R v Barton CA48/00 [2000] NZCA 283; [2000] 2 NZLR 459; (2000) 17 CRNZ 402 (19 April 2000)

Last Updated: 21 July 2015

IN THE COURT OF APPEAL OF NEW ZEALAND

CA48/00

THE QUEEN

V

LESTER WAYNE BARTON

Hearing:	19 April 2000
Coram:	Gault J Doogue J Goddard J
Appearances:	T Ellis for Appellant S P France for Crown
Judgment:	19 April 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1] The appeal is against the imposition of a sentence of nine months imprisonment for one charge of possession of cannabis for supply but only in respect of the Judge’s refusal to grant leave to apply for home detention. The appellant also applies for leave to appeal his conviction out of time. The appellant was found with two lots of cannabis; one amount was in a container in the front of his vehicle; the second amount consisted of 18 “tinnies” secreted in the boot of the car. It was accepted by the Crown that the loose amount in the jar was for the appellant’s personal consumption. However, the Crown maintained, and the jury accepted, that the 18 tinnies were for supply. The appellant’s fingerprints were found on the tinfoil containing the cannabis. A considerable sum of money, $1,750, was also found on the appellant’s person, which could be taken as an indicator of commercial dealing. The jury rejected the appellant’s defence that the cannabis found in the boot of the car was for his personal consumption, and found him guilty of the offence of possession of cannabis for supply.
[2] At sentencing, the Judge recognised as mitigating factors the appellant’s acceptance of the guilty verdict and his expression of remorse. An aggravating factor as acknowledged by the sentencing Judge is the significant number of tinnies: 18 were found, and the appellant said there had been 20. There was also the money that the appellant was carrying which could be looked at as potential drug money, although the Crown did not regard it necessarily as that. The appellant is 52 years of age and has a recent previous conviction for cultivation of cannabis for which he received a fine.
[3] The Judge referred to R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62, where this Court provided an indication of sentencing levels for cannabis offences. The sentencing Judge was of the opinion that the present case fell between the first and second categories (but see now R v Andrews and Devitt CA505-6/99, judgment 29 March 2000), and was realistically at the lower end of Category 2. A lower starting point than that of two to four years was appropriate. The appellant submitted at sentencing that a suspended sentence would be appropriate. The Judge referred to the decision of the former Chief Justice in R v Petersen [1994] 2 NZLR 533 and held that a suspended sentence was not appropriate in the present case because of the need for general deterrence and because the appellant had not demonstrated any reformation after the previous non-custodial sentence for the cultivation of cannabis charge.
[4] The Judge then concluded that the appropriate sentence was nine months and that home detention is not appropriate. The Judge dealt with the issue of home detention in the following manner:

I consider the question of home detention. That is relevant because of the term that I have imposed. When I consider that I need to look at such circumstances as the gravity of the offending. It is my view that 18 tinnies is relatively grave. Even in tinnie houses in South Auckland sometimes there are fewer tinnies on the premises, although the stock is replenished from time to time, so it is a reasonably significant amount, and clearly that sort of activity involving commercial activities for drugs and the possible effect on the community generally means that it is the sort of case where general deterrence is required as well as particular deterrence in your case because this is now your second conviction under the Misuse of Drugs Act within a very short time. That demonstrates in itself an amount of persistence, particularly about that time, and in my view renders you inappropriate for home detention and it is my consideration and decision that it is inappropriate to grant you leave to apply for home detention.

[5] The appellant appeals against this final part of the sentence and seeks leave to apply to the Prison Board for home detention. This constitutes an appeal against sentence as section 21G of the Criminal Justice Act 1985 provides that an order under section 21D(4) either granting or declining to grant leave to apply to a District Prisons Board for release to home detention is a sentence. This Court then has jurisdiction to hear the appeal under section 383(1) of the Crimes Act 1961.
[6] Section 21D of the Criminal Justice Act governs the grant of leave to apply to the Prisons Board for release to home detention. This is a new provision, introduced on 1 October 1999. If an offender is sentenced to not more than two years imprisonment, the sentencing Judge must consider whether to grant the offender leave to apply to a District Prisons Board or a Parole Board for release to home detention. Home detention is not a community-based sentence; it is a means of serving a sentence of imprisonment. The relevant parts of section 21D read:

21D COURT TO CONSIDER GRANTING OFFENDER LEAVE TO APPLY FOR RELEASE TO HOME DETENTION IN CERTAIN CASES--
(1) This section applies if a court sentences an offender to--
(a) A term of imprisonment of not more than 2 years; or
(b) Two or more terms of imprisonment to be served concurrently, each term of which is not more than 2 years; or
(c) Two or more terms of imprisonment that are cumulative, the aggregate term of which is not more than 2 years.
(2) The court must consider whether to grant the offender leave to apply under section 103 to a District Prisons Board for release to home detention.
(3) In considering whether to grant leave under this section, the court must consider--
(a) The nature and seriousness of the offence; and
(b) Any relevant matters in the victim impact statement in that case.
(4) The court must make an order either granting leave or declining to grant leave.

[7] Section 21D(3) provides that when considering whether to grant leave, the Court must consider the nature and seriousness of the offence as well as any relevant matters contained in the victim impact statement. In the present case, there was no “victim” as such, so consideration of matters in the victim impact report is irrelevant. The nature and seriousness is to be assessed keeping in mind that the jurisdiction only arises in circumstances where the sentence is of imprisonment for two years or less that has not been suspended.
[8] The provision confers a wide discretion to be exercised as part of the sentencing process. That is not to be fettered by formulating any fixed rules for its exercise.
[9] Reference may be made to recent decisions in the High Court concerning the appropriate scope of the inquiry. In Dempsey v Police (High Court, Christchurch, 27 October 1999, A212-99) Chisholm J rightly said that section 21D(3) was not intended to represent an exclusive code as to matters the Court can consider. The Court must consider the matters specified in subsection (3), but it can also consider other relevant matters, such as the appellant’s criminal history and his age.
[10] Panckhurst J was of a similar opinion in Ramsden v Police (High Court, Christchurch, 18 February 2000, A3-00). He stated:

Counsel were in agreement that the personal circumstances of the offender, including his or her work and family responsibilities, were highly relevant. This is undoubtedly so. Aside from the fiscal advantage of home detention, it is a sentencing option tailored to provide a punitive element but at the same time to place the offender in the position to meet his work and family obligations. Moreover, where rehabilitative programmes are required home detention may facilitate that end. These various considerations indicate a number of factors which will require assessment when a decision to grant or refuse leave is made.
With regard to approach it is important that those cases where home detention is not a viable option are recognised at sentencing and leave refused. This category will include cases where: the gravity of the offending, the protection of the community or of particular victims, the need for deterrence, and the absence of rehabilitative indicators relevant to the offender render home detention inappropriate.

But in my view, particularly at this early stage, the threshold should not be set too high. That is not to say that in those cases where home detention is clearly inappropriate leave should not be refused. Otherwise District Prison Boards may face an intolerable burden. But where the profile of the offence and the offender suggest that home detention is a realistic option then leave should be granted in the knowledge that any final decision rests with the Board. With the benefit of further experience of the sentencing option, including the extent of resources committed to it and its success rate, the approach to granting or refusing leave may require modification.

[11] R v S (CA538/99) (CA538/99, 17 April 2000) is the only case so far in this Court where the matter has been addressed. The Court stated:

Both counsel agree that it is an appropriate case for leave to apply and we agree. We take that view in light of the age of the appellant at the time of the offending, the period that has elapsed since the offending during which the appellant has not offended further and the support and forgiveness of the victims and his family as mentioned in the earlier judgment and confirmed in the memorandum from Crown Counsel.

[12] It is apparent the approach to the jurisdiction is evolving satisfactorily and we endorse the suggestion made by Mr France as appropriate. He said in his written submissions:

The balance between the functions of the Court and the District Prisons Board is not easy to discern from the legislative scheme. Some overlap would seem inevitable, but the reality of the Court decision is that it is the removal of a barrier, rather than the granting of home detention. In such circumstances it may be thought that the Court’s role is to sift out those cases where it can be clearly said that home detention is not relevant.

[13] Sentencing Judges cannot be expected to include in sentencing remarks extensive reasons for the grant or refusal of leave, and this Court will not readily interfere with their discretionary assessments.
[14] While we are reluctant to interfere with the Judge’s discretion we consider he was wrong in this case to refuse leave. We think he placed too much emphasis on the gravity of the offence after having determined it called for the sentence of only nine months imprisonment. The other factor which influenced him was the previous cannabis offence. That was a year earlier and attracted only a fine of $250 suggesting it was not particularly serious. That too seems to have been over-emphasised. The nature of the offending was not such that home detention would be inappropriate.
[15] Accordingly, the appeal is allowed and leave to apply for release to home detention is granted.
[16] The application for leave to appeal out of time against the conviction was advanced on the ground that counsel assigned on the sentence appeal seeks to argue matters which he submitted show that the trial process miscarried.
[17] The first matter he seeks to argue is that the appellant, who gave evidence, was cross-examined without leave about having grown cannabis when living at a previous address. He admitted having done this for his own personal use (which was entirely consistent with his defence). His counsel objected and the Judge advised him that he did not need to answer questions tending to incriminate him. That pointed away from rather than towards any previous conviction. Thereafter he answered further questions about growing cannabis insisting that it was for personal use.
[18] We do not see any basis for miscarriage of justice in this respect and we are fortified in that view by the frank admission advanced through the pre-sentence report in mitigation of sentence.
[19] The other matters which counsel seek to argue are assertions of various breaches of the appellant’s rights under the New Zealand Bill of Rights Act 1990. They are not matters that were raised prior to, or in the course of the trial. The primary contentions of an unlawful and unreasonable search and the appellant’s lack of comprehension of his rights are without any factual foundation. This Court has consistently declined to entertain such arguments where no sufficient evidential base has been laid. It is no answer to say that this Court now could embark on the necessary factual investigation.
[20] Mr Ellis in addition seeks to argue certain “generic” matters of principle including two matters on which there are relatively recent decisions of this Court which he seeks to re-visit. We are not persuaded that leave to appeal out of time to argue such issues in a case in which there can be no concern for a miscarriage of justice is warranted. Leave is refused.

Solicitors

Crown Law Office, Wellington