Police v Williams

[2012] NZHC 2411

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2012-015-223 [2012] NZHC 2411

NEW ZEALAND POLICE

v

CHANCE TUHAKA WILLIAMS

Hearing:         18 September 2012

Counsel:         D Flynn for the Crown

C Wilkinson-Smith for the Prisoner

Sentence:       18 September 2012

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Mr Williams, you need to stand now. You appear for sentencing today having pleaded  guilty  to  one  charge  of  possession  of  cannabis  for  sale  which  has  a maximum penalty of eight years’ imprisonment.[1]   You are here in the High Court for sentencing because the District Court declined jurisdiction to sentence you.

Circumstances of offending

[1] Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2)(c).

[2]      At  a search  of  your  home address  on  3 April  2012,  the  police  found  a container in the wash-house in which there was:

NEW ZEALAND POLICE v WILLIAMS HC PMN CRI 2012-015-223 [18 September 2012]

(a)       14 evenly weighted cannabis tinnies with a total weight of 15 grams; (b)      Dried cannabis head with a total weight of 35 grams;

(c)       Two plastic bags containing 70 grams of dried cannabis leaf; and

(d)      A box of plastic bags.

[3]      The police also found a bucket in the wash-house, which contained dried cannabis leaf with a total weight of 800 grams.  This leaf was low quality cannabis and there was no indication that it was for sale.  In your bedroom, the police found a tin which contained 12 evenly weighted cannabis tinnies which had a total weight of

15 grams.   A further five grams of loose cannabis leaf and a cannabis bong was found in your house.

[4]      When spoken to by the police, you admitted that all the cannabis was yours. You said the cannabis was for your own personal use because you suffered from lower back and leg pain.

Circumstances of the offender

[5]      I now turn to your personal circumstances.  You are 49 years old.  You are currently unemployed and receive the sickness benefit.   According to the pre- sentence report your physical health is poor.  You suffer from hip and lower back pain due to an injury sustained some years ago.   The pain has worsened over the years but apparently you are currently too young to be considered for a hip replacement.  You told the report writer that you used cannabis as a pain suppressor and you accepted that this needed to be addressed.   You said that previously prescribed medication had either had little effect or made you feel worse.  Your wife suffered a brain aneurism a number of years ago.  She is unable to drive and tires easily.   She can become very confused and distressed.   You predominantly spend your days caring for your wife and you pre-school grandchildren.

[6]      You told the report writer that you sold cannabis to make ends meet.  You said that you were struggling financially with your wife’s illness.  I have read your letter where you further explain your financial and personal difficulties which led to your offending.  You saw supplying cannabis as a way to help you catch up on your bills.

[7]      According to the report writer, you are remorseful for your offending and take full responsibility.   You find the idea of going back to prison very worrying because there would be no-one to care for your wife in Feilding, so she would likely have to go and live with her sister in the South Island.  You have taken some steps to address the causes of your offending.  You say you have stopped using cannabis and have gone to the doctor to get prescribed medication for pain relief.  Your doctor confirms that you are now on a daily prescription for pain relief.  You are willing to undertake counselling to address  your cannabis use.   You have engaged  with a budgeting service in Feilding.

[8]      You have 18 previous convictions, seven of which are for cannabis-related offending in 1985, 1986 and 2000.  You have no convictions of any kind for the past

12 years.   You are assessed as at a low risk of re-offending but the pre-sentence report writer noted that this risk will increase if you do not address your issues with drug use through counselling and medication.

Purposes and principles

[9]      In  sentencing  you,  I  am  required  to  take  into  account  the  purposes  and principles of sentencing set out in the Sentencing Act 2002.  Of particular relevance in drug offending is deterrence and denunciation.   Consistency with offenders convicted of similar offending is also important.  I approach your sentence by first considering the appropriate sentence for the offending before taking into account any aggravating and mitigating factors personal to you.  I now turn to the starting point for your sentence.

Starting Point

[10]     In setting the starting point for cannabis offending, guidance is provided by the Court of Appeal’s decision in R v Terewi.[2]    Any offending with a commercial element,  no  matter  how  small,  falls  within  category  two  as  described  in  that decision.[3]    The Crown and your counsel agree that your offending is towards the bottom of category two of R v Terewai.   The Crown submits that an appropriate starting point is between two and two and a half years’ imprisonment, whereas your counsel submits that a starting point of two years would be appropriate.

[2] R v Terewi [1999] 3 NZLR 62 (CA). Although R v Terewai involved cannabis cultivation the Court of Appeal in R v Andrews and R v Keefe stated that the Terewai bands still apply to cases of possession for supply.

[3] R v Andrews [2000] 2 NZLR 205 (CA).

[11]     Your counsel have referred me to a number of cases.[4]   I have reviewed those and a number of others.[5]   Those cases show a range of between 18 months and two years and six months’ imprisonment for offending that is broadly comparable.   In your case I consider that a two year starting point is the appropriate one.  Cases with

a higher starting point have generally involved larger quantities of cannabis than here, and sometimes the presence of cash indicating a degree of commerciality that is not present here.

Aggravating and mitigating factors

[4] R v Turoa HC Auckland CRI-2008-055-1629, 31 October 2008; R v Packer HC Rotorua

CRI-2008-063-444, 5 September 2008; R v Harding HC Wellington CRI-2011-091-3903,

9 December 2011.

[5] R v Shelford CA3/06, 22 March 2006; R v Ali CA156/04, 29 July 2004; R v Williams HC Palmerston North CRI-2012-054-1136, 3 August 2010; R v Riwai HC Palmerston North CRI-2009-054-1838, 9 October 2009; R v Blake HC Auckland CRI-2009-090-3949,

28 September 2011.

[12]     I turn now to the factors personal to you.

[13]     As noted, you have a number of previous convictions, including some for cannabis-related offending.  But all your previous offending occurred over 12 years ago.  Given that significant gap, I do not consider that an uplift to meet an individual deterrence need is warranted.  That this is unnecessary is also confirmed by the steps

you have now taken to address your offending.

[14]     You are also entitled to a discount for your guilty plea, which you entered at the first reasonable opportunity.  Applying 25 per cent discount for that would mean a sentence of imprisonment of one year and six months.  Because that is a short-term imprisonment sentence, I turn to consider whether a sentence of home detention should be imposed instead.

[15]     The Crown  acknowledges  that  in  light  of  your  personal  circumstances  a sentence of home detention may meet the purposes and principles of sentencing.  I agree.  The prospects of imprisonment, which would mean that you could not care for your wife, has caused you to take positive steps towards addressing your offending.  You have stopped using cannabis and have been to the doctor to obtain prescribed  medication.   You  have  also  engaged  with  a budgeting  service.   The proposed home detention address is suitable for electronic monitoring.

Sentence

[16]     Mr Williams, you are therefore sentenced to nine months’ home detention at the address stated in the pre-sentence report.  You are to travel immediately from Court to that address and to there await the arrival of a probation officer and a representative of the monitoring company.   You are also subject to the following special conditions as recommended in the pre-sentence report:

(a)      To   abstain   from   the   consumption   and/or   possession   of   non- prescription drugs for the duration of your sentence;

(b)To attend any drug assessment and any counselling as recommended by the probation officer and to complete any such counselling to the satisfaction of the probation officer and service provider;

[17]     An order is also made for the forfeiture and destruction of the cannabis located during the search of your address.

Solicitors:

Crown Solicitors Office, Palmerston North

Mallon J