R v Bryant HC Auckland CRI-2011-004-3292

[2011] NZHC 669

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-3292

THE QUEEN

v

DONALD RICHARD BRYANT

Hearing:         21 June 2011

Appearances: Mr E J McCaughan for Crown

Mr P Wicks for Prisoner

Judgment:      21 June 2011

SENTENCING REMARKS OF LANG J

R V BRYANT HC AK CRI-2011-004-3292 21 June 2011

[1]      Mr  Bryant,  you  appear  for  sentence  today  having  pleaded  guilty  in  the District Court to charges of selling cannabis and being in possession of cannabis plant for supply.  Those charges were laid in the indictable jurisdiction of the District Court.  You have also pleaded guilty to charges laid in the summary jurisdiction of the Court of being in possession of cocaine, ecstasy and cannabis resin.   You originally appeared for sentence in the District Court, but that Court declined jurisdiction and committed you to this Court for sentence.

The facts

[2]      The charges all arise out of an incident on 23 February 2011, when the police executed a search warrant at your residential address.   When they went into the address they found all the trappings of a cannabis-dealing operation.  On a table in the central room of the address they found four cake tins containing a combined total of 190 gram of loose cannabis leaf.  These had apparently been sorted into various grades of cannabis leaf so that purchasers could make a choice as to the type and quality of cannabis they were to purchase.  There was an electronic scale on the table next to the cake tins.  Located in a drawer in the kitchen was a further 67.5 grams of cannabis plant material.  The police then found a number of snaplock bags of a type commonly used to package drugs in a drawer in the kitchen.  Another 134 grams of cannabis plant material was discovered in an upstairs office of the dwelling.

[3]      The police also discovered other forms of drugs.  They found a tobacco tin containing a clear snaplock plastic bag that contained .3 of a gram of cocaine.  They found, situated in a tea cup in the upstairs office area, four ecstasy pills, and they found approximately 12 grams of cannabis resin wrapped up in a ball located in the freezer in the kitchen.

[4]      In total, the police recovered approximately 392 grams of cannabis plant, 12 grams of cannabis resin, four ecstasy pills and .3 of a gram of cocaine.  The police also found the sum of $4,060 in cash located on a desk in the upstairs office area.

[5]      The police also noticed that a CCTV camera was outside the front door of the address.    This  led  to  a  small  television  monitor  displaying  live  footage  of  the

footpath directly outside the front door.   The television monitor was within easy viewing distance of the table where the cake tins were located.

[6]      You accepted quite candidly that you had been selling cannabis from the address. You said you had sold to friends and associates over the last two years. You also frankly accepted that the bulk of the cash that the police found at your address represented the proceeds of earlier sales of cannabis.

Starting point

[7]      The first issue I must determine in sentencing you is the starting point that I need to fix for your offending.  This takes into account the overall culpability of your offending, but does not take into account factors that are personal to you.

[8]      You present as a retail dealer in drugs.  In many ways the operation can be described as what is colloquially known as a tinnie house, where retail customers come and purchase small quantities of cannabis.  Typical sales are in the region of

$20 for a cannabis bullet.  I infer that the bulk of the cash that was found represented sales made in this way.  I consider that the closed circuit television was part of the paraphernalia that you surrounded yourself with for security purposes during your drug-dealing activities.  I accept, however, that there is nothing to suggest that you were selling to all and sundry who came to the property.  The likelihood is that you were selling to friends and associates who knew where to come to buy cannabis.

[9]      Counsel have referred me to a number of decisions relating to persons in broadly comparable positions to you.   The Crown relies on a case called R v Broughton[1] in which the Court of Appeal approved a starting point of three years six months imprisonment for a person who operated a tinnie house.  It is clear, however, that both the Court of Appeal and the sentencing Judge built into that starting point a significant aggravating factor, namely eight previous convictions for dealing in cannabis.  For that reason, I accept that the starting point in your case should not be as high as that.

[1] R v Broughton HC Whangarei CRI-2010-088-3526, 21 February 2011

[10]     The Crown has also referred me to a case called R v Clegg[2].  In that case the offender had been found with roughly the same quantity of cannabis as you, and also approximately $3,000 in cash.  She, too, faced charges of selling cannabis and being in possession of cannabis for supply.  The sentencing Judge in that case indicated that a starting point of two and a quarter to two and a half years imprisonment was appropriate.

[2] R v Clegg HC Tauranga CRI-2008-70-2119, 9 July 2008

[11]     I consider that your offending was more serious than that in Clegg because the offender in Clegg had only sold cannabis for approximately two months.  You accept, as I have said, that you sold cannabis for approximately two years before the police visited your address.   In addition, the quantity of cannabis found in your possession was slightly higher, and the quantity of cash was similarly higher.

[12]   I therefore propose to take a starting point of two years nine months imprisonment on the lead charges of selling cannabis and being in possession of cannabis for supply.

[13]     I need to add a factor to that to incorporate the fact that you were also found in possession of small quantities of other drugs.  The Crown suggests that I should impose a small cumulative sentence on those charges to reflect their gravity.  The charge of being in possession of cocaine carries a maximum sentence of six months imprisonment, whilst the other two charges have maximum penalties of three months imprisonment.  By way of contrast, the cannabis charges have maximum penalties of eight years imprisonment.

[14]     I think it is artificial to impose a cumulative sentence when the other drugs that were found in your possession really comprise part and parcel of your overall offending as at the date that the police visited your address.  The Crown suggests an uplift of one month imprisonment to reflect these other charges.  I propose to adopt an overall starting point of two years ten months imprisonment to reflect the culpability of all of those charges.

Aggravating factors

[15]     I now need to consider whether that starting point should be increased to reflect aggravating factors personal to you.   An aggravating factor in the current context is the fact that you have a number of previous convictions for cannabis- related charges.  These go back to 1973 and 1974.  The most significant of them was in 1975, when you were sentenced to one year six months imprisonment on a charge of being in possession of cannabis for supply.  Thereafter, you have received further convictions, the most recent of which was in 1999.   Between 1991 and 1999, however, the charges on which you were convicted resulted in the imposition of fines, so I do not place a great deal of store on them.

[16]     Initially the Crown submitted that an uplift of six months should be applied to recognise this factor.  It has now reviewed its position and accepts that the length of time since your previous convictions is such that any uplift must be reduced as a result.

[17]     It is important that you understand, Mr Bryant, that the uplift is not applied to punish  you  again  in  respect  of  your  earlier  offending.     Rather,  your  earlier convictions make the current offending worse.  What it means is that you knew from the time you began your present cannabis dealing operation that you ran the risk of imprisonment if you were caught.  You knew that that was what had happened when you were caught in 1975.  You therefore made a decision that the risk inherent in carrying out your operation was worth any reward that you received.  That adds, as I have said, to the seriousness of your current offending.  It does not mean that you are being punished again for your previous offending.  I propose to add an uplift of three months to reflect this factor.  This means that I am left with an end starting point of three years one month imprisonment, after taking into account the starting point and aggravating factors.

Mitigating factors

[18]     I now need to consider the extent to which I should reduce the starting point that I have selected to reflect mitigating factors personal to you.  The most obvious

of these is the fact that you pleaded guilty in the District Court at an early stage.  The guiding authority in relation to the discount to be given for a guilty plea is the decision of the Supreme Court in Hessell v R.[3]   In that case the Court indicated that sentencing Judges must take an overall view of the circumstances in which a guilty plea is entered.  The amount of discount to be applied does not depend solely on the date upon which, or the point in the proceedings at which, the plea is entered.

[3] Hessell v R [2010] NZSC 135

[19]     This means that the Court is entitled to take into account the strength of the Crown case facing an offender at the time at which he or she pleads guilty.  In your case, of course, you were caught red-handed, so you realistically had very little chance of defending the charge.

[20]     The Supreme Court in Hessell also said that the maximum discount that a Court may give in respect of a guilty plea is 25 per cent.  Although, as I have said, you faced inevitable conviction, the Crown accepts in your case that the pleas should attract a discount of around 25 per cent.  I therefore propose to reduce your sentence by ten months to reflect your guilty pleas.

[21]     Your counsel urges me also to apply a further discount to reflect other factors. He points out that you appear for sentence today at 63 years of age.  You have very significant medical disabilities that causes you a great deal of discomfort.  This is likely to be an issue for you if you are sentenced to imprisonment.  He points out that you  have  many  valuable  and  good  qualities  and  that  this  is  borne  out  in  the references that I have received today.   You are a well-known figure in the New Zealand music industry and have given selflessly on many occasions to support various charities.  You have also, he said, turned a corner in relation to drug rehabilitation.

[22]     You accept that you are a very long time user of cannabis.  You have used it now for more than 35 years.  There is an indication in the pre-sentence report that you believe that cannabis should be legalised and that it should not be a crime to

consume or sell it.   Those may be your personal views, Mr Bryant, but the fact

remains that being in possession of drugs is an offence in this country and it is made more serious if, as here, the possession is for the purpose of selling it to others.

[23]     I must say that I view with some scepticism your assertion that you are now ready to resile from the use of cannabis.  You are a very long-time user, as I have said, and it is going to take significant steps on your part if you are to disassociate yourself completely from the drug.  To date you have not taken any active steps to obtain help for your use of cannabis, but your counsel says that you are more than happy to comply with any directions that the Court might make.

[24]     I propose to  give  you  a further discount,  principally to  reflect  the  good qualities you have and the services that you have rendered to our community.   I consider that those acts should be recognised in some tangible way today.  I also add within this a small component for your professed desire to reform.  I do that more in hope than in expectation, but the Court has an obligation, I consider, to encourage people to rehabilitate themselves from consistent drug use.  For that reason I propose to apply a further discount, which some may describe as generous, of three months to reflect that fact.

Home detention

[25]     This means that I am left with an end sentence of two years imprisonment. That being the case, I have the ability to consider a sentence of home detention. Your counsel urges me to impose that sentence in this case.  He points out that it is a deterrent sentence in its own right, and that it can be combined with other sentences to produce the necessary rehabilitative aspects for you.

[26]     Before imposing a sentence of home detention the Court must be satisfied that it sits appropriately with the purposes and principles of sentencing.  One of these is to hold people accountable for their offending and to deter both the offender and other like-minded  individuals  from  engaging in  similar  behaviour  in  the future. Having said that, the Court is also required to impose a sentence that is the least restrictive outcome in the circumstances, and that assists the offender to rehabilitate himself or herself and to become reintegrated in the community.

[27]     In R v Hill[4] the Court of Appeal embarked upon a useful discussion of home detention in the context of drug-related offending.  It did so whilst the transitional provisions of the home detention legislation were in force, so to that extent the case is not directly on point.  Nevertheless, the Court of Appeal did make a number of useful points in its judgment.

[4] R v Hill [2008] NZCA 41

[28]     The  Court  emphasised  that  the  Court  must  adhere  to  the  principles  and purposes of sentencing as set out in the Sentencing Act 2002.  It pointed out also that home detention in the drug-related context will generally only be available where the offending falls towards the lower end of the spectrum.   For offending that falls higher in the spectrum, a sentence of home detention will be inappropriate because it will not properly serve the principles and purposes of deterrence, denunciation and accountability.

[29]     There are always dangers when an offender is sentenced to home detention for drug dealing offending.  The danger is two-fold.  One danger presents itself for the offender, and the other is a danger for the wider community.  The danger to the offender is that home detention can lead to long periods of boredom whilst in a relatively unsupervised environment.  For a person with a long-standing association with drugs, that can lead to a virtually inevitable temptation to resort to the use of drugs  in  order to  pass  the time in a more pleasurable way.    It  also  presents  a temptation, particularly if the offender is serving a sentence at his or her own premises, to re-engage in offending of the very type that has led to the sentence being imposed in the first place.

[30]     The second danger is that the community may perceive home detention to be a softer option than imprisonment.  Although it is a deterrent sentence of its type, it certainly sits lower in the hierarchy of sentences than does a sentence of imprisonment.  For that reason the danger if the sentence is imposed inappropriately is that the deterrent aspects of the sentence will be lost, and the community may consider that drug dealing offences are no longer being dealt with in a deterrent fashion.  In any case involving drug dealing issues of deterrence, denunciation and

accountability must be to the forefront.

[31]     Weighing those factors in the balance, I conclude that your drug dealing cannot be said to be at the lower end of the spectrum.  Rather, you appear to have been involved in it in a reasonably busy way, and for a lengthy period of time.  Your very lengthy association with the drug also, I consider, leads to a significant risk of the likelihood of re-engaging with the use and possible sale of cannabis in the event that a sentence of home detention is imposed.

[32]     For those  reasons,  I have concluded  that  it  would  not  be appropriate  to impose such a sentence.

Sentence

[33]     Mr  Bryant,  on  the  two  lead  charges  of  selling  cannabis  and  being  in possession of cannabis for supply you are sentenced to two years imprisonment. Those sentences are to be served concurrently.

[34]     On each of the other charges you are sentenced to one month imprisonment. They, too, are to be served concurrently with each other and with the other sentences. This means that you will serve an effective sentence of two years imprisonment.

Forfeiture order

[35]     I  make  an  order  for  the  forfeiture  of  the  cash  that  was  found  in  your possession, together with the destruction of the drugs and drug-related paraphernalia.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:
Mr P Wicks, Auckland