Miller v Police [2012] NZHC 1413 (21 June 2012)

Last Updated: 3 July 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000015 [2012] NZHC 1413

BETWEEN ASHLEY ERIC MILLER Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 19 June 2012

Counsel: M Bott for Appellant

I R Murray for Respondent

Judgment: 21 June 2012

_{JUDGMENT OF GENDALL J}

[1] This is an appeal against an effective sentence of two years three months’ imprisonment imposed upon the appellant in the District Court at Wellington by Judge S E Thomas on 27 January 2012. That was the sentence on the lead charges involving class A drug offending, namely supply of the class A controlled drug LSD and supply of the class A drug methamphetamine.

[2] The appellant was also sentenced to concurrent terms of 12 months’ imprisonment on two charges of offering to supply the class B controlled drug Ecstasy and 12 months’ imprisonment on selling the class C controlled drug cannabis, offering to sell cannabis, two charges of possession of cannabis for sale and cultivation of cannabis. On the charge of possession of a firearm without a licence, he was sentenced to a concurrent term of three months’ imprisonment.

[3] In summary, therefore, the sentence of two years three months’ imprisonment was to be served on 10 charges of drug offending and one of possession of a firearm

_{without a licence.}

MILLER v NEW ZEALAND POLICE HC WN CRI-2012-485-000015 [21 June 2012]

[4] The background facts are as follows. As a result of a Police undercover operation, evidence was obtained that the appellant, over a period between 1 June

2010 and 20 April 2010, was involved in drug dealing on a significant basis. He was offering to supply a wide range of drugs including methamphetamine, MDMA (Ecstasy), cannabis, the class C controlled drug IV-MEC, and LSD.

[5] When the Police executed a search warrant at the appellant’s home, they found in a shed a cannabis cultivation operation had been set up and clearly used, as cannabis product to the value between $3,000 and $5,000 was found. It is beyond doubt the appellant had been actively involved in cultivating cannabis and acquiring and supplying a wide range of class A, B and C drugs which could not be obtained, for on-sale, without outlaying significant amounts of money. It was dealing at a commercial level. Simply by way of example, the appellant offered to supply the undercover officer with LSD at $20 per tab, provided that 100 of those items were purchased.

[6] In undertaking sentencing, the Judge had a report from an alcohol and drug counsellor, Mr Brooking, to whom the appellant had been referred by his counsel. He expressed the opinion that the appellant was addicted to alcohol and gambling, had not had treatment for those addictions, and recommended that he not be given a custodial sentence, as he needed to attend a residential treatment programme for alcohol dependence.

[7] The appellant was described as being well-motivated to undertake intervention measures. Judge Thomas referred to counsel’s submission that the appellant ought to have the opportunity of serving a sentence of home detention so as to enable his rehabilitation to be addressed through participating in programmes, especially to deal with his alcohol addiction. Counsel had argued that there was little chance of the appellant being rehabilitated if he was sentenced to a term of imprisonment.

[8] The Judge undertook an orthodox sentencing approach. She noted that in terms of the guidelines in R v Fatu[1] the level of the appellant’s offending fell within

band one. That approach was not disputed. The Judge then referred to the authorities as to approaches for class B and class C drug offending,[2] although R v Wallace was before the introduction of electronically monitored sentences. The Judge was aware of, and referred to, the need to hold the appellant accountable, to denounce the conduct and to deter others, especially those involved in drug offending, and to protect the community from someone involved in drug dealing.

But the Judge noted, and was aware, that any sentence imposed had to take into account the need to assist the appellant’s rehabilitation and reintegration.

[9] Judge Thomas referred to the aggravating features of frequent offers and sales between March and April 2011, and that offending itself extended further back into June 2010; that all three classes of controlled drugs were involved, the total offered being approximately $4,500, excluding the cultivation.

[10] The Judge took as a starting point two years’ imprisonment on the class A offending, 12 months on the class B and 18 months on the class C. Although mathematically amounting to four and a half years, the Judge properly observed that she needed to apply the totality principle. As a consequence, she took as a starting point a term of three and a half years. She then gave the appellant credit of six months for his prior good character and personal circumstances (he had only two previous excess blood alcohol convictions), and a further discount of 25 per cent for what she said was an early guilty plea. That led to the imposition of a lead sentence of two years three months’ imprisonment. The Judge said she gave careful consideration to counsel’s submissions that a sentence of home detention was necessary, but in the end the offending was too serious, particularly as the cultivation of cannabis had occurred at the appellant’s home.

[11] In support of the appeal, Mr Bott’s essential submission was that the appellant, because he had an assessment of low risk of re-offending, was unable to attend prison-based rehabilitation programmes which, if he was sentenced to home

_{detention, he would be able to undertake. He further argued that because the}

appellant could not access and complete prison-based rehabilitative programmes

before his parole eligibility date, he had a “dismal prospect of release on parole”.

[12] The argument proceeds that the current sentencing process operates as a systemic imposition of a de facto minimum non-parole period for prisoners such as the appellant. Mr Bott’s argument was that it was illogical to provide that the appellant could access courses aimed at addressing his offending only if he had an increased risk-rating, and that he had to wait until his parole eligibility date. He said that in order to have access to the rehabilitative programmes, an offender must be at a medium to high risk of re-offending, and, if so, can have better prospects on a parole application than someone who has not had access to those programmes. As a consequence the latter prisoner is likely to be declined parole because it is said he has not addressed the reasons for his offending. So, counsel argued a sentence of imprisonment was incompatible with the rehabilitative purposes of sentencing.

Mr Bott referred to the case of McMillan v R[3] in which he appeared on behalf of the

appellants in the Court of Appeal and in effect advanced the same arguments on behalf of those appellants. There, the Court of Appeal said whilst deterrence remains the predominant factor in sentencing for this type of offending, it does not preclude consideration of personal factors. An affidavit from Mr Brooking, similar to that presented to the District Court in this case, had been presented to the Court.

[13] In the present case, Mr Brooking said that in his opinion the appellant was a low risk prisoner with a 24 per cent chance of re-offending based on statistical Roc*Rol assessment (although I would have thought that given his absence of previous drug offences, he would have no Roc*Rol score). Mr Brooking expressed the opinion that the appellant would be unsuccessful in a parole application through not being able to attend a rehabilitative programme in prison. I doubt whether that opinion is based upon any authoritative evidence. Mr Brooking says most prisoners do not begin a rehabilitation programme until they have completed at least one third of their sentence, which would not arise for the appellant until after nine months, with a programme taking six to 12 months. He could not be eligible for parole until

_{he had completed this programme. So, the argument proceeds, he would be in prison}

for a minimum of one year and three months and have to face another three months of delay before a hearing could be held by the Parole Board.

[14] It has been a long-standing principle that in fixing the length of a nominal sentence, the Court should determine what sentence is appropriate for the offence and the offender, without taking into account the statutory regime for parole or other earlier release.[4]

[15] In R v Mwai, Hardie Boys J said that in general it is not appropriate for a Court to have regard to parole eligibility in determining a proper sentence. He went on to say that there is no inflexible rule and in an appropriate case it is permissible to have regard to the realities of the case in order to ensure a just sentence, and referred to R v Hape.[5]

[16] The Court of Appeal in R v Maulolo sent a message to the Department of

Corrections when it said:[6]

We record our view that in the interests of the community as well as this appellant, it is essential that comprehensive and effective psychological therapy be made available to this appellant during his period in custody, and that this should commence sooner rather than later.

[17] The main thrust of Mr Bott’s argument was that the Judge did not take into account the inability of the appellant to have access to rehabilitation or reintegration programmes whilst in prison. That is, those inmates who are assessed at a low risk of offending and cannot engage in rehabilitative programmes have a dismal prospect of release at their parole eligibility date. Therefore, he submitted, a prison sentence was incompatible with the rehabilitative purposes of sentencing.

[18] Mr Bott and others have presented that argument to this Court and the Court of Appeal on other occasions, supported by the opinion evidence of Mr Brooking. They challenge the practice of the Department of Corrections to postpone drug and

_{alcohol rehabilitation courses until long-term prisoners were eligible for parole, to}

the non-availability of programmes for low risk offenders, was incompatible with the requirements of the Sentencing Act. In Fleming v R[7] the Court of Appeal expressed its concern that were this to be correct, it would have the effect of delaying that appellant’s treatment in that case by four years, by which time his ability to rehabilitate was likely to be reduced. The Court of Appeal concluded by stating that the wider issue of the availability of prison rehabilitation programmes for drug

offenders and the timing of such programmes was a matter of importance and some public controversy. The Court expressed no view on the issue but invited the Department of Corrections to consider it.

[19] In Fleming, the appellant had been sentenced to eight years’ imprisonment with a minimum non-parole period of four years’ imprisonment. It fell into the category of very serious offending (the starting point had been taken at 12 years’ imprisonment). The Court of Appeal’s remarks were made when it was considering the issue of whether there should be a minimum term of imprisonment. The Court was required to consider for Mr Fleming whether his ability to rehabilitate was likely to be reduced if he was required to wait four years before engaging in drug and

alcohol rehabilitation courses. The Court’s conclusions were that:[8]

It is not necessary for us to determine the issue, giving a decision that a minimum term is not appropriate. It is sufficient to observe that, in our view, an important consideration for Mr Fleming is that any rehabilitative programme should be undertaken sooner rather than later. The wider issue of the availability of rehabilitation programmes in prison for drug offenders and the timing of such programmes is a matter of importance and some public controversy, ... We express no view on this issue, but we invite the Department of Corrections to consider it. It is important that the Department’s policies on this issue be known to sentencing Judges so that they may be taken into account as appropriate in the sentencing decisions.

[20] In the present case, the sentence, whilst not a statutory “short-term” sentence, cannot be regarded as lengthy. It does not fall into the category of postponing the availability of rehabilitation programmes for a lengthy period. It is axiomatic that home detention is not available unless the otherwise nominal sentence would be a short-term sentence of imprisonment. Sentencing judges are warned against

_{artificially manipulating a sentencing process in order to bring a nominal sentence to}

two years or under, simply so as to provide the jurisdiction to impose home detention.

[21] There is a suggestion in the opinion evidence provided on behalf of the appellant, that he might be jeopardised in obtaining release on parole, when his parole eligibility date arises. That is because, it is said, a panel of the Parole Board that deals with his application might, or would postpone or, refuse the grant of parole on the basis that the appellant had not shown a commitment to address his offending and to rehabilitate because he had not taken part in any programmes whilst in prison. However, I do not accept that that submission has merit. Naturally, panels of the Parole Board must consider a wide variety of circumstances when determining whether to release an inmate on parole, but if the inmate has displayed a genuine desire to rehabilitate and is motivated to undertake necessary steps to address offending and reintegrate into the community, then it would be wrong for the panel to refuse parole solely on the basis that there had been no participation by low risk offenders in programmes which, because of Department of Corrections policy, to which they could not have had access anyway.

[22] In the end, the issue for the panel of the Parole Board is whether an applicant for parole is likely to pose an undue risk to the safety of the community. Parole conditions can, in any event, provide requirements such as undertaking rehabilitation programmes (s 15 Parole Act 2002). Of course the safety of the community is only enhanced if the inmate, when released on parole, is rehabilitated. But the release, I would have thought, was not dependent in a case such as this appellant’s, upon him having undertaken programmes in prison.

[23] The sentencing process involves rather more than simply (in terms of s 7(1)(h)) looking at what best would assist in the offender’s rehabilitation and reintegration, because there are multiple other sentencing purposes provided in s 7. They are well-known. So, too, the principles of sentencing in s 8 are well known. The Court must endeavour to balance the gravity of the offending, the culpability of the offender, the type of offence (in this case it involved supply of class A drugs) and a raft of other matters contained in ss 7 and 8 of the Sentencing Act.

[24] Judge Thomas undertook a careful sentencing exercise, taking into account the submissions made by Mr Bott and evidence submitted to her, which have been repeated in this Court. Once the Judge adopted a starting point of three and a half years’ imprisonment based upon the appellant’s overall culpability arising out of multiple offending, and that it was within the permissible range, it is impossible to conclude that the final effective sentence reached of two years and three months’ imprisonment was manifestly excessive. The total discount given by Judge Thomas was over 35 per cent (representing six months for good character, which must incorporate low risk and rehabilitation prospects) and a further 25 per cent for the

guilty pleas. In terms of Hessell v R,[9] that was a generous allowance.

[25] The appellant first appeared on 13 July 2011 but guilty pleas were not entered until 2 November 2011, namely about four months later. I would not have regarded that as being at the earliest opportunity and the appellant could perhaps count himself fortunate at having received the full 25 per cent discount, in addition to the six month discount for prior good character, when something less might have been warranted.

[26] If the Judge was to fix a nominal sentence which would have given her the ability to consider a sentence of home detention, a “guilty plea” discount of

33 per cent would have been necessary. When viewed in that light, it is clear that Her Honour would have improperly manipulated the sentencing process, which started at a significant starting point by the very reason of the multiple offending and overall culpability of the appellant in his drug dealing offences. The Judge did nevertheless turn her mind to the question of home detention, but observed that have been inappropriate in any event.

[27] I am told the appellant’s parole eligibility date is in about three months time, namely at the end of October. As I understand the position, he is, in any event, undertaking some limited alcohol counselling whilst in prison to endeavour to deal

_{with his alcohol addiction.}

[28] The argument advanced by Mr Bott, if valid, would mean that low risk offenders are less likely to be granted parole at their parole eligibility date, but that is an overly sophisticated argument. It cannot be the case that if an offender has a high risk of re-offending but has undertaken programmes, he/she is more likely to be favourably treated on a parole application than if an offender is at low risk.

[29] I agree with the view expressed by the Court of Appeal that the Department of Corrections should make available to all offenders who require treatment and rehabilitation the ability or opportunity to participate in such programmes that may be provided by the Department. But it is a matter of policy for the Department of Corrections. Courts cannot unusually manipulate the sentencing process so that, where imprisonment is necessary, it is somehow avoided because of non-availability of rehabilitative programmes within prison. It may be that there are too many inmates, and insufficient available programmes, to enable all who might wish to take advantage of them to participate. That is a matter of policy for the Department, but I commend to it some careful consideration of the policy, within the fiscal and practical restraints which obviously must apply.

[30] The sentence of two years three months’ imprisonment was neither

inappropriate nor manifestly excessive, and the appeal is dismissed.

J W Gendall J

Solicitors:

Crown Solicitor, Wellington

---

[1] R v Fatu [2006] 2 NZLR 72 (CA).

[2] R v Wallace [1999] 3 NZLR 159 (CA); R v Terewi [1999] 3 NZLR 62 (CA); and R v Andrews

[2000] 2 NZLR 205 (CA).

[3] McMillan v R [2011] NZCA 442.

[4] R v Stockdale [1981] 2 NZLR 189 (CA); R v Mwai [1995] 3 NZLR 149 (CA), R v Smith

_{CA310/94, 19 December 1994.}
[5] _{R v Hape [1994] 1 NZLR 167 (CA).}
[6] R v Maulolo CA129/96, 15 August 1996.

[7] _{Fleming v R [2011] NZCA 646.}

[8] At [24].

[9] Hessell v R [2011] 1 NZLR 607 (SC).