Scully v The Queen [2011] NZCA 265; (2011) 25 CRNZ 296 (9 June 2011)

Last Updated: 18 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA36/2011 [2011] NZCA 265

BETWEEN KERRY JASON SCULLY Appellant

AND THE QUEEN Respondent

Hearing: 25 May 2011

Court: Glazebrook, Simon France and French JJ

Counsel: S G Vidal for Appellant M Inwood for Respondent

Judgment: 9 June 2011 at 3.30 pm

JUDGMENT OF THE COURT

1. The appeal is allowed to the extent that the forfeiture order with regard to $1,760 is set aside and the matter is remitted to the District Court for reconsideration.
   
2. In all other respects the appeal is dismissed.
   

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

[1] In September 2010 Mr Scully pleaded guilty to one charge of possession of cannabis for supply.
[2] He appeals against his sentence of two years three months imprisonment on the basis that he should have had a greater deduction for his guilty plea and that he should have been sentenced to home detention.
[3] An issue also arises with regard to the basis on which a forfeiture order was made.

Background[1]

[4] On Friday 25 September 2009 a search warrant was executed at Mr Scully’s home in Invercargill. The search warrant was originally dated 24 August 2009 but this date had been crossed out in blue ball point pen and replaced with 1 September 2009. On the basis of the typed date on the warrant, the search could not legally have been conducted as it was done outside the time frame permitted by the warrant. The search was, however, within the permissible time frame for the warrant on the basis of the blue ball point pen alteration of the date on the document.
[5] On the face of the document it could not be determined whether the alteration to the date had been made by the judicial officer at the time of granting the search warrant, or whether the alteration had been made by someone else at that or some other time.
[6] During the search, a total combined weight of 561 grams of cannabis was located on the property, all high grade plant head material. The total street value was between $5,000 and $10,000 (if sold in one-ounce lots). Some of this material was packaged in one-ounce bags but the bulk was in shopping bags in the garage beside a set of small pocket sized electronic weighing scales and an open cardboard dispenser box of snap lock bags. Also located in the back pocket of Mr Scully’s jeans was $1,760 in cash.
[7] When interviewed by the police, Mr Scully admitted ownership of the cannabis, the scales and the snap lock bags. However, he denied having cannabis for sale, stating it was for his own use. He similarly denied that the cash was proceeds from dealing in cannabis, stating that it had come from the sale of his hot rod.
[8] Mr Scully was charged with possession of a class C controlled drug for supply. On 23 November 2009 Mr Scully was committed for trial on that charge. On 15 September 2010, the first day of trial, Mr Scully pleaded guilty.
[9] On 6 December 2010 Mr Scully was sentenced by Judge Phillips to two years three months imprisonment.[2] The Judge took a starting point of two years four months imprisonment and applied an uplift of four months for the repeat offending (Mr Scully has at least 28 previous convictions of this nature, the most recent in 2002 resulting in a term of imprisonment). The Judge considered that Mr Scully remains at “an alarmingly high risk of reoffending”.
[10] The Judge “mercifully” gave Mr Scully a purported discount of 10 per cent for his guilty plea, but in reality this amounted to a 15 and a half per cent discount (a 10 per cent discount would have resulted in an end sentence of 2 years 5 months rather than 2 years 3 months).
[11] Orders were also made for the destruction of all cannabis and apparatus seized and for the forfeiture of the $1,760 “as part of proceeds of drug sales”.

Discount for guilty plea

[12] On behalf of Mr Scully, it is submitted that there were delays in the determination of the issue of the validity of the search warrant due to circumstances beyond the control of Mr Scully:

(a) His first counsel was a month before retirement and was not taking on new matters.

(b) His intended second counsel, Mr Guest, appeared to accept instructions to act in anticipation of the return of his practicing certificate which did not occur.

(c) His third and ultimate trial counsel, Mr Westgate, sought further disclosure from the Crown in regard to the altered search warrant and there were delays in the provision of that disclosure by the Crown.

[13] Mr Scully maintains that he was only told on the morning of trial that the challenge to the search warrant would not be going ahead and that he did not know why that was. He also states that if he had received advice earlier about the likelihood of success or failure of the search warrant application then he would have entered a guilty plea at an earlier opportunity.
[14] In response, Mr Westgate provided an affidavit which relevantly states:

(a) He first met Mr Scully in February 2010, at which point he had already been committed for trial.

(b) He advised Mr Scully at that time that, even if there was a discrepancy in the search warrant, this would not necessarily mean a court would find that the warrant was invalid and the evidence inadmissible. Rather he advised there was a strong likelihood that the evidence would be admissible.

(c) Mr Westgate was advised in May 2010 that the date on the warrant had been changed by the Court. This was confirmed by the Court on 5 July 2010.

(d) Mr Scully would thus have been aware that a challenge to the warrant would not succeed by the end of July 2010.

(e) In any event Mr Scully’s instructions were that the validity of the search warrant was only a secondary part of his defence. The focus of Mr Scully’s defence was that the cannabis was for his personal use. Mr Westgate had accordingly noted that “he’ll have to give evidence”.

(f) Mr Westgate rejects the suggestion that Mr Scully would have pleaded guilty at an earlier date as completely contrary to Mr Scully’s instructions. At no stage up until the first day of trial did Mr Scully express to him any interest whatsoever in pleading guilty.

[15] No reply affidavit was filed by Mr Scully and we heard no cross-examination. In these circumstances, there has been no challenge by Mr Scully to Mr Westgate’s affidavit. We accept the Crown’s submission that we should prefer Mr Westgate’s account. Mr Westgate is an experienced trial counsel and it is, as the Crown submits, difficult to imagine that he would not have advised Mr Scully at the outset that the chances of a successful challenge to the search warrant were limited. Further, as again pointed out by the Crown, Mr Westgate’s understanding of Mr Scully’s primary defence (personal use) was consistent with Mr Scully’s statement to the police.[3] Even in his pre-sentence report Mr Scully continued to maintain that the cannabis was for his personal use.
[16] In any event, as the Crown also submits, even if Mr Scully’s account is correct, it is unlikely that he would have received a greater discount for his guilty plea. This is not a case in which defence counsel either initially or completely failed to advise the appellant properly of the certainty of conviction and the benefit of an early guilty plea.[4] Rather the dispute is about the timing of counsel’s advice that a proposed challenge to the admissibility of evidence would not succeed.
[17] We accept the Crown’s submission that the initial delay in the determination of the search warrant issue was of Mr Scully’s own making. He is no stranger to the criminal justice process, having more than 35 previous convictions. Mr Scully knew there may be an issue with the search warrant from the outset. Yet he engaged two successive counsel with the knowledge they would not be able to advance his case at that time. By the time Mr Scully engaged a counsel who was able to represent him, he had already been committed for trial and was about to appear in his first post-committal call-over.
[18] Even if Mr Westgate had been able to conclude his inquiries into the validity of the search warrant within a month of being instructed, Mr Scully would still only have pleaded guilty in March 2010. The first reasonable opportunity for entering a plea is not extended by matters such as challenges to admissibility of evidence.
[19] We also accept the Crown’s submission that the discount given for the guilty plea was generous. By the time Mr Scully was sentenced, the Supreme Court had delivered its decision in Hessell v R.[5] The Supreme Court stressed the need for the sentencing judge to assess the value of the guilty plea in the particular circumstances.[6] This Court has previously placed little weight on guilty pleas which were entered late due only to challenges to the admissibility of evidence.[7] Further, the Supreme Court reduced the maximum discount available for a guilty plea alone down to 25 per cent.[8] The Supreme Court also allowed sentencing judges to take into account the strength of the Crown case in assessing the value of the plea.[9]
[20] An allowance of 15 and a half per cent for Mr Scully’s guilty plea could not be criticised, even had the plea been entered shortly after Mr Westgate was engaged.

Home detention

[21] Mr Scully says in his affidavit that he entered his guilty plea because he “was told that the Crown would not oppose a sentence of home detention”. Similarly, in his pre-sentence report, he stated his counsel “sold him out” by telling him that he could receive home detention if he pleaded guilty.
[22] Both Mr Westgate’s affidavit and the prosecutor’s personal notes make it clear that, in discussions with Judge Phillips prior to the entry of Mr Scully’s guilty plea, the matter was never put any higher than that all sentencing options were available. Furthermore, the prosecutor’s records indicate that the Judge made it clear when ordering the pre-sentence report that there was no indication other than a full time custodial sentence and that Mr Scully should come to sentencing prepared to go to prison.
[23] Nonetheless, given Mr Scully’s comments in the pre-sentence report, Judge Phillips gave him the opportunity at sentencing to put off sentencing to instruct new counsel or to vacate his guilty plea. Mr Scully declined to do either. Mr Scully cannot now complain that he pleaded guilty on a misunderstanding of the likely sentence.
[24] As matters stand, home detention is not available because the otherwise appropriate sentence is more than 24 months. In any event, we accept the Crown’s submission that home detention was not a suitable sentence in this case, even had it been available. While offending in the property where home detention is proposed to occur is not an automatic bar to such a sentence, here the nature of the offending and Mr Scully’s history of similar offending and failure to acknowledge the seriousness of his convictions mean home detention would plainly have been inappropriate.

Forfeiture

[25] We now turn to the issue of the forfeiture of the cash found on Mr Scully. Section 32(3) of the Misuse of Drugs Act 1975 provides:

If, on the conviction of any person for an offence against section 6 [of this Act], the Judge or District Court Judge is satisfied that money found in the possession of that person was received by that person in the course of or consequent upon the commission of that offence, or was in the possession of that person for the purpose of facilitating the commission of an offence against that section, the Judge or District Court Judge may, in addition to any other penalty imposed pursuant to this Act, order that that money be forfeited to the Crown.

[26] As the Crown has conceded, on a charge of possession for sale, money found in the possession of Mr Scully cannot have been received “in the course of or consequent upon the commission of that offence”.
[27] There is an alternative factual basis upon which money can be forfeited under s 32(3). This is where the Judge is satisfied that the money is held for the purpose of committing other offences against s 6 of the Misuse of Drugs Act. The usual scenario advanced is where the Crown can establish that the money was intended to serve as a “float” for purchasing further cannabis, which in turn would be sold as part of the on-going criminal enterprise.
[28] Accordingly, it is appropriate for this Court to remit the forfeiture order back to the District Court, under s 385(3)(c) of the Crimes Act 1961, for the issue to be revisited.

Result

[29] The appeal is allowed to the extent that the forfeiture order with regard to $1,760 is set aside and the matter is remitted to the District Court for reconsideration.
[30] In all other respects the appeal is dismissed.

Solicitors:
Southern Law, Invercargill for Appellant
Crown Law Office, Wellington for Respondent

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[1] This is largely taken from the Crown’s submissions.
[2] R v Scully DC Invercargill CRI-2009-025-003958, 6 December 2010.
[3] See at [7] above.
[4] See R v Patrick [2008] NZCA 115 and R v Kupkovic [2009] NZCA 330.

[5] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[6] At [61], overruling in this regard this Court’s decision in Hessell v R [2009] NZCA 450, [2010] 2
NZLR 298.

[7] See for example R v Pohe CA105/04, 2 August 2004 at [15]–[18] and R v Kahui CA392/04, 23 May 2005 at [37] and [45].
[8] At [48] and [75].
[9] At [60].