R v Bosson

[2012] NZHC 1956

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-021-325 [2012] NZHC 1956

THE QUEEN

v

ALISON JANE BOSSON

Hearing:         6 August 2012

Counsel:         S A Law for Crown

R Rai for prisoner

Sentence:       6 August 2012

SENTENCING NOTES OF DOBSON J

[1]      You are appearing today for sentence on four convictions of selling small quantities of cannabis.  You are in this Court because a District Court Judge declined jurisdiction.   That Court could only sentence you to a maximum of 12 months’ imprisonment, and the view of the Judge was that that was inadequate.  The Judge considered a sentence of 18 months’ imprisonment would be appropriate.  Each of the convictions entered in these charges carries a maximum penalty of eight years’ imprisonment.

[2]      Three  of  the  convictions  relate  to  single  sales  of  one  or  two  tinnies  in November and December last year, and March this year.  The fourth charge was a representative one, alleging sales by you to various unidentified persons between

4 March and 25 March this year.   You acknowledged to the Police that you sold

R v BOSSON HC NWP CRI 2012-021-325 [6 August 2012]

small amounts of cannabis, in quantities of up to an ounce per week, in order to “put food on the table” for your family.  Mr Rai submits that there was no regularity about the dealing, whereas the Police summary suggests that it was an average weekly amount.  But rather, on Mr Rai’s instructions, you did it when you had the money to source the cannabis.   On any view, this is small-scale commercial  dealing in a class C drug.

[3]      In all sentencings, the Sentencing Act 2002 (the Act) requires me to have regard to the purposes and principles of sentencing set out in ss 7 and 8 of the Act. The sentence has to hold you accountable for the harm done to the community by the offending, promote in you a sense of responsibility for, and an acknowledgement of, the harm, and to denounce this as illegal conduct.  The sentencing also has to deter you and deter others from committing the same offence, but ultimately I have to be concerned in assisting with your rehabilitation.

[4]      Guiding principles of sentencing involve the Court taking into account the gravity of the particular offending, your level of culpability for your offending, as well as the seriousness of this type of offending in comparison to others.   It is desirable for the Court to be as consistent as it can in the appropriate level of sentence, relative to the offending that has similar characteristics.  As Mr Rai has emphasised, I am obliged to impose the least restrictive outcome that is appropriate in the circumstances.

[5]      In 1999, the Court of Appeal in R v Terewi reviewed the levels of sentences appropriate  for  different  categories  of  cannabis  cultivation  and  dealing.[1]      Both counsel  agree  that  your  offending  fits  within  category two  from  Terewi,  which includes small-scale dealing for a commercial purpose.  The starting points within that category were defined by the Court of Appeal as being between two and four years’ imprisonment.  Where the commercial element of dealing is very small, that is

[1] R v Terewi [1999] 3 NZLR 62 (CA).

to be reflected by a reduction in the normal starting point for category two, but it

does not take it out of that category.[2]

[2] R v Andrews [2000] 2 NZLR 205 (CA) at [9].

[6]      As to the circumstances of the offending here, Mr Rai urges that the amount of cannabis involved was small, and that there was no evidence of extensive dealing. For these reasons, Mr Rai urges on me a starting point of 18 months’ imprisonment. In contrast, Ms Law argues the offending should be seen as relatively more serious because the pattern of it suggests pre-meditation, that the amount of cannabis you acknowledged selling of about an ounce per week is relatively serious, and that it appears to have persisted, at least for parts of the period between November last year and when you were apprehended in March this year. The Crown argues for a starting point in the vicinity of two years’ imprisonment.

[7]      On the projection of an ounce per week, say 16 to 18 tinnies at $25 each, this was low-level dealing on which you would gross $400 to $450 per week.  You, and many like you, may see that as a small matter, or even inconsequential.  However, it makes a contribution to the availability of an illegal drug, which gives it a measure of seriousness.   It is of modest scale, but it still comes within the lowest end of category two from Terewi.   So I would set a starting point for your sentence of

21 months’ imprisonment.

[8]      I then have to consider the relevant matters individual to you, that either aggravate (that is, make worse) or mitigate (that is, lessen) the seriousness of the offending.

[9]      You have previous convictions, relevantly one for drug offending in 2003. That is sufficiently long ago for it not to operate as a bad factor that would increase your sentence.

[10]     The major mitigating factor (those are the ones that are in your favour) was that you made an early guilty plea.   Counsel are agreed that that entitles you to a

25 per cent discount,[3] and that would reduce the sentence to just less than 16 months’

imprisonment.

[3] Hessell v R [2010] NZSC 135 at [73].

[11]     Your personal circumstances are somewhat difficult.   I am mindful that I

cannot in any event give much significance to your personal circumstances in the

sentencing process.  The Court of Appeal in Terewi made that observation because of the fundamental requirement that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.[4]

[4] Terewi at [13].

[12]     The pre-sentence report on you does make a number of favourable points. First, that it was financial pressure that led to the offending.  Secondly, that you do not have alcohol or drug dependency issues.  Thirdly, that you have had issues with gambling but have taken initiatives to control those.  Fourthly, that you have two of your three dependent children aged, as I work it out, about 15 and 7 residing with you  and  that  your  living  arrangements  have  been  relatively  stable  in  the  same property for some four years.  In light of those factors, until a very recent update, the report writer recommended a sentence of home detention.   An assessment of the property confirms that it is technically feasible to monitor a sentence at those premises.

[13]     However,  most  recently  an  update has  reflected  concerns held  by Child, Youth and Family Services, not previously known to the report-writer that causes the writer  to  recommend  imprisonment.    The  Police  oppose  a  sentence  of  home detention.  They treat your house as having a reputation as a tinnie house, and when there has been no change in the financial pressure on you, the Police are concerned that there will be real and predictable pressure for you to continue offending if left in a house with that reputation, and your perception of your financial needs.

[14]     Mr Rai has raised the prospect of your moving within Stratford to another address that does not have the taint of a tinnie house.  But his own consideration, which is agreed with by Ms Law, is that in a community like Stratford there would be no point in doing so, and I tend to agree with that.

[15]     Mr Rai has argued that your oldest son, who has recently been sentenced for selling cannabis, and his associates contributed to the impression the Police have of yours as a tinnie house, and that that influence has been removed because he is sentenced to home detention at another address.

[16]     I have also carefully read the letter that you have presented to me today, which endeavours to put your use of the house in a different light from that which appears from the Police summary, and I have had regard to that.

[17]     Both counsel have cited as comparisons decisions in which home detention was imposed as a substitute for prison where the offending was low-level cannabis dealing.[5]

[5] R  v  Cecil [1999] 3 NZLR 62 (CA), R  v  Pakau  HC New Plymouth CRI  2008-043-3109,

[18]     It is a sufficient deterrent in your case, provided that your circumstances warrant this form of sentence and that it will promote, rather than hinder, your rehabilitation.   Obviously the report-writer has a concern about that, perhaps reflecting your difficulties as a mother.  The Police have difficulties with it because of their fears that you will continue dealing, where the monitoring on home detention cannot eliminate the prospect of your doing so.

[19]     I am prepared to take a chance.   Rehabilitation is the most important for offending of your type and I am satisfied that it is more positively pursued with you in the community.

[20]     The prospect of easy money from dealing drugs must be put behind you, and I hope you will now try to be as good a mother as you can by means other than dealing in cannabis to put food on the table for your children.

[21]     You should know that in taking the home detention option, I am dealing with you leniently, although you should not treat a sentence of home detention as an easy one.  The sentence will not be easy for you and you should assume that the Police will still have an on-going interest in the activities of your house.  You have to resist any notion that it continues to be a tinnie house, and if you are firm about that it will lose that reputation soon enough.  The risk for you, having been given this chance to rehabilitate during home detention, is that if you are tempted to resume dealing in cannabis and are caught, then your rejection of the chance I am giving you by

imposing home detention on this occasion will rebound against you and contribute to

a substantially more severe penalty on any later occasion, and I trust you understand that.

[22]     I  accordingly  sentence  you  to  a  term  of  eight  months’ home  detention, together  with  75  hours’ community  work.    I  will  adopt  the  special  conditions recommended in the pre-sentence report, which I take it you have seen, but I will read them:

(a)       first,  you  are  to  travel  directly  from  here  to  the  address  of

432 Broadway, Stratford, and await the arrival of a Probation Officer and monitoring company representative;

(b)secondly, you are to remain at the address of 432 Broadway, Stratford, for the duration of the home detention unless with the prior written approval of a Probation Officer;

(c)      you are not to possess or consume alcohol or non-prescription drugs for the duration of the home detention – that is absolute;

(d)you are to attend an assessment for substance abuse and, if assessed as suitable, attend and complete any education, counselling or treatment programme as may be recommended to the satisfaction of the Probation Officer and the programme provider;

(e)      you are to attend an assessment for budgeting advice and, if found suitable, to attend and complete any programme as may be recommended to the satisfaction of the Probation Officer and programme provider;

(f)      you are to attend and complete a parenting course as may be directed to the satisfaction of the Probation Officer and the programme provider; and

(g)you are to attend such appointments and responsibilities relating to the welfare and education of your dependent children as directed by the Probation Officer.

[23]     You may stand down.

Dobson J

Solicitors:

Crown Solicitor, New Plymouth for Crown

Till Henderson, Stratford for Prisoner

15 December 2008, R v Hohepa, HC New Plymouth CRI 2008-021-1155, 15 December 2008,
R v Abraham HC Auckland CRI 2008-092-16315, 31 March 2009.