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The Queen v Stout [2006] NZCA 97 (22 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA450/05

THE QUEEN

v

GREGORY ROSS STOUT

Hearing: 16 May 2006

Court: Chambers, Baragwanath and Venning JJ

Counsel: S Tait for the Appellant
K B F Hastie for the Crown

Judgment: 22 May 2006

JUDGMENT OF THE COURT

A The appeal is allowed.
B The sentence of 12 months imprisonment cumulative on the existing term of imprisonment is quashed and replaced with a sentence of 9 months cumulative.

____________________________________________________________________

REASONS

(Given by Venning J)

Appeal

[1] On 10 November 2005 the appellant was sentenced in the District Court at Manukau to 12 months imprisonment on a charge of possession of cannabis for the purpose of supply. The sentence of 12 months was expressed to be cumulative on an existing term of imprisonment.

Background

[2] On 24 April 2004 the appellant was in a car with two other people. The car was stopped by the police. The police found 67 grams of cannabis in the car together with $20,327.70 in cash in a bag between the two front seats.
[3] The appellant was charged with possession of cannabis for supply. He was also charged with a number of other offences arising out of incidents he was involved in that day that led to the police stopping the car. The appellant was charged with possession of a firearm, reckless discharge of a firearm, threatening to kill or do grievous bodily harm with a firearm, and wilful damage. He pleaded guilty to those charges and was sentenced to a total term of imprisonment of three years on 26 November 2004. In addition, on the same date, 26 November 2004, the appellant was sentenced on a burglary charge committed some four years earlier, on 25 January 2000, and also on a later charge of possession of cannabis for supply that he pleaded guilty to, that offence having been committed on 15 August 2004.
[4] The appellant received a sentence of imprisonment for both those additional charges of nine months imprisonment. The nine months imprisonment imposed was concurrent as between those two charges, but was expressed to be cumulative on the three year term for the other offending. As a result, on 26 November 2004 the appellant was sentenced to an effective term of imprisonment of three years nine months.
[5] On 13 October 2005, the appellant was convicted following a trial in the District Court at Manukau on the remaining charge of possession of cannabis for supply. He was sentenced on that charge on 10 November 2005.
[6] In imposing sentence, Judge Blackie considered that the amount of the cannabis the appellant was found with, together with the money found in the car, put the offending in the second category of R v Terewi [1999] 3 NZLR 62, which put the starting point for sentence in the two to four year range. The Judge did not consider there were any mitigating factors. However, in imposing the sentence of 12 months, the Judge took into account that the appellant was already serving a term of imprisonment. The Judge observed:

12. The only thing I can take into account is that you are already serving a fairly substantial sentence. Had this charge been dealt with at the same time as the original charges for which you were sentenced, then it may be that the ultimate penalty would not have been significantly longer. I say significantly in terms of years, rather than months.
13. So it falls upon me now to impose a sentence that has to be in addition to the sentence that you are already serving. In other words I find this to be a different type of offending, involves different types of victims, it involves different types of considerations. However, I am aware of the fact which is urged upon me by your lawyer that I must impose a sentence that does not squash out all hope for the future, in other words it shows light at the end of the tunnel as far as you are concerned. So whereas I would normally have imposed a sentence in this case of between 2 years to 2 years and, say, 3 months, because of the fact that it is cumulative, I am prepared to impose a sentence of 12 months imprisonment.

Appellant’s submissions

[7] In support of the appeal, Mr Tait submitted:

(i) that the imposition of the cumulative term of imprisonment made the sentence manifestly excessive in the circumstances;
(ii) that the sentence was wrong in principle as it was not in line with the totality principle; and
(iii) that the Judge was incorrect to impose a cumulative sentence as opposed to a concurrent sentence.

Decision

[8] We do not accept the submissions that the Judge erred in principle by failing to comply with the totality principle or in the imposition of a cumulative sentence.
[9] The Judge properly directed himself to the totality principle in s 85 of the Sentencing Act 2002. Although he did not expressly refer to that section, the Judge identified the principle in the course of his sentencing notes and applied it. Apart from the passages referred to above, the Judge also referred to it at [16] of his sentencing notes.
[10] Further, the Judge was quite correct to conclude that the offending before him - the possession of cannabis for supply - was of a quite different kind from the other offending that the appellant had been involved in on 24 April 2004 and for which he had previously been sentenced so that a cumulative, as opposed to concurrent, sentence was appropriate: s 84(1).
[11] If the matter rested there, we would have dismissed the appeal. The Judge identified the correct starting point, had regard to the totality principle and was justified in imposing a cumulative sentence. However, the sentencing notes record that the Judge sentenced on the basis the appellant was serving a term of three years six months imprisonment. In the course of considering the appellant’s reintegration and rehabilitation back into the community, the Judge observed:

[8] ... Unfortunately there is not much that can be said in that regard, because you are already in prison for 31/2 years for other offending that occurred at or about the same time as this cannabis was located in the vehicle in which you were a passenger.

[12] In fixing the appropriate cumulative sentence for the offending as 12 months, the Judge clearly had in mind that a total sentence of four years six months was appropriate to reflect the criminality of the appellant’s overall offending.
[13] The Judge was in error. The appellant was serving a total term of three years nine months. As a result, the effect of the additional 12 months imposed was to impose a total sentence of four years nine months, some three months more than it appears the Judge intended. In the circumstances, we accept that the sentence imposed can not stand and that this is an appropriate case to allow the appeal to reflect the intention of the Judge, which was to impose a total term of imprisonment of four years six months.

Result

[14] The appeal is allowed. The sentence of 12 months imprisonment cumulative is set aside and replaced by a sentence of nine months imprisonment, cumulative on the existing term of imprisonment.

Solicitors:
Crown Law Office, Wellington

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[2]	On 24 April 2004 the appellant was in a car with two other people. The car was stopped by the police. The police found 67 grams of cannabis in the car together with $20,327.70 in cash in a bag between the two front seats.
[3]	The appellant was charged with possession of cannabis for supply. He was also charged with a number of other offences arising out of incidents he was involved in that day that led to the police stopping the car. The appellant was charged with possession of a firearm, reckless discharge of a firearm, threatening to kill or do grievous bodily harm with a firearm, and wilful damage. He pleaded guilty to those charges and was sentenced to a total term of imprisonment of three years on 26 November 2004. In addition, on the same date, 26 November 2004, the appellant was sentenced on a burglary charge committed some four years earlier, on 25 January 2000, and also on a later charge of possession of cannabis for supply that he pleaded guilty to, that offence having been committed on 15 August 2004.
[4]	The appellant received a sentence of imprisonment for both those additional charges of nine months imprisonment. The nine months imprisonment imposed was concurrent as between those two charges, but was expressed to be cumulative on the three year term for the other offending. As a result, on 26 November 2004 the appellant was sentenced to an effective term of imprisonment of three years nine months.
[5]	On 13 October 2005, the appellant was convicted following a trial in the District Court at Manukau on the remaining charge of possession of cannabis for supply. He was sentenced on that charge on 10 November 2005.
[6]	In imposing sentence, Judge Blackie considered that the amount of the cannabis the appellant was found with, together with the money found in the car, put the offending in the second category of R v Terewi [1999] 3 NZLR 62, which put the starting point for sentence in the two to four year range. The Judge did not consider there were any mitigating factors. However, in imposing the sentence of 12 months, the Judge took into account that the appellant was already serving a term of imprisonment. The Judge observed:

[8]	We do not accept the submissions that the Judge erred in principle by failing to comply with the totality principle or in the imposition of a cumulative sentence.
[9]	The Judge properly directed himself to the totality principle in s 85 of the Sentencing Act 2002. Although he did not expressly refer to that section, the Judge identified the principle in the course of his sentencing notes and applied it. Apart from the passages referred to above, the Judge also referred to it at [16] of his sentencing notes.
[10]	Further, the Judge was quite correct to conclude that the offending before him - the possession of cannabis for supply - was of a quite different kind from the other offending that the appellant had been involved in on 24 April 2004 and for which he had previously been sentenced so that a cumulative, as opposed to concurrent, sentence was appropriate: s 84(1).
[11]	If the matter rested there, we would have dismissed the appeal. The Judge identified the correct starting point, had regard to the totality principle and was justified in imposing a cumulative sentence. However, the sentencing notes record that the Judge sentenced on the basis the appellant was serving a term of three years six months imprisonment. In the course of considering the appellant’s reintegration and rehabilitation back into the community, the Judge observed: