Williams v Police [2016] NZHC 3052 (14 December 2016)

Last Updated: 21 December 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000123 [2016] NZHC 3052

BETWEEN	NICHOLAS WILLIAMS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 December 2016
Appearances:	L L Heah for Appellant E J Henderson for Respondent
Judgment:	14 December 2016

_{JUDGMENT OF DUNNINGHAM J}

[1] Mr Nicholas Williams appeals his sentence of 21 months’ imprisonment on convictions for cultivation and possession for the purpose of supply of a Class C drug, namely, cannabis.¹ The sentence is appealed on two grounds:

(a) the sentence of 21 months’ imprisonment is manifestly excessive; and

(b) the Judge erred in refusing to impose home detention.

Background

[2] On 2 August 2016, the police were at the appellant’s residence on an unrelated matter and they noted a strong smell of cannabis. They invoked their statutory power to search for drugs under the Search and Surveillance Act 2012.

¹ _{New Zealand Police v Williams [2016] NZDC 21909.}

WILLIAMS v NEW ZEALAND POLICE [2016] NZHC 3052 [14 December 2016]

[3] The police located nine mature cannabis plants in a shed at the rear of the property and a further 12 mature cannabis plants were found in the roof space above the garage. Ducting and heat lamps were also positioned in the roof space and the police found fertiliser and other growing products.

[4] In addition, 512 grams of cannabis heads were located on a drying rack in the garage. A pot containing 217 grams of cannabis butter was located in the garage freezer and scales, two boxes of zip block bags, and a bag containing approximately

100 additional zip lock bags were also found on site. One zip lock bag contained a quantity of cannabis bud.

District Court decision

[5] In sentencing the appellant, Judge Saunders applied the tariff judgment of R v Terewi, where the Court of Appeal categorised the cultivation of cannabis into three bands.² Judge Saunders placed the appellant’s offending into Band 2, being cultivation of cannabis at a minor to moderate level of commerciality. He adopted a starting point of 24 months’ imprisonment and uplifted a further four months’ for the appellant’s previous drug related conviction. He then gave a 25 per cent discount for

the appellant’s early guilty plea, resulting in an end sentence of 21 months’

imprisonment.

[6] In considering whether home detention should be imposed instead of a short term of imprisonment, Judge Saunders was concerned about the fact that the cultivation of cannabis was carried out at the appellant’s residence and therefore a sentence of home detention may defeat the purpose of denunciation and deterrence.

The Judge cited the High Court’s decisions in R v Hill³ and R v Morunga,⁴ where the

Courts had held that in circumstances where the offending occurred in the offender’s

_{residence, the Court should be more reluctant to impose home detention.}

² _{R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).}

³ _{R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.}

⁴ R v Morunga [2013] NZHC 1935.

[7] While the Judge recognised the hardship placed on the appellant’s wife and child if the appellant was sent to jail, he held that the requirement of denunciation and deterrence outweighed the appellant’s personal circumstances. The Judge also took note of the fact that the appellant was previously sentenced to home detention for another drug related offence. This did not seem to deter him from further offending.

[8] In the end, the Judge refused to convert the sentence of imprisonment to one of home detention.

Jurisdiction on appeal

[9] Mr Williams appeals as of right.⁵ Pursuant to s 250 of the Criminal Procedure Act 2011, the appeal must only be allowed if the Court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed. If either elements are not satisfied, the appeal Court must dismiss the appeal.

[10] With regard to an appeal against the decision declining to grant home detention, there is the same requirement for an error in sentencing. As the Court of Appeal explained in Manikpersadh v R:⁶

...[The] proper approach of an appellate court in cases such as this is that the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion with appellate review focusing as in other sentencing appeals to this Court on the identification of error, if any, in the court below.

Analysis

Was the sentence of 21 months’ imprisonment manifestly excessive?

[11] The appellant was convicted under s 9 of the Misuse of Drugs Act 1975. That section merely defines the single offence of cultivation without differentiating between personal or commercial use. However, the tariff judgments in R v Dutch⁷

_{and R v Terewi}⁸ _{have provided guidance on different categories of offending for the}

⁵ _{Criminal Procedure Act 2011, s 244.}

⁶ _{Manikpersadh v R [2011] NZCA 452.}

⁷ _{R v Dutch [1981] NZCA 44; [1981] 1 NZLR 304 (CA).}

⁸ R v Terewi, above n 2.

cultivation of cannabis. In general, the three bands identified by the Court of Appeal are:⁹

(a) Band one offending which involves the growing of a small number of cannabis plants for personal use. A fine or other non-custodial sentence is usually appropriate;

(b) Band two offending which involves a small scale commercial cultivation of cannabis plants. The starting point for sentencing is generally between two and four years.

(c) Band three is the most serious class of offending. It involves large scale commercial growing. The starting point is generally at least four years.

[12] In this case the Judge categorised the appellant’s offending as falling within Band 2 and the appellant states he takes no issue with that. Nevertheless, the appeal turns on whether the Judge was correct to adopt a starting point of two years which is normally considered the minimum for Band 2 offending.

[13] The appellant points out that the Court may adopt a lower starting point if the circumstances of the case, and the culpability of the offending, justifies such an approach. In support of that submission the appellant refers to the comment in R v Edmonds, where the Court of Appeal held:¹⁰

But the categories are for guidance in assessing comparative culpability, they do not fix it. For offending falling within category two of the judgement in Terewi states that the range available to the sentencing judge is generally between two and four years before adjustment for special factors. But there is the additional direction that if the commercial element is small a lower starting point might be justified. The decision does not state that for all cannabis offending having a commercial element, however small, the sentence must be no less than imprisonment of two years.

[14] In this regard, the appellant submits that the summary of facts contains no reference to any sales of the cannabis nor does it identify the period during which the

⁹ _{R v Dutch, above n 7, at 307 and R v Terewi, above n 2, at [4].}

¹⁰ R v Edmonds CA23/02, 28 May 2002 at [9].

appellant had been offending, that is, cultivating cannabis. Furthermore, no evidence was brought by the prosecution as to the likely revenue or turnover which the appellant must have anticipated from his growing operation.

[15] However, in my view, the evidence before the Court did not point to this being such a modest commercial operation that a lesser sentence was justified. The scale of the cultivation included a total of 21 mature cannabis plants, with a further

512 grams of cannabis on the drying rack and 217 grams of cannabis butter. Furthermore, there was a weight scale and 100 additional zip block bags at the address. In light of that evidence, it is illogical to suggest that the offending did not involve a sufficient commercial element to place it in Band 2. As Judge Saunders noted, the presumption for the possession of cannabis for personal use is set at

28 grams and the quantity involved in this case was many times in excess of this. While there was no evidence of the commercial value of the cannabis found, there is no doubt that this was an operation of a commercial nature, and was of such a scale that it was properly placed in Band 2 of Terewi.

[16] Ms Heah also sought to suggest the sentence was out of line with sentences imposed on comparable Band 2 cases, listing 10 cases, without citations, that she said pointed to a starting point of 15 to 18 months’ imprisonment. It is, of course, unhelpful to be presented with a list of cases without citations, and without any summary of the facts in order to assess whether they are in fact comparable. Furthermore, the fact that, as Ms Heah submitted, they attracted end sentences of between 12 to 24 months’ imprisonment after guilty pleas, did not assist much with identifying what starting point was adopted.

[17] In any event, when it was possible to identify the case in question, it was clear that the case had distinguishing features. For example, in R v Virbickas, a much larger commercial operation was the subject of a Solicitor-General appeal because the Judge set a “manifestly inadequate” ceiling of two years’ imprisonment as a starting point when the case “clearly fell in the upper reaches of the second category of Dutch”.¹¹ In R v Merwood, the sentence of two years’ imprisonment for

_{a commercial growing operation was also accompanied by a forfeiture order in}

¹¹ R v Virbickas CA249/98, 15 October 1998.

relation to the family home.¹² The Court of Appeal did not disturb the Judge’s approach in that case of adjusting the starting point down by six months to take account of the penalty of forfeiting a principal asset such as a home. Similarly, in R v Dunsmuir, where an 18 month sentence was imposed on charges of cultivation of cannabis and possession of cannabis for supply, that case, too, involved an order for forfeiture to the Crown of the house property.¹³

[18] In summary, to the extent I could review the cases listed by Ms Heah, I found there were factual differences which supported there being either a lesser sentence of imprisonment than imposed on Mr Williams or a comparable prison sentence to Mr Williams for a more extensive commercial operation. I would add, though, that when counsel wish to rely on other cases to support a submission that a sentence is excessive, it is incumbent on them to identify the relevant factual circumstances in each case and set out the reasons why it is said to be comparable to the case being appealed. If extensive, this detail need not be incorporated in the body of the submissions, but simply appended to submissions in summary form so that it is there to refer to.

[19] In conclusion, I can find no error in the Judge’s decision to select the starting point of two years’ imprisonment based on the facts of the offending.

Did the Judge err in refusing to impose home detention?

[20] As the end sentence was one of two years’ imprisonment or less, the sentencing Judge was required to consider whether it was appropriate to commute that sentence to home detention. That requires an evaluative exercise taking into account the principles and purposes of the Sentencing Act 2002 set out in ss 7 and 8.

[21] In undertaking that exercise, the Court of Appeal has held:¹⁴

...[t]hat does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence recognising that

¹² _{R v Merwood CA27/94, 23 May 1995.}

¹³ _{R v Dunsmuir CA54/91, 27 July 1995.}

¹⁴ Fairbrother v R [2013] NZCA 340 at [30].

both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[22] In this case, the appellant submits that the Judge erred in refusing to commute the short term sentence of imprisonment into home detention. The appellant points out that the Judge relied on R v Hill and R v Morunga for the principle that where the offending occurred at the offender’s residence, the Court would be reluctant to

impose home detention.¹⁵

[23] Ms Heah sought to distinguish R v Morunga by the fact that the defendant in that case was convicted of dealing while serving a sentence of home detention, which was not the case here. However, that submission misses the point. The Court’s reluctance in sentencing residential drug dealers to home detention is the risk of continued offending during sentence, because the offence itself was committed in that environment. Furthermore, as the Court of Appeal said in R v Paki, it “could

tend to undermine the deterrent aspect of sentencing in such cases”.¹⁶

[24] The appellant also submits that the Court should only be reluctant to impose home detention if the offending was carried out “over a protracted period” as was the case in Paki. In this case, Ms Heah argued that there was no evidence to show how long the appellant had been cultivating cannabis, and nothing to contradict his claim that it was his first attempt. However, there is no requirement that the offending be over a protracted period before home detention is refused. That is just another factor to take into account.

[25] In this case, I consider the Judge carefully assessed all the factors weighing in favour of, and against, home detention. He took into account the appellant’s personal circumstances and balanced them against the need for deterrence, the fact the appellant had a previous drug dealing conviction (albeit several years ago) and the fact the appellant had already served a sentence of home detention but that had

_{not dissuaded him from further offending.}

¹⁵ _{R v Morunga, above n 4; R v Hill above n 3.}

¹⁶ R v Paki CA165/05, 5 September 2005.

[26] Having considered Judge Saunders’ decision in its entirety, I can see no error in his reasoning. All relevant factors were considered and the District Court was entitled to decline the sentence of home detention on the facts of this case.

[27] As neither ground of appeal is made out, the appeal is dismissed.

Solicitors:

L L Heah, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch