R v Rawiri [2011] NZCA 244 (31 May 2011)

Last Updated: 8 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA892/2010 [2011] NZCA 244

BETWEEN THE QUEEN Appellant

AND LEON RUSSELL RAWIRI Respondent

CA893/2010

AND BETWEEN THE QUEEN Appellant

AND AMANDA MICHELLE KEYSER Respondent

Hearing: 18 May 2011

Court: Harrison, Simon France and French JJ

Counsel: M E Ball for Appellant D G Young for Respondent (CA892/2010) J C Down and E Chan for Respondent (CA893/2010)

Judgment: 31 May 2011 at 3.30 pm

JUDGMENT OF THE COURT

A Leave is granted to the Solicitor-General to appeal.

B The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] The Solicitor-General applies for leave to appeal against community-based sentences imposed by Judge Kiernan in the District Court at Auckland on Leon Rawiri and Amanda Keyser in December 2010.[1] Both offenders had pleaded guilty to charges under s 12A of the Misuse of Drugs Act 1975 of possessing precursor substances and material and, in Mr Rawiri’s case, equipment with the intention that they be used in manufacturing methamphetamine.
[2] Ms Ball for the Solicitor-General submits that the community based sentences were wrong in principle or manifestly inadequate for this type of offending.

Facts

[3] The facts are not in dispute. In September 2009 the police executed a search warrant at an address in Wellington which the respondents were occupying together. There they discovered the remains of a clandestine laboratory containing a number of items of equipment and materials used in manufacturing methamphetamine. Included were precursor substances such as pseudoephedrine hydrochloride, neurofen tablets, toluene and sulphuric acid. The equipment was standard issue for the purposes of distilling the substances into methamphetamine.
[4] Mr Rawiri was then aged 36 years. He had a number of previous convictions mainly of a minor nature. Relevantly, he had been convicted of cultivating cannabis in 2001 and 2007. On the first occasion he was sentenced to non-residential periodic detention for four months; on the second he was sentenced to 300 hours of community work. He was initially a recreational user of methamphetamine.
[5] Ms Keyser was then aged 30 years. She was a first offender. She was a South African national who had emigrated to New Zealand with her family in 2005. After the breakdown of her marriage she formed a new relationship with Mr Rawiri. In the interim she had developed a methamphetamine addiction. Mr Rawiri also became addicted to methamphetamine.

District Court

[6] Judge Kiernan noted that, while the police did not find any methamphetamine, all the ingredients necessary for manufacturing the drug were present, and that the offending was “... as close to you can get to [manufacturing methamphetamine]” without actually manufacturing it.[2] She also noted the Crown submission that starting points of two years imprisonment and greater than three years were appropriate for Ms Keyser and Mr Rawiri respectively but that home detention was the lowest level of sentence available.[3]
[7] Home detention was not an option because both Ms Keyser and Mr Rawiri were then living in Whitianga, nearby and under the guidance of Mr Rawiri’s mother. She had found accommodation and employment for them there. Both were making encouraging progress along the path to rehabilitation. The Judge placed particular weight on that factor. However, because electronically monitored sentences were unavailable in Whitianga the probation officer did not prepare a home detention appendix.
[8] Judge Kiernan summarised her approach in these passages:

[21] So the purposes and principles of sentencing are always for methamphetamine offending denunciation and deterrence, also the sentence must hold you both accountable. I must impose the least restrictive outcome, and I must take account of the need for rehabilitation, and for drug offending, that is always important. Courts often say that personal circumstances have little weight for drug offending, but the reality is that unless drug offenders rehabilitate they will reoffend and that is of course a risk to the community as well as to the individuals.

[22] So I see things in that light and I have read the cases which counsel have put before me which are helpful, but in the end I have got to sentence each of you according to your own situation and the offending that you have admitted committing.

...

[25] For each of you, having carefully considered the factors, I am going to sentence you today, it will be intensive supervision and community work. That is a lenient sentence for these offences, but it seems to me appropriate in your particular situation. If I sent each of you to prison today that would of course serve the needs of denunciation and deterrence, but it seems to me that the steps that each of you have taken in the last year with the support that is available to you in Whitianga would be undone, and I do not think that is in the interests of justice.

[9] The Judge imposed terms of 18 months intensive supervision on each offender, subject to a special condition that they attend and complete any counselling or treatment including residential as directed by the probation officer. Mr Rawiri was sentenced to 350 hours community work; Ms Keyser was ordered to carry out 200 hours community work.

Appeal

[10] In support of the Solicitor-General’s application Ms Ball accepts that the rehabilitative approach taken by the Judge was understandable in the particular circumstances. But, she says, it ran counter to the principles set out in the Sentencing Act 2002 – particularly, the hierarchy of sentences in s 10A and the principles governing the imposition of home detention as an alternative to imprisonment. She says that the options of community-based sentences introduced on 1 October 2007 do not alter the underlying precept that imprisonment is an appropriate sentence for this type of offending.
[11] Ms Ball submits that:

• (a) Where a Judge is satisfied that the criteria for home detention are met, but the offender is unsuitable for that sentence or it is unavailable, the sentence must revert by default to the period of imprisonment otherwise considered appropriate. In this case the Judge gave both offenders the benefit of sentences further down the hierarchy than imprisonment simply because each happened to reside in an area where electronic monitoring could not occur.
• (b) Within the hierarchy of options applying to this type of offending, intensive supervision can only be regarded as an appropriate response in exceptional circumstances. That is where the need to punish or deter the offender and others from similar offending is minimal or non-existent and the offending is at the lower end of the scale. If the sentencing exercise is directed primarily at denunciation and deterrence, the principle of achieving the least restrictive outcome – which weighed with Judge Kiernan – can only operate at the appropriate level within the hierarchy; it cannot result in a community-based sentence which is not justified by other sentencing principles.

Decision

[12] We do not accept Ms Ball’s submission: we agree with Messrs Down and Young that there is no presumption against imposing community-based sentences for breaches of s 12A of the Misuse of Drugs Act 1978 or that exceptional circumstances are required before this option can be considered.
[13] Ms Ball relies principally on this Court’s decision in R v Anderson.[4] In that case the Solicitor-General successfully appealed against a sentence of community work imposed on s 12A charges including possession of equipment and a precursor substance with the intention that they be used in manufacturing methamphetamine. In allowing the appeal the Court noted that sentences of imprisonment are appropriate for this type of offending even where the offender’s involvement is limited and the personal circumstances call for leniency because the primary purpose of sentencing for serious drug offending is deterrence.[5]
[14] Anderson is distinguishable on two grounds. First, Ms Anderson possessed a considerably greater amount of precursor substances than Ms Keyser and Mr Rawiri, implying a degree of commerciality. It is common ground that both Ms Keyser and Mr Rawiri were in possession of the proscribed items solely for the purpose of feeding their own addictions.
[15] Second, as Ms Ball accepts, Anderson predated significant changes to the Sentencing Act introduced on 1 October 2007. Materially, the Sentencing Amendment Act 2007 inserted s 10A into the principal Act. It now provides:

10A Hierarchy of sentences and orders

(1) The hierarchy of sentences and orders set out in subsection (2) reflects the relative level of supervision and monitoring of, and restrictions imposed on, an offender under each sentence or order.

(2) The hierarchy of sentences and orders, from the least restrictive to the most restrictive, is as follows:

(a) discharge or order to come up for sentence if called on:

(b) sentences of a fine and reparation:

(c) community-based sentences of community work and supervision:

(d) community-based sentences of intensive supervision and community detention:

(e) sentence of home detention:

(f) sentence of imprisonment.

[16] Section 11 of the Sentencing Amendment Act, substituted a new s 20 into the Sentencing Act. The Act now authorises a judge to impose combinations of sentences including intensive supervision with community work. Section 20 expressly limits a judge’s power in this way:

(2) A court may only combine a sentence of community work with a sentence of supervision or intensive supervision if satisfied that—

(a) a sentence of community work is appropriate; but

(b) the offender requires the imposition of standard conditions or any of the special conditions available under a sentence of supervision or intensive supervision to address the causes of his or her offending.

[17] These changes are consistent with a discernible legislative policy of keeping offenders within the community wherever appropriate. Parliament’s intention was plainly to increase the range of sentencing alternatives available to a Judge other than home detention or imprisonment. Significantly, the legislature placed community-based sentences well up the hierarchy, immediately below home detention.
[18] As Mr Down observes, this Court has recognised that a sentence of community service has a punitive aspect. It is intended by Parliament to be and is a very real and effective alternative to imprisonment which should not be regarded by the public as a minor or insignificant reaction.[6] A sentence of community work is designed to achieve the principles of accountability, deterrence and denunciation traditionally associated with imprisonment while avoiding the default option inherent in that sentence – which Ms Ball says should apply here – and promoting a sense of community participation and awareness. The statutory hierarchy of sentencing options is a blunt affirmation that prison is a measure of last resort.
[19] Parliament had already identified the sentencing purpose of assisting in an offender’s rehabilitation and reintegration;[7] and the principle – expressed as an obligation – of imposing the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentencing imposed after 1 October 2007.[8] Also:

• (a) When considering the imposition of a sentence of imprisonment for any particular offence, the Court must have regard to the desirability of keeping an offender in the community as far as that is practicable and consonant with the community’s safety.[9]
• (b) It is often overlooked that a Court cannot impose a sentence of imprisonment unless it is satisfied that the sentence is being imposed for a statutory purpose or purposes; that those purposes cannot be achieved by a sentence other than imprisonment; and that no other sentence would be consistent with the statutory principles as applied to the particular case.[10] That obligation is subject only to any statutory presumption in favour of a sentence of imprisonment for the offence or requirement to impose a sentence of imprisonment.

[20] While courts recognise that principles of deterrence and denunciation generally predominate in methamphetamine dealing cases, they must take account of the statutory prohibition against imposing sentences of imprisonment unless required by another statutory provision, whether mandatory or presumptive, or by specific purposes or principles. In this respect we note that, while courts treat methamphetamine related offending as serious, Parliament has continuously maintained the maximum sentence for s 12A offences of five years imprisonment.
[21] Plainly, where s 12A offending has a commercial element, a sentence of imprisonment will usually be appropriate. In that context, as courts often emphasise, the importance of personal circumstances is relegated below the need for deterrence and denunciation. But the absence of a commercial element in drug offending allows sentencing flexibility, because the risk to community safety is absent.
[22] Sentencing in this type of case presents special challenges. Judges are required to balance principles and purposes which are not always easily reconcilable. However, in conformity with Parliament’s intention, Judges will generally strive to avoid a custodial sentence where there is a genuine prospect of rehabilitation, unless other sentencing principles or purposes operate to rule out that option.
[23] In this case, Judge Kiernan saw it as desirable to keep both offenders within the community. She was satisfied that each had made constructive progress towards rehabilitation. She recognised society’s interest in promoting that result. The Judge expressly marked the seriousness of the offending with lengthy periods of community work, thereby expressing society’s denunciation and holding each accountable for their crimes. She coupled this element of the sentence with intensive supervision with special conditions designed to oversee and encourage the rehabilitative process. Ms Ball’s submission that the Judge imposed community based sentences simply because home detention was unavailable in Whitianga is inconsistent with the Judge’s notes and we reject it.
[24] We are satisfied that Judge Kiernan structured both sentences after carefully balancing all the relevant principles and purposes. As the Judge observed:[11]

If I sent each of you to prison today that would of course serve the needs of denunciation and deterrence, but it seems to me that the steps that each of you have taken in the last year with the support that is available in Whitianga would be undone, and I do not think that is in the interests of justice.

[25] Judge Kiernan had precedential guidance from two sentences imposed in the High Court since 1 October 2007, following convictions for s 12A offences. Messrs Down and Young rely on both:

• (a) In R v Timmings,[12] Wild J, recognising rehabilitation is the main objective when sentencing a methamphetamine addict, imposed a sentence of intensive supervision and community work – the latter being expressly for the purpose of punishment.
• (b) In R v Sullivan[13] Venning J followed a similar course when sentencing a methamphetamine addict; again, the Judge gave express recognition to the 2007 changes with their emphasis on sentences other than imprisonment were appropriate. Venning J also imposed intensive supervision in combination with community work, noting community work was not an easy option and a sentence of home detention was not required as a personal deterrent.

[26] Both sentences in Timmings and Sullivan were, in our judgment, appropriate for the circumstances of the offenders. We are not satisfied that the sentences imposed in this case were either wrong in principle or manifestly inadequate. On the latter point we note, as Mr Downs submits, that Ms Keyser spent six weeks in custody on remand before being granted bail. This was the equivalent of three months served of a sentence of imprisonment.

Result

[27] Leave is granted to the Solicitor-General to appeal but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Appellant

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[1] R v Rawiri DC Auckland CRI-2009-004-26604, 8 December 2010.

[2] At [19].

[3] At [16]–[20].

[4] R v Anderson [2007] NZCA 146.

[5] At [39] and [40].

[6] R v Burton [1982] 1 NZLR 602 (CA); R v Minto [1982] 1 NZLR 606 (CA).

[7] Sentencing Act 2002, s 7(h).

[8] Sentencing Act 2002, s 8(g).

[9] Sentencing Act 2002, s 16(1).

[10] Sentencing Act 2002, s 16(1).
[11] At [25].

[12] R v Timmings & Timmings HC Hamilton CRI-2006-019-1745, 1 November 2007.

[13] R v Sullivan HC Auckland CRI-2005-004-02922, 6 December 2007.