R v Ward CA378/96 [1996] NZCA 242 (8 November 1996)

Last Updated: 21 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND C.A.378/96

THE QUEEN

v

ERIC JAMES WARD

Coram: Gault J Tompkins J Robertson J

Hearing: 7 November 1996 (at Auckland) Counsel: S J Lance for Appellant

^{S J Eisdell Moore and G C de Graaf for the Crown}

Judgment: 8 November 1996

JUDGMENT OF THE COURT DELIVERED BY TOMPKINSáJ

The appellant pleaded guilty to supplying cannabis to a person under the age of 18 years. He was sentenced to five months imprisonment. He has appealed against that sentence.

The offending

The complainant was, at the time of the offence, 14 years of age. Her parents had separated. At the relevant time she was staying with her mother and her mother's partner at Waiuku. The appellant is a long time friend of the mother's partner and as such had met the complainant on a number of times. She regarded him as a friend.

On 11 December 1995 the appellant, while visiting the complainant's mother and partner, stated his intention to visit a nearby beach. The complainant accompanied him. While on the beach the appellant proposed that they smoke cannabis. They did so. The complainant was considerably affected. The appellant accepted that when she was under the influence of cannabis - "stoned" as it was described - there was some discussion about sex. She had to be assisted back to the vehicle and, when she arrived home, she lay down as she felt ill.

The Judge expressed some scepticism about the amount of cannabis supplied having regard to the symptoms the complainant experienced. However, on the complainant's evidence given at the trial - the appellant faced other charges of a sexual nature in respect of which he was found not guilty - her evidence did not establish that any more than one cannabis cigarette was consumed. While, in view of the stated effects the scepticism is understandable, we accept for the purposes of the appeal that only one cannabis cigarette was smoked by the two of them.

There was evidence that the complainant had previously smoked cannabis at school but it was not clear whether this was once or more than once.

The appellant

The appellant is aged 44. He is a self employed carpenter. The pre-sentence report refers to another describing him as an easy going person, mixes well with other people, reliable and non- aggressive. His former wife stated that he is normally a responsible person. Save as an occasional cannabis smoker, he does not have a drug problem. He has not appeared before the Court since

1976 on a matter that was not drug related.

The probation officer also records that the appellant deeply regrets his "moment of stupidity", and that he took full responsibility for his actions.

The sentence

The Judge on sentencing referred to the offending, to the extent of the supply, to the favourable comments in the probation report, and to submissions made concerning the appellant's personal circumstances.

After referring to R v Smith [1980] NZCA 20; [1980] 1 NZLR 412 and the recent decision of this Court in R v Rameka and Others, CA.240/96, 25 July 1996, he considered applicable "the principle that even a first offender dealing in a small amount of drugs cannot escape imprisonment". He referred to the aggravating factors of the age of the girl, and the appellant's willingness to supply a schoolgirl. He took into account the plea of guilty, that it was a first offence, and that it was not a commercial operation.

He concluded that a prison sentence was inevitable. The term of five months was no doubt intended to have regard to the mitigating factors.

Submissions on appeal

The essence of Mr Lance's submissions is that this was what he termed a "technical" supply at the very lower end of the scale. Accepting that the complainant was only 14 years old, he submitted that she had made it known to the appellant that she had previously smoked cannabis and participated willingly. He emphasised the absence of any commercial aspect, the small amount of cannabis involved, and that this was not a case of dealing. In these circumstances, he submitted that a full time custodial sentence was not appropriate.

Mr Lance submitted that the Judge made two factual errors. The first was the scepticism he expressed about the quantity of cannabis supplied to which we have already referred. The second

was a comment that the complainant fainted. The latter was not strictly correct - she said she felt sick but not that she fainted. We do not consider that this difference is of any significance.

He accepted that if an appropriate sentence was five months, the court did not have the option of suspending the sentence, since it was less than six months and the court cannot increase a sentence in order to suspend it. It was his submission that a proper sentence was a fine or periodic detention or both.

Conclusion

In Rameka EichelbaumáCJ, delivering the judgment of this Court, made some general comments concerning the supply of cannabis to persons under 18. He said:

"The willingness of the offenders to deal with school pupils adds significantly to the gravity of these charges. The prevalence of pupils smoking cannabis is currently a matter of wide spread concern. It is a community problem requiring an appropriate response from the Courts to deter the supplier. Clearly penalties short of imprisonment which we gather have commonly been imposed in respect of offending of this kind, have been insufficient to achieve deterrence."

Later in the judgment, he referred to sentences that have been imposed in cases of this kind where the offenders received fines, periodic detention or suspended sentencing, commenting that some at least have escaped with extraordinarily lenient penalties.

As to the pattern of sentencing for offending of this kind, the Chief Justice said:

"The benchmark case for supplying cannabis to a person under the age of 18 has long been R v Smith [1980] NZCA 20; [1980] 1 NZLR 412 where the sentence imposed for supplying was one year's imprisonment. In that case the sentence was imposed cumulatively upon one for cultivation but we regard the term of one year as an appropriate guideline for sentencing in cases similar to the present. More recently, in R v Walter (1992) 2 CRNZ 178, this Court reaffirmed the continuing validity of R v Smith."

The Misuse of Drugs Act 1975, by making the supply of a class C controlled drug to a person under 18 years of age a separate and distinct offence from selling or offering to sell such a controlled drug to a person of or over 18 years of age, emphasises that the supply to a person under

18 must be regarded as a serious offence. Mr Lance submitted that supply to a person under 18 should not be regarded as seriously as supply to another for commercial purposes, that is for monetary gain. As a general proposition we do not accept that submission. Nor do we accept his further submission that the offending in this case was less serious because the complainant had smoked cannabis previously. A supply by a mature adult to a 14 year old can have serious consequences by encouraging the child to acquire or continue a habit of cannabis smoking. That can have more significant consequences than the sale of cannabis to an adult.

Any supply of cannabis to a person under 18 - still more to a 14 year old - requires a deterrent sentence. The mitigating factors to which Mr Lance referred are adequately reflected in the relatively short sentence imposed of five months imprisonment. They cannot eliminate the lack of responsibility if not wilfulness in providing a prohibited drug to a young vulnerable person and sharing it with her.

The sentence the Judge imposed was appropriate. The appeal is dismissed.

Solicitors:

McKenzie Quirke and Lewis, Rotorua for Appellant

Crown Solicitor, Auckland for Respondent