Walters v Police
[2021] NZHC 63
•3 February 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000154
[2021] NZHC 63
BETWEEN SHANE WILLIAM WALTERS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 February 2020 Appearances:
E Nicol for Appellant
P Brown for Respondent
Judgment:
3 February 2021
JUDGMENT OF GENDALL J
This judgment was delivered by me on 3 February 2021 at 2 p.m. pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
WALTERS v NZ POLICE [2021] NZHC 63 [3 February 2021]
Introduction
[1] The appellant, Mr Walters was charged with, and pleaded guilty to, charges of cultivation of cannabis1 and possession of drug utensils.2 He was sentenced by Judge Couch in the District Court to 90 hours’ community work.3 He appeals this sentence on the ground that it was manifestly excessive and he maintains the penalty should have been a fine.
Facts
[2] On 19 August 2020 Police attended an unrelated incident involving a vehicle on Innes Road, Christchurch. Police spoke to Mr Walters and three other occupants at the address. While speaking with them a strong scent of cannabis was detected.
[3] Police invoked a warrantless search of the property and the occupants for drugs. While searching the property they located a growing tent containing 11 juvenile cannabis plants ranging in size4 and five cannabis seedling plants. Police seized several utensils used for cannabis consumption and what is described as a cannabis grinder.
District Court decision
[4] Mr Walters’ counsel before the District Court submitted a fine was an appropriate penalty. In response to that submission the notes of evidence record that Judge Couch stated:
It won’t be a fine… I think it is beyond the scope of that. It’s certainly towards the lower end of the scale, but we’re dealing with a charge with a maximum penalty of eight years’ imprisonment. Even the lower end of the scale is, in most cases, past a fine.
1 Misuse of Drugs Act 1975, s 9(1).
2 Sections 13(1)(a) and 13(3).
3 Police v Walters [2020] NZDC 24831.
4 Ranging from 680mm to 800mm.
[5] The notes of evidence record the Judge went on to enquire as to whether Mr Walters had the ability to pay a fine. He was then convicted and sentenced as follows:5
[1] Mr Walters, on these two charges you will be convicted. You are sentenced to 90 hours’ community work.
Principles on appeal
[6] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8
Submissions
Appellant’s submissions
[7] Ms Nicol, on behalf of Mr Walters, submits Judge Couch failed to adequately consider whether the offending could have been dealt with by way of a fine. She notes that following the warrantless search, Mr Walters told police the cannabis was for personal use only. In her submission, this suggestion was accepted by police.
[8] In mitigation, Ms Nicol submits Mr Walters was entitled to a full guilty plea discount. She notes Mr Walters has a conviction for like offending which is of some vintage, being about 30 years old. He has not been before the courts in the past six years.
5 Police v Walters, above n 3.
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 Ripia v R [2011] NZCA 101 at [15].
[9] She says Mr Walters has no outstanding court fines and would be able to pay a fine imposed as part of an attachment order to his jobseekers benefit.
[10] Ms Nicol goes on to refer the Court to s 13 of the Sentencing Act which provides that where a Court is lawfully entitled to impose a fine, there is a presumption in favour of that sentence unless the Court is satisfied that the purposes for which the sentence is being imposed cannot be achieved by imposing a fine, or that any other principles of sentencing make a fine inappropriate. She also notes, quite properly, that the court is required to impose the least restrictive sentence outcome that is appropriate in the circumstances.9
[11] Helpfully, Ms Nicol refers to case authorities in support of her submission that the least restrictive outcome in the circumstances here may be a fine. These cases are addressed in my analysis.
Respondent’s submissions
[12] Ms Brown, for the respondent, contends that Judge Couch adequately considered whether a fine was an appropriate response and exercised his sentencing discretion to impose a sentence of community work instead. In Ms Brown’s submission this sentence was within range and cannot be described as manifestly excessive.
[13] Before me, Ms Brown made a number of acknowledgements. First, she accepted the offending falls into category 1 of R v Terewi.10 Secondly, that the cannabis here was for personal use. Thirdly, that Mr Walters’ earlier conviction for cannabis is significantly aged (1988) and did not warrant an uplift, and lastly that he entered a guilty plea here at the earliest opportunity.
[14] Ms Brown argued however that, even if a fine would be appropriate in accordance with s 13 of the Sentencing Act, the court may decide not to impose one if satisfied that the offender does not have the means to pay it.11
9 Sentencing Act 2002, s 8(g).
10 R v Terewi [1999] 3 NZLR 62 (CA).
11 Sentencing Act, s 14.
[15] As I have noted, Ms Nicol had referred to a number of authorities involving what were said to be similar levels of offending. In response, Ms Brown submitted that, while these were finely balanced in many ways, the authorities referred to could be distinguished from the present circumstances.
Analysis
[16] The Court is to be guided by the purposes and principles contained in the Sentencing Act. The sentence imposed must denounce Mr Walters conduct,12 and deter him and others from committing the same or similar offences.13 The Court must take into account the gravity of the offending, including the degree of culpability,14 the seriousness of the type of offence in comparison to like offending15 and impose the least restrictive outcome that is appropriate in the circumstances.16
[17] It is common ground that Mr Walters’ offending falls within category 1 of the guideline judgment of R v Terewi:17
Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited.
[18] In Marshall v Police, police located 11 cannabis plants at the appellants address along with grow tents, lights, extractor fans and ducting.18 A sentence of 100 hours’ community work was imposed. Mander J was cognisant of the discretion available to the sentencing court. However, in light of comparable authorities and the guideline in Terewi, he found the sentence of community work was not the least restrictive outcome appropriate in the circumstances. The sentence of community work was quashed and a fine of $2,000 imposed.19
12 Sentencing Act, s 7(1)(e).
13 Section 7(1)(f).
14 Section 8(a).
15 Section 8(b).
16 Section 8(g).
17 R v Terewi, above n 10, at [4].
18 Marshall v Police [2019] NZHC 2304.
19 At [18].
[19] In Riches v Police, six mature cannabis plants and two smaller plants were located in a garage that was fitted with lamps, heating and ventilation.20 Nation J commented:21
I agree with Faire J that a fine is ordinarily capable of achieving the necessary degree of deterrence and denunciation in a situation where a defendant is charged with cultivating plants for his own personal use. The imposition of a fine at the appropriate level means his cannabis use has been at a real cost. In addition, the fact of conviction represents a significant penalty itself. Conviction for a cannabis-related offence may have continuing consequences with regard to international travel and all the situations such as arranging insurance or seeking employment where disclosure of criminal convictions may be required.
[20] The sentence of four months’ community detention was quashed and the appellant fined $1,700 and sentenced to 12 months’ supervision.22
[21] In Parker v Police 10 mature cannabis plants and 15 seedlings were located along with 625 g dried cannabis plant material.23 On appeal, Mallon J noted the sophisticated nature of the cultivation was consistent with the appellants heavy daily use of the drug.24 The appellant was in paid employment and much detail had been given as to his ability to pay a fine, factors which clearly distinguish this case from the present. The sentence of 150 hours of community work was quashed and a fine of
$2,000 imposed.
Discussion
[22] R v Terewi was decided prior to the Sentencing Act. The Act contains a statutory presumption in favour of a fine, stating a fine must be imposed as the appropriate sentence unless the court is satisfied that the purpose for which the fine is being imposed cannot be achieved, or the principles of sentencing make a fine inappropriate.
[23] Mr Walters admitted to police that the cannabis was for his personal use only. There was no evidence that the plants located were part of a commercial operation. In
20 Riches v Police [2017] NZHC 2035.
21 At [28], referring to the decision of Faire J in Leaupepe v Police [2016] NZHC 76.
22 At [39].
23 Parker v Police HC Wellington CRI-2007-485-150, 27 February 2008.
24 At [13].
my view, and consistent with other decisions of this Court, 11 juvenile plants and five seedling plants constitutes a small cannabis grow.25
[24] Mr Walters is entitled to the benefit of a full guilty plea discount for his early guilty pleas. His criminal history records only one conviction for similar offending, from 1988. He has several convictions for driving with excess breath alcohol, all of some vintage. Mr Walters has not been before the court for over six years.
[25] The notes of evidence record the District Court Judge considered a fine would be inadequate for the seriousness of the offending. His Honour noted that, while the offending was “towards the lower end of the scale”, the penalty would be more than a fine. The Judge then went on to enquire as to Mr Walters ability to pay a fine. The notes of evidence record the following discussion:
Q. Well, does Mr Walters have savings that he can pay a fine immediately?
A. He does not have any outstanding –
Q. He is shaking his head.
A. He does not have any outstanding court fines. He does not have any savings. However, he is currently on the Jobseeker’s benefit. He tells me he is a chef by trade and he hopes to obtain employment over the summer hospitality season.
Q. Well, he should be able to get a decent job. Well, he’s got time on his hands at the moment.
[26]Section 14 of the Sentencing Act provides:
(1) Even if it would be appropriate in accordance with section 13 to impose a fine, a court may nevertheless decide not to impose a fine if it is satisfied that the offender does not or will not have the means to pay it.
[27] The discussion above shows Judge Couch sought clarification on Mr Walters’ ability to pay a fine. Having determined that Mr Walters did not have a job and was on a benefit, it appears the Judge concluded that Mr Walters, therefore, did not have the means to pay a fine.
25 See Blandford v Police [2019] NZHC 3112 at [16].
[28] Having considered the comparable cases and the guideline authority R v Terewi,26 I am satisfied that a fine would have been an adequate sentence in response to the offending. This penalty is the least restrictive sentence available and achieves the purposes of denouncing the conduct and deterring others from committing similar offending.
[29] I am not satisfied that the District Court Judge adequately considered Mr Walters inability to pay a fine, pursuant to s 14 of the Sentencing Act. The notes of evidence reveal that the Judge was informed that Mr Walters had no outstanding fines, no savings and no employment. However, he was currently on a benefit and hoped to gain employment in the summer as a chef.
[30] The inability to pay a fine must be properly established. In this case, the evidence was that Mr Walters had a jobseeker benefit. If a court is uncertain about an offender’s ability to pay a fine, the court may direct that the offender make a declaration as to their financial capacity in accordance with s 42 of the Act.27 This did not occur here. Alternatively, the court may impose a fine without further inquiry if, in all the circumstances the court considers that a declaration is unnecessary.28
[31] Here, Ms Nicol states that Mr Walters has instructed he can pay a fine by way of instalment. And, in my view, there was material available to establish that Mr Walters who was receiving a Jobseekers benefit and was wanting to obtain employment could pay a fine by way of instalments rather than in one sum immediately through savings.
[32] Accordingly, I find the Judge erred and the end sentence was manifestly excessive.
Conclusion
[33]The appeal is allowed.
26 R v Terewi, above n 10.
27 Sentencing Act, s 41. See also, s 42.
28 Section 41(3)(b).
[34]The sentence of 90 hours’ community work is quashed. In its place, a fine of
$1,700 is imposed. If Mr Walters is unable to pay the fine in full immediately it is to be paid by instalments of $20 per week (reviewable on application to Corrections).
...................................................
Gendall J
Solicitors:
Public Defence Service, Christchurch Raymond Donnelly & Co, Christchurch
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