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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI 2009-404-000218
VINCENT MANA GEORGE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing:
17 August 2009
Appearances: C B Wilkinson-Smith for the Appellant
K Hogan for the Respondent
Judgment: 19
August 2009 at 3:30pm
JUDGMENT OF WYLIE J
[Appeal against sentence]
This judgment was delivered by Justice Wylie
on 19 August 2009 at 3:30pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
C B Wilkinson-Smith, P O Box 1544, Auckland 1140
Crown Solicitor,
P O Box 2213, Auckland 1140
V M GEORGE V NEW ZEALAND POLICE HC AK CRI 2009-404-000218 19 August 2009
[1] On 24 April 2009,
Mr George pleaded guilty to supplying methamphetamine.
The plea was entered prior to the conclusion of the preliminary hearing.
[2] Supplying methamphetamine is an offence pursuant to s 6 of the Misuse of
Drugs Act 1975. The maximum penalty for the offence
is life imprisonment.
[3] On 3 July 2009, Mr George was sentenced by Judge Blackie in the Manukau
District Court. The Judge
considered that Mr George's offending was within Band 1
in R v Fatu [2006] 2 NZLR 72. He set a starting point of 3 years' imprisonment. He
allowed a 1 year discount for an early guilty plea, and a further 6 month discount
to
reflect the time that Mr George had spent on electronically monitored bail.
[4] A finite sentence of 18 months' imprisonment
was imposed.
[5] The Judge dealt with the question of home detention at [89] of his sentencing
notes. He noted as follows:
I know that it has been urged upon me that I consider home detention if the
sentence involved is less than two years.
However, I have to say that with
drug dealing of this nature involving as it does gang-related activity and the
extent
to which it is apparent through the sentencing that I have had to do
today, that home detention would not be seen as a proper
deterrent either to
you or to others who might be like minded to get involved in the drug trade.
The sentences in respect
of drug dealing have got to be seen to bite. Your
involvement as I say, when I consider that there were 479 drug-related
communications, is more than a casual one.
[6] Mr George now appeals this sentence. He says that he should have received
home detention, and that Judge Blackie failed to properly consider his personal
circumstances. In particular, he alleges that the
Judge failed to properly consider the
fact that prior to his imprisonment, he was caring for his terminally ill mother, that
he behaved
in an exemplary fashion while he was on electronically monitored bail,
and that he has the care of his 4 year old son. It was also
submitted that Judge
Blackie did not adequately consider the amount of time spent by Mr George on
electronically monitored bail.
Approach to sentence appeals
[7] The appeal is brought pursuant to s 121(3) of the Summary Proceedings Act
1957. That section
provides as follows:
In the case of an appeal against sentence, the [High Court] may--
(a) Confirm the sentence;
or
(b) If the sentence (either in whole or in part) is one which the Court
imposing it had no jurisdiction to
impose, or is one which is clearly
excessive or inadequate or inappropriate, or if the [High Court] is satisfied
that
substantial facts relating to the offence or to the offender's character or
personal history were not before the Court imposing
sentence, or that those
facts were not substantially as placed before or found by that Court, either--
(i)
Quash the sentence and either pass such other sentence
warranted in law (whether more or less severe) in substitution
therefor as the [High Court] thinks ought to have been passed or deal
with the offender in any other
way that the Court imposing sentence
could have dealt with him on the conviction; or
(ii) Quash
any invalid part of the sentence that is severable from
the residue; or
(iii) Vary, within the
limits warranted in law, the sentence or any
part of it or any condition imposed in it.
[8] The Court of Appeal
has observed (in respect of sentence appeals under the
Crimes Act 1961) that the discretion to vary a sentence on appeal is not unfettered,
and that the appellate Court should not embark on the sentencing exercised afresh,
nor substitute its own opinion for that of the
original sentencing Judge. There must
be an error initiating the exercise of the original sentencing discretion, and the Court
must
proceed on an "error principle" see R v Shipton [2007] 2 NZLR 218 at [138].
Submissions
[9] Mr Wilkinson-Smith, appearing on behalf of Mr George, referred to the pre-
sentence report.
The pre-sentence report recommended a sentence of home
detention, and noted the factors referred to in [6] above. It also recorded
that he has
expressed remorse, and shown insight into his offending.
[10] Mr Wilkinson-Smith referred me to the decision of the
Court of Appeal in R
v Hill [2008] NZLR 381. He referred me to various paragraphs in that decision, and
suggested that it was applicable to Mr George's circumstances.
[11]
He then dealt with various factors specific to Mr George. He referred to an
affidavit of Joanne Parker-Smith, who is the charge
nurse at Hospice South
Auckland. She has confirmed that Mr George's mother has terminal cancer, and that
she has recently developed
a chest infection. She states that her prognosis is limited,
that her condition is rapidly deteriorating, and that she may only have
weeks, if not
days to live. Mr George's mother has expressed the wish to remain at home for as
long as possible, and she has recently
been released from hospice. She knows that
she will require ongoing support from her family, and the hospice.
[12] Mr Wilkinson-Smith
submitted that Mr George's mother's serious medical
condition is a key factor that should have been considered in assessing the
appropriate
sentence to be imposed on Mr George. He noted that Judge Blackie does
not refer to it. He submitted that the Courts have long recognised
that hardship on an
accused or their family is a relevant factor to be taken into account in sentencing, and
that hardship can warrant
a merciful approach to sentencing in appropriate cases. He
referred to the decision of the Court of Appeal in R v Wihapi [1976] 1 NZLR 422 at
424 and to the decision of Andrews J in R v Leger HC WHA CRI 2005-092-01310,
15 December 2006 at [29]. He also referred to s 8(h)
of the Sentencing Act 2002.
[13] Mr Wilkinson-Smith also referred me to an affidavit sworn by Theodore
Diamond, Mr George's uncle.
Mr Diamond is a Retired Warrant Officer Class 1
from the New Zealand Army. He retired in 2002, and is currently working as a
security
consultant. He confirmed that if Mr George is granted home detention, he
will keep in close contact with him and ensure that he keeps
on the right path. He
also advised that at present, members of Mr George's wider family are taking turns
looking after his 4 year
old son.
[14] Finally, Mr Wilkinson-Smith noted that Mr George spent 12 months on
electronically monitored bail, on strict conditions,
including a 24 hour curfew. He
submitted that Judge Blackie did not adequately consider the time spent by
Mr George on electronic
bail, and that a greater discount for the period spent on
electronic bail should have been allowed.
[15] Ms Hogan appearing for
the Crown submitted that a sentence of home
detention is available at the discretion of the sentencing Judge s 80A of the
Sentencing
Act 2002. She acknowledged that s 121(3) of the Summary Proceedings
Act 1957 permits the Court to hear appeals against the exercise
of that discretion, but
submitted that the Court should be reluctant to interfere with the exercise of that
discretion.
[16]
She discussed R v Hill. She submitted that the primary factor in that case
which led to the exercise of the discretion in the prisoner's
favour was the fact that
he had made significant attempts to rehabilitate himself prior to sentence being
passed. She referred to
the observations of the trial Judge, which are recorded in the
Court of Appeal's decision at [12].
[17] She submitted that there
was nothing in the present case to suggest any
similar attempts by Mr George. Rather it was recommended in the pre-sentence
report
that Mr George did not need to undertake a departmental rehabilitation course
because he is already making a real effort to deal
with his offending. She also
submitted that Mr George's offending occurred in a domestic context. She referred
to the comments of
the Court of Appeal in R v Paki CA165/05, 5 September 2005.
In that case, the Court noted that the possibility of an offender returning
home, to the
scene of the offending, a relatively short time after conviction, would tend to
undermine the deterrent aspect of sentencing
in drug related cases, and detract from
the authority of the judicial process in the eyes of the public.
Analysis
[18] I deal
with the electronic bail point first.
[19] I accept that it can be appropriate to discount a term of imprisonment to allow
for
time spent subject to restrictive bail conditions R v Faisandier CA 185/00,
12 October 2000. However, remand on electronic bail
is not equivalent to a prison
sentence. Here the Judge expressly considered the fact that Mr George had been on
remand on electronic
bail. He took into it account, and allowed the discount which
he considered appropriate. I am not persuaded that the Judge made any
error in
principle, or that the discount he allowed was manifestly inadequate. This ground of
appeal is dismissed.
[20] I now
turn to the home detention point.
[21] Judge Blackie sentenced Mr George to a term of imprisonment of 18 months.
The sentence
is a short term sentence of imprisonment as defined in the Sentencing
Act 2002 (by reference to s 4(1) of the Parole Act 2002). As
a result it was open to
Judge Blackie to impose a sentence of home detention under s 15A if he was
satisfied as to the matters detailed
in s 15A(1)(a) and s 80A. It is clear from those
sections that the Judge had a discretion as to whether or not to impose a sentence
of
home detention.
[22] I have read the pre-sentence report and the affidavits filed by Ms Parker-
Smith and Mr Diamond. I accept
the point made by Mr Wilkinson-Smith that, in
appropriate cases, home detention can be an appropriate sentence even in cases
involving the supply
of methamphetamine.
[23] As the Court of Appeal pointed out in R v Hill, cases involving the supply of
methamphetamine vary greatly,
from sophisticated large scale commercial
operations undertaken by persons whose motivation is financial, to cases involving
addicts
who deal in a small way with friends or acquaintances essentially as a by
product of their own use and involvement in the drug sub
culture.
[24] In the present case, Mr George was caught up in a large scale commercial
operation involving members of the Killer
Beez gang. Mr George was at the time a
patched member of that gang. The offending with which he was involved was
disclosed as a result
of a Police operation known as Operation Leo. The operation
involved a three month period during which private communications were
intercepted under the authority of various High Court interception warrants.
[25] Mr George was associated with other principal
targets in the investigation.
He himself was subject to the interception warrants. The total interception period
was 84 days. Over
that period, 4,145 communications made by Mr George were
intercepted. A total of 479 of those communications were identified as being
drug
related. The drug related communications occurred on 45 days of the 84 day
interception period, although Mr George's communications
were intercepted only for
a period of 30 days. During this period, Mr George was involved in various drug
transactions including
the sale of methamphetamine, and offering to sell
methamphetamine. The amount of methamphetamine offered and sold range from
0.1
gram to 1 gram. The summary of facts had attached to it a table recording
various specific offences with which Mr George was associated.
He was directly
involved in 12 drug dealing offences over the 84 day interception period. Those
offences to which he has pleaded
guilty involve a total of approximately 2.3 grams
of methamphetamine. When he was spoken to by Police, Mr George admitted to
selling
$100 bags of methamphetamine on one or two occasions. He stated that he
tried to broker deals on other occasions, but that they fell
through.
[26] It is clear that Mr George played a role in what was a large scale drug dealing
enterprise. Further, he has an
extensive criminal record, although there is only one
conviction relating to drugs, and that occurred in March 2008.
[27] All
the above factors point to a sense of imprisonment, rather than home
detention. However, I accept Mr Wilkinson-Smith's submissions
that there are some
unusual factors in this case which point in the other direction. In particular, there is
the situation which
has arisen as a result of Mr George's mother's ill health. There is
also the situation in relation to the ongoing care of his 4 year
old son. Both of those
factors are relevant under s 8(h) of the Sentencing Act 2002. I am also mindful of
the observations made by
the Probation Officer in the pre-sentence report. I accept
that Mr George has expressed remorse for his offending, and that he has
made a
determined effort to distance himself from the Killer Beez gang. The Probation
Officer also reported that Mr George has displayed
insight into his continued
involvement with criminal associates, and he has tried to be a role model for his son.
I also accept that
Mr Wilkinson-Smith's submission that Mr George enjoys strong
support from his family. In that regard I note that the extended family
attended the
appeal hearing and I note the comments of Mr Diamond in his affidavit.
[28] Notwithstanding the presumption of imprisonment
contained in s 6(4) of the
Misuse of Drugs Act 1975, in my view it is appropriate to release Mr George on a
sentence of home detention.
[29] Judge Blackie, in his sentencing notes, did refer to the fact that Mr George
has a young child to support, and that he was
the child's primary caregiver. He did
not however refer to Mr George's mother's medical condition, nor to his exemplary
compliance with his bail
conditions. In my view, had the Judge considered these
matters, his decision in relation to home detention would have been different.
I am
satisfied that he erred in principle in not taking into account Mr George's particular
circumstances in their totality. Mr George's
particular circumstances, in particular in
relation to his mother, and his young son, mean that a sentence of imprisonment of
18
months would be disproportionately severe on him. It is a factor the Judge should
have taken into account see s 8(h).
[30]
In substituting the sentence of home detention for a term of imprisonment,
Judges have recognised that it is appropriate to have
regard to the early release
provisions which apply to prison sentences under the Parole Act see for example
Savage v Police HC
WHA CRI 2008-488-001, 14 February 2008, Rodney Hansen J.
The usual approach has been to impose a term of home detention is roughly
half of
the sentence that would otherwise be imposed. This properly recognises that home
detention should not be regarded as a soft
option. It also takes into account the
hierarchy of sentences established by s 10A(2) of the Sentencing Act 2002.
[31] The appeal
is allowed.
[32] His mother's address at 3 Sandrine Avenue, Glover Park, Auckland is
available for a sentence of home detention.
It has been assessed and it is suitable for
the sentence. The occupants have signed the relevant occupant's agreements. Mr
George
has signed an offender's agreement.
[33] Mr George has served 1½ months of his sentence. An equivalent period of
home detention
allowing for parole and time served is 7½ months. I sentence
Mr George to home detention at his mother's residence at 3 Sandrine
Avenue,
Glover Park, Auckland for a period of 7½ months. The standard conditions set out
in s 80C(2) are to apply. In addition, I
am satisfied that the following special
conditions are appropriate:
a) Upon his release from custody, Mr George is to
travel directly to the
address at 3 Sandrine Avenue, Glover Park, Auckland, and there wait
for the arrival
of the Probation Officer and representative from the
monitoring company.
b) Mr George is to reside at
3 Sandrine Avenue, Glover Park, Auckland
for the duration of this sentence of home detention.
c) Mr George
is to abstain from the consumption of alcohol and illicit
drugs for the duration of this sentence of home detention.
d) Mr George is not to associate with co-offenders whom the Probation
Officer has in writing, directed
him not to associate with.
e) Mr George is to undertake any programme of counselling directed by
his Probation
Officer.
Wylie J
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URL: http://www.nzlii.org/nz/cases/NZHC/2009/1080.html