R v B HC Auckland Cri-2009-044-9940

[2010] NZHC 1465

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-044-009940

THE QUEEN

v

B

Charges:Possession of cannabis for supply x2, Possession of utensils x1

Plea:               Guilty

Appearances: D Robinson for Crown

G A Anderson for Prisoner

Sentenced:     13 August 2010

11 months’ home detention

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            G A Anderson, North Shore City.

R V B HC AK CRI-2009-044-009940  13 August 2010

[1]      B  , you have pleaded guilty to two charges of possession of   cannabis   for   supply,   the   maximum   penalty   for   which   is   eight   years’ imprisonment.  You have also pleaded to one charge of possession of utensils, the maximum penalty for which is one year’s imprisonment and/or a fine not exceeding

$500.

[2]      The police executed a search at an address you lived at on 6 November 2009 and  found  there  the  pipe,  nine  tinnies  and  six  zip-lock  bags  containing  dried cannabis.  About 23 grams was found.  The police also recovered $400 cash, and a number of other zip-lock bags and electronic scales from your bedroom.  That led to the first charge.   You were remanded on bail for that offending.   Then, when the police carried out a second search at a property on 2 December 2009 they noted you were at the address.  A search of the room you were staying in revealed a number of containers containing loose cannabis material, 29 tinnies, eight zip-lock bags containing dried cannabis, tinfoil strips, and about 50 zip-lock bags.  A total of 105 grams of cannabis was located, as well as $1,070 cash in your wallet.  That supports the second charge that you have pleaded guilty to and are for sentence on.

[3]      In the meantime, to complete the picture, on 27 November 2009 you were sentenced in the North Shore District Court to a term of community detention for four months on a number of charges, including two of excess breath alcohol and a receiving charge.

[4]      You  are  now  22  years  old.    You  live  at  the  present  time  with  your grandparents.  You have a relationship with a partner of two years and you have a young child, born in June.   Your grandparents have been your primary caregivers throughout  your childhood.   You do not know  your father  and have  a strained relationship with your mother.   You report a happy upbringing and a good relationship with your grandparents.  Your grandfather is in Court today supporting you and I acknowledge his presence.  I also acknowledge the letter that he and your grandmother wrote to the Court acknowledging the issues that you have faced in your life but still setting out their strong support for you.

[5]      You do not have any formal qualifications and you have been employed in several casual jobs since leaving school.  You have a substantial amount of unpaid fines.  I note here I do not have a report before me this morning which would enable me to remit those fines but I invite Mr Anderson to advise you about that and to try and seek a remission of those fines so that you have a clean slate at the end of this exercise.

[6]      You accept the summary of facts and accept you were selling the cannabis for financial gain.  Your explanation for the larger size of the second seizure is that you decided to cease dealing and get rid of your remaining stock.  Of course, given that you were facing charges, you could have done that by destroying it rather than selling it.

[7]      You   are   assessed   as   a   medium   risk   of   reoffending   although   it   is acknowledged you have made some progress towards addressing your addiction to cannabis.  You have completed a CADS course which has been confirmed and the probation officer recommends a sentence of home detention in your case.

[8]      It is noted that you successfully completed the most recent sentence of community work and the probation officer considers you have thereby demonstrated a capacity to observe the restrictions of a community based sentence.

[9]      You  have  a  number  of  previous  convictions  for  a  range  of  offending. Although a relatively young man, you have offended in a number of different ways. Your counsel has urged on the Court that you are now effectively at a watershed in your life because of your young child’s birth, and that because of the time that you have been on bail and subject to strict curfew conditions pending sentence and the time that you actually spent in prison, you are now aware of the consequences of the sort of offending you have engaged in.

[10]     You do have previous convictions for failing to comply with community based sentences although they are in the past and I note the positive comments about your recent compliance by the probation officer.

[11]     In  sentencing  you  I  am  required  to  take  into  account  the  purposes  and principles of the Sentencing Act.  In this case the particularly relevant ones are:

•to hold you accountable for the harm done by your offending.  You have suffered as a result of your addiction to cannabis.   It is your actions Mr B   in supplying cannabis to others that causes that sort of harm to be inflicted and suffered by other people;

•         to promote in you some responsibility for what you have done;

•         to denounce your conduct;  and

•         to protect the community.

[12]     In relation to the principles of the Act I have to have regard to:

•         the gravity of the offending, which is your culpability in this case;

•the consistency with other decisions of the Court imposing sentences for offending of this nature.

[13]     I am also directed to take into account the Court should impose the least restrictive outcome and have regard to your rehabilitation in the future.  Whatever the sentence, at some stage in the future, you are going to be released back into the community and the Court must bear that in mind.

[14]     The Crown submit that in this case an appropriate start point is between two and two and a half years’ imprisonment, given the nature of your offending and argue for an uplift to reflect your previous offending and that the offending, particularly the second offending, occurred whilst you were on bail and subject to a sentence of community detention.

[15]     The Crown accepts a guilty plea discount is available to you.

[16]     Mr Anderson accepts that the offending falls within category 2 of R v Terewi[1] which is the leading Court of Appeal authority on sentencing for this type of offending but submits that a discount for guilty pleas approaching 33 per cent should be given.   He has argued strongly that in your case a sentence of home detention would be appropriate.

[1] R v Terewi [1999] 3 NZLR 62.

[17]     I have had regard to Terewi and a number of other decisions that counsel have referred to including R v Kihi;[2]; R v Owen;[3] and the case of R v Tautari.[4]

[2] R v Kihi HC Auckland CRI-2009-057-000153, 12 March 2010.

[3] R v Owen HC Whangarei CRI-2009-027-002809, 17 March 2010.

[4] R v Tautari CRI-2008-088-004130, 16 July 2009.

[18]     In your case, in my judgment, the start point for the offending you involved yourself in, can be set at around two years.   There are then personal aggravating features that you have to accept Mr B  .  I do not propose to make any uplift for your previous criminal history because it seems to me largely unrelated to this type of offending.   However,  I accept the Crown’s  submission that there  must be a realistic uplift to reflect that the fact that the second offending was committed whilst on  bail  and  while  subject  to  a  sentence  of  community detention.    It  is  totally unacceptable for you, having been before the Court on 27 November, to then engage in this sort of offending on 2 December.  You have to accept the consequences of that.  There will be an uplift of six months for that.  The start point for your sentence then is two and a half years’ imprisonment or 30 months.

[19]     I then propose, taking into account everything Mr Anderson has said on your behalf, including importantly your guilty plea, to give you a credit of 30 per cent for that.  That takes the end sentence down to one of 21 months’ imprisonment.  As that is a short term of imprisonment the Court is directed to consider whether home detention should be imposed in your case.

[20]     Home  detention  may  be  imposed  where  the  Court  is  satisfied  that  the purposes and principles of the Act can be properly addressed by such a sentence.

[21]     In your case Mr B   your past history does count against you in relation to home detention.   Your previous breaches of community work and supervision in

2008 and 2007 do count against you.  I am also conscious of the need for deterrence and denunciation.   However, I see you as a young man, as I said, who is at a watershed in his life.   You can either go forwards or  you can go back.   I am influenced in the ultimate sentence in your case Mr B   by the strong support that you have from your grandparents and I am also influenced, in part, by the confirmation you have taken steps during the time you have been awaiting sentence to  address  your  drug  addiction  and  that  you  have  completed  the CADS  course successfully.

[22]     I also take into account the views of the experienced probation officer who interviewed you and who has noted that you have complied and engaged with the most recent sentence of community work.

[23]     On balance, I am satisfied the Court can properly impose a sentence of home detention as opposed to sentencing you to imprisonment.

[24]     Would you please stand Mr B  .   Mr B   you are sentenced to home detention for a period of 11 months.   Home detention is no easy sentence.   As a condition of that sentence, you are to travel directly to 50 Moffat Road, Red Beach, Whangaparaoa and await the arrival of a probation officer and security officer.  You are to reside at that address and not to move from it without the prior approval of a probation officer under the requirements of home detention.

[25]     You are to abstain from the consumption of alcohol and/or illicit drugs for the duration of the home detention sentence.

[26]     You are to continue engagement in any approved alcohol or drug counselling treatment to the satisfaction of your probation officer and treatment provider, and you  are  to  otherwise  comply with  any programmes  directed  by  your  probation officer.

[27]     Mr B   you will have gathered from my remarks during sentence that you are on a knife edge.  The balance in your case, because of counsel’s submissions and the positive report before the Court from the probation officer has fallen towards home detention in this case.   It is your last chance.   You have a bad record for a young man.

[28]     I hope that with the support of your grandparents and the responsibility that counsel says you now feel because of your child, you take this chance.  Whether you do is up to you, but you must be under no illusion it is your last chance.

[29]     I make an order for forfeiture of the $400 and the $1,070 cash.  That is all, stand down.

Venning J