R v B HC Christchurch CRI 2005-009-4017

[2005] NZHC 51

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2005-009-004017

REGINA

v

B

Appearances: J A Farish for Crown

S J Hembrow for Prisoner

Judgment:      16 September 2005

SENTENCE OF HON JUSTICE JOHN HANSEN

[1]            B     ,  you  have  pleaded  guilty to  charges  of  sale  of cannabis, two charges of possession of cannabis for supply and one charge of unlawful possession of a firearm.

[2]      On 28 March this year the police were called to your home after you had been the victim of an aggravated burglary.   In the house they found a sawn off loaded shotgun and a number of cannabis “tinnies”.  You stated that you were selling the cannabis from home and the gun was for your protection.  Within a very short time, that is on 7 April, the police searched your home.  They located ten ounce bags,

162 “tinnies”, and three cannabis pipes.  The total weight of cannabis in the ounce

bags was 267.2 grams, and the total weight of the “tinnies” was 141.1 grams.

R V B  HC CHCH CRI 2005-009-004017  16 September 2005

[3]      You  stated  that  you  had  bought  15  ounce  bags  for  $250  and  made  up “tinnies” to on sell at $20 each.  On these figures the police say you could have made a profit of $310 per bag, i.e. a total profit of $4,650.   The Crown, however, responsibly accept  that it is impossible to accurately ascertain the profit you have made because they accept you are a heavy user of cannabis and some of it would have been used by you.

[4]      In terms of the Sentencing Act this Court needs to look at the following purposes – denunciation; deterrence, particularly in relation to your repeat offending relating to cannabis; protection of the community; and rehabilitation which, frankly, seems a faint hope in your case.  As to the principles, the Court must consider the gravity of the offending; the seriousness of the type of the offence in comparison with others; desirability of a consistent approach and to impose the least restrictive outcome appropriate.

[5]      You are aged 42 years and you are in a long term relationship.  You suffer from poor health after suffering from a head injury at age 15.  You receive income from the Accident Compensation Corporation.

[6]      You state your heavy use of cannabis is for pain relief.   That, however, is contradicted by statements in the probation report where your doctor says more adequate pain relief could be prescribed.  When heavy cannabis users come before this Court it has become almost inevitable for them to state it is used for some form of pain relief, notwithstanding the lack of medical evidence that shows conclusively that cannabis grants better pain relief than medicines that can be properly prescribed by a doctor.  In any event, you are well aware from your past record that the use of cannabis, selling of cannabis and supply of cannabis is illegal.  It is for Parliament to determine whether or not it becomes an acceptable legal drug for pain relief.  To date Parliament has refused to contemplate that.

[7]      You have a number of previous convictions for dishonesty which I will set aside for the purposes of this sentencing.  I cannot ignore that in 1999, 1998, 1997 and 1994 you were convicted of possession of cannabis.  In 1993 you were convicted of possession of cannabis for supply.  More importantly, in 1996 you were sentenced

to 18 months imprisonment for possession of cannabis for supply and a further three months for possession of a firearm.  The offending here, although nine years later as your counsel submits, is a mirror image of that offending.  You appear to have learnt nothing from your previous appearances in Court.

[8]      Both counsel are in agreement that your case falls within category two of the Court of Appeal decision in R v Terewi [1999] 3 NZLR 62, that is small scale cultivation or supply for commercial purposes with a starting point of between two to four years.

[9]      The  Crown  point  to  the  decision  of  the  Court  of  Appeal  in  R  v  Mark (CA 470/03, 29/6/04) that the presence of a firearm is an additional aggravating feature that must be taken into account.

[10]     There are also decisions such as R v Keefe (CA 275/02, 28/11/02) and R v

Paenga (CA 433/95, 25/3/96) which I bear in mind.

[11]     The Crown submits the starting point should be in the range set out in Terewi and that that should be increased by six to nine months for the presence of the firearm.   Mr Hembrow, on your behalf, accepts the starting point but submits the increase for the presence of the firearm should be no more than six months.

[12]     In your pre-sentence report you were open as to the use of cannabis, although I  have  already  noted  your  doctor  doubts  the  severity  of  pain  and  there  is  a willingness by him to prescribe appropriate medication.

[13]     We have cleared up the dispute that could have been with the summary of facts and statements you have made to the probation officer and I do not need to return to that.

[14]     The report writer was clearly, and properly sceptical of your claim to him that the “tinnies” were for personal use.

[15]     Also of significance is that the report writer noted that you said inevitably you will do this again and you know you will be caught again.  Your counsel has

stressed disordered thinking from your head injury and from your continued use of cannabis.  Without a medical report there is a limited degree to which this Court can take that into account and it has not been suggested on your behalf that such a medical report should be obtained.  As far as possible I take that into account, as I do your guilty plea which despite very clear admission to the police did not come at the earliest possible stage.  If it had the Court could have made a much more generous allowance for that guilty plea.

[16]     There  is  premeditation  as  an  aggravating  feature  and   your   previous convictions.  In my view this must be placed at the upper end of Terewi because it so closely mirrors your previous offending which involved cannabis and firearms as well.  There is the aggravating feature of the firearm.

[17]     It seems to me appropriate to take a starting point of three years six months imprisonment for the cannabis charges looking on a totality basis, aggravated by six months for the firearm charge.   That gives a total effective sentence as a starting point of four years imprisonment.   For your guilty plea and the other factors mentioned by your counsel I will make an allowance of 12 months.  As I say, if you had pleaded guilty at the earliest possible stage it would have been greater.

[18]     Accordingly on both counts of possession of cannabis for supply you are sentenced to three years imprisonment concurrent.  On the unlawful possession of a firearm you are sentenced to 18 months concurrent.  On the sale of cannabis you are sentenced to three years concurrent.