WALTERS v NZ POLICE [2021] NZHC 63

WALTERS v NZ POLICE [2021] NZHC 63 [3 February 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000154[2021] NZHC 63BETWEEN SHANE WILLIAM WALTERSAppellantAND NEW ZEALAND POLICERespondentHearing: 1 February 2020Appearances: E Nicol for AppellantP Brown for RespondentJudgment: 3 February 2021JUDGMENT OF GENDALL JThis judgment was delivered by me on 3 February 2021 at 2 p.m. pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The appellant, Mr Walters was charged with, and pleaded guilty to, charges ofcultivation of cannabis1 and possession of drug utensils.2 He was sentenced by JudgeCouch in the District Court to 90 hours' community work.3 He appeals this sentenceon the ground that it was manifestly excessive and he maintains the penalty shouldhave been a fine.Facts[2] On 19 August 2020 Police attended an unrelated incident involving a vehicleon Innes Road, Christchurch. Police spoke to Mr Walters and three other occupantsat the address. While speaking with them a strong scent of cannabis was detected.[3] Police invoked a warrantless search of the property and the occupants fordrugs. While searching the property they located a growing tent containing 11 juvenilecannabis plants ranging in size4 and five cannabis seedling plants. Police seizedseveral utensils used for cannabis consumption and what is described as a cannabisgrinder.District Court decision[4] Mr Walters' counsel before the District Court submitted a fine was anappropriate penalty. In response to that submission the notes of evidence record thatJudge Couch stated:It won't be a fine I think it is beyond the scope of that. It's certainly towardsthe lower end of the scale, but we're dealing with a charge with a maximumpenalty of eight years' imprisonment. Even the lower end of the scale is, inmost cases, past a fine.1 Misuse of Drugs Act 1975, s 9(1).2 Sections 13(1)(a) and 13(3).3 Police v Walters [2020] NZDC 24831.4 Ranging from 680mm to 800mm.[5] The notes of evidence record the Judge went on to enquire as to whetherMr Walters had the ability to pay a fine. He was then convicted and sentenced asfollows:5[1] Mr Walters, on these two charges you will be convicted. You aresentenced to 90 hours' community work.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.6 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".7 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.8SubmissionsAppellant's submissions[7] Ms Nicol, on behalf of Mr Walters, submits Judge Couch failed to adequatelyconsider whether the offending could have been dealt with by way of a fine. She notesthat following the warrantless search, Mr Walters told police the cannabis was forpersonal use only. In her submission, this suggestion was accepted by police.[8] In mitigation, Ms Nicol submits Mr Walters was entitled to a full guilty pleadiscount. She notes Mr Walters has a conviction for like offending which is of somevintage, being about 30 years old. He has not been before the courts in the past sixyears.5 Police v Walters, above n 3.6 Criminal Procedure Act 2011, ss 250(2) and 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].8 Ripia v R [2011] NZCA 101 at [15].[9] She says Mr Walters has no outstanding court fines and would be able to pay afine imposed as part of an attachment order to his jobseekers benefit.[10] Ms Nicol goes on to refer the Court to s 13 of the Sentencing Act whichprovides that where a Court is lawfully entitled to impose a fine, there is a presumptionin favour of that sentence unless the Court is satisfied that the purposes for which thesentence is being imposed cannot be achieved by imposing a fine, or that any otherprinciples of sentencing make a fine inappropriate. She also notes, quite properly, thatthe court is required to impose the least restrictive sentence outcome that is appropriatein the circumstances.9[11] Helpfully, Ms Nicol refers to case authorities in support of her submission thatthe least restrictive outcome in the circumstances here may be a fine. These cases areaddressed in my analysis.Respondent's submissions[12] Ms Brown, for the respondent, contends that Judge Couch adequatelyconsidered whether a fine was an appropriate response and exercised his sentencingdiscretion to impose a sentence of community work instead. In Ms Brown'ssubmission this sentence was within range and cannot be described as manifestlyexcessive.[13] Before me, Ms Brown made a number of acknowledgements. First, sheaccepted the offending falls into category 1 of R v Terewi.10 Secondly, that thecannabis here was for personal use. Thirdly, that Mr Walters' earlier conviction forcannabis is significantly aged (1988) and did not warrant an uplift, and lastly that heentered a guilty plea here at the earliest opportunity.[14] Ms Brown argued however that, even if a fine would be appropriate inaccordance with s 13 of the Sentencing Act, the court may decide not to impose one ifsatisfied that the offender does not have the means to pay it.119 Sentencing Act 2002, s 8(g).10 R v Terewi [1999] 3 NZLR 62 (CA).11 Sentencing Act, s 14.[15] As I have noted, Ms Nicol had referred to a number of authorities involvingwhat were said to be similar levels of offending. In response, Ms Brown submittedthat, while these were finely balanced in many ways, the authorities referred to couldbe distinguished from the present circumstances.Analysis[16] The Court is to be guided by the purposes and principles contained in theSentencing Act. The sentence imposed must denounce Mr Walters conduct,12 anddeter him and others from committing the same or similar offences.13 The Court musttake into account the gravity of the offending, including the degree of culpability,14 theseriousness of the type of offence in comparison to like offending15 and impose theleast restrictive outcome that is appropriate in the circumstances.16[17] It is common ground that Mr Walters' offending falls within category 1 of theguideline judgment of R v Terewi:17Category 1 consists of the growing of a small number of cannabis plants forpersonal use by the offender without any sale to another party occurring orbeing intended. Offending in this category is almost invariably dealt with bya fine or other non-custodial sentence. Where there have been supplies toothers on a non-commercial basis the monetary penalty will be greater and inmore serious cases or for persistent offending a term of periodic detention oreven a short prison term may be merited.[18] In Marshall v Police, police located 11 cannabis plants at the appellants addressalong with grow tents, lights, extractor fans and ducting.18 A sentence of 100 hours'community work was imposed. Mander J was cognisant of the discretion available tothe sentencing court. However, in light of comparable authorities and the guideline inTerewi, he found the sentence of community work was not the least restrictive outcomeappropriate in the circumstances. The sentence of community work was quashed anda fine of $2,000 imposed.1912 Sentencing Act, s 7(1)(e).13 Section 7(1)(f).14 Section 8(a).15 Section 8(b).16 Section 8(g).17 R v Terewi, above n 10, at [4].18 Marshall v Police [2019] NZHC 2304.19 At [18].[19] In Riches v Police, six mature cannabis plants and two smaller plants werelocated in a garage that was fitted with lamps, heating and ventilation.20 Nation Jcommented:21I agree with Faire J that a fine is ordinarily capable of achieving the necessarydegree of deterrence and denunciation in a situation where a defendant ischarged with cultivating plants for his own personal use. The imposition of afine at the appropriate level means his cannabis use has been at a real cost. Inaddition, the fact of conviction represents a significant penalty itself.Conviction for a cannabis-related offence may have continuing consequenceswith regard to international travel and all the situations such as arranginginsurance or seeking employment where disclosure of criminal convictionsmay be required.[20] The sentence of four months' community detention was quashed and theappellant fined $1,700 and sentenced to 12 months' supervision.22[21] In Parker v Police 10 mature cannabis plants and 15 seedlings were locatedalong with 625 g dried cannabis plant material.23 On appeal, Mallon J noted thesophisticated nature of the cultivation was consistent with the appellants heavy dailyuse of the drug.24 The appellant was in paid employment and much detail had beengiven as to his ability to pay a fine, factors which clearly distinguish this case from thepresent. The sentence of 150 hours of community work was quashed and a fine of$2,000 imposed.Discussion[22] R v Terewi was decided prior to the Sentencing Act. The Act contains astatutory presumption in favour of a fine, stating a fine must be imposed as theappropriate sentence unless the court is satisfied that the purpose for which the fine isbeing imposed cannot be achieved, or the principles of sentencing make a fineinappropriate.[23] Mr Walters admitted to police that the cannabis was for his personal use only.There was no evidence that the plants located were part of a commercial operation. In20 Riches v Police [2017] NZHC 2035.21 At [28], referring to the decision of Faire J in Leaupepe v Police [2016] NZHC 76.22 At [39].23 Parker v Police HC Wellington CRI-2007-485-150, 27 February 2008.24 At [13].my view, and consistent with other decisions of this Court, 11 juvenile plants and fiveseedling plants constitutes a small cannabis grow.25[24] Mr Walters is entitled to the benefit of a full guilty plea discount for his earlyguilty pleas. His criminal history records only one conviction for similar offending,from 1988. He has several convictions for driving with excess breath alcohol, all ofsome vintage. Mr Walters has not been before the court for over six years.[25] The notes of evidence record the District Court Judge considered a fine wouldbe inadequate for the seriousness of the offending. His Honour noted that, while theoffending was "towards the lower end of the scale", the penalty would be more than afine. The Judge then went on to enquire as to Mr Walters ability to pay a fine. Thenotes of evidence record the following discussion:Q. Well, does Mr Walters have savings that he can pay a fineimmediately?A. He does not have any outstanding –Q. He is shaking his head.A. He does not have any outstanding court fines. He does not have anysavings. However, he is currently on the Jobseeker's benefit. He tellsme he is a chef by trade and he hopes to obtain employment over thesummer hospitality season.Q. Well, he should be able to get a decent job. Well, he's got time on hishands at the moment.[26] Section 14 of the Sentencing Act provides:(1) Even if it would be appropriate in accordance with section 13 toimpose a fine, a court may nevertheless decide not to impose a fine ifit is satisfied that the offender does not or will not have the means topay it.[27] The discussion above shows Judge Couch sought clarification on Mr Walters'ability to pay a fine. Having determined that Mr Walters did not have a job and wason a benefit, it appears the Judge concluded that Mr Walters, therefore, did not havethe means to pay a fine.25 See Blandford v Police [2019] NZHC 3112 at [16].[28] Having considered the comparable cases and the guideline authorityR v Terewi,26 I am satisfied that a fine would have been an adequate sentence inresponse to the offending. This penalty is the least restrictive sentence available andachieves the purposes of denouncing the conduct and deterring others fromcommitting similar offending.[29] I am not satisfied that the District Court Judge adequately consideredMr Walters inability to pay a fine, pursuant to s 14 of the Sentencing Act. The notesof evidence reveal that the Judge was informed that Mr Walters had no outstandingfines, no savings and no employment. However, he was currently on a benefit andhoped to gain employment in the summer as a chef.[30] The inability to pay a fine must be properly established. In this case, theevidence was that Mr Walters had a jobseeker benefit. If a court is uncertain about anoffender's ability to pay a fine, the court may direct that the offender make adeclaration as to their financial capacity in accordance with s 42 of the Act.27 This didnot occur here. Alternatively, the court may impose a fine without further inquiry if,in all the circumstances the court considers that a declaration is unnecessary.28[31] Here, Ms Nicol states that Mr Walters has instructed he can pay a fine by wayof instalment. And, in my view, there was material available to establish thatMr Walters who was receiving a Jobseekers benefit and was wanting to obtainemployment could pay a fine by way of instalments rather than in one sumimmediately through savings.[32] Accordingly, I find the Judge erred and the end sentence was manifestlyexcessive.Conclusion[33] The appeal is allowed.26 R v Terewi, above n 10.27 Sentencing Act, s 41. See also, s 42.28 Section 41(3)(b).[34] The sentence of 90 hours' community work is quashed. In its place, a fine of$1,700 is imposed. If Mr Walters is unable to pay the fine in full immediately it is tobe paid by instalments of $20 per week (reviewable on application to Corrections)....................................................Gendall JSolicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co, Christchurch