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ROSEVEAR v R [2005] NZCA 222 (29 August 2005)

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ROSEVEAR v R [2005] NZCA 222 (29 August 2005)

Last Updated: 19 September 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA238/05

THE QUEEN

v

IAN FRANK ROSEVEAR

Hearing: 11 August 2005

Court: Anderson P, William Young and Robertson JJ

Counsel: M W F Esera and S L R Ineson for Applicant
A M Powell for Crown

Judgment: 29 August 2005

JUDGMENT OF THE COURT

Leave to apply out of time is granted to enable reconsideration of all relevant factors, but the appeal is dismissed.
____________________________________________________________________

REASONS

(Given by Robertson J)

Introduction

[1] This is an application for leave to appeal against sentence. On 4 April 2005, Mr Rosevear was sentenced to 12 months’ imprisonment by Barry DCJ in the District Court at Wellington having pleaded guilty to six counts relating to the cultivation and selling of cannabis and the production and supply of the Class B controlled drug cannabis oil. Although Mr Rosevear had been apprehended in August 2004, the sentencing Judge accepted that there were reasons which justified the delay and that the sentencing process should include a credit for guilty pleas.
[2] The Judge declined leave to apply for home detention and that is the point in issue on the appeal.

Factual circumstances

[3] On the morning of Wednesday 25 August 2004, police executed a search warrant at the applicant’s residential address in Lower Hutt which was a two storey flat. In the ceiling cavity (to which access was gained via a ladder to a manhole located in the upper floor bathroom) the police discovered an enclosure five metres by two metres which was lined with reflectorised building paper. There were four high powered glowing lights suspended from the ceiling and 18 cannabis plants, ranging in height between ten and 65 centimetres, were located. The police also discovered in the vicinity of this area plastic containers filled with water, bottles of nutrients and fertiliser.
[4] Elsewhere in the house were various plastic bags and pill boxes containing cannabis head, substantial amounts of pre-cut tinfoil, two sets of sensitive weighing scales, and two new one-litre isopropyl alcohol containers. In the laundry area, police discovered plastic clips and sealed bags containing cannabis plant material soaked in isopropyl alcohol and various other pieces of equipment and accoutrements commonly found in association with cannabis dealing and production of cannabis oil.
[5] The police also found tick lists and were of the view that these indicated sales had been effected by the applicant to the value of $4,445.00.
[6] The applicant admitted growing cannabis, producing cannabis oil and possession of the drugs located at his address, but denied selling, saying anything found was for his personal use and for his medical condition.

Appeal out of time

[7] The sentence was imposed on 4 April 2005. Any appeal needed to be filed by 10 May 2005. The application for leave to appeal, and the appeal itself, was filed on 12 July 2005.
[8] There is no evidence as to the delay, but in his submissions Mr Esera noted that he had been instructed to make this application because of the applicant’s deteriorating health. Mr Rosevear had been in a car accident in 1999 and suffered injury to his spine and had ongoing pain management issues. Counsel contended that the applicant’s condition had worsened significantly while in custody, notwithstanding the prison services’ attempts to make allowances for his condition. It was submitted that this had become worse over time. Although Mr Rosevear would be eligible for release at the beginning of October 2005, the applicant had instructed that his health in prison was worsening daily and that counsel should pursue any opportunity to have him released home into an environment better equipped to deal with his condition.
[9] The principles which apply to appeals out of time are well known and are summarised in R v Knight [1988] NZLR 583.

The merits of the appeal

[10] The question of leave to apply for home detention is covered by s 97(3) of the Sentencing Act 2002 which was amended by the Sentencing Amendment Act 2004 with effect from 7 July 2004. The earlier provision provided:

The court must grant the offender leave to apply to the New Zealand Parole Board under section 33 of the Parole Act 2002 for home detention unless the court is satisfied that it would be inappropriate to grant leave taking into account--
(a) the nature and seriousness of the offence; and
(b) the circumstances and background of the offender; and
(c) any relevant matters in the victim impact statement in the case; and
(d) any other factor that the court considers relevant.

As amended, the subsection now reads:

The court may grant the offender leave to apply to the New Zealand Parole Board under section 33 of the Parole Act 2002 for home detention only if the court is satisfied that it would be appropriate to grant leave, taking into account--
(a) the nature and seriousness of the offence; and
(b) the circumstances and background of the offender; and
(c) any relevant matters in the victim impact statement in the case.

[11] The effect of the amendment was to remove a presumption in favour of leave being granted unless it was inappropriate and replacing it with a more permissive discretion that was only to be exercised if it was appropriate having regard to the stipulated factors. This is similar to the regime which applied under s 21D of the Criminal Justice Act 1985.
[12] Many of the six counts in this indictment covered a period prior to 7 July 2004. It is important to note that the cultivation offending was alleged to have occurred between 1 July 2003 and 25 August 2004 and attracted a penalty of 12 months’ imprisonment. Realistically the applicant cannot avoid the fact that he was cultivating on 25 August 2004 when the police searched his premises.
[13] Consequently we are of the view that, from a practical point of view in the circumstances of this case, the amended form of the Act must apply at least to that count upon which a 12 month sentence was imposed. Issues about retrospective detriment do not arise for consideration in this case.
[14] Complaint is made that the Judge, in dealing with the question of home detention, failed to express any consideration of the personal circumstances of the applicant.
[15] The Judge said only:

Leave to apply for home detention is declined in the circumstances particularly in the situation of offending coming from the home.

As this Court noted in R v Barton [2002] NZLR 459, extensive reasons are not to be expected although, as subsequently noted in R v Husband [2000] NZCA 227; [2000] 18 CRNZ 229 the reasons must be nevertheless sufficient to explain the basic reasoning process.

[16] Mr Powell accepted that the Judge did not specifically articulate that he had taken account of all the required factors when he limited his comment to the fact that the offending occurred in the home. That might necessitate this Court’s considering afresh whether it was appropriate to grant leave to apply for home detention.
[17] It is the case that the Judge’s reasons for declining leave to apply for home detention were somewhat laconic. This may have been because, to those familiar with sentencing practices, the prospect of the offender being returned to the scene of his elaborate cannabis growing would seem a manifest affront to justice. The reasons should, however, be articulated for the information of a wider audience.
[18] Mr Esera noted the decision of this Court in R v Hakiwai [2003] BCL 615 which counsel submitted could on its facts be distinguished from the present case. Reference was also made to R v Ali CA156/04 29 July 2004 which it was argued could be distinguished on its facts but counsel sought support from R v Shallcrass CRI-2004031-406 18 August 2004 where there had been leave to apply.
[19] There are substantial difficulties in too heavy a reliance on previous decisions which are so fact based.
[20] In late 2001 in the High Court in Christchurch, in Havill v The Police HC CH AP24/01, William Young J undertook an analysis of the operation of s 21D of the Criminal Justice Act and the patterns which had emerged when applications for leave to apply for home detention were made in relation to cannabis cultivation offences. This revealed that, in a majority of such cases, leave was refused and that overall only about 20% of offenders were actually released on home detention. Subsequent statistics may be of only limited assistance because of the changing statutory test. But given that the current test is now not markedly different from what it was when Havill was decided, it is clear that the refusal of leave in this case was not contrary to general sentencing practice.
[21] This was a low-level commercial operation but one which showed determination and a degree of sophistication. There is no question that it continued over a period of time. It is unarguable that it comes within the second category in R v Terewi [1997] 3 NZLR 62 with a starting point of two to four years.
[22] As the sentencing Judge noted, the fact that the offending occurred in his home is, in the circumstances, a matter of particular importance, especially in an area where deterrent sentences are required.
[23] Although this middle-aged man had no previous convictions for drug offences, he was not a stranger to the Courts. It cannot be ignored that the Judge’s starting point of two years was at the low point. It was halved because of the guilty pleas and no previous drug offending. The pre-sentence report indicated that the applicant had a medium risk of re-offending which was "increased by his current offending and his limited insight into his offending".
[24] Considering the nature and seriousness of this offending, and having regard to all of the offender’s background circumstances, this case does not meet the threshold in s 97(3) for leave to be granted to apply for home detention.
[25] We are satisfied that this is one of those situations where to grant home detention would be to undermine the clear deterrent effects of what was a merciful sentence.
[26] There is no material before us which suggests that the medical situation is so extreme as to justify a special approach. There is opportunity in the prison service for appropriate arrangements for a person’s condition to be properly monitored and responded to.
[27] The Judge’s starting point sentence of two years was at the bottom end of the available range and, more significantly, the discount from that starting point for a late plea and absence of prior drug offending was surprisingly generous.

Conclusion

[28] Considering the matter afresh, we are of the view that this is a case where the leave to apply for home detention should not be granted in light of the approach in the Act as amended in 2004.
[29] Leave to apply out of time is granted to enable reconsideration of all relevant factors, but the appeal is dismissed.

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt, for Applicant
Crown Law Office, Wellington

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[3]	On the morning of Wednesday 25 August 2004, police executed a search warrant at the applicant’s residential address in Lower Hutt which was a two storey flat. In the ceiling cavity (to which access was gained via a ladder to a manhole located in the upper floor bathroom) the police discovered an enclosure five metres by two metres which was lined with reflectorised building paper. There were four high powered glowing lights suspended from the ceiling and 18 cannabis plants, ranging in height between ten and 65 centimetres, were located. The police also discovered in the vicinity of this area plastic containers filled with water, bottles of nutrients and fertiliser.
[4]	Elsewhere in the house were various plastic bags and pill boxes containing cannabis head, substantial amounts of pre-cut tinfoil, two sets of sensitive weighing scales, and two new one-litre isopropyl alcohol containers. In the laundry area, police discovered plastic clips and sealed bags containing cannabis plant material soaked in isopropyl alcohol and various other pieces of equipment and accoutrements commonly found in association with cannabis dealing and production of cannabis oil.
[5]	The police also found tick lists and were of the view that these indicated sales had been effected by the applicant to the value of $4,445.00.
[6]	The applicant admitted growing cannabis, producing cannabis oil and possession of the drugs located at his address, but denied selling, saying anything found was for his personal use and for his medical condition.

[7]	The sentence was imposed on 4 April 2005. Any appeal needed to be filed by 10 May 2005. The application for leave to appeal, and the appeal itself, was filed on 12 July 2005.
[8]	There is no evidence as to the delay, but in his submissions Mr Esera noted that he had been instructed to make this application because of the applicant’s deteriorating health. Mr Rosevear had been in a car accident in 1999 and suffered injury to his spine and had ongoing pain management issues. Counsel contended that the applicant’s condition had worsened significantly while in custody, notwithstanding the prison services’ attempts to make allowances for his condition. It was submitted that this had become worse over time. Although Mr Rosevear would be eligible for release at the beginning of October 2005, the applicant had instructed that his health in prison was worsening daily and that counsel should pursue any opportunity to have him released home into an environment better equipped to deal with his condition.
[9]	The principles which apply to appeals out of time are well known and are summarised in R v Knight [1988] NZLR 583.

[11]	The effect of the amendment was to remove a presumption in favour of leave being granted unless it was inappropriate and replacing it with a more permissive discretion that was only to be exercised if it was appropriate having regard to the stipulated factors. This is similar to the regime which applied under s 21D of the Criminal Justice Act 1985.
[12]	Many of the six counts in this indictment covered a period prior to 7 July 2004. It is important to note that the cultivation offending was alleged to have occurred between 1 July 2003 and 25 August 2004 and attracted a penalty of 12 months’ imprisonment. Realistically the applicant cannot avoid the fact that he was cultivating on 25 August 2004 when the police searched his premises.
[13]	Consequently we are of the view that, from a practical point of view in the circumstances of this case, the amended form of the Act must apply at least to that count upon which a 12 month sentence was imposed. Issues about retrospective detriment do not arise for consideration in this case.
[14]	Complaint is made that the Judge, in dealing with the question of home detention, failed to express any consideration of the personal circumstances of the applicant.
[15]	The Judge said only:

[16]	Mr Powell accepted that the Judge did not specifically articulate that he had taken account of all the required factors when he limited his comment to the fact that the offending occurred in the home. That might necessitate this Court’s considering afresh whether it was appropriate to grant leave to apply for home detention.
[17]	It is the case that the Judge’s reasons for declining leave to apply for home detention were somewhat laconic. This may have been because, to those familiar with sentencing practices, the prospect of the offender being returned to the scene of his elaborate cannabis growing would seem a manifest affront to justice. The reasons should, however, be articulated for the information of a wider audience.
[18]	Mr Esera noted the decision of this Court in R v Hakiwai [2003] BCL 615 which counsel submitted could on its facts be distinguished from the present case. Reference was also made to R v Ali CA156/04 29 July 2004 which it was argued could be distinguished on its facts but counsel sought support from R v Shallcrass CRI-2004031-406 18 August 2004 where there had been leave to apply.
[19]	There are substantial difficulties in too heavy a reliance on previous decisions which are so fact based.
[20]	In late 2001 in the High Court in Christchurch, in Havill v The Police HC CH AP24/01, William Young J undertook an analysis of the operation of s 21D of the Criminal Justice Act and the patterns which had emerged when applications for leave to apply for home detention were made in relation to cannabis cultivation offences. This revealed that, in a majority of such cases, leave was refused and that overall only about 20% of offenders were actually released on home detention. Subsequent statistics may be of only limited assistance because of the changing statutory test. But given that the current test is now not markedly different from what it was when Havill was decided, it is clear that the refusal of leave in this case was not contrary to general sentencing practice.
[21]	This was a low-level commercial operation but one which showed determination and a degree of sophistication. There is no question that it continued over a period of time. It is unarguable that it comes within the second category in R v Terewi [1997] 3 NZLR 62 with a starting point of two to four years.
[22]	As the sentencing Judge noted, the fact that the offending occurred in his home is, in the circumstances, a matter of particular importance, especially in an area where deterrent sentences are required.
[23]	Although this middle-aged man had no previous convictions for drug offences, he was not a stranger to the Courts. It cannot be ignored that the Judge’s starting point of two years was at the low point. It was halved because of the guilty pleas and no previous drug offending. The pre-sentence report indicated that the applicant had a medium risk of re-offending which was "increased by his current offending and his limited insight into his offending".
[24]	Considering the nature and seriousness of this offending, and having regard to all of the offender’s background circumstances, this case does not meet the threshold in s 97(3) for leave to be granted to apply for home detention.
[25]	We are satisfied that this is one of those situations where to grant home detention would be to undermine the clear deterrent effects of what was a merciful sentence.
[26]	There is no material before us which suggests that the medical situation is so extreme as to justify a special approach. There is opportunity in the prison service for appropriate arrangements for a person’s condition to be properly monitored and responded to.
[27]	The Judge’s starting point sentence of two years was at the bottom end of the available range and, more significantly, the discount from that starting point for a late plea and absence of prior drug offending was surprisingly generous.

[28]	Considering the matter afresh, we are of the view that this is a case where the leave to apply for home detention should not be granted in light of the approach in the Act as amended in 2004.
[29]	Leave to apply out of time is granted to enable reconsideration of all relevant factors, but the appeal is dismissed.