NEWTON v NEW ZEALAND POLICE [2019] NZHC 1245

NEWTON v NEW ZEALAND POLICE [2019] NZHC 1245 [4 June 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-24[2019] NZHC 1245BETWEEN CHAINEY BEAU NEWTONAppellantAND NEW ZEALAND POLICERespondentHearing: 29 May 2019Appearances: J Spelman for AppellantA R van Echten for RespondentJudgment: 4 June 2019JUDGMENT OF GRICE JIntroduction[1] Mr Newton appeals against a sentence of 16 months imprisonment togetherwith disqualification from driving for six months, post release conditions and $100reparation.[2] The sentence followed his pleas of guilty on nine chares. The lead charge andthe focus of the appeal was a representative charge of offering to sell cannabis.[3] The primary ground of appeal is that the sentence was manifestly excessivebecause the judge erred by adopting a starting point which was too high.[4] The issues on appeal are:(a) Did the judge err in adopting the guidelines set out in R v Terewi, as thiswas a guideline judgment for sentencing developed in a concerningcultivation of cannabis where this is a case of offering to sell cannabis?(b) Did the judge err in adopting band 2 of Terewi as being the context inwhich to consider the sentence?(c) Even if either of those were the case or otherwise was the final sentencewithin the available range?Background[5] Mr Newton pleaded guilty to nine charges on 19 February 2019. On 5 April2019 in the District Court. Mr Newton was sentenced as follows:(a) On one representative charge of offering to sell cannabis,1 the leadcharge, Mr Newton was 16 months' imprisonment and six months ofspecial release conditions which included that he is not to possess orconsume non-prescribed drugs or alcohol; he is to attend and completean appropriate alcohol and drug counselling programme; he is to resideat an address approved by his probation officer and is not allowed tomove without written approval; and he is to notify his probation officerbefore starting, terminating or varying any employment or voluntarywork;(b) On one charge of possession of methamphetamine,2 Mr Newton wassentenced concurrently to one-month imprisonment on the sameconditions and an order was made to destroy the drugs;(c) On one representative charge of breaching release conditions,3Mr Newton was sentenced concurrently to one-month imprisonment onthe same conditions;1 Misuse of Drugs Act 1975, 6(1)(e); maximum penalty of eight years' imprisonment.2 Sections 7(1)(a) and 7(2); maximum penalty of six months' imprisonment and $1,000 fine.3 Sentencing Act 2002, s 96(1); maximum penalty of one-year imprisonment and $2,000 fine.(d) On two representative charges of dishonest use of a document forpecuniary advantage,4 Mr Mr Newton was sentenced concurrently tothree months' imprisonment on the same conditions and sentenced topay $100 reparation by way of $10 instalments per week once he wasreleased;(e) On one charge of receiving,5 Mr Newton was sentenced concurrentlyto one-month imprisonment on the same conditions;(f) On one charge of breaching bail,6 Mr Newton was convicted anddischarged;(g) On one charge of dangerous driving,7 Mr Newton was sentencedconcurrently to one-month imprisonment on the same conditions anddisqualified from holding or obtaining a drivers licence for six monthsfrom 5 April 2019;(h) On one charge of failing to stop,8 Mr Newton was convicted anddischarged.[6] In summary, Mr Newton was sentenced to 16 months' imprisonment,disqualification from driving for six months starting on 5 April 2019, six months ofpost-release conditions, and $100 in reparation.[7] As I have said, Mr Newton appeals his sentence on the grounds it wasmanifestly excessive because the Judge erred by adopting a starting point that was toohigh due to inappropriate reliance on the tariff decision of R v Terewi.94 Crimes Act 1961, s 228(1)(b); maximum penalty of seven years' imprisonment.5 Sections 246 and 247; maximum penalty of three months' imprisonment.6 Bail Act 2000, s 38(a); maximum penalty of one-year imprisonment and $2,000 fine.7 Land Transport Act 1998, s 35(1)(b); maximum penalty of three months' imprisonment and $4,500fine.8 Sections 52A(10(a)(ii) and 53A(3); maximum penalty of $10,000 fine.9 R v Terewi [1999] 3 NZLR 62 (CA).Factual backgroundOffering to sell cannabis[8] Between 18 March 2018 and 23 April 2018 Mr Newton offered to sell cannabisto multiple parties on 27 different occasions. Each pound bag is worth $350, which isthe amount Mr Newton specified. He offered to sell a total of 15 ounce bags (worth$5,250), eight tinnies (worth $160) and 15 fifty bags (worth $750).[9] Examples of the texts sent by Mr Newton include "Uptoo wna by ounce 350[sic]" or "You wna buy fat fiddy bag a bud [sic]" or "Hey bro its chain I have gotskunk tins and fifty bags if you keen orknow anyone k sweet get a hold of me if youif you do [sic]".Possession of methamphetamine[10] On 7 December 2018 Mr Newton was a passenger in a car that was pulled overby the police. It was searched and two point bags of methamphetamine containing .2grams was discovered. Mr Newton said it was his and he planned to smoke it.Breaching release conditions[11] Upon his release from prison on 29 November 2017 Mr Newton was informedof his release conditions. One of those conditions was that he was to report to aprobation officer when directed. On 8 March 2018 Mr Newton signed a writteninstruction which stated he must report to Community Corrections every Thursdayuntil advised otherwise.[12] On 29 March, 5 April and 12 April 2018 Mr Newton failed without reasonableexcuse to report to his probation officer. He had been given warnings about non-compliance.Receiving[13] Mr Newton came into possession of a bank card belonging to the complainantafter their home had been burgled on 24 August 2018. He was reckless as to whetherit had been stolen as he didn't know the pin or persons name on the front of it.Dishonest use of a document for pecuniary advantage[14] On 24 August 2018 Mr Newton used the paywave function of the stolen cardat a Z service station while attempting to buy cigarettes worth $73.90. the cost ofreplacing the card was $10. Reparation of $100 was sought.Breaching bail[15] On 18 September 2018 Mr Newton breached his bail.Failing to stop[16] On the evening of 29 November 2018 Mr Newton was the driver of a car inPaeroa. A marked patrol car activated its lights and sirens behind the car to signal itto pull over. Instead of pulling over the car accelerated and drove evasively.Dangerous driving[17] Mr Newton, in the course of the above incident, drove up to a speed of 70kilometres per hour in a 50 kilometre per hour zone, making several turns. He drovethrough a stop sign, and then accelerated to 100 kilometres per hour while still in a 50kilometre zone. He lost control of the car while turning around a corner and slidsideways into a curb. He continued to drive for a short time before parking in aresidential address. He then ran away from the car, leaving the passengers in it.The sentencing[18] The Judge noted that when Mr Newton committed the crimes for which he wasbeing sentenced he was subject to release conditions. Having noted that, the Judgespecified offering to sell cannabis as the lead charge before her.[19] The Judge said she had read the pre-sentence report before her and thatMr Newton was said to be at a high risk of reoffending. She also noted he had shownno remorse and that he had a number of convictions for breaching various sentencesin the past. The recommendation in the report was a sentence of imprisonment.[20] The Judge also recognised that purposes of sentencing that she must followwere to denounce Mr Newton's offending; deter him and others from committing thesame offences and to protect the community from him. She also said that she mustconsider the general desirability of consistency with appropriate sentencing levels andthe information provided to the Court on the effect on the victim of the offending.[21] The Judge adopted R v Terewi as the guideline judgment for offering to supplycannabis.10[22] The Judge said it was acknowledged that in this offending involved a degreeof premeditation and commerciality. There was a degree of frequency in his offers tosell in the period of text messages.[23] With particular regard to the amounts involved and the frequency of the offers,the Judge was of the view a starting point of 18 months' imprisonment was appropriateon the lead charge, with an uplift of six months for the other offending. This broughtthe sentence to an overall starting point of 24 months' imprisonment.[24] The aggravating factors related to the offending were the fact Mr Newton wasstill subject to release conditions. An uplift of two months was applied for that factor.This left the total starting point at 26 months' imprisonment.[25] Mr Newton's guilty plea meant he was entited to a 25 per cent discount for hisguilty plea, which the Judge calculated as being worth an eight and a half monthsdiscount. This resulted in the sentence being reduced to 17 and a half months'imprisonment.[26] On a totality basis, the Judge lowered that sentence further to 16 months'imprisonment. She also imposed standard release conditions to apply for six monthsfollowing the sentence expiry. Mr Newton was disqualified from driving for sixmonths on the dangerous driving charge. He was also to pay $100 in reparation to thecomplainant. Mr Newton's sentences were concurrent.10 R v Terewi [1999] 3 NZLR 62 (CA).Standard of appeal[27] Mr Newton has brought his appeal under s 250 of the Criminal Procedure Act2011. An appeal against sentence is an appeal against a discretion, and therefore, mustonly be allowed if the Court is satisfied that there has been (for any reason) a) anintrinsic error in the sentence imposed and b) a different sentence should be imposed.11The focus is on the final sentence and whether that was in the available range, ratherthan the exact process by which it was reached.12 As articulated in R v Peters:13[13] As this Court has indicated on many occasions, the issue whether asentence is manifestly excessive or manifestly inadequate or inappropriatemust be examined in terms of the sentence actually passed rather than theprecise process by which it is reached. Thus, if a sentence might be the productof a starting point which is itself manifestly excessive but is in the resultameliorated by allowances made for mitigating factors so as ultimately to bebrought to a point of acceptability, this Court will be disinclined to intervenethrough concern over any particular component. This is very much such a casehere.AnalysisApplicability of Terewi[28] Ms Spelman, for Mr Newton, argues that R v Terewi should not be used as aguideline judgment in cases involving offering to sell cannabis as it is a case concernedwith the cultivation of cannabis. She argues that although the maximum penalties arethe same for the two offences, offering to sell cannabis is "logically" less serious thangrowing it.[29] Ms Spelman referred to the fact that R v Fatu, another tariff case, is presentlyunder review by the Supreme Court. She submitted that R v Fatu is amethamphetamine tariff case that applies to "offending involving supply, importationor manufacture of methamphetamine" but not supply.14 Although I note that Fatu doescater for supply as is noted in the heading cited, Ms Spelman's point was that one ofthe issues in the argument before the Supreme Court in support of the review of theprinciples in Fatu was that there had been an unprincipled extension of the sentencing11 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.12 Ripia v R [2011] NZCA 101 at [15].13 R v Peters CA12/03, 14 May 2003 at [13].14 R v Fatu [2006] 2 NZLR 72 at [3].principles to include supply simpliciter. The Crown submitted that the fact that theFatu principles were under review was no reason not to apply the Terewi principles inthis case.[30] Ms Spelman also points to R v Te Rure as authority for the fact that when acase involves conspiracy to manufacture, rather than manufacture itself, there is areduction in penalty.15 The point being that planning to do something illegal is lessserious than actually doing it.[31] The thrust of the argument to distinguish Terewi is that both cultivation andpossession for supply involve an offender actually growing the plant or having enoughof it to sell. In this case it was submitted, Mr Newton simply offered to sell the plantto others. He was not found with the cannabis that he had been trying to supply.[32] Ms Spelman submits this case is essentially a "conspiracy" case dressed up assupply. Mr Newton is not, however, charged with conspiracy. He is charged withoffering to sell cannabis. The offences are not the same.[33] However, the thrust of Ms Spelman's submissions were that case involvedunsophisticated attempts to sell cannabis. This was evident she said from the textmessages. Mr Newton did not actually possess any cannabis and therefore there wasno clear culpability accessible as to the quantity he had available to sell. She said hewas not selling for profit but rather to feed his own methamphetamine habit.[34] Ms Spelman does acknowledge that in R v Keefe the Court of Appeal foundthat R v Terewi was applicable in cases of possession of cannabis for supply:16[11] Though Terewi involved cannabis cultivation rather thanpossession for supply, there are analogues in terms of sentencing incircumstances such as this. No basis has been made out for this Court tointervene and amend the sentence.15 R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [25]–[27].16 R v Keefe CA275/02, 28 November 2002 at [11].[35] I also note that R v Terewi has been applied in numerous High Court decisionsinvolving offering to sell cannabis.17[36] In my view Terewi was a case which could appropriately applied by thesentencing Judge in the circumstances. No error was made.[37] I dismiss this ground of appeal.Appropriate category in Terewi[38] In R v Terewi the Court of Appeal set out categories of offending for cultivatingcannabis as follows:18Category 1: consists of the growing of a small number ofcannabis plants for personal use only by the offender without anysale to another party occurring or being intended. Offending inthis category is almost invariably dealt with by a fine or othernon-custodial sentence. Where there have been supplies to otherson a non-commercial basis the monetary penalty will be greaterand in more serious cases or for persistent offending a term ofperiodic detention or even a short prison term may be meritedCategory 2: encompasses small-scale cultivation of cannabisplants for a commercial purpose, ie with the object of derivingprofit. The starting point for sentencing is generally between twoand four years but where sales are infrequent and of very limitedextent a lower starting point may be justified.Category 3 is the most serious class of offending. It involveslarge scale commercial growing, usually with a considerabledegree of sophistication and organisation. The starting point willgenerally be 4 years or more.[39] In 2010, the High Court in R v Merton remarked that the bands in Terewi were"a little outmoded now and the categories that the Court of Appeal describe to limitthe bands here are not necessarily to be followed slavishly as if they were acts ofParliament".1917 R v Henry [2012] NZHC 3264; Fearnley v R [2106] NZHC 2395; R v Christison [2012] NZHC2067.18 R v Terewi, above n 7, at [4]19 R v Merton HC Auckland CRI-2009-044-2520, 7 May 2010 at [13].[40] In 2017, the Court of Appeal in R v Smyth accepted that Terewi may requirereconsideration, noting:20[17] Mr McKenzie for Mr Smyth submits that the leadingtariff decision of this Court for cultivation of cannabis, R vTerewi, is no longer good law and should be revisited in light ofchanging social attitudes towards cannabis cultivation andconsumption. We accept that Terewi, which was decided in 1999,may require reconsideration given changing social attitudes andthe subsequent passage of the Sentencing Act 2002. However,this is not an appropriate case in which to embark onreconsideration of that tariff decision because we did not havethe benefit of detailed submissions and fully developedargument. It is also not necessary to determine whether Terewiremains good law for the purposes of disposing of this appeal.[41] However, the case remains good law. No new tariff case has been issued albeitthe application of the principles in Terewi should be tempered by the above comments.[42] The sentencing Judge determined that Mr Newton's offending fell within bandtwo of Terewi due to the amounts and frequency of offerings indicated in the textmessages. Ms Spelman submits that band 2 was inappropriate and a starting point of10 months' imprisonment should have been taken. She states the present facts are lessserious than the following:(a) R v Edmonds:21 starting point of 24 months' imprisonment forpossessing 65 cannabis plants, eight mother plants and 42 seedlings inplanting bags indoors under controlled lighting.(b) Mowberry v R:22 18 months' imprisonment starting point for possessionof 57 cannabis plants, electronic times, dehumidifier and heat pumps.(c) Needham v Police:23 a six month starting point was upheld on appealfor possession of 10 plants, 236 grams of dried cannabis, four maturedrying plants, 631 grams of frozen cannabis stalks, and 47 grams ofcannabis discovered in his car.20 R v Smyth [2017] NZCA 530 at [17] (citations omitted).21 R v Edmonds CA23/02, 28 May 2002.22 Mowberry v R [2012] NZHC 969.23 Needham v Police [2013] NZHC 688.(d) R v Rauhihi:24 15 month starting point adopted for possession of 72cannabis plants and 326 grams of cannabis.(e) R v Devereux:25 15 months imprisonment starting point adopted for sixplants under lights, three trays of seeds and other equipment. MrDevereux also admitted to seedling. 1 to 10 $50 bags to supplement hisincome a week.[43] Ms Spelman says that all these decisions are more serious than this case andso indicate a 10 month starting point.[44] Ms van Echten pointed to R v Andrews which notes that there is no "twilightarea". Offending involving commerciality must be regarded as being in category 2 ofTerewi.26 I note that the Judge did land on the very low starting point end of the bandto recognise the minor nature of the offending. Nevertheless, reasonable amounts ofcannabis and value were apparently being dealt. Nothing is before the Court thatsuggests the starting point taken was inappropriate in this case.[45] In addition, considering the number of offences involved in the sentencing, thesentence might be described as lenient even having had the benefit of Ms Spelman'scareful submissions about Mr Newton's real need for assistance with rehabilitation.She submitted he had not had that assistance to date and would not have in prison.[46] I also note the Judge could have imposed a higher uplift considering thenumerous offences for which Mr Newton was sentenced and the fact this offendingoccurred while Mr Newton was subject to release conditions.Conclusion[47] The appeal is dismissed._________________Grice J24 R v Rauhihi HC Palmerston Norther CRI-2008-031-1438, 1 May 2009.25 Devereux v Police [2017] NZHC 167.26 R v Andrews [2000] 2 NZLR 509 at [9].Solicitors:Crown Law Office, Wellington