R v Dean HC Auckland CRI-2011-004-2269

[2011] NZHC 810

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-2269

THE QUEEN

v

NANCY DEAN

Hearing:         12 July 2011

Counsel:         E J McCaughan for the Crown

M Pecotic for Ms Dean

Judgment:      12 July 2011

SENTENCE OF WOODHOUSE J

Solicitors:

Mr E J McCaughan, Meredith Connell, Office of the Crown Solicitor, Auckland

Ms M Pecotic, Barrister, Auckland

R V DEAN HC AK CRI-2011-004-2269 12 July 2011

Offences

[1]      Ms Dean, you are here for sentence on a charge of supplying cannabis on 13

July 2010 – and this was a charge relating to the supply of two tinnies.

[2]      You pleaded guilty in the District Court but you were remanded for sentence to this Court by the District Court on 16 March 2011.   It seems, from reading the District Court Judge’s minute on this, that the remand to this Court occurred principally because  you  appeared with  your brother, and he faced more serious charges relating to cannabis. And I will explain that a bit further in a moment.

[3]      Over a period from 18 June to 25 July Police conducted surveillance of two apartments in Avondale.  This was done because of information obtained about your brother.  One apartment was in your name.  There was evidence of regular sales of cannabis tinnies from both apartments, with this organised by your brother.   The summary of facts indicates that your brother was preparing these tinnies with other people somewhere else and then organising people to sell tinnies from the apartment that was in your name and from the neighbouring apartment.

[4]      The principal charges were against your brother, as I have said.   He was charged with conspiracy to sell cannabis between 1 May and 23 July 2010 and he was charged with possession of cannabis for supply.  He pleaded guilty to both of those charges.

[5]      There was no clear evidence of sales by you, apart from sale of two tinnies on

13 July.  However, it is apparent from what you said to the probation officer that you had some greater involvement than the sale of two tinnies only.

Personal

[6]      Coming to your personal circumstances in outline.

[7]      You are aged 28, having turned 28, I think, just a week or so ago.  You have no previous convictions of relevance apart from two breaches of community work. These and bail breaches, of which there have been a number, are relevant to the final sentence because they indicate an unwillingness or an inability – and perhaps a combination of both – to take responsibility for your own actions.  And I have, of course, already discussed that with you.  This is confirmed to an extent by the pre- sentence report. There is also an assessment of a harmful pattern of alcohol and drug abuse over the preceding 12 months before the report was written.

[8]      On the other hand, Ms Dean, you have never been involved in this sort of offending in the past.  The previous offences are few and they are relatively minor. The present offence appears to have arisen from the influence of your brother, who apparently has gang connections.

[9]      You have two children.  Your 5 year old lives with your sister.  Your 9 year old son is with you.  He has attention deficit disorder.  He was recently accepted into a Whanau Ora programme and you obviously recognise your responsibilities to him.

Sentence

[10]     Your sentence needs to take account of relevant purposes and principles in the Sentencing Act and Court of Appeal guidelines in a case called Terewi.[1]   Also of direct relevance is the sentence imposed on your brother.  The Crown accepts that he was the prime mover.  I am satisfied that there would have been no offending by you if he had not organised this dealing in cannabis.

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

[11]     Your brother was sentenced by Keane J on 13 May 2011.  He fixed a starting point of 2 years 9 months to 3 years for the two offences and allowed a reduction of

25% for his guilty pleas.  The end sentence for your brother was 12 months home detention.

[12]     In your case I assess the starting point, if prison was appropriate, at no more than 18 months imprisonment.  That takes account of all of the matters that I have

already  referred  to  without  repeating  them  and  further  matters  discussed  with counsel during submissions.  In particular, and as Mr McCaughan acknowledged, the offence itself is relatively minor in the scheme of things.  And in the normal course of events it would probably automatically result in some community based sentence

– and I will come back to that.

[13]     Your guilty plea was entered within a few days of the guilty pleas of your brother and for that reason I consider that the same reduction of 25% should be allowed.  That would mean a prison sentence – if a prison sentence was imposed – of less than 14 months, and probably quite a bit less than 14 months when allowance is made for other relevant matters that I have outlined.

Home detention

[14]     Home detention is not an available option because there is no suitable home. I have not overlooked Ms Pecotic’s advice this morning that there may be a suitable home.  But various options for home detention have been explored already – and I think twice, perhaps more – without any suitable home being found.

[15]     This, however, does not mean that the sentence must be one of imprisonment. The relevant provisions of the Sentencing Act, when applied to the circumstances of your case, indicate that a community based sentence is appropriate irrespective of the availability of home detention.

[16]     This is reinforced by a recent decision of the Court of Appeal in R v Rawiri.[2]

It is further reinforced by the fact that your brother received a sentence of home detention.

Intensive supervision

[2] R v Rawiri [2011] NZCA 244; CA892/10, CA893/10, 31 May 2011

[17]     I consider that the appropriate sentence is one of intensive supervision.  This is a severe sentence in itself.  It is one which is required in your case because of the relative seriousness of your offending, because of the need to impose conditions that

apply on a sentence of intensive supervision and because of your response to sentences of community work imposed for driving offences.  It is likely, Ms Dean, that were it not for your breaches of community work sentences, and your persistent breaches of bail while on remand for this sentencing, that the sentence might have been less than one of intensive supervision. And that was responsibly acknowledged by Mr McCaughan on behalf of the Crown.

Final sentence

[18]     You should now stand and I will impose the sentence. [19]     You are sentenced to 12 months intensive supervision.

[20]     In addition to the standard conditions that apply there will be the following special conditions:

(a)       You  are  to  attend  alcohol  and  drug  assessment  and  subsequent counselling or programmes as directed by the probation officer.

(b)You are to attend any other counselling, treatment or programmes as directed by the probation officer.

(c)       Specifically, you are to attend any Whanau Ora programme as may be directed by the probation officer.

[21]     You may now stand down.

Peter Woodhouse J