R v B HC Palmerston North CRI-2008-054-5896

[2009] NZHC 542

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2008-054-5896

THE QUEEN

v

B

Hearing:         13 May 2009

Appearances: Mr Shannon for the Crown

Mr Coles for Mr B 

Sentence:       13 May 2009

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Mr B   you appear for sentence on a charge of possession of cannabis for sale (ss 6(1)(e), (f) and (2)(c) of the Misuse of Drugs Act 1975).  That offence carries a maximum penalty of eight years’ imprisonment.

[2]      You appear for sentence in this Court because the District Court declined jurisdiction.   It declined jurisdiction because of the lower maximum penalty that

would have applied if the District Court had sentenced you.

R V B HC PMN CRI-2008-054-5896  13 May 2009

Circumstances of offending

[3]      The circumstances of your offending are that on the morning of 18 October

2007 the police executed a search warrant at your home address.   They found a number of items that indicated your involvement in drug dealing.  The items found included:

a)       A small note pad with a list of ten names and amounts in dollars written beside each name, which the Police believed to be a “tick list”;

b)Two mobile phones, one in your possession and the other in your bedroom – containing a number of text messages consistent with dealing in drugs;

c)        Small ziplock bags;

d)       A small quantity of methamphetamine;

e)        Two sets of scales; and f)         $4,090 cash.

[4]     As a result of finding these items, you were charged with supplying methamphetamine and possession of methamphetamine.  You pleaded guilty to the possession charge and pleaded not guilty to the supply charge.

[5]      You elected to give evidence at your trial in the High Court.  Your evidence was that the tick list and the text messages related to the sale of cannabis to other persons.  You said that the column headed “G” referred to money you had received (the “G” standing for “got”) and the column headed “W” money you were waiting for  (the “W” standing for  “waiting for”).    You  gave  evidence as  to  the  name, quantity and dollar amount for each tick list entry.  In total, in your evidence about the tick list, you admitted to selling around two pounds (or 907 grams) and about

three tinnies of cannabis to seven people in seven transactions for a total value of

$8,905.

[6]      You were acquitted by the jury of the methamphetamine supply charge, but as a result of your evidence you were then charged with possession of cannabis for sale.  Once this new charge was brought you entered a prompt guilt plea.

Personal circumstances

[7]      Mr B   you are 26 years old.

[8]      You have 11 previous convictions covering the period 2000 to 2007.  Two of those are for cannabis offending – cultivation in 2001 and possession, also in 2001. One of the 11 is the possession of methamphetamine charge relating to the methamphetamine found pursuant to the search warrant executed on 18 October

2007.

[9]      At  the  time  of  the  present  offending  you  were  subject  to  a  sentence  of community work for driving while suspended.  You have unpaid fines of $16,000. You have one conviction for breach of community work, but I am told that you have now completed your 70 hour sentence.

[10]     You have a partner and an eight and a half month old baby.   You told the probation officer that you have recently found employment and are worried that you will lose that employment because of this offence.

[11]     You said that the present offending occurred because  you  were smoking cannabis on a daily basis and you were experiencing financial difficulties because you were between jobs.

[12]   You said that you have self-referred to an alcohol and drug treatment programme and that you have stopped using cannabis.   You said that you did not want your child brought up in that environment.

[13]     There are positive references from two of your previous employers.  You are presently in good employment as a trainee rail track welder.   This job presently involves travel to various locations.

Preliminary issue

[14]     The information charges that “on or about the 18th day of October 2007” you had in your possession cannabis for a purpose set out in s 6(1)(e) of the Misuse of Drugs Act, namely to sell.

[15]     The text  messages,  which  you  admitted  at  your  trial  related  to  cannabis dealing, were made on 17 and 18 October 2007.  The tick list does not have the dates of the transactions, and nor was there direct evidence of this in the High Court.  In the District Court submissions that were prepared on your behalf, it was submitted that you should be sentenced only on the basis indicated in the text messages, and not on the basis of the tick list.  It was said that the text messages indicated small quantities only and it was said that the tick list showed only an ongoing involvement in dealing of cannabis but not when this occurred.

[16]     This morning your counsel advised me that he accepts that the tick list can be treated as proximate to the offending and an aggravating feature of the offending.  I agree with this approach.   On the evidence, you have admitted that the tick list related to cannabis you were selling in seven transactions.   In addition you gave evidence that:

a)        The reference to “uncle 450” in the middle of the tick list was a reference  to  you  depositing  $450  in  your  uncle’s  account.    This related  back  to  the  TAB  deposit  slips  in  photograph  five  of  the exhibits.  The date on these slips is 17 October 2007.

b)The last entry, Maty, related to the last of the cannabis you had for sale.

c)        Some people on the tick list had paid you and you were waiting for payment for others.

d)You still had the methamphetamine you had been “paid” for some of the cannabis .

e)        On 17 October 2007 you “still had a couple left” of cannabis supplies.

f)        The  Police  did  not  find  any  cannabis  when  they  searched  the residence on 18 October because you “had sold the lot”.

[17]     The text messages also indicate your involvement in cannabis dealing over a two day period on 17 and 18 October.  The date of the text messages is consistent with the above evidence about the tick list.

Sentencing Act principles and purposes

[18]     In  sentencing  you  I am  required  to  take  into  account  the  principles  and purposes of sentencing set out in the Sentencing Act.  Of particular relevance here are denunciation and deterrence and consistency with other offenders convicted of similar offending.

Starting point

[19]     I approach your sentence by first considering what sentence for the nature of the offending would be appropriate, before taking into account aggravating or mitigating factors personal to you.

[20]     The Crown submits that an appropriate starting point for the nature of the offending would be three to four years’ imprisonment.  This is on the basis that the evidence indicates a scale of commerciality that would fall within the middle to upper range of band two in the Court of Appeal’s guideline case of R v Terewi [1999] 3 NZLR 62. It particularly relies on what it says is the repeated nature of the offending.

[21]     Your counsel submits that this offending would be within band 2 of that same case.   He emphasises in his submissions that the amount of cannabis evidenced might have come from the equivalent of two plants.  He also emphasises the close proximity of the offending, which he says does not indicate offending of a time continuum that indicates a greater menace to the community where the offending occurs over a longer period of time.  Your counsel submits that taking into account the nature of the offending, an appropriate starting point would be two and a half years’ imprisonment.

[22]     In my view the circumstances of your offending, before I take into account aggravating and mitigating factors that apply to you, do warrant a starting point of two years and six months’ imprisonment as your counsel has submitted.

[23]     I consider that the scale of the offending is in band two of Terewi and, looking at some comparable cases, it seems to me that your offending is at a slightly lesser scale than in R v Pula HC AK CRI-2005-004-8014 6 September 2005 and R v Wati HC AK CRI-2005-057-272 5 April 2006 and more similar to other cases such as R v Wihongi HC WHA CRI-2008-027-1803 19 November 2008, R v Thomson (alt cit R v Cockburn) CA244/00; CA210/00 7 September 2000, R v Clegg HC TAU CRI-2008-070-2119 9 July 2008  and R v Prangley HC AK  CRI-2005-055-1664

16 August 2006.

Aggravating and mitigating factors

[24]     The aggravating factor personal to you relied on by the Crown is that you committed the offending while subject to a sentence.  I consider this is adequately taken into account in the starting point that I have taken and I do not consider it warrants a lengthier term of imprisonment than the starting point I have adopted. Your previous convictions are not relied on by the Crown as aggravating and I agree with that.  You have no previous drug dealing convictions.

[25]     The mitigating factor is your guilty plea.  The Crown says the discount for this should reflect that the plea followed your full confession.   Your counsel says that you should be given a full discount for the guilty plea because you pleaded

guilty to the charge at the first opportunity that you were given.  I am prepared to grant  you  a full discount recognising that  you  were charged  with  more  serious offending and were acquitted, and that your guilty plea was made at the first opportunity on this charge.  Allowing for that discount I arrive at an end sentence of

20 months’ imprisonment.

Home detention

[26]     This qualifies as a short term sentence of imprisonment and so means that a sentence of home detention can be considered.  The proposed residence is the house you are living in with your partner and child.   You rent this from your partner’s parents.

[27]     The  probation  officer  recommended  a  sentence  of  imprisonment  because Child Youth and Family Service reported to the probation officer that it would not support a recommendation that you live with a child when you have been convicted of drug offending.  I do not have the report from the CYFS.  However I do not see their concerns as disqualifying you from home detention.  The drug dealing is not alleged to have occurred at this address.  It occurred prior to the birth of your child. You  have  indicated  a  realisation  that  your  offending  is  not  an  appropriate environment for a child and there is no real indication that your child is at harm in these circumstances.

[28]     The other issue raised is whether you will be able to afford the rent.  You told the probation officer that you could not if you are unable to continue to work.  The current position is, however, that you expect to be able to continue to reside at the premises even if you are unable to continue your employment.  It seems to me that this uncertainty about whether you will be able to meet rent payments is not disqualifying either, particularly in view of the present and updated position that you will be able to continue to reside there.   And, of course, if it transpires that you needed to move addresses there are provisions in the Sentencing Act that can address that.

[29]     I  consider  that  the  purposes  and  principles  of  sentencing  are  met  by  a sentence of home detention.   There are a number of recent examples where home detention  has  been  imposed  for  this  kind  of  offending.    The  Court  of  Appeal indicated in R v Hill [2008] 2 NZLR 381 that home detention can be considered. The recent examples that I refer to include R v Bennett HC AK CRI-2008-092-15900

17 March 2009, R v Awa HC AK CRI-2007-035-2197 17 February 2009 and R v Hemara HC WHA CRI-2008-088-4632 4 February 2009. I also note your rehabilitative efforts as advised to the probation officer, and living with your partner and child may also assist your rehabilitative efforts.

[30]     Aside from  the Child  Youth  and  Family Service’s  comments,  the  s 26A

report indicates that the proposed address is suitable.

[31]     Accordingly I sentence you to [nine months’] [ERROR: see below] home detention.   The home detention address will be 43 Chatsworth Place, Palmerston North.  [Having clarified with the probation officer present in court the conditions sought] the probation officer seeks and I accordingly order the following further conditions:

a)        Firstly    that    you    travel    directly    on    release    from    Court    to

43 Chatsworth Place, Palmerston North and there await the arrival of a probation officer and a representative of the monitoring company;

b)Secondly you are not to consume or have in your possession any illicit drugs; and

c)       To   undertake   an   assessment   for   alcohol   and   drug   treatment counselling or programme and, if found suitable, attend and complete to the satisfaction of the probation officer.

[32]     The period of the home detention will be a period of 10 months.

Forfeiture

[33]     The  Crown  seeks  forfeiture  of  the  $4,090  cash  found  during  the  search warrant.   Your evidence was that it related to the sale of motor vehicles shortly before the execution of the warrant.  There was independent evidence to support this at the trial (evidence from a Crown witness and two witnesses who gave evidence for the defence).  The Crown says that the independent evidence is unreliable, but did not provide me with the relevant evidence to make this assessment.   The Crown further says that because the cash was found with the scales I should infer that it was for the purposes of offending.  Your counsel however makes the point that the scales found with the cash were the black scales which appear more likely to have been used for the methamphetamine use, rather than your cannabis dealing, given the quantities of cannabis indicated by each of the transactions in the evidence.

[34]     In the circumstances, therefore, I am not satisfied that the forfeiture order should be made and I decline to make it.

Clarification

[35]     [Mr Coles having pointed out my conflicting references to the period of the home detention – refer [31] and [32] above]   I confirm that the period of home detention is to be 10 months.  That was the period I intended.  I did not realise I had earlier said nine months and I did not intend that to be the period.

Mallon J

Solicitors:

C J Shannon, Ben Vanderkolk & Associates, Palmerston North, [email protected]

P Coles, Palmerston North, [email protected]