IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-470-31 [2013] NZHC 2706

BETWEEN	DALE EDWARD ROBERTS Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	17 October 2013	

Counsel:	
D McWilliam for Appellant
JJ Rhodes for Respondent	

Judgment:	
17 October 2013	

JUDGMENT OF BREWER J

Solicitors:	Public Defence Service (Tauranga) for Appellant
Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

ROBERTS v POLICE [2013] NZHC 2706 [17 October 2013]

[1]       Mr Roberts appeals his sentence of 15 months’ imprisonment handed down against him in the District Court at Tauranga on 1 October 2013 by Judge JP Geoghegan.   The appellant appeared on that day for sentence on three charges. These were one charge of possession of precursor substances with the intention of producing or manufacturing methamphetamine; one charge of unlawful possession of a pistol; and one charge of possession of methamphetamine. The lead charge was the first since the maximum term of imprisonment is five years.

[2]       The appeal is brought on the basis that the sentence of imprisonment should have been commuted to a sentence of home detention. Mr McWilliam, appearing for the appellant, appreciates that this is an appeal against the exercise of a discretion. Therefore, it is not a matter of me substituting my view of an appropriate outcome for that of the District Court Judge.  I cannot disturb the judgment unless I conclude that the District Court Judge took into account a matter he was not entitled to take into account, failed to take into account a matter he should have taken into account, made an error of law or was otherwise plainly wrong in his decision.

[3]       Mr McWilliam advances the appeal on the basis that the learned District Court Judge failed to take into account matters which he should have taken into account.  Before turning to Mr McWilliams’s submissions, I will set out the salient facts in relation to the offending and to the offender.

[4]       The Police executed a search warrant at the appellant’s home.  They found the pistol in the kitchen pantry.  The pistol is not a firearm.   It is an electric stun device in the shape of a torch.  In a downstairs bedroom was found a ziplock bag containing 0.1 grams of methamphetamine.  Two further ziplock bags were found containing  what  is  described  as  a  usable  amount  of  methamphetamine.    The precursor materials found consisted of iodine flakes in a small plastic pill bottle and another bottle containing approximately 10 millilitres of hydrophosphorous acid.

[5]       The appellant is a mature man of 50 years.  He has had a lifelong exposure to drugs.   He is addicted to methamphetamine.  The District Court Judge had before him an alcohol and drug assessment report dated 30 August 2012 which sets out the appellant’s history.

[6]       The appellant has a criminal record.   It is not an extensive one.   His only relevant convictions relating to drugs are for offences which took place in September
2000 and on which he was sentenced in August 2002.  Those charges were selling cannabis plant, cultivating cannabis and conspiring to supply a Class B drug.  The charge of selling cannabis plant was the lead offence and attracted a sentence of two years and four months’ imprisonment.

[7]       The pre-sentence report recommended imprisonment.  This was because the appellant displayed no remorse in relation to his offending and tried to justify his actions to the compiler of the report.  The option of home detention was considered but discarded because of concerns that the appellant would not be able to remain drug free given his long addiction and unhelpful attitude.  The pre-sentence report acknowledged that there was  an address suitable for home detention.   It is the address of the appellant’s ex partner and their two children.  The Police had no objections to the address.   The report noted that Child Youth & Family “have indicated some minor concerns”.  However, no safety concerns were identified.

[8]       It is clear from Judge Geoghegan’s sentencing notes that he had two principal concerns relating to the appellant.  The first was his lack of remorse and his attempt to justify his actions.  The District Court Judge took that to indicate that either the appellant did not have an appreciation of the seriousness of his offending or simply did not care.  He noted that this could also be an indication of the appellant’s addiction to methamphetamine.

[9]       Having referred himself to the matters canvassed in the pre-sentence report and in the drug and alcohol assessment, the Judge said this on the matter of home detention:1

I  then  need  to  turn  to  the  issue  of  home  detention  and  whether  home detention should be granted.  As to that issue, I simply say this.  The community is rightly concerned over the proliferation of methamphetamine and its disastrous effects on those who use it and on the community, which then has to pick up the pieces.  That concern is amplified where firearms are present.  I consider that there is a clear need for a deterrent message to be sent to those who are involved in the intended manufacture of methamphetamine. Whether it be for their own use or for other purposes and

1	Police v Roberts DC Tauranga CRI-2013-070-2997, 1 October 2013, at [17].

those who possess firearms, all of that taking place in the very community in which they now wish to remain.  Quite apart from that, I consider that the concerns expressed in the pre-sentence report regarding the appropriateness of the intended address have some force.  For those reasons I decline to grant you home detention.

[10]     Against  that  background,  Mr  McWilliam submits that  the  District Court Judge erred in the following ways.   First, by placing insufficient weight on the appellant’s rehabilitation in the context of him being a long-term drug addict who had self-referred and attended five drug counselling sessions as at the date of sentencing.

[11]     The point is that there is a requirement to impose by way of sentence the least restrictive sentence that will answer the offending.  Deterrence is a purpose which the Judge is entitled to take into account.   But so too is rehabilitation and reintegration.  Here there is a mature man who has begun to take steps needed to rehabilitate himself.  The conclusion of the drug and alcohol assessment is that the appellant meets the criteria for methamphetamine dependence and is motivated in seeking help:  “He has a supportive partner who cares for their two children.  He has been methamphetamine free for four weeks now.  He has an impending Court case. He is willing to undertake counselling and support.”   The recommendation in the report, albeit based on the information that the appellant had given, was guided by a conclusion that he is motivated to address his methamphetamine use.   The strong recommendation was of continued counselling and support.

[12]     Mr  McWilliam’s  second  point  is  that  the  District  Court  Judge  placed insufficient weight on the elapsed time between the current offending and the previous offending.  The current offending is different in kind in that there is no suggestion of drug dealing.   The amount of methamphetamine possessed and the very small amount of precursor substances points to personal use only. The previous offending was more than a decade ago.

[13]     The third point is that the District Court Judge placed excessive weight on the unlawful possession of the pistol in the overall context of the charges and the facts. The District Court Judge referred to the pistol repeatedly as a firearm.   It is not.

Further, there was no suggestion that its possession was in any way related to the possession of the methamphetamine and precursor substances.

[14]     The fourth point is that the District Court Judge placed excessive weight on the sentencing principle of protecting the public.  In Mr McWilliam’s submission, he might have done so had this been drug dealing offending.  As it is, the principal person in need of protection from the appellant is the appellant himself.

[15]     Mr McWilliam’s final point is that the District Court Judge placed excessive weight on the suggestion in the pre-sentence report that the address nominated is unsuitable.  The report referred only to minor concerns held by Child Youth & Family, presumably related to the presence of his children.  The Police had no concerns.

[16]     Mr Rhodes for the respondent submits simply that the decision taken by the District Court Judge not to commute the sentence to one of home detention was within his discretion.  He submits that the District Court Judge was entitled to take into account the appellant’s poor attitude towards his offending, the risk that he would be unable to keep himself drug free, and the difficulties associated with the proposed  address.    Further,  the  District  Court  Judge  was  entirely  justified  in regarding general deterrence of possessing precursor substances with the intention of manufacturing methamphetamine as a legitimate sentencing principle.

[17]     Mr Rhodes reminds me that I am not justified in exercising the District Court Judge’s discretion for him.   I can proceed only on the error basis to which I have previously averted.

[18]     I have decided to allow the appeal.  In my view, the learned District Court

Judge failed to take into account the following matters:

(a)       The seriousness of the offending.  The amount of methamphetamine involved was very small.   The amount of precursor substances involved was very small.  This was offending at the lowest end of the scale.

(b)	This was not a case of recidivist offending requiring an immediate and deterrent response.    The  previous  offending took  place  some  12-
13 years in the past.

(c)       The pistol was not a firearm and there was no suggestion that it had any relation to the possession of the methamphetamine and the precursor substances.

(d)	In  focusing on  the  need  for  general  and  personal  deterrence, the District  Court  Judge  did  not  consider  the  possibilities  for rehabilitation.  Nor did he consider whether home detention could adequately account for the need to deter the appellant personally and simultaneously provide the opportunity to attend the rehabilitative programme which he had just begun.  In short, before rejecting home detention  as  an  option,  the  District  Court  Judge  should  have considered the appellant’s picture to a wider extent.

[19]     No issue has been taken with the sentence of 15 months’ imprisonment and, although I consider it to be stern, I will use it as the basis for my assessment of the term of home detention. The appellant has been in custody for just over a fortnight.

[20]     Accordingly, I quash the sentence of imprisonment and I substitute for it a sentence of seven months’ home detention.  That sentence will apply equally to each of the charges. I make the following conditions:

(a)	Upon his release from custody, the appellant will travel directly to

1061 Papamoa Beach Road, Papamoa and await the arrival of a probation officer and security officer.  He will co-operate with the fitting of the home detention monitoring device.

(b)	He  will  reside  at  1061  Papamoa  Beach  Road,  Papamoa  for  the duration of the sentence.

(c)       He is not to purchase, possess or consume alcohol and/or illicit drugs for the duration of the home detention sentence.

(d)	He is to submit himself to random drug testing as and when required by a probation officer.

(e)      He is to undertake such family and/or parental responsibilities as negotiated with and approved by a probation officer.

(f)	He is to report to a probation officer as directed.

(g)	He is to undertake alcohol and other drug assessments and complete any recommended counselling or treatment for abuse of alcohol and other drugs to the satisfaction of the probation officer and programme provider.

(h)	He  is  to  attend  and  complete  such  counselling,  programme  or treatment to address identified offending behaviour as may be directed by the probation officer and to the satisfaction of the probation officer and programme provider.

[21]	I impose the following post-detention condition:

(a)       The   appellant   is   to   undertake   and   complete   any   remaining rehabilitative programme, counselling, treatment and maintenance follow-up programme as directed by the probation officer.

This post-detention condition shall last for a period of no more than six months from the completion of the detention.

Brewer J