R v B HC Wellington CRI 2008-085-8760
[2009] NZHC 1810
•19 June 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2008-085-8760
THE QUEEN
v
B
Hearing: 19 June 2009
Counsel: G A Kelly for Crown
K Jefferies for Accused
Sentence: 19 June 2009
SENTENCE OF SIMON FRANCE J
[1] Mr B appears for sentence on three charges involving cannabis dealing. He appears in this Court because the District Court declined jurisdiction.
[2] The charges are:
a) possession of a Class C controlled drug (cannabis) for the purpose of supply;
b) sale of a Class C controlled drug (cannabis); and
c) conspiracy to sell the same drug.
R V B HC WN CRI 2008-085-8760 19 June 2009
[3] The offending began in 2007 but seems to have mainly occurred in mid 2008.
[4] You sourced your cannabis from a group operating out of Westport. The first two purchases were for one pound and two pounds respectively. You then on-sold these still in the bulk quantities. On the third occasion you became the retailer, selling two pounds to about ten clients. From these three transactions you made a profit of $6,600. I note here in passing your admissions on arrest suggest one further purchase of another pound.
[5] Then November 2008 your car was stopped after you had made yet another purchase. On this occasion you had three pounds of cannabis in your possession. You were going to on-sell it as retailer to your small group of clients.
[6] The conspiracy charge relates to the operation occurring in Westport. It involved growing the cannabis, and then selling it. Over and above the purchases, your involvement seems to have been to rent one of the properties, which was used to grow cannabis. You deny knowledge of what was happening with the property, but have pleaded guilty to participation in the wider conspiracy. It is not suggested you were to profit from the conspiracy other than through whatever deals you personally did.
Personal circumstances
[7] You are forty-one, single, self-employed with two children from a previous marriage. You have been diagnosed with post-traumatic stress disorder as a result of events when you were younger. It is said that this led to the breakdown of your marriage when you began to deal with the issues many years later. You have also been diagnosed with a major depressive episode in December 2008. Your relationship with both your parents is described as unsatisfactory and the psychological reports suggest that that has contributed to your difficulties. You are a regular of cannabis to the point of being dependent on it. You have a varied employment and business history but currently manage a successful business organising motor cross events.
[8] The psychologist considers that your offending was out of character and can be understood within the context of the psychological factors she identifies.
[9] The pre-sentence report confirms your background and notes that you accept responsibility for your offending, which displayed poor decision making and the influence of associates. You have never previously appeared in Court and you are considered a low risk of re-offending. The probation officer recommends home detention with special conditions.
[10] Several letters of support have been provided. In addition the psychologist has provided an updated report which confirms your continued progress and the desirability of maintaining that treatment.
Submissions
[11] The Crown submits that the starting point is 3½ to four years being the middle to top of R v Terewi [1999] 3 NZLR 62, category two. It takes the approach of identifying the overall operation, fixing a starting point for that, and then placing the individual offender within it. Mr B is placed within “a lower tier” of the conspiracy.
[12] No aggravating features are identified. It is accepted mitigation is due for early pleas and previous good record. The Crown queries whether the psychologist report adequately demonstrates any direct causal link between Mr B ’s life history and the personal circumstances on the one hand, and the offending on the other. It is accepted that if Mr B ’s final sentence allows home detention, his application has some strength.
[13] Mr Jefferies urges the Court to accept the recommendations of the psychologist and the probation officer that a sentence of home detention is appropriate. The psychologist’s view is that it is important for Mr B to continue in business, and to maintain contact with his daughters. That will assist him to deal with the psychological issues he is confronting. Imprisonment will represent a serious set back.
[14] Mr Jefferies notes co-operation with the police. It appears that Mr B has named names but has not formally signed anything, nor committed to testifying. He is concerned by consequences, having apparently received threats. The police had not progressed the matter apparently through uncertainty that Mr B will actually go through with it, he having not signed the statement. I have no doubt that the offer of assistance is genuine but in the circumstances it appears unlikely to come to fruition.
[15] Mr Jefferies notes Mr B ’s peripheral role in the conspiracy, his early pleas and his genuine remorse. His suggested starting point is three years.
Starting point
[16] I turn to the starting point. I prefer to begin with the sale and possession for supply offences. Based on the recent Court of Appeal decisions of R v Gray [2009] NZCA 31, R v Duncan [2009] NZCA 18 and R v Rakatau CA404/06,
23 February 2007, I consider the starting point for approximately four kilos of cannabis is two years, nine months. It could be three years but I note the lower profits made, especially from the bulk sales.
[17] I have not taken conspiracy as the lead sentence because the facts linking Mr B to it are somewhat vague in my view. Aside from being a purchaser, there is assistance in the form of renting a property but it is not claimed in the summary of facts to have been knowing assistance. It is clear from the circumstances of arrest that Mr B intended to continue dealing, but his commitment to the greater conspiracy is very unclear to me. However there is a plea, there is the ongoing commitment and for these reasons I add six months to the starting point, giving a total of three years, three months.
Mitigation
[18] The pleas were entered early, and there has been no effort by Mr B to avoid responsibility. A full one third discount is appropriate, taking the sentence to twenty-six months.
[19] In order to consider home detention the sentence must be two years or less. I am aware that one is not to finesse appropriate sentences to come within the range. I also note that a full one third discount is usually taken to represent factors such as remorse, and that in the area of drug offending personal circumstances usually carry little weight because of the need for deterrence.
[20] That said, it is always important to remember it is an individual being sentenced. If home detention seems the correct sentence in the interests of both Mr B and society generally then two months would not deter me. The factors of early co-operation, frankness, a low risk of re-offending, previous good character, and the life events discussed by the psychologist would justify a two month adjustment. Like the Crown I doubt a direct causal link, but one should not be blind to the reality that what makes a forty year old man of previous good character suddenly start offending in this way will inevitably involve a complex matrix of factors. For these reasons I consider home detention to be available if it is an appropriate response. I note the technical requirements such as a suitable address are met.
[21] The offending was primarily profit driven, although the gains were never going to be large. That motivation augments an existing presumption in favour of deterrent responses.
[22] On the other hand a full term of home detention, for that is what it would be, is not a trifle. It would impose a considerable burden on Mr B and prove a true test of his insight and commitment to getting things back on track. Mr B runs a business, and has two daughters who are not in his care but who do visit him and who will benefit from on-going contact with him.
[23] Mr B himself seems to be responding to appropriate counselling and whilst that can occur in a custodial environment, one is loathe to break existing arrangements without good reason.
[24] In the end, I consider that Mr B ’s link to the wider conspiracy was not at a level that would make it inappropriate to allow a sentence of home detention. There are many factors in favour of such a sentence, by no means the least of which are some of the principles in the Sentencing Act.
[25] I accordingly confirm that a sentence of home detention will be imposed on the standard and special conditions recommended in the reports.
[26] On the sentences of possession of Class C controlled drug, sale of the same drug and conspiracy to sell the drug I sentence you to concurrent terms of twelve months’ home detention.
[27] I will now set out the conditions but reserve the right to amend those noting that the full report is not presently available to me.
[28] I impose the standard conditions and direct:
a) that the home detention address will be the lower flat, 12 North
Terrace, Kelburn, Wellington;
b)that you, once formalities are attended to, leave the Court and proceed straight to that address and to await the arrival of the probation service;
c) that you comply with all instructions and conditions of your terms of home detention and electronic bail and of the community service;
And I impose the following special conditions:
d) that you attend any alcohol and drug assessment required;
e) you attend and complete any treatment, counselling or programmes as recommended by the alcohol and drug assessment to the satisfaction of the probation officer and treatment provider;
f) that you attend and complete any other counselling, treatment or programmes as directed by the probation officer to the satisfaction of
the course facilitator and the probation officer.
Simon France J
Solicitors:
G A Kelly, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]
K Jefferies, Jefferies Raizis, PO Box 10641, Wellington, email: [email protected]
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