R v Hill [2008] NZCA 41, 29 February 2008

Sentencing for methamphetamine supply is structured into bands. Band 1 is for 'low level supply of less than 5 grams' with a starting point of 2-4 years' imprisonment. Band 2 is for 'supply of commercial quantities of five grams to 250 grams' with a starting point of 3-9 years' imprisonment.

“[13] ...Band 1, which the Court of Appeal describes as “low level supply of less than 5 grams”, draws a starting point of between two and four years’ imprisonment. Band 2, which is the supply of commercial quantities of five grams to 250 grams, draws a starting point of three to nine years’ imprisonment...”

The Sentencing Amendment Act 2007 empowers Judges to impose home detention as a standalone sentence with a maximum length of 12 months.

“[16] The difficulty here really relates to the coming into force of the Sentencing Amendment Act 2007. Section 80A empowers Judges to impose a sentence of home detention as a sentence in itself, not as a matter of leave from the Parole Board. The difficulty, though, is that Parliament has said the maximum length of home detention that can be imposed is 12 months.”

A court can only impose home detention under s 15A of the Sentencing Act 2002 if less restrictive sentences are insufficient and it would otherwise impose a 'short-term sentence of imprisonment'.

“[21] Section 15A sets out the circumstances in which a Court may impose a sentence of home detention. It provides: ... (1) If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if — (a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and (b) the court would otherwise sentence the offender to a short-term sentence of imprisonment.”

A 'short-term sentence' is defined under s 4(1) of the Parole Act 2002 as a determinate sentence of 24 months or less.

“[22] The words “short-term sentence” in s 15A(1)(b) are defined in s 4. They have the same meaning as in s 4(1) of the Parole Act 2002. Relevantly, s 4(1) of the Parole Act defines “short-term sentence” to include “a determinate sentence of 24 months or less …”.”

For offences committed before 1 October 2007, the transitional provision s 57 of the Sentencing Amendment Act 2007 governs the imposition of home detention, and this power is not limited to cases where a 'short-term sentence of imprisonment' would otherwise have been imposed.

“[28] In contrast to the position under s 15A, a court’s power to sentence to home detention under s 57 is not limited to cases where a “short-term sentence of imprisonment” (currently two years or less) would otherwise have been imposed. Rather, it depends simply on the existence of a power to imprison (s 57(a)).”

There is a statutory presumption of imprisonment for the offence of possessing a Class A controlled drug for the purpose of supply.

“[38] ...the presumption of imprisonment created by s 6(4) of the Misuse of Drugs Act must not be overlooked. That presumption reflects the seriousness with which Parliament views drug offending and the weight it gives to factors such as denunciation, accountability and deterrence in this context.”

Sentences should not be artificially 'tailored' to fit within the home detention eligibility criteria.

“[35] ...this Court has said previously that sentences should not be artificially “tailored” to enable offenders to have the benefit of the home detention option (R v Sipa and Edwards CA390/05 7 December 2005 at [24]).”

Home detention is unlikely to be appropriate for an offender dealing drugs from their home.

“[41] ...it is now well established that home detention is unlikely to be granted where a person is convicted of dealing in a drug from his or her home – see, for example, R v Paki CA165/05 5 September 2005 at [6].”