Heenan v Police [2013] NZHC 2186 (27 August 2013)

Last Updated: 4 September 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-231 [2013] NZHC 2186

BETWEEN	MALCOLM HEENAN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	26 August 2013
Counsel:	JE Boyack and JR Calder-Watson for Appellant E Rutherford for Respondent
Judgment:	27 August 2013

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 27 August 2013 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: JE Boyack (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

HEENAN v POLICE [2013] NZHC 2186 [27 August 2013]

Introduction

[1] The appellant appeals his sentence of nine months’ imprisonment imposed on him in the District Court at Auckland on 2 August 2013 by Judge R Collins. The charge was possession of cannabis for the purpose of supply.

[2] The gravamen of the appellant’s case is that nine months’ imprisonment in the circumstances is manifestly excessive. In the appellant’s submission, the end sentence should have been no more than five months’ imprisonment.

[3] An appeal against sentence proceeds as a rehearing. That does not mean that I re-sentence the appellant. It does mean that I have to reach my own view as to whether the sentence handed down by the District Court Judge was within the range available to him. For this case, it is only if I conclude that the sentence imposed was clearly excessive that I will be justified in intervening.

[4] The pathway by which the District Court Judge reached his sentence can be useful for analysis, but it is the end result which must be assessed.

The District Court Judge’s decision

[5] A plea of guilty had been entered and the District Court Judge proceeded on the summary of facts. This set out at the beginning that during the execution of a search warrant, approximately 30 grams of cannabis plant material was located at an address in Glen Innes. The occupants of the address were charged subsequently with possession for supply of cannabis plant. This was irrelevant to the charge against the appellant.

[6] Six days later, however, the appellant was seen outside the same address approaching a number of vehicles parked nearby. The appellant offered to sell the occupants “tinnies” containing cannabis plant material for $20 each. He was found to have nine “tinnies” on him when he was apprehended. He admitted trying to sell the cannabis to make money.

[7] The Judge noted that the appellant was now 22 years of age.1 He had a relatively lengthy list of previous convictions. He had experienced a range of sentences, including community detention. The Judge said:2

... You have breached bail conditions on a number of occasions and you have failed to report on a number of occasions. The most recent, as far as I was concerned, was when I had prepared for your sentencing on 10 July and you did not appear and I issued a warrant for your arrest. You were arrested. Another Judge on 11 July re-admitted you to bail but you breached your bail conditions and were arrested and the next time you were remanded in custody to appear before me today for sentence.

[8] The District Court Judge then referred to R v Terewi.3 He decided that the appellant’s case fell within band 2, for which a sentence of imprisonment between two years and four years is generally appropriate. He took the lowest point in that band and set a starting point of two years’ imprisonment.

[9] The charge against the appellant was laid summarily. Therefore, the maximum penalty that the Judge could impose was 12 months’ imprisonment. Bearing in mind that he would otherwise adopt a starting point of two years, the Judge adjusted the starting point downwards to the maximum of one year. From that he deducted 25% to take account of the plea of guilty. That is how the nine months’ imprisonment figure was reached.

Discussion

[10] The first ground of appeal is that the Judge was wrong to set a starting point of one year imprisonment. One of Mr Boyack’s submissions is that the District Court Judge should not have set the starting point initially at two years because this is in excess of the maximum sentence permitted him in the summary jurisdiction. In counsel’s submission, the District Court Judge should have identified a starting point within the range applicable to the summary jurisdiction.

[11] I do not accept this submission. The normal R v Terewi principles apply. A District Court Judge is entitled to set a starting point above 12 months’ imprisonment

1 _{He was 21 years of age at the time of the offending.}

2 _{Police v Heenan DC Auckland CRI-2012-004-8332, 2 August 2013, at [4].}

3 R v Terewi [1999] 3 NZLR 62 (CA).

so long as the end sentence is below that. It is not necessary for the offending to be the most serious of its kind within the summary jurisdiction in order for a 12 months starting point to be justified.4

[12] The next submission on this point is that the District Court Judge erred in his finding that the case before him fell at the lowest end of band 2 of Terewi. Counsel refers to R v Barton5 and R v Walker.6 The former case is prayed in aid for its facts and the latter in support of a proposition that R v Terewi is not directly applicable, necessarily, to selling cannabis as opposed to cultivating it. However, in R v Gray,7 the Court of Appeal cited abundant authority affirming that Terewi applies to all cannabis offending,8 specifically stating that “no distinction should be made between selling and cultivating cannabis”.9

[13] There are many cases in this area. They establish that there is a range of sentences available, and everything depends upon the particular circumstances. For example, the Crown cited Barker v Police,10 which involved a person found in possession of six tinnies of cannabis for sale. Mr Barker had 20 previous convictions, although none were drug related. He had a record of repeatedly breaching bail and of escaping from custody. The sentencing Judge adopted a

starting point of 12 months’ imprisonment. On appeal, Miller J found that because of the commercial element, the offending fell within band 2 of Terewi, which normally has a minimum of two years’ imprisonment. In light of that, the 12 months starting point, while stern, was unremarkable.11 Miller J also said:12

Although one can easily identify more lenient end sentences in cases involving similar or larger quantities, they normally feature clear mitigating factors which were absent here.

4 See Tahiti v Police HC Auckland CRI-2010-404-330, 4 November 2010 at [18], Cameron v

Police HC Wellington AP17/03, 18 March 2003 at [5] and Lambess v Police HC Hamilton CRI-

_{2008-419-88, 26 November 2008.}

5 _{R v Barton [2000] 2 NZLR 459.}

6 _{R v Walker CA356/01, 25 July 2002.}

7 _{R v Gray [2008] NZCA 224.}

8 Ibid, at [7], citing R v Keefe CA275/02, 28 November 2002 at [11]; R v Leighs CA360/02,

_{15 September 2003 at [11]; and R v McLaine CA355/00, 30 November 2000 at [12].}

9 _{Ibid, at [12].}

10 _{Barker v Police HC Dunedin CRI-2010-412-11, 13 May 2010.}

11 _{Ibid, at [7].}

12 Ibid, at [7].

[14] With respect, I agree with this statement and adopt it for the purposes of this appeal.13

[15] I note that Mr Boyack distinguishes this case from Barker because the appellant there had served a 28 days sentence of imprisonment for breach of community work. Mr Heenan has never before been sentenced to imprisonment. But, again, that is one factor and its relevance has to be seen in the light of all the circumstances of the case.

[16] Another example is R v Pulham.14 In that case, the offender shared two tinnies with friends and sold three tinnies to a police officer. Miller J adopted a starting point of 12 months’ imprisonment.

[17] In R v Manaena,15 the offender sold only two tinnies for $40. Other cannabis plant material was found, but the quantity was unclear. MacKenzie J noted that this offending was out of character for the appellant, acknowledged her lack of previous convictions and also that she was in a particularly tough time in her life. He imposed a starting point of nine months’ imprisonment.

[18] Against this background, R v Barton can be considered on its facts. Mr Barton was convicted on one charge of possessing cannabis for supply after being found with 18 tinnies and $1,750 in cash. The Court found the case to fall between category 1 and category 2 of R v Terewi, although the Court of Appeal regarded the matter as falling at the lower end of category 2. Nevertheless, it considered that a starting point lower than two years was appropriate. The end sentence of nine months’ imprisonment was upheld. In addition to an early guilty plea, remorse was regarded as a mitigating factor. Mr Barton had a recent previous conviction for cultivating cannabis and had responded badly to the community based sentence imposed for that offence. The submission is that the District Court Judge

_{should not have dealt more harshly with the appellant than was Mr Barton because}

13. See also Riddell v Police [2012] NZHC 2826 at [18] (where Keane J said the fact that there are cases pointing one way or the other “simply illustrate[s] that the Judge’s 12 month starting point was open to him”). Mitigating factors might include limited involvement (R v Edwards HC Whangarei CRI-2008-088-4443, 25 September 2006), difficult family circumstances (R v Edwards) or positive employment prospects (R v Kamizona [2012] NZHC 2868).

14 _{R v Pulham HC Whangarei CRI-2006-029-168, 12 October 2006.}

15 R v Manaena HC Napier CRI-2004-020-1348, 30 July 2004.

the appellant has no previous drug convictions, was found with a smaller amount of cannabis and had only a small amount of cash on him.

[19] Ms Rutherford for the respondent submits that the focus in Barton was whether home detention should have been granted, not on the appropriate length of imprisonment. The conviction was entered after trial and the sentencing Judge had a complete background to the offending. There are obvious factual differences and the starting point adopted is unclear.

[20] Those examples of cases highlight the need not to take a formulaic approach to sentencing. The amount of cannabis traded might be determinative in one case, the strength of mitigating factors in another. In my view, the District Court Judge was clearly within an acceptable range when he set the starting point at the lowest end of band 2, Terewi. The appellant had been caught in the process of trying to sell cannabis car to car. It was appropriate for the Judge to reduce the starting point to

12 months’ imprisonment due to the information having been laid summarily. The point remaining is whether a discount should have been given for circumstances personal to the appellant. At the end of the analysis, I have to make a decision as to whether the sentence of nine months’ imprisonment was manifestly excessive or not.

[21] Mr Boyack submits that the District Court Judge wrongly took into account the 30 grams of cannabis found at the address in question during the search pursuant to the warrant. I do not accept that submission. Whereas the Judge started by saying that responsibility for the 30 grams of cannabis plant rested with the appellant, he

realised as the sentencing progressed that that was incorrect:16

Now, I may have been slightly in error before in saying that responsibility for the 30 grams of cannabis, that was found on the 17 April, rested with you but, in any event, the nine tinnies that you were found with on 23 April, the summary makes quite clear responsibility was with you. So, in any view of the matter, you still fall within band 2. I will take the lowest point I can in that band and will take the starting point of two years’ imprisonment.

[22] It was also suggested that the District Court Judge erred in his opening paragraph:17

16 _{Police v Heenan, above n 2, at [6].}

17 Ibid, at [1].

Mr Heenan, you are for sentence today on one charge of possession of Class C controlled drug cannabis plant for the purpose of sale to others. You could have been charged also with having sold it and with various charges of offering to sell cannabis plant but the police, very fairly and realistically and sensibly, amalgamated or put all those matters into one charge of possession of cannabis plant for sale.

[23] I do not accept the submission that this passage shows that the Judge mistakenly relied upon allegations that might have founded other charges. The tenor of his remarks makes this plain.

[24] The major submission is that the District Court Judge did not give an appropriate discount for the young age of the appellant.

[25] The appellant was 21 years old at the time of the offending. He had at that time 26 previous convictions, 13 of which were in the Youth Court. None of them involved drugs. The District Court Judge had, as I have indicated previously, examined the record of the appellant and noted the range of responses by the Courts to his offending.

[26] The Court of Appeal in Churchward v R18 found youth to be relevant during sentencing in the following ways:

(a) Age-related neurological differences between young people and adults, including that young people may be more vulnerable/susceptible to negative influences and pressure, and may be more impulsive than adults;

(b) The effect of imprisonment on young people – long sentences may be crushing;

(c) Young people have a greater capacity for rehabilitation, particularly as their character is not as well formed as that of adults.

[27] A youth discount in this case would not meet any of these objectives. Firstly, a person who is 21 is treated as an adult unless there is something particular to the

18 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].

offender. There is nothing here to suggest that the appellant is particularly juvenile in his thoughts or responses such that he should be treated as if he were younger. The sentence could not be considered crushingly long, and in light of the appellant’s previous criminal history his capacity for rehabilitation does not appear to be a factor which should be given prominence. Neither does that record point to the appellant being naive as to the consequences of further offending.

[28] In my view, the District Court Judge did not err in failing to give a discount for youth.

[29] Standing back, I have to look at whether the end sentence of nine months’ imprisonment was manifestly excessive in all of the circumstances. I cannot say, on the case law, that it was.19 While I accept that there is a range of sentences available in this area, I cannot say that this sentence was outside the appropriate range. There was nothing remarkable about the offending. It was low scale commercial offending involving cannabis. The appellant’s criminal record and the range of sentences to which he had been subject previously meant that personal factors could not operate to reduce the starting point. The full 25% discount was given, which was

appropriate and even generous given that the appellant had been caught almost in the act of selling cannabis and had admitted his guilt.

Decision

_{[30] The appeal is dismissed.}

_{Brewer J}

19 See cases cited at [13]-[17] above.