R v Anderson

[2013] NZHC 3384

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-025-002416 [2013] NZHC 3384

REGINA

v

BRODIE RAYMOND ANDERSON

Hearing:                   16 December 2013

Counsel:                  S N McKenzie for Crown

H Cuthill for Mr Anderson

Judgment:                16 December 2013

JUDGMENT OF PANCKHURST J

[1]      This is an application to cancel a sentence of imprisonment and substitute one of home detention.

[2]      On 19 November Mr Anderson appeared before Gendall J for sentence in relation to charges of cultivating cannabis, possession of that drug for the purpose of sale and offering to sell it.

[3]      He had a positive pre-sentence report, particularly with regard to his work ethic and work history having been employed as a herd manager until he resigned shortly prior to sentencing.   Another positive in the report was that his previous convictions were essentially driving matters committed during his teenage years and, in particular, there were no previous convictions for use or dealing in illicit drugs.

[4]      With reference to the subject offending he was one of a number of defendants arrested in relation to a police investigation termed “Operation Canary”.   I do not

REGINA v ANDERSON [2013] NZHC 3384 [16 December 2013]

propose to go into the details of the individual offences for which Mr Anderson was sentenced last month.  Gendall J has already done that.

[5]      I note he was described as essentially a ‘foot soldier’ as opposed to a leading light in the cannabis operation and offending which was the subject of the inquiry. In the course of his sentencing remarks the Judge said this:

Although before me Ms Vidal for the defendant indicated that he did not wish to seek leave to apply for home detention, in my view leave should nevertheless be granted, in case there is a reconsideration of this position.  If therefore a suitable address can be provided and the defendant wishes to pursue this aspect I now grant leave to him to apply for home detention under s 80 I Sentencing Act 2002.

Mr Anderson, in conclusion I am accordingly now sentencing you to an end sentence of two years imprisonment on the charges before the Court.

The following release conditions are imposed:

(a)       You are to undertake and complete appropriate treatment/counselling to the satisfaction of the probation officer and treatment provider; details of the treatment or counselling are to be determined by your probation officer; and

(b)       You are to attend an assessment for an appropriate departmental programme, and to attend and complete an appropriate departmental programme as recommended by the assessment, to the satisfaction of your probation officer and programme provider; details of the appropriate programme are to be determined by your probation officer.

[6]      Within about a week, the matter had obviously been considered and an application to cancel the sentence of imprisonment and substitute home detention was filed.  There is now available, a home detention appendix which confirms that a suitable address is available.  That address is the home of Mr Anderson’s mother and his stepfather at Drummond.

[7]      I propose to grant the application, cancel the existing prison sentence and substitute home detention.  An issue arises as to what the duration of the sentence should be.   Typically home detention is imposed for a period of about half the duration of a prison sentence to accommodate the likelihood, or possibility, that a prison sentence will be the subject of early release on parole.  It is also necessary in this instance to have regard to the fact that Mr Anderson has spent the better part of a

month in prison, since he was sentenced.  In my view, the appropriate term of home detention is one of nine months.

[8]      I  substitute  nine  months  home  detention  upon  the  statutory  conditions, together with the five special conditions outlined in the appendix, including that you are to travel directly to 132 Robinson Road, Drummond and await the arrival of a probation officer and security officer; and that you are to reside there and not move address unless you have the prior written approval of a probation officer.  I will not read the other conditions, Mr Anderson, you will see them in writing very shortly.

[9]     I also direct that you are to meet the three post-detention conditions recommended in the appendix for a period of six months.  However, in relation to the recommended special conditions and post-detention conditions, I delete the reference to non-consumption of alcohol.   It is not apparent to me why that condition was recommended when the pre-sentence report does not indicate any problem with alcohol.  It seems to be me that prohibiting something which is a social norm in our society is undesirable as it is to create a condition which is unlikely to be met.

[10]     It is to be hoped Mr Anderson that you can get employment as soon as possible.  You will recognise that there is flexibility in relation to home detention, in that if you can find an address where you can be with your partner and children there is a possibility that will be approved, but that is up to you.

[11]     Stand down.

Solicitors:

Preston Russell Law, Invercargill

Cruickshank Pryde, Invercargill