R v Busby

[2013] NZHC 1878

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-029-952 [2013] NZHC 1878

THE QUEEN

v

TRINITY MAXWELL BUSBY

Hearing:	26 July 2013
Appearances:	D B Stevens for Crown A M Dooney (on behalf of J W Watson) for Prisoner
Sentence:	26 July 2013

SENTENCING REMARKS OF LANG J

R v TRINITY MAXWELL BUSBY [2013] NZHC 1878 [26 July 2013]

[1]      Mr Busby appears for sentence after pleading guilty in the District Court to charges of selling cannabis and being in possession of cannabis for supply.1    The maximum sentence on each of those charges is eight years imprisonment.

The facts

[2]      Mr Busby’s offending was detected in a police operation designed to flush out cannabis dealers in the Whangarei district.  The operation involved the use of an undercover officer, who sought to purchase cannabis from those suspected of dealing in it.   On 19 April 2012, the officer went to Mr Busby’s address and purchased a bullet of cannabis from him for $20.  Mr Busby was seen to take the bullet of cannabis from a snaplock bag containing a total of eight cannabis bullets.

[3]      The police operation terminated on 27 June 2012.   On that date the police executed a search warrant on Mr Busby’s home address.  There they found a single cannabis bullet in Mr Busby’s jacket.   They later found a glass jar containing 20 cannabis bullets down his trousers.  When he was spoken to about this, Mr Busby indicated he needed to make a living somehow.   He acknowledged that the last occasion he had sold a quantity of cannabis had been earlier that same morning.

Starting point

[4]      In any case of commercial drug dealing, a sentence of imprisonment is the usual starting point. This reflects the fact that deterrent sentences are required in this area. This is the only way in which the courts can hope to make a contribution to the war against the sale and use of illegal drugs.

[5]      The real issue in the present case is to select a sentence that is broadly consistent with those selected in other similar cases. I say “broadly”, because no two cases are ever exactly the same.

[6]      Both counsel agree that the starting point to be applied here is determined by the guideline judgment of the Court of Appeal in R v Terewi.2   In that case the Court

1      R v Busby DC Kaitaia CRI-2012-029-000952, 28 February 2013.

of Appeal set out guidelines as to starting points to be applied in relation to cases of commercial drug cultivation and sale.   In cases involving a moderate commercial element, a starting point of between two and four years imprisonment is appropriate. Counsel agree that Mr Busby’s offending falls within that range.

[7]      It is clear that Mr Busby was running a tinnie house on an ongoing basis.  He kept a modest supply of cannabis bullets available for sale to those who came to the address.  The fact that Mr Busby was prepared to make a sale to a person who was completely unknown to him confirms that he was indiscriminate about the persons to whom he was prepared to sell cannabis.

[8]      I agree with the Crown that an appropriate starting point for this offending is two years six months imprisonment.  Indeed, counsel for Mr Busby does not take issue with the Crown’s suggestion in this regard.

Aggravating factors

[9]      I now need to consider the extent, if at all, the sentence should be increased to reflect any aggravating factors personal to Mr Busby.   In his case there is one aggravating factor, and that is the fact that he has numerous previous convictions. Many of these, however, are for offending that has no relevance to drugs.   Those convictions need to be put to one side for present purposes.

[10]     Mr  Busby has,  however,  been  convicted on  three previous occasions  of charges relating to cannabis.  In August 2001, he received a sentence of 180 hours community service on a charge of possessing cannabis plant for supply.   On 30

January 2008, he received a fine of $200 for a charge of being in possession of cannabis plant.  On 5 May 2010, Mr Busby was sentenced to 350 community work on a charge of cultivating cannabis.

[11]     These convictions show that Mr Busby now has a lengthy involvement with cannabis.  Matters have moved to a new level since his last offending, because he

2        R v Terewi [1999] 3 NZLR 62.

has decided to become involved in the commercial distribution of cannabis.  As a result, the fact that he has failed to take heed of previous convictions make his present  offending  that  much  more  serious.     He  has  received  the  benefit  of community-based sentences in the past, but has continued to be involved with cannabis.  I agree that an uplift needs to be applied to reflect this fact, but it should be of a relatively modest scale.  I propose to apply an uplift of four months to reflect this factor.

[12]     This leaves an end starting point of two  years ten months imprisonment before taking into account mitigating factors personal to Mr Busby.

Mitigating factors

[13]     The only mitigating factor upon which Mr Busby can rely is the fact that he pleaded guilty at a relatively early stage.  This meant that the police did not need to prepare the case for trial.  Conviction would, however, have been inevitable given the evidence that the undercover officer could have given and the fact that Mr Busby was found with commercial quantities of cannabis in his possession.

[14]     In those circumstances, the Court has the ability to apply a reduced discount because it is required to take a robust view of all of the circumstances. In the present case, however, the Crown accepts that a full discount of 25 per cent is appropriate, and that is the discount I propose to apply.  I therefore propose to apply a discount of nine months to reflect the guilty pleas.

[15]     This  means  that  the  end  sentence  is  one  of  two  years  one  month imprisonment, which would preclude a sentence of home detention.

[16]     I wish to make it clear, however, that even if the sentence had been less than two years imprisonment, I would not have been prepared to impose a sentence of home detention.   First, it would not reflect the seriousness of the offending and would  therefore  not  pay  adequate  regard  to  important  sentencing  principles. Secondly, a sentence of home detention requires the Court to place an element of trust  in  the  offender,  because  the  activities  of  the  offender  within  a  home environment cannot be monitored on a continuous basis.

[17]     Mr Busby has several convictions for breaching Court orders.  These include breach of community work, supervision and periodic detention.   The breaches occurred at regular intervals between 2002 and 2011.  This suggests to me that he would  be unlikely to  abide by a sentence of  home detention, even if  one was imposed.

[18]     Secondly, Mr Busby was aware that this Court issued a warrant for his arrest on 14 June 2013 after he failed to appear for sentence despite being well aware of the fact that he needed to be at Court.  In order to accommodate his request to attend a tangi on that day, I directed that the warrant was to lie in Court until Monday 17 June

2013.  I did so in anticipation that Mr Busby would surrender to the authorities at that point so that he could effectively commence serving a custodial sentence. Thereafter, however, Mr Busby did not appear again until this morning.  This factor, too, suggests to me that he would not have been a candidate for home detention, even if that sentence had been available.

Sentence

[19]     On each of the charges to which Mr Busby has pleaded guilty, he is sentenced to  two  years  one  month  imprisonment.     Those  sentences  are  to  be  served concurrently, which means that he will serve an effective sentence of two years one

month imprisonment.

Lang J

Solicitors:

Crown Solicitor, Whangarei
Counsel:

J W Watson, Whangarei