The Queen v Bryant [2009] NZCA 287 (7 July 2009)

Last Updated: 14 July 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA177/2009 [2009] NZCA 287THE QUEEN

v

PAUL TEJA BRYANT

Hearing: 1 July 2009

Court: Hammond, Simon France and Lang JJ

Counsel: Appellant in person (together with N R Healey as McKenzie Friend)
J M Jelas for Crown

Judgment: 7 July 2009 at 3 pm

JUDGMENT OF THE COURT

1. An extension of time for appealing is granted.
2. Leave to have assistance from a McKenzie friend and to adduce fresh evidence on the appeal are granted.

100. The appeal against sentence is allowed. The sentence of two years three months’ imprisonment is quashed. Subject to the condition identified in [38], a sentence of four months’ home detention is imposed, together with the conditions set out in [35] and [36] of the judgment.

4. If a suitable home detention address is no longer available, a reduced sentence of 22 months’ imprisonment will be imposed instead.
5. An assessment of the suitability of the new home detention address is to be undertaken as soon as possible.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] Mr Bryant appeals against a sentence of two years three months’ imprisonment on one charge of possessing cannabis for sale. The grounds of appeal are that the starting point was too high and insufficient credit was given for personal mitigating factors. At the start of the hearing, without opposition we made preliminary orders extending the time for appeal, allowing a McKenzie friend and allowing fresh evidence (namely an affidavit from Mr Bryant).

Facts

[2] Mr Bryant and a co-offender were found carrying a large amount (44 kilograms) of recently cut cannabis out of the bush. The plot which provided the cannabis was found nearby. The men were originally charged with cultivation. However, following depositions, they pleaded guilty to the single count of possession for supply and were discharged on the cultivation charge.
[3] The cannabis plants which the offenders were carrying had come from 18 plants which, in a pruned state, ranged from 1.5 to 2.5 metres in height. The police dried off the cannabis and the resultant leaf and head material came to approximately 5 kilograms.
[4] Concerning value, the police estimates were based on evidence which indicated that cannabis head material could sell for between $2,000 and $5,000 per pound, or $200 and $500 per ounce, with $300 being a typical street value. Using these figures, the police estimated the cannabis possessed by these offenders had a potential value of $17,600 at $2,000 per pound or $42,253 at $300 per ounce. It can be seen that these figures take the lowest point of the range for bulk sales, and the mid-point for ounce sales.
[5] Matters particularly addressed at sentencing were the circumstances under which the offenders came to be in possession of cannabis, and the street values.

Decision under appeal

[6] In the District Court, Judge Weir rejected the offenders explanation that they were out pig-hunting and came upon the plot. Based on evidence filed for depositions, his Honour noted the absence of pig-hunting dogs, the unsuitability of the knife the offenders’ possessed for pig-hunting, and the general unsuitability of the area. It was noted that the plot had an electronic fence that needed turning off, and that the plants had been stripped in a manner that preserved their future viability. The plants were wrapped in sacks and twine, which the offenders had taken with them. Finally, there was electric wire similar to the fence in the offenders’ vehicle.
[7] His Honour also rejected an alternative valuation of the cannabis which trial counsel had advanced. It had been noted that in a recent High Court sentencing in the same region, a police officer had likewise identified the range for ounces as being between $250 to $500, with $300 an average figure. However, in that case the officer had estimated that the plants would yield on a conservative estimate two ounces of quality dry head. It was therefore argued that the eighteen plants in the present case would produce 36 ounces, meaning a value of $10,500.
[8] Weir DCJ observed that the plants in issue in the other case were only 60-100 cm in height and that the plant weight discussed therein was a wet weight. The Judge preferred to rely on the evidence particular to this case, finding it unhelpful to seek to bring matters across in that way from a completely different case.
[9] The Judge accepted there was no particular evidence of commerciality. He considered that the quantity and the fact they were caught leaving the plot put the case in the middle of band two in R v Terewi [1999] 3 NZLR 62 (CA). A 25 per cent discount for a guilty plea following depositions was given, leaving a final sentence of two years three months’ imprisonment.

Issues on appeal

[10] We address first some specific topics raised by Mr Bryant. The first issue raised on appeal is the Judge’s rejection of the pig-hunting explanation. Mr Bryant submits the Judge erred by accepting the police evidence and in effect determining there was only one way to go pig-hunting. The offenders had a dog, which had become lost. In support of the contention that the knife they had with them was suitable, Mr Bryant tenders a letter from an experienced pig hunter identifying that different knives can be used. The area was submitted to be suitable for pig-hunting since it was surrounded by forest.
[11] The Crown submits that the depositions evidence supports the Judge’s conclusion for the reasons he gave. The Crown rightly identifies that the concern seems to be that in rejecting this explanation, the offenders are thereby being punished for cultivating the crop. In oral submissions, Ms Jelas observed that the topic was really irrelevant. She noted that the appellant’s concern was that he had been sentenced as if he was the grower, but submitted that that there is no indication in the sentencing remarks that the starting point reflected that factor.
[12] In our view the focus on this issue is somewhat unfortunate. The Judge’s discussion no doubt reflects that the topic was the subject of considerable attention at the hearing. However, the reality is that a charge of cultivation had been laid, but was the subject of a discharge under s 347 of the Crimes Act 1961. Sentencing had to proceed on the basis that the offenders had cut the cannabis from the plot in order to dry it and sell it. That was the plea, and that was all the summary of facts alleged. Some of the observations made by the Judge do carry the implication that the offenders were responsible for the plot. For example, the reference to there being electric wire in the vehicle is only referable to the offenders being responsible for the fence around the plot.
[13] Whilst we accept that the sentencing remarks refer ultimately to the correct charge of possession for supply, we have some concern that the issue of who cultivated the plants was still a consideration.
[14] The second broad issue raised by Mr Bryant on the appeal is the starting point. Wrapped up in that topic are concerns about the lack of recognition given to the fact that the bundle of cannabis being carried by Mr Bryant was several kilograms lighter than that being carried by his co-offender; a renewed dispute as to the street value of the drugs and their quality; a complaint about the lack of weight given to the absence of any evidence of commerciality; and a complaint that there was no recognition given to the fact that some of the cannabis would have been for personal use.
[15] Concerning the first of these points, the two men were charged as being in joint possession of all the cannabis. Who was carrying the heavier bundle is irrelevant.
[16] As regards street value, Mr Bryant proffers a different calculation of what he is responsible for. It is, however, premised on his theory that he is only responsible for the drugs he was actually carrying. That being incorrect, it is unnecessary to traverse the detail. In terms of the quality of the cannabis, the summary of facts records that some of the plants had formed “seeded buds or heads”. Mr Bryant relies on this to show that some would have achieved lower street values. However, the figures used to calculate street values were an estimate of average returns. Inherent in this is the proposition that different plants will be of different quality and obtain varying returns.
[17] The Judge expressly noted the absence of any other evidence of commerciality and nothing more needs to be said about that.
[18] We do consider, however, that there is some merit in the point about personal use. We recognise it is a very common claim, but here there is no dispute that Mr Bryant is a regular user. His explanation of why he uses it is not particularly material, but is at least supported by a specialist’s letter confirming that he has the leg ailment he identifies. In settling upon the correct starting point, the reality of significant personal use is a factor that can be taken into account.
[19] That addresses all the specific points made in relation to the sentencing exercise, so with those in mind we turn to the assessment of the starting point of three years selected by the Judge.

The starting point

[20] The Crown accepts that three years is probably the top of the range but submits that it is within range. Support is taken from cases where lesser quantities had lower starting points, and it is submitted that the present figure is broadly consistent given the higher quantity.
[21] We consider, however, that two recent cases suggest that the present starting point is too high. In saying that, we recognise that the range in issue is quite narrow, and that most cases have features particular to themselves that make comparisons difficult.
[22] In R v Rakatau [2007] NZCA 21, the total amount of cannabis found in the house was 4.8 kilograms. The street value was estimated at between $27,000 and $51,000. A set of scales and seventy-two plastic snap lock bags were found, both of which supported an inference of commerciality. Also found in the house were utensils with traces of cannabis oil on them. These items led to charges of possessing utensils and possession of cannabis oil. Finally, the roots of five mature plants from which the cannabis had been taken were located outside the house. This led to a cultivation charge.
[23] The sentencing Judge regarded the charge of possession of cannabis for supply as the lead sentence. It was recognised that some of the cannabis would be for the offender’s own use, but that a significant portion would have remained for supply. All other sentences were imposed concurrently, so the lead sentence must be taken to have included all aspects of culpability. The Judge adopted a starting point of two years ten months. That starting point was upheld by this Court, but it observed that the “starting point was right at the top of the available range” (at [16]).
[24] In R v Gray [2009] NZCA 31, there was a single charge of possessing cannabis for the purpose of sale. The quantity in issue was 3.5 kilograms, which had been hidden in various forms throughout the accused’s house. A starting point of two years six months was described by this Court as “well within range for a Terewi Band 2 offence” (at [26]).
[25] Bearing these cases in mind, we are of the view that a starting point of three years was too high. It did not reflect the reality of shared possession, or the likelihood of significant personal use by the offender. We consider that a starting point of two years six months imprisonment would have been appropriate. In reaching that conclusion, we are influenced by our view that the Judge’s remarks gave the appearance that he considered the cultivation allegation remained a relevant factor for sentencing purposes.

Discount

[26] The pleas were entered following depositions. A sentencing indication hearing had been arranged, but on the morning of the hearing the Crown indicated it would accept a plea to the possession for supply charge. This indication led to the change of plea, and the subsequent discharge of the other count of cultivation. No sentencing indication was therefore given. It appears that a credit for the guilty plea of 25 per cent was an agreed position at the sentencing, and we see no reason to differ from that assessment.
[27] The complaint that the appellant makes is that his other personal factors were not given further credit. The factors he identifies are that he had no previous drug offending, that he was a person in steady employment who was not generally involved in the drug trade, and that his remorse for his offending was genuine. Mr Bryant recognises that the significance of personal factors is diminished in an area where deterrence is a primary concern, but submits that the authorities are equally clear that such a rule does not mean personal circumstances are irrelevant.
[28] The latter point is well made, and was emphasised by this Court in R v Coronno CA366/01 6 December 2001. However, it remains the case that mitigation for personal factors is usually reserved for those situations where the combination of factors takes the case out of the usual range which one sees repeatedly in this area.
[29] We are not persuaded that the Judge erred in failing to give greater credit than 25 per cent. Whilst it is true that Mr Bryant has no previous convictions for drug offending, and that most of his previous convictions are somewhat dated, he does have a conviction for drink driving in 2007. Whilst it is a far better record than many who come before the courts in this situation, it still cannot be said that he has a past free of offending. Likewise, we see no evidence that this offending was in any sense addiction driven, and overall, on an appeal we do not consider it has been shown that the Judge erred.

Home Detention?

[30] The end result is that the starting point is reduced to thirty months’ imprisonment. A discount of 25 per cent takes the appropriate sentence down to 22 months and places Mr Bryant in a sentencing range where the option of home detention is a possibility.
[31] Mr Bryant had received a favourable assessment for home detention. In the present circumstances we see little reason why a court would not accept that available option. The appellant has no previous history of drug offending, the circumstances of his offending reflect a one time act, the offending was not from his home, and there is no record of difficulties with past community sentences.
[32] Two difficulties arise. The first is that the approved address is no longer available. Mr Bryant’s partner (Ms Bell), who was responsible for the approved address, has subsequently moved to a different house. That residence has not yet been checked for suitability. However, the personnel involved in the home detention arrangement remain unchanged, so there is a reasonable expectation that matters in this regard will prove satisfactory. We direct that an assessment of the suitability of the new address be undertaken.
[33] The second difficulty is that the pre-sentence report recommended a term of at least nine months. That was to enable the proposed courses and programmes to be undertaken. Nine months is longer than the new appropriate term, given the length of time Mr Bryant has already served in custody. The seven and a half months presently served is the equivalent of a short term sentence of fifteen months, which means that the deficit on our amended figure is seven months. That would, in turn, suggest an appropriate term of home detention of around four months.
[34] We propose to address this difficulty by imposing a post detention condition that will enable courses and programmes to be continued or undertaken.
[35] Accordingly, so long as confirmation is received that the new address of Ms Bell is suitable, we propose to impose a sentence of four months home detention on the following conditions:

1. that upon release Mr Bryant goes to that address and remains there until the home detention probation officer and security officer arrive;
2. that he reside at that address and not move without the prior written approval of the probation officer;

100. that he undertake childcare responsibilities as approved by the probation officer;

4. that he abstain from the consumption of illicit drugs during the period of the home detention (the inclusion of this condition is to make plain that consumption of cannabis will be a breach of the home detention conditions). It is not an indication that cannabis consumption is otherwise appropriate;
5. that he undertake any assessments required by the probation officer and complete any courses, treatments and programmes as required.

[36] In terms of s 80N of the Sentencing Act 2002, we impose the standard post detention conditions for a period of nine months, and also impose the following special condition for the same period:

• in relation to assessments, courses, treatments, and any programmes, Mr Bryant shall either continue with these or commence any new ones as directed.

[37] As noted, this sentence is subject to approval of the proposed home detention address. Should approval of a suitable home detention address not be forthcoming, then the Court is to be advised. It will then issue a supplementary judgment confirming that the original sentence of two years three months is quashed, but substituting in its place a sentence of 22 months.

Conclusion

[38] The appeal is allowed. The sentence of two years three months’ imprisonment is quashed. In lieu of that sentence, but subject to suitability of a home detention address, a sentence of four months home detention is imposed.
[39] The conditions identified in [35] above are imposed. The post-sentence conditions identified in [36] above are also imposed.
[40] If home detention proves not possible, a sentence of 22 months will be imposed instead.

Solicitors:
Crown Law Office, Wellington