BROWN v NEW ZEALAND POLICE [2019] NZHC 3365

BROWN v NEW ZEALAND POLICE [2019] NZHC 3365 [17 December 2019]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2019-412-000030[2019] NZHC 3365BETWEEN HARLEY JAMES BROWNAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2019Appearances: M J Taylor-Cyphers for AppellantR D Smith for RespondentJudgment: 17 December 2019JUDGMENT OF DUNNINGHAM JIntroduction[1] On 3 July 2019, Judge Phillips sentenced Harley Brown to two years andthree months' imprisonment on charges of cultivation of cannabis, possession ofequipment and material for the cultivation of cannabis, and possession of cannabis forsupply. He now appeals that sentence on the grounds that the starting point was toohigh, the sentence of imprisonment fails to take proper account of his rehabilitativeneeds for his addiction and mental health, and the sentence is not the least restrictiveoutcome that is appropriate in the circumstances.Facts[2] Mr Brown is 24 years old and lived in a three bedroom flat in Dunedin. Hehad specifically rented this flat to convert the two spare rooms into cannabis growingrooms. Mr Brown had constructed three indoor growing tents between the two sparerooms and had pulled the curtains to control the lighting.[3] Mr Brown had taken cuttings (clones) for propagation off two cannabis plantsreferred to as a "mother plant" to ensure its type and quality is replicated. He thenplaced each clone into a growing medium and then into a plastic cup of soil. In totalthere were 132 seedling clones in one of the growing tents. One of the other tents wasset up with 12 mature cannabis plants, approximately one metre in height. They hadbeen well cared for and were ready for harvest. Mr Brown connected an air ventilationducting system, venting into the ceiling from the growing chambers.[4] Police executed a search warrant at Mr Brown's flat on 21 June 2018. A totalof 144 cannabis plants were seized, along with a quantity of dried cannabis headmaterials which had been packaged for sale. This was made up of 20 $50 bags, eachweighing two grams. There was a further 22 grams of dried cannabis which had notbeen packaged. Also located were 127 new plastic bags of the size used for packagingtwo gram amounts, together with digital scales.[5] The value of the 12 mature plants was assessed as being around $8,400. Whilethe summary of facts said the potential value of the 132 seedlings was $92,400, astatement from a police officer, Detective Neil Lowden, reassessed this to beconservatively worth $79,200. The value of the dried cannabis was $1,550.District Court decision[6] Judge Phillips began by referring to the guideline judgment of R v Terewi,saying "there cannot be any argument here that your offending falls within category 2", being a "small-scale cultivation of cannabis plants for a commercialpurpose", thus attracting a starting point which is generally between two andfour years' imprisonment.1 The Judge said the offending was not on the cusp ofcategory 2 and, taking into account all the charges, he adopted a starting point oftwo years and nine months' imprisonment. In doing so he also said it would not be1 R v Terewi [1999] 3 NZLR 62 (CA) at [4].right for him to set a starting point so he could ensure the end sentence could beconverted to home detention.[7] The Judge considered the cultural report which had been prepared under s 27Sentencing Act 2002, but did not consider there was any clear or logical connectionbetween the matters raised in the report and the offending. He did not consider it couldmitigate Mr Brown's culpability.[8] The Judge allowed a 10 per cent discount for Mr Brown's good character, hisbackground and, to a limited extent, his youth. Mr Brown entered guilty pleas late,11 months after charges were laid, so the Judge only allowed a credit of 10 per cent.The end sentence reached was two years and three months, which the Judge consideredreflected Mr Brown's criminality and culpability. The Judge imposed a concurrentfour month sentence for possession of equipment and a concurrent one year sentencefor possession for supply.Principles on appeal[9] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, "[an appellate] court 'will not intervene where the sentenceis within the range that can properly be justified by accepted sentencing principles'".3It is only appropriate for this Court to intervene and substitute its own views if thesentence being appealed is "manifestly excessive" and not justified by the relevantsentencing principles.4 The focus of an appellate court must "primarily be on theappropriateness of the end sentence, not the means by which that end sentence hasbeen reached".52 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Skipper v R [2011] NZCA 250 at [28].SubmissionsAppellant's submissions[10] Ms Taylor-Cyphers, for Mr Brown, submits that the end sentence wasmanifestly excessive because the starting point was too high and out of line withauthorities. She also submits that the sentence fails to address Mr Brown'srehabilitative and mental health needs, and a sentence of imprisonment is not the leastrestrictive appropriate in the circumstances. She seeks a sentence of home detention,taking into account the more than five months Mr Brown has spent in prison sincesentencing.[11] Ms Taylor-Cyphers accepts that Mr Brown's offending fall within category 2of Terewi. However, she submits that the starting point should be at the lower end ofthat scale, around two years' imprisonment. She refers to R v Lyall,6 R v Walters,7 R vLatham,8 R v Baird,9 as comparators, the first three of which had starting points oftwo years, and where in Baird, a more serious case, had a starting point of three years.[12] Counsel submits that Mr Brown was due credit for his lack of prior relevantconvictions, his age, his remorse, and his prospects of rehabilitation. She notesMr Brown was on bail for eleven months and did not breach once and this was a factorin the pre-sentence report recommending home detention.[13] Ms Taylor-Cyphers makes reference to the Court of Appeal's recent decisionof Zhang v R, noting the Court recognised the need for a rehabilitative response whereoffending was motivated by addiction.10 She submits that the significance of Zhangin Mr Brown's case is that it reinforces the Court's ability and willingness to considercommunity-based sentences in cases of drug supply.[14] Ms Taylor-Cyphers submits that the appropriate end sentence would be one ofhome detention. The proposed address is not the house where the offending occurred,6 R v Lyall [2012] NZHC 3245.7 R v Walters [2012] NZHC 1750.8 R v Latham [2007] NZCA 552.9 R v Baird HC Nelson CRI-2010-042-1994, 17 August 2010.10 Zhang v R [2019] NZCA 507.but rather an address with significant pro-social support from Mr Brown's mother andpartner.Respondent's submissions[15] Mr Smith submits that the sentence imposed by the Judge is within theavailable range and cannot be described as manifestly excessive having regard to thecircumstances of the offending, the limited relevance of Zhang to this offending, andthe delay in Mr Brown's guilty plea.[16] In response to the submission that the starting point was too high, Mr Smithhighlights the premeditation, sophistication and scale of the offending. In thecircumstances, Mr Smith submits that a starting point of two years and nine months,below the mid-point of category 2 of Terewi, was within the available range and theoffending could not be considered to fall at the bottom of category 2. He also rejectsMs Taylor-Cyphers' comparisons with other cases as misplaced saying those cited canbe distinguished on the basis of the scale or the purpose of the cultivation in thosecases. For comparison, Mr Smith refers to Wallace v R, which has similar facts to theinstant offending, including a similar value of cannabis, where Gendall J upheld astarting point of three years.11[17] In terms of the discount given for personal mitigating factors, Mr Smith issceptical of the claim that Mr Brown is addicted to cannabis. The only evidence tothat effect is the single comment Mr Brown made to the pre-sentence report writer.Mr Smith also submits that reliance on Zhang is misplaced, given it relates specificallyto methamphetamine offending and addiction. There is nothing in the judgment togive the impression that the Court intended it to apply to cannabis offending in theway counsel proposes.[18] Mr Smith submits that the Judge applied sentencing purposes and principlesproperly, and as such, in reaching an end sentence of two years and three months'imprisonment, there was no option to convert the sentence to home detention. He alsonotes that it is significant that Mr Brown chose to delay the entry of his guilty plea for11 Wallace v R [2014] NZHC 2329.11 months. Had he pleaded guilty at an early stage, it is clear the end sentence wouldhave fallen within a range where a combination of community-based sentences couldbe considered.[19] Mr Smith highlights that it would be improper to try to artificially tailor asentence so as to arrive at an end point of less than two years' imprisonment, wheresuch an end sentence is not justified by a principled sentencing approach.Leave to appeal[20] A preliminary matter, which was dealt with by an informal oral application,was that the appeal was filed approximately six weeks out of time. Ms Taylor-Cyphersexplained the difficulties in acting for a prisoner on legal aid and, in particular, inarranging for the appellant to sign documents in person.[21] Mr Smith took no issue with the delay and I am satisfied it was fairly explained.Leave to appeal out of time is granted.Analysis[22] In my view, there can be no criticism of the starting point. WhileMs Taylor-Cyphers referred to several cases where slightly lower starting points wereadopted, I consider those cases distinguishable.12 As the submissions for therespondent pointed out, there are also comparable cases where higher starting pointswere adopted and the Judge was correct to set the sentence by reference to theguideline decision in Terewi, to achieve consistency. This was a commercial operationwhere there was an intention to sell cannabis and it clearly fell within category 2 ofTerewi, warranting a starting point of two to four years. There was also the otherrelated offending which had to be taken into account too. The starting point oftwo years nine months was therefore well within range.[23] The Judge then allowed a 10 per cent discount for personal mitigating factors,including Mr Brown's good character, his difficult background and, to a limited extent,his youth. Although the Judge acknowledged the cultural report, he said it did not12 R v Lyall, above n 6; R v Walters, above n 7; and R v Latham, above n 8.really reveal any systemic deprivation which was causative of offending. I accept thatis correct. However, the report provides a more detailed insight into Mr Brown'sbackground and potential.[24] It is clear from the cultural report that Mr Brown has abilities. He finishedschool and completed NCEA Level 3. He has also attempted further study on multipleoccasions, including completing nearly a year of tertiary study towards an electricalengineering qualification. However, he appears to be aimless and has not been able tofind a sense of purpose or make good decisions. This is attributed, at least in part, toan unstable family life. His parents separated when he was young and while he sawhis father regularly, he was often drinking. His mother entered a new relationshipwhen he was approximately six years old. She was reluctant to enforce any boundarieswith her son.[25] By the time Mr Brown left school he was a frequent user of marijuana and thensynthetic cannabis. He had brief stints of fulltime employment, including at thefreezing works and at Subway, but he has struggled to find any purpose in his work.The report says that Mr Brown has a lot of potential but needs guidance and supportin place to achieve that. It notes that he more recently had developed a new group offriends and a new girlfriend, and they have been a more positive influence on him.[26] Although Mr Brown described having an addiction to synthetic cannabisbefore it was outlawed, the only evidence of an addiction to ordinary cannabis is astatement in the pre-sentence report where he described cannabis as an addictionwhich he used to help manage anxiety.[27] That said, the pre-sentence report noted that Mr Brown had not used cannabissince he was charged and described him as a low risk offender who had "a good abilityto comply and good prognosis in regard to further offending". It recommended homedetention.[28] The issue is whether, looked at in totality, this information warranted a moresubstantial discount than the 10 per cent discount given by Judge Phillips.[29] Ms Taylor-Cyphers suggested that the Court of Appeal's decision in Zhang, therecent guideline judgment for sentencing in methamphetamine offending, can beapplied by analogy to this case. That case recognised that addiction which is causativeof offending is a mitigating consideration which may justify a sentence discount of upto 30 per cent.13[30] However, I do not see Zhang as intended to be directly applicable to cannabisdealing offences in the way proposed by Ms Taylor-Cyphers. The revised sentencingbands, and the comments on their application, are intended to recognise the significantsocial harm caused by those who commercially deal in methamphetamine while alsoacknowledging that some offenders are really only dealing in methamphetamine tosupport their own addiction. The judgment specifically notes that methamphetamineaddiction can cause "the prioritisation of the narcotic over needs such as food, shelterand personal relationships" and this can have a bearing on a defendant's culpability.14The Court of Appeal recognised, therefore, that it may be proper in some cases toreflect this as a mitigating circumstance when deciding on sentence.[31] However, in my view, the decision in Zhang is simply an application of generalsentencing principles to a specific type of offence. Rather than assuming thesentencing bands in Terewi should be modified by reference to Zhang, asMs Taylor-Cyphers urged, I consider that I must simply look at the evidence ofmitigating circumstances as it relates to this offender, and this offending, to seewhether the Judge erred in applying no more than a 10 per cent discount. That said, Imust also bear in mind the need for deterrence with commercial drug offending. Asthe Court of Appeal stated in Terewi:15[13] As with any drug offending for the purpose of profit making, thepersonal circumstances of the offender whose activities fall within Categories2 and 3 are usually not to be given much significance in the sentencingprocess. The fundamental requirement is that the sentence imposed should actas a deterrent to other persons minded to engage in similar activity.[32] In this case, I do not consider there is evidence before the Court of a debilitatingaddiction such that would justify a specific discount in the sentencing process. Indeed,13 Zhang v R, above n 10, at [149].14 R v Terewi, above n 1.15 At [145].the pre-sentence report reflects the fact that this was a sophisticated and well organisedoperation which was pursued by Mr Brown primarily because he "saw an opportunityto be more financially stable by selling a small amount and to save himself somemoney by growing his own".[33] However, the reports also paint a clear picture of a man with significantpotential to rehabilitate and rebuild a life without criminal drug offending, providedhe maintains the course he began on while he was on bail and engages with theassistance that is being made available to him.[34] While acknowledging that personal circumstances tend to be relegated inimportance to the need to deter those who are dealing in drugs, they also cannot beignored. In my view, the combination of Mr Brown's remorse, his previous lack ofoffending history, his potential for rehabilitation and his relative youth warranted acombined discount of 20 per cent for personal mitigating factors. That would take thestarting point of two years nine months to two years three months.[35] It is unclear why Mr Brown's guilty pleas were so late, particularly as thecultural report records that he says he gave a statement admitting his offending whenhe was arrested. Without any explanation for the 11-month delay, I cannot see anyissue with the Judge's 10 per cent discount.[36] Applying that discount to the revised sentence would take the end sentence to24 months. That falls, just, within the definition of a short-term sentence and as such,home detention is available.[37] I was advised that the address with his mother is still appropriate and available.Accordingly, I would convert the balance of Mr Brown's prison sentence to homedetention, to be served at the address which was assessed in the pre-sentence report.[38] Taking into account the five and a half months spent in custody, he should servea further six months and two weeks of home detention. The special conditionsrecommended in the pre-sentence report are to apply in addition to the standardconditions.Conclusion[39] The appeal is allowed. The sentence of two years and three months'imprisonment is quashed. Mr Brown is to serve a sentence of six months andtwo weeks' home detention, at the address identified in the pre-sentence report,commencing Wednesday 18 December 2019. The following special conditions are toapply:(a) To attend and complete an appropriate alcohol and drugcounselling/treatment programme to the satisfaction of a ProbationOfficer. The specific details of the appropriate programme shall bedetermined by a Probation Officer.(b) Undertake and complete appropriate assessment, treatment/counsellingas directed by and to the satisfaction of a Probation Officer.(c) Not to possess, consume or use any drugs not prescribed to you.Solicitors:RPB Law, DunedinM J Taylor-Cyphers, Barrister, Dunedin