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Court of Appeal of New Zealand |
Last Updated: 5 December 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
17 November 2014 |
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Court: |
French, Asher and Clifford JJ |
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Counsel: |
B P Kilkelly for Appellant
M G Wilkinson for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
[1] The appellant, John Douglas Taylor, pleaded guilty in the District Court to one charge of possession of cannabis for supply and eight charges of offering to supply cannabis. Mr Taylor was sentenced by Judge Crosbie to two years and three months’ imprisonment.[1] Mr Taylor now appeals that sentence as being manifestly excessive.
Mr Taylor’s offending – the facts
[2] Mr Taylor’s offending came to light as a result of a police investigation into cannabis and cannabis oil offending in South Otago and Southland between April and December 2012. Mr Taylor’s brother, Bradley, an associate, John Gerrard, and a number of others also faced charges as a result of that investigation.
[3] Mr Taylor originally faced 28 charges, comprising possession of cannabis for supply (x 1), conspiring to supply cannabis (x 1), offering to supply cannabis (x 17), possession of cannabis oil for supply (x 1), conspiring to supply cannabis oil (x 1) and offering to supply cannabis oil (x 7). Mr Taylor pleaded guilty to the possession of cannabis for supply charge and eight of the offering to supply cannabis charges, all of which involved Mr Taylor offering to supply cannabis to his brother Bradley or Mr Gerrard. The Crown offered no evidence as regards any of the cannabis oil offending or the rest of the offering to supply cannabis charges. All of the offending to which Mr Taylor pleaded guilty occurred in the two and half week period from 30 April to 17 May 2012.
[4] The total amount of cannabis involved in Mr Taylor’s offending was approximately 14 ounces.
[5] Mr Taylor bases his appeal, in part, on the proposition that the sentence he received was out of line with those imposed on some of his co-offenders, including his brother and Mr Gerrard.
The challenged sentencing decision
[7] As the Judge acknowledged, a difficult part of that sentencing exercise was the need to take account of sentences imposed on the other offenders charged as a result of the same investigation. By the time Mr Taylor came to be sentenced, his brother Bradley, Mr Gerrard and four others had already been sentenced. The sentences imposed ranged from four years and eight months’ imprisonment (for clearly more serious offending)[4] to 350 hours’ community work and a fine of $750 (for clearly less serious offending, and where the particular circumstances of the defendant, in the assessment of the sentencing Judge, meant that home detention was not practicable).[5] Of direct relevance here, Mr Kilkelly for Mr Taylor submitted, were the sentences imposed on Mr Taylor’s brother Bradley, Mr Gerrard and a Mr Te Huia. As Mr Kilkelly fairly submitted, their offending was either similar to or more serious than that of Mr Taylor, but they all received lesser end sentences:
- (a) Bradley Taylor was sentenced to seven months’ home detention and 200 hours’ community work (from an undisclosed starting point, for cannabis and cannabis oil offending between April and December 2012, with an estimated drug value of just over $14,000).[6]
- (b) Mr Gerrard was sentenced to 10 months’ home detention (from a two year and nine month starting point, with a stated 25 per cent guilty plea discount and five per cent youth discount, for some 55 separate occasions of cannabis and cannabis oil offending between March and September 2012, with an estimated drug value of $4,000).[7]
- (c) Mr Te Huia was sentenced to one year and 10 months’ imprisonment (from a two year six month starting point and a (rounded) 25 per cent guilty plea and personal matters discount, for cannabis cultivation, possession and sale between November 2010 and December 2012, with an estimated drug value of $21,000).[8]
[8] Judge Crosbie, who adjourned the sentencing hearing to give himself an opportunity to review those sentencing decisions, commented:[9]
[5] ... Sentencing people is always a difficult exercise and never mathematical, but it is more difficult when there are a number of people involved in the same operation who are sentenced in different courts at different times by different Judges.
[6] As my reading has shown over the last couple of days, it is also difficult where the last Judge in the chain, so to speak, cannot always rationalise the basis on how one or other Judges have reached their decisions. The issue of parity really means for you fairness, but also ... parity is about sending a message of consistency and, as much as possible, certainty to the community.
[9] The Judge said he identified Mr Taylor’s starting point of two years and four months to achieve some parity with those other sentences.[10]
This appeal
[10] Responsibly, Mr Kilkelly accepted that in terms of Terewi the starting point of two years and four months identified by the Judge was one available to him. He argued, however, that the Judge erred in uplifting that starting point by six months to take account of Mr Taylor’s previous drug offending. The submission was that the earlier offending was of a relatively minor nature – possessing and selling cannabis in 2011, for which a sentence of two months’ community detention was imposed, and cultivating cannabis in 2009, for which a fine of $400 was imposed. Mr Kilkelly submitted that, whilst an uplift was appropriate, it should not have been any more than three months.
[11] Mr Kilkelly also pointed to two aspects of Mr Taylor’s personal circumstances: his addiction to cannabis, which arose from a debilitating and painful pancreatic condition, and the references provided by employers and friends, who spoke highly of Mr Taylor. Finally, Mr Kilkelly pointed to what he said was the concerning disparity between the sentence imposed on Mr Taylor and those imposed on his cooffenders. Having regard to those matters, some further adjustment was called for on appeal.
[12] For the Crown, Ms Wilkinson argued that the Judge’s starting point, previous convictions uplift and guilty plea discount were all within range. Moreover, when the starting points and personal circumstances of his co-offenders were considered, there were no grounds to interfere with Mr Taylor’s sentence on the basis of disparity. She referred us to the decisions of this Court in R v Rameka and R v Lawson, to the effect that disparity between sentences imposed on co-offenders must be unjustifiable and gross to warrant intervention.[11] Ms Wilkinson also noted the well-established authority that a disparity argument cannot be based on a cooffender’s inadequate or unjustifiable sentence.[12]
Analysis
[13] As submitted by the Crown, we think the starting point sentence and 20 per cent guilty plea discount adopted by the Judge were appropriate. We agree with Mr Kilkelly, however, that the uplift for Mr Taylor’s offending was excessive. An uplift of six months’ imprisonment on account of four previous, relatively minor charges that, at the time, received sentences of two months’ community detention and a fine cannot in our view be justified. Such an uplift involves a considerable degree of further punishment. Here, and having regard to the sentencing purposes of holding Mr Taylor to account, deterrence and denunciation, we think an uplift of two months would have been appropriate.
[14] Whilst only limited (if any) recognition will generally be given for personal circumstances in drug sentencing, we think some modest discount could have been given on account of the significance for Mr Taylor’s offending of his medical condition, and the very positive references he received. We also have concerns about the disparity between the sentence imposed on Mr Taylor and those imposed on others involved in this offending, in particular on his brother and Mr Gerrard. Whilst some of the sentences imposed on others involved in the offending could be seen as lenient, that was not the case as regards Bradley Taylor and Mr Gerrard. We note that recognition was given for personal factors in those sentences. By reference to those concerns, we consider that a further discount of two months is appropriate.
[15] On that basis, Mr Taylor’s appeal is allowed. His sentence of two years and three months’ imprisonment is quashed and a sentence of one year and 10 months’ imprisonment is imposed in its place. We record that, in these circumstances, Mr Taylor did not seek home detention.
Solicitors:
Crown Law
Office, Wellington for Respondent
[1] R v Taylor DC Dunedin CRI-2012-005-444, 24 January 2014.
[2] R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).
[4] R v Taumata DC Dunedin CRI-2012-012-4130, 27 March 2013.
[5] R v Maiava DC Dunedin CRI-2012-005-450, 14 August 2013.
[6] R v Taylor DC Dunedin CRI-2013-005-103, 21 November 2013.
[7] R v Gerrard CRI-2013-005-54, 14 March 2013. The Judge’s stated 30 per cent discount would have resulted in an end sentence of 23 months. In fact, the Judge based his sentence of home detention on what he said would have been a period of imprisonment of 20 months.
[8] R v Te Huia [2013] NZHC 1326.
[9] R v Taylor, above n 1.
[10] At [24].
[11] R v Rameka [1973] 2 NZLR 592 (CA); and R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA).
[12] R v Te Kaha CA49/05, 5 July 2005 at [48]; and R v Feterika [2008] NZCA 127 at [47].
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URL: http://www.nzlii.org/nz/cases/NZCA/2014/561.html