Police v McIvor HC Palmerston North CRI-2010-054-2878

[2011] NZHC 119

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-054-2878

NEW ZEALAND POLICE

v

STEWART CHARLES MCIVOR

Counsel:         M R Davie for Police

F D Steedman for Accused

Judgment:      16 February 2011

SENTENCING NOTES OF MACKENZIE J

[1]      Stewart Charles McIvor you appear for sentence on one charge of supplying the Class A drug LSD, one count of supplying the Class B controlled drug cannabis oil, one count of supplying the Class B drug GHB, and one count of selling the Class C controlled drug cannabis plant to a person over 18.   You pleaded guilty to all counts  in  the  District  Court.    Jurisdiction  was  declined  in  that  Court  on  the application of the Crown, essentially on the grounds that the one year maximum available in the District Court in respect of the cannabis count would be inadequate. In  making  that  submission  the  Crown  acknowledged  that  concurrent  sentences would  be  appropriate  for  your  case  and  that  the  District  Court  would  have jurisdiction, on the other counts, to impose an appropriate sentence.   Nevertheless you are for sentence here.

[2]      The facts of your offending are that text message data for the period between

26 April 2010 and 11 July 2010 from two cell phones being operated by you was intercepted by police.  The text messages disclosed that during that time period you

POLICE V STEWART CHARLES MCIVOR HC PMN CRI-2010-054-2878 16 February 2011

purchased, sold, and distributed a variety of controlled drugs.  The count in respect of cannabis is a representative count.   The cell phone records show that you completed  at  least  79 cannabis  sales  between  30 April  and  7 July  in  quantities including tinnies and $20, $50, half ounce and ounce bags.   You commonly met customers at locations within walking distance of your home address, though some associates came to your home address.  The telephone messages also indicated one supply of cannabis oil, apparently one $40 capsule, on 21 June.   The cell phone messages further indicated one sale of one tab of LSD over the period 20 to 24 June. The count in respect of the supply of GHB is also a representative count.   On or about 15 June you purchased 2.5 litres of GBL from a chemical company.   That substance which is a controlled Class B drug can be converted into the Class B drug GHB.  From 17 June you started sending text messages to associates indicating that you had GHB for sale and the records show 15 sales, of quantities varying between four millilitres and 16 millilitres, at a price generally of $5 per millilitre, over the period 17 June to 2 July.

[3]      You were arrested following execution of a search warrant at your home on

29 July 2010.  You were one of three men arrested and the acknowledged principal offender.   You indicated an intention to plead guilty following completion of the summary of facts and some amendments to the informations which were laid on

23 September.   You made a request to be brought before the Court to plead on

28 September.

[4]      As to your personal circumstances, you are 26 years of age.  You are single and now living with your parents and siblings in Palmerston North.  You have been generally employed on a number of jobs since leaving school near the end of your seventh form year and recently have been working full time in a nursery. You have a number of convictions for relatively minor offences, none of which are drug related. These have been met with fines and reparations and terms of community work.  The departmental risk analysis tool places you as being at medium risk of reoffending and your pre-sentence report writer recommends a rehabilitative component to sentencing and recommends a departmental rehabilitative programme such as a medium intensity rehabilitation programme.

[5]      The principal question for me, as I see it, in sentencing you, is whether the appropriate sentence in your case is imprisonment or home detention.  An important purpose of sentencing for drug offending of this nature is that of deterrence.  The starting point would ordinarily be a sentence of imprisonment.   Mr Davie submits that there are no exceptional circumstances which would justify departure from the principle that a custodial sentence is appropriate for even relatively minor drug trafficking.  There is however one aspect of your offending on which Mr Steedman places considerable reliance in submitting for a starting point which would put the end sentence within the range where home detention could be considered.   His instructions from you are that you had made the decision sometime before you were arrested  to  re-evaluate  your  lifestyle  and  to  cease  your  offending.    You  have instructed him that this change of heart was prompted by the arrest of another person known to you and that this brought home to you a realisation of what you had become involved in and the evils of drug dealing and that you decided to stop selling drugs.  You have instructed your counsel that you destroyed both of the cell phones on about 11 July, about 18 days before your arrest.  There is some support for this in the cell phone records, which come to an abrupt end on about 11 July.

[6]      I have carefully considered that aspect and I propose to sentence you on the basis that you had ceased dealing in drugs before your arrest.  That does distinguish your case from the more usual case where a course of drug dealing is brought to an end only by the intervention of law enforcement.

[7]      In fixing a starting point, I treat as the lead offence the supply of GHB. Mr Davie submits that in terms of R v Wallace and Christie[1] a starting point of up to five years is appropriate.   That would place this within the category of smaller operations representing commercial dealing.  That is the appropriate categorisation. That category is a broad one to enable sentences to reflect the many varied circumstances that can arise.  Both counsel have referred to R v Martin,[2]  in which Ronald Young J took a starting point of three years for what he described as drug supply on a modest scale at the low end of dealing of about $6,000 worth of Class B

drugs.   The quantity of GBL which  you purchased would suggest a substantial

dealing operation.  However, because I have accepted that I should sentence you on the basis that your offending ceased on or about 11 July, I take into account only the quantity of GHB involved in the known sales, which, as I have described, were

15 sales each of between four and  16 millilitres.   The scale of that offending  I consider to be less than that involved in Martin.   For the lead charge I adopt a starting point of two and a half years.

[1] R v Wallace and Christie [1993] 3 NZLR 159.

[2] R v Martin HC Palmerston North CRI-2005-054-3253, 7 February 2006.

[8]      To that must be added an uplift to reflect the other offending.  The number of cannabis  sales  is  such  as  to  require  some  uplift,  though  less  than  would  be appropriate to represent that offending if it stood alone.  The one supply of cannabis oil and of one tab of LSD need also to be reflected in the uplift.  I consider that an uplift of six months is appropriate, to a total starting point of three years.

[9]      You are entitled to a discount to reflect your guilty plea, which I treat as being entered at the first available opportunity.   In addition, I consider that I may properly make a further discount to reflect the fact that your offending had ceased prior to your arrest.  That indicates remorse beyond that reflected in the guilty plea. Your  guilty  plea  was  entered  at  a  time  when  the  Court  of Appeal  decision  in R v Hessell was applicable.[3]   That would indicate that a discount to reflect the guilty plea and the remorse inherent in it could be one third.  Applying both that principle, and the subsequent Supreme Court principle that the discount should not exceed

25 per cent for the guilty plea alone but an additional allowance for remorse may be appropriate,  I  consider  that  a  total  discount  for  these  factors  of  one  year  is appropriate.

[3] R v Hessell [2010] 2 NZLR 298 (CA).

[10]     That brings me to an end point of two years, so that a sentence of home detention  is  possible.    I  consider  that  I may,  consistent  with  proper  sentencing principles, reach that conclusion.   I consider that I may also properly take into account the circumstances of your ceasing your offending in giving greater weight to the  purpose  of  rehabilitation  than  to  the  purpose  of  deterrence  which  would

ordinarily take precedence.

[11]     I have come to the view that a sentence of home detention is appropriate because, on my assessment, that sentence seems more likely to fulfil a rehabilitative purpose in your case.  You have the support of your family who are prepared to have you serve a sentence of home detention with them.  You have a number of references which indicate that you are capable of functioning as a contributing member of society.   You  have available full  time employment.   Your statement as  to  your reasons for ceasing your offending, which I have accepted, is a positive sign as to the prospects of your putting your past behind you as an aberration.  I also consider that a sentence of imprisonment might well be counterproductive so far as your rehabilitation is concerned.

[12]     You need to understand that you have escaped a prison sentence by a hair’s breadth.  If there were to be any further offending on your part you could not expect that a similar approach would be adopted.

[13]     You will be sentenced to 12 months home detention.  You will also undergo a period of 350 hours community work.

[14]     The conditions of your home detention are:

(a)       To   travel   directly  from   the   Palmerston   North   High   Court   to

14 Wincanton Place, Palmerston North and await the arrival of the probation officer and a representative from the monitoring company.

(b)To reside at 14 Wincanton Place, Palmerston North for the duration of the home detention.

(c)      If  assessed  as  suitable,  to  attend  and  complete  an  appropriate departmental programme to the satisfaction of your probation officer and programme provider.  Details of the appropriate programme to be determined by your probation officer.

(d)To attend, participate in and adhere to the rules of a maintenance group for graduates of the departmental rehabilitative programme, as directed by the probation officer.

[15]     There  will  be  an  order  under  s 32  of  the  Misuse  of  Drugs Act  for  the destruction of the items listed by counsel for the police.

[16]     That is all, you may stand down.

“A D MacKenzie J”