G v Police HC Christchurch CRI 2008 409 212

[2008] NZHC 2080

This case has been anonymized

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008 409 212

G

Appellant

v

POLICE

Respondent

Hearing:         18 December 2008

Appearances: W Kerr for Appellant

K J Beaton for Respondent

Judgment:      18 December 2008

ORAL JUDGMENT OF CHISHOLM J

[1]      The appellant pleaded guilty to possession, supplying and offering to supply LSD and to possession, selling and offering to sell cannabis.   In total he was sentenced  to  two  years  imprisonment  and  the  Judge  declined  to  order  home detention.  This is an appeal against the refusal to grant home detention.

[2]      The  appellant  came  to  attention  during  a  police  operation  codenamed Operation Dove.  As to his involvement with the class A drug, text messages referred to the supply of LSD.   One message indicated that 10 tablets had been supplied. Other text messages offered to supply LSD “$10 cheaper than normal”.  When a

search warrant was executed at the appellant’s home the police discovered 18 LSD

G V POLICE HC CHCH CRI 2008 409 212  18 December 2008

tablets.  He was also found to have cash of $600 in his front pocket.  Other cash was also located.

[3]      As to the charges relating to cannabis, 125 text messages (74 in a row) between 7 February and 27 February 2008 offered to supply cannabis.   When his premises were searched substantial quantities of cannabis were found.  It seems that the quantity was in excess of 300 grams although Mr Kerr emphasised that only a portion was useable.

[4]      At the time of his arrest the appellant was 19 years of age, with no previous convictions.  He was a student.  Apart from indicating that he had little insight into the offending, the probation officer’s report was favourable.  The probation officer was of the view that the risk of re-offending was low and home detention was recommended.

[5]      Prior  to  sentencing  the  appellant  the  Judge  had  sentenced  two  of  the appellant’s co-offenders, Mr Ranger and Mr Rock.  Mr Ranger, who was 19 years of age, was sentenced to three years imprisonment and Mr Rock, who was 18 years of age, was sentenced to two and a half years imprisonment.   While accepting that nothing would be achieved by embarking on a detailed analysis, the Judge explained that he had endeavoured to assess appropriate sentences having regard to the need for parity between the appellant and his co-offenders and taking into account general sentencing levels.  He expressed the view that the sentences he was about to impose satisfied the need for parity.

[6]      Having adopted a starting point of four years the Judge gave the appellant credit for his guilty pleas of 16 months, a further four months for his co-operation (which was covered in a letter from the police endorsing the co-operation), and a further four months for his  youth and previous good character.   Given that the resulting sentence of two years imprisonment was within the home detention range, the Judge then turned to that question.  He succinctly stated that having regard to the seriousness of the offending and the need for general deterrence in dealing with drugs, he was not prepared to sentence the appellant to home detention because that would not be a sufficient response to the offending.

[7]      Mr Kerr has advanced detailed and well considered submissions in support of the argument that the Judge incorrectly exercised his discretion:  the appellant is a young man who, as a result of the experience of arrest and the birth of his child shortly before sentencing, has broken ranks with the bad company;   the probation officer considered the risk of re-offending is low;   he has  gone a long way to changing his lifestyle;  he is remorseful and prison is “not the right place” for him; even though the offending was within a home environment R v Hill (High Court, Hamilton Registry, CRI 2007 019 008095, 12 June 2008) has limited application because he has now moved to live with his parents;  too much weight was placed on parity with the co-offenders;  excellent family support (reflected by the presence of a substantial number of family members in Court today) enhances the appellant’s prospects of rehabilitation;  he is currently drug free;  in the process of turning his life around;   if granted home detention his family would impose strict conditions; and he would be able to retain his employment.

[8]      This is, of course, an appeal against the District Court Judge’s exercise of a discretion.  In drug cases appellants have an up hill battle, especially where Class A drugs are involved.   Section 6(4) of the Misuse of Drugs Act 1975 carries a presumption of imprisonment.  To the extent that Mr Kerr relies on R v Cumming (High Court, Hamilton Registry, CRI 2007 019 7501, 20 July 2008) and R v O’Keefe (High Court, Napier Registry, CRI 2008 020 2368, 31 July 2008) it is to be noted: first, they involved the manufacture or conspiracy to manufacture methamphetamine, not dealing in drugs;  and, second, that they reflected sentencings at first instance in the High Court, not appeals against a discretion exercised in the District Court.

[9]      Of particular concern to the sentencing Judge in this case was the extent and ongoing nature of the offending.  More than one drug was involved.  As Ms Beaton said, the offending was serious, and it was obviously so construed by the Judge. Although the letters written by the appellant (which were not available to the sentencing Judge) indicate that the appellant’s detection and conviction have hit home, the sentencing Judge had a wider responsibility.  Apart from considering the appellant’s situation he had to take into account deterrence of others, especially in relation to dealing in Class A drugs.   This obviously weighed heavily with the sentencing Judge.  While it is true that home detention is a stand alone consideration,

the need for deterrence can, and often does, outweigh the offender’s prospects of rehabilitation.

[10]     Mr Kerr argued that the Judge was unduly influenced by the issue of parity. In response Ms Beaton argued that that did not enter into the decision to decline home detention.  On my reading of the judgment issues of parity did enter into the decision to decline home detention because the Judge said that he was satisfied that the sentences he was about to impose satisfied the need for parity.  But given that the ages of all the offenders were similar and they were involved together, I do not see any error in the Judge’s approach to parity.

[11]     All of this means that, despite Mr Kerr’s excellent argument in support of the appeal, this is not a case where I can or should interfere with the discretion exercised by the Judge.  The appeal must accordingly be dismissed.  While I can appreciate that this brings dismay to the family, I am afraid that this is often the result when people become involved in dealing drugs, especially Class A drugs.

Solicitors:         W Kerr, Christchurch

Crown Solicitor, Christchurch