BAIRDS v POLICE [2019] NZHC 3181

BAIRDS v POLICE [2019] NZHC 3181 [4 December 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-123[2019] NZHC 3181BETWEEN LEIGHTON BAIRDSAppellantAND NEW ZEALAND POLICERespondentHearing: 16 October 2019Counsel: R Ward for AppellantJ Whitcombe for RespondentJudgment: 4 December 2019JUDGMENT OF WHATA JThis judgment was delivered by me on 4 December 2019 at 4.00 pm.Registrar/Deputy RegistrarDate: .Solicitors: Raymond Donnelly & Co, Christchurch[1] Mr Bairds pleaded guilty to cultivation of cannabis and two charges of failingto appear. He was sentenced by Judge Neave to 13 months' imprisonment.1 Heappeals this sentence on the basis it was manifestly excessive.Facts[2] Police executed a search warrant at the appellant's address on 8 October 2018.They located four cannabis plants, 14.6 g of cannabis in tinnies, 21.82 g of cannabisin small zip-lock bags, pre-cut pieces of tin foil, scales, a bong and a grinder.Mr Baird's cellphone contained multiple messages discussing the sale and delivery ofcannabis, for when orders were placed on a secret Facebook group. At the time of thisoffending, he was serving a sentence of home detention for dishonesty-relatedoffences.District Court decision[3] Judge Neave categorised the offending as a reasonably significant cannabisoperation involving commercial cultivation and stated that reasonable planning hadgone into it. Against that he said the amounts found were not great and a significantamount was for Mr Baird's own use. He noted that Mr Baird had family support, butalso a continual inability to complete sentences and participate in opportunitiesafforded to him. He said that the offending fell into the lower end of band two in thetariff judgment R v Terewi.2 Band two generally involves starting points between twoto four years. However, the Judge considered an appropriate starting point in this casewas 18 months. To that he added six months for the charges of failing to appear andthe fact the offending occurred while the appellant was subject to home detention.[4] Judge Neave did not find the evidence regarding rehabilitation compelling butnevertheless allowed a credit of three months, and a further three months taking intoaccount the fact Mr Bairds would have to serve his prison sentence away fromChristchurch, which would make the sentence more difficult for the him. He alsoallowed a full 25 per cent discount for guilty plea, despite that plea not having been1 Police v Bairds [2019] NZDC 16445.2 R v Terewi [1999] 3 NZLR 62, (1999) 16 CRNZ 429 (CA) at [4].entered at the first opportunity. This resulted in an end sentence of 13 and a halfmonths' imprisonment, which Judge Neave rounded down to 13 months.[5] Finally, His Honour considered whether leave to apply for home detentionshould be granted. Given the appellant's previous history of non-compliance and thefact that the present offending occurred while he was subject to a sentence of homedetention, the Judge found that home detention would be inappropriate and thereforerefused to grant leave.Principles on appeal[6] An appeal will be successful only if the appellant can point to an error, eitherintrinsic to the Judge's reasoning, or because of additional material submitted on theappeal which vitiates the sentencing decision of the Court below.3 Unless there is amaterial error in sentence, for example, that it is manifestly excessive, manifestlyinadequate, or wrong in principle, an appellate court will not intervene.Zhang[7] At the time this matter was heard, counsel were aware that the Zhang decisionwas due to be released.4 It was agreed that the decision on the appeal should bedeferred to enable the parties and this Court to consider the implications, if any, thatdecision might have for this appeal. After the decision was released, I convened atelephone conference to ascertain the views of the parties about Zhang. Initiallyneither party sought an opportunity to submit further on it but Mr Ward, for theappellant, subsequently indicated that he did wish to make further submissions and didso on 11 November 2019. No further submissions have been filed on behalf of therespondent, though I understand the respondent does not consider that Zhang assistsMr Baird. I turn then to examine Mr Ward's submissions.3 Tutakangahau v R [2014] NZCA 279 at [29]–[31].4 Zhang v R [2019] NZCA 507.Submissions[8] Mr Ward submitted that the starting point adopted by Judge Neave was toohigh, the uplifts were excessive, there was insufficient consideration given tomitigating factors and the end sentence was manifestly excessive. He referred toseveral cases which, he said, showed that the sentence was excessive, includingMowberry v R,5 Waghorn v Police,6 R v Stuthridge,7 R v McGilp,8 R v Marshall,9 R vTimoti,10 R v Fenton,11 R v Edmonds12 and R v Latham.13 Mitigating factors includedMr Bairds' home life and that he was committed to his partner and two children, whorelied on him for day to day support.[9] Mr Ward submitted, in supplementary submissions, that Zhang identifiedproblems with the guideline judgment of Fatu.14 While those cases dealt withmethamphetamine offending, he submitted that the observations and approach inZhang could apply by analogy to the guideline authority in cannabis cases, Terewi.15He said the following passage in Zhang is apposite here:[10] In this judgment we conclude:(a) Sentencing must achieve justice in individual cases. That requiresflexibility and discretion in setting a sentence notwithstanding theguidelines expressed in this and similar judgments.(b) In sentencing methamphetamine offending, quantity remains areasonable proxy both for the social harm done by the drug and theillicit gains made from making, importing and selling it. It is thereforean important consideration in fixing culpability and thus the stage onesentence starting point.(c) The Fatu quantity bands are therefore retained, but with somesignificant modifications.(d) In particular, we hold that the role played by the offender is animportant consideration in the stage one sentence starting point. Dueregard to role enables sentencing judges to properly assess the5 Mowberry v R [2012] NZHC 969.6 Waghorn v Police HC Invercargill CRI-2008-425-1 4 March 2008.7 R v Stuthridge HC Auckland CRI-2007-404-254 6 November 2007.8 R v McGilp (2006) CRNZ 526. .9 R v Marshall HC Whangarei CRI-2008-029-216 16 December 2008.10 R v Timoti HC Tauranga CRI-2008-087-02197 17 March 2005.11 R v Fenton CA247/99 11 October 1999.12 R v Edmonds CA 23/02 28 May 2002.13 R v Latham [2007] NZCA 552.14 R v Fatu [2006] 2 NZLR 72 (CA)15 R v Terewi, above n 2.seriousness of the conduct and the criminality involved, and therebythe culpability inherent in the offending.(e) A more limited measure of engagement in criminal dealing deservesa less severe sentence than a significant or leading role. Diminishedrole in methamphetamine dealing offending may result in an offendermoving not only within a band — as currently happens or is supposedto happen under Fatu — but also between bands.(f) Although we do not adopt the two grid matrix (involving quantitybands and role categories) devised by the United Kingdom SentencingCouncil, we record that, in assessing role, sentencing judges may findit helpful to have regard to the Council's categorisations of role (into"leading", "significant" and "lesser"). In considering the individualappeals before us, we make use of those categorisations.(g) The Fatu sentencing distinction between supply, importation andmanufacture is removed. Evaluation of role will satisfactorily accountfor functional differentiation.(h) The Fatu bands themselves are adjusted: there are now five bands (thefourth Fatu band being subdivided), and the sentencing start points forbands one to four are lowered from those previously applying.(i) We observe that judges need to be willing to set starting points insentences beneath the stated entry points where culpability is trulylow; most likely where an offender plays a lesser role in offending.(j) At stage two of the sentencing exercise, personal mitigatingcircumstances relating to the offender are applicable to all instancesof Class A drug offending, including methamphetamine dealing, as inthe case of any other offending.(k) Addiction shown to be causative of the offending is a mitigatingconsideration. It may in its own terms justify a sentence discount ofup to 30 per cent, although that is not to be treated as an absolute limit.Addiction will often combine with mental health issues, and the twomay need to be considered in combination, although without thedoubling-up of an otherwise appropriate discount. Addiction also callsfor consideration of a rehabilitative response as part of sentencing.(l) Poverty and deprivation (potentially but not necessarily resulting fromloss of land, language, culture, rangatiratanga, mana and dignity) arematters that may be regarded in a proper case to have impaired choiceand diminished moral culpability. Such vulnerabilities (whereestablished, and whether associated with addiction or not) requireconsideration in sentencing.(m) Counsel and sentencing judges are encouraged to make greater use ofthe power in s 25 of the Sentencing Act 2002 to adjourn sentencing toenable rehabilitation programmes to be undertaken. Use of that poweris appropriate where independent evidence suggests the offending wascaused by the factor(s) which the proposed programme is designed totarget.(n) Minimum periods of imprisonment must not be imposed as a matterof routine or in a mechanistic way. A reasoned analysis is requiredunder s 86 of the Sentencing Act, both as regards the imposition of aminimum period of imprisonment and its length. If a practice hasdeveloped that an end sentence of nine years' imprisonmentautomatically triggers a minimum period of imprisonment, such apractice must cease.(o) Deterrence, denunciation and accountability are likely to be at theforefront of decisions in drug cases involving the imposition of aminimum period of imprisonment. As a general rule, therefore,lengthy minimum periods of imprisonment are properly reserved forcases involving significant commercial dealing.(p) This judgment applies to all sentencings that take place after the issueof this judgment regardless of when the offending took place. Itapplies to sentences that have already been imposed, if and only if twoconditions are satisfied: (1) an appeal against the sentence has beenfiled before the date the judgment is delivered and (2) the applicationof the judgment would result in a more favourable outcome to theappellant.[10] Mr Ward submitted further that Mr Bairds' culpability is truly low, havingregard to the connection between the offending and Mr Bairds' drug addiction – i.e.he engaged in commercial sale of cannabis to sustain his own cannabis use. He alsosubmitted that the comments in Zhang about personal circumstances discounts alsoresonate in this context, that is, it is appropriate to recognise the impact of addiction.He said that Mr Bairds' has maintained throughout that this dealing was to fund hisaddiction, and this appears to have been accepted by the PAC report writers.Assessment[11] While I accept that Zhang provides assistance by analogy in cases of cannabisdrug offending, and there is some force to Mr Ward's submissions about thedisproportionality of sentences in the present context, I have come to the view that thisis not the right case to attempt to revisit Terewi even if it were the proper function ofthis Court to do so. Moreover, I am satisfied that the sentence overall is not manifestlyexcessive.[12] First, the Judge's start point was well within the range for cases of this kind.Mr Bairds was the lead player in the sale of the cannabis. It was his operation. AsJudge Neave noted, it was reasonably sophisticated. The observations in Zhang aboutthe importance of the role played do not assist Mr Bairds.16 Having said that, somerecognition is needed of the fact that this was a low-level operation and I think theJudge did recognise that when he adopted a start point which was six months belowthe start point for Band 2.[13] Second, the Judge's six-month uplift for failing to appear and for offendingwhile on home detention was excessive, at about 33 per cent of the start point. A three-month uplift was, however, available. This bears on the ultimate issue about whetherthe sentence was overall manifestly excessive.[14] Third, a three-month discount for rehabilitation prospects appears generous inlight of Mr Bairds' propensity to reoffend and non-compliance with Court orders. Inthis regard, the PAC report noted that Mr Bairds also has ten previous offences relatingto non-compliance while serving community sentences. A further three-monthdiscount for separation from family (an otherwise ordinary consequence ofimprisonment) was also generous, as was the 25 per cent discount for late guilty plea.That is a combined discount of 50 per cent.[15] Fourth, as Mr Whitcombe submitted, it is difficult to find fault with this resultbased on Terewi and other comparable cases, including those cited by Mr Ward. Thereare some instances where a lesser sentence was handed down for comparableoffending, for example, in Mowberry. But it cannot be said that the starting point orthe end point sentence was manifestly excessive.[16] Finally, I am not satisfied that there is a proper basis to find that addiction wasthe driver of the offending. For my part a mixed picture emerges from all the availableinformation. Mr Bairds has a drug habit and ran a commercial cannabis operation. Ialso have no doubt the latter benefits the former. But I am not satisfied, on the limitedevidence available to me, the cannabis operation is driven by Mr Bairds' drug habit.16 At [118].[17] Accordingly, I do not consider that Judge Neave erred. The sentence was notmanifestly excessive. The appeal is dismissed.