Horn v Police [2013] NZHC 2512 (25 September 2013)

Last Updated: 11 October 2013

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2013-425-000032 [2013] NZHC 2512

BETWEEN	LIONEL ROBERT WAYNE HORN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 September 2013
Appearances:	S N Claver for Appellant S N McKenzie for Respondent
Judgment:	25 September 2013

_{JUDGMENT OF D GENDALL J}

[1] On 27 August 2013 the appellant was sentenced in the District Court at Invercargill on charges of possession of cannabis for supply and possession of cannabis utensils. A sentence of 10 months imprisonment was imposed. Earlier, on

19 July 2013, the appellant had entered a plea of guilty to these charges.

Background facts

[2] On 1 May 2013 the appellant was at an address in Christchurch when police called on an unrelated matter. During the police attendance the provisions of the Search and Surveillance Act 2012 were invoked and the appellant and his bag were searched. Police discovered on the appellant 50.9 grams of cannabis, a set of scales and 50 small zip lock bags. He was also in possession of $849, $700 of which was in $20 notes. Also located in his bag was a small pipe, used to smoke cannabis.

[3] The appellant’s explanation to police at the time was that, although the cannabis pipe and money were his, he said he had borrowed the scales from a friend. The appellant stated also that the cannabis was for his personal use and the 50 zip

_{lock bags had been included when he purchased the cannabis.}

HORN v NEW ZEALAND POLICE [2013] NZHC 2512 [25 September 2013]

[4] With his plea of guilty on 19 July 2013 the appellant acknowledged that he had possession of the cannabis for the purposes of supply and he had possession of the cannabis utensils. He also did not seek to challenge the forfeiture of the $700 found on him.

[5] The appellant has 30 previous convictions, although none of these involved drugs. Since 1999 he had been before the Court on a regular basis with respect to driving offences, dishonesty and violence matters, including especially domestic violence matters. A breach of protection order conviction was also entered against him.

[6] The pre-sentence report before the Court notes that the appellant is 32 years of age, and he has a partner who lives in Christchurch. He has a significant drug issue, acknowledging the use of cannabis since he was 16 years of age.

[7] The pre-sentence report assessed the appellant’s risk of re-offending as moderate but only on the basis that he abstained from using cannabis or other illegal drugs. Given his history of violence, his risk of harming others was said to be medium to high.

District Court decision

[8] In the District Court His Honour Judge Turner made the following relevant findings in imposing the end sentence of 10 months imprisonment:

(a) The appellant had pleaded guilty to all charges against him.

(b) The maximum sentence for the possession of cannabis for supply charge was eight years.

(c) The summary of facts was not disputed.

(d) The appellant had no previous drug offending charges.

address this.

(f) Probation have assessed his risk of re-offending as moderate but they have recommended a sentence of supervision.

(g) Currently the accused has 174 hours of community work outstanding, and some $19,000 in fines outstanding with no attempt to make payments.

(h) The appellant’s offending was small scale dealing in cannabis for

commercial gain and fell within band 2 of R v Terewi.1

(i) Despite being nearly two times the presumptive level the “relatively small amount of cannabis” was relevant – however the substantial cash found on the appellant, the scales and ziplock bags displayed a level of active dealing.

(j) A starting point of 16 months imprisonment was adopted.

(k) Credit of two months was given for the steps the appellant has taken recently to address his drug addiction.

(l) A full 25% guilty plea discount was given.

(m) An end sentence of 10 months imprisonment was arrived at.

[9] The District Court Judge then addressed the issue of home detention which was refused essentially because:

(a) The home detention address was only technically suitable. In the

Judge’s opinion the address was compromised by its isolated location and the likelihood of the appellant’s partner visiting him. Due to

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

according to the Judge was “setting [the appellant] up to fail”.

(b) Drug dealing required serious consideration of the sentencing purpose of deterrence.

The appeal grounds

[10] In his present appeal the appellant raises the following grounds:

(a) Whether the sentencing here has miscarried due to the District Court Judge being mistaken as to the maximum penalty available. As the appellant had pleaded guilty to the charges against him and therefore was summarily convicted, the maximum sentence available in the District Court on the supply charge was 12 months and not eight years.

(b) Whether the sentence imposed was manifestly excessive.

(c) Whether imposing a condition relating to the appellant’s partner would have meant that a sentence of home detention should have been imposed here instead of one of imprisonment.

Counsel’s submissions and my decision

[11] Before me counsel for the respondent accepted that, as the appellant had been convicted summarily, the maximum sentence available in the District Court was

12 months imprisonment and not eight years.

[12] On this, counsel for the appellant submitted that as the District Court Judge had erred in proceeding on the incorrect assumption as to a maximum possible sentence and as such, the whole sentencing process here was so flawed that this must mean the end result necessarily needs reconsideration.

the focus on any appeal must be the end result.

[14] Further, the respondent argued that the reference to an eight year maximum in any event is not inappropriate here. On this, the respondent referred to the appeal decision in Riddell v Police2 where Keane J stated at [14]:

The maximum penalty for supply of cannabis, to which s 8(c) applies, however, is that able to be imposed indictably, eight years. Section 8(c) does not apply to the 12 month limit on sentence in the summary jurisdiction. Judges in the summary jurisdiction are free, indeed obliged, to set any sentence they impose against the tariff in R v Terewi, which contemplates a minimum sentence of two years, though lesser starting points where sales are infrequent or of very limited extent.

[15] Counsel for the respondent accordingly submitted that on the basis of these comments in Riddell v Police, the District Court Judge here did not err in referring to a maximum sentence of eight years imprisonment for the cannabis for supply charge. She contended the issue must be whether the end sentence is manifestly excessive. I agree.

[16] Turning now to the starting point selected by the District Court Judge, he found that the appellant’s offending fell within band 2 of R v Terewi being small scale dealing in cannabis for commercial gain, on which the Court of Appeal set a usual starting point of between two and four years imprisonment.

[17] I am satisfied that the starting point he then set of 16 months imprisonment was appropriate, and in line with other authorities.

[18] On this, in R v Heremaia3 where the offender had sold four tinnies on two separate occasions to an undercover police officer, Stevens J adopted a bare starting point of two years.

[19] A similar starting point of two years was adopted in R v Hauparoa4 on charges involving the sale of six tinnies over a month to undercover police. The

2 _{Riddell v Police [2012] NZHC 2826.}

3 R v Heremaia HC Whangarei 25 March 2009, CRI-2008-88-4116.

from an injury and as a result, this led to his low level drug dealing. As noted, the

Court there adopted a starting point of two years imprisonment.

[20] In light of these and the circumstances prevailing in this case, I am satisfied that the starting point adopted by the District Court Judge here of 16 months imprisonment was an appropriate one. From this, the District Court Judge gave the appellant a two months credit for the steps he has taken recently to deal with his own drug addiction, and then a full 25% reduction for his guilty plea. That reduced his sentence to one of 10 months imprisonment.

[21] The final end sentence imposed in R v Hauparoa noted above was 18 months imprisonment. Given this, and the District Court Judge’s concerns over the significant amount of money found in the present case, indicating active dealing in drugs on the part of the appellant, and the need for deterrence here as the Court of Appeal has signalled is to be a paramount consideration, I am satisfied that the sentence imposed in the District Court here was not manifestly excessive.

[22] Turning now to the issue of home detention, it is clear that the District Court Judge at paragraphs [12] and [13] of his sentencing notes did in fact consider home detention, but discarded it as an option. He did so it seems on two bases, first:

[12] ...Technically the address you have submitted to probation is available, but probation do not recommend a sentence of home detention because the address is somewhat isolated and secondly, although your partner lives in Christchurch, it seems she will visit you frequently, and there are suggestions she is a user of illicit substances, cannabis, BZP and legal substances such as alcohol. The information before me also reveals a history of domestic violence between you and your partner. Sentencing you to home detention in those circumstances is, in my view, setting you up to fail.

And, secondly, at paragraph [13]:

[13] In any event the Court of Appeal has made it clear that the paramount consideration when dealing with drug dealing is the need to deter you and others from behaving in this way. While I accept that home detention is not a soft option, I do not consider that the deterrent aspect in sentencing will be met by the imposition of a sentence of home detention.

4 R v Hauparoa HC New Plymouth 16 December 2008, CRI-2008-43-3111 (Ronald Young J).

[23] On these aspects, counsel for the appellant submitted that the concerns raised regarding the appellant’s partner could have been addressed by way of a condition that he not associate with her during a period of home detention and thereby home detention, it is said, would be a viable option.

[24] On these aspects, it is my view that the District Court Judge was entitled to find as he did that the appellant was likely to fail a sentence of home detention, given the matters I have noted above and the possibilities for breaching that sentence. The addition of a condition as suggested by counsel for the appellant would not have changed that assessment. The assessment in the pre-sentence report of re-offending by the appellant as moderate (only on the basis that he abstained from using cannabis or other illegal drugs) and his risk of harming others as medium to high, would also in my view support these conclusions reached by the District Court Judge.

[25] Finally, although it is not correct to say that a sentence of home detention lacks any deterrent aspect, as I see it the discussion by the District Court Judge of the deterrent aspect in sentencing of imprisonment was not especially significant here. It does not alter the outcome of this appeal.

Conclusion

[26] For all the reasons outlined above, I find that the lead sentence imposed by the District Court Judge of 10 months imprisonment on the possession for supply charge was not manifestly excessive and must stand. No argument was addressed to me with respect to the concurrent sentence of three months imprisonment in relation to the utensils charge. That sentence also remains.

[27] For all these reasons the appeal must be and is hereby dismissed.

.........................................................

D Gendall J

Solicitors:

S N Claver, Dunedin

M J Thomas. Invercargill