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The Queen v Worthington [2006] NZCA 4 (23 March 2006)

Last Updated: 25 March 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA481/05

THE QUEEN

v

IAN CHARLES WORTHINGTON

Hearing: 16 February 2006

Court: William Young P, Potter and Rodney Hansen JJ

Counsel: W D McKean for Appellant
J M Jelas for Crown

Judgment: 23 February 2006

JUDGMENT OF THE COURT

A The appeal is allowed.

B The appellant is granted leave to apply for home detention.

REASONS

(Given by Rodney Hansen J)

Introduction

[1] The appellant pleaded guilty in the Whangarei District Court to charges of cultivating cannabis and possession of cannabis for the purpose of supply. He was sentenced to imprisonment for a term of one year and ten months. Leave to apply for home detention was refused. He appeals against the refusal to grant leave to apply for home detention.

Facts

[2] On 3 April 2004 the police executed a search warrant on the appellant’s farm property in Northland. They initially found 30 grams of cannabis in the master bedroom of the farmhouse. A more extensive search was carried out. Seven cannabis plants, each approximately one metre tall, were found in an area of bush and scrub. Nearby, concealed in the bush, was a shed containing a drying room and racks on which high-quality cannabis material was drying. A gas heater and electric fan connected to a car battery were in use. Other equipment included electronic weighing scales, plastic bags and plastic drums.
[3] The cannabis material seized totalled almost three kilos of high-grade seedless cannabis heads with a value of some $19,000 and 5.4 kilos of low-grade cannabis leaf, with a value of some $1,200. In a further search of the master bedroom the police found $8,540 in cash hidden under the mattress. The appellant offered an innocent explanation for the money, the plausibility of which does not need to be considered for the purpose of this appeal.

Sentence

[4] The Judge accepted that some of the cannabis was for the appellant’s own use. He acknowledged being a long time heavy user of the drug. However, the Judge expressed satisfaction that the principal purpose of his activities was commercial. He found that the offending fell within Category 2 in R v Terewi [1999] 3 NZLR 62, covering small-scale cultivation for profit. He selected a starting point of two and a half years. In reducing the sentence by one-third he took into account the appellant’s plea of guilty, his previous good character and his excellent record within the community.
[5] In refusing leave to apply for home detention the Judge said:

I have considered the issue of home detention. Certainly the sentence I have imposed places you within the range that renders you eligible to apply, but given the fact that the offending occurred on your property I cannot see, with respect, that home detention is appropriate here. Leave to apply for home detention will accordingly be refused.

Home detention – statutory provisions

[6] When provision for a prison sentence to be served by home detention was first introduced on 1 October 1999, s 21D(3) of the Criminal Justice Act 1985 simply required the Court, in considering whether to grant leave, to consider the nature and seriousness of the offence and any relevant matters in the victim impact statement. Section 97(3) of the Sentencing Act 2002 changed the way in which the jurisdiction was to be exercised, providing:

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.

[7] Section 97(3) was amended with effect from 7 July 2004 to provide that leave should be granted only if the Court is satisfied that it would be appropriate to grant leave taking into account the nature and seriousness of the offence, the circumstances and background of the offender and any relevant matters in the victim impact statement.
[8] As the offending occurred on 3 April 2004, s 97(3) as originally enacted applied. (The changes to subs (3) do not apply retrospectively: R v Fisher [2004] NZCA 323; (2004) 21 CRNZ 402 (CA)). The Judge was therefore required to grant leave to apply for home detention unless he was satisfied it was inappropriate having regard to the factors set out in s 97(3).

Discussion

[9] The way in which the Judge dealt with the application for home detention suggests that he did not appreciate that the original s 97(3) applied. (This is not surprising if, as Mr McKean said, the matter was not addressed in the course of sentencing. It would be natural to assume that the current provision, by then in force for more than 15 months, would have applied.) There is no acknowledgement in the Judge’s decision of the presumption in favour of granting leave. The issue was disposed of by reference only to the fact that the offending had taken place on the appellant’s property. No apparent consideration was given to other relevant factors.
[10] The fact that the offending took place at the property to which the appellant will be released is obviously a highly relevant factor. Depending on the circumstances, it may be decisive: see, for example, R v Hakiwai CA19/03 30 May 2003. But it is not the only factor to be considered. If other considerations indicate that the risk of reoffending can be appropriately managed, the Court may grant leave notwithstanding that offending occurred in the home: see R v Husband (2000) CRNZ 229.
[11] The Judge made no reference to indications in the appellant’s circumstances and background which favour the grant of leave. At the age of forty, he is a first offender. He lives in a stable relationship. He has a strong and highly supportive extended family. In the pre-sentence report he is assessed by the probation officer as a responsible and hard-working individual who has good insight into his offending and is considered highly motivated to change. He is considered to be at low risk of reoffending.
[12] Had the Judge given consideration to these factors in terms of s 97(3) before it was amended, we are in no doubt that he would have given leave to apply for home detention.

Result

[13] The appeal is allowed. The appellant is granted leave to apply for home detention.

Solicitors:
Webb Ross Johnson, Whangarei for Appellant
Crown Law Office, Wellington

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(a)	the nature and seriousness of the offence; and
(b)	the circumstances and background of the offender; and

[7]	Section 97(3) was amended with effect from 7 July 2004 to provide that leave should be granted only if the Court is satisfied that it would be appropriate to grant leave taking into account the nature and seriousness of the offence, the circumstances and background of the offender and any relevant matters in the victim impact statement.
[8]	As the offending occurred on 3 April 2004, s 97(3) as originally enacted applied. (The changes to subs (3) do not apply retrospectively: R v Fisher [2004] NZCA 323; (2004) 21 CRNZ 402 (CA)). The Judge was therefore required to grant leave to apply for home detention unless he was satisfied it was inappropriate having regard to the factors set out in s 97(3).

[9]	The way in which the Judge dealt with the application for home detention suggests that he did not appreciate that the original s 97(3) applied. (This is not surprising if, as Mr McKean said, the matter was not addressed in the course of sentencing. It would be natural to assume that the current provision, by then in force for more than 15 months, would have applied.) There is no acknowledgement in the Judge’s decision of the presumption in favour of granting leave. The issue was disposed of by reference only to the fact that the offending had taken place on the appellant’s property. No apparent consideration was given to other relevant factors.
[10]	The fact that the offending took place at the property to which the appellant will be released is obviously a highly relevant factor. Depending on the circumstances, it may be decisive: see, for example, R v Hakiwai CA19/03 30 May 2003. But it is not the only factor to be considered. If other considerations indicate that the risk of reoffending can be appropriately managed, the Court may grant leave notwithstanding that offending occurred in the home: see R v Husband (2000) CRNZ 229.
[11]	The Judge made no reference to indications in the appellant’s circumstances and background which favour the grant of leave. At the age of forty, he is a first offender. He lives in a stable relationship. He has a strong and highly supportive extended family. In the pre-sentence report he is assessed by the probation officer as a responsible and hard-working individual who has good insight into his offending and is considered highly motivated to change. He is considered to be at low risk of reoffending.
[12]	Had the Judge given consideration to these factors in terms of s 97(3) before it was amended, we are in no doubt that he would have given leave to apply for home detention.