Police v Dodd
[2014] NZHC 1074
•20 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2014-090-000388 [2014] NZHC 1074
NEW ZEALAND POLICE
v
BENJAMIN DODD
Hearing: 20 May 2014 Appearances:
M Regan for New Zealand Police
S Cullen for DefendantJudgment:
20 May 2014
SENTENCING NOTES OF ANDREWS J
NEW ZEALAND POLICE v DODD [2014] NZHC 1074 [20 May 2014]
Charges
[1] Mr Dodd you appear for sentencing today having pleaded guilty in the District Court at Auckland on charges of offering to sell class C controlled drugs (ecstasy analogues), selling such class C controlled drugs, and conspiring to sell such class C controlled drugs. Each charge was laid as a representative charge, and the period of offending was between 30 May and 5 November 2011. The District Court declined to sentence you, and transferred your sentencing to this Court.
[2] I record that at the Crown’s request I have allowed the Police to withdraw the charge ending in -1990, which is a charge of participation in an organised criminal group.
[3] You are subject to a maximum penalty of eight years’ imprisonment on the charges of offering to sell and selling, and a maximum of seven years’ imprisonment on the charge of conspiring to sell.
[4] Before I go on, I acknowledge the presence here in Court today of your parents and your fiancée. Mr Dodd, there are many occasions in this Court when a prisoner is sentenced and has no family support. Any person who is here with family support, I have to say, is in a fortunate position, and you are fortunate to have the support of your family.
Relevant facts
[5] I will briefly outline the facts on which you are being sentenced. BZP, TFMP, Methedrone and MDPV are analogues to MDMA/ecstasy mimics. They are classified as class C controlled drugs. In October 2012, the Waitemata Organised Crime Group received text data and intercepted phone conversations relating to yourself and two other people, Mr Reeves and a Mr Reid. The information revealed that you and a fourth person, Mr Rakich, were members of a group which was involved in supplying ecstasy analogues (typically one of BZP, TFMP, Methedrone or MDPV).
[6] Between 30 May 2011 and 5 November 2011, you offered to sell 2,307 class C controlled drugs (ecstasy analogues), you sold 9,955 class C controlled drugs (ecstasy analogues), and you conspired to sell 13,285 class C controlled drugs (ecstasy analogues).
[7] When your home address was searched, Police found a single yellow pill; three tick lists containing names, numbers of pills being supplied and amounts owed by various people; $640 in cash; 20 vials of a clear liquid; and a small container with three purple pills and purple powder.
Personal circumstances
[8] You are now 24 years old. You were 21-22 at the time of your offending. Although you have three previous convictions, they are not relevant to the present offending.
[9] The pre-sentence report writer stated that you are currently enrolled for a Business and Sports Science course but are yet to take it up as you are awaiting the outcome of this sentencing. You are undertaking an apprenticeship in Mechanical Engineering and have two years to complete it. You reported that you have not used drugs for two years and you do not present a pattern of harmful alcohol usage. You reported that you no longer have contact with your co-offenders or any drug users. The report writer has said that you are remorseful, and have completed the a Community Alcohol and Drug Services programme, a “Getting Started” programme, and an “Action Group” programme. I understand that you have been regularly drug tested as part of your employment. Your motivation to change was assessed as medium and your risk of reoffending was assessed as low.
[10] The report writer canvassed the possibility of a sentence of home detention. The report writer did not recommend such a sentence, because of the work that you are undertaking. However, the report writer acknowledged that your employment has been a good deterrent against drug use and motivation to stay offence free as you have been required to undertake periodic drug tests.
[11] You will have heard me discuss with Mr Cullen that the report writer suggested a sentence of community detention or supervision. As Mr Cullen agreed with me, such a sentence cannot realistically be imposed for the offending to which you have pleaded guilty.
[12] Your friends and your family have provided character references attesting to your expressions of remorse and your successful attempts to change your lifestyle. I was particularly well-informed by the letter from your parents, who say that they have supported people with addictions and are equipped to help you, and, of course, they want to continue to support you.
Sentencing process
[13] The first step when I sentence you, as with any other person, is to establish what is referred to as the starting point. The starting point is usually the sentence that would be imposed on the most serious of the charges on which you have been convicted, on the basis that that conviction had come after a trial in Court. In your case, however, there is such similarity between the three charges that I propose to adopt a single starting point, to cover all three charges. Then the second step is to take that starting point and decide what the appropriate sentence is for you, and for the totality of your offending. I consider matters that relate to you, personally, because these may lead me to adjust your final sentence, in some cases to increase it, in other cases to decrease it.
[14] When I sentence you I have to take into account the purposes and principles of sentencing. With respect to the purposes of sentencing, I have to hold you accountable – I have to make you understand that you are responsible for your offending. I have to consider deterring you, and others, and protecting the community. I also have to denounce your offending – which means to tell you that the offending is unacceptable. At the same time, an important purpose of sentencing any offender is to help the offender to get back into the community, and to be a useful member of it.
[15] In your case the relevant principles that I apply are to consider the gravity of your offending – how serious it was, you own responsibility for the offending, the seriousness of your offending when compared with other types of offences, and the general desirability of being consistency in appropriate sentencing levels. I am also directed to impose the least restrictive outcome that is appropriate in all of the circumstances
[16] It is desirable, and it is a principle under the Sentencing Act, that offenders should be kept in the community as far as that is practicable with regard to the safety of the community. However, the Court can impose a sentence of imprisonment if that is necessary to achieve the purposes of sentencing that are relevant to your case.
Starting point
[17] Mr Regan submitted for the Police that the seriousness of your offending is shown in its commerciality and scale: on the Police estimate of sales, you dealt with more than $1 million worth of pills, but for the purposes of sentencing the Police proceed on the basis of your admission that you dealt with approximately $536,487 worth of pills. I accept Mr Regan’s submission that even at that level, it shows serious offending. I accept, as did Mr Regan, that this does not represent the profit you personally obtained, but it does show the general level of commerciality.
[18] Mr Regan submitted that your offending was clearly premeditated, that is, planned; he referred to the during of the offending which is over some six months. Mr Regan also referred to the extent of harm that results from such offending, and your level of involvement which he described as being a “high-level dealer”, that is, in the sense of selling to others who would on-sell to consumers. Mr Regan submitted that there were no features of the offending itself which would make it less serious.
[19] Mr Regan referred me to the sentencing of your co-offender, Mr Reid, who, as I am sure you aware, was sentenced to home detention for 12 months and ordered to complete 200 hours’ of community work. That was from a starting point of three
years’ imprisonment.1 Mr Regan referred me to other sentencings for similar offending: R v Holden involved a starting point of three years’ imprisonment for possession of class C drugs to a value of $27,000;2 R v Manuel involved a starting point of two and a half years’ imprisonment for what was described as “truly commercial” dealing, involving approximately 600 ecstasy pills.3 Mr Regan submitted that your offending is more serious than any of these cases. Mr Reid’s role in the operation was, he submitted, less than yours, in that Mr Reid sold a smaller number of pills compared with your sale of 10,000. Mr Regan submitted that a starting point of four years’ imprisonment is appropriate for your offending.
[20] Mr Regan submitted that there no matters relating to you which would lead to an increase of a sentence and submitted that your age at the time of your offending is a relevant mitigating factor, and that a discount is available for your guilty plea.
[21] On your behalf, Mr Cullen submitted that the Court should consider the aggravating features of your offending, being the potential danger posed by your actions, and the repeated offending. He referred me to the sentencing in R v Jethwa where a starting point of five years was adopted (having regard to the totality of the offending, and the fact that there had been an importation of prohibited substances).4
He also referred me to Police v Li.5 Mr Li was a commercial retailer who sold class
C drugs after they had been rendered illegal, and received a starting point of two
years and six months’ imprisonment.
[22] Mr Cullen submitted that your offending is in the low to middle category two offending with reference to the guideline case of Terewi, and he submitted that the appropriate starting point is between two and four years’ imprisonment.
[23] R v Terewi is a case dealing with the cultivation and supply of cannabis.6 It is we call a tariff case for sentencing, but it is not a tariff case for ecstasy analogue
offending, it dealt with cannabis. However, it has been used in a number of High
1 R v Reid [2014] NZHC 426
2 R v Holden HC Timaru CRI-2010-76-463, 4 November 2010.
3 R v Manuel [2013] NZHC 150.
4 R v Jethwa [2012] NZHC 2440.
5 Police v Li [2013] NZHC 1377.
6 R v Terewi, [1999] 3 NZLR 62 (CA).
Court sentencing decisions for class C party pills and other ecstasy imitation drugs.7
The Court of Appeal has endorsed the approach of using Terewi as a guideline, although noting that analogue pills can be treated as more serious class C drugs than cannabis.8
[24] In Terewi the Court described three categories of drug offending: the first is the lowest: offending for personal use, with minor supply to friends. The second is what is described as small-scale commercial supply or cultivation, and the third is large-scale, sophisticated commercial supply or cultivation. The ranges indicated in Terewi are a helpful guide. However, of course, the identifying features of each category apply solely to cultivating or selling cannabis and cannot be directly comparable with the features of other drugs.
[25] As I said earlier, your co-offender, Mr Reid, was sentenced to 12 months’ home detention and 200 hours’ community work. He supplied 447 pills, he offered to supply 851 pills, and conspired to sell 1000 pills. Woodhouse J adopted a starting point of three years’ imprisonment, which he increased to three years and six months for the further offence of production. Woodhouse J reduced the sentence by
15 months (on account of Mr Reid’s strong rehabilitative prospects, his lack of previous convictions and his age). That was then reduced by 25% for Mr Reid’s guilty pleas, reaching an adjusted starting point of 20 months’ imprisonment. That enabled the Judge to consider home detention.
[26] To go back over some of the cases that I referred to earlier. In R v Holden the defendant had supplied class C drugs, namely Butylone, an analogue of ecstasy, Benzylpiperazine, and Trifluromethylphenil Piperazine worth approximately
$25,000.9 Relying on the analysis in Terewi, the High Court adopted a starting point
of three years imprisonment, because there were four offences, committed on two dates over a six week span.
7 R v Day HC Hamilton CRI-2010-019-10271, 23 June 2011, R v Jethwa [2012] NZHC 2440, R v
Kamizona [2012] NZHC 2868.
8 See Fraser v R [2013] NZCA 250 at [12.
9 R v Holden HC Timaru CRI 2010-076-463, 4 November 2010.
[27] In R v Jethwa, Mr Jethwa was sentenced for importing a class C controlled drug MPDV and two charges of importing the drug 4-MEC, selling a class C controlled drug (x2), possession for supply of a class C drug (x2), importing prescription medicines without reasonable excuse (x3), possession of prescription medicines without reasonable excuse (x2) and a charge of manufacturing medicines without a licence. At the peak of his operation, Mr Jethwa and his co-offender were selling $55,000 of pills a week. In the High Court, Venning J considered the scale of offending was substantial and adopted a starting point of five years’ imprisonment. Following reductions for Mr Jethwa’s age, his good character, guilty plea and remorse, his Honour reached an adjusted sentence of two years’ imprisonment which led finally to a sentence of 12 months home detention and 300 hours’ community work.
[28] Your offending, Mr Dodd, was commercial. I have concluded that it was at the top end of band 2 of Terewi (which justifies a starting point of between two and four years). Your offending was more serious than Mr Reid’s, and justifies a higher starting point. It was also a lot more serious than Mr Holden’s due to the dollar value involved. I have concluded that the starting point should be four years’ imprisonment.
Adjustment for personal factors
[29] Mr Cullen submitted that you should receive a discount from the starting point for your sincere and genuine remorse, your rehabilitative prospects, the fact that you stopped offending two years before the Police became involved, and your early guilty plea.
[30] I accept that discounts should be applied for your youth at the time of your offending, your strong rehabilitative efforts, and your genuine remorse. The pre- sentence report is very positive on those factors. As I said earlier, you have no relevant previous convictions, so are also entitled to some discount for your previous good character. I have concluded that a total discount of 18 months is appropriate for those factors, and that leads me to an adjusted starting point, before I consider the discount for your guilty plea, of two years seven months imprisonment.
[31] Turning to your guilty plea. I accept that your guilty plea was entered at an early stage, and you are entitled to a further discount of approximately 25 percent, which leads to a final adjusted sentence of two years’ imprisonment.
Home detention
[32] I therefore turn to consider whether your sentence should be one of imprisonment, or whether a sentence of home detention would adequately meet the purposes and principles of sentencing, and whether that would be the least restrictive sentence that could be imposed. I also consider whether you should be ordered to complete community work.
[33] I have considered the pre-sentence report recommendation that you be sentenced to community detention rather than home detention. I cannot conclude that a sentence of community detention, which cannot be for longer than six months, would adequately meet the principles and purposes of sentencing, given the seriousness of your offending. However, I have concluded that a sentence of home detention will meet those purposes and principles, and I am satisfied that it is the least restrictive sentence that can be imposed.
[34] I have also concluded that you should be ordered to undertake community work, that is part of holding you accountable to the community for your offending by making compensation to it in the form of work.10
[35] Would you please stand.
Sentence
[36] Mr Dodd, on each of the charges of offering to sell a class C control drug, selling a class C controlled drug, and conspiring to sell a class C controlled drug, you are sentenced to 12 months’ home detention. Those sentences are to be served
concurrently. You are also ordered to complete 250 hours of community work.
10 Sentencing Act 2002, s 56(1)(a).
[37] The conditions of the sentence of home detention are:
(a) When released from this Court you are to travel directly to 30 Oriel
Avenue West Harbour, Auckland.
(b)You are to reside at that address for the duration of the sentence of home detention.
(c) You are to comply with the requirements of electronic monitoring as directed by a probation officer.
(d)You are not to consume or possess alcohol or any non-prescription drugs for the duration of the sentence of home detention.
(e) You are to be assessed and if found suitable to undertake an alcohol and drug programme, counselling or treatment to the satisfaction of the probation officer and treatment provider. Details of the programme to be determined by the probation officer.
(f) You are to attend and complete any other programmes, treatment, counselling or training as determined by the probation officer.
(g)Twenty per cent of the hours of community work are to be for a work and living skills programme.
(h)You are not to associate with your co-offenders unless you have the written consent of the probation officer.
[38] Thank you Mr Dodd. You may now stand down.
Andrews J
5
0