ADDENBROOKE v NEW ZEALAND POLICE [2016] NZHC 2254

ADDENBROOKE v NEW ZEALAND POLICE [2016] NZHC 2254 [23 September 2016]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCRI-2016-412-15[2016] NZHC 2254BETWEEN JEREMY BLAIR ADDENBROOKEAppellantAND NEW ZEALAND POLICERespondentHearing: 22 September 2016Appearances: A Dawson for AppellantR Smith for RespondentJudgment: 23 September 2016JUDGMENT OF MANDER J[1] The appellant, Mr Jeremy Addenbrooke, was sentenced to 10 months imprisonment on a charge of possession of cannabis for sale.1 He appeals that sentence on the basis it was manifestly excessive.Background[2] A police search of Mr Addenbrooke's backpack revealed he was inpossession of nine $50 deal bags of cannabis (18 grams), with a combined street value of $450. He was also carrying $249 in cash. Mr Addenbrooke admitted ownership of the cannabis and his intention to sell five or six of the deal bags (10-12 grams).Approach to appeal[3] The appeal Court will only disturb a sentence if the appellant can establish there has been an error in the sentence imposed and that a different sentence should1 Police v Addenbrooke [2016] NZDC 12825.be substituted.2 In the absence of such a finding the Court must dismiss the appeal.3The requirement that a sentence be manifestly excessive before it will be disturbed on appeal remains part of the approach to be taken to an appeal against sentence, notwithstanding the absence of any express reference to that test in the Criminal Procedure Act 2011.4[4] A submission that a sentence is manifestly excessive (or inadequate) is premised on a contention that an error has been made in identifying the starting point, or that incorrect discounts or additions have been made, or some other error affecting the ultimate sentence.5 However, whether a sentence is manifestly excessive is to be examined in terms of the sentence actually imposed, rather than the process by which the sentence was reached.6The sentencing decision[5] In approaching the sentencing exercise, Judge Turner referred to the guideline decision of R v Terewi, and observed that Mr Addenbrooke's offending fell withincategory 2, involving as it did a small quantity of cannabis for commercial purposes.7 The starting point for such offending is generally between two and four years, but a lower starting point can be adopted where sales are infrequent or a small quantity of cannabis is involved. Judge Turner noted the quantity of cannabis was at the lower end of the scale, involving five to six deal bags with a total value of between $300 and $500. As a result, the Judge took a starting point of 12 months imprisonment.[6] At the time of the offending, Mr Addenbrooke was subject to release conditions following a sentence of imprisonment on two charges, one of which included possession of a Class A drug. As a result, an uplift of two months was imposed. Judge Turner afforded a 30 per cent discount for Mr Addenbrooke's2 Criminal Procedure Act 2011, s 247 and 250.3 Section 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 4825 Tutakangahau v R, above n 4.6 Larkin v Ministry of Social Development [2015] NZHC 680 at [26].7 R v Terewi [1999] 3 NZLR 62 (CA) at [4].personal circumstances and his early guilty plea. This resulted in the end sentence of 10 months imprisonment, which the Judge declined to commute to home detention.The appeal[7] Mr Addenbrooke submits the sentence is manifestly excessive. The alleged identified error is that the 12 month starting point was set too high, which resulted in the length of the term of imprisonment being too long. No issue is taken with the uplift for aggravating factors, nor the 30 per cent discount for mitigating considerations.[8] Mr Addenbrooke's essential contention is that the Judge erred in that having acknowledged the limited commerciality of his offending, he did not adopt a starting point that was sufficiently modest to accurately reflect the true level of the offending. Mr Addenbrooke submitted that once the amount of cannabis he intended to keep for personal use was taken into account, the commercial value of the balance would be $250 to $300 at most. He referred to sentencing decisions of this Court where starting points of six and eight months were indicated as appropriate.8 Mr Addenbrooke submitted a similar six month starting point ought to have been taken by Judge Turner in the circumstances of his case.Decision[9] Mr Addenbrooke is correct in his submission that there are sentencing decisions where greater quantities and more sophisticated commercial enterprises have attracted starting points equivalent to, or even lower, than the 12 months Judge Turner adopted.9 However, this Court will not intervene where the sentence imposed is within a range that can be properly justified by accepted principles. Mr Addenbrooke is required on appeal to demonstrate that Judge Turner made an error in the sentence he imposed. In order to do that he would need to demonstrate the starting point which the Judge took of 12 months was not within the available range for this type of offending. In my view, he is not able to sustain such a submission.8 Ngatai v Police [2015] NZHC 2249; Dobbs v Police [2013] NZHC 656.9 Stott v Police HC Christchurch CRI-2007-409-231, 13 December 2007; Synnott v Police [2013] NZHC 486.[10] The Crown is able to point to other authorities which show the starting point of 12 months to be within range in the exercise of the sentencing Judge's discretion.In McPadden v Police, the appellant was sentenced to 10 months imprisonment on charges of possession of cannabis for supply, possession of cannabis, theft of a licence plate and breaches of bail, release conditions and community work.10 The only challenge on appeal was to the term of nine months imprisonment on the charge of possession of cannabis for supply.[11] There is a similarity to the circumstances of Mr Addenbrooke's offending.The appellant in that case was found in possession of a backpack containing 10 tinnies of cannabis leaf with a total weight of approximately 10 grams. Also inside the backpack were a pair of scissors, a large roll of tinfoil and $185 in cash. The appellant had $430 in cash in his wallet. At the time of his apprehension, he was serving a sentence of community work and on bail in relation to other charges.[12] The appeal Court in that case noted the sentencing Judge's error in believinghis sentencing jurisdiction was limited to one of 12 months imprisonment when adopting a starting point of 10 months imprisonment.11 In reassessing the appellant'soffending, Toogood J held it fell into the lower end of Terewi category 2, and considered that the circumstances justified a starting point of 20 months.12 This resulted in Toogood J observing that, on his theoretical recalculated sentence of 17 months imprisonment, the end sentence imposed by the District Court of 10 months might be considered generous.13[13] The Crown has referred me to other cases where possession of small amounts of cannabis for the purpose of sale have resulted in starting points similar to that taken by Judge Turner. In Barker v Police, this Court dismissed an appeal against a sentence of eight months imprisonment imposed primarily in respect of one charge of possessing cannabis for the purpose of sale. The appellant was found in10 McPadden v Police HC Hamilton CRI-2011-419-38, 17 June 2011.11 At [13].12 At [14].13 At [17].possession of six cannabis tinnies with a total weight of three grams. Miller J held the starting point of 12 months imprisonment was not unusual.14[14] R v Rihari is another example of a starting point of 12 months imprisonment being taken in respect of six cannabis tinnies and sales of $400 to $500 worth of cannabis.15 Similarly, in R v Pulham, where the appellant sold three cannabis tinnies to an undercover police officer and shared two tinnies with friends, a starting point of 12 months imprisonment was not disturbed.16[15] Counsel for Mr Addenbrooke submitted that the authorities he relied upon were of a more recent vintage to those the Crown had referred. He suggested this may indicate some softening in the approach taken by the Courts to sentencing for dealing in small amounts of cannabis. However, it was acknowledged a more comprehensive review would be required to draw such a conclusion. As submitted by the Crown, the better approach is to examine the value of each decision by reference to the issue before the appeal Court which it is focussed on addressing.[16] In the first case relied upon by Mr Addenbrooke, Ngatai v Police, where a starting point of six months was upheld, the concern on appeal was the issue of parity with a co-offender.17 In the other case relied upon, Dobbs v Police, the focus of the appeal against what was assessed as a starting point of eight months was on whether the sentencing Judge had erred in not considering home detention as a viable option.18 Where reliance is placed on an appeal case for guidance on appropriate sentence levels and where the appeal is unsuccessful, in the absence of any observation by the appeal Court that the sentence was stern or at the upper limit, the influence of the case is limited. It does not follow that a higher sentence would not have also been within range. The authorities relied upon by the Crown perhaps highlight that observation.[17] Mr Addenbrooke, in support of his appeal, also referred to the difficult situation in which he found himself after being released from prison and not having14 Barker v Police HC Dunedin CRI-2010-412-11, 13 May 2010.15 R v Rihari HC Whangarei SO5102, 23 September 2005.16 R v Pulham HC Whangarei CRI-2006-029-168, 12 October 2006.17 Ngatai v Police, above n 8.18 Dobbs v Police, above n 8.work. It is said he foolishly resorted to selling cannabis in order to make a small amount of money. Since the offending Mr Addenbrooke has obtained employment.The loss of that income for Mr Addenbrooke's partner and her children are cited asreasons why this sentence should be shortened.[18] These types of personal considerations were no doubt urged upon the sentencing Judge for his consideration. Judge Turner in his sentencing remarksspecifically referred to Mr Addenbrooke's personal circumstances and to letters written by both his partner and his employer. It is not disputed the discount afforded to Mr Addenbrooke for personal circumstances was other than appropriate. Furthermore, Judge Turner expressly acknowledged the need for the sentence to bethe least restrictive outcome appropriate in the circumstances of Mr Addenbrooke'scase.[19] Mr Addenbrooke's counsel advised that Mr Addenbrooke has undertaken arehabilitation programme in prison, is remorseful, and determined to avoid similar offending in the future. He is anxious to have the opportunity to get back to work and to support and be reunited with his partner and her child. To that end it was submitted that even a small reduction in the sentence would not amount to tinkering as it would still represent a not insignificant percentage of the total sentence. I accept that submission, but the difficulty is that before the appeal Court can substitute a different sentence it must first be satisfied there has been an error by the sentencing Judge. A sentence appeal cannot proceed as a second sentencing hearing in the absence of such an error being identified and sustained.[20] I am not able to discern any error in the way the sentencing Judge approached his task. In the absence of Mr Addenbrooke being able to demonstrate Judge Turner erred in taking a starting point of 12 months imprisonment the appeal must inevitably fail. I consider the sentence imposed was within the available range. Accordingly, the appeal must be dismissed.Solicitors:Public Defence Service, DunedinRPB Law, Dunedin