Wright v Police
[2012] NZHC 493
•22 March 2012
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2012-412-2 [2012] NZHC 493
MATTHEW BRUCE WRIGHT
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 9 March 2012
Appearances: J Takas for the appellant
R B Bates for the respondent
Judgment: 22 March 2012
JUDGMENT OF CLIFFOR J
Introduction
[1] The appellant, Matthew Bruce Wright, pleaded guilty in the District Court at Dunedin to charges of possession of cannabis for supply (x 1), possession of other Class C controlled drugs (x 2), possession of a cannabis pipe, unlawful possession of a weapon and of breaches of both community work (x 1) and release conditions (x 2). Mr Wright was sentenced by Judge Doherty on 20 December 2011 to an overall sentence of two years’ imprisonment.
[2] Mr Wright now appeals against that sentence on the basis that it is manifestly excessive.
WRIGHT v POLICE HC DUN CRI-2012-412-2 [22 March 2012]
[3] On 6 August 2011 Mr Wright was observed by the Police apparently driving at speed in Dunedin. Mr Wright was stopped and spoken to. The Police smelt cannabis on Mr Wright. When searched, Mr Wright was found to be in possession of three small plastic bags each containing seven grams of cannabis, and a small quantity of other Class C drugs. A mobile phone was also seized. Mr Wright acknowledged those items belonged to him, but made no further comment.
[4] A subsequent search by the Police of the vehicle Mr Wright was driving revealed a shopping bag with 75 grams of loose cannabis leaf, an electronic set of scales, a roll of tin foil, a cannabis pipe and an old .22 rifle. The rifle, the Police accept, was inoperable. Mr Wright acknowledged responsibility for those items.
[5] Analysis of the mobile phone provided evidence of cannabis dealing.
[6] On 27 May 2011, while subject to release conditions for a previous sentence of imprisonment for supplying cannabis, Mr Wright failed to attend a Tikanga Māori Programme as directed. On 3 June and 21 July 2011 he failed to report to his probation officer as directed, on the former occasion as regards his sentence of community work and on the latter as regards a condition of his release.
The offender
[7] Mr Wright is 33 years old. He has a lengthy criminal and traffic history. He has on three previous occasions been sentenced to imprisonment for possession for supply of cannabis – most recently in September 2010 for six months. He has five convictions for breach of community work orders, for which he received a prison sentence of two months in 2005, and one for failing to answer bail for which he was convicted and discharged. He has one previous conviction for possession of an offensive weapon, not being a firearm.
[8] Having recorded the essential facts of Mr Wright’s offending, the Judge noted the aggravating features of the combination of drug dealing and weapons, and his previous convictions for cannabis supply and breaches of community work orders. The Judge also noted that Mr Wright had, as he described it, one conviction for unlawful possession of a firearm.
[9] The Judge then sentenced Mr Wright by reference to the three types of charges which he faced. The Judge did not separately assess, as the Supreme Court directs,1 the significance of Mr Wright’s guilty pleas as the last step in his sentencing exercise. Rather, he incorporated credit for guilty pleas in the sentences he identified. On that basis he imposed cumulative sentences of:
(a) twelve months' imprisonment for the lead charge of possession of cannabis for supply, with concurrent terms of three months for possession of the other Class C drugs and the cannabis pipe;
(b)six months’ imprisonment on the charge of breach of release conditions with a concurrent sentence of two months’ imprisonment on the charge of breach of community work terms; and
(c) six months’ imprisonment for what the Judge said was Mr Wright’s possession of two weapons, namely a .22 calibre rifle and a wooden baton.
Submissions on appeal
[10] In his written submissions Mr Takas, for Mr Wright, advanced a number of specific matters. He first noted, correctly, that the Judge’s sentencing notes reflected two errors. First, the charge of possession of an offensive weapon, namely a baton, was put before the sentencing Judge when it had in fact earlier been withdrawn by
leave. As Mr Smith accepted that sentence cannot stand and is quashed. Second, in
1 Hessell v R [2010] NZSC 135 at [73]; [2011] 1 NZLR 607.
referring to the aggravating feature of Mr Wright having a previous conviction for unlawful possession of a firearm when that earlier charge was, as noted, for the possession of an offensive weapon other than a firearm. Mr Takas submitted the Judge’s end sentence assessments had been affected by those errors to Mr Wright’s disadvantage. Mr Takas suggested that the Judge had failed to mention any credit given for guilty pleas. The Judge had not, as Mr Takas submitted would have been appropriate, given any credit for the time Mr Wright had spent on EM bail.
[11] Before me Mr Takas accepted that the Judge had mentioned Mr Wright’s guilty pleas, specifically when sentencing on the drug matters. It was Mr Takas’ more general submission that the manner in which the Judge gave credit for the guilty pleas, and the factual errors he had made, had resulted in a sentence that was unsafely high.
[12] For the Police, Mr Smith submitted that each of the components of the sentence, and the sentence overall, was within range. In support of that submission Mr Smith noted that in Barker v Police Miller J had observed that the maximum sentence of 12 months’ imprisonment available where, as here, the offence of possession of cannabis for supply is being sentenced in the summary jurisdiction, is
a jurisdictional limit, not a maximum sentence.2 Thus the Judge should carry out the
sentencing calculation without reference to the summary maximum, and then check that the end sentence does not exceed 12 months. Taking that approach, and with reference to the Terewi bands for cannabis supply offending,3 the 12 months’ sentence could not be challenged. Furthermore, the sentences of six months for breach of community based sentences and possession of an offensive weapon were both within range.
Analysis
[13] I do not think the sentence of 12 months’ imprisonment imposed for
Mr Wright’s cannabis offending can, as an end point, be challenged. Working
backwards, and allowing a full 25 per cent discount for Mr Wright’s guilty plea, the
2 Barker v Police HC Dunedin CRI-2010-412-11, 13 May 2010 at [6].
3 R v Terewi [1999] 3 NZLR 62 (CA).
implicit starting point sentence adopted by the Judge is 16 months. In my view, Mr Wright’s cannabis offending is properly categorised as falling at the bottom end of Terewi category 2. A sentence of two years’ imprisonment would, therefore, be the usual minimum starting point. Thus an implicit starting point of 16 months cannot be challenged.
[14] In my view, two questions are raised by this appeal:
(a) The first is whether the cumulative sentences of six months, implying starting point sentences before consideration of guilty pleas of at least eight months, were manifestly excessive.
(b)The second, if those sentences are themselves manifestly excessive, is whether the overall end sentence can be justified on the basis that the cannabis offending was treated leniently and as such the total sentence is not manifestly excessive.
[15] I address those points in turn.
[16] In sentencing Mr Wright for the firearms and breach charges no reference was made by the Judge to Mr Wright’s guilty pleas. Assuming, as I think necessary for this exercise, that a discount was allowed, then a start point of eight months or higher for both the separate sets of offending is suggested.
[17] As regards the firearms charge, the Judge incorrectly proceeded on the basis that Mr Wright not only faced a charge of unlawful possession of a firearm but also a charge of possession of an offensive weapon, and further that Mr Wright had a previous firearms conviction. I note furthermore that the firearm here was accepted as being inoperable. Six month starting points have been adopted in cases of more serious offending, for example for combined charges of explosives and firearms,4 possession of firearms and ammunition,5 and three charges of unlawful possession of
a firearm.6 Further much lighter sentences have also been given, such as in
4 R v Holt HC Hamilton CRI-2007-419-138, 28 February 2008, Harrison J.
5 R v Davey HC Auckland CRI 2010-090-000833, 7 April 2011.
6 R v Smith HC Christchurch CRI-2011-409-91, 2 December 2011.
R v Sheehan, where Ellis J held that a cumulative sentence of two months home detention was appropriate for a charge of unlawful possession of a firearm alongside charges of cannabis cultivation.7 As such a starting point of eight months is by my assessment, even allowing for the previous offensive weapon conviction, manifestly excessive. In my view a starting point of four months would have been appropriate, reduced to three months to take into account Mr Wright’s guilty pleas.
[18] As regards the breaches of community work and release conditions charges, a starting point of eight months is also in my view manifestly excessive. Whilst Mr Wright has previous convictions for breaches of community work, these occurred over six years ago, for which he was sentenced to two months imprisonment for five breaches. Here there was one breach of community work and two breaches of release conditions. Whilst these breaches are concerning, they occurred towards the end of his release period after substantial compliance for over six months. They did not warrant the six month cumulative sentence.8 A starting point of four months for this offending would appropriately reflect this offending, similarly reduced to three months on account of Mr Wright’s guilty plea.
[19] On that basis, therefore, in taking the same cumulative approach as the Judge, I consider that an end sentence of 18 months would, in my view, have been appropriate before considering one final matter.
[20] Mr Takas for Mr Wright also advanced the appeal on the ground that no allowance was made for the three months that Mr Wright spent on EM bail. Counsel submitted that although there is no requirement that credit be given for such, it is inarguable that EM bail is a restriction on liberty and as such the Judges’ failure to refer to any credit also contributed to the final sentence being manifestly excessive.
[21] It is well established that some allowance may appropriately be given for time spent subject to a restrictive bail regime.9 In assessing the credit to be given an
7 R v Sheehan HC Hamilton CRI-2011-039-151 (where two months home detention was given).
8 In Rota v R [2012] NZCA 49 the Court on appeal reduced cumulative uplifts for unlawfully taking a motor vehicle and three breaches of release conditions from a combined uplift of fifteen months to four months.
9 R v Faisander CA186/00, 12 October 2000; Schuster v R [2011] NZCA 343.
evaluative assessment of all the circumstances is required.10 I am satisfied that some allowance should be made and would have been made had the Judge turned his mind to the issue. While time spent on restrictive bail conditions is not a mandatory mitigating factor, in the absence of countervailing considerations some discount should normally be provided. In this case I consider a reduction of one month is warranted in all the circumstances, taking into account the generous discount already being given for Mr Wright’s guilty pleas. This is to be deducted from the 12 months imposed for the lead charge of possession of cannabis for supply.
[22] The end sentence I therefore consider appropriate is 17 months’ imprisonment. On that basis, the two years’ imprisonment imposed by the Judge is manifestly excessive.
[23] I turn now to the second question, which is whether the end sentence is saved by reference to the proposition that, if the Judge had not been sentencing in the summary jurisdiction, a higher starting point would in my view have been justified for the cannabis offending which, in turn, would have sustained an end sentence of two years overall.
[24] The Judge chose to sentence Mr Wright in the summary jurisdiction. Therefore, the maximum end sentence he could apply for the cannabis offending was one years’ imprisonment.11 Once the District Court has exercised its summary jurisdiction, the High Court is limited on appeal to imposing a sentence which would have normally been available to the District Court Judge.12 As such I am unable to consider that any end sentence of over 12 months would have been appropriate for the cannabis offending when considering the final total sentence imposed. This means that, notwithstanding my view as to what might have been an appropriate sentence if the matter had been considered absent the jurisdictional limit, the end
sentence imposed here cannot be saved by reference to the usual principle Judges
10 R v Tamou [2008] NZCA 88 at [18] and [19]; Keown v R [2010] NZCA 492.
11 Misuse of Drugs Act 1975, s 6(3).
12 Brinkley v Police HC Nelson M87/90, 12 November 1990; Faatape v Police HC Rotorua CRI-
2009-463-73, 30 November 2009.
adopt on appeal, namely it is the end sentence that matters rather than the way in which that sentence was arrived at.13
[25] The appeal is allowed. The sentences imposed in the District Court are quashed. There will be imposed the following sentences, to be served cumulatively:
(a) For the possession of cannabis for supply offence, 11 months’ imprisonment concurrent with the charges of possession of other Class C drugs and the cannabis pipe three months’ imprisonment.
(b) For the offence of unlawful possession of a firearm, three months’
imprisonment.
(c) For each of the breach of release conditions charges, concurrent sentences of three months’ imprisonment, concurrent with the breach of community work, two months’ imprisonment.
[26] Although not as I recall an issue raised by Mr Takas, that allows home detention to be considered. I decline to give leave to apply for home detention. In my view Mr Wright’s numerous previous convictions, including previous breaches of community based sentences and bail conditions, make granting leave inappropriate.
“Clifford J”
Solicitors:
J Takas, P O Box 5321, Dunedin for the appellant.
Crown Solicitor, Dunedin for the respondent ([email protected]).
13 Skipper v R [2011] NZCA 250 at [28]; Ripia v R [2011] NZCA 101 at [15]; Dellaway v R [2010] NZCA 100.
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