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TAIT v R [2004] NZCA 242 (29 September 2004)

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TAIT v R [2004] NZCA 242 (29 September 2004)

Last Updated: 2 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA163/04

THE QUEEN

v

PUTIKI DAVID TAIT

Hearing: 23 September 2004

Coram: Anderson P
Baragwanath J
Randerson J

Appearances: R Vigor-Brown for Appellant
B J Horsley for Crown

Judgment: 29 September 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1] The appellant was convicted on his trial before a District Court Judge (Judge McGuire) on 15 counts relating to cannabis dealings in connection with a tinnie house at premises of which he was the principal tenant. He was sentenced by another Judge (Judge Weir) to five years imprisonment and has appealed against conviction on one count and against the sentence imposed overall.
[2] The single count, the subject of the appeal against conviction, involved the sale to an undercover constable of a cannabis tinnie at a time when, as the Crown acknowledges, the appellant was not physically on the premises. But the whole of the evidence demonstrated that the appellant was the tenant of the dwelling house, its principal occupier, a dealer in cannabis in his own right, and the aider and abettor of other occupants who also sold tinnies at the property. There was abundant evidence justifying the appellant’s conviction as a party to the particular offence and the appeal against conviction is meritless.
[3] It is otherwise the case in respect of the appeal against sentence. The Police raided the tinnie house on 3 May 2002 and arrested the appellant who was charged with one count of selling cannabis and one count of having cannabis in his possession for the purposes of sale. A third count, alternative to the second, was permitting premises to be used for the purpose of sale. He was granted bail but almost immediately began to offend again. This led to 12 further counts of selling cannabis and possessing cannabis for the purpose of sale. That period of offending was from 1 June 2002 to 7 August 2002. The offending did not involve large amounts of cannabis but was persistent. Sales related to single sales of tinnies and the possession counts related to small supplies of stock for the purpose of sale.
[4] The sentencing Judge referred to 15 counts but that must be wrong because two of the counts were in the alternative. That is a matter of little moment, however, because the evidence showed that the appellant was operating the premises as a tinnie house for him and his associates consistently, over a period of more than three months.
[5] The sentencing Judge regarded the running of the house as "a fairly significant operation" because on the day the Police raided, 25 people turned up at the house to buy cannabis and five empty snaplock bags containing remnants of cannabis had been found at the premises. What was, of course, of much concern to the Judge was that after he was arrested on 3 May the appellant had been released on fairly stringent bail conditions which should have precluded further offending but carried on his criminal activity regardless. The Judge considered that the offending that occurred after the grant of bail warranted the imposition of a cumulative sentence. For the offending on 3 May he imposed a sentence of two and a half years imprisonment and for the offending after that date he imposed a further two and a half years imprisonment, cumulative.
[6] The argument in support of the appeal against sentence is that five years is manifestly excessive for offending of a scale that was plainly within the second category of cannabis offending identified in R v Terewi [1999] 3 NZLR 62, such that even if the sentence should appropriately be at the upper end of that category, it should not have exceeded four years imprisonment. The argument for the Crown is that the Judge was entitled to regard the pre and post-bail offending as separate episodes justifying the imposition of a cumulative sentence for the second period. In the Crown’s submission the issue was not whether the sentences were wrongly accumulated but whether in totality the five years is manifestly excessive.

Discussion

[7] In our view the offending was not apt for cumulative sentences and was in any event manifestly excessive when looked at in totality.
[8] Cumulative sentences are not generally appropriate where offences are similar in kind and represent a continuing course of conduct. We think it convenient to consider the legislative guidance in relation to cumulative and concurrent sentences contained in s 84 of the Sentencing Act 2002 which provides as follows:

84 Guidance on use of cumulative and concurrent sentences of imprisonment
(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider--

(a) the time at which they occurred; or
(b) the overall nature of the offending; or
(c) any other relationship between the offences that the court considers relevant.

[9] As s 84(3) indicates, connection may be found in relation to time, or the overall nature of the offending or any other relevant relationship. In the present case the offending is essentially of the same character both before and after the grant of bail and it cannot be said that the interpolation of the arrest and grant of bail is other than an aggravating aspect of the offending which followed the appellant’s arrest. Absent that ancillary feature, the offending would fall within the second category of cannabis offences indicated by Terewi and would fairly attract a sentence of about three years imprisonment. This would have regard to some previous cannabis offending, albeit over an extended period, but nevertheless involving a sentence of six months imprisonment some three years before the present offences. That the appellant was not deterred by the Police raid and his own arrest indicates the need for an increase in the sentence to render more palpable its deterrent objectives. The appellant had not been deterred by a prior sentence of imprisonment nor by being caught once again in offending. That justifies a sentence at the top of the second category indicated by Terewi.
[10] This Court has often remarked that the ultimate sentence rather than the construction of it is the focus of inquiry when a sentence is under review for manifest excess or inadequacy. If the sentence in the present case had been four years we would not have seen fit to intervene by reason of the accumulation. Having regard, however, to the principles of totality we are bound to regard the five year sentence as manifestly excessive however it may have been constructed. We think, with respect, that the Judge’s perception of the case as one of disconnected episodes of offending has resulted in the case falling outside the indicative guidelines of Terewi, not for reasons pertinent to the nature and scale of the offending itself but because the court’s order in relation to bail may have been flouted.
[11] Because, in our view, the offending is in the nature of a continuum, we think it appropriate that the sentences should be concurrent and accordingly we allow the appeal, quash all the sentences and substitute in respect of each count a sentence of four years imprisonment, all terms to be concurrent.

Solicitors:
R Vigor-Brown, Rotorua for Appellant
Crown Law Office, Wellington

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[1]	The appellant was convicted on his trial before a District Court Judge (Judge McGuire) on 15 counts relating to cannabis dealings in connection with a tinnie house at premises of which he was the principal tenant. He was sentenced by another Judge (Judge Weir) to five years imprisonment and has appealed against conviction on one count and against the sentence imposed overall.
[2]	The single count, the subject of the appeal against conviction, involved the sale to an undercover constable of a cannabis tinnie at a time when, as the Crown acknowledges, the appellant was not physically on the premises. But the whole of the evidence demonstrated that the appellant was the tenant of the dwelling house, its principal occupier, a dealer in cannabis in his own right, and the aider and abettor of other occupants who also sold tinnies at the property. There was abundant evidence justifying the appellant’s conviction as a party to the particular offence and the appeal against conviction is meritless.
[3]	It is otherwise the case in respect of the appeal against sentence. The Police raided the tinnie house on 3 May 2002 and arrested the appellant who was charged with one count of selling cannabis and one count of having cannabis in his possession for the purposes of sale. A third count, alternative to the second, was permitting premises to be used for the purpose of sale. He was granted bail but almost immediately began to offend again. This led to 12 further counts of selling cannabis and possessing cannabis for the purpose of sale. That period of offending was from 1 June 2002 to 7 August 2002. The offending did not involve large amounts of cannabis but was persistent. Sales related to single sales of tinnies and the possession counts related to small supplies of stock for the purpose of sale.
[4]	The sentencing Judge referred to 15 counts but that must be wrong because two of the counts were in the alternative. That is a matter of little moment, however, because the evidence showed that the appellant was operating the premises as a tinnie house for him and his associates consistently, over a period of more than three months.
[5]	The sentencing Judge regarded the running of the house as "a fairly significant operation" because on the day the Police raided, 25 people turned up at the house to buy cannabis and five empty snaplock bags containing remnants of cannabis had been found at the premises. What was, of course, of much concern to the Judge was that after he was arrested on 3 May the appellant had been released on fairly stringent bail conditions which should have precluded further offending but carried on his criminal activity regardless. The Judge considered that the offending that occurred after the grant of bail warranted the imposition of a cumulative sentence. For the offending on 3 May he imposed a sentence of two and a half years imprisonment and for the offending after that date he imposed a further two and a half years imprisonment, cumulative.
[6]	The argument in support of the appeal against sentence is that five years is manifestly excessive for offending of a scale that was plainly within the second category of cannabis offending identified in R v Terewi [1999] 3 NZLR 62, such that even if the sentence should appropriately be at the upper end of that category, it should not have exceeded four years imprisonment. The argument for the Crown is that the Judge was entitled to regard the pre and post-bail offending as separate episodes justifying the imposition of a cumulative sentence for the second period. In the Crown’s submission the issue was not whether the sentences were wrongly accumulated but whether in totality the five years is manifestly excessive.

[7]	In our view the offending was not apt for cumulative sentences and was in any event manifestly excessive when looked at in totality.
[8]	Cumulative sentences are not generally appropriate where offences are similar in kind and represent a continuing course of conduct. We think it convenient to consider the legislative guidance in relation to cumulative and concurrent sentences contained in s 84 of the Sentencing Act 2002 which provides as follows:

[9]	As s 84(3) indicates, connection may be found in relation to time, or the overall nature of the offending or any other relevant relationship. In the present case the offending is essentially of the same character both before and after the grant of bail and it cannot be said that the interpolation of the arrest and grant of bail is other than an aggravating aspect of the offending which followed the appellant’s arrest. Absent that ancillary feature, the offending would fall within the second category of cannabis offences indicated by Terewi and would fairly attract a sentence of about three years imprisonment. This would have regard to some previous cannabis offending, albeit over an extended period, but nevertheless involving a sentence of six months imprisonment some three years before the present offences. That the appellant was not deterred by the Police raid and his own arrest indicates the need for an increase in the sentence to render more palpable its deterrent objectives. The appellant had not been deterred by a prior sentence of imprisonment nor by being caught once again in offending. That justifies a sentence at the top of the second category indicated by Terewi.
[10]	This Court has often remarked that the ultimate sentence rather than the construction of it is the focus of inquiry when a sentence is under review for manifest excess or inadequacy. If the sentence in the present case had been four years we would not have seen fit to intervene by reason of the accumulation. Having regard, however, to the principles of totality we are bound to regard the five year sentence as manifestly excessive however it may have been constructed. We think, with respect, that the Judge’s perception of the case as one of disconnected episodes of offending has resulted in the case falling outside the indicative guidelines of Terewi, not for reasons pertinent to the nature and scale of the offending itself but because the court’s order in relation to bail may have been flouted.
[11]	Because, in our view, the offending is in the nature of a continuum, we think it appropriate that the sentences should be concurrent and accordingly we allow the appeal, quash all the sentences and substitute in respect of each count a sentence of four years imprisonment, all terms to be concurrent.