R v Bortnick

[2013] NZHC 234

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-042-2886 [2013] NZHC 234

THE QUEEN

v

MICHAEL LEE BORTNICK

Hearing:         18 February 2013

Counsel:         L McGuinniety for Crown

W Jones for Prisoner

Sentencing:     18 February 2013

SENTENCING NOTES OF MILLER J

[1]    Mr Bortnick, you appear for sentence on two charges, one of importing the class A controlled drug, psilocine, which is known as magic mushrooms, and the other of importing cannabis.   You were remanded to this Court for sentence, the District Court having declined jurisdiction.

[2]    The facts are that on 18 May 2012 you imported by post a package containing

30g of cannabis and 14g of psilocine.  You used a false name but your home address, evidently believing that if the package was intercepted it would be destroyed because the amounts were small.   The package was indeed intercepted, but the authorities were not at all relaxed about it.  The police came to visit.  You readily admitted the offence and admitted importing cannabis two years earlier.   The amount is very

small, and it is not suggested that you had it for supply.

R v BORTNICK HC NEL CRI-2012-042-2886 [18 February 2013]

[3]    You are 65 and a US citizen by birth.  About seven years ago you came to New Zealand to work as an English teacher.  You are married.  Your adult children still live in the US.   References describe you as an excellent teacher, a man of good character, and an asset to the community.

[4]    You were referred for assessment by the Addictions Service, but you were not found to suffer from any substance related disorder.  You report being part of the Woodstock generation, which was characterised by a relaxed attitude to drug use. Cannabis became your substance of choice, and you have remained a regular user over many years.  You were an occasional user of psilocine, a drug which seems to have  been  associated  with  the  Grateful  Dead,  whose  concerts  you  sometimes attended.  You say that you had not used that drug for 10 years before this offence, and you were offered these drugs by an American friend as a birthday present.  As I have just said to you this morning, it may well be that in your world drug use is acceptable, but that is an attitude that many people take in the community.   The legislature has taken a different view and I really cannot give you any allowance for it.

[5]    You have no previous convictions and you also pleaded guilty at the first reasonable opportunity.

[6]    To import class A drugs is a serious matter, as you now appreciate.  The Court must always consider whether imprisonment is needed.   However, this is a very minor offence of its kind and it does not present the evil that the prohibition on importing drugs is aimed at, that is, it has not introduced drugs into the New Zealand community for subsequent distribution to others.  The Crown has invited me to adopt a starting point of 15 to 18 months imprisonment for the two charges together before giving you credit for your guilty pleas and previous good character.   And it is accepted that a community-based sentence is appropriate.

[7]    You sought a discharge without conviction, citing loss of employment because your teaching certificate has been withdrawn and the risk that you will be denied entry to the US.  After discussion with your counsel this morning that application has been abandoned.

[8]    The sentencing methodology requires that I begin by deciding what term of imprisonment would be appropriate, before converting that to a different form of sentence.  I will adopt a starting point of 12 months for the two offences together and from that I will deduct 35 per cent for your guilty pleas and good character, which would result in an end sentence of about eight months imprisonment.

[9]    I do not consider that home detention is necessary in your case.  As I have said, it is at the very lowest end of the scale and there are substantial mitigating facts. You are a person of otherwise good character and I do not doubt that you will never appear before the Court again.  So your sentence will be 200 hours community work.

You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Crown

Zindels, Nelson for Prisoner