Police v Bevins
[2013] NZHC 2066
•14 August 2013
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2013-054-1651 [2013] NZHC 2066
NEW ZEALAND POLICE
v
DEAN REX BEVINS
Hearing: 14 August 2013
Appearances: B D Vanderkolk for the Police
M B Ryan for the prisoner
Sentence: 14 August 2013
SENTENCING NOTES OF GODDARD J
[1] Mr Bevins, you appear for sentence today having entered a plea of guilty to possession of the Class C controlled drug cannabis for the purpose of supply. This is an offence under ss 6(1)(f) and 6(2)(c) of the Misuse of Drugs Act 1975, and is subject to a maximum penalty of eight years’ imprisonment. Your sentencing was removed into the High Court because Judge Lynch in the District Court rightly considered that the maximum penalty of 12 months’ imprisonment available in the District Court was inadequate to mark your offending.
[2] I need also at the outset to state that a sentence of home detention is not available to you and remind you of what Judge Lynch said about that when declining jurisdiction to sentence you:1
I turn to this issue of jurisdiction. It is plain that this is serious commercial offending. Mr Bevins was found with 123 separate cannabis tinnies and a
1 Police v Bevins DC Palmerston North CRI-2013-054-001651, 23 July 2013 at [9]-[11].
POLICE v BEVINS [2013] NZHC 2066 [14 August 2013]
significant amount of cash located by the drug dog. It seems plain that Mr Bevins is at risk of a significantly greater sentence than one of two years and accordingly it is appropriate and proper in my assessment to decline jurisdiction which I do.
The ultimate sentence to be imposed on Mr Bevins is however, for the High Court and it would not be right for me to restrict the High Court in what it sentences Mr Bevins to, by not directing a home detention appendix.
Out of an abundance of caution I will direct a home detention appendix to be prepared, but Mr Bevins should not think for a moment that my directing that appendix is any indication of end sentence, rather I am doing it out of an abundance of caution.
Introduction and background
[3] The background to your offending is that on 31 May 2013, the police executed a search warrant at your address. The police search revealed:
(a) 4.9 grams of cannabis and $335 in the bedroom;
(b)$19,000 in $20, $50 and $100 notes hidden in two envelopes behind a light fitting in the hallway;
(c) $4,100 inside a plastic envelope hidden in a sofa; (d) two cellphones and a sim card; and
(e) 123 tinnies totalling 114.83 grams in 7 ziplock bags. These bags had been placed inside a black carry bag and hidden inside a piano in the garage.
[4] After the police raid, you admitted possession of the cannabis but said it was for friends and family to use and not for sale. You denied any knowledge of the
$4,100 found in the sofa and you claimed that the cash recovered from the light fixture was from the sale of a car two years ago to a person who is now deceased.
Personal circumstances
[5] You are 48 years old currently in receipt of the unemployment benefit because you have issues with debilitating arthritis. You have been in a stable
relationship for approximately ten years and your partner, who is present in Court, speaks very positively of this relationship. She has expressed her willingness to support you in any community rehabilitation. Unfortunately, as I have said and as Judge Lynch strongly indicated, a community based sentence is not available to you.
[6] You have a long history of offending and you have served imprisonment. Your convictions span a wide range of offending including three cannabis related convictions which I will refer to again, driving convictions, burglary, theft, trespass, receiving, male assaults female, fraud and possession of an offensive weapon.
[7] The probation officer assesses your risk of reoffending as medium risk on account of your previous drug offending. The report notes that you are remorseful in the sense of showing awareness that the consequence of your offending is likely to be a term of imprisonment and of the impact that will have on your family and in particular on your partner. You have expressed your willingness to undertake a rehabilitative programme if released into the community.
Purposes and principles of sentencing
[8] I am required to consider the purposes and principles of sentencing provided by the Sentencing Act. In particular ss 7 and 8. Section 7 requires me to have regard to the need to hold you accountable for the harm that flows from this type of offending, and the need to promote a sense of responsibility in you, and acknowledgement of that harm. The principles of denunciation and deterrence are important, both personal and in relation to sending a message to others. I am also required to take into account the need to assist in your rehabilitation and reintegration into society in due course to the extent that can be done.
[9] Section 8 requires me to take into account the gravity of your offending, including your degree of culpability, the seriousness of your offences by comparison with other types of offending as indicated by the maximum penalty, and the general desirability of consistency with similar sentencing decisions. I need to consider the least restrictive outcome appropriate to your circumstances and take into account your personal circumstances.
Starting point
[10] The guideline judgment for cannabis offending is R v Terewi.2 That case involved cannabis cultivation but is equally applicable to cases of possession for supply.3 Category two encompasses possession of cannabis for a commercial purpose. Any commercial element, no matter how small, will attract a starting point of two to four years’ imprisonment except in truly exceptional circumstances. Your counsel accepts the Crown’s submission that your offending falls within band two. In my view, it is towards the lower end of the band, based on the amount of cannabis found and the way it was packaged and the amount of cash seized at the address. However, for the reasons I have discussed with the Crown, the cash while found in conjunction with the cannabis (and I note by a drug dog) will not be the subject of forfeiture. There is not sufficient evidence to tie it to the particular offence for which
you are before the Court. Nevertheless, the presence of so much cash does lend colour to the offending for which you are to be sentenced.
[11] The Crown has submitted that a starting point of between two and a half and three years’ imprisonment is appropriate, citing the cases of: 4
(a) R v Duncan: 1.26 kilograms of cannabis and $10,500 in cash. The Court of Appeal held that the starting point of three years adopted by the sentencing Judge was within the range available.
(b)R v Lambess: 784 grams of cannabis and $2050 in cash. Starting point of two years and six months.
(c) Codlin v R: security monitor camera, notebooks containing “tick lists”, $1,970 in cash and 32.3 grams of cannabis. The sentencing Judge imposed a starting point of two years and nine months imprisonment for L, the main offender, and two years three months
for Codlin.
2 R v Terewi [1999] 3 NZLR 62 (CA).
3 R v Andrews [2000] 2 NZLR 205 (CA).
4 R v Duncan [2009] NZCA 18; R v Lambess [2012] NZHC 97; Codlin v R [2012] NZCA 71.
[12] Mr Ryan on your behalf has submitted that a starting point of not more than two years’ and six months’ is appropriate citing the following cases in which a starting point of two years’ and six months’ imprisonment was adopted:5
(a) R v Mamanu: 110 grams cannabis and $2,541.50 in cash.
(b)R v Paewhenua: approximately 70 grams of cannabis and $2,780.00 in cash.
(c) R v A’A: 88.3 grams of cannabis and $39,722.50 in cash.
[13] I intend to adopt the starting point of two years’ and six months’
imprisonment as appropriate in your case.
Personal factors
Aggravating factors
[14] I turn to the aggravating factors personal to you. As I have adverted to, you have quite a lengthy criminal history. I do however take into account that much of this offending occurred before 2000. Three of your previous convictions are for drug-related offending. Whilst one of those offences occurred in 1993, you also received a sentence of one year ’s imprisonment for possession of cannabis for supply in 2006 and a sentence of 120 hours’ community work for possession of cannabis in 2009. Of these, the conviction for possession of cannabis for supply is the most significant. In my view, an uplift of three months is appropriate to recognise your previous criminal history.
Mitigating factors
[15] I turn now to consider mitigating factors personal to you. The probation officer noted that you display remorse, in that you are aware your offending is likely to result in imprisonment and this will impact on your family and your partner. You
also told the probation officer that you are motivated to stop selling cannabis.
5 R v Mamanu HC Auckland CRI-2008-090-4226, 18 November 2008; R v Paewhenua HC Hamilton CRI-2008-019-9546, 20 February 2009; R v A’A HC Auckland CRI-2010-092-9128,
8 October 2010.
[16] Against that is the fact that you deny knowledge of the cash found in the sofa and claim that the money found in the light fixture is from the sale of a car two years ago. That money, as I have said, is a matter that cannot really be taken any further in terms of forfeiture but its presence is noted.
[17] Your comments to the probation officer appear to focus on the impact of your offending on yourself and your immediate family, rather than demonstrating an awareness of the effect of your cannabis offending on the community at large.
[18] On the other hand, I accept that you were faced with difficult financial circumstances that contributed to your motivation to offend. A modest discount of one month is appropriate to reflect what remorse you have shown. This brings your sentence to two years’ and eight months’ imprisonment.
Guilty plea
[19] There is one other important mitigating factor and that is your early guilty plea. I accept that a discount of 25 per cent is appropriate to recognise that. This brings your sentence to two years’ imprisonment.
Final sentence
[20] I have considered the probation officer’s recommendation that you receive a sentence of community detention, community work and intensive supervision. I also note that you have previously been subject to such a sentence and your compliance was excellent. However, in the circumstances, a community-based sentence is not appropriate.
[21] I accept the Crown submission that an end sentence of imprisonment is required to satisfy the principles of denunciation and deterrence given the commercial nature of this offending and your previous drug convictions; in particular, your previous conviction for possession of cannabis for the purpose of supply. In addition at least part of your offending occurred in the home, a further factor militating against home detention.
Orders
[22] The Crown has sought forfeiture of the drugs and cash found at your property. There is no objection on your behalf to forfeiture of the drugs and I make an order accordingly.
[23] In relation to the cash found at your house, there is not sufficient evidence in my view to link that cash with the offending for which you now appear in this Court.
[24] That brings me to the end sentence, Mr Bevins would you stand please.
Sentence
[25] On the charge of possession of cannabis for the purpose of supply you are
sentenced to two years’ imprisonment. You may stand down.
Other conditions
[26] The following conditions will apply to Mr Bevins following his release from imprisonment. He is:
(a) to attend an assessment for a Departmental Rehabilitative Programme and if found suitable to attend and complete the programme to the satisfaction of the Probation officer and the Programme provider, subject to Programme availability;
(b)to attend a maintenance Programme on the completion of a departmental programme to the satisfaction and as directed by the Probation officer.
(c) to attend an alcohol and other drug assessment and attend and complete any treatment/counselling, including residential treatment programmes, as recommended by the assessment to the satisfaction of the Probation Officer and Treatment Provider.
“Goddard J”
Solicitors:
Crown Solicitor, Palmerston North for the Police. M B Ryan, Palmerston North for the prisoner.
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