Smith v R [2013] NZCA 51 (13 March 2013)

Last Updated: 21 March 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA636/2012 [2013] NZCA 51

BETWEEN GARY SMITH Appellant

AND THE QUEEN Respondent

Hearing: 4 March 2013

Court: Ellen France, Keane and Miller JJ

Counsel: J Corby for Appellant K Raftery for Respondent

Judgment: 13 March 2013 at 10 am

JUDGMENT OF THE COURT

1. An extension of time to file the appeal is granted, but the appeal is dismissed.
   
2. Mr Smith must resume his home detention sentence. He is to be at 93A Forestry Road, Riverhead at 12.00 pm on 15 March 2013, and he must remain there to await the probation officer and security company representative.

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REASONS OF THE COURT
(Given by Miller J)

Introduction

[1] Mr Smith pleaded guilty to four charges of receiving stolen vehicles and one of permitting his property to be used to manufacture methamphetamine. He was convicted after trial of a further offence, receiving a swimming pool. All of this offending resulted in 11 months home detention with special conditions, six months post-release conditions, and 200 hours community work. One of the home detention and post-release conditions required that he attend an alcohol and drug assessment and undertake any treatment required by the probation officer.
[2] He appeals against sentence, saying that the term of home detention is too long and the alcohol and drug condition restricts his employment options as a driver of heavy machinery.

The narrative

[3] Early in February 2010 an in-ground swimming pool worth $37,000 was stolen from a storage yard at Riverhead. It was soon spotted during a helicopter flight over Mr Smith’s nearby property. When the police executed a warrant several days later they found that the pool had been installed in the ground. They also found a clan lab and four vehicles that had been stolen in 2004, 2005, and 2009.
[4] Mr Smith had no explanation for the stolen vehicles at the time, although he was otherwise co-operative. He later attributed them to his brother, a notorious member of the Headhunters gang who died several months after Mr Smith’s arrest. This explanation was accepted in the District Court, where Mr Smith received on 2 July 2010 a sentencing indication of about three months community detention with about 180 hours community work. He then pleaded guilty.
[5] Mr Smith admitted in interview that he had allowed others to use his property to manufacture methamphetamine at $2,000–$3,000 a time. He pleaded guilty to that charge on 3 August 2010.
[6] However, Mr Smith denied receiving the swimming pool and went to trial. On 18 July 2012 a District Court jury found him guilty. He was sentenced on all charges on 30 August 2012.[1]

The sentencing

[7] The pre-sentence report noted that Mr Smith, who is 62, has a significant but dated criminal history. It includes three alcohol-related convictions, one for possessing cannabis, and two for offences of dishonesty. His most recent conviction was in 1997. He was considered at low risk of reoffending generally, but he did exhibit offending-supportive attitudes and a sense of entitlement.
[8] Judge Wilson QC decided that the appropriate sentence would be two years imprisonment. He appears to have reached that term by taking a starting point of two years for receiving the vehicles (as had been done when the sentencing indication was given), then adding nine months for the using premises charge, before deducting five months for assisting the police and nine months for the guilty pleas and, finally, adding to the resulting sentence of 19 months imprisonment a further five months for receiving the swimming pool.
[9] Having reached that point, the Judge converted the sentence to 11 months home detention with community work and conditions, as noted above. The home detention address is the rural address at which the offending occurred.

The appeal

[10] So far as the alcohol and drug condition is concerned, Mr Smith now deposes that he likely will be unable to work at the end of his sentence if he must explain the drug and alcohol condition to an employer. He is an excavator/digger operator. The pre-sentence report indicated that he was in receipt of accident compensation for a knee injury at the time of sentence, though he was soon to undergo a medical review. Counsel advises that he resumed employment after he appealed in September 2012, one month after the sentencing. The appeal resulted in the sentence being suspended. Presumably he will leave his present job when he resumes the home detention sentence.
[11] So far as the home detention term is concerned, Mr Smith says that he faced a long delay until trial, and because radio coverage is poor he is confined to the house, which is small.
[12] Neither of these issues was raised in the District Court. Mr Corby frankly conceded that he thought he had done well to keep Mr Smith out of prison. Indeed, Mr Smith himself recognises that he was treated leniently. He invites this Court to substitute more community work for a shorter home detention term and removal of the drug and alcohol condition.

Discussion

[13] The appellate question is whether the sentence was manifestly excessive. A sentence usually acquires that quality through its duration, but it may also do so through its form.
[14] We deal first with the home detention term. Mr Smith nominated the address, and consented to serve the sentence there, and the house was assessed as suitable. It cannot be said in these circumstances that the Judge erred by imposing a term of 11 months at that address. The sentence will be burdensome, but it is meant to be.
[15] Nor are we prepared to reduce the sentence for delay pending trial on the swimming pool charge. We accept both that the case took much too long to reach trial, and that a sentence may be reduced for time spent on bail where the appellant experienced undue delay through no fault of his own. But in this case delay attributable to the District Court is insufficient to justify a further reduction in an already generous sentence. There was a series of adjournments, two of which were attributable to the District Court being unable to provide a judge on the day and another to the unavailability of defence counsel and a Crown witness. We accept Mr Raftery’s submission that delay which is squarely attributable to the District Court accounts for only about seven months of the overall period of two and a half years between arrest and trial. Indeed, it is arguably less because one adjournment was also attributable to the illness of defence counsel. Three other adjournments were attributable to Mr Smith.
[16] That brings us to the drug and alcohol condition. The jurisdiction to impose special intra-detention and post-detention conditions is found in s 80D and s 80P of the Sentencing Act 2002. The Court must be satisfied that: there is a significant risk of further offending; the standard conditions alone would not adequately reduce that risk; and the special condition would reduce the likelihood of further offending by rehabilitating and reintegrating the offender.
[17] The Judge did not give reasons for imposing the condition, which was recommended by the probation officer. Mr Smith had described himself as a low user of alcohol and an occasional methamphetamine user before his arrest, and he was thought to be at low risk of reoffending. But Mr Smith’s offending on this occasion was very serious. Further, he has an admittedly dated history of alcohol misuse, he admitted using methamphetamine before his arrest, and he had allowed his property to be used to make methamphetamine. In the circumstances the Judge’s decision to require an assessment was plainly warranted. There is no evidence that the assessment would take time to arrange or interfere with employment. Treatment would be required only if the assessment confirmed he has a drug problem that would benefit from it.
[18] There is also insufficient evidence that Mr Smith will be unable to work if he must disclose the drug and alcohol condition. He says that “no employer would touch me” in that case, but that is merely his opinion, unsupported by any evidence from an employer. Presumably he would have to disclose his convictions, so the question is what marginal difficulty the alcohol and drug condition would cause him if, as he implicitly contends, he must disclose that too. We accept that an employer such as Mr Smith’s would be concerned about employees being affected by drugs when operating machinery but, as counsel pointed out, such employers insist on drug testing in the workplace. They may be content to rely on that precaution. Consistent with that, we were told from the bar that Mr Smith resumed work when he filed his appeal and was released from detention.
[19] Finally, we note that Mr Smith may apply to the District Court under s 80F or s 80R of the Sentencing Act for an order remitting the drug and alcohol condition on the ground that circumstances have changed since he was sentenced. That is the proper course where, as in this case, the grounds relied upon were not before the sentencing Judge.

Decision

[20] The appeal was out of time. We extend time for filing the notice of appeal, and dismiss the appeal. Mr Smith must resume his home detention sentence. He is to be at 93A Forestry Road, Riverhead at 12.00 pm on 15 March 2013, and he must remain there to await the probation officer and security company representative.

Solicitors:
Crown Solicitor, Auckland for Respondent

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[1] R v Smith DC Auckland CRI-2010-090-4526, 30 August 2012.