R v Day

[2012] NZHC 3259

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-029-628 [2012] NZHC 3259

THE QUEEN

v

RICHARD ALLAN ROBERT DAY

Hearing:         4 December 2012

Counsel:         C A Anderson for Crown

G Anson for Prisoner

Judgment:      4 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Counsel:

G Anson, PO Box 248, Kerikeri

R V DAY HC WHA CRI 2012-029-628 [4 December 2012]

Introduction

[1]      Richard Allan Robert Day, you appear for sentence today on seven charges of selling cannabis and two of possessing the Class C controlled drug cannabis for sale. You entered pleas of guilty in the District Court at Kaitaia on 20 July 2012.  The District Court declined jurisdiction to sentence you.[1]  That is why you are here today.

Facts

[1] R v McLeod [1988] 2 NZLR 65 (CA).

[2]      Your  offending  was  detected  during  the  course  of  a  Police  operation undertaken between November 2011 and June 2012.   The operation targeted suspected or known tinnie houses in the North.

[3]      You were visited at  your home from where  you sold cannabis to police officers.   You also acknowledged in a statement to the Police after you had been arrested that you had sold up to 30 times in total.

[4]      The first occasion on which you sold a tinnie to a police officer was 23

February 2012. At that stage you were on bail for other offending pending sentence. You were sentenced to home detention on 8 March 2012, on those unrelated charges. The balance of the offending all occurred while you were subject to that sentence.

Analysis

[5]      I accept that the financial rewards from the offending were modest.  I accept also that you offended out of a feeling of need, rather than for any other purpose.  I do understand, even though you probably do not accept this, that in the North things are more difficult and it becomes more difficult to keep away from offending of this type.

[6]      I assess the nature of your enterprise as relatively small to medium.  You did appear  to  have  the  ability to  obtain  product  regularly.    There  was  a  degree  of

frequency about the sales, the number of persons to whom you sold also suggests that type of operation.  There is a range of between two and four years imprisonment that must be used for offending of this type to fix the starting point.  I fix the starting point at two years six months imprisonment.[2]

[2] R v Terewi [1993] 3 NZLR 62 (CA) at para [4].

[7]      There  are  aggravating  factors,  the  most  serious  of  which  involve  the offending while subject to bail and the sentence of home detention.  The previous drug conviction that you have, I put to one side.  I do not see that as adding anything significant.   I provide an uplift of three months to respond to the nature of the offending in those circumstances.

[8]      That leaves a revised starting point of two years nine months from which you are entitled to a credit of 25% to represent the early guilty pleas.[3]    That brings the sentence down to two years and one month’s imprisonment, allowing eight months for the credit.  That is a sentence which will make you eligible to apply for parole after serving one-third.

[3] Hessell v R [2011] 1 NZLR 607 (CA) at para [75].

[9]      I have to say that if the end sentence had come within the range for home detention I could not have imposed a sentence of home detention.   Largely that is because of the deterrent effect that is required, not necessarily on you, but on other members of the community.  The sentencing goals of denunciation and deterrence would not be met by a sentence of home detention to respond to offending that occurred while you were subject to that same sentence.

Result

[10]     On each charge you are sentenced to a term of two years and one month imprisonment.  I make an order for destruction of the drugs seized during the course

of the operation.

[11]     Stand down.

P R Heath J