THOMPSON v NEW ZEALAND POLICE [2020] NZHC 228

THOMPSON v NEW ZEALAND POLICE [2020] NZHC 228 [20 February 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000174[2020] NZHC 228BETWEEN JAMES TAYLOR THOMPSONAppellantAND NEW ZEALAND POLICERespondentHearing: 20 February 2020Appearances: ARMG Jarman and SMH McManus for AppellantSRDD Bicknell Young for RespondentJudgment: 20 February 2020ORAL JUDGMENT OF GENDALL J[1] The appellant, Mr Thompson, pleaded guilty to driving a vehicle in adangerous manner, driving contrary to a condition of a learner licence and possessionof a Class C drug. He was sentenced in the District Court by Judge Rollo on6 November 2019. For the driving charge Mr Thompson was sentenced to threemonths' imprisonment, disqualified from holding or obtaining a driver's licence fornine months and ordered to pay reparation of $1,400. On the cannabis chargeMr Thompson received a one-month cumulative sentence. Mr Thompson now appealsthe one-month cumulative sentence for the cannabis offending on the basis it wasmanifestly excessive, the Judge made an error of fact and that sentence should nothave been cumulative.Background facts[2] Turning now to the background facts in this matter, on 2 May 2019,Mr Thompson was riding a Harley Davidson road bike with a group of other motorcyclists. The police received several telephone complaints relating to that drivingconcerning excessive speed, passing on double yellow lines and blind corners. Aboutone kilometre south of Taihape, in attempting to overtake another vehicle on doubleyellow lines, Mr Thompson crossed over the centreline and collided with a truck andtrailer. Mr Thompson was unharmed. The truck driver avoided the crash but had toswerve into a ditch. The insurance excess and breakdown costs to the truck amountedto $1,400.[3] Sometime later, on 9 August 2019 Mr Thompson was in custody in the Policeholding cells on an unrelated matter. While being transported from the holding cellsa sealed package dropped from Mr Thompson's person. The package contained5.9 grams of cannabis, a cell phone and a charging wire.The decision in the District Court[4] I turn now to the decision in the District Court. There, Judge Rollo consideredthe dangerous driving offence was a very serious one. Mr Thompson was lucky no onewas injured or killed. Accordingly, the Judge set a starting point close to the maximumwith an uplift for relevant prior convictions and a discount for Mr Thompson's guiltyplea. This came to three months' imprisonment. The Judge also disqualifiedMr Thompson from holding or obtaining a driver's licence for nine months andordered reparation of $1400 for the truck company. A prison term was necessary forthis offending as Mr Thompson was on remand for other charges.[5] For the cannabis charge, Judge Rollo noted the context of the cannabisoffending, as contraband within a Police cell coupled with Mr Thompson's priorconvictions exacerbated the level of offending. On these bases the Judge imposed aone-month prison term to be served cumulatively.Principles on appeal[6] 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.1 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles.2 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.3SubmissionsAppellant's submissions[7] Turning now to the submissions received in this matter, the submissionsadvanced for the appellant raise two grounds for the appeal. First, the Judge made anerror of fact as to Mr Thompsons' previous drug convictions, which as an aggravatingfactor led to a higher starting point.[8] And secondly, it is submitted the sentence of one-month imprisonment to beserved cumulatively for the cannabis offending was manifestly excessive. Referring1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].to the categories established in R v Terewi,4 it is submitted as Mr Thompson was foundwith a small amount of cannabis, the offending falls below the threshold that warrantsa starting point of imprisonment, and usually would receive a modest fine. It issubmitted a conviction and discharge, or a modest concurrent sentence should havebeen imposed.Respondent's submissions[9] For the respondent, in submissions provided earlier, it is accepted the Judgemade an error of fact regarding Mr Thompson's prior convictions for drug offending.It is submitted regardless of this the sentence of one month imposed cumulativelycould not be said to be manifestly excessive. This submission, however, has beenovertaken by recent events whereby the Crown notes that it appears the Judge did notrefer to the case of Murray v R and thereby erred when he referred to the appellanthaving previous convictions for drug offending.5Analysis[10] Turning to my analysis in this matter, it is accepted the Judge did err in factand Mr Thompson does not have any prior drug convictions. The question is whetherthe sentence reached is manifestly excessive.[11] Mr Thompson received the maximum sentence for dangerous driving, threemonths' imprisonment. This sentence is not appealed. However, because themaximum sentence was imposed for the dangerous driving I must look at the cannabischarge in isolation.[12] At one level, Judge Rollo was correct to apply a cumulative sentence to thecannabis charge as the two offences were not similar in kind and did not occur as aconnected series of events.64 R v Terewi, [1999] 3 NZLR 62 at [4].5 Murray v R [2015] NZCA 438.6 Sentencing Act 2002, s 84(1).[13] In setting a starting point R v Terewi establishes three bands for cannabisoffending. For growing a small number of cannabis plants for personal use withoutsale to another party occurring or intended conviction should be dealt with by a fineor other non-custodial sentence. Where supplies to others on a non-commercial basisthe monetary penalty would be greater and in some cases or for persistent offending ashort prison term might be merited.7[14] Mr Thompson had a small amount of cannabis (5.9 grams). There is noevidence he was intending to supply this cannabis to anyone else. Therefore, thestarting point of band one is appropriate. The context of the offending: it occurred ina police cell, smuggled with other contraband, aggravates the offending. However,the band one category in R v Terewi suggests imposing a prison term for serious supplyor for persistent offending. As Mr Thompson has no drug related convictions it isunlikely the offending was serious enough to warrant a prison term.[15] Further, while neither counsel initially raised this, there is a statutorypresumption against imprisonment for low level cannabis offending in s 7(2)(b) of theMisuse of Drugs Act 1975. That section requires the Court to consider that where anyperson is convicted of an offence relating only to a Class C drug "the Judge is not toimpose a custodial sentenceunless by reason of the offender's previous convictionsor of any exceptional circumstances relating to the offence or the offender the Judgeis of the opinion that such a sentence should be imposed."8[16] The fact a person is to receive a custodial sentence on another matter is notenough to meet the "exceptional circumstances" proviso.9 Therefore, the fact thatimprisonment was the only available sentence because Mr Thompson was on remandfor other offences does not provide the basis for a prison term. Murray v R consideredif there was persistent possession offending or the possession offence was part of apattern of more serious drug offending a sentence of imprisonment might beappropriate.107 R v Terewi [1999] 3 NZLR 62 at [4].8 Misuse of Drugs Act 1975, s 7(2)(b) emphasis added.9 Murray v R, above n 5.10 Above n 5, at [10].[17] The context of the offending here, at a police station, coupled with the findingof other contraband was an aggravating factor, but it is unlikely it meets the"exceptional circumstances" standard in s 7(2)(b) required to impose a custodialsentence, without relevant prior convictions.Conclusion[18] As counsel both now acknowledge at the eleventh hour before me, the Judgedid err in sentencing Mr Thompson to a term of imprisonment on the cannabis charge.The end sentence of one-month imprisonment was manifestly excessive. The appealis allowed, and the one-month cumulative sentence quashed.[19] Given Mr Thompson has already served his sentence I now convict anddischarge him on the cannabis, that is the charge of possession of a Class C drug.11...................................................Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchCopies to:Anselm Williams, Barrister, Christchurch11 Murry v R, above n 5, at [11]-[13].