R v Bosson

[2012] NZHC 1584

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-021-326 [2012] NZHC 1584

THE QUEEN

v

JAYSON SAMUEL BOSSON

Hearing:         5 July 2012

Appearances: S A Law for the Crown

K Marriner for Mr Bosson

Sentence:       5 July 2012

SENTENCING NOTES OF CLIFFORD J

[1]      Mr Bosson,  you  appear  for  sentencing  on  three  charges  of  the  sale  of cannabis under the Misuse of Drugs Act 1975.   Each of those charges carries a maximum penalty of eight years’ imprisonment. You pleaded guilty to those charges on  17 April  2012  and  the District  Court  declined  jurisdiction.   That  meant  the District Court considered that you were liable for a sentence of imprisonment greater than one year which is the maximum the District Court could impose.

Facts

[2]      The statement of facts to which you pleaded guilty record that on 22 October

2011 you were residing at your mother’s home.  An undercover police officer came

to the door and expressed a wish to purchase cannabis.  You sold him two tinnies for

$50.    The  first  charge  you  face  relates  to  that  incident.    You  also  face  two

R v BOSSON HC NWP CRI-2012-021-326 [5 July 2012]

representative  charges.    These  relate  to  cannabis  dealings  which  you  yourself reported to the police.   The first such charge is that in September 2011 from an address in Lear Street in Stratford you sold three tinnies to acquaintances of yours at a cost of $25 per tinnie.  The second relates to the period between September 2011 and 25 March 2012, when you sold an unspecified number of tinnies to different people, again at the price of $25.

Personal circumstances

[3]      You are 20 years old and at the time of your offending you were residing at your mother’s home.  You now reside with your grandparents.  You are unemployed. You have a significant cannabis dependency.  You advised the pre-sentence report writer that you have been in receipt of a sickness benefit as a result of your drug use, which has been a part of your life since you were 14 years of age. You state that you normally use cannabis on a daily basis but that this has decreased since you have been living with your grandparents, as they do not allow drugs in their home.

[4]      As you know you have three previous drug-related convictions.  In January

2010  you were sentenced in the District Court at Hawera.   Given the sentence imposed I can only infer that the amount of cannabis involved was very minor.  You also  have  a  number  of  convictions  for  non-compliance  with  Court  imposed conditions and you served a sentence of imprisonment in 2011 for driving in a dangerous manner, criminal harassment and intimidation charges.   It is also noted that the offending for which you are being sentenced today occurred within days of your release from that prison sentence.

[5]      You have been warned, on a number of occasions now, that further breaches of release conditions or community work orders will be met by harsher penalties.

[6]      On a more positive note, you have referred yourself to alcohol and drug counselling since you were charged with this offending.  Your counsellor reports an apparent change in your attitude but unfortunately, for reasons Mrs Marriner has explained to me that relate to your long-standing dependency, in fact addiction, you continue, or at least have continued, to use cannabis.   You admitted to smoking

cannabis to your pre-sentence report writer on the day you met with her.  In those circumstances the pre-sentence report writer could not positively recommend, as I understand it at the time, a community based sentence.

Sentencing discussion

[7]      To sentence you today I have first to identify what is called the starting point sentence.  That is a sentence which takes into account the nature of your offending itself, that is what you did.  I then have to consider what are called aggravating and mitigating factors personal to you – that is things about you and your life to date – that might make that offending more or less serious.   And finally, I have to take account of your guilty pleas as the last step in this sentencing process.

[8]      In terms of the purposes and principles of sentencing, I consider here the relevant ones are to hold you to account, that is to make you responsible for what you have done, to deter you – and others – from future similar offending and, importantly here, to assist in your rehabilitation.   I am also mindful that the Sentencing Act 2002 requires me to impose the least restrictive sentence that  I consider is lawfully appropriate.

[9]      As both the Crown and Mrs Marriner on your behalf have submitted, this offending can be regarded as very low level commercial offending.  Your sales were infrequent and of a limited extent.  The Crown suggests a starting point sentence of two years’ imprisonment.   Mrs Marriner did not identify a starting point, as her submissions were focussed on the question of home detention, but I do not doubt that she would have a similar starting point in mind.  I am content to adopt the Crown submission so that means that the starting point sentence which responds to what you did is two years’ imprisonment.

[10]     From that starting point I have to consider factors personal to you which might make this offending more or less serious.

[11]     On the negative side, you have earlier cannabis offending.  Responsibly, and in my view appropriately, the Crown does not suggest any uplift, that is any increase to the sentence, is required for that.

[12]     On the positive side, and in addition to your guilty plea, there is what I take as your co-operation with the police.  That is, you self-reported the offending that gave rise to the two representative charges.    In the round,  I do  not think it is necessary to recognise  a discrete discount for that co-operation.   I think that is effectively covered by giving you the full 25 per cent discount for your guilty pleas which means that the end sentence, before I consider the question of home detention, is 18 months’ imprisonment.

[13]     Now, given your age (putting aside your previous offending) and the low level nature of this offending, and the fact that your grandparents are prepared to continue to support you were you to be sentenced to home detention, in the normal course of events sentencing  you to home detention  would be relatively straight forward.  That is because, in part, the Court of Appeal has recently recognised that sentences of home detention for drug offending can, where an offender is motivated to change and there is a realistic prospect that they will change, provide benefits both to the offender – that is you – and to society by keeping you out of prison and having you in an environment where you may be reintegrated back into society and helped

with your drug problem.[1]

[1] R v Hill CA559/07, 29 February 2008 at [33] and [37].

[14]     Also, I acknowledge that you self-referred to the drug counselling services for your dependency.  Your drug counsellor says you have been attending regularly since 8 February this year.  She acknowledges your continued use but says you have reduced your use.  She also states that you are prepared to go to residential treatment. Her conclusion is that you are motivated to attend treatment and become abstinent and   that   you   would   greatly  benefit   from   attending   a   residential   treatment programme.

[15]     Most recently she has advised that you have been assessed as suitable for a residential programme, that you can immediately be placed on the waiting list for

such a programme but that there will be a three month wait before a placement is likely to  be  available.    In  the  meantime, she  envisages  you  will  continue with attending at counselling, which reflects her positive assessment of the efforts you have  made  to  date,  and  she  notes  and  advises  me  that  you  have  brought  an appropriate level of motivation to what you have done to date.  So all those things, again, support giving you a sentence of home detention.

[16]     But  the  problem  is  your  continuing  cannabis  use  and  your  previous convictions.  It was really I think, with respect to those matters, that Judge Roberts originally indicated a concern as to whether or not he could sentence you to home detention.

[17]     My assessment of the matter is this:   you have a long-standing cannabis dependency, but you are only 20 years old and you have responded well, in terms of self-reporting, to the counselling and treatment you have received to date.   I also place considerable reliance on the support you are going to have from your grandparents and your grandmother’s attitude to your use of cannabis. By her presence in Court today – and she has responded to me positively – she obviously has a very strong view on that matter, and I rely on that in terms of your ongoing use of cannabis up until the present time.

[18]     So on that basis  I accept, in terms of the way you have responded and recognised your problems, that you have had a change of heart.   I think I should respond  positively  to  that  and  I  am  therefore  going  to  sentence  you  to  home detention for nine months concurrently on each of the three charges.  The conditions of that sentence of home detention are as follows:

(a)      You are to travel directly to 23 Orlando Street, Stratford and await the arrival of a Probation Officer and the monitoring company representative, and they put in the equipment necessary.

(b)You are to remain there for the duration of the home detention, that is for  nine  months,  unless  with  the  prior  written  approval  of  the Probation Officer.

(c)      You are not to possess or consume alcohol or non-prescription drugs and obviously cannabis use is unlawful so I do not need to tell you you are not to do that.  But clearly you are not to.  Mrs Bosson I thank you for being in Court today and for the support you have provided to your grandson.

(d)When the residential course becomes available you are to attend that course and obviously comply with any instructions you get from your probation officer.

[19]     The report also asks for an order that you should attend budgeting advice and any other courses the Probation Office thinks are suitable.

[20]     Obviously Mr Bosson, and I know you understand this, you have been given a chance today.   But I think you have earned that chance and you are to be congratulated for that.  Now is an opportunity for you to take that chance and move forward.  I think you understand that if you end up before the Courts again on this type of offending the outcome will not be the one we have been able to arrive at today.

[21]     You may stand down.

Clifford J

Solicitors:

Crown Solicitor, New Plymouth for the Crown. Parker and Marriner, Hawera for the prisoner.