Polyanszky v The Queen [2011] NZCA 4; [2011] NZCA 4 (8 February 2011)

Last Updated: 16 February 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA818/2010 [2011] NZCA 4

BETWEEN RENEE ANNA POLYANSZKY Appellant

AND THE QUEEN Respondent

Hearing: 2 February 2011

Court: Chambers, Ellen France and Randerson JJ

Counsel: H S Edward for Appellant D R La Hood for Respondent

Judgment: 8 February 2011

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Cannabis dealing

[1] In February last year, police mounted a drug operation codenamed “Hornet”. Acting on information received, a police officer visited Renee Polyanszky’s address in Rotorua on 25 February. The officer, pretending to be a cannabis user, bought a cannabis tinny from Ms Polyanszky for $20.
[2] On 1 March, another officer went to Ms Polyanszky’s house, attempting to buy cannabis. Ms Polyanszky told the officer she did not know him and quizzed him as to how he knew about the address. She told him she would sell him drugs only if he brought with him someone she knew, as if she got caught by the police, she would go to jail.
[3] On 18 March, the operation was terminated. On that date, police executed a search warrant at Ms Polyanszky’s home. When police entered, Ms Polyanszky was holding a black sock containing two plastic bags. Each bag contained 20 cannabis tinnies. Ms Polyanszky threw the sock out of the window in an attempt to dispose of the evidence. Further cannabis was found in the kitchen. When police searched Ms Polyanszky’s handbag, two further cannabis tinnies were found. The police also found spotting knives and spoons and a cannabis bong. Other remnants of cannabis were discovered in various parts of the house.
[4] Ms Polyanszky told the police that the cannabis was all for her own personal use. She denied selling cannabis to undercover officers.
[5] Initially Ms Polyanszky pleaded not guilty to charges of selling cannabis, offering to sell cannabis, and having in her possession cannabis for the purpose of sale. About a week prior to trial, however, she changed her pleas to guilty. The charge of offering to sell cannabis, relating to the 1 March incident, was dropped, perhaps as part of a plea bargain. Details as to what happened on 1 March remained, however, as part of the agreed summary of facts.
[6] Judge McGuire sentenced Ms Polyanszky to one year’s imprisonment. He also imposed post-release conditions.[1] Ms Polyanszky has appealed against that sentence. There is no quarrel with the length of the prison sentence. What Mr Edward, for Ms Polyanszky, contends is that the Judge erred in principle in imposing imprisonment rather than a sentence of home detention. That is the sole issue on this appeal.

Should the Judge have imposed home detention?

[7] Ms Polyanszky had previous drug convictions. In 2003, she was convicted of cultivating cannabis, in respect of which she was fined. In 2007, she had been found with 520 g of cannabis. She pleaded guilty at a status hearing to possession. Judge McGuire noted that she was lucky not to have been charged and found guilty of possession of cannabis for supply, given that the amount of cannabis was 17 times “the presumptive amount”.[2] Ms Polyanszky was sentenced to 75 hours’ community work.
[8] The probation officer in the present case recommended home detention with post-detention conditions. Judge McGuire gave that recommendation serious consideration. In the end, however, he held such a sentence would not be appropriate. In particular, the Judge noted what this Court had said in the guideline judgment of R v Terewi:[3]

The paramount consideration is, we repeat, the deterrence of others, and by that means to reduce the prevalence of cannabis use and dependence in this country. Others who might be contemplating becoming involved in cannabis production or dealing will not be likely to be much deterred when they can see that, if detected, they are likely to escape imprisonment.

[9] Ms Polyanszky was well aware of the risk of imprisonment, as she referred to that risk when dealing with the second undercover officer. Perhaps she was prepared to run the risk because she considered she would have a good chance of home detention, if caught, on the basis that she was a solo mother of two boys, aged 10 and 11.
[10] Judge McGuire had regard to the general description Ms Polyanszky had given the probation officer as to how she spent her days. Essentially, she stayed at home, living on a domestic purposes benefit, watching day time television and smoking cannabis. So far as Judge McGuire could see, if she served her sentence at home, the only real effect it would have on her would be that “she would not be able to go fishing”.[4] Judge McGuire thought that home detention would, in the circumstances, provide little deterrence.
[11] He was also concerned about the fact that Ms Polyanszky’s two boys were growing up in a home where cannabis smoking and dealing were prevalent.[5]
[12] Mr Edward submitted to us that the Judge could have imposed home detention rather than a short term of imprisonment. We accept that another Judge might have been persuaded to impose home detention rather than imprisonment, perhaps as a final warning to Ms Polyanszky. But that does not mean that Judge McGuire fell into error in concluding that home detention would provide insufficient deterrence in all the circumstances of this case. Mr Edward was unable to show any error of principle in the Judge’s approach. Nor could he show the sentence was plainly wrong.[6] His Honour carefully considered the relevant authorities and cogently explained why he was not imposing a sentence of home detention.
[13] This Court in R v D[7] commented that, when an offender is on the cusp of home detention, the Court will ordinarily defer to the assessment of the sentencing judge. There have been numerous cases where this Court has declined to interfere with sentencing judges’ decisions not to impose home detention, despite the sentence of imprisonment falling below two years.[8] The introduction of home detention as a discrete sentence has not removed a short-term sentence of imprisonment as a sentencing option.[9]
[14] Mr La Hood, for the Crown, referred us to R v Stainton[10] in which this Court declined to interfere with a sentence, also imposed by Judge McGuire, as it happens, of nine months’ imprisonment rather than home detention for one charge of possession of cannabis oil for the purpose of supply and one charge of possession of cannabis for the purpose of sale. On that occasion, this Court confirmed the unaltered impact of the following extract from R v Paki:[11]

We accept that the declining of leave to apply for home detention is usual in cases involving offending over a period of time and where that offending has occurred in the home environment. This is particularly so in cases of drug offending. The possibility of returning home, to the scene of offending, a relatively short time after conviction, could tend to undermine the deterrent aspect of sentencing in such cases, and detract from the authority of the judicial process in the eyes of the public. But the judicial discretion must not be fettered, even if sparingly exercised the types of cases we have mentioned.

[15] This Court also noted what the Court had earlier said in R v Hill:[12]

Finally, we should note that it is now well established that home detention is unlikely to be granted where a person is convicted of dealing in a drug from his or her home (see, for example, R v Paki (Court of Appeal, CA165/05, 5 September 2005) at para [6]).

[16] In all the circumstances, Mr Edward, while saying everything that could be said in Ms Polyanszky’s favour, has not satisfied us that the sentence was wrong in principle or was manifestly excessive.
[17] Since Ms Polanszky was sentenced on 2 December 2010, she has effectively been on bail, owing to Judge McGuire’s decision to defer the start date of imprisonment for two months pending an appeal. Ms Polyanszky did not start to serve her sentence until 2 February, the day on which we heard her appeal. In that period, she has continued with drug counselling with Te Utuhina Manaakitanga Trust. She had contacted the Trust some time before sentencing, but as at the date of sentencing had not done more that attend an initial assessment session. Since sentencing, she has undertaken five individual counselling sessions and five group sessions. The Trust reports she has participated well. There are times when this Court has been prepared to consider as a mitigating factor rehabilitation efforts undertaken since sentencing, even though, of course, the principal appellate focus is always on whether the sentencing judge erred on the information available to him or her at the time of sentence. An appeal is not generally a second shot at sentencing.
[18] We are not satisfied that the ongoing attempt at rehabilitation since sentencing is so impressive as to warrant, in effect, the undertaking of a second sentencing exercise. While we have no doubt that the Trust is providing a satisfactory alcohol and drug counselling service, we note that Ms Polyanszky took steps to utilise the service only shortly before she was sentenced. It is just a counselling service; she has not entered into a residential programme. We do not know whether she has consumed illicit drugs since sentencing. We have nothing from her to indicate that she is determined to beat her addiction. We are not prepared to interfere with the sentence on the basis of post-sentence attempts at rehabilitation.
[19] We dismiss the appeal.

Solicitors:
H S Edward, Rotorua, for Appellant
Crown Law Office, Wellington, for Respondent

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[1] R v Polyanszky DC Rotorua CRI-2010-063-1706, 2 December 2010, [“sentencing notes”].
[2] At [5].

[3] R v Terewi [1999] 3 NZLR 62 (CA) at [15]. The extent which the categories and ranges in this guideline decision on cannabis cultivation should be applied to sentencing for cannabis dealing generally is “a matter of some uncertainty”: see Geoffrey Hall Hall’s Sentencing (looseleaf ed, LexisNexis) at [I.2.3(c)(ii)] and the cases there cited. We do not need to resolve that problem in this appeal because (a) the length of the prison sentence, if imprisonment is appropriate, is not in dispute and (b) the passage cited is, on any view, applicable to all cannabis dealing.
[4] Sentencing notes at [24].
[5] At [25].
[6] James v R [2010] NZCA 206 (2010) 24 NZTC 24,271 at [17].
[7] R v D [2008] NZCA 254 at [66].

[8] For example, see R v Bishop [2008] NZCA 97, R v Church [2008] NZCA 272, R v Clarke [2008] NZCA 501, Otufangavalu v R [2010] NZCA 585, and Murphy v R [2010] NZCA 567.
[9] Kincaid v R [2010] NZCA 384 at [29].
[10] R v Stainton [2008] NZCA 370.
[11] At [9]-[10], citing R v Paki CA165/05, 2 September 2005 at [12].
[12] At [14], citing R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [41].