R v Cook HC Dunedin CRI-2010-012-005126

[2011] NZHC 414

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2010-012-005126

THE QUEEN

v

RYAN AARON COOK

Hearing:         7 April 2011

Counsel:         R D Smith for the Crown

A Stevens for the prisoner

Judgment:      7 April 2011

SENTENCING REMARKS OF LANG J

Solicitors/Counsel:

Crown Solicitor, PO Box 803, Dunedin.  [email protected]

A Stevens, PO Box 5827, Dunedin. Email:  [email protected]

R V COOK HC DUN CRI-2010-012-005126 7 April 2011

[1]      Mr Cook, you appear for sentence today having pleaded guilty in the District Court to one charge of being in possession of cannabis for supply.  The maximum sentence for that offence is eight years imprisonment.  The District Court declined jurisdiction and accordingly you fall to be sentenced by this Court.

Facts

[2]      The facts that give rise to the charge are narrow in compass.   They are recorded in a summary of facts with which you do not take issue.

[3]      The summary records that on 7 October last year you drove from Dunedin to Cromwell, where you met an unidentified associate.  The Police were observing you, presumably because they had some prior knowledge about what was to occur.  You were seen to uplift a 20 litre plastic container from this other person.   When the Police later stopped you, they found that the container held five pounds, or 2.240 grams, of cannabis.  The cannabis was of high quality, and the summary records that it had an estimated value of $15,000 to $20,000.

[4]      You maintained from the outset that you were picking the cannabis up for somebody else.   You accepted that you knew that the substance in question was cannabis, but you said you thought that it was only a couple of pounds and you did not realise that it weighed as much as it did.

Sentencing Act 2002

[5]      In any case involving drug dealing, as I am sure you know, the starting point is generally a sentence of imprisonment.  That is because drug dealing requires the Courts to adopt a firm line, and to impose sentences that operate as a deterrent to both the offender and to others who might be persuaded to get involved in that type of activity.

Starting point

[6]      The starting point for the sentence to be imposed on you is governed by a decision of the Court of Appeal of R v Terewi.1    In that case the Court said that for offending at the lower commercial end a starting point of two to four years imprisonment will generally be appropriate.  The sentencing Court may, however, go below two years in circumstances where the sales or supply of the drug occur on an infrequent or one-off basis.

[7]      There are several factors about your offending that take it out of the usual category of drug-related offending.  The first is that the Crown accepts that there is nothing to contradict your claim that you were reacting to a request by your brother to pick up the drugs because somebody else had failed to carry out that obligation. There is nothing else to suggest that you are involved in drugs.  You say that you do not  take  drugs,  and  you  have  no  previous  convictions  suggesting  that  you  are involved in drug use or drug dealing.  The validity of your claim is supported also, to some extent, by the fact that you were living with your brother at the time of the offending, and he is known to be involved in drug-related activities.

[8]      I am therefore prepared to accept your assertion that this was an impulsive act in which you tried to help your brother out.  That was a serious mistake on your part, because it has landed you at risk of losing your liberty.  It will certainly cause you problems in the future, because a conviction of this nature is going to have all kinds of ramifications.   These will include restrictions on the countries in the world to which you will be able to travel.   It may also have significant flow on effects for your future employment.  All of that has arisen out of a stupid decision to help your brother.

[9]      I also accept that there was absolutely no commercial gain for you. You were no doubt advised to plead guilty to the charge of possession for supply because you knew that you were uplifting the drugs for the purpose of passing them on to others. That means that, in legal terms, you were in possession of the cannabis for the

purposes of supply.   I accept as I have said, however, that you were not going to benefit in any way personally as a result of your act.

[10]     I also accept that this is one-off offending.  It had not occurred before, and there is no suggestion that you were going to become involved in this type of activity on an ongoing or regular basis.

[11]     For these reasons, I consider that I am justified in going below the two year starting point recommended in Terewi.  I would ordinarily adopt a starting point of

20 months imprisonment for your offending.

Aggravating factors

[12]     You do have previous convictions, but they are of a completely unrelated nature.  For that reason I do not propose to add any uplift to the starting point that I have identified to reflect aggravating factors relating to you personally.

Mitigating factors

[13]     I am able to take into account the fact that you pleaded guilty at an early stage to the charge against you.  In terms of the decision of the Supreme Court in R v Hessell,2  I am entitled to provide you with a discount of 25 per cent to reflect that mitigating factor.  You are not, however, able to claim the benefit of having a completely clean record, because you have some previous convictions.

[14]   I would therefore have ended up with a starting point of 15 months imprisonment on the charge to which you have pleaded guilty.

Home detention or community detention?

[15]     The real issue is whether, instead of requiring you to serve a sentence of imprisonment, I should require you to serve a sentence of home detention or community detention.  When I came into Court, I was of the view that a sentence of

home detention was virtually inevitable.  This is because of the fact that a reasonably significant  quantity  of  cannabis  was  involved,  and  commercial  dealing  was obviously involved down the line from you.

[16]     During the hearing today, your counsel has made eloquent submissions on your behalf about the devastating effects that a sentence of home detention will have for you.  That may sound unusual given the fact that you would otherwise be facing a sentence of imprisonment, but the consequences arise in this way.  You not only hold down two jobs, but you are also studying full time at the Otago Polytechnic. Your counsel advises me that you are in the third year of a diploma of quantity surveying and diploma of construction management.   You have two semesters to complete in order to receive those qualifications.

[17]     In order to pay for the education that you have received to date, you have incurred student loans amounting to approximately $20,000.   You also have other debts, including a mortgage and a partly paid reparation order arising out of earlier offending.

[18]     The  problem  for  you,  if  you  are  required  to  serve  a  sentence  of  home detention, is that you will not be able to complete your studies at the Otago Polytechnic.   I am told today that this is because a sentence of home detention cannot be varied to allow you to attend polytechnic on an unsupervised basis.  The end result of a sentence of home detention will therefore be that you will fail your courses.   The regulations that are now in force provide that, in the event that a student does not achieve a 50 per cent pass rate, he or she is prohibited from re- enrolling at a tertiary institution for five years. This means that your attempts to gain worthwhile qualifications will be destroyed as a side effect of a sentence that would otherwise have been appropriate.

[19]     I do  not  consider  that  to  be  a  justifiable  outcome,  particularly when  an important principle in the Sentencing Act 2002 is that the Court must impose a sentence designed to rehabilitate and reintegrate the offender into the community. The way in which you will become a worthwhile member of the community is by completing your qualifications and becoming a member of the nation’s workforce.

You have already proved that you have the ability to do that by your involvement in your two businesses.   I believe that it would be counter-productive to impose a sentence that would put all of that at risk.

[20]     For that reason, I have been persuaded by your counsel’s submissions that I should impose a sentence of community detention rather than a sentence of home detention.

[21]     The  maximum  sentence  of  community  detention  is  one  of  six  months duration.  The sentence that I impose must be at the very upper end of that to reflect the seriousness of your offending.

Sentence

[22]     Mr  Cook,  you  are  sentenced  to  six  months  community  detention.    The following terms will also apply:

(a)      You are to be subject to a curfew each night between the hours of 7pm and 7am. That curfew is to begin on Monday, 11 April 2011.

(b)You are to report to the community probation office within 24 hours, namely tomorrow.

(c)      You are to serve the sentence of community detention at 44 Stenhope Crescent, Corstophine, Dunedin in accordance with the conditions of home detention.

(d)You  are  to  attend  employment  or  training  programmes  only  if approved and directed by your probation officer.

(e)      You are not to consume alcohol for the duration of the sentence of community detention.

[23]     Mr Cook, on a final note, you will understand that the Court has shown you great  leniency on  this  occasion.   You  could  easily have  received  a sentence  of

imprisonment, or at the very least a sentence of home detention.  As you appreciate, the only reason that those sentences were not imposed was that I accept that you had no commercial involvement in drug dealing activity that was obviously instigated by others.  Should you be foolish enough to ever become involved in a similar activity again,  you  must  understand  that  similar leniency will  not  be shown.   You  will inevitably, in that event, be marked out as a drug dealer and you will be going to prison.

[24]     Stand down.

……………………………..

Lang J