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PAKI v R [2005] NZCA 227 (5 September 2005)

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PAKI v R [2005] NZCA 227 (5 September 2005)

Last Updated: 19 September 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/05

THE QUEEN

v

LORRAINE PAKI

Hearing: 31 August 2005

Court: Anderson P, Randerson and Williams JJ

Counsel: N Deobhakta for Appellant
M A Woolford for Crown

Judgment: 5 September 2005

JUDGMENT OF THE COURT

Appeal allowed to the extent that leave to apply for home detention is granted, but in all other respects the sentence is affirmed.

____________________________________________________________________

REASONS

(Given by Anderson P)

[1] This is an appeal against sentence. The appellant was arrested in September 2004 following the execution of a search warrant at her premises. The search disclosed 15 cannabis tinnies, a bag containing a small amount of cannabis material, a container of four $20 notes, and tick lists relating to drug clients. The appellant admitted to the Police that she had been selling tinnies from the address since she had moved into it approximately six months previously.
[2] The appellant elected trial by jury. On 6 April 2005, some six months after her arrest, she pleaded guilty on arraignment to one count of being in possession of cannabis for sale, one specific count of selling cannabis on the day the search warrant was executed, and one representative count of selling cannabis over the six months she had been living at the premises. On 13 May she was sentenced by Judge Clark who imposed a term of 20 months imprisonment and declined leave to apply for home detention. She has been in prison since that date.
[3] The grounds of appeal are that the 20 month term was excessive, inadequate allowance was made for the guilty plea, and leave to apply for home detention should have been granted.
[4] In his written submissions for the Crown, Mr Woolford pointed out decisions of this Court, notably R v Terewi [1999] 3 NZLR 62 and R v Andrews [2000] 2 NZLR 205, as authorities for the principle that cannabis cases involving any commercial element fall within category 2 of Terewi and as such are amenable to sentences of between two years and four years imprisonment. The Judge had the benefit of an agreed statement of facts, reflected in the outline at the beginning of this judgment and had correctly identified the offending as of an ongoing nature. The appellant did not stand before the Court as someone with a clear previous record. There were some earlier drug convictions involving cultivation, selling and possessing of cannabis plant for supply although, as the Judge recognised, they were almost ten years previously.
[5] As to the allowance for a guilty plea and personal factors related to a number of the favourable references, the Judge had discounted six months from a starting point of two years two months. That, in counsel’s submission, was not inadequate. The guilty plea was not at the earliest opportunity and personal factors warrant only limited allowance in cases of drug offending. Counsel submitted that the Judge’s process was sound and in line with authorities. The submission by appellant’s counsel both at sentencing and on this appeal that the sentence ought not to have exceeded 18 months hardly indicates manifest excess in a sentence of 20 months.
[6] As to the issue of leave to apply for home detention, the Judge had taken into account that the offending occurred over a protracted period and partly from the appellant’s home. Declining home detention in such circumstances is consistent with such authorities as R v Rewha CA252/00 28 September 2000 and R v Vogel & Ors CA364/00 14 December 2000. This Court followed the same approach more recently in R v Rosevear CA238/05 11 August 2005.
[7] In summary, the Crown submitted that 20 months imprisonment and an order declining leave to apply for home detention was a sentence within the range available to the District Court Judge in terms of fact and principle.

Discussion

[8] No proper exception can be taken to a starting point of two years two months imprisonment, that being at the lower end of category 2 indicated by R v Terewi. The appellant’s admission and the material evidence show a relatively low-grade but persistent commercial enterprise.
[9] As to the allowance to be made for a guilty plea, account would have to be taken of the delay of five-six months before being caught in patently incriminating circumstances coupled with an admission, and the organising of an arraignment for the purpose of pleading guilty. The Judge noted a submission on behalf of the appellant explaining the delay on the basis of a wish to test the legality of the search warrant, and that once all the available information to make that assessment had been made a decision was reached to plead guilty. However, the largest discounts for guilty pleas are those where guilt is immediately acknowledged and not those where guilt exists but accused test matters tactically before acknowledging fault. In the latter case, of course, accused persons are not penalised but they cannot expect the same discounts as if they had owned up at the earliest opportunity.
[10] As to personal circumstances, we acknowledge the respect and goodwill the appellant has amongst people who know her in various capacities including at work, amongst her community and in relation to her small business of recycled clothing carried on in the commercial premises underneath her accommodation. The Judge gave some consideration to that but acknowledged that personal circumstances carry limited weight in drug cases.
[11] In relation to the question of home detention we think it convenient to set out the Judge’s sentencing remarks on that issue:

[9] The next issue that I need to consider is whether leave ought to be granted for you to apply for home detention. The Crown submission is that it would be inappropriate. In particular they refer to the nature of the offending being "low scale commercial dealing", that it occurred from your home and that you have previous relevant matters, in particular, the convictions in 1995.
[10] Mr Deobhakta submits that home detention leave ought to be granted to you and refers to your personal circumstances in particular.
[11] You have said through your counsel that you are ashamed of what has taken place and I accept that and I have already made the comment that you have otherwise shown yourself to be a positive contributor in the community. You have let yourself down, in particular on this occasion, and your family to an extent. I refer more to the reason you have given for stopping cannabis use, your grandchildren.
[12] I made an enquiry a short time ago about your residence and the existence of the business. You had a successful business, it is still going. This offending was at home and it was over quite a long period of time, about six months. In my view, given the "low scale commercial dealing", the length of time over which it occurred and to a certain extent the previous convictions and notwithstanding the really good reference, I do not consider it appropriate for leave to be granted to apply for home detention. I am confident, however, with the very good references I have here, that this is something that you will be able to overcome and I do not expect that you will behave in a way like this in the future.

[12] We accept that the declining of leave to apply for home detention is usual in cases involving offending over a period of time and where that offending has occurred in a home environment. This is particularly so in cases of drug offending. The possibility of returning home, to the scene of offending, a relatively short time after conviction, could tend to undermine the deterrent aspect of sentencing in such cases, and detract from the authority of the judicial process in the eyes of the public. But the judicial discretion must not be fettered, even if sparingly exercised in the types of cases we have mentioned.
[13] In the present case there are a number of indications for considering the grant of leave. One is the esteem the appellant has built up in her community, as evidenced by the numerous references advanced for her. Another is the view of the Judge, who had the opportunity of seeing the appellant and forming a personal impression, that the appellant was not expected to behave similarly in future. A matter which has, in conjunction with those, persuaded us that this is a case where leave could be granted, is evidence given before us by the appellant’s mother, Mrs W Paki. This is an advantage the District Court Judge did not have.
[14] Mrs W Paki is employed by the same company that employed the appellant. We understand from Mrs W Paki that her daughter’s job may be kept open for her if home detention is granted. The rehabilitative prospects of working with the benefit of the mother’s support and counsel are a favourable consideration. More to the point however, Mrs W Paki told us in her evidence that she would let the appellant live with her during a period of home detention, so that a condition of any grant could be that the appellant does live in the maternal environment. Significantly, when we questioned Mrs W Paki, she gave this Court an assurance, not only that she would support her daughter but also that, whilst the appellant was living with her on home detention, she would tell the Police if she knew her daughter was committing offences, including getting into cannabis or other drugs.
[15] We have to say, with respect, that we were very impressed with Mrs W Paki and the assurances she gave the Court. When that factor is added to the unlikelihood of further offending, and the fact that she could be required to live with her mother if home detention were granted, we are persuaded to take the unusual course of granting leave.
[16] In the result, we allow the appeal to the extent that we grant leave to apply for home detention, but in all other respects the sentence is affirmed.

Solicitors:
Crown Law Office, Wellington

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[1]	This is an appeal against sentence. The appellant was arrested in September 2004 following the execution of a search warrant at her premises. The search disclosed 15 cannabis tinnies, a bag containing a small amount of cannabis material, a container of four $20 notes, and tick lists relating to drug clients. The appellant admitted to the Police that she had been selling tinnies from the address since she had moved into it approximately six months previously.
[2]	The appellant elected trial by jury. On 6 April 2005, some six months after her arrest, she pleaded guilty on arraignment to one count of being in possession of cannabis for sale, one specific count of selling cannabis on the day the search warrant was executed, and one representative count of selling cannabis over the six months she had been living at the premises. On 13 May she was sentenced by Judge Clark who imposed a term of 20 months imprisonment and declined leave to apply for home detention. She has been in prison since that date.
[3]	The grounds of appeal are that the 20 month term was excessive, inadequate allowance was made for the guilty plea, and leave to apply for home detention should have been granted.
[4]	In his written submissions for the Crown, Mr Woolford pointed out decisions of this Court, notably R v Terewi [1999] 3 NZLR 62 and R v Andrews [2000] 2 NZLR 205, as authorities for the principle that cannabis cases involving any commercial element fall within category 2 of Terewi and as such are amenable to sentences of between two years and four years imprisonment. The Judge had the benefit of an agreed statement of facts, reflected in the outline at the beginning of this judgment and had correctly identified the offending as of an ongoing nature. The appellant did not stand before the Court as someone with a clear previous record. There were some earlier drug convictions involving cultivation, selling and possessing of cannabis plant for supply although, as the Judge recognised, they were almost ten years previously.
[5]	As to the allowance for a guilty plea and personal factors related to a number of the favourable references, the Judge had discounted six months from a starting point of two years two months. That, in counsel’s submission, was not inadequate. The guilty plea was not at the earliest opportunity and personal factors warrant only limited allowance in cases of drug offending. Counsel submitted that the Judge’s process was sound and in line with authorities. The submission by appellant’s counsel both at sentencing and on this appeal that the sentence ought not to have exceeded 18 months hardly indicates manifest excess in a sentence of 20 months.
[6]	As to the issue of leave to apply for home detention, the Judge had taken into account that the offending occurred over a protracted period and partly from the appellant’s home. Declining home detention in such circumstances is consistent with such authorities as R v Rewha CA252/00 28 September 2000 and R v Vogel & Ors CA364/00 14 December 2000. This Court followed the same approach more recently in R v Rosevear CA238/05 11 August 2005.
[7]	In summary, the Crown submitted that 20 months imprisonment and an order declining leave to apply for home detention was a sentence within the range available to the District Court Judge in terms of fact and principle.

[8]	No proper exception can be taken to a starting point of two years two months imprisonment, that being at the lower end of category 2 indicated by R v Terewi. The appellant’s admission and the material evidence show a relatively low-grade but persistent commercial enterprise.
[9]	As to the allowance to be made for a guilty plea, account would have to be taken of the delay of five-six months before being caught in patently incriminating circumstances coupled with an admission, and the organising of an arraignment for the purpose of pleading guilty. The Judge noted a submission on behalf of the appellant explaining the delay on the basis of a wish to test the legality of the search warrant, and that once all the available information to make that assessment had been made a decision was reached to plead guilty. However, the largest discounts for guilty pleas are those where guilt is immediately acknowledged and not those where guilt exists but accused test matters tactically before acknowledging fault. In the latter case, of course, accused persons are not penalised but they cannot expect the same discounts as if they had owned up at the earliest opportunity.
[10]	As to personal circumstances, we acknowledge the respect and goodwill the appellant has amongst people who know her in various capacities including at work, amongst her community and in relation to her small business of recycled clothing carried on in the commercial premises underneath her accommodation. The Judge gave some consideration to that but acknowledged that personal circumstances carry limited weight in drug cases.
[11]	In relation to the question of home detention we think it convenient to set out the Judge’s sentencing remarks on that issue:

[12]	We accept that the declining of leave to apply for home detention is usual in cases involving offending over a period of time and where that offending has occurred in a home environment. This is particularly so in cases of drug offending. The possibility of returning home, to the scene of offending, a relatively short time after conviction, could tend to undermine the deterrent aspect of sentencing in such cases, and detract from the authority of the judicial process in the eyes of the public. But the judicial discretion must not be fettered, even if sparingly exercised in the types of cases we have mentioned.
[13]	In the present case there are a number of indications for considering the grant of leave. One is the esteem the appellant has built up in her community, as evidenced by the numerous references advanced for her. Another is the view of the Judge, who had the opportunity of seeing the appellant and forming a personal impression, that the appellant was not expected to behave similarly in future. A matter which has, in conjunction with those, persuaded us that this is a case where leave could be granted, is evidence given before us by the appellant’s mother, Mrs W Paki. This is an advantage the District Court Judge did not have.
[14]	Mrs W Paki is employed by the same company that employed the appellant. We understand from Mrs W Paki that her daughter’s job may be kept open for her if home detention is granted. The rehabilitative prospects of working with the benefit of the mother’s support and counsel are a favourable consideration. More to the point however, Mrs W Paki told us in her evidence that she would let the appellant live with her during a period of home detention, so that a condition of any grant could be that the appellant does live in the maternal environment. Significantly, when we questioned Mrs W Paki, she gave this Court an assurance, not only that she would support her daughter but also that, whilst the appellant was living with her on home detention, she would tell the Police if she knew her daughter was committing offences, including getting into cannabis or other drugs.
[15]	We have to say, with respect, that we were very impressed with Mrs W Paki and the assurances she gave the Court. When that factor is added to the unlikelihood of further offending, and the fact that she could be required to live with her mother if home detention were granted, we are persuaded to take the unusual course of granting leave.
[16]	In the result, we allow the appeal to the extent that we grant leave to apply for home detention, but in all other respects the sentence is affirmed.