R v Donaldson

[2012] NZHC 3236

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-029-0624 [2012] NZHC 3236

THE QUEEN

v

KAYSE TONI DONALDSON

Hearing:         3 December 2012

Counsel:         C Anderson for Crown

S Nicholson for Prisoner

Judgment:      3 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Counsel:

S Nicholson, PO Box 3, Kerikeri

R V DONALDSON HC WHA CRI 2012-029-0624 [3 December 2012]

Introduction

[1]      Kayse Toni Donaldson, you appear for sentence today on five charges of selling cannabis and two of possessing cannabis for supply.  You entered pleas of guilty to each of those charges in the District Court.  For jurisdictional reasons, the District Court required sentencing to be conducted in this Court.[1]

Facts

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

[2]      Your offending was detected during the course of a Police operation that was focussed on those engaged in selling cannabis in Northland.

[3]      On 16 December 2011, you were visited at your home in Kaitaia by a police officer who was undercover. You produced, when asked for a score, a small zip-lock plastic bag containing 10 pre-rolled cannabis tinnies.  One of those was sold to the officer for $20.

[4]      The officer returned to your address on 23 March 2012.  On that occasion, he was sold a further tinnie for $20.  On 4 April 2012, another visit took place. Another sale ensued.

[5]      On 19 April 2012, two such officers came to your house.  You produced a Park  Drive  tobacco  packet  containing  10–12  pre-rolled  cannabis  tinnies  before selling a single tinnie to one of them.  The other officer then came in and purchased another tinnie.

[6]      One of the officers returned again on 10 May 2012.  When greeted by you, you retrieved a single cannabis tinnie from a packet on the floor and sold it to him for $20.

[7]      A search warrant was executed at your home on 27 June 2012.  During the course of that search, the Police located a small amount of cannabis for personal use and $150 in cash.

[8]      While this was going on, you were also arrested on charges of assault arising out of an incident that occurred on 4 February 2012.  In the course of that incident you hit someone over the head  with a bottle.   As it transpires,  you have been sentenced on that charge, having pleaded guilty.  You were sentenced to six months community detention  and  supervision.    I am  required  to  take  into  account  that offending in determining the appropriate sentence to impose today.

Analysis

[9]      The selling operation in which you were involved was small to medium size. You were clearly prepared for people to come to the house and had sufficient stock on hand to sell when required.  The tinnies were pre-prepared and could be readily obtained by you. Although a relatively small amount of cash was located, the type of operation that you were running could have produced a not insignificant financial return.

[10]     A range of two to four years imprisonment is available as a starting point for offending of this type.[2]   I will take that starting point at two years six months.

[2] R v Terewi [1999] 3 NZLR 62 (CA) at para [4].

[11]     So far as aggravating factors are concerned, you have four prior convictions for cannabis related offending.  That suggests to me that you did not learn from those earlier occasions but instead graduated to selling.  In those circumstances, I impose an uplift for that factor of two months; making the revised starting point two years eight months.

[12]     So far as your own circumstances are concerned, three of significance have been put before me.  The first relates to the sense of intimidation you felt when you were undertaking the sales.   That intimidation is said to have occurred from the possibility that others also associated with drug dealing might have taken some step

against you.  The second and third, more significant from my point of view, are the recent diagnosis of depression and the other event that occurred recently that I will not set out openly in open Court.

[13]     I propose for present purposes to leave those to one side and just go to the guilty pleas.  While they were not strictly speaking entered at the earliest possible time,  they  were  entered  relatively  early.    I  think  taking  account  of  the  other mitigating factors it would be fair to have a reduction of 25%[3] which I would round to eight months.

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

[14]     That would leave the end sentence at two years imprisonment.  That requires me to look at the question of whether home detention should be ordered.

[15]     Before I received the information today about your medical condition and last week’s event, I was leaning on the side of imprisonment given the fact, in particular, that you had been selling from the home and you had also engaged in this conduct that led to your sentence earlier this year.

[16]     Given the medical information I now have, I think that tips the balance the other way.  You need help.  You need the opportunity to get help quickly and I am going to take the chance that you have come to the crossroads where you realise you need that assistance.

[17]     The other factor that is persuading me to order home detention is the fact that your mother will be with you and will be able to exercise some discipline over your conduct.  Frankly, you should not need her discipline at 22 years old, but you have to deal with that.  If you do not take these opportunities you will have a very sad life ahead of you.

Result

[18]     I am going to sentence you to home detention.

[19]     On each of the charges you are sentenced to a term of one year’s home detention and a term of 100 hours community work.  Those sentences will be served concurrently so that the term of home detention is one of 12 months and 100 hours community work only need be served.

[20]     Because you are being sentenced to home detention I cancel the existing community detention sentence and the sentence of supervision.   It is the need to cancel those sentences which has persuaded me to add the community work to your sentence.

[21]     The home detention sentence will be served on standard conditions and the following special conditions:

(a)      On leaving the Court today you are to travel directly to 95A Allen Bell Drive, Kaitaia to await the arrival of a probation officer and a representative of the monitoring company at 9am tomorrow morning. Pending that, you shall reside at the property throughout and not leave the property until such time as the probation officer attends tomorrow morning.

(b)      Your sentence will be served at 95A Allen Bell Drive, Kaitaia.

(c)      You shall not purchase, possess or consume alcohol or illicit drugs for the duration of your home detention sentence.

(d)You shall submit to a passive breath test as required by your probation officer at any time.

(e)      You shall attend and complete any form of counselling or programmes that   the   probation   officer   may   require.      These   will   include programmes for drug addiction or anger management, as the case may be.

[22]     The post detention conditions are:

(a)       To attend any other programmes, counselling or treatments as directed by your probation officer.

(b)Not to purchase, possess or consume alcohol and/or illicit drugs for the duration of the post detention sentence.

(c)       Not to permit alcohol and/or illicit drugs at the post detention address.

[23]     Ms Donaldson, you have received a sentence of home detention by a very fine margin.  Please bear that in mind and try and make some good out of your life.  I suspect from what I have read that you have the capability to do so but now is the time to show that by action rather than words.

[24]     An order is made for forfeiture of the money located by the Police and destruction of the drugs seized as exhibits.

[25]     Stand down.

P R Heath J