SALISBURY v NEW ZEALAND POLICE [2016] NZHC 46

SALISBURY v NEW ZEALAND POLICE [2016] NZHC 46 [2 February 2016]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYCRI-2015-441-000046[2016] NZHC 46BETWEEN KEVAN DARRYL SALISBURYAppellantAND NEW ZEALAND POLICERespondentHearing: 2 February 2016Appearances: M J Phelps for AppellantM M Mitchell for RespondentJudgment: 2 February 2016(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Salisbury pleaded guilty in the District Court to charges of cultivatingcannabis, offering to sell cannabis oil and assaulting his partner. On 22 October2015, Judge Rea sentenced Mr Salisbury to two years two months imprisonment.1[2] Mr Salisbury appeals against sentence. He argues that the Judge adopted a starting point that was too high, and that he failed to give adequate recognition to rehabilitative steps undertaken prior to sentencing.Background[3] The drugs charges were laid following a search that the police carried out ofMr Salisbury's home on 1 July 2015. The search revealed 24 cannabis plants invarious states of growth. The police also examined the data contained in MrSalisbury's phone. The data on the phone indicated that Mr Salisbury had beeninvolved in offers to supply cannabis oil to various associates. This led them to laythe charge of offering to sell cannabis oil.[4] The final charge related to an incident that occurred on 9 August 2015. On that date Mr Salisbury became involved in a dispute with his partner. He appeared to be harbouring doubts as to whether his partner had been faithful to him. An argument escalated into violence that involved Mr Salisbury pushing his partner. He then punched her once in the face with a closed fist, causing his partner to fall sideways onto the couch with her back to him. He then punched his partner again on the left side of her back. This incident occurred in full view of the couple's children. As a result of the assault Mr Salisbury's partner received a sore and swollen cheek and lip, but did not require medical attention.The Judge's decision[5] The Judge adopted a global approach by setting a starting point reflecting MrSalisbury's culpability in relation to all three charges. He considered that an appropriate starting point was one of two years six months imprisonment. He then1 R v Salisbury [2015] NZDC 21533.applied an uplift of four months to reflect previous offending on serious drug-related offences. Mr Salisbury had also been convicted in January 2015 on another charge of assaulting his partner and threatening to kill her. On that occasion, he had received a sentence of community work. The Judge then applied a 25 per cent discount to reflect early guilty pleas, thereby producing the end sentence of two years two months imprisonment.The starting point[6] Mr Phelps argues that the Judge adopted an overall starting point that was too high having regard to the overall nature of the offending. He acknowledged that the starting points to be selected in respect of the drugs charges fell to be determined having regard to the principles enunciated in R v Terewi.2 In the circumstances ofMr Salisbury's offending, this required a starting point of between two and four years imprisonment.[7] Mr Phelps submits that Mr Salisbury's offending fell at the very bottom ofthis range, and that the Judge should have applied a starting point of no more than two years imprisonment. He then submits that an uplift of no more than three months was required to reflect the charge of assault on a female. As a result, he contends the Judge applied an uplift that was three months too high.[8] I do not accept these submissions. The Judge could easily have selected a starting point of two years six months imprisonment on the drugs charges alone. As the Judge recorded, this involved both cultivation of cannabis plants and the offeringfor sale of cannabis oil. It must also have occurred over a considerable period. Forthat reason I do not accept that the starting point in respect of the drugs charges wastoo high.[9] In addition, the Judge could easily have adopted a starting point of six months imprisonment on the assault charge alone. The most significant aggravating factors about this charge were that it involved actual physical violence on two separate occasions, and that it occurred in front of the children. For those reasons I2 R v Terewi [1999] 3 NZLR 62do not accept that an overall starting point of two years six months imprisonment was outside the available range.Discount for rehabilitative efforts[10] The courts will commonly apply a discount to reflect genuine efforts made by an offender to rehabilitate him or herself in respect of matters such as addiction to drugs. Mr Phelps points out that prior to sentencing Mr Salisbury had engaged with Drug and Alcohol Services, and had also begun attending meetings of Narcotics Anonymous. He submits that the Judge ought to have recognised this commitment to rehabilitation by applying a discrete discount.[11] The material on the Court file makes it clear that Mr Salisbury has significant involvement with both cannabis and methamphetamine. This must be regarded aslong-standing, because on 13 December 2010 Mr Salisbury received a sentence often months home detention on a large number of drug-related charges.3 I have hadthe benefit of reading the sentencing remarks in respect of that offending. Thismakes it clear that Mr Salisbury was at that time involved in a significant way in thecommercial cultivation of cannabis both at his work and home addresses.[12] Whether or not a discount for rehabilitation should be imposed is a matter of judicial discretion. Even assuming for present purposes that the Judge overlooked this issue, I do not consider that a discrete discount was warranted. When Mr Salisbury was sentenced in December 2010, he received a significant discount for several mitigating factors. These included the fact that he had begun counsellingsessions to deal with his involvement with drugs. Mr Salisbury must have knownthat further involvement with drugs was likely to have serious consequences.[13] I do not consider the steps that he took following his arrest on the present occasion warranted a discrete discount. I note also that one of the pre-sentence reports prepared before sentencing indicates that external drug and alcohol agencieshad a "concern around pre-sentence motivation". This suggests that the agencies3 R v Salisbury HHC Napier CRI-2010-020-002856, 3 December 2010.were concerned that Mr Salisbury had only chosen to become involved with them because he knew he was about to be sentenced.[14] Having regard to those factors, I do not consider that the Judge fell into error by failing to provide a discount in relation to the steps taken by Mr Salisbury to rehabilitate himself since his arrest.Result[1] The appeal against sentence is accordingly dismissed.Lang JSolicitors:Crown Solicitor, Napier