R v B HC Whangarei CRI 2008-011-457

[2009] NZHC 557

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2008-011-457

CRI 2009-011-100

THE QUEEN

v

B 

Hearing:         15 May 2009

Appearances: Mr Coleman for Crown

K Johnson for B 

Judgment:      15 May 2009

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Whangarei

K Johnson, Whangarei

R V B   HC WHA CRI 2008-011-457  15 May 2009

Background

[1]      Ms B  , you appear for sentence today having pleaded guilty to certain drug offences.  There are two charges of possession of cannabis for supply and two of selling cannabis.   The maximum penalty for each offence is eight years imprisonment.

Facts

[2]      On 25 August 2008, Police executed a search warrant at 34 Plunket Street, Dargaville. You were present at that time.   Police located three tinnies inside a cigarette container in the lounge. There was also a blue bag with a snaplock bag in the lounge that contained one ounce of cannabis head.  When spoken to by Police, you admitted that you sold approximately 30 tinnies from that address between 22 and 25 August 2008. You also said that the three tinnies and the ounce in the bag were yours and that you intended to divide the ounce up to make more tinnies for sale.

[3]      Unfortunately you offended again whilst on bail.   On 18 February 2009

Police executed a second search warrant.  They located three cannabis tinnies in your bedroom and a further tinnie on the lounge floor. You arrived at the address while police were executing the search warrant.  You admitted that the tinnies were yours and that you intended to sell them and that you had sold cannabis on a regular basis since July 2008.

[4]      You explained that you would buy an ounce of cannabis each week and that you would divide this up into 20 to 25 tinnies which you would sell for $20 each.  So you were simply continuing to offend as before, and while you were remanded on bail.

Pre-sentence Report and Recommendations

[5]      A  pre-sentence  report  was  prepared  in  respect  of  the  first  offences.    It disclosed that you are 20 years old, of Maori descent and that you had been living with friends in Dargaville at the time of the offending. You had a difficult childhood involving physical and sexual abuse.  It is taking some time for you to deal with that. You moved to the Dargaville area in order to escape certain malign influences within your wider whanau.   You report difficulties in respect of your mental health and being on medication for that.  More recently you have had the benefit of counselling for the traumatic events of your earlier childhood.

[6]      Unfortunately  it  seems  that  your  move  to  Dargaville  was  not  entirely successful.   You say that this offending arose because you were trying to raise money in order to move away from Dargaville and to start a new life elsewhere. You accept that you need to find some new friends and associates and to avoid those who have been a poor influence in recent times. In that regard you have strong support from senior members of your marae who appear to be able to provide the moral and practical guidance you plainly need.

[7]      There are problems with alcohol and cannabis use.   They will need to be addressed if you are to avoid future offending, but the writer of the pre-sentence report considers that you have demonstrated a high degree of motivation to change. In particular, you are willing to accept further counselling.

[8]      The matter came before the Court in early February this year when Priestley J expressed the tentative view that, while the starting point must be a sentence of imprisonment, there was room for an alternative sentence of home detention.  But at that time he did not have before him a satisfactory home detention report, and accordingly sentencing was postponed.

[9]      Unfortunately, you have reoffended in the interim.   That is a matter I am bound to take into account.

[10]     On 24 March 2009 sentencing was further postponed by Stevens J.  That was because no home detention report was then available, and because the second set of charges had yet to be dealt with in the District Court.

[11]     Those charges have since been sent to this Court, the District Court having declined jurisdiction.  Moreover, the Court now has the benefit of a home detention report which identifies as a suitable address a residential property at 10 Kings Court Avenue, Dargaville.   The occupants of that address have also been approved for home detention purposes and they have signed the necessary consent forms.

[12]     The Court has been provided with several references, from which it is clear that you are a young woman of great potential.  You are regarded with affection by those who know you.   You have particular skills in computing work and in photography, and you are plainly not afraid of hard work.   You have no previous offences save for some traffic matters, and have pleaded guilty, having expressed your remorse for these offences.   I am satisfied that your contrition is genuine, notwithstanding the fact that you offended again not long after your initial apprehension.

[13]     The pre-sentence report writer recommends intensive supervision, coupled with either home detention or community detention.

Sentencing principles

[14]     In determining an appropriate sentence I need to hold you accountable for the harm done to the community by this offending.   I must do what I can to assist in promoting in you a sense of responsibility for, and an acknowledgement of, the harm drug related offending does.  The Court is bound to denounce your conduct and to impose a penalty which contains an element of deterrence, both for you and for others minded to  commit  the same sort  of  offence,  and  there is  an  element  of community protection in the Court’s approach to sentencing for drug offences.

[15]     Having said that, the Court is bound to do what it can to assist in your rehabilitation and reintegration into the community.  I take into account the matters

set out in s 8 of the Sentencing Ac 2002 and in particular, the need to impose the least restrictive outcome that is appropriate in the circumstances of this particular case.

Counsels’ submissions

[16]     Both counsel agree that sentencing is governed by the decision of the Court of Appeal in R v Terewi [1999] 3 NZLR 62 and that the case falls within band 2 of the guidelines there set out by the Court of Appeal. Category 2 encompasses small scale offending for a commercial purpose. The starting point for category 2 offending is generally between two and four years imprisonment, but where sales are infrequent and of very limited extent, a lower starting point may be justified. The Crown says that the case falls about the mid-point of category 2, and can be placed no lower because of your repeat offending.

[17]     On the other hand, Mr Johnson says that this case falls at the bottom end of band 2 and should attract a starting point of no higher than two years imprisonment,

Applicable cases

[18]     I have taken into account a number of earlier cases in respect of sentencing for cannabis offending:  R v Sibley HC WHA S05-029-1338 13 April 2006;  R v Taui CA 494/05 14 June 2006;  R v Mamanu HC AK CRI 2008-090-4226 18 November

2008,   Kemp v New Zealand Police HC New Plymouth CRI 2008-443-6 7 April

2008, R v Te Rangi HC AK CRI 2007-055-779 29 April 2008,  R v Schaumkell HC AK CRI 2007-004-014251 1 February 2008,   R v Taitua HC AK CRI 2007-092-

103667 15 February 2008.

Discussion

[19]     I am required to determine first what an appropriate term of imprisonment would be, and then to consider home detention as an alternative.  This offending falls towards the lower end of band 2 of Terewi.  Indeed, I would have fixed a starting

point of two years imprisonment but for the fact that you have offended again within such a short time of appearing in this Court on the earlier charges.

[20]   In my view, an appropriate starting point is two years three months imprisonment.   But in mitigation I must take into account your early guilty pleas, your youth, the absence of previous convictions and your remorse.    I deduct nine months  in  respect  of  your  guilty plea,  and  a  further  four  months  for  the  other mitigating factors.  That produces a finite sentence of 14 months imprisonment.

Home Detention

[21]     A sentence of 14 months imprisonment  is  a short  term  sentence for  the purposes of the home detention regime, and I must therefore consider whether a sentence of home detention should be imposed instead.   I pause to say that the alternative proposal of community detention and intensive supervision suggested in the latest pre-sentence report is not appropriate.  That is because the offending here is too serious and because you have offended again while on bail.

[22]   The legislative policy which underpins the home detention regime was extensively discussed by the Court of Appeal in R v Hill [2008] 2 NZLR 381. The plain purpose of the sentence of home detention is to reduce the number of people sentenced to imprisonment. Such a sentence reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention, rather than through imprisonment. But a sentence of home detention must be imposed in a manner that is consistent with the purposes and principles of sentencing as set out in the Sentencing Act.

[23]     In my opinion, home detention is appropriate here.   I take into account the fact that your offending, although manifestly commercial, was at a relatively low level.  Perhaps rather more importantly, there is your youth, your obvious potential, your remorse and willingness to alter your lifestyle if you can find the necessary support.  Plainly you fall within the criteria outlined in Hill.

[24]     You have the support of several people who are in good standing in the community, and in particular the proposed residential arrangements offer a measure of stability.

[25]     Some concern has been expressed by the police as to the risk of further offending in a residential setting.  That risk is low in the opinion of the probation officer.    But  I need  to  point  out  to  you  that  if  this  chance of  rehabilitation  is squandered, you will find that a future sentencing Judge will be most unlikely to adopt a lenient approach.

[26]     Sentences of home detention carry no parole provisions.  Accordingly, it is normal to make some allowance for that factor, but the assessment is not arithmetical because a sentence of home detention is not as onerous as a full time custodial sentence.

Sentence

[27]     In  all  the  circumstances  you  will  be  sentenced  to  eight  months  home detention.  I impose the following conditions:

a)        Immediately following today’s hearing you are to travel directly to 10

Kings Court Avenue, Dargaville and await the arrival of the probation officer and a representative from the monitoring company;

b)You  are  to  reside  at  10  Kings  Court  Avenue,  Dargaville  for  the duration of, and in compliance with, the conditions of the home detention sentence;

c)       You are to abstain from the consumption or possession of alcohol or non-prescription drugs for the duration of the sentence of home detention;

d)You are to attend alcohol and drug counselling as directed by the probation officer;

e)        You are to attend any such counselling as directed by the probation officer; and

f)        You are to attend and complete such psychological assessment and treatment as is directed by the probation officer.

C J Allan J