R v Blackburn
[2013] NZHC 151
•11 February 2013
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI 2011-043-2338 [2013] NZHC 151
THE QUEEN
v
RYAN ADAM BLACKBURN
Hearing: 11 February 2013
Appearances: N L Elliott for Crown
P Keegan for Blackburn
Judgment: 11 February 2013
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor New Plymouth
P Keegan, New Plymouth
R V BLACKBURN HC NWP CRI 2011-043-2338 [11 February 2013]
[1] Mr Blackburn, you appear for sentence this morning having pleaded guilty to one charge of conspiring to supply a class C drug, Ecstasy, for which the maximum penalty is seven years imprisonment.
Factual background
[2] You were apprehended by the police as part of an extensive investigation into the sale and supply of illegal drugs in the New Plymouth area, and more broadly the activities of a newly formed Taranaki chapter of the Rebels Gang and their associates.
[3] Between 15 July and 7 August 2011, the police obtained substantial text message evidence that established a relationship between you and Mr Nathan Couper, a member of the Rebels Gang. The various text messages concerned arrangements for the sale and purchase of drugs, including cannabis, but more particularly Ecstasy.
[4] I summarise these text messages as briefly as I can. On 15 July 2011
Mr Couper texted you to ask whether you wanted any cannabis. In turn, you offered him Ecstasy pills. You arranged to meet in a bar.
[5] On the following day, 16 July, you texted Mr Couper, telling him that you had buyers and asked how many Mr Couper had. The inference is that that request was about drugs. The next day you texted Mr Couper to confirm that you were talking about Ecstasy the previous day.
[6] On 24 July, Mr Couper sent you a text saying that he had six pills for sale. You asked what they were and that you needed to wait until Wednesday to “tick them up”; that is to buy them on credit. Mr Couper’s reply was that they were “pink blanks” and that he could not do any ticks that day. You replied that you would find a buyer for the Ecstasy tablets. Several hours later Mr Couper responded, advising that he had only four pills left.
[7] On 28 July, you sent a text to Mr Couper asking if he still had any Ecstasy. His reply was that he did not, but would have some later.
[8] A few days later on 31 July, you against asked Mr Couper if he had any Ecstasy. There seems to have been no reply to that query. On 3 August, you sent him a text asking if he had his “tester”, and if so could he bring it to an associate’s address. A “tester” is understood to be a device for testing the ingredients of pills, or tablets.
[9] On 5 August, Mr Couper sent you a text asking if you could get a particular type of tablet. You said you could. He offered $50. You asked how many tablets were needed. Mr Couper replied “Only four”. You arranged to meet that afternoon.
[10] On 7 August, Mr Couper texted asking whether you had “got any”. He wanted three Ecstasy tablets. Later, he asked you about getting a deal on 10 tablets for $400. You replied in effect saying you would text another person and see what you could do. Eventually you sent a text to Mr Couper saying that your associate had only six tablets, but that he could come and get them now. Mr Couper confirmed that and suggested a total price of $300. You arranged to meet. He then texted you to the effect that he was at the arranged meeting place and you acknowledged that.
[11] You were arrested about a month later, on 1 September 2011.
Personal circumstances
[12] You have nine previous convictions all incurred since 2009, although none are for drug offending. They include so-called boy-racing, two charges of driving while disqualified, failing to stop, excess breath alcohol, assault, burglary, resisting police and breach of community work conditions. There have also been some bail breaches.
[13] You are 25 years old, living in New Plymouth with your mother, her partner, and your brother. You have been in a relationship since about the middle of last year.
Your partner is pregnant and due to give birth in May. Currently you are receiving a sickness benefit, mainly because you are suffering from depression as a result of the current offending and its aftermath, but you have been in some casual work at a store, as part of a re-integration process supervised by Vocational Rehabilitation and Assessment Services.
[14] You had a relatively unremarkable childhood, completing high school and then having been employed in sales, hospitality and labouring work for the past ten years or so.
[15] The real problem for you has been alcohol and party drugs, which have dominated your lifestyle and dictated your associates. You met Mr Couper at a local bar., which I have been told was his establishment. You say you were serving as a procurer of drugs for your friends and realise that you have been naive and stupid. I accept that there is a significant degree of remorse for what has happened. You say you do not now associate with those who were part of the drug scene.
[16] Your vocational adviser says that you are motivated to return to the work force and determined to support your partner and your forthcoming child.
Sentence indication
[17] On 13 August 2012, Collins J gave a sentencing indication at a time when you were charged with an offence involving class B drugs.[1] The Judge thought that a final sentence of one year nine months imprisonment would be appropriate, but recognised that there may be a case for a sentence of home detention instead. Of course, that indication is not binding on me, and it is necessary to bear in mind that the Judge was dealing with rather more serious offending than is now charged.
Sentencing purposes and principles
[1] R v Blackburn [2012] NZHC 2017.
[18] I have taken into account the various purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002. In the usual way, I must fix a starting point and
then adjust it by reference to aggravating and mitigating factors, first relating to the offending itself, and then by reference to personal issues affecting you. I do not consider there to be any significant aggravating factors here, although the Crown points to premeditation. That is an aspect of almost all drug offending, and does not I believe require separate recognition. That is not to say that I do not take into account the scale and scope of this offending. That is quite a different matter from premeditation as such.
[19] On the credit or mitigating side, there is your guilty plea for which you will receive a significant discount. At 25 years of age you are too old to justify a separate discount for youth, but I will take some account in a general way, of your relatively good rehabilitation prospects.
Counsel’s submissions
[20] Counsel are not far apart in their approach to the sentencing process. Counsel for the Crown submits that the ultimate sentence should be between 15 and
17 months imprisonment, and that in the alternative, home detention may well be appropriate. Your counsel suggests 14 months imprisonment, although 15 months was mentioned this morning, again with home detention as the appropriate final outcome.
Discussion
[21] You face a charge of conspiracy, which will in general attract a somewhat lower penalty than a charge of dealing in the drug concerned. I consider first what the appropriate penalty would have been for dealing in Ecstasy and will then discount that in order to accommodate the fact that this is a conspiracy case.
[22] There is no tariff or guideline case for the supply of class C Ecstasy. In R v
Day,[2] as Ms Elliott has submitted, Fogarty J considered that by analogy, the
guidelines set out in R v Terewi, which relates to cannabis cultivation and sale, were of assistance.[3] Counsel agree with that approach, which has much to recommend it.
[2] R v Day HC Hamilton CRI-2010-019-10271, 23 June 2011.
[3] R v Terewi [1999] 3 NZLR 62.
[23] I accept as counsel for the Crown submits, that this case would fall within the lower reaches of band 2 of Terewi which covers small scale cultivation and sale for commercial ends. That suggests a starting point of about two years imprisonment, but the Court of Appeal in Terewi said that where sales are infrequent or of very limited extent, then a lower starting point might be appropriate.
[24] Here, the quantities involved are very low. The largest quantity sought to be supplied to Mr Couper was six tablets. Even though there was a commercial element, I consider that the starting point ought to be slightly lower than that suggested in Terewi, and so for the offence of dealing itself I would adopt a starting point of 21 months imprisonment.
[25] It is then necessary to allow a further discount for the fact that this was a conspiracy. As the Court of Appeal has pointed out, it is necessary to distinguish between two classes of conspiracy. Inchoate conspiracies are of less gravity than those in which the conspiracy resulted in substantive offending.[4]
[4] R v Tamati and Laxon CA270/01, 285/01, 26 February 2002 at [23], and R v Te Rure (2007) 23
CRNZ 967 at [27].
[26] Here I agree with Collins J that there is reasonably strong evidence that a deal has actually been completed. I refer in that regard to the texts on the nights of 5 and
7 August. So the adjustment for the conspiracy offending should be somewhat less generous than in cases where there is no evidence at all to suggest an actual dealing. Having said that, the conspiracy was not at all sophisticated, and you were not found with multiple cell phones, tick lists, or large quantities of cash.
[27] I deduct three months to reflect the conspiracy nature of the charge, and a further four months in order to take into account your guilty plea. That produces an end sentence of 14 months imprisonment, which is in legal terms a short term sentence of imprisonment and therefore requires the Court to consider the alternative
of home detention.
Home detention
[28] It is well established that rehabilitative considerations will be to the fore when the Court comes to consider a sentence of home detention instead of imprisonment. The Court of Appeal in R v Hill, explained that there are obvious benefits in a sentence of home detention where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change.[5]
[5] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
[29] The probation officer has been impressed by your recent progress. You have ended your associations with your previous drug based acquaintances, and have ceased all drug use yourself. Your level of overall motivation is assessed as high. While you have been suffering from depression as a result of this case, you have a good employment history, and one employer in particular has spoken very highly of you. You believe that once this case is behind you you will be able to reintegrate into the work force. Some forms of employment can be combined with a sentence of home detention with the consent of the probation officer.
[30] You now have responsibility for your pregnant partner and your unborn child and you are determined to care for them. You have no previous drug convictions. Your satisfactory compliance with previous sentences of community work suggest that you are likely to comply with home detention conditions, although of course you will have heard my very brief exchange with Mr Keegan when he talked of the minor lapses which meant you were detained for short periods. You must realise that the conditions of home detention which I will impose, have to be complied with to the letter.
[31] The Court has a report approving as suitable for home detention your proposed residence, which is your mother’s home. I note that both she, her partner, and your brother, all living in the home, have convictions for relatively serious offences. Nevertheless, the police do not object to the proposed address. Having said that, you have indicated that you and your partner will be seeking alternative accommodation together within a matter of weeks. That seems to me to be a
desirable step.
[32] I have reached the conclusion that a sentence of home detention is appropriate instead of a sentence of imprisonment. You must not however, regard it as a soft outcome. The resulting restrictions on your freedom are very real and any breach is likely to result in a substituted sentence of imprisonment. Some people find a sentence of home detention virtually impossible. I do not think you will be one of those.
[33] Any change of address must of course be approved in advance by the probation officer. So must any employment initiatives.
[34] The term of a sentence of home detention is usually significantly lower than the equivalent term of imprisonment because there is a release entitlement after one half of a sentence of short term imprisonment has been served, whilst on the other hand you must serve the whole of a sentence of home detention.
Sentence
[35] On the charge of conspiracy to supply a Class C drug Ecstasy, you are convicted and sentenced to seven months home detention.
[36] I impose the following conditions:
(a) Following this hearing you must travel directly to 15 Grenville Street, New Plymouth and there await the arrival of the probation officer and a representative of the monitoring company;
(b) You must attend any programmes or counselling for Relapse
Prevention as directed by the probation officer;
(c) You must not use any alcohol or illicit drugs for the duration of the period of home detention.
C J Allan J