Vaine v R [2011] NZCA 283 (21 June 2011)

Last Updated: 29 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA833/2010 [2011] NZCA 283

BETWEEN LEAH JEANETTE VAINE Appellant

AND THE QUEEN Respondent

Hearing: 13 June 2011

Court: Wild, Keane and Miller JJ

Counsel: K L McHugh for Appellant K Laurenson for Respondent

Judgment: 21 June 2011 at 12.30 pm

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed and the sentence of two years, four months imprisonment (almost seven months of which has been served) is quashed.
2. A sentence of three months home detention is substituted.

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REASONS OF THE COURT

(Given by Keane J)

[1] On 18 November 2010 Leah Vaine was sentenced in the District Court, Invercargill, to imprisonment for two years, four months, having pleaded on arraignment to possession on 10 March 2010 of the class C controlled drug, cannabis, for the purpose of sale. Ms Vaine appeals her sentence as manifestly excessive on a single ground. She takes issue with the discount the Judge gave her for plea.
[2] Ms Vaine accepts that her offence warranted the starting point Judge Phillips took, two and a half years imprisonment. That same starting point had been taken when her niece, Rachee Matehe, with whom she was charged jointly, was sentenced in the High Court on 3 August 2010.[1]
[3] She accepts that the Judge was entitled to add six months because of her previous related convictions. In May 2003, for possession of cannabis for supply, she was sentenced to 100 hours community work. In February 2010, for cultivating and possessing cannabis, she was sentenced to a further 80 hours community work and six months supervision.
[4] Ms Vaine was sentenced, however, just two days after the Supreme Court issued its decision in R v Hessell.[2] The Judge held that even if she had until then been entitled to a full one-third discount, according to this Court's decision that was set aside,[3] that was no longer so. Even if her plea was entered at the earliest opportunity, he said, given the strength of the prosecution case, the greatest discount she was entitled to was 20 percent.
[5] On this appeal Ms Vaine contends that, though the Supreme Court's decision could, in law, have been given retrospective effect, in her case that was unfair. She had entered her plea after a delay because her original counsel had not advised her adequately as to plea or at all. Though she pleaded on arraignment on 29 July 2010 she was not sentenced until 18 November. On arraignment she had applied to have the credit for plea settled before sentence, but the Judge decided that issue on sentence and that worked against her. She ought, she contends, to have been allowed a full one-third discount.
[6] The magnitude of the discount the Judge gave Ms Vaine was crucial. The 20 percent discount he gave her resulted in a sentence in excess of two years, precluding home detention. Had he allowed her a one-third discount her sentence of imprisonment would have been two years and a sentence of home detention open in principle.

Fact summary

[7] On 10 March 2010, in the afternoon, according to the statement of facts on which the Judge sentenced Ms Vaine, the police searched the home she then shared with her niece, Rachee Matehe. (Ms Vaine was then aged 31 years, Ms Matehe was aged 18 years and, also sharing the house, were Ms Vaine's two sons aged 11 and nine years.)
[8] The police noticed a strong smell of cannabis and Ms Vaine admitted to possessing a quantity. She took the police to Ms Matehe's bedroom. She took from a chest of drawers a grey steel cash box containing five one ounce bags of cannabis, and then a cardboard box containing 12 tinnies. From a box in a cupboard in that bedroom she abstracted another 12 one ounce bags and, finally, from a travel bag a further 28 tinnies. In the kitchen was a set of EKS electronic scales.
[9] The combined weight of the cannabis, all high grade plant head material, was 501 grams, or 1.1 pounds. The street value was estimated to lie between $5,250 - $9,500, yielding a potential profit of $2,500 - $4,500.
[10] Ms Vaine admitted that the cannabis was hers. She had received a pound of cannabis in a car tyre the day before. She had already sold, she said, four or five tinnies before the police executed the warrant. She had, she said, been selling tinnies for $25 each and ounce bags for $400 each. As a result of her recent cultivation conviction, she added, she was now likely to go to jail.
[11] Whether Ms Matehe was then at the address is not clear. When she was spoken to she admitted that the cannabis in the shoe box was hers. But on the following day she went with Ms Vaine to the police station, Ms Vaine denied possessing any of the cannabis, and Ms Matehe accepted full responsibility. Ms Matehe said that she had been selling cannabis to pay off debt.

Pre-sentence report

[12] Ms Vaine's pre-sentence report recommended that she be sentenced to home detention, that she live with her parents at their address, that a term of her sentence be that she not consume or possess alcohol and that she complete any treatment or counselling decided on by her supervising officer.
[13] Ms Vaine, her assessor said, did not altogether agree with the summary of facts. She had not, she said, consumed cannabis for four months. Her niece, she said, had brought the cannabis to the house. She had asked her niece to get rid of but the search had intervened.
[14] She had only made admissions, Ms Vaine said, because she had felt 'pin pointed'. She did not then want to 'nark'. She maintained that she worked at night and slept during the day, that her children had not alerted her, and that she had been unaware of how heavily involved her niece was. She had first intended to defend the charge but had given up. She remained annoyed with her niece but continued to support her.
[15] At the date of the report Ms Vaine had just completed, while on supervision, drug counselling with Nga Kete Matauranga Pounamu Charitable Trust. She had found it helpful. She had maintained contact with her counsellor. In a letter dated 17 November 2010 the Trust stated that between 7 April - 25 August 2010 Ms Vaine had attended weekly counselling. She had had engaged well. She had been attentive, inquisitive, cooperative and highly motivated. She had chosen to continue counselling beyond the six sessions required.

Pre-sentence application

[16] On 29 July 2010, when Ms Vaine vacated her original plea of not guilty and entered a guilty plea, she applied to have defined before sentence the discount to which she was entitled for her plea. That was consistent with the local practice and was in fact called for. In claiming a full discount she put in issue the conduct of her first counsel when she entered her original plea. She waived privilege.
[17] When she was first charged on 30 March 2010, Ms Vaine said in an affidavit in support, she was assigned a lawyer, who proved not to be able to act for her because the charge against her was laid indictably. She was remanded to 13 April 2010. By then she had been assigned the counsel of whom she complained.
[18] She met him for the first time, she recalled, five minutes before she entered her original plea, when he confirmed with her that she wished to deny the offence charged. After she entered her plea and was remanded to a pre-committal date on 26 May 2010, she said, she and he spoke for perhaps 15 - 20 minutes. It was only then that they discussed what her options actually were.
[19] He then advised her, she said, that he believed she had a good defence. He said also that she had 'nothing to lose'. She asked him, she said, a number of times, what would happen if she pleaded guilty. He did not, she said, respond. He did not advise her of the likely sentence for her offence, should she be found guilty. Nor did he tell her that her previous convictions might result in a higher sentence. Nor that an early guilty plea might attract perhaps a one-third discount.
[20] After that, Ms Vaine said, she spoke to him only twice more. On 25 May 2010, the night before her pre-committal appearance, her counsel telephoned her. He said that he had come off the legal aid list and that he had found her another lawyer. She telephoned him again on 31 May 2010. She had been arrested on the Saturday and spent the weekend in custody because on 26 May she had gone to the District Court, not to the State Insurance Building where she was meant to appear. She held him accountable.
[21] When Ms Vaine next attempted to contact him she discovered, she said, that he was on holiday and on 14 June 2010 the Agency assigned her present counsel to her, Ms McHugh, who told us on this appeal that, after several attempts, she has still not obtained Ms Vaine's former counsel's file.
[22] Having taken advice from Ms McHugh, Ms Vaine immediately instructed her that she wished to vacate her not guilty plea and to enter a plea of guilty. That was intimated to the Crown as early as 9 July 2010. Ms Vaine entered that amended plea on 29 July 2010.

Decision under appeal

[23] The Judge appears, on sentence, to have largely, if not completely, accepted Ms Vaine's account about the conduct of her former counsel. There was no affidavit from him and the Crown, we are told, took no issue with her account. The Judge did not, however, accept that her amended plea stood fully to her credit. It was forced on her, he said, by the strength of the Crown case. She had, he considered, no defence to speak of.
[24] The Judge then distinguished Ms Vaine from Ms Matehe, even though on 3 August 2010 Panckhurst J, when he sentenced Ms Matehe to eight months home detention, had deemed her to be a primary offender and taken a starting point of two and a half years imprisonment; the starting point that the Judge adopted for Ms Vaine.
[25] Panckhurst J, the Judge said, had seen Ms Matehe as deserving a sentence of 15 months imprisonment, and home detention, because she was aged 18, she had pleaded early, she had no previous convictions and, most pointedly, she had been living with Ms Vaine. As Panckhurst J put it, she had been living 'in the home of an aunt who apparently is much more mature and also has a background which involves drug offending'.
[26] By contrast, the Judge said, Ms Vaine had prior convictions for supply in May 2003 and for cultivation of cannabis in February 2010, as well as others. She had made admissions that were in all likelihood true but which she had retracted as an afterthought to minimise her role. The Judge was also sceptical about whether she had ceased to use cannabis in the four months before the offence.
[27] The fact that the cannabis had been found in Ms Matehe's bedroom, the Judge said, was without significance. The smell of cannabis was clearly evident to the searching officers. Ms Vaine knew where in Ms Matehe's room the cannabis was. The admissions that she then made, he said, could not have been to protect her niece. They were simply spontaneous outright admissions of dealing.
[28] Then, having taken the two and a half year starting point adopted by Panckhurst J, and increased it by six months for Ms Vaine's recent related convictions, as to which there is also no issue on this appeal, the Judge came to the question of discount for plea.
[29] The submission for Ms Vaine assumed, the Judge said, that she was entitled to a full one-third discount for plea because she had pleaded at the earliest opportunity in the sense that there were reasons to account for why that was not so. To that the Judge said this:

Unfortunately for you, you are not entitled to a one third discount any longer (even if you were in the first instance) because of the lateness of your plea. The Supreme Court in R v Hessell, released earlier this week, has made the position abundantly clear. A person in your position, with the strength of the police case that I have already mentioned, would be entitled to an absolute maximum discount upon an early plea of guilty, in my view, of no more than 20 percent.

[30] The Judge continued then to say this:

I acknowledge ... that you pleaded upon ... advice, in relation to the discount, and that your aim was to obtain home detention. I have to say that I would have adopted what the Crown has submitted, in relation to home detention, even if that option was an option open to me, which it is not in my view. But if it was open, dealing from your home in the presence of or with your children living in your home, repeat offending, in my view, would not entitle you to a home detention sentence of any length.

[31] Ms Vaine's offending, the Judge said, was serious, premeditated and repeated. In sentencing her he had to hold her fully accountable. He had to impose a sentence that denounced her offending plainly and unambiguously, and deterred her and others from selling cannabis, especially to the young. Those purposes could only be achieved, the Judge said, by a fully custodial sentence.

Discount for plea

[32] On this appeal Ms McHugh has accepted, responsibly, that as counsel for the Crown, Ms Laurenson, says the Judge made no error of law, in the strict sense, in applying retrospectively the principles now governing discount for plea as a result of the Supreme Court's decision. He did not in the sentence he imposed offend either s 25(g) of the Bill of Rights Act 1990 or s 6(1) of the Sentencing Act 2002.[4]
[33] Rather, Ms McHugh contends, the Judge's decision, if it stands, is fundamentally unfair in this sense. In decisions since, both in this Court and in the High Court, those who pleaded before the Supreme Court's decision, relying on the decision of this Court that was set aside, have been held entitled to rely on whichever of those two decisions afforded them the greater discount.[5] In her submission in reply, Ms Laurenson does not dissent.
[34] The Judge did not, we agree, make any error of law in the strict sense when he applied retrospectively the Supreme Court's principles governing plea. The difficulty is that the decision he took, so soon after the Supreme Court's decision, proved inconsistent with those of this Court and the High Court given since. Instead of allowing Ms Vaine the benefit of this Court's decision because it gave her the greater discount, he did the opposite. Retrospectively certainly, Ms Vaine has reason to consider that she has been singled out unfairly.
[35] That is more especially so because Ms Vaine could have pleaded guilty at the earliest opportunity had she been adequately advised by her first counsel (and we say that despite her questionable retraction adhered to in the pre-sentence report). Immediately after she obtained advice from Ms McHugh she decided to change her plea. It is for that reason also that, though Ms Vaine pleaded late, we consider she still pleaded at the first reasonable opportunity. (We see this case as indistinguishable from R v Patrick.[6])
[36] If, moreover, Ms Vaine had been sentenced within a reasonable time after her plea on 29 July 2010, she would have been remained eligible, in principle at least, to a full one-third discount. However, the earliest fixture the Court was able to allocate was almost four months later, and in the event two days after the Supreme Court's decision.
[37] We intend, therefore, to allow Ms Vaine a full one-third discount for her plea, the effect of which will be that her sentence of imprisonment reduces to two years. That is a short term of imprisonment and the question the Judge did not have to determine arises, whether she ought not, now at least, to be sentenced to home detention.

Home detention

[38] Ms Vaine has served almost seven months of her sentence. Had her original sentence stood, she would have become entitled to apply for parole after she had served one-third, after nine months, in mid August 2011. As a result of this decision she will now have to serve one half of her sentence. She will be released in November 2011.
[39] The seven months imprisonment Ms Vaine has already served answers, we consider, to a significant extent certainly, the purposes of sentence the Judge rightly considered primary, accountability, denunciation and deterrence. Also, it is now well settled that a sentence of home detention is also capable of serving those purposes, sometimes equally well.[7]
[40] The issue on this appeal has thus become whether, instead of serving her present sentence of imprisonment until her half release date in November 2011, a sentence of home detention imposed now might assist her more positively to rehabilitate herself and to re-integrate herself within her family.
[41] The Judge did have reason, we accept, to be sceptical about whether Ms Vaine had, when apprehended, been free of cannabis for four months. He was right to treat her as a primary offender. At the same time, we are encouraged by the letter from the Trust, where she responded so well to counselling. And while we do not have a report from the Christchurch Women's Prison, where Ms Vaine is serving her sentence, her counsel tells us, and we accept, that she is serving it under a self care regime. That too is encouraging.
[42] Her counsel told us, and we accept, that Ms Vaine shares a hut with others. They all work, she in the kitchen. They run a normal household. They purchase their own food and cook for themselves. In that sense she is living as positive a life as can be achieved in an institution. Also, we are told and accept, she has not been disciplined.
[43] Equally encouraging is that Ms Vaine does have a good address to go to, her parents' address. There she will be unable to resume offending. But she will be able to resume caring for her children, with whom her referees say she is closely bonded. One child is suffering a form of dyslexia, perhaps associated with Aspergers Syndrome, Erlins Disease. His needs and those of his brother are not to be ignored.
[44] For these reasons we have decided that Ms Vaine's sentence of imprisonment should be quashed and that she should serve the balance of her sentence by way of a term of home detention. In fixing that term we set off the fact that she has five months imprisonment still to serve until her half release date against the fact that she has already served seven months imprisonment. That term will be three months.

Outcome

[45] We grant Ms Vaine's appeal against sentence. We quash the term of imprisonment imposed on her of two years, four months. We substitute in its place a sentence of home detention for a term of three months.
[46] The conditions on which that sentence is imposed are these:

1. On the day after the issue of this decision Ms Vaine is to be released from the Christchurch Women's Prison and to travel directly to 25 Wilfred Street, Invercargill and there to await the arrival of a probation officer and security officer.
2. She is to reside at 25 Wilfred Street, Invercargill, and not to move address without the prior written approval of a probation officer.
3. She is not to consume or to possess alcohol for the term of her sentence of home detention.
4. She is to undertake and complete such treatment and counselling as her probation officer determines to the satisfaction of that officer and of the treatment provider.
   

Solicitors:
McKenzie Gray, Invercargill for the Appellant
Crown Law Office, Wellington for the Respondent

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[1] R v Matehe HC Invercargill CRI-2010-025-000904, 3 August 2010.
[2] R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
[3] R v Hessell NZCA 450, [2010] 2 NZLR 298.

[4] Morgan v Superintendent Rimutaka Prison [2005] 3 NZLR 1 (CA); R v Wilson CA334/05, 31 July 2006, (2006) 23 CRNZ 531.

[5] R v Thompson [2011] NZCA 150; R v Elliott [2010] NZCA 611; R v Tai [2010] NZCA 598.
[6] R v Patrick [2008] NZCA 115.
[7] R v Hill [2008] NZCA 41, 2 NZLR 381; R v Iosefa [2008] NZCA 453.