R v Abbott HC Rotorua CRI 2009-077-1890
[2010] NZHC 707
•13 May 2010
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2009-077-1890
THE QUEEN
v
SIMON MARK ABBOTT
Hearing: 13 May 2010
Appearances: Ms L Owen for Crown
Ms N Utting for Prisoner
Sentence: 13 May 2010
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Rotorua
Counsel:Mr N Utting, Rotorua
R V ABBOTT HC ROT CRI-2009-077-1890 13 May 2010
[1] Mr Abbott, you appear for sentence today having pleaded guilty in the District Court to eight charges of selling cannabis and five charges of being in possession of cannabis for the purpose of supply. Each of those charges carries a maximum sentence of eight years imprisonment.
[2] You entered your guilty pleas in the District Court but the District Court declined jurisdiction and committed you to this Court for sentence.
The facts
[3] The facts that give rise to your offending revolve around the deployment of an undercover officer in Tokorua between October and November 2009. On several occasions between 21 October 2009 and 4 November 2009, one or more undercover officers visited the address at 3 Jedburgh Street, Tokoroa. It is quite clear from the summary of facts, with which you take no issue, that that address was being operated as a full-scale and busy tinnie house.
[4] The undercover officer was able to present himself at the door of the address on numerous occasions and obtain cannabis bullets from you for the sum of $20. On two occasions, namely on 31 October and 4 November 2009, he also obtained ounces of counsel from you. You had no previous connection with the officer and the inference to be drawn from that is that you were prepared to sell cannabis to anybody who appeared with the money and the means to acquire it.
[5] The police also carried out surveillance of the property on several occasions during this period. They found that numerous people, between 15 and 40 people over the course of a few hours, visited the house no doubt seeking to purchase cannabis in the same way that the undercover officer had done.
[6] You were ultimately arrested. You now fully and frankly acknowledge your involvement in the operation of the tinnie house. You say that you were between jobs and you needed to obtain income and you chose to work in the tinnie house to that end.
Sentencing Act 2002
[7] As I am sure you now know, the Court is required to impose deterrent sentences in any case where drug dealing is involved. The authorities make it clear that those who deal in drugs will virtually inevitably receive a sentence of imprisonment if detected.
Starting point
[8] The first thing that I need to do is fix a starting point for your offending. That is the sentence that would be imposed having regard to your offending taken as a whole but disregarding factors that are personal to you.
[9] There is no dispute that your offending falls to be determined in accordance with a case called R v Terewi [1999] 3 NZLR 62 in which the Court of Appeal said that starting points of between two and four years imprisonment will be appropriate in cases involving commercial dealing at a moderate level. Here the scale of operation of the tinnie house means that your offending must be placed towards the top end of that scale.
[10] The Crown has referred me to two cases involving the operation of a tinnie house. In the first, R v Wharawhara HC Hamilton CRI 2006-019-9951 28 June
2007, the Judge selected a starting point of two and a half years. I consider, however, that the scale of your offending is significantly greater than that of the offender in Wharawhara. In that case an undercover officer visited on just two occasions. When the police ultimately searched the address they encountered five people who came to the address seeking to purchase cannabis.
[11] I note that the tinnie house in your case was specially set up for that purpose and had surveillance equipment installed. That was a factor that the sentencing Judge noted to be absent in R v Wharawhara.
[12] In my view, your offending is much more similar to that in R v Te Rangi HC Auckland CRI 2007-055-779 29 April 2008. That, too, was the operation of a busy
tinnie house and the sentencing Judge adopted a starting point of three and a half years imprisonment.
[13] Taking all those matters into account I accept the Crown submission that your offending warrants a starting point of three and a half years imprisonment.
Aggravating factors
[14] You do have a number of previous convictions, some of which are drug- related. These include convictions in 1989 and 1994 for cultivation of cannabis and convictions in 1989 and 1990 for being in possession of cannabis plant or seeds.
[15] I take the view, however, that those are not drug dealing offences as such, and this is the first occasion on which you have appeared on a charge of dealing in drugs. For that reason I do not intend to impose an uplift on the starting point that I have adopted.
[16] You need to know, however, Mr Abbott, that from now on if you appear again for drug dealing offences, then it is likely that the sentencing Judge will add an uplift to reflect the convictions for which you are being sentenced today. It will mean that you will not have learned a lesson from the sentence that I am imposing today.
Mitigating factors
[17] I now need to take into account mitigating factors that operate to reduce the starting point that I have selected.
[18] You appear for sentence at the age of 39 years. It is clear that you have had a troubled past as evidenced by your previous convictions. It seems, however, that you may have turned the corner.
[19] Recently, you began working for your older brother who operates a seafood processing business. He has provided me with a letter in which he says that your mindset has changed and that you have been a willing worker. In addition, you have
apparently recently married your partner and you now realise that there is more to life than just your own pleasure. Your brother says that you are now looking forward to starting a family and enjoying life where you can be contributing to our community. Those factors are echoed, to a large extent, in comments in the pres- sentence report. I note that you were open and frank with the report-writer.
[20] Those factors make it clear that you do have a positive role to play in our community, but only if you remain free from drugs.
[21] The authorities make it clear, however, that personal circumstances really count for little in drug offending such as this. The reality is that you chose to become involved in the operation of the tinnie house to provide income. Your involvement was purely mercenary and I do not see any indication that matters such as drug addiction were a contributing factor.
[22] The only real factor that I can give you credit for is your guilty plea. This was not entered at the earliest opportunity, but it was entered shortly after you obtained the services of assigned counsel. You appeared for the first time on
19 November 2009 and you entered your guilty pleas on 13 January 2010, having instructed assigned counsel on 18 January 2009. I accept that this was not a guilty plea entered at the earliest opportunity, but I am prepared to give you significant credit for it. I propose to reduce your sentence by 30 per cent to reflect that fact.
Sentence
[23] On informations ending 483 and 488, which relate to the sale of ounces of cannabis, you are sentenced to two years four months imprisonment.
[24] On each of the other charges you are sentenced to 18 months imprisonment.
[25] All sentences will be concurrent, which means that you will serve an effective term of imprisonment of two years four months.
Destruction order
[26] I direct that all drug-related items that were found are to be destroyed.
Reparation
[27] The Crown has also sought reparation. I have no means of knowing, however, whether you have the ability to pay reparation and I do not propose to defer sentencing further so that this aspect of the matter can be investigated. I therefore make no order for reparation.
Lang J
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