Leaupepe v Police [2016] NZHC 76 (4 February 2016)

Last Updated: 7 March 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-391 [2016] NZHC 76

BETWEEN	GEORGE EDWARD LEAUPEPE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 February 2016
Counsel:	JD Pennick for appellant GM Woods-Child for respondent
Judgment:	4 February 2016

_{JUDGMENT OF FAIRE J}

This judgment was delivered by me on 4 February 2016 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Meredith Connell, Auckland

_{To: JD Pennick, Auckland}

Leaupepe v New Zealand Police [2016] NZHC 76 [4 February 2016]

Contents

Introduction ............................................................................................................[1] Facts .......................................................................................................................[3] Personal circumstances ..............................................................................................

Prior Convictions [5]

Pre-Sentence Report [6] District Court Decision ..........................................................................................[7]

Submissions................................................................................................................

Appellant’s Submissions [9]

Respondent’s submissions [12] Appeal against sentence .......................................................................................[14] Fresh evidence presented on appeal .....................................................................[19]

Analysis ......................................................................................................................

Tariff Case [25] Relevant Cases [26] Setting a Starting Point [28] Adjusting the Starting Point [35]

Conclusion on appeal ...........................................................................................[40] Result....................................................................................................................[42]

Introduction

[1] On 2 December 2015, Mr George Leaupepe was convicted and sentenced by Judge Harvey in the Auckland District Court to 150 hours community work for cultivating cannabis contrary to s 9(1) of the Misuse of Drugs Act 1975.

[2] Mr Leaupepe appeals the sentence of 150 hours community work on the basis that it is manifestly excessive.

Facts

[3] At about 11.40pm on 4 November 2015 Police were at 420 Onehunga Mall, Onehunga on an unrelated matter. 420 Onehunga Mall is Mr Leaupepe’s home address.

[4] Police located five cannabis plants in a hydroponics growing setup in the corner of Mr Leaupepe’s bedroom. The hydroponics setup was contained within a tent and included a lightbulb, the cannabis plants, empty plant pots, two plastic fans, a plastic pressure sprayer, a container holding fertilisers and a stainless steel lampshade.

Personal circumstances

Prior Convictions

[5] Mr Leaupepe has no previous drug-related convictions. Since 2012

Mr Leaupepe has been convicted and sentenced for 11 different offences varying in nature.

Pre-Sentence Report

[6] No pre-sentence report was provided.

District Court Decision

[7] Judge Harvey’s decision reads as follows: ¹

Convicted and sentenced to 150 hours of community work. I am prepared to accept it was back category one Terewi and for own use but it is too much to expect somebody to impose a fine.

_{[8] No other reasoning was given.}

¹ Police v Leaupepe, DC Auckland CRI-2015-004-011392, 2 December 2015 at [1].

Submissions

Appellant’s Submissions

[9] Mr Pennick, counsel for the appellant, submits:

(a) that the sentence of 150 hours of community work is manifestly excessive; and

(b) that a fine is the only appropriate outcome for the following reasons:

(i) For cases that fall into Category One of Terewi, offending is “almost invariably dealt with by a fine or other non-custodial sentence”.²

(ii) The small number of plants was Mr Leaupepe’s first attempt at cultivation and was intended for personal use only (primarily for pain management for injuries resulting from his rugby career). This placed the offending at the lowest end of Category One.

(iii) Mr Leaupepe’s full-time work commitments means the imposition of a sentence of 150 hours community work would be especially difficult for him to bear.

[10] In submitting that a fine is the appropriate sentence for offending of this type, Mr Pennick refers to the comparable cases of Pattison v Police,³ Palmer v Police,⁴ and Parker v Police.⁵

[11] The appellant has also provided supporting material that had not been placed before the District Court. These relate specifically to mitigating factors and comprise

_of:

² _{R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62; (1999), at [4].}

³ _{Pattison v Police HC Whangarei AP32/01, 31 August 2001.}

⁴ _{Palmer v Police [2015] NZHC 257.}

⁵ Parker v Police HC Wellington CRI-2007-485-150 27 February 2008.

(a) A photo of the cannabis plants showing their small size;

(b) An email from Mr Leaupepe’s employer confirming his hours of work;

(c) A letter from Mr Leaupepe’s doctor, Dr Peter Coleman, listing a number of injuries Mr Leaupepe has suffered over the past two decades; and

(d) A character reference prepared by Mr Andrew Talaimanu, Mr Leaupepe’s rugby coach during his early rugby career in 1995-

1998. Mr Talaimanu sees the appellant’s recent decisions as out of character and most likely resulting from some hardships Mr Leaupepe has suffered over the past 18 months, but states Mr Leaupepe has expressed genuine and heartfelt remorse, and has a strong foundation to rebuild his life.

Respondent’s submissions

[12] The Crown submits that the Court may indeed take the view that the authorities referred to by the appellant such as Parker v Police provide support for an alternative way of dealing with the matter.

[13] However, the Crown recognises that new information as to mitigation has been raised on appeal. The Crown submits that it is a matter for the Court whether it considers there was in fact an error on Judge Harvey’s part that led to the imposition of community work (in the absence of information provided by the appellant as to the inappropriateness of that sentence in light of his personal circumstances) which would permit this Court to resentence the appellant.

Appeal against sentence

[14] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[15] In any other case, the Court must dismiss the appeal.⁶

[16] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.⁷ Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.⁸

[17] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:⁹

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[18] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the

_{process by which the sentence is reached.}¹⁰

⁶ _{Criminal Procedure Act 2011, s 250(3).}

⁷ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

⁸ _{At [33], [35].}

⁹ _{R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].}

¹⁰ Ripia v R [2011] NZCA 101 at [15].

Fresh evidence presented on appeal

[19] Before assessing whether the sentence imposed was excessive, I will deal briefly with the Crown’s submission that the sentence can only realistically be altered if this Court accepts the additional evidence provided as to mitigation. This evidence consists of a photo of the cannabis plants in question, a letter from Mr Leaupepe’s doctor outlining his injury history, an email from Mr Leaupepe’s employer outlining his hours of work, as well as the character reference by Mr Talaimanu.

[20] The appellant submits that the minor nature of the offending meant that “it did not seem at the time of sentence that it would be necessary to place any supporting material before the Judge in relation to the various mitigating factors.”¹¹

[21] When a party proposes to present additional evidence on appeal, the general rule is that they must show that the proposed evidence is fresh in the sense that it could not with reasonable diligence have been called in the first instance.¹² Though the majority of the new evidence provided to this Court could likely have been called in the first instance, the rule is not immutable. The overriding criterion is always what course will serve the interests of justice.¹³ In addition, to be capable of acceptance, the evidence must be admissible, credible and cogent.¹⁴

[22] The interests of justice in regard to the appellant’s situation, particularly considering the nature of his injuries, his hours of work, and the effect these would have on his ability to carry out community work, would indicate that the new evidence should be accepted as to ensure the appropriate sentence is imposed. I would, however, exclude the image of the cannabis plants. It is not particularly cogent, it adds little to the appellant’s case, and it does little in the way of serving the interests of justice since it has already been accepted that the offending was minor.

_{[23] There has been no objection as to the admissibility of the evidence provided.}

¹¹ _{Submissions for the appellant, at 17.}

¹² R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA) at [18]- [27], affirmed on appeal in Bain v R [2007] UKPC 33 (2007) 23 CRNZ 71 at [34]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [24]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

¹³ _{R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 at [22].}

¹⁴ At [23].

[24] Therefore, in response to the Crown’s submission, I accept the fresh evidence as to mitigation (excepting the image of the plants) I take it into account in considering Mr Leaupepe’s sentence.

Analysis

Tariff Case:

[25] Terewi is the tariff case for cannabis cultivation. The offending clearly falls into Terewi Category 1, which is:

... the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence.¹⁵

Relevant Cases

[26] The cases provided by the appellant appear to be the most relevant authorities discussing offending of a similar nature:

(a) Pattison v Police:¹⁶ The offender was initially sentenced to imprisonment due to the Judge drawing an inference of possession for supply in circumstances where this was not permissible. On a correct analysis, the charge laid covered no more than the cultivation of five cannabis plants on a particular date. The sentence of imprisonment was quashed and a fine of $250 was substituted.

(b) Palmer v Police:¹⁷ This case concerned an appeal against a sentence of 250 hours community work imposed in relation to the cultivation of two small cannabis plants. The offender was growing the cannabis for his own use and had numerous previous convictions for similar offending stretching back many years. The sentence of 250 hours

_{community work was quashed and substituted with 60 hours}

¹⁵ _{R v Terewi [1999] above n 2, at [4].}

¹⁶ _{Pattison v Police, above n 3.}

¹⁷ Palmer v Police, above n 4.

community work, which was considered the only suitable outcome as the offender had no means to pay a fine.

(c) Parker v Police:¹⁸ Ten mature cannabis plants grown to a height of

100 centimetres plus 15 cannabis seedlings had been growing under hydroponic lights. The operation was relatively sophisticated and ongoing, but this was considered to be consistent with the offender’s heavy daily use. Mr Parker successfully appealed a sentence of 150 hours of community work. The Judge held that a fine of $2,000 was sufficient in the circumstances, considering the community work would interfere with his employment obligations.

[27] Additionally, Sadd v Police (while decided prior to the Sentencing Act 2002) shows a preference for imposing a fine where another sentence would impact on the offender’s ability to work.¹⁹ In that case a sentence of six months’ periodic detention imposed for cultivating cannabis was substituted by a $2,000 fine where there was a real risk of the appellant losing his job as a postman if he could not work six days a week.

Setting a Starting Point

[28] As recognised by Judge Harvey, the small number of cannabis plants and the absence of any commerciality puts the offending at the lower end of Category 1. A fine or some other non-custodial sentence (including community work) are available as starting points.

[29] Section 9 of the Misuse of Drugs Act 1975 provides a maximum penalty of a seven year term of imprisonment. Prior to the enactment of the Criminal Procedure Act 2011, it also provided for a maximum $2,000 fine or two years imprisonment where any person is summarily convicted. This section was repealed in its entirety

_{by the Criminal Procedure Act 2011.}

¹⁸ _{Parker v Police, above n 5.}

¹⁹ Sadd v Police HC, Blenheim AP 7/98, 7 July 1998.

[30] Nevertheless, the court retains the power to impose a fine for offending under s 9 of the Misuse of Drugs Act 1975. This power is located in s 39 of the Sentencing Act 2002:

39 Power to impose fine instead of imprisonment, sentence of home detention, or community-based sentence

(1) If an enactment provides that a court may sentence an offender to imprisonment but does not prescribe a fine, the court may sentence the offender to pay a fine instead of sentencing the offender to imprisonment.

[31] Section 13 of the Sentencing Act 2002 is therefore relevant in that it contains the mandatory requirement that a fine be imposed where appropriate:

13 Sentence of fine

If a court is lawfully entitled under this or any other enactment to impose a fine in addition to, or instead of, any other sentence, the court must regard a fine as the appropriate sentence for the particular offence unless—

(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine; or

(b) the court is satisfied that the application of any of the principles in section 8 to the particular case make a fine inappropriate; or

(c) any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing any other sentence or requires the court to impose any other sentence; or

(d) the court is satisfied that a fine, on its own or in addition to a sentence of reparation, would otherwise be clearly inadequate in the circumstances.

(emphasis added)

[32] In relation to s 7 of the Sentencing Act, Purposes of Sentencing, denunciation and deterrence are particularly relevant for drug offending.²⁰ As stated in Parker v Police, deterrence of cultivation for supply purposes is an important consideration. A fine was still considered to be an adequate deterrent in that case, despite the number of plants found being much greater. As such, a fine is capable of achieving the necessary degree of deterrence and denunciation in this situation, where it has been

accepted that Mr Leaupepe was not cultivating the plants for supply but for his own

_{personal use.}

²⁰ Parker v Police, above n 5, at [13].

[33] In regard to s 8 of the Sentencing Act, Principles of Sentencing, the need for consistency with appropriate sentencing levels is relevant here. Although each case stands on its own facts, the cases provided by the appellant are helpful in that they show some uniformity to the approach to sentencing for relatively minor operations such as this. Where the offender is in paid employment and would be capable of paying a fine, a fine has been imposed. Palmer v Police was decided after the explicit provision for a fine in the Misuse of Drugs Act 1975 was repealed so it indicates a fine is still an appropriate sentence for minor offending such as

Mr Leaupepe’s.²¹

[34] There is no real reason to suggest a fine is not the most appropriate sentence. There is no limit on the court’s discretion as to the appropriate amount, but to remain consistent with existing precedent I would set the starting point of a fine of $2,000.

Adjusting the Starting Point

[35] As per Jarden v R,²² the offender’s personal circumstances may be relevant where they contributed in some way to the offending. Undoubtedly the grief of losing a younger brother and the stress resulting from Mr Leaupepe’s separation from his partner, combined with Mr Leaupepe’s ongoing difficulties from old injuries, had some bearing on his decision making in regards this offending.

[36] Further, Mr Leaupepe has expressed genuine remorse and this has been reiterated by his character referee.

[37] Despite the above, any reduction on the final sentence for personal factors must be modest. The increasing frequency of Mr Leaupepe’s offending, though unrelated to drugs, is of some concern. Further, the sophistication of the operation, which involved a range of hydroponic equipment, calls for a final sentence that reflects the planning and organisation that would have occurred. Anything other than a significant fine would not achieve the important goals of denunciation and

_deterrence.

²¹ _{Palmer v Police, above n 4, at [11].}

²² Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.

[38] Finally, Mr Leaupepe pleaded guilty at the earliest possible stage. Per Hessell v R, this needs to be weighed with the strength of the prosecution case – that is, that the hydroponic setup was found by police in Mr Leaupepe’s bedroom.²³ A reduction of 20 per cent would be sufficient to reflect Mr Leaupepe’s guilty plea.

[39] Taking the above matters into account, I consider an appropriate fine is

$1,550.

Conclusion on appeal

[40] Judge Harvey erred in imposing a substantial amount of community work where both the legislative scheme and relevant precedent mandate that a fine is the appropriate sentence in the circumstances. 150 hours of community work is manifestly excessive in this case.

[41] A different sentence should be imposed, namely a fine. Thus the appeal must be allowed in accordance with s 250(2) of the Criminal Procedure Act 2011.

Result

[42] I order:

(a) The appeal is allowed; and

(b) The sentence imposed in the District Court is quashed and is replaced by a fine of $1,550.

_{JA Faire J}

²³ Hessell v R [2010] NZSC 135.