R v B HC Napier CRI 2009-041-3474

[2010] NZHC 95

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2009-041-3474

THE QUEEN

v

B

Hearing:         2 February 2010

Counsel:         N M Graham for Crown

M McAleer for Accused

Sentence:       2 February 2010

SENTENCE OF SIMON FRANCE J

[1]      Mr B   appears for sentence on four counts of selling cannabis and two of offering  to  sell.    On  each  occasion  he  sold  one  or  two  tinnies.    The  charges concerning offering to sell involve similar quantities.

[2]      Mr B   has many previous convictions.  In 2008 he had convictions relating to cannabis use.   His earlier general offending, which had seen him sentenced to periodic detention but not jail, occurred in 2000 or earlier.

[3]      Mr B    lives  with  his  long term  partner  and  three  children.    Mr B    is suitable for home detention.

R V B HC NAP CRI 2009-041-3474  2 February 2010

[4]      I consider that the offending is suitably met by a sentence of home detention. Mr B  ’s past record does not rule that out, and the level of sales is at the very bottom end.  I am conscious that the sales are from his house, and there have been comments about the appropriateness of home detention in such circumstances, but the Court of Appeal in R v Paki (CA 165/05) made it plain that whilst unusual, it was not an unavailable option.

[5]      The pre-sentence report notes that Mr B   is considered suitable for home detention although itself recommending a sentence of imprisonment.

[6]      Mr B   is comparatively young at thirty-two years of age.  He has in his life committed far too many offences, and now at this stage finds himself on the verge of going to prison.  However, he is in a settled relationship, and has three children.  He has  not  previously offended  in  this  way,  and  is  fortunate  that  the  level  of  the offending allows the Court some flexibility.  Mr B   has employment and seems to have been making positive strides to turning things around.   I consider it is an appropriate  occasion  to  give  Mr B    somewhat  of  another  chance  and  so  have settled upon a sentence of home detention as the appropriate outcome.

Sentence

[7]      Mr B   you are sentenced to seven months home detention.  The conditions of the sentence are:

a)       that you reside at 530 Gladstone Road, RD 2, Carterton and remain at that address unless the prior written approval of a probation officer is given;

b)that you undertake and complete a drug and alcohol programme to the satisfaction of the programme provider and a probation officer;

c)        that you abstain from alcohol during the period of home detention.

[8]      Mr B   is to go now straight to Carterton and to remain there until electronic

monitoring has been arranged.

Solicitors:

Simon France J

N M Graham, Elvidge & Partners, PO Box 609, Napier, email: [email protected]

M McAleer, Napier Law, PO Box 1002, Napier, email: [email protected]