R v Arvidson HC Whang CRI 2009-027-002528

[2010] NZHC 14

IN THE HIGH COURT OF NEW ZEALAND

WHANGAREI REGISTRY

CRI 2009-027-002528

THE QUEEN

v

DARRYL ARVIDSON

Hearing:         4 February 2010

Appearances:  K R Thomas for Crown

M B Dodds for Prisoner

Sentence:       4 February 2010

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Whangarei

R V ARVIDSON HC WHA CRI 2009-027-002528  4 February 2010

[1]      Darryl Arvidson, you appear for sentence for 15 offences against the Misuse

of Drugs Act in the span 1 June - 4 April 2009, three offences against the Arms Act and  one  relating to  the  fraudulent  use  of  a  document.  Jurisdiction  to  sentence  you was declined in the District Court

[2]      You  became  subject  in  the  latter  part  of  2008  and  early  2009  to  a  police operation  targeting  drug  dealers  in  the  mid  north.  Text  message  and  call  data intercepted  confirmed  that  you  were  cultivating  cannabis,  and  also  dealing  using your cellphone. As a result the police executed a search warrant at your address on 4 April 2009.

[3]      You  were  cultivating  in  your  garage  and  there  was  related  equipment.  The precise nature of the equipment is not evident from the statement of facts on which you entered  your plea but  your counsel says it was relatively unsophisticated. The police discovered also two firearms, a shotgun and a .22 rifle, and ammunition for one or both. Also 70 grams of dried cannabis.

[4]      You admitted to cultivating cannabis and that the firearms were yours, as was the  cannabis  discovered.  You  said  you  grew  for  your  own  personal  use  but  you succumbed to pressure from friends to supply them. You had, you said, since June 2008 been growing cannabis and had harvested a pound on each of five cycles before the search happened.

[5]      You explained the firearms as innocently in your possession. You purchased the  shotgun  for  your  former  partner  who  belonged  to  a  local  riding  and  shooting club. You had intended to sell it to recoup the cost. The .22 rifle you held on licence. You used it to shoot possums on your block. You explained the cannabis, 70 grams, as for your own personal use.

[6]      Your position now, if not then, as to two offers for sale on which the police rely  in  making  the  search,  offers  to  sell  50  LSD  tabs  to  two  persons  on  different days, is that you had 50 tabs and you offered it to each of them. The Crown is not able  to  contest  that  and  does  not  seek  to  do  so.  The  misuse  of  a  document,  the remaining charge, concerned a warrant of fitness.

[7]      You were remanded in custody. When your present counsel, not your first counsel,  became  involved  discovery was incomplete. Depositions had not  been prepared. You faced 29 more charges than you face today. A statement of facts was agreed. Twenty nine charges were withdrawn and you pleaded in the District Court

on   23   September   2009.   The   offences   for   which   you   appear   for   sentence, nevertheless, remain considerable.

[8]      You  cultivated  between  1  June  2008  and  4  April  2009.  For  just  over  eight ounces you obtained in excess of $2,000. In December 2008 you offered to sell six times in amounts ranging from a single ounce to eight ounces, and twice to a pound. You offered eight ounces for slightly in excess of $2,000, and the pounds for $4,500.

[9]      The  possession  of  equipment  and  70  grams  of  cannabis  were  lesser  order offences  and  I  have  already  referred  to  the  firearms  offences  and  the  document offence.

Pre-sentence report

[10]     Your pre-sentence report recommends that you be sentenced to imprisonment subject to release conditions that appear to assume that short term of imprisonment might be imposed.

[11]     Until  you  were  taken  into  custody in  March  or  April  last  year,  your  report says, you had primary care of your six old son. Fortunately his wellbeing has been catered for since and will be while you serve the sentence I am obliged to impose. Your report focuses rather on why it is that you have offended.

[12]     You have used cannabis since you were 17 or even younger. You have used LSD  more  recently.  You  have  graduated  from  growing  for  your  own  use  to supplying. You attribute your offending to the pressure of others. But I have to say that, relying on what you cultivated, you actively pursued sales.

[13]     That said, your report says that you now see that this offending was, as you describe  it, 'stupid, dumb'. You have  expressed  a wish to  wean  yourself  from use.

You say that your time in custody, ten months or more now, has had a real impact on you. You have written a letter to me in which you make the same points.

[14]     Your report describes  you as at low risk of re-offending and  yet rates  your willingness to change as medium to low. Clearly if you are to cease to offend in this way, that will call on your part for a radical change.

[15]     Your report recommends, as I have said, a series of programs on your release. But your counsel tells me that you will be able to complete such programs within the sentence  that  I  must  impose.  He  recommends  standard  release  conditions.  That,  I accept, may well be adequate.

[16]     I have also to add, however, that, as the report itself says, you an extensive list  of  previous  convictions  across  a  broad  range  of  offending.  Those  offences include  possession  offences  in  the  early 1990s,  then  again  possession  in 2002  and finally, and more tellingly, supply of cannabis in October 2003 for which you were sentenced to 70 hours community work.

[17]     Those  convictions  may  not  be  independently  aggravating  or  call  for  an increment  in  the  sentence  I  impose.  They  do  preclude  any  allowance  for  your personal circumstances in the sentence otherwise proper.

Purposes and principles

[18]     In  sentencing  you  I must  hold  you  accountable,  promote  in  you  a  sense  of responsibility, denounce your conduct, deter you and others, protect the community and  provide  for  the  interests  of  any  victim.  In  this  category  of  case  there  can  be victims, although they are not always instantly identifiable. I must also, so far as is compatible, assist you in rehabilitation and reintegration into the community.

[19]     In the balance to be struck between what the community calls for and what you need, it has often been said that in drug offending cases there is little room for personal circumstances. There is a presumption in favour of imprisonment. Personal

circumstances  are  not  irrelevant.  Because  of  your  previous  convictions,  however, they cannot hold greater than usual sway.

Crown submissions

[20]     The Crown contends that your lead offences, though they attract finite terms

of imprisonment, ought to be the cannabis related offences. The two class A offers to supply carry a greater sentence, are isolated instances, and are rather to be seen as aggravating.

[21]     For  the  cannabis  related  offending  taken  as  a  whole  and  treating  those offences  as  instances  of  single  enterprise,  the  Crown  contends  that  you  lie  within category  two  R  v  Terewi  &  Hutchings  (CA  113/99,  CA  439/98,  25  May  1999), which  attracts  a  starting  point  for  sentence  between  two  -  four  years.  The  Crown contends for a three and a half year starting point.

[22]     For the two offers to supply, accepting that each involved the same 50 tabs of LSD, the Crown contends for an uplift of six - nine months. The Crown contends for the arms offences a six month uplift. The Crown's proposed sentence before credit lies in the range four years, six months - nine months.

[23]     The  Crown  accepts  you  are  entitled  to  a  significant  discount,  not  literally determined under R v Hessell [2009] NZCA 450. You entered your plea before that decision. Aligning your case with that of R v Knutson (HC WHA, CRI 2009-027-02551, 16 October 2009), which resulted from the same police operation and where pleas were entered after negotiation before depositions, the Crown accepts as proper a 28% discount.

[24]     The  sentence  the  Crown  contends  for  is  of  the  order  of  three  years,  four months.

Defence submissions

[25]     Your  counsel,  Mr  Dodds,  has  assumed  in  his  submission  that  the  class  A offending should be the lead offending for sentence, but accepts that your sentence may be  fixed  in  the  sequence  the  Crown  has  taken,  with  which  I agree.  As  to the cannabis related offending, also aligning with Knutson, where he says the offending was, if anything, more serious, a contention the Crown disputes, he contends for a starting point of three years.

[26]     Your counsel accepts, though he would argue against it, that for the class A offences and the arms offences there might be an uplift of a year, perhaps one year, three months. He urges me not to add anything for your prior related convictions, a possibility that the Crown did put to me in principle.

[27]     Your counsel contends for a full one-third credit because, he contends, your plea  was  entered  at  the  earliest  practicable  opportunity.  Discovery was  incomplete and unordered and there were no deposition statements. Despite that you conceded the  facts  underpinning  the  charges  to  which  you  have  pleaded  and  the  police withdrew 29 charges.

[28]     A sentence of three years imprisonment  for  the  cannabis  related  offending, your counsel contends, stands scrutiny against Knutson. The parallels are not exact. But in that case the sentence imposed was two years, six months imprisonment and

is explained by a credit you are not entitled to because of your previous convictions.

Conclusions

[29]     The Crown does not accept that there is the parallel your counsel contends for between  Knutson  and  your  case  and  I  agree  the  parallels  are  not  exact.  Broadly speaking, I consider however, they are of the same general order of seriousness and I intend to sentence you on that basis.

[30]     I take as a starting point for the cannabis offending three years. There will be

an 18 month uplift for the class A and arms offending. The effect is that for all your

offences, subject to credit for plea, the term to be imposed would be four years, six months.  I will allow  you a one-third  credit  for  your pleas  and  for  remorse, and  to encourage you.

[31]     For the cannabis related offending, you will be sentenced to three years imprisonment. For the offers to sell LSD you  will  be  sentenced  to  18  months imprisonment, for the arms offences nine months imprisonment, and for the misuse

of a document two months  imprisonment.  All  these  sentences  will  be  concurrent.

Your effective sentence is three years, subject to standard terms on release.

P.J. Keane  J