Werehi v Police
[2013] NZHC 2029
•12 August 2013
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2013-443-023 [2013] NZHC 2029
BETWEEN KERENAPUTEHAU WEREHI Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 12 August 2013
Counsel: R Rai for Appellant
SA Law for Respondent
Judgment: 12 August 2013
JUDGMENT OF BREWER J
Solicitors: Till Henderson (Stratford) for Appellant
C&M Legal (New Plymouth) for Respondent
WEREHI v POLICE [2013] NZHC 2029 [12 August 2013]
Introduction
[1] The appellant appeals her sentence of 18 months’ imprisonment handed down against her by Judge AC Roberts in the District Court at Hawera on 28 May 2013. The sentence was imposed as a response to the appellant’s plea of guilty on a charge of cultivating cannabis. Mr Rai for the appellant advances the appeal on two grounds. The first is that the learned District Court Judge erred in setting a start point of two years’ imprisonment. The second is that the learned District Court Judge erred in failing to exercise his discretion to commute the sentence to one of home detention.
The facts
[2] The summary of facts records that on 4 March 2013 the Police executed a search warrant on the appellant’s home address in Patea. In the main dwelling on the property were found two rooms outfitted for the growing of cannabis. The rooms were constructed within the dwelling and were lined with plastic. Each had indoor growing lamps and a fan ventilation system. Electricity had been diverted to power the growing systems.
[3] There were approximately 70 cannabis plants growing in these rooms. The plants were of varying heights and levels of maturity. Located in the kitchen area of the dwelling were a further 31 cannabis seedlings.
[4] The appellant told the Police initially that the cannabis was hers. Later she explained that it was being grown by a friend with her permission. She was unwilling to name the friend. However, the sentencing proceeded on the basis that the appellant was not the principal offender. Instead, she was a party to what was clearly a commercial cannabis growing operation. She accepted that she would obtain financial reward for her part in the venture.
[5] The value of the cannabis found by the Police, had it come to maturation, would have been perhaps $100,000.
The pre-sentence report
[6] The pre-sentence report recorded that the appellant is a single person aged
36 years with no dependents. She has a record of criminal offending but has no convictions relating to drugs. Her offending is largely related to driving, including two drink driving convictions. She has never before been imprisoned.
[7] The report advises that the appellant was only a social user of cannabis and has abstained since her offending was discovered. It was said that she:
... demonstrated remorse as she considered the possible consequences of her offending. She described being in financial difficulties and the opportunity presented itself to allow her home to be used to produce cannabis in exchange for financial assistance.
[8] The report goes on to say, and Mr Rai emphasises in his submissions, that the appellant is willing to engage in alcohol or drug counselling. At the time of the offending, the appellant was a sickness beneficiary and budget advice is recommended in the report.
[9] The report identified the appellant’s offending-related factors as her lifestyle, her friends and associates, her attitudes and her drug use. She was assessed as being at medium risk of re-offending.
The law
[10] An appeal against sentence is an appeal de novo. That does not mean that I sentence afresh. It means that I have to consider for myself the factors that go to sentencing and, although I can be guided by the decision of the District Court Judge, I am not to give his reasoning any particular deference.
[11] The situation is different when it comes to the question of whether home detention should have been imposed. The imposition of a sentence of home detention is the exercise of a discretion. That does not provide an opportunity to revisit or review the merits on appeal. The question is whether the Judge erred in exercising his sentencing discretion. That is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?
The starting point
[12] The District Court Judge arrived at his starting point by reference to the tariff decision of the Court of Appeal in R v Terewi.[1] He identified the case as one falling within category 2 of the bands identified in that case. That band is appropriate to offending containing a commercial element.
[1] R v Terewi [1999] 3 NZLR 62 (CA).
[13] Mr Rai’s principal submission on this point is that because the appellant was sentenced on the basis that she was a secondary participant in the cannabis growing operation, the Judge should have taken the opportunity to reduce the start point below two years.
[14] Judge Roberts, in his sentencing notes, said on this issue:[2]
[2] R v Werehi DC Hawera CRI-2013-021-000158, 28 May 2013, at [15].
I do not consider there is any available argument to bring the start point below the two year baseline. I accept that for the moment, no commercial activity had apparently taken place but there was, at the very least, an expectation of some considerable return and reward. The sentencing principles too of denunciation and deterrence must be emphasised.
[15] In my view, the District Court Judge was correct in holding that there was no available argument to bring the start point below the two year baseline. This was clearly a commercial cannabis growing operation. Had it been the appellant’s cannabis growing operation alone then a start point greater than two years’ imprisonment would have been called for. The District Court Judge recognised that she was not the principal offender, however, but she was still motivated by the prospect of commercial reward and so he was right in putting her culpability at the lowest end of the category 2 range.
[16] I do not accept this ground of appeal.
Home detention
[17] Mr Rai’s submission principally is that the District Court Judge failed to give
proper weight to the appellant’s personal circumstances. Mr Rai emphasised that the
appellant has no relevant previous convictions. She has not previously been
convicted of any drug offences and she has not previously been sentenced to a term of imprisonment. Therefore, she has never been given the opportunity to reform.
[18] Mr Rai submits that the appellant demonstrated remorse and indicated a willingness to receive drug and alcohol counselling. In Mr Rai’s submission, the principles of deterrence and denunciation were over-emphasised by the District Court Judge. In accordance with the analysis of the Court of Appeal in Manikpersadh,[3] he should have considered imposing the least restrictive sentence appropriate in the circumstances so that the appellant would be given a chance to be rehabilitated and so that her reintegration in the community could best be facilitated.
[3] Manikpersadh v R [2011] NZCA 452.
[19] Mr Rai also addressed the District Court Judge’s concern that the home detention address nominated was the address at which the offending occurred. Mr Rai made a good point in this regard. The appellant resides in Patea. That is a small town. It does not really matter where in that town she lives. Her associates will be the same; everyone will know where she lives; whether she is in the house at which the offending occurred or whether she is a few blocks away is immaterial when it comes to assessing the risk of reoffending. In point of fact, there is now another address available in Patea. It is the address of a friend. Mr Rai’s submission is that this is really an academic point, and I accept that submission. In these circumstances, the point is not whether the home detention address would be the address at which the offending occurred but whether home detention to any address in this small community would be appropriate.
[20] The District Court Judge in his sentencing notes identified the matters in the pre-sentence report to which I have earlier referred. He did say that the Police have concerns about the people who gravitate to the appellant’s address in Patea. He said it is obviously an address familiar to cannabis users. He noted that the pre-sentence report concludes that the appellant will struggle to abstain from cannabis and that she
acknowledged she was easily led.
[21] In refusing to commute the sentence of imprisonment to one of home detention, the District Court Judge gave his reasons as these:[4]
[4] R v Werehi, above n 2, at [16].
(1) This offending was serious. It was cyclic. There were grow areas established within the house, power had been diverted.
(2) It was an activity you chose to conduct or have conducted at your home. In itself, that may not be a barrier but in the circumstances here, it is problematic. The report writer details concerns that you will be unable to maintain abstinence.
(3) The police concerns attach to known drug abusers who gravitate to your address. There is too the suggestion in the report that your disclosures were not entirely frank.
[22] I cannot say that the Judge erred in refusing to exercise his discretion to commute the sentence of imprisonment to one of home detention.
[23] I accept the validity of Mr Rai’s submissions on the need for deterrence, accountability and denunciation not over-powering without due consideration the need to impose the least restrictive sentence and to take into account the interests of rehabilitation and reintegration. However, it seems to me that the District Court Judge did not err in this way. Really, what the District Court Judge did was reach a conclusion that the appellant is not a suitable candidate for home detention.
[24] First, the Judge did not emphasise the remorse that it was said that the appellant had demonstrated. He was right not to do so. As the Supreme Court in Hessell said, remorse is more than the expression of words.[5] In this case, there is nothing even in the words to demonstrate that the appellant has an insight into her offending and recognises the harm that it has for the community.
[5] Hessell v R [2011] 1 NZLR 607; (2010) 24 CRNZ 966.
[25] Second, the District Court Judge recognised that the appellant’s motivation for this offending was a commercial one. Her use of cannabis is described as being social only. Her abstention demonstrates that personal drug use is not a motivating factor for this offending. Drug and alcohol counselling aimed at reducing the prospect of offending is not a significant factor in the background to which the
District Court Judge was required to have regard.
[26] The appellant is an adult. At the age of 36 her patterns in life are well established. The offending-related factors identified in the pre-sentence report make this clear. Overall, and as Mr Rai accepts, commuting the appellant’s sentence to one of home detention, regardless of whether it was to the address at which the offending occurred or to an alternative address in Patea, would do no more than put her back into the situation which she was in when she entered into the offending. She would have the same associates. They would continue to come to her house. There is nothing in the pre-sentence report that would indicate some sea change in her attitudes which would assist with rehabilitation and reintegration.
[27] In short, this was deliberate and serious offending carried out for a commercial purpose. There were no factors which were overlooked by the District Court Judge or given a wrong emphasis that would lead me to conclude that he had exercised his discretion regarding home detention wrongly. The appeal is
accordingly dismissed.
Brewer J