R v Buckthought HC Palmerston North CRI 2010-054-3037

[2010] NZHC 2016

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2010-054-3037

THE QUEEN

v

KHOLE LESLIE BUCKTHOUGHT

Hearing:         10 November 2010

Counsel:         P L Murray and M R Davie for Crown

M B Ryan for Accused

Sentence:       10 November 2010

SENTENCE OF SIMON FRANCE J

[1]      Mr Buckthought pleaded guilty to two charges of possession of cannabis for supply and offering to sell cannabis.

[2]      Police monitored Mr Buckthought’s phones.   As a consequence it became apparent he was involved in the sale of cannabis.  The sales that were identified were often for an ounce, which was being sold for between $200 and $300.  There were also sales of tinnies.

[3]      Consequent to the monitoring of his phone, a search warrant was executed at his residence.  A backpack was located containing 2 x one ounce bags of cannabis. There was a third bag with 14 tinnies.   The total amount of cannabis is around

80 grams.

R V KHOLE LESLIE BUCKTHOUGHT HC PMN CRI 2010-054-3037 10 November 2010

[4]      Mr Buckthought has been in custody since his arrest on 3 June 2010.   The reason for that state of affairs can be found in his previous criminal offending, and his poor response to sentences.  The current offending was committed whilst he was under release conditions from prison.  He was also in breach of those conditions.

[5]      Mr Buckthought  is  25 years  of  age.     His  offending  appears  to  have commenced in 2002 when he was 17, and has continued steadily since.  There are numerous driving and property offences, and also a significant number of assault convictions.   Concerning drugs, in 2004 there was a conviction for possessing cannabis.   In 2009 he was convicted of possessing cannabis plant for supply for which he received a four month term of imprisonment, cumulative on other prison terms imposed around that time and beforehand.

[6]      Mr Buckthought  was  first  sentenced  to  imprisonment  in  December 2007. Then in March 2009 he was again sentenced to various terms of imprisonment for offending dating back through the preceding months, and in 2010 he received an imprisonment term in February.   He must have been released almost immediately due to time served, and in March 2010 committed an offence of drink driving.

[7]      In the pre-sentence report Mr Buckthought suggests that he was offending because he was being compelled to do so by a family member.  He owed this person money  and  according  to  Mr Buckthought  the  relative  is  one  with  criminal connections.  The report notes that due to Mr Buckthought’s previous performance in relation to sentencing, there is a limited range of options available.  It anticipates that a term of imprisonment will be imposed and suggests special conditions.

[8]      On sentencing, counsel for Mr Buckthought handed to the Court a letter from Mr Buckthought’s partner, and Mr Buckthought himself.   The letters confirm the influence  of  the  family  member  that  was  mentioned  earlier  in  the  sentencing remarks.  They provide a detailed explanation.

[9]      Mr Ryan submits that Mr Buckthought’s offending is near the bottom of the second  category  of  R  v  Terewi[1]   and  therefore  the  appropriate  starting  point  is between two and two and a half years.  It is acknowledged that some uplift may be imposed.  He differs from the Crown because of the shorter duration of the offending compared to comparable cases.

[1] R v Terewi [1999] 3 NZLR 62.

[10]     Concerning mitigating factors the suggestions are the guilty plea which earns a discount of between 25% and 30%, and the family matters previously referred to.

[11]     The Crown submits a starting point in the range of two and half to three years.  It submits there should be an uplift for previous offending, and discounts for the guilty plea, which it says is 33%.

[12]     I  agree  that  the  sentencing  falls  towards  the  lower  end  of  Terewi, category two.  Although the material suggests that the offender has been selling for some time, the quantities involved are towards the lower end.  The pattern revealed by the phone intercepts and text messages was of offers made when supplies were to hand.  It seems as if a text message was sent to multiple clients.  The information spans about a month, and shows a steady business.  Six transactions were identified over the period.  The range for this band is two to four years and I am satisfied that

30 months is the appropriate starting point.

[13]     I do not consider that the past cannabis offending of itself requires an uplift, but do consider that issues of individual deterrence arise.  Mr Buckthought’s conduct over the past two years is troubling and appears to be worsening in its frequency and disregard for the law.   He was in breach of release conditions at the time of this offending, and I consider that normally some extra amount would be required required to bring home to Mr Buckthought that it is time for him to start acting differently.

[14]     Concerning  the  proposition  that  he  was  in  some  way  coerced  into  this offending, the extent to which a Court can act on this material is limited. However, there is a ring of consistency to the information I have received. I appreciate that it does not explain the other conduct of recent years. However, i am satisfied that Mr Buckthought has some insight into how to avoid the situation and has taken steps to bring that about. He has achieved separation from the relevant family members and exhibits  a  commitment to  maintain  that.  For  that  reason  I propose  to  make  no adjustment upwards.

[15]     There are no mitigating factors other than the guilty plea and accordingly the final sentence will be 20 months.

[16]     I have considered the imposition of special conditions.  I consider that two conditions are appropriate:

a)       attend an alcohol and other drug assessment and attend and complete any treatment, counselling, including residential treatment programmes, as recommended by the assessment to the satisfaction of the probation officer and treatment provider;

b)undertake any further counselling, treatment, programmes as directed by the probation officer and to the satisfaction of the probation officer and provider.

[17]     I am advised there are summary charges for breach of conditions.  I doubt I have jurisdiction to deal with them, but indicate that I consider the present sentence of 20 months is sufficient to cover culpability for those as well.   I respectfully recommend concurrent sentences.

[18]     Mr Buckthought can you please stand.   On both charges I sentence you to

20 months’ imprisonment, the sentences to be concurrent.   The special conditions previously set out are also imposed.

[19]     I order destruction of the items seized.

Simon France J

Solicitors:

P L Murray, Ben Vanderkolk & Associates, PO Box 31, Palmerston North; email: [email protected]

M R Davie, Ben Vanderkolk & Associates, PO Box 31, Palmerston North
M B Ryan, Solicitor, PO Box 12054, Palmerston North, email:  [email protected]