THE QUEEN v JEFFREY GEORGE RIDOUT [2002] NZCA 218 (19 September 2002)

IN THE court of appeal of new zealand

ca120/02

THE QUEEN

V

JEFFREY GEORGE RIDOUT

Hearing:	16 September 2002
Coram:	Tipping J Hammond J Baragwanath J
Appearances:	G King for Appellant A Markham for Crown
Judgment:	19 September 2002

judgment of the court DELIVERED BY HAMMOND J

Introduction

[1] On 19 October 2001 the appellant, Mr Ridout, was sentenced to three years imprisonment on a charge of possession of cannabis for the purpose of supply (s.6(1)(f) and (2)(c) Misuse of Drugs Act 1975).He now appeals against his sentence.

Background

[2] On 29 March 2001 the appellant and a Mr Coronno were stopped by the police on a road near Marton, for a minor traffic infringement.The police noted a strong smell of cannabis coming from the vehicle.A search was conducted.

[3] Six sacks containing wet cannabis were found in the boot of the vehicle.A number of other items were found in the vehicle including empty clean sacks, a pair of secateurs, wet clothing and three plastic `deal' bags of cannabis.Mr Ridout volunteered a small plastic bag of good quality cannabis in his possession.

[4] The police estimated the wet weight of the cannabis to be about 75 kg and the dry weight to be approximately 12.4 kg.The estimated wholesale value of this cannabis was $70-80,000.

[5] A subsequent search of Mr Ridout's home revealed equipment for drying cannabis, although in a form that was consistent with cannabis for his own use, rather than a commercial operation.

[6] Both the appellant and Mr Coronno pleaded guilty to possession of cannabis for supply.They appeared for sentence in the High Court on the same day.Two days before the sentencing (and unbeknown to Mr Ridout) Mr Coronno swore an affidavit explaining his level of involvement in the offending.Mr Coronno deposed that he had been asked by Mr Ridout to assist with the removal of some cannabis from bush near Taupo, and the transportation of that product to Wellington.He claimed that he had a drivers licence, and that Mr Ridout did not.He said he had nothing whatsoever to do with the planting and cultivation of the cannabis.Beyond assisting in its removal and transportation to Wellington, he claimed there was no criminality on his part.

[7] Both men were sentenced on the same summary of facts.After reciting the details above mentioned, this summary noted that Mr Ridout had declined to offer any explanation, but Mr Coronno had claimed that the two men "had stumbled upon the cannabis by chance and were returning it to Wellington to establish what it was worth and what they could do with it".

The Sentences in the High Court

[8] The sentencing Judge found that "given the quantity and value of the cannabis" this joint offending fell towards "the upper end of category two" as identified by the Court of Appeal in R v Terewi [1999] 3 NZLR 62.The Judge said there was reason to suspect this might have been a relatively large scale commercial operation but the evidence before him was not sufficient to support a sentencing on that basis.The Judge took the view that the serious nature of the offending meant that there was no option open to him but to impose a sentence of imprisonment.He took as a starting point three and a half years imprisonment.He said both men "were in it together and it [was] not possible to differentiate" between them in respect of that starting point.

[9] The Judge expressly found Mr Ridout to be "the primary offender".He allowed six months for the guilty plea, to yield an effective sentence of three years imprisonment.

[10] The Judge accepted Mr Coronno to be a secondary offender.He had no previous record of drug offending (as compared with Mr Ridout who did have prior offending).He thought therefore that some additional allowance was required in his case in addition to a discount for the plea of guilty.Mr Coronno was sentenced to two and a half years imprisonment.

Mr Coronno Appeals

[11] Mr Coronno appealed against his sentence.That appeal came before this court on 6 December 2001.The judgment of the court was delivered by Robertson J that day (CA 366/01).Coronno's sentence was reduced to two years imprisonment.He was granted leave to apply for home detention.He is in fact currently on home detention.We were advised from the bar that he becomes eligible for parole on 19 October 2002.

[12] That Court was satisfied that there should be an overall reduction from the proper starting point of three and a half years imprisonment, for these reasons:

* The 15% reduction for the early guilty plea was "arguably outside the accepted range";

* Mr Coronno's was the lesser involvement in the offending;

* The court had regard to Mr Coronno's personal circumstances (no prior drug offending, excellent references, a stable family relationship, and he had voluntarily sought assistance for a gambling addiction).

Mr Ridout's Appeal is Out of Time

[13] Mr Coronno had lodged a timeous appeal.Mr Ridout did not.It is claimed in the Notice of Appeal (there is no affidavit) that Mr Ridout "wanted to appeal the length of sentence", however it is said that he was advised by his then lawyer that he had insufficient grounds.He subsequently discovered that Mr Coronno had successfully appealed, that his sentence had been reduced, and that Mr Coronno had been given leave to apply for Home Detention.Mr Ridout found out about Mr Coronno's (successful) appeal in late December 2001, although even then Notice of Appeal was not given until 24 April 2002.

[14] It is convenient to note here that counsel for the appellant seems to have thought that the requisite time for appeal was 28 days.That is an error.The 28 day time limit now expressed in s.388(1) of the Crimes Act 1961 was not the time limit in operation when the appellant and his co-offender were sentenced on 19 October 2001.At that time, the time limit was 10 days.The time limit was extended as from 10 December 2001 by s.5(1) Crimes (Criminal Appeals) Amendment Act 2001.In the result, the appellants application for leave was just short of six months out of time.That, it has to be said, is an unusually lengthy period outside the statutory period.

[15] This court is not bound in every case to allow argument to proceed on the merits in order to determine whether the delay can be excused (R v Wotten [1961] NZLR 621).But in this instance this Court thought it appropriate to consider all the circumstances before determining whether leave should be granted.

The Request for a Full Court

[16] We record that Mr King sought both oral argument, and a Full Court, on the basis that he was minded to urge this court to revisit the principle established in R v Terewi (supra); and Mr King sought to resort to certain provisions of the Sentencing Act 2002, even though that Act was not then in force.This because of a concern expressed by Mr King that Terewi has given rise to what he contended to be an inappropriate setting to one side of the personal circumstances of an offender in cases of this character.

[17] We incline to the view that Mr King's concerns under this head as to Terewi are overstated.But in the result, we do not find it necessary to revisit Teriwi or to address the other issues he raised relative to the new Sentencing Act.Indeed, it would be inappropriate to do so in a Divisional Court.

The Grounds of Appeal

[18] Initially Mr King submitted that the starting point of three and a half years was "too high".We do his case no injustice by saying that by the end of argument the point was not firmly pressed.It is difficult to see how it could have been.This court held in Coronno that starting point to have been within the range available to the sentencing Judge in the circumstances of this particular case.Independently, we take a like view.

[19] In the result, by the end of the argument, three grounds of appeal were squarely advanced.It is said:

* The discount of six months for the guilty plea was inadequate;

* The sentencing Judge was wrong to pay no regard to the appellant's personal circumstances and those of his family;

* The disparity between the appellant's sentence and that of his co-offender was "unjustifiable and gross".

[20] Whilst any one of those factors taken in isolation might not support a reduction in this sentence, Mr King urged that taken together they should lead to that result.He agreed that the effective sentence could not possibly be less than two years (Mr Coronno having been the less culpable offender). Realistically therefore, to maintain a margin, Mr King had to argue for an effective sentence of two and a half years imprisonment.

The Discount

[21] Appellate courts have consistently expressed the importance of a "meaningful discount" (R v Mako [2000] 2 NZLR 170 at 176) but have declined to state a tariff.In R v Woolley (CA 2/01, 20 June 2001) this court noted that a survey of sentencings in the High Court in 2001 of persons who had pleaded guilty to offences in the period from 1997 to 2001, had established that "taken overall there has been an average percentage reduction for guilty pleas and other relevant circumstances of about 27% but the range, as is to be anticipated to reflect a variety of circumstances, go substantially above and below that figure".The reasons for a proper appreciation and application of a discount factor were enlarged upon in Coronno itself. And, in R v Hussain (16 January 2002 [2002] Crim.L.R 327 et seq) the Court of Appeal (Criminal Division) in the United Kingdom recently handed down a decision providing a useful clarification of the basic principles relating to discounts for pleas of guilty.That court noted "it remained the strong policy of the courts to encourage guilty pleas and to reflect that in the policy granting a discount in an appropriate case".(Italics added)

[22] We accept that in this case, the pleas were at the earliest possible opportunity.A request was made to enter pleas prior to depositions under s153A of the Summary Proceedings Act 1957.The delay which occurred in the pleas actually being taken was due to the police having to make further enquiries as to the quantities and value for sentencing purposes.

[23] We share the view of the court in Coronno that on any view of the matter, the discount in this instance was at the lowest possible end of the scale, and as this court said in Coronno, "arguably below the minimum level".

Personal Circumstances

[24] Mr King criticised that portion of the sentencing notes which read:

You both have family commitments and you both know you have let down your children in particular by this offending.That is extremely regrettable, but it is not something that the Court can take into account in the penalties to be imposed.In this area it has to be the case that the penalties to be imposed are to deter others from benefiting in the sale of drugs, which are of detriment to the health and safety of the community.

[25] Mr King argued that the sentencing Judge made no allowance whatsoever for Mr Ridout's personal circumstances.Indeed he went so far as to argue that this was a distinct error on the Judge's part.

[26] There is no absolute rule.The principle in drug cases is that generally speaking, deterrence must be the primary concern.But particular, relevant, personal circumstances can appropriately be had regard to (as occurred in Coronno).

[27] We take the view that the Judge was right in this case to attach little weight to Mr Ridout's family circumstances.But no weight appears to have been attached at all to the chronic pain from which he suffers from arthritis.This has been a severe disability for over a decade.It has involved the appellant in hip replacement surgery.We do not make allowance for his illegal consumption of cannabis as a response.But the disability is a factor to which some regard may properly be had, so long as in consequence the deterrent element, of such importance in drug sentencing, receives due weight.

Disparity

[28] There are substantial difficulties in the way of appellants seeking to have sentences interfered with on the grounds of disparity.(See for instance, R v Rameka [1973] 2 NZLR 592 and R v Lawson [1982] 2 NZLR 219). Co-offenders routinely have difficulty in appreciating the niceties (and the importance) of sentencing distinctions.They consider that they "suffer by comparison", as McMullin J put it in Lawson at page 223.At the end of the day the sentencing Judge must not only consider the relative involvement of the individuals in the offence, but also the mitigating factors affecting each person.The question is whether there is a real justification for a perceived grievance.As the court put it in that instance the question is "whether a reasonably minded independent observer aware of all the circumstances of the offence, and of the offenders would think that something had gone wrong with the administration of justice" (Id).

[29] In this case, there can be no question that there should be some disparity.Mr King took no issue with that point.Miss Markham correctly urged on this court that an appellate court ought to be cautious about intervening in the actual margin in a case of this kind.That point acknowledged, the question in this case is whether the disparity of one year was, in all the circumstances of the case, including in particular the outcome in Coronno, too great.In fairness to the sentencing Judge this "margin" was not one created by his sentence, but rather as a result of the outcome of the appeal in Coronno.

[30] In our view the disparity is marginally too great.It may well be that something more than six months was required by way of differentiation, but not one year.(It has to be recalled in this connection that the court was sentencing within a relatively narrow range, where a temporal difference of six months can be very significant in relation to the overall sentence).

Conclusion

[31] As to the extension of time, the delay here was undoubtedly unusual.The standard authority is still R v Knight [1998] 1 NZLR 583, a decision of a Full Court of this Court.Richardson P emphasised that "the touchstone is the interests of justice in the particular case" (at page 587).Here we have noted the strengths of the proposed appeal, the explicable reasons for delay, and we consider the absence of prejudice to the Crown to be significant.In the result, we grant leave for the appeal.

[32] As to the merits of the appeal, we are of the view that Mr King put it more correctly in emphasising the conjunction of the three factors this court was called upon to consider.Any one of them taken in isolation may not have supported the appeal (though all had some force).But taken in combination we are of the view that they support a reduction of sentence.

[33] In the result the appeal is allowed.The sentence of three years imprisonment is set aside.We substitute a sentence of two and a half years imprisonment.

Solicitors:

Crown Law Office, Wellington