R v Baldwin HC New Plymouth CRI 2010-043-1441

[2010] NZHC 1458

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2010-043-1441

THE QUEEN

v

LISA MAREE BALDWIN KELLY SHANE MATTOCK

Hearing:         10 August 2010

Appearances: A Britton for Crown

K R Pascoe for Accused

Judgment:      10 August 2010

SENTENCE OF COOPER J

Solicitors:

Auld Brewer Mazengarb & McEwen, Crown Solicitors, PO Box 738, New Plymouth

Nicholsons, PO Box 68, New Plymouth

R V BALDWIN AND ANOR HC NWP CRI-2010-043-1441  10 August 2010

[1]      Lisa Maree Baldwin and Kelly Shane Mattock, you both appear today for sentence following your pleas of guilty to one charge each of selling cannabis and one charge of possession of cannabis for supply.  Each charge carries a maximum penalty of eight years’ imprisonment.

[2]      You are here because the District Court Judge considered that the penalties that might be imposed in that Court might be insufficient to mark the gravity of the offending.

[3]      On 9 April 2010 between 11.00 a.m. and 1.45 p.m. the police observed a number of individuals visiting your address at 26 Downe Street, New Plymouth. These visitors only stayed for short periods before leaving.  I note what Ms Pascoe has said this morning about that, that it is now alleged that some of those attending the address were doing so to visit a young mother who they thought was residing there.  One of those, however was searched and a cannabis tinnie was found in his pocket.  Shortly afterwards the police executed a search warrant at the address.

[4]      In a small office by the front door they located 25 cannabis tinnies in a plastic container, a set of scales, a part roll of tin foil and approximately $88.30 in cash in a drawer.  The prosecution alleged that the 25 cannabis tinnies had a street value of approximately $500 to $625.

[5]      Evidence from your cell phone Ms Baldwin, indicated that you were involved in the purchasing and selling of cannabis.  Your fingerprints were also found on two of the pieces of tin foil used to make the cannabis tinnies.

[6]      I  have  considered  the  pre-sentence  reports  that  have  been  prepared. Ms Baldwin, in your case the report tells me that you are 36 years of age and you are in receipt of the Domestic Purposes Benefit.   You have been unemployed for approximately six years.  You have a substantial number of convictions for offences involving dishonesty and you were convicted of possession of cannabis for supply on 30 October 2009, for which you were sentenced to 200 hours community work. You have convictions for the breach of sentences of community work for which you were convicted and discharged in December 2009 and May 2010.

[7]      You told the author of the pre-sentence report that you had been diagnosed with anxiety and depression and you also told her that you had sold cannabis to make ends meet.  She thought that you were remorseful, but took little responsibility for your actions.  You were receiving counselling at Tu Tama Wahine, and claimed that was helping you, yet the report noted that you had missed some sessions that you were due to attend.

[8]      I am pleased to hear this morning from Ms Pascoe that the counsellor whom you are currently seeing and who is present today in support of you, Ms Shenton, confirms that you are now regularly attending those sessions and getting a benefit from them.  The report writer noted that you had expressed a willingness to change, but at that stage assessed that you had a medium to high risk of re-offending.

[9]      Mr Mattock, you are 35 years of age.  You were residing with Ms Baldwin at the time of this offending.  You have been unemployed since last December and you receive a sickness benefit, and you also reported to have been suffering from depression.  I have read the letter that you have written and perhaps by the look of it, didn’t quite finish, but it tells me that you have in the past been gainfully employed, particularly in the fishing industry and if you could bring yourself to concentrate on how to go about your life, I expect that you could live a useful life and you are now perhaps on the verge of recognising what you need to do to bring that change about. Well that is to be encouraged.

[10]     I  do  note,  however,  that  you  have  a  substantial  number  of  previous convictions, including for possession of cannabis plant in June 2000, cultivating cannabis in May 2003 and procuring or possessing cannabis plant in August 2009. You told the author of the report that you sold cannabis “just to live really, just to makes ends meet”.

[11]     The report also notes that you use cannabis to alleviate pain, which is the result of an historic back injury.  You have undergone some counselling about your use of drugs, but despite that, you indicated to the author of the report that you had no plans to curtail your use of cannabis, and the author of the report thought that you were highly unmotivated to address your drug use.

[12]     In the case of both of you the author of the pre-sentence reports at the time thought   that   sentences   of   home   detention   or   community   detention   were inappropriate, but I have seen a subsequent report which indicates that in your case Ms Baldwin, you are a candidate for home detention and the fact that you have now proposed to serve such a sentence at your mother’s address alters the picture.

[13]     For the Crown, Mr Britton submits that your offending justifies a starting point for sentencing purposes in the vicinity of two years’ imprisonment, but emphasises your previous convictions including those for cannabis related offending.

[14]     The Crown acknowledges that you are both entitled to a deduction of one- third in respect of the guilty pleas which were entered at the earliest possible time. The Crown submits that you should be imprisoned for a period of 18 months and that a custodial sentence is appropriate, given the fact that the offending occurred at your home address and in light of your previous offending taken as a whole.

[15]     Ms Pascoe submits that a shorter term of imprisonment would be appropriate, of between nine and 12 months in your case Mr Mattock, but also seeks a final sentence of home detention in your case Ms Baldwin.  She argues that you were not involved in a sophisticated commercial operation and that there was a degree of personal use on your part, thereby minimising the extent of commerciality involved. While acknowledging your previous convictions she emphasised that the offending was at the less serious end of the scale and that community based sentencing had previously been imposed.

[16]   In mitigation she emphasised your early guilty pleas and a degree of acknowledgement of cannabis use as a factor contributing to your offending.  She maintained that this was small scale, commercial dealing, of limited extent and occurring over a short period of time.  She argued that a starting point of less than two years might be justified in terms of the leading decision in sentencing in this area, which is a decision of the Court of Appeal in R v Terewi.[1]   While I accept that this was small scale offending and there would not have been a great deal of profit

helping to meet your household expenses.

[1] R v Terewi [1999] 3 NZLR 62.

[17]     Although small in scale this was nevertheless offending with a commercial purpose and I think it justifies the normal sentencing approach to what I will refer to as a Terewi category 2 case.  I would, however, place it at the bottom of category 2 and adopt a starting point of two years, taking the charge of possession for supply as the lead offence and imposing concurrent sentences on the charges.

[18]     There are no aggravating features I think that need to be further taken into account in relation to the offending itself, but both of  you have these previous relevant convictions and I consider that an uplift on that starting point of three months, in the case of  each of  you, will be appropriate.   Allowing then a full deduction  for  the  guilty  pleas,  I  arrive  at  a  final  sentence  of  18  months’ imprisonment.  There is no basis as I see it for any further deduction from that figure.

[19]     So that is the sentence that I would impose, but the level of it means that I must  consider  home  detention.    In  your  case  Mr Mattock,  I  understand  that  a sentence of home detention is not sought, so that I need not take that any further.

[20]     In  your  case  Ms Baldwin,  the  Crown,  as  you  have  heard,  opposes  the imposition of a sentence of home detention on the basis of the fact that the offending occurred at your home and also on the basis of previous breaches of community based sentences.  On the latter issue I have heard from Ms Pascoe that there may be some explanation for those breaches centring on health issues and child care issues that you had at the time.  The positive report that Ms Pascoe has been able to convey this morning from Ms Shenton, your current counsellor, leads me to the view that you might now be prepared to adopt a more responsible attitude.  I note also there is some force in what Ms Pascoe says about the fact that a sentence of home detention may be easier in terms of the child care arrangements and indeed, health issues that you might have on an ongoing basis.

detention  is  where  your  mother  resides  and  that  address  has  been  assessed  as suitable.

[22]     I consider in the circumstances it will be appropriate to order that you serve a sentence of home detention and I will direct that you do so at the proposed address. Given the term of the sentence of imprisonment that would otherwise be imposed the sentence of home detention will be for nine months.

[23]     I now ask that you both stand.

[24]     Mr Mattock, for the reasons that I have earlier addressed, you are sentenced on the charge of possession of cannabis for supply to a sentence of 18 months’ imprisonment.  On the charge of selling cannabis, you are sentenced to a term of 15 months’ imprisonment. Both of those terms are to be served concurrently.

[25]     Ms Baldwin, I direct that you are to serve a sentence of home detention of nine months in respect of the possession of cannabis for supply charge, and of six months in respect of the charge of selling cannabis.  Those terms are to be served concurrently.   They are to be subject to the standard conditions and also to the special conditions which were attached to the pre-sentence report.

[26]     They  are  that  you  are  to  travel  immediately  to  106  Cook  Street,  New Plymouth following sentencing and await the arrival there of the probation officer and a security company.  You are to reside at 106 Cook Street, New Plymouth for the duration of the home detention sentence.   You are not to possess or consume alcohol or illicit drugs for the duration of the sentence.   You are to attend at and engage in alcohol and drug assessment treatment and counselling.  You are not to associate with any gang members for the duration of the sentence, and you are not to reside with Mr Mattock for the duration of the sentence.

[27]     I make an order pursuant to s 32 of the Misuse of Drugs Act 1975 for the destruction of the cannabis plant material located by the police at 26 Downe Street,

for forfeiture of the $88.30 in cash, located during the search.