Gillard v Police [2014] NZHC 3262 (16 December 2014)

Last Updated: 18 December 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-37 [2014] NZHC 3262

BETWEEN	BENJAMIN LUKE GILLARD Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014 via AVL
Appearances:	S Vidal for the Appellant S McKenzie for the Respondent
Judgment:	16 December 2014

_{ORAL JUDGMENT OF MALLON J}

Introduction

[1] Mr Gillard was convicted on one representative count of offering to supply a Class C drug (cannabis),¹ one representative count of possession of a Class C drug for supply (cannabis),² and one count of possession of a Class B drug for supply (cannabis resin).³ He was sentenced in the District Court at Queenstown to two years imprisonment.⁴ He appeals against his sentence on the ground that it is manifestly excessive. Leave is also sought to apply for home detention if a suitable

address can be secured.

The offending

[2] In February 2014 police executed a production order to obtain text messaging

data from Mr Gillard’s cellphone. The data obtained was for the period between 13

_{January 2014 and 27 February 2014 and showed Mr Gillard involved in the}

¹ _{Misuse of Drugs Act 1975, s 6(1)(e) and (2)(c) (maximum penalty of eight years imprisonment).}

² _{Section 6(1)(f) and 2(c) (maximum penalty of eight years imprisonment).}

³ _{Section 6(1)(f) and (2)(b) (maximum penalty of 14 years imprisonment).}

⁴ _{Police v Gillard DC Queenstown CRI-2014-059-251, 23 September 2014.}

GILLARD v NEW ZEALAND POLICE [2014] NZHC 3262 [16 December 2014]

distribution and procurement of cannabis plant and resin. He was in regular text message communication with another offender.⁵ Mr Gillard offered to supply him with at least 15 $50 bags of cannabis plant, at a value of $750. These facts gave rise to the representative charge of offering to supply cannabis plant.

[3] On 20 January 2014 Mr Gillard offered to supply a co-offender cannabis resin (hash) at $40 per gram. They made arrangements to meet. Mr Gillard later told him he had no hash left, but that he had a “bushie”, that is cannabis grown outdoors. These facts gave rise to the charge of possession of cannabis resin for the purpose of supply.

[4] Between 13 January 2014 and 18 February 2014 Mr Gillard was in regular text message contact with several associates who asked him for cannabis plant material. He bought three ounces of cannabis for just over $1,000 for the relevant period of time and he was later offered two ounces at $450 per ounce. He had also arranged for scales to weigh the cannabis into smaller saleable quantities. On 6

March 2014 police executed a search of Mr Gillard’s home and located 10 grams of dried cannabis plant material with a street value of approximately $100. These facts gave rise to the representative charge of possession of cannabis for the purpose of supply.

[5] When spoken to by police, Mr Gillard admitted that he purchased quantities of cannabis of up to an ounce at a time, and that he shared this with his friends. He initially entered not guilty pleas to the charges. During an adjournment on the first day of a defended hearing because of disclosure and other issues, Mr Gillard vacated his not guilty pleas and entered guilty pleas.

Personal circumstances

[6] Mr Gillard is 29 years of age and is from the United Kingdom. He is in New Zealand on a working visa. He initially worked but then lived off some money he received following the death of his father. At the time of sentencing his money had

_{run out. He told the pre-sentence report writer that he had used cannabis from a}

5. That person has since appeared before the Court and been sentenced in respect of drug offending activities.

young age. He said that he was selling cannabis to “enjoy life” rather than for the money. He did not regard cannabis offending as a big deal but did say he felt stupid for what he had done. He has no prior convictions in either the United Kingdom or New Zealand.

District Court sentencing

[7] In the District Court the Judge took the Class C offending as the lead offence. The police and counsel for Mr Gillard accepted that the offending fell within category 2 of R v Terewi.⁶ The Judge referred to the quantities involved and accepted Mr Gillard was a regular user of cannabis and that not all of what was bought would have been sold, but that there were regular offers to supply nonetheless. Additionally the Judge considered that Mr Gillard’s use of a code name in the text messages indicated an element of awareness that his activities were illegal, as well as an element of sophistication. The Judge adopted a starting point of

two years imprisonment for the Class C offending.

[8] The starting point was uplifted by 12 months for the charge of offering to supply a Class B drug. That led to a combined starting point of three years imprisonment. The Judge then made a totality assessment and reduced the final sentence by four months to 32 months imprisonment (two years and eight months). He gave Mr Gillard a 15 per cent credit for his lack of offending history, and acknowledged that prison would be a greater hardship on him due to his social isolation in NZ. He also allowed a 10 per cent credit for his guilty plea, entered as it was partway through the defended hearing. The final sentence was therefore two years imprisonment.

[9] The final sentence was apportioned as follows:

(a) On the Class C drug charges, Mr Gillard was sentenced to concurrent terms of two years imprisonment.

⁶ R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

(b) On the Class B charge, he was sentenced to a term of 12 months imprisonment concurrent with the other offending.

[10] At the time of sentencing no home detention address was available. The Judge said he was not granting leave to apply for a substituted sentence. He did not give reasons for that. The Judge noted that, upon release, Mr Gillard would be deported to the United Kingdom.

Analysis

The starting point

[11] Mr Gillard’s appeal is directed to the 12 month uplift, which on a totality basis became eight months, for the Class B offending. He does not take issue with the starting point of two years imprisonment in respect of the Class C offending. It is, however, important to consider whether the starting point was appropriate because it is the overall end sentence that matters.

[12] There is no dispute with the Judge’s finding that the offending falls into the

lower end of Category 2 of R v Terewi:⁷

Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between 2 and 4 years but where sales are infrequent and of very limited extent a lower starting point may be justified.

[13] The respondent contends that the Judge was lenient and that a starting point higher than two years would have been appropriate. The respondent refers to a number of cases to support the submission that the overall sentence was not excessive. I agree that the offending in this case was more serious than two of the cases the respondent refers to, namely R v Heremaia⁸ and R v Hauparoa,⁹ but it is

less serious than the offending in Tomars v R.¹⁰ In that case a three year starting

point was described by the Court of Appeal as being at or towards the top of the available range. The offending appears to be more similar to the offending in

⁷ _{R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA) at [4].}

⁸ _{R v Heremaia HC Whangarei CRI-2008-088-4116, 25 March 2009.}

⁹ _{R v Hauparoa HC New Plymouth CRI-2008-043-3111, 16 December 2008.}

¹⁰ Tomars v R [2013] NZCA 54.

Cormack v Police where a starting point of two years and six months was taken in the District Court.¹¹ However I do not place much weight on that authority because the issue on the appeal was not focussed on the starting point.

[14] I have considered a number of other cases where a starting point of two years and six months was adopted. Examples are R v Bowman,¹² R v Gray,¹³ and R v Bell.¹⁴ The offending in those cases is significantly more serious in terms of the quantities of cannabis material being dealt with and the prospective street value of it. The offending in those cases also appears to have been more systematic and

organised than in the present case. The small scale of offending in this case is more comparable to a number of cases where a starting point of two years imprisonment was adopted. Examples include R v Matthews,¹⁵ Police v Ratahi,¹⁶, and Watt v Police.¹⁷ In my view the starting point of two years imprisonment adopted by the Judge was therefore not overly lenient.

The uplift

[15] It is then necessary to consider whether the uplift for the Class B offending was too high. Following a totality calculation, the District Court applied an effective uplift of eight months imprisonment for that offending.

[16] On this issue counsel for Mr Gillard refers to R v Haine¹⁸ and R v Simon¹⁹ where uplifts of 12 months were applied for significantly more serious drug offending. I have also considered the uplifts in R v Day²⁰ and Arlidge v Police²¹ where lesser uplifts were imposed for more serious offending. I have also considered R v Bell where an uplift of six months was applied for manufacturing

_{cannabis oil.}²² _{Lastly I have considered McInnes v R where the Court of Appeal}

¹¹ _{Cormack v Police [2014] NZHC 2017.}

¹² _{R v Bowman HC Palmerston North CRI-2008-054-5896, 13 May 2009.}

¹³ _{R v Gray [2009] NZCA 31.}

¹⁴ _{R v Bell [2012] NZHC 1733.}

¹⁵ _{R v Matthews [2013] NZHC 119.}

¹⁶ _{Police v Ratahi [2013] NZHC 1657.}

¹⁷ _{Watt v Police [2014] NZHC 3055.}

¹⁸ _{R v Haine [2013] NZHC 66.}

¹⁹ _{R v Simon [2013] NZHC 3091.}

²⁰ _{R v Day HC Hamilton CRI-2010-019-10271, 23 June 2011.}

²¹ _{Arlidge v Police [2014] NZHC 2202.}

²² R v Bell, above n 14.

upheld a decision where no uplift was imposed at all for a single offer to supply a Class B drug.²³ Taken together, these cases show that the effective uplift of eight months for a single offer of a Class B drug was too great.

[17] Counsel for Mr Gillard submits that no uplift was necessary. In my view it was not wrong to uplift the sentence to reflect that the offer was in respect of a Class B drug. However the uplift needed to reflect the relatively minor nature of the offending. There was only one offer of a Class B drug and the transaction did not proceed. Mr Gillard had no prior history of Class B offending. In my view an uplift of two months would have been sufficient.

[18] Taking a combined starting point of two years and two months imprisonment, and applying the Judge’s discounts would lead to a final sentence of 20 months. Such a sentence allows a consideration of home detention. The Court did not grant leave to apply because at that time there was no prospect of a suitable address. The submissions for Mr Gillard indicate that his brother is willing to consider the cost of accommodation and support if such a sentence was to be imposed.

[19] There are many examples where home detention has been ordered in respect of cannabis offending of broadly similar seriousness.²⁴ But for information received today in the present case, as a relatively young man and a first offender who was accepted by the District Court Judge as being now remorseful, home detention was an available sentence if a suitable address had been available. Unfortunately information received today indicates that Mr Gillard is not well. He has had what appears to have been a psychotic episode. He is being assessed to determine whether he has an underlying mental illness. There is a family history of paranoid

schizophrenia. Mr Gillard has apparently been refusing treatment in relation to his condition in the prison.

[20] In these circumstances I am not in a position to consider home detention as an appropriate sentence for Mr Gillard. I am therefore not granting leave to apply

_{for that to be substituted.}

²³ _{McInnes v R [2012] NZCA 547.}

²⁴ R v Sauer [2012] NZHC 3262; R v Rhodes [2012] NZHC 3500; R v Mako [2013] NZHC 2314;

R v Kingi [2012] NZHC 3473; and Cole v R [2014] NZCA 238.

Result

[21] The appeal against sentence is allowed. The sentence imposed in the District Court is quashed. A sentence of one year and eight months imprisonment is substituted in its place. That sentence applies to the Class C charges (concurrent terms). A sentence of two months imprisonment (concurrent) is imposed on the Class B charge.

Mallon J