R v Askin

[2012] NZHC 1861

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-042-192 [2012] NZHC 1861

THE QUEEN

v

DANIEL ALEXANDER ASKIN

Hearing:         30 July 2012

Counsel:         J M Webber for Crown

M G Dollimore for Accused

Sentencing:     30 July 2012

SENTENCING NOTES OF MACKENZIE J

[1]      Daniel Alexander Askin you appear for sentence on one count of possession of cannabis for sale and two counts of unlawful possession of firearms and explosives.  The count of possession, as laid, was a count of possession for supply. Counsel for the Crown seeks leave to amend that to one of possession of cannabis for sale and that is not opposed and I sentence you on that basis.

[2]      You are here in the High Court for sentencing because the District Court has declined jurisdiction to sentence you.  The circumstances are that on 27 April 2012 you were visiting the home of an associate and were unfortunate enough to be there at the time when police came to execute a search warrant at that address.   Your vehicle was searched in the course of that and police located two one ounce cannabis head deal bags in your car and also a large quantity of ammunition.  As a result of

that a search warrant was executed at your home address in Reefton.  In the rafters of

R V ASKIN HC NEL CRI-2012-042-192 [30 July 2012]

the garage police located a total of 34 deal bags each containing approximately one ounce of high grade cannabis head material, some cannabis leaf material, packets of snap lock bags and in another part of the garage they located two small plastic bags of cannabis seeds, a set of hand held scales and some rifle ammunition.   In a bedroom  police  discovered  four  rifles,  a  .22  magnum  rifle,  a  .270  rifle,  a

.357 magnum rifle and a 12 gauge single shotgun with a cut down stock minus the barrel, and further ammunition was found.  Further cannabis was also located in the house.  In total you had 1.328kgs of high grade dried cannabis head, and 52gms of dried cannabis leaf.

[3]      You said in explanation to police that you had grown the cannabis to sell it. You have since said that you found a cannabis plantation which you harvested. Whatever the rights and wrongs of that may be, it is clear that you did seek to benefit from the sale of that cannabis crop. The firearms you say were used for hunting.

[4]      I turn now to your personal circumstances.   You are 21 years old and live with your partner and three year old son.  You have a supportive family and I have letters from both your partner and your parents who are strongly supportive of you. You left school at 15 years with no formal qualifications and your education was handicapped by a learning disability.  But you have since leaving school been in full employment  and  are  currently  in  employment.    I  have  references  from  your employer,  and  from  others,  who  indicate  that  you  are  an  industrious  and  well regarded employee.   You have positive reports, both from the pre-sentence report writer and from the Alcohol and Drug Service, which indicate that your risk of reoffending is low.

[5]      In sentencing you I must have regard to the purposes of sentencing which are to hold you accountable for your offending, to denunciate your offending, and to deter you and others from such offending.   I must fix a starting point for your offending which has regard to those principles.   I take as the lead offence the cannabis offending.  That is subject to the guidance provided by the Court of Appeal in R v Terewi.[1]    That categorises cannabis offences into categories, the second of which is small scale cultivation for a commercial purpose, and dealing in a similar

[1] R v Terewi [1999] 3 NZLR 62 (CA).

way for a commercial purpose.  The Crown submits that a starting point should be in the middle of band two of Terewi and submits for a starting point of three years. Your counsel submits that the starting point could be lower than that.   I have considered the matter and I have referred to, and considered, a number of cases.[2]

Taking the circumstances of the offending into account I adopt a starting point for

the cannabis offending of two and a half years.   I must uplift that to reflect the firearms charges.   The presence of firearms in connection with drug dealing in a matter of very grave concern to the Courts and generally requires a stern response. In your case however, at least in the case of the rifles, the presence of those is explained, although not excused, by your interest in hunting and your use of those firearms for hunting.  I am slightly more troubled by the presence of the shotgun, but in all the circumstances, particularly having regard to the fact that you do appear to have a legitimate, though not lawful, use for the firearms for hunting, I would uplift the starting point by six months to reflect those charges.  That leads me to a total starting point of three years.

[2] NZ Police v Galyer [2012] NZHC 1806; R v Keefe CA275/02, 28 November 2002;  R v Wihongi and Cook HC Dunedin T-2009-012-4390, 17 December 2009;   R v Rakata [2007] NZCA 21; R v Gray [2009] NZCA 31.

[6]      I now come to personal factors.  There are no aggravating personal factors and your personal circumstances are mitigating.  You are relatively young, you have no previous convictions, and you have been of previous good character and, as I have said, have been a good worker.   I consider that a degree of leniency is appropriate in respect of your personal circumstances to the extent that I would deduct from the starting point four months to take into account your age at the time of the offending and your previous good character.  I must then also allow a credit for your guilty plea which you entered at the first reasonable opportunity.  That was entered very early, and you are to be commended for having taken responsibility at an early stage for your offending.  That would lead to a discount of 25 per cent from the sentence otherwise imposed, or a deduction of eight months from the starting point reduced by the discount that I have given for your age and character.

[7]      That would leave an end sentence of two years imprisonment.   That is a sentence which renders you eligible for a sentence of home detention.  Your address

has been assessed as suitable for a sentence of home detention.  I have come to the conclusion that in your case home detention is the appropriate outcome and that is the sentence that I intend to impose.

[8]      You are a first offender with no previous convictions.  I consider that there is a risk if you were sent to prison that would increase rather reduce your risk of reoffending.  You have a good work ethic.  Personal circumstances usually count for little in relation to drug offending but I consider that in your case the purposes of rehabilitation would be better served by a non-custodial sentence.  That sentence I consider can sufficiently meet the purposes of sentencing of denunciation and deterrence.  One of the factors which weighs against the sentence of home detention, that I have decided to impose, is that your offending occurred in your home and this material was found in your home.   That is usually a significant barrier to the imposition of a sentence of home detention in the home, but in your case I have decided that it should not prevent that sentence.  The material that I have read and the submissions from your counsel persuade me that you have learnt a lesson and that you will not be tempted into reoffending.  You have a supportive partner and I am sure that she will do her best to ensure that you keep out of trouble in the future. So that in this case I am prepared to grant you home detention, notwithstanding that it is at the location of your offending.

[9]      It seems that you may not be able to keep your present job which involves shift work on a sentence of home detention.  That would be unfortunate.  I leave for the consideration of others what can be done to accommodate this.  I am confident that a young man with your work ethic will be able to obtain some other employment if that becomes necessary.  It may be a matter for consideration, whether the terms of home detention can be arranged in such a way as to meet any employment needs, but that is a matter for further consideration at a later stage.

[10]     So the sentence which I impose on you is:

(a)That you will be sentenced to home detention for a period of twelve months.

(b)      The start date will be deferred until Wednesday, 1 August 2012. (c)    The following conditions are imposed:

(i)You are to reside at 40 Munson Street, Reefton for the duration of the sentence;

(ii)      You are to complete any counselling programme or training intended to assist in the preventing of reoffending if directed by, and to the satisfaction of, the probation officer and service provider;

(iii)     You are directed to be present at 40 Munson Street, Reefton on Wednesday, 1 August, and to await the arrival of a probation officer who will install the monitoring equipment;

(d)There  will  be  an  order  for  the  destruction  of  the  cannabis  and materials, and for the firearms and ammunition.

(e)The bail will be continued until Wednesday.  Bail will be on the basis that Mr Askin is to go directly to the address and will be at a 24 hour curfew  there  until Wednesday,  when  the  home  detention  sentence takes effect.

(f)The standard post release conditions will apply, for a period of six months.

“A D MacKenzie J”

Solicitors:           O’Donoghue Webber, Nelson, for Crown.

Mark Dollimore, Lawyer, Nelson, for Accused.