R v Botting - [2013] NZHC 991

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-025-000445 [2013] NZHC 991

REGINA

v

MURRAY FRANCIS BOTTING

Hearing: 7 May 2013

Counsel: R W Donnelly for Crown
W N Dawkins for Prisoner

Judgment: 7 May 2013

SENTENCING REMARKS OF WHATA J

[1] Mr Botting you have pleaded guilty to five charges relating to the possession and selling of cannabis. On each of the charges the maximum penalty is eight years imprisonment.

Facts

[2] You were involved in the sale and distribution of cannabis in Invercargill and Eastern Southland for about five years. In October 2012 your luggage was searched at the Invercargill Airport and two bags containing a total of ten pounds of cannabis were found together with cash of about $920 and an electronic diary containing a ledger of the cannabis sales. The value of the cannabis was $42,000 or if sold in ounce weights about $44,800. You say, however, that you purchased the cannabis
for about $30,000. A search of your electronic diary and of your cellphone revealed

R V BOTTING HC INV CRI 2013-025-000445 [7 May 2013]

a large number of cannabis sales. You also sold a total of $33,820 of cannabis to various people over the several months before you were arrested. You also conceded in an interview that you had been travelling to the Eastern Bay of Plenty for five years, both by air and road and on no more than five occasions purchased cannabis at
$3,000 a pound.

Personal circumstances

[3] I have had the benefit of a pre-sentence report dealing with your background. Your report states that you are currently residing in a flatting situation with one other person. It says that you are currently maintaining a vacant property and intend to move into that property if you are placed on electronically monitored sentencing. You have the support of your parents and you are the father of an adult son. Your daughter passed away I understand about two years ago. You separated from your wife about five years ago.

[4] You are currently employed as a contractor for Dongwha who operate a fibreboard mill on the outskirts of Mataura. Your employer is aware of your offending and is prepared to continue to employ you.

[5] You are generally in good health and capable of participating in community work if appropriate. In terms of your previous offending you have appeared on charges of burglary and theft in the Youth Court. You have a number of District Court convictions relating to, for example, driving related offences, firearms offences, possession of liquor in a public place, and similar sort of scale offences. You have no drug related convictions and your most recent convictions occurred in
2008.

[6] In terms of your pre-sentence report, you admit the offending. You say that it is linked to failure of your logging contracting business and that you needed to pay down debt. You are not a user of drugs and the pre-sentence report says that your risk of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Botting

Details

AGLC: R v Botting [2013] NZHC 991
Case: [2013] NZHC 991
Decision Date: 7 May 2013

CaseChat Overview and Summary

In the case of Regina v Murray Francis Botting, the defendant was convicted of five charges relating to the possession and sale of cannabis, with each charge carrying a maximum penalty of eight years imprisonment. Botting was found to have been involved in the sale and distribution of cannabis in Invercargill and Eastern Southland for about five years. His criminal activities were discovered when his luggage was searched at the Invercargill Airport, leading to the discovery of two bags containing a total of ten pounds of cannabis, cash of about $920, and an electronic diary detailing his cannabis sales. Botting admitted to his involvement and his primary motivation for engaging in the sale of cannabis was to pay down his debts. The court heard that Botting had no prior drug-related convictions but had a history of minor criminal offences.

The primary legal issue before the court was determining the appropriate starting point for Botting's sentence, taking into account the facts of the case and the purposes and principles of the Sentencing Act 2002. The Crown argued for a starting point of three years and nine months, citing similar cases as precedent. In contrast, Botting's counsel submitted that a starting point of no more than three years was appropriate, considering the moderate scale of Botting's distribution of cannabis for commercial purposes. Botting's counsel also highlighted mitigating factors, such as his cooperation with the police and his guilty plea, which warranted a discount to the starting point.

The court accepted Botting's counsel's submission that a starting point of three years was appropriate, considering the facts of the case and the relevant case law. The court acknowledged Botting's personal circumstances, including the failure of his logging business and the passing of his daughter, but noted that any discount for these factors could not be significant. The court also recognised Botting's remorse and cooperation with the police. After considering the aggravating and mitigating factors, the court determined that a sentence of one year and eleven months would be appropriate if imprisonment were to be imposed. However, the court concluded that home detention was the most appropriate and proportionate sentence, given Botting's personal circumstances and the importance of his rehabilitation.

In light of the above, the court sentenced Botting to 11 months of home detention, to be served concurrently on each charge. The court also imposed an order for forfeiture and destruction of the cannabis, cash, and electronic diary found during the search. Additionally, the court imposed post-detention conditions and special conditions as recommended in Botting's pre-sentence report.

Orders