ALLEN v POLICE [2016] NZHC 1934

ALLEN v POLICE [2016] NZHC 1934 [18 August 2016]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYCRI-2016-442-11[2016] NZHC 1934BETWEEN JACOB WILLIAM ALLENAppellantAND NEW ZEALAND POLICERespondentHearing: 9 August 2016Appearances: T J D Bamford for AppellantJ R T Crawford for RespondentJudgment: 18 August 2016JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 18 August 2016 at 4.30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Bamford Law, NelsonO'Donoghue Webber, NelsonIntroduction[1] The appellant, Mr Jacob William Anderson, appeals against a sentence of 22months' imprisonment imposed by Judge Zohrab in the District Court at Nelson on 4 February 2016.[2] He appeals his sentence on the basis that the Judge should have made an order under s 80I of the Sentencing Act 2002, granting him leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence became available. Alternatively, he appeals on the grounds that the Judge wrongly imposed a sentence of imprisonment in favour of a sentence of home detention.Background[3] Following a sentence indication on 4 February 2016, where a sentence of 25months' imprisonment was indicated,1 the appellant pleaded guilty to:2(a) supplying a psychoactive substance (LSD);(b) possessing a psychoactive substance (LSD) for supply;(c) selling a class C drug (cannabis);(d) offering to sell a Class C drug (cannabis);(e) possessing a class B drug (MDMA); and(f) cultivating cannabis.[4] In his sentence indication, Judge Zohrab noted that the appellant had "made a career choice as far as drugs were concerned" and, in the circumstances, "a prison1 An earlier sentence indication was given by Judge Zohrab on 24 June 2015, wherein a sentenceof 31 months' imprisonment was indicated. This sentence indication included LSD charges,which were later dismissed.2 Psychoactive Substances Act 2013, s 70(1)(a) and s 70(1)(c); Misuse of Drugs Act 1975, s 6(1)(e) and (2)(c), s 7(1)(a) and (2), and s 9(1).sentence was the only appropriate response". The Judge noted that while the sentence indicated, was close to the point whereby a sentence of home detentioncould be considered, "I see no reason to look to artificially reduce it further, giventhe nature of the offending, the drugs involved and the damage that drugs do, andobviously he would be eligible for parole at a third point".[5] Before sentencing, and following the request of the appellant's (new)counsel, Judge Zohrab issued a Minute directing that a pre-sentence report be prepared, noting:1. The defendant has pleaded Guilty following an indication that prison is the final outcome.2. I am prepared to call for a pre-sentence report but not an appendix report.3. If the defendant is seeking to argue that he should be sentenced to anything less than prison, then he will need to consider whether he wishes to deflect from the sentence indication and make the appropriate application.[6] A pre-sentence report was prepared on 7 April 2016. A number of letters and reports were also prepared by members of the appellant's family and others insupport, documenting his good character and future prospects. They state that the appellant has demonstrated insight and remorse for his offending. Also, that a prison sentence will have a significant effect on his children.[7] The appellant appeared for sentencing on 10 May 2016.[8] After summarising the indications previously given, the Judge adopted the reasoning contained in the sentence indication of February 2016, confirming theview that "imprisonment is the only appropriate response".3 The Judge referred to the pre-sentence report, wherein a sentence of imprisonment was recommended,adding "the report writer noted that you minimised your selling by saying it was a3 Police v Allen [2016] NZDC 12033 at [7]. The sentencing notes were reconstructed due to a recording error.way of making money".4 The Judge referred to the support letters and reports given to the Court, and was clearly impressed by them, but stated:5What influences my decision that prison is the only appropriate response in your case, is that it is clear from the summary of facts that this was not a momentary error of judgement, rather it was persistent commercial offending, so your degree of culpability, or fault, was high, and it was done for commercial gain.[9] However, taking the contents of the letters and reports into account, the Judge reduced the sentence indication of 25 months' imprisonment to 22 months. TheJudge explained:6I think it appropriate to provide you with some credit for those matters, Igive you a further credit for the steps taken since the sentence indication and reduce the end point from 25 months to 22 months' imprisonment. However, in my view imprisonment is still the only appropriate responseSubmissions[10] The appellant submits that because the end sentence was a short-term prison sentence, the Judge was required by s 80I of the Sentencing Act to grant the appellant leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.[11] The appellant also points to a number of personal factors, such as his efforts at rehabilitation and significant family support, in support of the submission that home detention was the least restrictive outcome in the circumstances.[12] The respondent submits the appeal should be dismissed. Section 80I is not engaged here. Further, the appellant accepted the sentence indication knowing that the end sentence was imprisonment.Was the Judge wrong not to give leave to apply for home detention?[13] I agree with the respondent's submission that s 80I is not engaged in the4 At [4].5 At [9].6 At [11].circumstances of this case.[14] Section 80I provides:80I Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases(1) This section applies if—(a) a court has sentenced an offender to a short-term sentence of imprisonment; and(b) at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.(2) At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.[15] Although s 80I imposes a mandatory requirement under ss (2), this requirement is to be read in light of ss (1), which states that the section applies only if the court "would have sentenced the offender to a sentence of home detention if a suitable residence had been available."[16] This is not a case where the appellant was sentenced to a short term sentence of imprisonment because there was no suitable residence at the time of sentencing. This is a case where the Judge did not consider that home detention was an appropriate sentencing option. Since the Judge "would not have" sentenced theappellant to a sentence of home detention at the time of sentencing, the leave requirement in ss (2) does not arise. Therefore, s 80I does not apply.[17] Accordingly, this appeal ground fails.Was a short term sentence of imprisonment manifestly excessive?[18] As a general principle, an appeal Court will not intervene where the sentence imposed is within the range that can properly be justified by accepted sentencing principles.7[19] In my assessment, the sentence imposed by Judge Zohrab was, in the circumstances of this case, within the available range. Quite apart from the cases referred to by counsel for the appellant,8 the appellant is described in the summary offacts as a "high level seller" and his involvement (which was higher than hisassociate's) formed part of a commercial drug-dealing operation. The Judge clearly viewed the level of commerciality as a prominent feature, making his offending more serious, and a factor that required deterrence and denunciation.[20] Mr Bamford for the appellant acknowledges that his client's actions inpossessing and supplying the drugs was commercial in nature, but submits that the appellant had undertaken the venture in order to support his own drug dependency. Mr Bamford submits that in such circumstances the gravity of the offending is lower than a purely commercial enterprise undertaken for financial gain. I do not agree that the drug dependency of the appellant operates to reduce the gravity of his offending, it being undertaken on a commercial scale.[21] I do not agree with the appellant's submission that the Judge failed to takeinto account or give sufficient weight to personal factors when dealing with the appellant, such as his remorse, steps at rehabilitation and good character. It is quite clear that the Judge was influenced by these factors (beyond what was already indicated in February 2016) after having received the letters and reports in support of7 For the approach taken in this appeal, see Criminal Procedure Act 2011, s 250(2) and (3) andRipia v R [2011] NZCA 101 at [15].8 R v Kamizona [2012] NZHC 2868, where the defendant was described as "a small scale dealer for commercial gain". Relevant to the question of whether a sentence of home detention shouldbe imposed in the circumstances were the extent of support from his employers; compliancewith "quite strict terms" on which he was bailed; and that the defendant had reached "a cross-road" in his life, in circumstances where the offending was characterised as opportunistic. AndR v Paul CRI-2010-002-267 HC Dunedin, 24 November 2010; where the defendant attempted to dissociate from those who led him astray; and had successfully participated in the Salvation Army course. He also demonstrated remorse, and had job prospects. Nothing was said about the scale of the offending or his level in the enterprise.the appellant's personal circumstances, by reducing the end sentence to 22 months' imprisonment. This was so despite the Judge's view that a short term sentence ofimprisonment was, in the circumstances of this case, the least restrictive outcome. I agree.Conclusion[22] For the reasons given, the appeal is dismissed._____________Paul Davison J