Sanson v R [2013] NZCA 388 (22 August 2013)

Last Updated: 27 August 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA411/2013 [2013] NZCA 388
BETWEEN	DEAN O’BRIEN SANSON Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2013
Court:	White, Goddard, Simon France JJ
Counsel:	J C Hannam for Appellant J E Mildenhall for Respondent
Judgment:	22 August 2013 at 11.00 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
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REASONS OF THE COURT

(Given by Goddard J)

[1] Mr Sanson pleaded guilty on indictment to five charges of offering to supply the Class A controlled drug methamphetamine to another, and was sentenced in the District Court at New Plymouth to concurrent sentences of 18 months’ imprisonment on each of the five counts.^[1] He now appeals against that sentence on the ground that, in the circumstances of his case, the appropriate sentence was one of home detention.
[2] There was no issue taken with the starting point adopted by the sentencing Judge, Judge Roberts, it being accepted that 18 months was an appropriate length of sentence. The argument on appeal is whether the Judge erred in the following respects when declining to impose a sentence of home detention:

(a) by overstating the seriousness of the charges, which concerned a total of just over one gram of methamphetamine and which the Crown agreed put the appellant’s case at the bottom of Band one in R v Fatu;^[2]

(b) by placing too much reliance on the absence of rehabilitative needs;

(c) by adopting a negative and unsupported view of the appellant’s personal circumstances, which was not based in fact; and

(d) by giving undue weight to “concerns raised by CYFS” in relation to the appellant’s proposed home detention address and which were not particularised in the probation report. The probation report, whilst referring to CYFS’ concerns, also indicated that a sentence of home detention was capable of being implemented in the appellant’s case.

[3] Based on the cumulative effect of the above alleged errors, Mr Hannam submitted that this Court on appeal should be satisfied that it was appropriate to “commute” the sentence of 18 months imprisonment to one of home detention.

Background

[4] The five offences of offering to supply methamphetamine occurred in March and October 2011. The offending was detected by means of search warrants executed in relation to text message records from a cell phone attributed to the appellant. After the appellant entered his guilty pleas on 8 March 2013, he was remanded on bail without incident for a period of nine months prior to sentence.
[5] The entry of the guilty pleas was preceded by an informal sentence indication from Judge Roberts, to the effect that if the appellant were to plead guilty and a favourable pre-sentence report was forthcoming it would be open to the appellant to argue for a sentence of home detention.
[6] In the event guilty pleas were entered following a committal and no formal sentence indication hearing took place.
[7] At sentencing on 27 May 2013, Judge Roberts noted the appellant was clearly a person able to facilitate a supply of methamphetamine and given the text message evidence any explanation would have been extremely difficult. He noted the appellant is 28 years of age and has a variety of convictions but none of a related nature. However, the Judge made specific reference to what he characterised as the appellant’s “disobedience convictions”, particularly those incurred for breach of a release condition in 2004 and for five breaches of community work between 2006 and 2009. In relation to the probation report the Judge said:

[8] I had indicated to you, subject to the provision of a supportive presentence report, it was open to you to argue for home detention. I stress, it was dependent on a favourable report. The report is now to hand. It is far from favourable.

[8] The Judge went on to note that the author of the report had concluded that the appellant lacked remorse because he had denied the offending and this denial constituted “an elevation in the seriousness of [the] offending”. Further, the appellant had self-reported no use of any illegal substances and on that basis had no identified rehabilitative needs. A further factor referred to by the report writer was as a result of enquiries made of CYFS in response to which concern had been expressed about the appellant’s children, and whether the nature of the appellant’s previous and current convictions might impact on the stability of the home environment and the mother’s ability to provide safe and appropriate care for them. This expression of concern was, however, somewhat contrary to an earlier reference in the report to there being no evidence that the appellant’s record of violence would impact on the risk to family members, should he be sentenced to home detention.
[9] In determining the appropriate sentence, the Judge referred to the Crown’s submission that the appellant’s offending came within the lower end of Band one in Fatu and that the aggravating factors required a starting point of two years’ imprisonment. He noted the possibility of home detention as having been canvassed with the appellant, and that he and his partner consented to the imposition of such a sentence and that the home address was deemed suitable by authorities. Against that the Judge noted the concern of CYFS about the possible impact on the stability of the home and the appellant’s poor record of compliance with previous communitybased sentences. Of the latter he observed:

[15] Under the heading “Ability to Comply” there is some insightful commentary. You have, according to Corrections, demonstrated a poor ability to comply with community based sentences and reference is made to the convictions for non-compliance and driving while disqualified. Probation officer, community work, commented that despite completing those last two sentences you:

Struggle to comply and consistently ring to be excused. He was excused with three written warnings which culminated in a notice to breach. In the opinion of the community work probation officer you are not considered suitable for further community based sentences.

[10] In addition to the unfavourable probation report and the apparent absence of rehabilitative needs, the Judge found the appellant’s life to be devoid of structure as reflected in his “mixed” response to the earlier community based sentences. The Judge viewed his current offending as “a significant escalation in seriousness” and was satisfied that a sentence of home detention would not serve to emphasise sufficiently the principles of denunciation and deterrence.
[11] Allowing credit for the appellant’s guilty pleas, the Judge settled on an end sentence of 18 months’ imprisonment, from a starting point of two years’ imprisonment.

Submissions

[12] Mr Hannam submitted that the extent of the alleged errors in the Judge’s approach should satisfy this Court that the sentence of 18 months’ imprisonment should be “commuted” to one of home detention. He acknowledged, however, that there was difficulty in overcoming the Judge’s finding that the probation report was “far from favourable”. Notwithstanding, Mr Hannam emphasised that a sentence of home detention could be available for drug offending, including drug dealing offending in certain circumstances, and argued that the Judge’s exercise of discretion in this case had been improperly influenced by the number of unsupported negative comments in the probation report. Further, that the Judge had failed to appreciate or acknowledge that there had been a “slow down” in the regularity of the appellant’s offending prior to the current offences, as his last offence was as long ago as October 2009, and his history of non-compliance with community work sentences all predated 2009.
[13] Mr Hannam pointed to the small amounts of methamphetamine involved in the offending: a total of around 1.05 grams, placing the offending at the bottom end of the available range and therefore, in his submission, not requiring a deterrent response.
[14] In respect of the concerns expressed by CYFS about the welfare of children in the appellant’s home, and how the nature of his past and current offending might impact on that, Mr Hannam suggested these concerns should have been read alongside the earlier acknowledgement in the report of no evidence to suggest the appellant’s record of violence would impact on the risk to his family, were he to be sentenced to home detention.
[15] In terms of rehabilitative needs, Mr Hannam submitted the absence of any acknowledged drug issues should have been considered a neutral factor.
[16] Given the above factors, Mr Hannam argued that home detention was an available sentence in the circumstances of the appellant’s case and should have been imposed. The Judge had failed to balance the principles of denunciation and deterrence with a proper consideration of s 16 of the Sentencing Act 2002.^[3] He asked this Court to “form a different, less overwhelmingly negative view of the appellant”.

Discussion

[17] On the positive side, we acknowledge that while the appellant has previously served two terms of imprisonment, these were in 2004 and 2005, when the appellant was aged 20 and 21 years respectively. Whilst there have been a number of breaches of community work sentences since, the appellant appears to have completed the most recent community work sentence satisfactorily. The further fact that he was on bail without incident for a nine month period prior to sentencing could be regarded as a further indicator of developing maturity.
[18] We accept also that the concerns expressed by CYFS were difficult for the appellant to respond to and do not sit easily alongside the earlier comment in the probation report that there was no evidence to suggest the appellant’s record of violence would impact adversely on family members, were he to be sentenced to home detention. Those concerns could therefore be characterised as rather overstated. The same might also be said for the emphasis placed on the appellant’s perceived lack of acceptance of responsibility. The stated absence of any rehabilitative need, based on his self-reporting, should have been regarded as a neutral factor, rather than as counting against the appellant.
[19] It cannot however be said that the sentencing Judge was precluded from placing the weight that he did on aspects of the probation report when exercising his discretion. In the absence of a more encouraging and positive report, the presumption in favour of a sentence of imprisonment in s 6 of the Misuse of Drugs Act 1975 was not readily displaced by s 16 of the Sentencing Act.^[4]
[20] The reality is that there were five separate occasions on which the appellant supplied the Class A drug methamphetamine and, as the Judge rightly observed, the appellant’s preparedness to deal in this drug marked a significant escalation in the seriousness of his offending. The appellant’s personal circumstances could therefore carry little weight in the sentencing exercise. It is not open to find that the Judge erred in any material respect. Nor can it be said that the sentence of imprisonment was wrong in principle.
[21] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Sanson DC New Plymouth CRI-2012-021-932, 27 May 2013.

^[2] R v Fatu [2006] 2 NZLR 72 (CA) at [34].

^[3] Section 16 provides that, subject to any presumption of imprisonment, a sentence of imprisonment should only be imposed where the purposes served by imposing that sentence could not be achieved by a non custodial-sentence.

^[4] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [31] and [38].