Wythe v Police

[2013] NZHC 2031

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-024 [2013] NZHC 2031

BETWEEN  ANTHONY THOMAS JOHN WYTHE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   12 August 2013

Counsel:                  PJ Mooney for Appellant

SA Law for Respondent

Judgment:                12 August 2013

JUDGMENT OF BREWER J

Solicitors:               Mooney & Webb (New Plymouth) for Appellant

C&M Legal (New Plymouth) for Respondent

WYTHE v POLICE [2013] NZHC 2031 [12 August 2013]

Introduction

[1]      On 2 May 2013 in the District Court at New Plymouth, Judge AC Roberts sentenced the appellant to one year and nine months’ imprisonment.  That sentence was handed down in response to pleas of guilty to a charge of receiving stolen property and cannabis related charges, including cultivating cannabis and possession of cannabis for supply.  It was this last offence which the District Court Judge took as the lead offence for the purposes of sentencing.

[2]      The appeal I have to consider is not against the sentence of imprisonment per se.  It is against the refusal by the District Court Judge to commute the sentence to one of home detention.   The gravamen of the appeal is that the District Court Judge misdirected himself in taking it that the address sought for home detention was the address at which the offending occurred.   In fact, and this is accepted by the respondent, the address put forward was the address of the appellant’s mother-in-law. I note that both addresses are in the same suburb in New Plymouth and this might have given rise to the District Court Judge’s confusion.

The law

[3]      An appeal against a refusal to commute a sentence of imprisonment to one of home detention is an appeal against the exercise of a discretion.  That means that it is not an opportunity to review and argue again the merits of the decision.  The appeal Judge’s attention must be directed to whether the sentencing Judge took into account irrelevant matters, failed to take into account relevant matters, gave inappropriate weight to factors or was plainly wrong.

[4]      In this case, there is no contest that the District Court Judge took into account an irrelevant factor (his mistaken view that the home detention address was the address at which the offending occurred) and failed to take into account a relevant factor (the fact that the actual home detention address sought was the mother-in- law’s address).

[5]      I asked Mr Mooney for the appellant whether I should remit the case back to the District Court so that the District Court Judge could again consider the exercise

of  his  discretion  taking  into  account  the  true  home  detention  address  situation. Mr Mooney, and this was echoed by Ms Law for the respondent, submits that I should not do that.  The appellant has been in custody since 31 January 2013.  He will be eligible for consideration for parole in four months time.  If I send the case back to the District Court for reconsideration, it might prove to be a solution without remedy so far as the appellant is concerned.

[6]      I accept that I should consider the overall situation to determine whether the refusal to grant home detention, taking into account the true factual situation, was within the bounds of the District Court Judge’s discretion.

The facts

[7]      On 30 January 2013, the Police executed a search warrant at the appellant’s home address in Bell Block, New Plymouth.  The appellant lived at that address with his partner and their three young children.

[8]      The Police found cannabis plant material in the master bedroom.  There were two bags containing low grade cannabis (cabbage) and a supermarket bag containing good quality cannabis plant head.  Also found in the bedroom was a set of scales, pre-cut tin foil and $1,520 in cash. Also in the bedroom, in the wardrobe, were eight cannabis plants approximately 40 cm in height.  Their growth was being facilitated by a heater pad and a light and timer system.

[9]      Concealed beneath the house behind a false wall, the Police found another eight  cannabis  plants  approximately half  a  metre  in  height.    They  were  at  the budding stage. Their growth was assisted by lamps, fans, heat ducts and timers.

[10]     The appellant admitted to growing the cannabis plants and said that he was growing them for personal use because of its high price.  However, as his pleas of guilty subsequently demonstrated, he accepted there was a commercial element in the growing of the cannabis.

[11]     The Police also found a variety of power tools in the appellant’s garage.

These items had been stolen from a company in New Plymouth and the appellant

admitted that he bought them knowing them to be stolen.  He said he needed them for his work.

Personal circumstances

[12]     Perhaps the biggest problem for the appellant in terms of sentencing options for the offending I have described is his history of criminal offending.

[13]     The  appellant  is  27  years  old  and  has  a  lengthy  history  of  offending, including drugs-related offending.  Of most relevance are his convictions in 2008 for manufacturing cannabis oil and supplying cannabis oil.   On 2 May 2008, he was sentenced to one year’s imprisonment on those charges.  I note also that, following his release, he assaulted his partner with intent to injure her, and on 6 August 2010 he  was  sentenced  to  250 hours  community  work  and  nine  months’  intensive supervision for that offence.  This is relevant because he, his partner and his three children are still a domestic unit and were he to serve a sentence of home detention it would be within a property occupied by them.

The District Court Judge’s decision

[14]     In his discussion of the issue of home detention, the District Court Judge initially emphasised the sophistication of the cannabis growing operation.  This was occurring within the family home and the District Court Judge was in no doubt that the family members would have been aware of what the appellant was doing:[1]

... If guidance or advice was offered you, it fell on deaf ears.

[1] Police v Wythe DC New Plymouth CRI-2013-043-000215, 2 May 2013, at [13].

[15]     It was then that the Judge noted that a sentence of home detention would return the appellant to the property where he had offended to live with those who must have known of his activity.

[16]     The  District  Court  Judge  then  went  through  the  circumstances  of  the offending for which the appellant was sentenced on 2 May 2008.  The District Court

Judge was the sentencing Judge at that time.   The District Court Judge made the

point that much the same submissions were made to him in 2008 for home detention

as were being made to him for this case.  In his view, “little has changed”.[2]

[2] Ibid, at [15].

[17]     The Judge went on to say:[3]

This argument, Mr Wythe, you and I have already exhausted.  You were on notice when I jailed you in May 2008 that if you continued to offend you would be going to jail.  You continued to offend and those close to you have done absolutely nothing to deter you; they are incapable of directing you otherwise.  You cannot, still, provide a drug free environment.  Your partner was well aware of what was going on.

[3] Ibid, at [16].

[18]     The District Court Judge concluded by noting that the appellant has already served a sentence of imprisonment for dealing in drugs.  He remains “undeterred” and the Judge again said that if he were returned to the address where he committed the offences that would be “simply inviting problems”.[4]

[4] Ibid, at [18].

[19]     Importantly,  it  is  clear from  the sentencing notes  that  the Judge did  not consider the factor of the address (as he thought) being the address from which the offending occurred as determinative:[5]

[5] Ibid, at [19].

I recognise that it is not a prohibition, but I am not satisfied that you can properly fulfil the obligations that would be required.  Those who provide references for you, suggesting shock and dismay at your apprehension, are conveniently overlooking your long-term involvement with cannabis, your previous incarceration.

Submissions

[20]     Mr Mooney’s primary submission is that because the District Court Judge misdirected himself on the matter of the address, he failed to take into account the need for the appellant to be rehabilitated and for him to be reintegrated into the community.  In Mr Mooney’s submission, the appellant is a cannabis addict whose offending in this case had only a minor element of commerciality.  The cash that was found was from work that the appellant had undertaken legitimately.   This is not really a factor since the appellant has accepted that the profits he made from selling

cannabis were simply absorbed into the household expenditure.

[21]     Nevertheless, Mr Mooney’s submission is that when considering commuting the sentence of imprisonment to one of home detention, the District Court Judge should have paid regard to the need to address the appellant’s cannabis addiction. This could be best done through a sentence of home detention.  Therefore, a sentence of home detention would be the least restrictive sentence properly available in the circumstances and would best serve the principles of rehabilitation and reintegration.

[22]     Mr Mooney acknowledges that the biggest impediment to this argument is the 2008 sentence of imprisonment for manufacturing and dealing in cannabis oil. But his submission is that, notwithstanding this matter, a rehabilitative sentence is still available.

[23]     Mr Mooney refers to the pre-sentence report and the recommendation there that home detention with post-detention conditions is the most appropriate sentence. It is true that Child, Youth & Family expressed some concern regarding the increased risk of violence within the home with the appellant being incarcerated there.  But, in Mr Mooney’s  submission,  this  can  be  catered  for  with  appropriate  conditions. Importantly,  Mr Mooney  submits,  in  a  few  months  time  the  appellant  will  be released from custody anyway and not have the benefit of the conditions conducive to rehabilitation which can accompany a sentence of home detention.

[24]     Ms Law for the respondent submits simply that the appellant has had his chance; he has already served a sentence of imprisonment for dealing in drugs; he knew at the time of his sentence in 2008 that offending of a like nature would result in escalating sentences of imprisonment.   It is counter-intuitive to incarcerate the appellant in a home with a partner against whom there is a history of violence on his part.

[25]     I note that at the proposed address for home detention, the mother-in-law resides in a separate self-contained flat at the rear of the main property.

Decision

[26]     In my view, even if the District Court Judge had directed himself properly, he would have been unable to exercise within the law his discretion to grant home detention.

[27]     I accept that in appropriate cases, a sentence of home detention should be given so as to capitalise upon real prospects of rehabilitation and successful reintegration into the community.  Where such prospects exist then, in appropriate cases, the least restrictive option of sentencing can be home detention.

[28]     That is not the case here.  The appellant had recently completed a sentence of imprisonment for dealing in cannabis oil.   The operation he was mounting at that stage was out of the family home.  That was the home he shared with his partner and the children that they then had.  In the current offending, he again used the family home.  There was a degree of sophistication in the cannabis growing operation he had established there.   Again, the operation was mounted notwithstanding the presence of his partner and their young family.

[29]     Despite the best arguments of Mr Mooney, I do not see in addition to this picture a positive indication that home detention would bring rehabilitation and make more likely a successful reintegration.  The appellant has simply been caught again. It might be that he has exchanged an alcohol addiction that led to violence against his partner with a cannabis addiction.  There is no evidence, however, that he has taken proactive steps to address the addiction, although I accept that he has been in custody.   Nevertheless, the Court is being asked to exercise a discretion in hope rather than against a realistic prospect.   The appellant’s long criminal history, including the 2008 offending, does not take the exercise beyond hope so far as I can see.

[30]     Under those circumstances, the appeal is dismissed.

Brewer J