The Queen v Taui [2006] NZCA 125 (14 June 2006)

Last Updated: 22 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA494/05

THE QUEEN



v



RICHARD DAVID TAUI

Hearing: 6 June 2006

Court: Chambers, Robertson and Arnold JJ

Counsel: T C Thackery for Appellant
S B Edwards for Crown

Judgment: 14 June 2006     

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Chambers J)

Sentencing: possession of cannabis plant for supply

[1]	On 15 December 2004 the police executed a search warrant on Richard Taui’s home. They found nine cannabis tinnies, five clear plastic zip-lock bags filled with cannabis plant material, a stained glass bong, straw and utensils (suitable for the consumption of methamphetamine), and a small zip-lock bag containing one gram of methamphetamine. When searched, Mr Taui had $550 in his pocket, nearly all in $20 notes. On his cellphone, there were text messages from at least three people wanting to purchase cannabis from him at his home.
[2]	Mr Taui pleaded guilty on arraignment to one count of possession of cannabis plant for supply and one count of possession of methamphetamine. On 18 November 2005 Judge Dawson sentenced him to two years’ imprisonment on the cannabis charge and three months’ imprisonment (concurrent) on the charge of possessing methamphetamine. The judge declined leave to apply for home detention. He imposed special conditions relating to counselling and treatment for alcohol and drugs, as deemed appropriate by Mr Taui’s probation officer.
[3]	Mr Taui now appeals against the sentence of two years’ imprisonment and against the decision to decline leave to apply for home detention.

Issues on the appeal

[4]	Mr Thackery, for Mr Taui, puts forward two grounds for the appeal:

(a) the sentence was manifestly excessive in the circumstances of this case, in relation to the starting point and the discount for mitigating circumstances; and

(b) the judge erred in principle in declining leave to apply for home detention.

Starting point

[5]	Mr Thackery did not dispute that Judge Dawson had correctly categorised Mr Taui’s cannabis offending as falling within the second category in R v Terewi [1999] 3 NZLR 62 at [4]:

Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.

[6]	The Terewi categories have since been held applicable to other cannabis dealings as well as cultivation: R v Keefe CA275/02 28 November 2002 and R v Leighs CA360/02 15 September 2003.
[7]	Judge Dawson said at sentencing (DC PMN CRI-4-054-4814):

[16] At the sentence indication hearing, I indicated that, in my view, after reviewing R v Terewi, you would fall within category two as described in that case, which calls for a starting point of between two and four years’ imprisonment. I indicated at that hearing that in my view the appropriate starting point would be two and a half years’ imprisonment, reduced to two years after taking into account mitigating factors.
[17] Nothing that I have seen in the probation report or what I have seen or heard since persuades me that indication should change.

[8]	In fact, Judge Dawson did not use the word "starting point" in the sense this court used that term in Terewi. We say that because it is clear from the sentencing notes that the judge included in his starting point various aggravating features he had identified, including "the number of [Mr Taui’s] previous convictions": at [13]. This court made it clear in Terewi that its starting point indications were "before aggravating features (like previous drug offending) or mitigating features (like a guilty plea)" were considered: Terewi at [12]. Judge Dawson’s starting point for the cannabis offending (if that term is used as intended by the authors of Terewi) was, in fact, about two years. We say that because obviously there would need to be at least a six months’ uplift for the following features. First, there were the relevant prior convictions, as Judge Dawson noted. They were clearly an aggravating feature in terms of s 9(1)(j) of the Sentencing Act 2002. Secondly, Mr Taui’s conviction for possession of a class A drug had to be factored into the equation. The judge rightly concluded that this was an appropriate case for concurrent sentences of imprisonment. Accordingly, it was necessary in light of s 85(4) of the Sentencing Act to accord to the more serious offence "the penalty that [was] appropriate for the totality of the offending".
[9]	A two year starting point for commercial dealing in cannabis could not be said to be clearly inappropriate. Indeed, it was right at the bottom of the category two scale. And two and a half years for the totality of the offending (including aggravating features) was not exceptional.
[10]	There is nothing in this first point.

Mitigating factors

[11]	The judge gave a six month discount for the guilty plea (20%). Mr Thackery submitted that a 27% discount should have been given on that account and another 3% for other mitigating factors, making a total of 30%. Mr Thackery took the 27% from what was noted in this court in R v Woolley CA2/01 20 June 2001, but that case is not authority for the proposition that a 27% discount must normally be given.
[12]	To some extent, Mr Thackery approached this appeal as if we were sentencing at first instance. Clearly it would have been open to a judge on sentencing Mr Taui to have given a 27% discount for the guilty plea, but that is not the issue. The question for us is whether the judge who did sentence Mr Taui erred and whether the final sentence was manifestly excessive.
[13]	This was a very late guilty plea. The offending occurred in December 2004. The preliminary hearing was in May 2005. The trial was scheduled to commence on 10 November 2005. Mr Taui did not enter his guilty plea until after a sentence indication hearing on 26 October 2005. In those circumstances a discount of 20% was appropriate.
[14]	Mr Thackery pitched for an additional 3% discount on the basis that Mr Taui had suffered a back injury two years before which had left him a sickness beneficiary. Because Mr Taui had said to the probation officer that he used cannabis daily as "it helps me get through the day", Mr Thackery said it could be "inferred that the cannabis use was some form of unlawful pain relief". We reject that submission. First, we do not draw the inference Mr Thackery invites us to draw: Mr Taui’s regular use of cannabis predates the back injury. He uses cannabis because he likes it and because most of his friends use it too. Secondly, in any event, self-medication using an illegal substance is not a mitigating fact. It is no wonder that Judge Dawson "made no mention of these matters".
[15]	We have stood back and considered a two year sentence for the offending. Mr Thackery has not established that the sentence was outside the acceptable range. The appeal against the length of the sentence must fail.

Home detention

[16]	Judge Dawson considered the application for leave to apply for home detention, but declined it on the basis that home detention was inappropriate given that the offending had been committed from Mr Taui’s home: sentencing notes at [22].
[17]	Mr Thackery challenged the judge’s conclusion on two bases. First, he submitted that, "although offending in the home should be an adverse factor to be taken into account when considering home detention, it should not develop into an inflexible rule". We agree. But we can see nothing in the sentencing notes to suggest that Judge Dawson did apply "an inflexible rule". It was clear on the agreed facts that Mr Taui had been running a low level commercial cannabis operation from his home. It was also clear from the probation report that Mr Taui saw nothing wrong with cannabis. He said that most of his friends used cannabis. The probation officer assessed his motivation to reform as "low". In those circumstances, the judge was entitled to conclude that, were Mr Taui to return to the community immediately, he would be likely to resume old habits and that, in the circumstances, this was not an appropriate case to grant leave.
[18]	Mr Thackery’s second point relied on what he said was "new information". Mr Taui, who lived (prior to his being in prison) in Palmerston North, could go and live with the mother of his child at Tokomaru, a town about 20 kilometres south of Palmerston North. Mr Taui would be, Mr Thackery submitted, "under greater supervision" there.
[19]	We do not see this as affecting matters at all. The judge did not make his decision on the basis of any particular house: the suitability of particular accommodation would be, after all, a matter for the Parole Board if leave to apply for home detention had been granted. What the judge was concerned about was the fact that, if Mr Taui were allowed to serve his sentence in the community, it would be very difficult to prevent him offending further, even if confined to a specific residential address. His past activities showed that he could deal quite comfortably from home. There is no reason to suppose that Mr Taui’s former partner could prevent such offending; it is clear from the probation report that Mr Taui is a long-time user of cannabis, including presumably during the time he lived with his former partner.
[20]	This part of the appeal was an appeal against an exercise of discretion. Mr Thackery has not persuaded us that the judge took into account irrelevant matters or failed to take into account relevant matters or was otherwise plainly wrong. This part of the appeal must also fail.

Solicitors:
Opie & Dron, Palmerston North, for Appellant
Crown Law Office, Wellington