R v C HC Wellington CRI-2005-078-2005

[2006] NZHC 972

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-078-2005

THE QUEEN

v

C

Hearing:         25 August 2006

Appearances: J Murdoch for Crown

P V Paino for Prisoner

Judgment:      25 August 2006

SENTENCING NOTES OF CLIFFORD J

[1]      C  , you appear for sentence having pleaded guilty to charges of:

•    possession of cannabis plant for supply;

•    cultivation of cannabis; and

•    possession of equipment;

[2]      Those three charges carry maximum penalties of eight, seven and five years imprisonment respectively.

R V C HC WN CRI-2005-078-2005  25 August 2006

[3]      You were also originally charged with possession of a class A controlled drug, methamphetamine, for supply.  You pleaded not guilty to that charge, and were acquitted after a jury trial before me in the Wellington High Court on 27 July 2006.

[4]       I find the factual basis upon which I am to sentence you to be as follows.

[5]      You are 39 years old –  you will shortly turn 40, and you  live  in rented accommodation with your daughter in Upper Hutt.

[6]      On 8 December 2005, you intended to visit your nephew at Rimutaka Prison. On arrival at the prison, and upon being searched by prison staff in accordance with visiting procedures, you were found to be in possession of a package containing 26.5 grams of cannabis plant.   Concealed within the cannabis was a small amount of methamphetamine.

[7]      You indicated to the prison officer carrying out the search that the package contained “dope”.    However, you claimed that you did not know the methamphetamine was there.

[8]      Police later executed a search warrant at your home and found a small but relatively sophisticated cultivation system supporting three cannabis plants and equipment used in the consumption of smoking cannabis.

[9]      At your trial for possession of a class A controlled drug, by which time you had entered guilty pleas on the charges are you being sentenced on today, you gave evidence that you were pressured into attempting to deliver drugs to the prison by intimidation, and by threats against your daughter’s safety, made by associates of your nephew. You did  not  dispute  that  you  were responsible  for the  drugs and equipment  found  at  your  own  residence,  and  acknowledged  that  you  did  use cannabis.

[10]     As I have noted above, you were found not guilty of the charge of possession of a class A controlled for supply.

Pre-sentence report

[11]     I have been provided with, and have considered, your pre-sentence report. The pre-sentence report records that you are currently in receipt of an unemployment benefit, but that you have been working part-time as a receptionist for approximately three months to supplement that benefit.     You have some $1,800 in outstanding fines  and  Court  costs  with  the  Collections  Unit,  but  there  appears  to  be  an arrangement for payment in place as regards this amount.

[12]     The pre-sentence report confirms that you have identified as the reason for your offending, as regards the charge of possession of cannabis for supply, your fear for your daughter’s safety if you did not deliver the package.

[13]     You have seven previous convictions, three of which are for drug related offending, including possession of cannabis seed and possession of utensils charges some three years ago.  You were sentenced to community work with respect to those most recent offences.

[14]     The  pre-sentence  report  records  that  you  have  acknowledged  that  your offending was not appropriate, and that you regret your actions.   The report also notes, however, that in terms of your motivation to address your offending, you cannot visualise any possible solution other than to agree to deliver the cannabis to the prison.   The report notes that  you do  not know how you can avoid  further incidents of this nature other than by not associating with members of your extended family.

[15]     The pre-sentence report records that you are aware that a custodial sentence is possible for this offending.   It notes that the imposition of a financial penalty would not reflect the serious nature of your offending and is not recommended.  The report writer suggests that a further sentence of community work would be appropriate and suitable at this juncture.

[16]     The Crown, pointing in particular to the cases of R v Terewi [1999] 3 NZLR

62 and R v Leighs CA360/02 15 September 2003, and before me to the case of R v Andrews [2000] 2 NZLR 20, and with reference to ss 7 and 8 Sentencing Act 2000, submits that a starting point of between two to four years imprisonment is appropriate. In the Crown’s submission, this would recognise the aggravating features of the offending you have pleaded guilty to, namely, supplying a drug to a prison, together with the commercial element associated with the cannabis cultivation found at your own home, especially on the basis of the equipment associated with the hydroponic set up and your previous convictions. In making its submission the Crown acknowledges some credit for your guilty plea, although it notes that was not entered at the earliest opportunity.

[17]     On your behalf, Mr Paino has submitted that the lead offence is the supply charge,  and  that  the  cultivation  and  related  charges  were  not  commercial,  and involved personal use.  It is Mr Paino’s submission that some of the material found at your home – the fertiliser material as I understand it – was not linked to your cannabis growing, but belonged to a previous occupant of the premises who had been an employee of Lease-a-Plant.

[18]     Mr Paino submitted there was no link between the cultivation of cannabis and the supply to the prison.  These were distinct charges and the only common thread was that you do have an involvement with cannabis.

[19]     On the Crown submissions made this morning as regard commerciality of the set up, Mr Paino noted that there were only three plants involved and that the gear itself  was  not  conclusive  and  that  there  was  an  absence  of  other  indicia  of commercial supply:  for example, evidence of some continuity of use of the premises or other evidence that would support concepts of commerciality.

[20]     Mr Paino’s submission was also that the finding of not guilty would indicate some acceptance by the jury at your trial, of the explanations as to the offending you provided.

[21]     Mr Paino has acknowledged that ordinarily the supply of a class C drug to a prison would warrant a deterrent sentence and imprisonment, but submits that yours is not a suitable case for a deterrent sentence.  In support of that submission he points to your guilty plea.   In that context, and given your intent always to defend the methamphetamine charge, he submits that the element of delay identified by the Crown should not detract from the credit to be given to that plea.  He also points to your relationship with your daughter, the absence of a father figure in your family and the increased protectiveness you felt of your daughter as a result.  He referred to you not as not obtaining any benefit from the offence, other than to alleviate the concern of serious injury and risk of personal safety to your daughter.   He characterised you as an amateur nervous courier forced into the position by threats and fear.

Sentencing discussion

[22]     The way the law requires me to examine your sentence is firstly to fix what is known as the starting point.  The starting point takes account of the offending itself, if committed by an adult offender, and after a defended trial.   The starting point, therefore, takes into account what is known in law as the aggravating and mitigating features of the offending itself.  It does not, however, take into account aggravating or mitigating factors relating to you personally.  Once I have determined the starting point those personal matters are then considered to increase or reduce the sentence from the starting point.

[23]     The guideline case in sentencing cannabis cases is Terewi.  Although Terewi concerned the cultivation of cannabis, the Court of Appeal has confirmed that the three categories identified in Terewi are equally applicable to cannabis dealing offences.

[24]     In terms of Terewi, I think it is necessary to consider first what I regard as the lead charge, that of possession of cannabis for the purposes of supply.

[25]     As the Crown has identified, the Court found it appropriate to divide cannabis offences  into  three categories,  envisaging that  those associated with  small  scale commercial purposes fell within category 2, and justified a starting point of between two and four years imprisonment.  On the other hand, category 1 – which essentially related to offences involving non-commercial purposes – would generally attract a non-custodial sentence.

[26]     The threshold between categories 1 and 2 in Terewi is, in my view, clearly marked by commerciality, with the paramount consideration in cases involving commercial use being deterrence.

[27]   The amount involved here, 26.5 grams, is not insubstantial (although I acknowledge that it is less than the presumption for supply amount of 28 grams).  I accept, however, that as regards this charge, that you were not involved in dealing with this cannabis for a commercial purpose.  The intended supply to your nephew was on a non-commercial basis, involving no financial gain for you.

[28]     As regards to this charge, however, the attempt to introduce the drug into a prison is a serious aggravating factor.   This warrants imposing a sentence of imprisonment in cases such as this.   Terewi recognises that a prison term may be merited in serious cases of non-commercial supply.   Deterrence is specifically recognised as being an important aspect of sentencing in cases where there is an attempt to smuggle drugs into prisons:  R v Napia CA258/00 12 October 2000.  In

this, it is important to note that deterrence is not only deterrence for the individual offender,  but  is  equally  importantly  the  deterrent  effect  of  the  sentence  more generally.  On that basis, people who smuggle drugs into prison can expect prison sentences.   Ms Murdoch’s submissions as to the implications of ss 7 and 8 of the Sentencing Act 2000 all support that conclusion.

[29]     In terms of mitigating factors applying to the offending itself, the issue here is the significance to be given to your statements to the police, and to the evidence you  gave  in  Court,  that  it  was  only  under  duress  induced  by  threats  to  your daughter’s safety that you agreed to attempt to deliver cannabis to your nephew in prison.

[30]     Whilst acknowledging that a not guilty verdict by a jury does not mean that a jury finds an accused innocent, or that they accept all that is said to them by an accused, nevertheless in this instance – and having  been the trial Judge – I am prepared to  accept  that  the  jury  verdict  does  indicate  some  acceptance  of  your explanation as to the basic reason for your offending.   This is not then a situation where the Court  simply has an untested assertion of duress,  but  one where the statement was given in evidence in criminal proceedings in a trial which resulted in a not guilty verdict.  Furthermore, I am also influenced by my observation of you in the witness box during that trial, and what I assessed to be the commitment you have made, and continue to make, to your daughter’s upbringing and wellbeing.

[31]     Very much on balance and in the circumstances, I have concluded that a significant non-custodial sentence is the appropriate starting point.

[32]     I also have to consider whether, and if so to what extent, other aspects of the total offending involved increase the seriousness of the overall charges, in terms of a starting point.  In this instance, I have given particular attention to the submissions of the Crown this morning regarding the sophistication and,  in their view,  implicit commerciality of the cultivation system.  However I have accepted at the end of the day Mr Paino’s submissions that on the evidence before me commerciality as regards the other charges has not been established, and that therefore, by themselves, those charges would not shift the non-custodial starting point I have identified.

[33]     I have also considered your record of previous offending but, given the key influencing factors that I have identified, I do not consider that that record is such as to bring me to a different conclusion.

[34]     I have also taken account of your guilty plea, and I am influenced by the recommendation from the Probation Service for a non-custodial sentence.

[35]     Taking all these considerations into account, on the lead charge of possession of supply, I sentence you to 350 hours community work.

[36]    Your pre-sentence report suggests that supervision is not appropriate or necessary.  However, you are clearly a regular user of cannabis and that known use would appear to make you more vulnerable – in terms of your explanation of this offending  –  to  approaches  to  deliver  that  drug  to  your  nephew  in  prison. Accordingly, I am also going to impose a sentence of 6 months supervision subject to standard conditions, and order under s 49 of the Sentencing Act 2000 that you attend an appropriate course to address the implications for you of your drug use.

[37]     You are sentenced concurrently to 100 hours and 75 hours on the charges of cultivation and possession of equipment.

[38]     I also grant the destruction order sought by the Crown. [39] I make some final comments Ms C  .

[40]     You have been shown considerable mercy today, and have only avoided a term of imprisonment by the narrowest of margins.  You have not previously been imprisoned and it would be a real shame for you if you had, at your age, been incarcerated for the first time.

[41]     I note your recent part-time employment and I urge you to build on that to full-time work.

[42]     You must also be aware that were these circumstances to repeat themselves, your  chances  of  avoiding  imprisonment  would  be  non-existent.     You  should

reconsider, in your daughter’s interests if nothing else, the wisdom of continuing to associate with your nephew whilst he is in prison.  You should make it known within your extended family that these are simply not circumstances in which you can afford to find yourself again.

[43]     You may stand down.

Clifford J

Solicitors:

Luke, Cunningham & Clere, Wellington, for Crown

Paino & Robinson, Upper Hutt, for Prisoner