Walsh v Police
[2014] NZHC 2365
•26 September 2014
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2014-442-16 [2014] NZHC 2365
BETWEEN MICHAEL PATRICK WALSH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 23 September 2014
(Heard at Wellington by AVL)
Appearances:
A J Heward for appellant
M A O'Donoghue for respondentJudgment:
26 September 2014
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Michael Walsh, pleaded guilty to one charge of possession of cannabis for supply contrary to s 6 of the Misuse of Drugs Act 1975 and was sentenced by Judge Zohrab to eight months’ imprisonment.1
[2] Mr Walsh now appeals against his sentence on the grounds that the Judge erred by:
(a) not taking s 8(g) of the Sentencing Act 2002 into account when sentencing; and
(b)exhibiting predetermination in sentencing by placing undue weight on a final warning given to Mr Walsh.
[3] Mr Walsh says his sentence should be one of home detention.
1 Police v Walsh DC Nelson CRI-2014-042-001064, 5 August 2014.
Facts
[4] At around 11.50 pm on 17 May 2014 Mr Walsh was driving a vehicle on the Moutere Highway in Motueka. Police stopped the vehicle and, having done so, noticed a smell of cannabis coming from the vehicle. Police searched the vehicle and found a bag of cannabis in the centre console along with 20 zip lock plastic bags and another bag of cannabis in the boot along with a set of digital scales. In total 56 grams of cannabis head material was found.
[5] At the time Mr Walsh declined to comment to the police.
The challenged sentencing decision
[6] In sentencing Mr Walsh, the Judge referred first to the report from Community Probation. That report recorded that Mr Walsh said the cannabis was not his. Given Mr Walsh’s guilty plea, however, the Judge proceeded on the basis that Mr Walsh was guilty of the offending. Mr Walsh does not challenge his conviction.
[7] The Judge noted the relatively positive lifestyle that Mr Walsh had been leading, as recorded in that report. Mr Walsh is in a stable relationship with his long- term partner. They are expecting a child together in November and he has been in fulltime employment as a forestry worker for some time.
[8] In terms of the appropriate starting point, the Judge noted Mr Walsh’s 2012 convictions relating to 13 charges of selling or supplying cannabis, possessing cannabis and possessing needles and also assault on police and obstructing police. On that occasion Mr Walsh had been sentenced by Judge Zohrab to supervision and community work. He had also been given a “final warning” by the Judge.
[9] Judge Zohrab fixed a starting point of imprisonment on the basis that this was serious offending and Mr Walsh had a history of offending in a similar way. The Judge observed that:2
I am not going to involve any double counting, because ordinarily I would not take a start point of a prison sentence without someone’s prior history of commercial offending. I am not bound by the final warning, but it is, in my view, significant that you have been offered help and assistance and here you are, which, [through] your own plea of guilty, is an acceptance of possession of cannabis for the purposes of sale or supply and the commercial aspect is clear from the surrounding circumstances.
[10] The dealing was not however highly commercial, and there was no obvious evidence of a high living style, so a starting point of 12 months’ imprisonment was taken.
[11] Mr Walsh was then given credit for his guilty plea and personal circumstances which took his sentence to eight months’ imprisonment.
[12] Judge Zohrab then considered whether home detention or community detention were appropriate, but concluded they were not as:3
They do not send out the right message to people who are prepared to deal in cannabis commercially. You have had a clear warning shot across the bow and have taken no notice of that, so you will be sentenced to prison for eight months, with standard release conditions.
Case on appeal
Mr Walsh
[13] Mr Heward noted that the Judge had referred to that final warning five times in his sentencing notes. Mr Heward submitted that the remarks of the Judge, set out at [12], clearly showed that it was the fact that Mr Walsh had received that final warning that had resulted in him receiving a sentence of imprisonment. Mr Heward noted that so-called “final warnings” had no statutory basis, and are not considered to be part of the permanent record of the Court, as reflected in cl 7.2 of the Criminal Procedure Rules 2012. Mr Heward noted Court of Appeal authority recognising that such warnings have no statutory basis, and that it is inappropriate for a sentencing Judge to allow the existence of such a warning to lead to the imposition of an otherwise inappropriate sentence.
[14] Here, the submission is that the final warning given earlier by the Judge caused the Judge to err and to place insufficient weight on the need to impose the least restrictive sentence.
[15] Mr Heward argues that Mr Walsh was given six months supervision and 300 hours of community work with a note of final warning for his earlier offending on
9 February 2011. The next step in the hierarchy of sentences would be to consider community or home detention. This was bypassed and imprisonment imposed instead of community detention as recommended by the probation report due to the final warning Mr Walsh was given.
Respondent
[16] For the police, Mr O’Donoghue submitted that the Judge’s references to the final warning he had given Mr Walsh reflected the fact that Mr Walsh had offended previously, and had on that occasion been given a sentence of supervision and community detention. It was the fact of the previous offending, and that sentence, that had influenced the Judge to conclude that here prison was the appropriate sentence. This was not an instance where the existence of a warning had led to the imposition of an otherwise inappropriate sentence.
Analysis
[17] Section 250 of the Criminal Procedure Act governs the grounds on which an appellate court can intervene with a sentence. It states:4
The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction;
and
(b) a different sentence should be imposed.
Acceptable grounds for intervention by the first appeal court include: (a) the sentence was manifestly excessive or lenient;
(b) the sentence was inappropriate in a particular case;
(c) the sentence involved an error of law or principle (eg, failing to apply or wrongly applying a statutory factor, or taking into account an irrelevant consideration);
(d) relevant facts before the sentencing court were incorrect or incorrectly assessed;
[18] This codifies the approach taken by appeal courts before the enactment of the Criminal Procedure Act by providing that the “error principle” is the basis for allowing an appeal against sentence.5
[19] In my view, Judge Zohrab has made no identifiable error when sentencing.
[20] The Judge gave the principle in s 8(g), that the least restrictive outcome that is appropriate should be imposed, adequate consideration. Mr Walsh had a history of commercial cannabis offending. He had not been deterred by a previous sentence or by a warning as to the likely consequences of his continued offending. In those circumstances, it was open to the Judge to conclude, as he did, that the adoption of a term of imprisonment as a starting point was necessary. Contrary to Mr Heward’s submission, there is no principle of sentencing that an offender should not receive a sentence at a particular point in the hierarchy before sentences below it in the
hierarchy have been tried.6
[21] In reaching this starting point, and further in concluding that a sentence of home detention or community detention was inadequate, the Judge did not place undue weight on the final warning given to Mr Walsh. Mr Heward cited H(CA680/2011) v R and R v Downey for the uncontroversial proposition that a
sentencing judge is not bound by a final warning.7 In H(CA680/2011) v R the Court
of Appeal observed in reliance on Downey that :
[40] …… it is common practice in the District Court, and sometimes in the High Court for judges to warn an offender about the likely outcome of repeat offending. It is well-established that a final warning of the nature given in this case does not bind subsequent sentences or affect the obligation to impose the appropriate sentence on the facts of the further offending (footnote omitted).
5 Vae v Police [2013] NZHC 2664 at [28].
6 Ngaata v Police HC Wellington CRI-2010-485-73, 27 August 2010.
7 H(CA680/2011) v R [2012] NZCA 198; R v Downey CA 117/84, 10 August 1984.
[22] The Judge was alert to this principle and expressly observed at [9] of his sentencing notes that “I am not bound by the final warning”. It was, however, appropriate for the Judge to consider Mr Walsh’s previous record and his response to previous attempts to deter him from further offending in considering whether a sentence of home detention or community detention would be adequate. This is
what the Judge was doing at paragraph [12] of his sentencing notes.8
Outcome
[23] There was no error in the Judge’s assessment that a term of imprisonment
was the appropriate sentence. Mr Walsh’s appeal is therefore dismissed.
“Clifford J”
Solicitors:
City Legal, Nelson
Crown Solicitor, Nelson
8 See [12] above.
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