R v Campbell HC Rotorua CRI-2010-047-707

[2011] NZHC 1819

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-047-707

CRI-2011-087-605

THE QUEEN

v

BARRIE RAYMOND CAMPBELL

Appearances: J Rhodes for the Crown

P T Attwood for the Prisoner

Judgment:      19 October 2011

SENTENCING REMARKS OF PRIESTLEY J

Counsel:

J. Rhodes, Crown Solicitors, Tauranga. Email: [email protected]

P T Attwood, Barrister, Tauranga. Email: [email protected]

R V CAMPBELL HC ROT CRI-2010-047-707 19 October 2011

[1]      Barrie Raymond Campbell, I am sentencing you today on five counts to which you have pleaded guilty.  All of them are cannabis related.   The offending involved stretches from April 2009 through to the end of March this year.

[2]      There is one charge of supplying cannabis, one charge of supplying cannabis to a person under 18 years, one serious charge of possessing cannabis for supply, one charge of sale of cannabis, and finally a representative charge spanning the two year period, to which I have referred, of sale of cannabis.  All those charges carry a maximum sentence of 8 years imprisonment.   In terms of s 6(4) of the Misuse of Drugs Act 1975 a term of imprisonment is effectively inevitable.

[3]      You pleaded guilty to the offending which was later in time in the Whakatane District Court in early April.  You pleaded guilty to the December 2010 offending in the Tauranga District Court approximately two weeks later.   Finally, you pleaded guilty to the serious representative charge in mid June 2010, again in the Tauranga District Court.

[4]      I need to describe very briefly your offending.  In December 2010 the police observed and spoke to a 15 year old school girl who had purchased, for the normal price of $20, a tinnie from your home address.  A search of your home yielded 10 tinnies, squares of tinfoil, small amounts of cannabis and cannabis seeds, various instruments used for cannabis consumption, and $110 in cash.

[5]      In March 2011 an undercover policeman went to your home and purchased a tinnie for $20.  A search warrant again yielded four tinnies on your person, another

20 tinnies in your home, $200 in cash, and seven ounces of cannabis head was also found in your bedroom which, in approximate terms, could on the street have produced a yield of $5,600.  You admitted candidly to the police that typically over the previous two years you sold approximately three or four tinnies a day.

[6]      The major issue in sentencing you this morning is whether I should sentence you in traditional terms by imprisoning you, or whether I instead should adopt the Crown’s approach which is that the house which you own at 77 Church Street, Opotiki, should be the subject of an instrument forfeiture order under s 142N of the

Sentencing Act 2002.  That property has a current agreed equity of approximately

$120,000.

[7]      The stance of the Crown is that if the entire property was not to be subject to a forfeiture order there should at least be a partial forfeiture order.  In that regard if a forfeiture order is made then in terms of s 10B the residual sentence imposed on you should be either one of supervision or possibly a sentence of home detention.  When you appeared in this Court in August I expressed some unease about this approach so far as the Crown was concerned.  I was in particular concerned about the effect on you of forfeiting, in whole or in part, your Opotiki property.  I therefore directed that more information, in affidavit form, was to be placed before me.   My concerns related to the source of your capital (being your home),  the interests of your wider family, and, in particular, your age and health.

[8]      As a result I have now had a brief report from what I suspect is the Health Centre Authority at Waikereia prison (Dr G Tam).   I have also received and read affidavits from you and your daughter.

[9]      I  now  turn  to  your  personal  circumstances  which  have  been  amplified somewhat by the reports and affidavits to which I have referred.

[10]     You are a 73 year old European widower.   You have lived in the home in Opotiki for approximately eight years.  You and your late wife operated a dairy farm on  a  leasehold  interest  and  were  also  parties  to  a  share-milking  agreement. Eventually that dairying interest was sold and the Opotiki property was purchased. Initially, as I understand it, it was your wife who lived in the property whilst you continued to work.   The sale proceeds of your dairying interests were somewhat modest because you had to borrow money from Westpac to acquire the property.

[11]     You  are  subject  to  certain  health  ailments  which  include:  gout,  heart problems,  water  retention,  hypertension,  and  difficulties  with  your  knee.    Your health, whilst you have been in jail (for the last 6½ months), has not given rise to much alarm, although you are under constant medication which is charted and dispensed to you in the normal way.  This is standard medication for hypertension,

prevention of strokes, gout prevention, and also heart failure. You have diagnosed osteoarthritis in your knee and there is also oedema or swelling evident in your lower limbs as a result of your heart problems, to which I have referred.

[12]   It is clear from the presentence report you have had some significant involvement  in  the local  Opotiki  drug culture.   You  were quite candid  in  your admission to supplying on a regular basis.  There were also references which you yourself made to your own supplier.  You told the probation officer that you were remorseful and you never wanted to see another tinnie in your life.

[13]     The probation officer, correctly, assesses that the major factor behind your offending has been your habitual use of cannabis.  The probation officer states that you have limited insight into your offending and that certainly, if your cannabis use were to continue, the chance of your re-offending in the future was significant. Imprisonment was recommended.

[14]   You have, I see, eight previous convictions.   Two are cannabis related convictions and the other six are driver related.   When the current offending took place you were the subject of a 12 month supervision sentence for possession and sale of cannabis.   Offending whilst subject to a sentence is an aggravating feature which I have to take into consideration.

[15]     Returning therefore to the most important issue before me today, whether I should make a forfeiture order in respect of your home, the relevant tests are set out in s 142N.  Subsection 1 confers on me a discretion.  There is no doubt at all that I have jurisdiction to make a forfeiture order of the type the Crown seeks either in whole or in part.  Subsection 2, however, sets out a number of matters which I have to consider.  These include any undue hardship reasonably likely to be caused to any person as a result of such an order.   There I have to weigh not only your own interests but also the interests of your daughter who has sworn an affidavit indicating that she, for her part, over the years has assisted you and your late wife with the home.  She points to a figure of approximately $20,000 and has also exhibited to her affidavit a copy of your current will which recognises that contribution which your daughter has made.

[16]     The reality, of course, is if I were to make an order, even a partial order of the type the Crown recommends, the property in Opotiki would have to be sold which would leave you homeless but with a modest amount of capital.

[17]     In addition to s 142N(2)(c) factors I also have to give consideration to the gravity of your offending and your personal circumstances to which I have referred (s 142N(2)(g)).

[18]     It is very clear that, although there would have been some direct financial benefit flowing to you from the proceeds of sale of cannabis so far as servicing the outgoings of the house is concerned, the house itself was not acquired or maintained in any significant way with drug monies.

[19]     Putting to one side for the moment, whether there should be forfeiture of your

Opotoki home under s 142N, I look at the matter traditionally.

[20]     Using the representative charge of the sale of cannabis as the lead charge I would need to fix a start point which reflects the totality of your offending across all five charges.

[21]     You were, Mr Campbell, running a tinnie house.  You acquired cannabis and produced tinnies which you sold off for commercial gain.  I accept that the volume of the sales varied seasonally and daily but there is no real dispute over the summary of facts.  I also accept that some of the cannabis was for your personal use for pain

relief.  But there is no dispute that your offending fits inside R v Terewi Category 2[1]

– small scale commercial sales which justify a start point of between 2 – 4 years. Here the sales were consistent, not infrequent or limited.

[1] R v Terewi [1999] 3 NZLR 62 (CA).

[22]     I consider a start point which reflects totality would be one of 3½ years. That needs to be uplifted to reflect the aggravating features of your offending whilst on bail, the December 2010 offence, and for your offending whilst subject to a supervision sentence.  Aggravating too is the fact you re-offended soon after your

November 2010 cannabis conviction. You clearly had not learnt your lesson.

[23]     An uplift, in my view, of 9 months is justified, which brings me to 4 years 3 months.  From that I intend to deduct 6 months to reflect your age, 73, and your poor health, both of which would make imprisonment for you more difficult.  I thus come to 3 years and 9 months.  I intend to allow you, from that, a 20% reduction to reflect your guilty pleas, one of which was late, and also the remorse you have expressed. That reduction would lead me to an end sentence of 3 years imprisonment.

[24]     I now turn to the forfeiture issue.  Your house has an equity of approximately

$120,000.    This value sits around $190,000 with a Westpac mortgage of $70,000, which is reducing.

[25]     The policy of forfeiture, in whole or in part, is put succinctly by the Court of Appeal in Lyall v Solicitor General.[2]   The recent Court of Appeal judgment referred to  me  by  Mr  Rhodes  of  Elliott  v  R[3]   makes  it  clear  that  s 142N(1)  empowers forfeiture in part.

[2] Lyall v Solicitor General [1997] 2 NZLR 641 at 647 (CA).

[3] Elliott v R [2011]NZCA 386.

[26]     I focus on the s 142N(2) criteria of the ordinary use of the property, the gravity of your offending (class C drug at the upper end of Terewi Category 2), and the reasonably likely hardship which the forced sale of your home could bring to a man of your age and declining health.   I am well aware that the policy of this legislation is punitive.   The house is yours alone.   Only you used it until your incarceration.

[27]     The authorities permit me to consider too the fact that the property was sourced from the sale proceeds of your dairying interests some years ago.   Those were interests to which your wife contributed.  Indirectly the cash you received from your cannabis dealing would have made it easier for you to service the Westpac mortgage, but the level of debt servicing was well covered by your National Superannuation  and  other  allowances  you  receive.     There  were  no  financial

difficulties evident for you.

[28]     Tinnie houses are not protected from forfeiture (The Solicitor General of New Zealand v Reese).[4]    In your case I consider, by a small margin, that to forfeit part, perhaps 50% of the equity of your home, which I would otherwise consider appropriate, would be disproportionately severe and would additionally cause you undue hardship.  I am unattracted by imposing some community based sentence on a man of your age and health in a situation where, if your home is sold, you must find

rental accommodation.  That would create obvious difficulties with imposing a home detention sentence upon you.  There is also force in your counsel’s submission that you have already served, as a remand prisoner, 6½ months.

[4] The Solicitor General of New Zealand v George Alan Reese HC CHCH CRI 2005-409-000174, 17

December 2007, Pankhurst J.

[29]     Even  more unattractive  would  be imposing a short  sentence of 12  –  15 months imprisonment, having regard to the requirement to consider forfeiture and presumably give some credit for it (s 10B) and with your being released into the community homeless.  That is likely to cost the taxpayer even more in a situation where you would have to be housed.  Far better to keep your home intact so it or its capital can be made available to support you in the remaining years of your ill health and frailty.

[30]     So  in  the  exercise  of  my  discretion,  Mr  Campbell,  having  considered s 142N(2) factors and the proportionality of your offending as against forfeiture in your particular circumstances, I decline forfeiture either in whole or in part.  But I signal, for people not afflicted by age and health such as you, the legislation is well tilted towards people having substantial parts of their home equity forfeited when they use their homes as tinnie house.   Nor is the sentence I am imposing on you today a signal that the elderly and infirm are immune from forfeiture.  I suspect that the next decade, for demographic reasons, will see a surge of geriatric drug offenders whose assets will be ripe for forfeiture.

[31]     At this stage Mr Campbell I will ask you to stand up while I sentence you.

[32]     On the charge of supplying cannabis I sentence you to 1 years imprisonment. On the charge of supplying cannabis to a person under 18 years of age, I sentence

you to 1 years imprisonment.   On the charge of possessing cannabis for supply, I

sentence you to 3 years imprisonment.  On the charge of sale of cannabis to a person over 18 years of age, I sentence you to 2 years imprisonment.   And on the representative charge of sale of cannabis to people over the age of 18, spanning a period of two years, I sentence you to a term of 3 years imprisonment.

[33]     All those terms of imprisonment are to be served concurrently. [34]   Thank you. Take him down.

.......................................…

Priestley J