  by reference to R v Findley.2   He uplifted that starting point by three months in light of the appellant’s past, so as to give rise to an adjusted starting point of 15 months’ imprisonment.  The Judge then discounted the sentence by 15 per cent in light of the appellant’s guilty plea.

[8]      The Judge declined to commute the sentence to home detention.  The Judge was troubled by the fact the offending was committed within a home, and considered the sentencing imperative of deterrence paramount.

The appellant’s case

[9]      The appellant alleges error of a three-fold nature.  First, the starting point was too high; second, the discount for the guilty plea was inadequate; and third, the Judge erred in declining home detention.

Analysis

[10]     In relation to the starting point, if the appellant faced sentence on a charge of cultivating cannabis this would fall at the bottom end of band two of R v Terewi.3

That  band  establishes  starting  points  of  between  two  years  and  four  years’

imprisonment for lower level commercial offending.

[11]     In reaching this conclusion, I reject Mr English’s submission there was no element whatsoever of commerciality in this case.   It is clear there is no evidence cannabis had been sold from the address.  It is equally clear there is no evidence that that was about to occur.  However, a level of commerciality can be inferred—as the Judge appears to have approached the matter—by reference to the number of plants found at the address, their hydroponic cultivation and (admittedly low-level) modifications to the premises.

[12]     The most significant feature in this constellation is the number of plants. True, most were small—but there were too many for personal use.  That appears to have been how the Judge approached matters at first instance, and I discern no error on his part.

[13]     In Findley the primary defendant in that case was sentenced on two counts of cultivation of cannabis.  The first related to an address in Tokoroa, and the second to an address in Hamilton.  In Hamilton the Police found 59 cannabis plants growing in two rooms involving a false wall.  The plants were at various stages of maturity, and at least two were large.  Numerous items associated with cultivation were found, and cultivation had occurred over four months.  There was evidence of commercial gain. Ms Findley was convicted of one count of permitting her premises to be used, which related to the Hamilton address.

[14]   I accept Mr English’s submission Findley involved a greater level of commerciality.   The evidence supports that conclusion.   However, in this case the appellant was in a position to determine what happened at the address, and by doing nothing  in  relation  to  the  cultivation  of  cannabis,  he  at  least  sanctioned  what occurred.  This is a troubling feature because the necessary implication is that one or both sons were responsible for cultivating the cannabis, and as observed, they were teenagers.  In these circumstances, the distinction between permitting premises to be used for the cultivation of cannabis, and cultivating cannabis, strikes me as rather thin.  Again, the appellant was the parent.  His stance both enabled and sanctioned what his son or sons were doing.

[15]     In terms of discount for guilty pleas, it is clear from the Supreme Court’s decision in Hessell v R that the amount of discount, if any, turns on a number of elements including the timing of the plea, the strength of the prosecution case, and whether the defendant was the beneficiary of a plea arrangement.4    As to the last aspect, Hessell observes:5

Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted.   To give the

same percentage credit invariably for an early guilty plea in sentencing without  regard  to  the  circumstances  can  amount  to  giving  a  double benefit.     For  example  if  the  Crown  agrees  to  accept  a  plea  to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself.  If the full credit for an early plea is then also given, the sentence may not properly reflect the offending.  The only way in which the many variable circumstances of individual  cases  which  are  relevant  to  a  guilty plea  can  properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.

[16]     On any view, the plea in this case was late.   It is correct, as Mr English observes, that only at the morning of trial did the Police agree to accept a guilty plea for a charge of permitting premises rather than cultivation.  But as I have observed, the  distinction  between  the  two  on  these  facts  is  fine,  they were  the  only two offences that were ever in issue, and conviction in relation to either was almost inevitable.  Some of the items were in plain view when Police attended, and as the adult at the address, the appellant must have known what was occurring.  Against this background I am not satisfied the Judge erred in relation to the level of discount he afforded.

[17]     The remaining issue concerns whether the Judge committed reversible error in declining to impose a sentence of home detention.  The test in these circumstances is encapsulated in Manikpersadh v R  in which the Court of Appeal said:6

… the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.

[18]     Mr English submitted the Judge placed undue weight upon the appellant’s criminal history, and inadequate regard upon the fact the appellant had not yet been sentenced to a term of home detention.  So, in Mr English’s submission, that should

have been, to use my phrase, the Judge’s “first port of call”.

6      Manikpersadh v R [2011] NZCA 452 at [12]

[19]     I do not accept the Judge erred.   He was entitled to have regard to the appellant’s history, which I have described earlier; to the fact the offending occurred within the home; and to regard this as a serious example of its kind—for reasons I have already set out.  In any event, home detention is not an experimental sentence.

[20]     For completeness, offending of this nature is not a victim-less crime.  While cannabis is a drug of lesser seriousness than others, it is still a prohibited substance, and on the authority of Parliament, for good reason.  It is also the experience of this Court that cannabis and  young people can be a most unhealthy mix.   That the appellant’s sons were exposed to these circumstances, or indeed encouraged to commit offending of this nature, is as I have said, a troubling aspect of this case.

[21]     The appeal is dismissed.

……………………………..

Downs J