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Court of Appeal of New Zealand |
Last Updated: 12 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: |
12 November 2014 |
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Court: |
Miller, Lang and Clifford JJ |
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Counsel: |
K H Cook for Appellant
M J Lillico for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
[1] Mr Wilson pleaded guilty in the High Court to charges of supplying the class A controlled drug lysergide (LSD), conspiring to sell a class C controlled drug, namely party pills, selling cannabis, conspiring to sell cannabis and possession of LSD. The guilty pleas followed a sentence indication hearing before Mackenzie J on 30 July 2012.[1]
[2] On 13 September 2012, Mackenzie J sentenced Mr Wilson to an effective term of two and a half years imprisonment.[2]
[3] Mr Wilson originally appealed against conviction but abandoned that appeal at the commencement of the hearing in this Court. The appeal against conviction is accordingly dismissed.
[4] Mr Wilson now applies for an extension of time to appeal against the sentence the Judge imposed. Given the view we take of the merits of the appeal, we grant the application for an extension of time.
The offending
[5] The charges to which Mr Wilson pleaded guilty arose out of a wide-ranging police undercover operation. The operation revealed that Mr Wilson and two associates sold five tabs of LSD to an undercover police officer on 7 October 2010. Mr Wilson was the person who supplied the drugs to the officer, but the sale had been arranged earlier by one of his associates. Mr Wilson received the sum of $200 for the drugs. He later told the police he did not make any money out of the transaction, and was just helping his associate out.
[6] During the course of the operation the police intercepted telephone communications between Mr Wilson and his associates. These revealed that during November 2010, Mr Wilson had purchased party pills for himself and his associates. These communications gave rise to the charge of conspiracy to supply party pills.
[7] The intercepted telephone communications also revealed that on 22 November 2010, Mr Wilson had obtained eight one ounce bags of cannabis to sell to others. These contained a significant amount of leaf material, and this meant Mr Wilson had been required to sell one bag of cannabis for a reduced price. Mr Wilson discussed the poor quality of the cannabis with his associate, and said he had made a decision not to use that particular supplier again. These communications led to the charge of selling cannabis.
[8] When the police spoke to Mr Wilson at the conclusion of the operation, he admitted he had obtained cannabis from an associate on several occasions. This was in ounce bags worth $280 to $300. He then sold most of the cannabis to friends and associates for no financial gain, and he used some of the cannabis for his own consumption. These admissions gave rise to the charge of conspiring to supply cannabis.
[9] When the police arrested Mr Wilson in March 2011, he was found to have three LSD tablets in his wallet. This led to the charge of being in possession of LSD.
The structure of the sentence
[10] The Judge took a starting point of two and a half years imprisonment on the lead charge of supplying LSD. He then applied an uplift of eight months to reflect the balance of the offending. This led to a total starting point of three years, two months imprisonment. The Judge then applied a discount of eight months, or just over 20 per cent, to reflect Mr Wilson’s guilty pleas and the conditions of bail to which he had been subject since his arrest. He declined, however, to make any further adjustment to the sentence to reflect Mr Wilson’s personal circumstances. Although the Judge observed that Mr Wilson had taken some steps towards rehabilitation, these were offset by the fact that a recent drug screening test had returned a positive result for cannabis.[3]
[11] This process produced the end sentence of two years six months imprisonment on the charge of supplying LSD. On each of the other charges, the Judge imposed concurrent sentences of 12 months imprisonment.
Grounds of appeal
[12] Mr Cook took no issue with the starting point the Judge selected, or with the end sentence the Judge imposed at the time of sentencing. He advanced the appeal solely on the basis of developments that have occurred since Mr Wilson was sentenced. He urges the Court to recognise these by exercising its discretion to reduce the sentence imposed by Mackenzie J. Mr Cook submits that this will produce an end sentence of less than two years imprisonment, and that the Court should then exercise its discretion to impose a sentence of home detention.
Events that have occurred since Mr Wilson was sentenced
[13] After Mr Wilson was sentenced on 13 September 2012, he served approximately four and a half months of his sentence before being released on bail by order of this Court on 28 November 2012. He has been free on bail since that time, albeit subject to a nightly curfew between the hours of 10 pm and 6 am.
[14] The delay in having the present appeal determined has arisen as a result of factors largely beyond the control of both parties, and is therefore a neutral factor for present purposes.
[15] Mr Wilson and his partner have both filed affidavits confirming that Mr Wilson has adhered scrupulously to the terms of his bail, and that he has also remained drug free since November 2012. To demonstrate this Mr Wilson has produced a drug screening results form confirming that a sample of his urine taken on 30 October 2014 contained no traces of any controlled drugs.
[16] Mr Wilson was unemployed at the time he was sentenced. He has now obtained permanent work at an engineering and welding firm in Nelson. A reference from his employer states that Mr Wilson is able to organise, direct and lead a small team of labourers. His level of skill has developed to the point where he has now moved from being a labourer to being a tradesman assistant. His employer speaks highly of Mr Wilson’s work ethics and habits.
[17] Mr Wilson’s family circumstances have also changed. He and his partner are now engaged, but their wedding plans have been suspended until the outcome of this appeal is known. They have a son, who was born whilst Mr Wilson was in prison. Mr Wilson says he is devoted to his son and wishes to do everything possible to support him in the years to come.
[18] Mr Wilson’s partner suffers from serious health issues. These resulted in her being required to undergo an operation in August 2013 in which she had a kidney removed. Mr Wilson’s partner also suffers from other health issues. These mean that Mr Wilson is required to devote a significant portion of his time to looking after his partner and his child.
The argument in support of the appeal
[19] Mr Cook accepts that Mr Wilson would not have been a realistic candidate for a sentence of home detention in September 2012 even if the Judge had imposed a sentence of less than two years imprisonment. His criminal history contained several convictions for breaching court orders, including breaching sentences of community work and supervision. The pre-sentence report recorded that his history of compliance with such sentences was quite poor. In addition, Mr Wilson had a significant problem with cannabis abuse at that time. His partner had also been a significant user of cannabis. All of these factors led Mackenzie J to observe that a sentence of home detention would not have been appropriate even if the end sentence had been one of less than two years imprisonment.[4]
[20] Mr Cook submits, however, that the changes in Mr Wilson’s personal circumstances are so significant that the Court should take the rare step of applying a further discount to reflect the positive developments that have occurred since he was sentenced.
[21] Mr Cook submits that the Court should recognise these factors by reducing the sentence to one of less than two years imprisonment. This would enable the Court to impose a sentence of home detention. Although a sentence of around nine months home detention would ordinarily have been appropriate, Mr Cook contends that the sentence should be reduced by four and a half months to reflect the time Mr Wilson spent in prison before being released on bail.
Decision
[22] This Court’s jurisdiction in relation to the present appeal is prescribed by s 385(3) of the Crimes Act 1961, which provides as follows:
(3) On any appeal to which subsection (2A) applies [an appeal against sentence], the Court of Appeal or the Supreme Court must –
(a) dismiss the appeal; or
(b) if it thinks that a different sentence should have been passed,
(i) quash the sentence and replace it with another sentence warranted in law (whether more or less severe) that the court thinks ought to have been passed; or
(ii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or
(c) remit the case to the court that imposed the sentence with a direction that such court take an action of the kind described in paragraph (b)(i) or (ii) in accordance with any directions given by the Court of Appeal or the Supreme Court as the case may be.
[23] Generally speaking, the Court will determine an appeal against sentence having regard to the circumstances that were in existence as at the date upon which the sentence was imposed. This Court has held, however, that the wording used in s 385(3)(b) is sufficiently wide to permit the Court to take into account significant events that occur after that date.[5]
[24] In R v Taiatini, for example, the appellant had been sentenced to three months imprisonment, but was granted bail pending determination of the appeal.[6] He had responded positively during that period to a sentence of community care imposed in respect of unrelated offending. This Court recognised the positive change in the appellant’s circumstances by quashing the sentence of imprisonment and ordering the appellant to come up for sentence if called upon to do so within the next twelve months.[7]
[25] We are satisfied that the unusual circumstances of the present case justify the Court reducing the sentence to recognise the positive developments in Mr Wilson’s personal life during the lengthy period that has now passed since the date on which he was sentenced. In doing so we are influenced in part by the following passage in the Judge’s sentencing remarks:[8]
[12] I have given careful and quite anxious consideration to the question of the appropriate sentence for you. You have not previously been sentenced to prison and I have given careful consideration to whether that is necessary for this offending. There is a risk, I think, that prison will not be the best option to promote your rehabilitation. Your counsel has made careful and thoughtful submissions in which he has urged upon me that a sentence of home detention would be appropriate. I have concluded that that is not an appropriate sentence. I have reached the view that a sentence of imprisonment is required for several reasons.
[26] These observations suggest it is likely that, had Mr Wilson’s personal circumstances been the same in September 2012 as they are today, Mackenzie J would have reduced the sentence to one of less than two years imprisonment and then imposed a sentence of home detention.
[27] We consider that the end sentence of two years, six months imprisonment should be reduced by six months to reflect the factors to which we have referred. This produces a sentence of two years imprisonment, which enables the sentence of home detention to be considered. For the same reasons we consider that a sentence of home detention is now appropriate. That sentence would normally be one of 12 months home detention before making an allowance for the time that Mr Wilson spent in prison before being released on bail.
[28] We do not accept that the level of discount sought by Mr Cook should be applied to reflect this factor. An end sentence of four and a half months home detention would be insufficient, in our view, to adequately reflect the seriousness of Mr Wilson’s offending. Instead, we consider a discount of three months is warranted.
Result
[29] The appeal against sentence is allowed. The sentences of imprisonment are quashed. In their place we impose sentences of nine months home detention on each charge subject to the following conditions:
- (a) The sentences are to take effect as soon as the EM bail assessors are able to install the necessary equipment in Mr Wilson’s home address at 84B Russell Street, Nelson.
- (b) Until that time Mr Wilson is to remain on bail on existing terms.
- (c) Mr Wilson is to be present at his home address at a time and date specified by his probation officer so that the electronic monitoring equipment can be installed.
- (d) Once the sentences commence, Mr Wilson is to remain at his home address and be subject to electronic monitoring at that address.
- (e) Mr Wilson is not to leave the address other than to attend appointments that have been arranged in advance with his probation officer.
- (f) Mr Wilson is not to be in possession of, or consume, alcohol or
non-prescription drugs for the duration of the sentence.- (g) Mr Wilson is to comply with all directions given by his probation officer (including any direction requiring him to undertake drug screening tests).
- (h) Mr Wilson is to attend and complete any drug and alcohol treatment programmes that his probation officer may direct.
Solicitors:
Crown Law
Office, Wellington for Respondent
[1] R v Wilson HC Nelson CRI-2012-042-684, 30 July 2012.
[2] R v Wilson [2012] NZHC 2356.
[3] At [11].
[4] At [13]–[15].
[5] R v Sanchez-Silverio CA196/05, 4 November 2005.
[6] R v Taiatini CA148/85, 21 March 1986.
[7] At 6.
[8] R v Wilson, above n 2.
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