BIDOIS v POLICE [2017] NZHC 589

BIDOIS v POLICE [2017] NZHC 589 [29 March 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCRI-2017-419-000003[2017] NZHC 589BETWEEN ROBERT CHARLES ROPATA BIDOISAppellantAND NEW ZEALAND POLICERespondentHearing: 28 March 2017Counsel: GD Prentice for AppellantTA Needham for RespondentJudgment: 29 March 2017JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 29 March 2017 at 11 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Public Defence Service, Hamilton.Crown Solicitor, Hamilton.[1] This is a sentence appeal against a term of five years' imprisonment. Theappellant accepts as correct Judge Spear's approach in relation to the primaryoffending. However, he submits the Judge uplifted the sentence so that related andprevious offending has rendered it manifestly excessive.[2] The appellant was found guilty of cultivating cannabis; possessing equipmentcapable of cultivating cannabis; possessing a firearm and explosives (a shotgun and20 shells) except for some lawful, proper and sufficient purpose; and breaching aprotection order. In brief, the appellant grew a very large amount of cannabis in aproperty rented by him for that purpose. Police found 239 cannabis plants there, allgrowing hydroponically. The system was operated by stolen electricity—theappellant had bypassed the meter. The Judge was satisfied the appellant had made atleast $100,000 from growing cannabis.[3] Police also found a sawn-off shotgun hidden down the side of the appellant'sbed, and 20 shotgun shells in the same room. The Judge concluded the appellant hadarmed himself "for the purposes of defending your cannabis growing operation fromanyone who might want to plunder it".1 The offending was committed while theappellant was on bail for contravening a protection order. And, by dint of that order,the appellant's possession of the shotgun constituted an additional offence ofbreaching a protection order.[4] Judge Spear adopted a starting point of four years' imprisonment in relationto the cannabis offending. The balance of the offending attracted an uplift of12 months' imprisonment. The appellant's previous convictions resulted in a furtheruplift of three months. The Judge then mitigated the sentence by three months (inrecognition of the appellant's responsible approach at trial). As observed, theappellant does not contest the starting point in relation to the cannabis offending;only the uplifts for the balance of the offending and his previous offending.[5] Mr Prentice helpfully analysed 10 cases in which a firearm or firearms hadbeen found in connection with controlled drugs. In five of those cases, the Arms Actoffending attracted an uplift of six months. An eight-month uplift was applied in two1 Police v Bidois [2016] NZDC 25849 at [12].cases, but in one of the two there were other charges as well. The remaining casesattracted uplifts of four months' and 12 months' imprisonment respectively. All areset out in an attached schedule based on a version prepared by Mr Prentice.[6] Mr Prentice submits Judge Spear should not have imposed an uplift of morethan six months—or perhaps eight months—particularly as the protection orderbreach was only of moderate seriousness (the protection order relates to theappellant's former partner who lives elsewhere in the country). In advancing thissubmission, Mr Prentice invited my attention to the observations of Dobson J inSlape v R (being one of the cases in the table):2In a preponderance of cases that are comparable, uplifts of between six months and eight months' imprisonment have been confirmed. The size of the arsenal, the presence of ammunition, and any additional connotations of availability for covert use reflected in the extent of adaptation may be relevant.[7] I reject this submission for six reasons. First, the presence of a firearm orfirearms in the context of controlled drugs offending has long been treated as aserious aggravating factor for obvious reasons.3[8] Second, the Court of Appeal has not prescribed uplifts in this context. That isnot surprising given factual sensitivity in this area, and the availability of differentsentencing approaches (for example, a Judge might impose a cumulative term ofimprisonment in relation to a firearm rather than increasing the starting point of theassociated drugs offending).[9] Third, the concept of a range is awkward when the figures are so compressed:the difference between the highest example cited by the appellant and the lowest isonly eight months.[10] Fourth, if one analyses the cases as the respondent has done, namely bypercentage uplift, this uplift was 25 percent against a "range" of 15–33 percent in thecases cited, and so almost in the middle of the continuum. True, uplifts in this areaare not conventionally approached as a percentage of the primary drugs offending.2 Slape v R [2015] NZHC 2637 at [11].3 For example, see Fonotia v R [2007] 3 NZLR 338 at [40].And I am not suggesting they should be. However, many of the examples cited by the appellant involve drugs offending of lesser seriousness, in turning affecting context. For example, in Slape the defendant grew 42 cannabis plants in anoperation described by Dobson J as "relatively substantial".4 A two-and-a-half-year starting point for that offending attracted a 12-month uplift for the Arms Act offending. Dobson J concluded an eight-month uplift would have been "adequate".However, in reaching this conclusion—and declining to further reduce the uplift—His Honour referred to the overall seriousness of the defendant's offending.5 All of which is another way of saying context remains important when assessing the propriety of an uplift and its magnitude.[11] Fifth, Judge Spear was satisfied there was a direct connection between thefirearms offending and drugs offending on the basis the shotgun was to be used toprotect the appellant's crop. The presence of ammunition in the same bedroom asthe shotgun underscores that conclusion, which was plainly open to the Judge.[12] Sixth, the protection order breach required recognition, particularly when allof the offending was committed while the appellant was on bail for breaching thesame protection order.[13] This leaves Mr Prentice's remaining submission in relation to the uplift forthe appellant's previous offending. Everyone at sentencing laboured under themisapprehension two of the appellant's convictions anteceded the index offending:possession of a syringe and possession of utensils in connection withmethamphetamine. In fact, both offences were committed in 2016.[14] Other previous convictions can be identified: the appellant possessed both methamphetamine and utensils in 2013, and cannabis in 2011. And, the appellant was convicted of breaching a protection order in 2013. However, as I observed toMs Needham at the hearing, there is an element of "scratching around" inassembling a set of previous convictions to justify an uplift when the combination was not relied on at first instance, and in any event, of questionable seriousness to4 Slape v R, above n 2, at [3].5 At [13].justify one. Care must be taken so as not to punish a defendant twice. So, I aminclined to accept Mr Prentice's second submission.[15] However, a sentence appeal is ultimately concerned with outcome, not process. Decisively, the sentence is not manifestly excessive. The appellant was the beneficiary of a three-month deduction for trial concessions which reduced the time of trial from five days (perhaps six) to three days. A deduction of this nature was open to the Judge by virtue of s 9(2)(fa) of the Sentencing Act 2002, a provision enacted to complement the reforms effected by the Criminal Procedure Act 2011. But at this level it was generous. The point can be illustrated this way.[16] If the appellant had pleaded guilty promptly, he would have been eligible for a discount of not more than 25 percent (depending on the strength of the Crown case and the other factors identified by the Supreme Court in Hessell v R).6 If the overall starting point had been five years, the maximum discount would have been one year and three months. Given the complexion of the Crown case, a lower discount was likely, say, a year. The appellant was charged on 25 March 2015. He was tried in mid-October 2016, so, 18 months later. Multiple appearances were required to that point, with associated cost. And, while the trial concessions were sensible, a tactical element is likely to have been at play. Most defendants do not contest a firearm is a firearm as defined by the Arms Act, nor contest continuity of exhibits.[17] To recapitulate, while the uplift for the appellant's previous offending wasquestionable, the appellant received a significant discount for shortening the trial by two days after his case had been in the system for 18 months. The sentence is not manifestly excessive.[18] The appeal is dismissed...Downs J6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.Appendix A: Table of casesCase Charges SentencestartingpointUplift forfirearmschargesAdditionalupliftsFinalsentenceR v Coe[2012] NZHC 3242Possession ofcannabis forsupply; unlawfulpossession offirearm2 years'imprisonment4 months 6 months: forpreviousdrugs andfirearmscharges2 years,1 month'imprisonmentR v Harvey[2013] NZHC 2425Possession ofcannabis for sale;cultivation ofcannabis;producing cannabisoil; unlawfulpossession of afirearm; unlawfulpossession ofammunition2 years,4 months'imprisonment6 months: forremainingcharges.4 months forpreviousconvictions/offendingwhile subjectto sentence2 years,6 months'imprisonmentR v Ngatai[2014] NZHC 186Possession ofcannabis forsupply; unlawfulpossession of ashotgun andammunition2 years,3 months'imprisonment6 months 6 months: forpreviousoffending2 years,3 months'imprisonmentCrutchley v R[2015] NZCA 473Possession ofcannabis forsupply; unlawfulpossession of apistol2 ½ years'imprisonment6 months 4 years'imprisonmentR v Crawford-Flett[2012] NZHC 2273Possession ofcannabis forsupply; cultivatingcannabis; unlawfulpossession of afirearm3 years,3 months'imprisonment6 months: forfirearmscharge andpreviouscultivationcharge2 years'imprisonmentCase Charges SentencestartingpointUplift forfirearmschargesAdditionalupliftsFinalsentenceR v StockHC AucklandCRI-2010-004-1726211 February 2011Manufacturingmethamphetamine;possession ofmethamphetaminefor supply;possession ofprecursorsubstances (x 2);possession ofequipment (x 6);possession ofcannabis forsupply; unlawfulpossession of ashotgun8 years,6 months'imprisonment6 months: toreflectpreviousconvictionsand forfirearmsoffence6 years,7 months'imprisonmentSlape v R[2015] NZHC 2637Cultivation ofcannabis;possession ofutensils; possessionofmethamphetamine;unlawfulpossession offirearms, pistolsand ammunition2 ½ yearsimprisonment8 months 2 years,1 month'imprisonmentHereaka v R[2011] NZCA 429Cultivation ofcannabis (x 3);manufacturingcannabis resin;receiving (x 7),theft of electricity;unlawfulpossession offirearm3 years,3 months'imprisonment8 months: toreflectreceiving andfirearmscharges.3 years,5 months'imprisonmentCase Charges SentencestartingpointUplift forfirearmschargesAdditionalupliftsFinalsentenceR v Bright[2013] NZHC 582Cultivatingcannabis;possession ofequipment andmaterials; theft ofelectricity; unlawfulpossession offirearm; unlawfulpossession ofammunition3 years,3 months'imprisonment9 months: fortotality ofremainingcharges17 months'imprisonmentR v McLean[2009] NZCA 465Importing cannabisseeds (x 2);cultivatingcannabis;possession ofequipment/precursorsubstances (x 3);unlawful possessionof a pistol3 years'imprisonment12 months 6 months 4 years'imprisonment