R v Croft

[2012] NZHC 3010

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-088-2280 [2012] NZHC 3010

THE QUEEN

v

WARREN CRAIG CROFT

Hearing:         13 November 2012

Counsel:         TL Nicholls for Crown

SK Ellis for Prisoner

Judgment:      13 November 2012

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:           Marsden Woods Inskip & Smith, P O Box 146, Whangarei 0140 for Respondent

(Email:  [email protected] )

Ms SK Ellis, 2 Rathbone Street, Whangarei

(Email:  [email protected])

R V WARREN CRAIG CROFT HC WHA CRI-2012-088-2280 [13 November 2012]

[1]      Mr Croft, you appear for sentence on three counts of selling a Class C drug, namely cannabis.  You pleaded guilty to those charges in the District Court which declined jurisdiction to sentence you and transferred sentencing to this Court where there  is  a  fuller  range  of  sentencing  options  available.    There  are  also  two outstanding charges of breach of community work and, arising out of those breaches, an application to cancel the sentence of community work and substitute some other sentence.

Background

[2]      The cannabis offending was detected in the course of a covert operation carried out by the police in Northland during the period late 2011 to mid-2012.  On three occasions, between 23 March and 31 May 2012, a special duties constable went to the home that you shared with your co-accused, Genevieve Jamieson.  On each occasion you sold the constable a cannabis tinny for $20.

[3]      The charge of breach of community work needs no further discussion as I have been informed this morning that the community work sentence has now been completed.  On that basis, I propose simply to convict and discharge you on those charges and dismiss the application to substitute the sentence.

Personal circumstances

[4]      You are a 24-year-old man, currently unemployed.  The pre-sentence report tells me very little about your background.  The reason for that has been explained to me by the representative of the Probation Service who is present in Court.  I am told that the District Court has, for its own reasons, sought a much abbreviated pre- sentence report which will often result in the exclusion of background detail.  It is just such detail, however, that is highly relevant to sentence in a case such as this and I have gleaned additional relevant information from Ms Ellis and by direct questioning of you.

[5]      You  have  previous  convictions,  none  of  them,  however,  in  the  serious category and none which could have led, as the current charges do, to a sentence of imprisonment.  You told me that you have trained as a spraypainter and have aspirations to work as a signwriter.   There are also employment opportunities potentially available to you through your father who is a roading sub-contractor.

[6]      There  are indications,  which  you  have  confirmed, that  you  are  prone to depression.  It appears, however, that to date you have not had any counselling for that or any other problems that you might have.

[7]      The pre-sentence report attributes your offending to an unstructured lifestyle, inferentially a poor choice of associates and substance abuse. It is said that you have limited insight into your offending.  You explained that you sold cannabis because you were unemployed and needed money to meet financial and parental responsibilities.  You have a three and a half year old son whom you see a lot of and for whose care you share responsibility.

[8]      There is agreement that the offending falls within category 2 of R v Terewi[1] which covered small scale offending for commercial ends.   There is general agreement also that the offending in this case is at the lower end of Terewi.  I have been  referred  to  several  cases  to  support  the  respective  positions  advanced  by counsel.

Starting point

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

[9]      The Crown argues for a starting point of two years and six months, relying principally on the Court of Appeal decision in Lord v R[2]  where a starting point of two years and nine months was endorsed for four charges of selling cannabis and two charges of possession for supply.  There are a plethora of sentencing decisions of this Court involving the sale of small quantities of cannabis from tinny houses,

[2] Lord v R [2012] NZCA 276.

among them R v Wiapo,[3]  R v Morgan,[4]  R v Howell[5]  and R v Heremaia.[6]     The

[3] R v Wiapo HC Whangarei CRI-2011-088-3508

[4] R v Morgan HC Whangarei CRI-2009-027-001083

[5] R v Howell HC Hamilton CRI-2009-019-737.

[6] R v Heremaia HC Whangarei CRI-2008-088-4116.

circumstances  of  this  case,  which  establish  only  intermittent  sales  over  quite  a lengthy period, support a finding only of relatively low level dealing.  There are no indications of significant sums of money being involved.  I infer that you dealt at a level which, as you say, would enable you to meet your own needs and provide support for your son.   On that basis, I consider a starting point of two years imprisonment adequately reflects your culpability.

Aggravating or mitigating features

[10]     There are no particular aggravating features of the offending or arising from your personal circumstances.  I do not see your previous convictions as warranting any uplift in sentence.  The only adjustment to the starting point arises from your guilty plea.  It is accepted that it was entered at the earliest reasonable opportunity. Accordingly, it warrants a discount of 25 per cent.   That would lead to a prison sentence, if I were to impose one, of 18 months.

Home detention

[11]     I  turn  now  to  consider  whether  a  sentence  of  home  detention  could appropriately be imposed.  While, as a general principle, the courts are wary about sentencing those involved in commercial dealing in drugs to sentences of home detention, it has been recognised that there is no inviolate principle.   Each case must be determined on its own facts and, as was said in R v Hill[7] by the Court of Appeal, where an offender is motivated to change and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention – both from Society’s perspective and from that of the offender.

[7] R v Hill [2008] NZCA 41.

[12]     It  is  the  case  that  where  the  offending  involves  dealing  drugs  from  the offender’s home, a sentence of home detention would normally be refused.   But where  there  are  indications  that  the  offender  is  addressing  the  issues  that  have

brought about the offending and is able to serve a sentence of home detention in a

place where he or she has good support, then a sentence of home detention may well be appropriate.

[13]    I am satisfied that your personal circumstances - both in terms of your aspirations for the future, your recognition of your present position and the support available to you - makes appropriate a sentence of home detention in your case.  The sentence will be served at the home of your father.  I am told that he is supportive of you.   He is permanently employed and in a position to provide employment opportunities for you.   You are receptive to suggestions that you undertake counselling to address your personal issues and, I consider, have genuine aspirations to change the lifestyle that led you into your current offending.

[14]     For all of those reasons, I come to the view that the appropriate sentence in your case is one of nine months home detention.  So if you would please stand at this point, Mr Croft, and I will formally sentence you.

Sentence

[15]     On the three counts of selling a Class C controlled drug, you are sentenced to nine months home detention on the conditions set out in the home detention report.

[16]     On the two charges of breach of community work, you are convicted and discharged.

[17]     You may stand down.