R v Downs HC Dunedin CRI 2009-002-568

[2010] NZHC 481

IN THE HIGH COURT OF NEW ZEALAND

DUNEDIN REGISTRY

CRI-2009-002-568

THE QUEEN

v

LUKE EDWARD DOWNS

Hearing:         15 April 2010

Appearances:  Mr R Bates for Crown

Mr C D Savage for Prisoner

Judgment:      15 April 2010

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Dunedin

Mr C D Savage, Dunedin

R V DOWNS HC DUN CRI-2009-002-568  15 April 2010

[1]      Mr  Downs,  you  appear  for  sentence  today  having  pleaded  guilty  in  the District Court to five charges of being in possession of cannabis for supply and five charges  of  selling  cannabis.   Both  of  those  charges  carry sentences  of  eight  years imprisonment.   You  also  appear  on  a  charge  of  cultivating cannabis.   That  charge carries a maximum sentence of seven years imprisonment.  You appear, as well, on a charge of intimidation which carries a maximum term of three months imprisonment, a charge of dangerous driving which carries a maximum sentence of three months imprisonment and a charge of common assault.  The latter charge carries a maximum penalty of one year’s imprisonment.

[2]      You pleaded guilty at an early stage in the District Court.   The Judge in the

District Court declined jurisdiction and remanded you to this Court for sentence.

Facts

[3]      The background to the charges is recorded in three summaries of fact, with which you take no issue.

[4]      The  cannabis  charges  arise  from  a  police  operation  that  the  Central  Otago police carried out in the latter part of 2008.  In that operation they kept a number of addresses  and  persons  under  surveillance.   They  also  targeted  cellphones  used  by certain individuals.

[5]      During  this  period  you  were  known  to  use  three  addresses  in  the  Wanaka area.   These were 15 Hewson Crescent, Hawea, 46 Dungarvon Street, Wanaka and 229 Stone Street, Wanaka.   The  police also intercepted  call data from  a  cellphone that you were using at this time.

[6]      The police had been receiving information about a large number of visitors coming to and from the Dungarvon Street address.  They took the view that this was consistent with drug dealing activity taking place at that address.

[7]      The police then introduced  an  undercover  police  officer  into  the  operation.

He visited an address in Chicago Street, Alexandra and spoke with a person who was living there.  He then engaged in negotiations with that person to acquire drugs.

CRN 704 – Possession of two ounces of cannabis for supply on 25 June 2009

[8]      On the evening of Thursday 25 June 2009, one of the persons associated with the Chicago Street address contacted the special duty constable with the information that he had access to cannabis but that he and the officer would need to travel out of town  to  make  the  purchase.   He  told  the  officer  that  two  ounces  of  cannabis  was available at $400 an ounce.

[9]      The officer then followed this person from Alexandra to your address at 46

Dungarvon Street, Wanaka.  You and your vehicle were present at the address at this time.  Once at the address the officer was introduced to an unknown male who came out  of  the  address.        That  person  accepted  the  sum  of  $800  from  the  undercover officer  and  a  short  while  later  he  was  provided  with  two  ounces  of  good  quality cannabis  head  wrapped  in  tinfoil.   These  were  contained  in  two  separate  parcels. Your fingerprint was later found on the tinfoil wrapping around the cannabis.

CRN 703 – Selling two ounces of cannabis on 6 July 2009

[10]     On the afternoon of Monday 6 July 2009, the undercover officer went back to

46 Dungarvon Street where he spoke to you. You discussed with him the cannabis that he had acquired on 25 June 2009. You then offered him another two ounces of cannabis, this time for $350 an ounce. You told the officer that you were giving him

a discount because he was buying two ounces.

[11]     After some discussion, the officer paid you $350 in cash and was then told to come back in about 20 minutes to pick up the cannabis.  When he returned, you took him inside the address and introduced him to another person.  This person produced two  ounces  of  cannabis  and  provided  it  to  the  officer.  The  cannabis  was  good quality head material.  The person who provided the cannabis verified with you that the officer had paid part of the purchase price earlier.

[12]     You told the officer at this time that the next time that he called he should park further down the road because you were “a bit hot”.  You told the officer, also, that you had just got back from Court in Queenstown, where you had been given bail on charges of assault and dealing in cannabis.

CRN 755 – Possession of one ounce of cannabis for sale on 5 July 2009

[13]     This  charge  relates  to  the  incident  that  you  discussed  with  the  undercover officer on 6 July 2009.  In the early hours of 5 July 2009, the police had gone to your address to talk to you about an incident that had occurred earlier at a local bar.  That incident gave rise to the assault charge for which you now appear for sentence.  You agreed to accompany the police to the police station at Wanaka to make a statement. Whilst there you were found to have an ounce of cannabis in a snaplock plastic bag tucked around the cuff of your trousers.  You were also found to be carrying $4,630 in your wallet.

[14]     You declined to answer any questions about the cannabis.  You said that the money represented the proceeds of firewood sales.

CRN 706 – Selling three ounces of cannabis on 24 July 2009

[15]     On the afternoon of Friday 24 July 2009, the special duties constable drove to Wanaka and went to  your address at 46 Dungarvon Street.   He enquired after  you and  was  told  that  you  were  at  a  local  bar.  He  then  drove  towards  the  bar  but encountered you on the side of the road whilst en route.  You got into the vehicle and the officer took you back towards Dungarvon Street.   At your direction, the officer drove  past  your  house  at  46  Dungarvan  Street  and  stopped  nearby on  an  adjacent street.

[16]     You asked the officer if he wanted drugs.  He said that he did.  You told him that you had ounces of cannabis for sale for $400 an ounce.

[17]     When  the  officer  pointed  out  that  he  had  only  paid  $350  on  the  earlier occasion, you told him that you could easily sell an ounce of cannabis that day for

$400 and if not on that day, then on the next.   You made it clear to the officer that you had no need to discount the price at that time of year.

[18]     You  then  had  a  discussion  with  the  officer  about  the  acquisition  of  some tyres.            Ultimately  you  negotiated  a  deal  under  which  the  officer  received  three ounces of good quality cannabis head in return for some cash and a set of tyres.

CRN 708 and 709 –Selling two and a half ounces of cannabis on 19 August 2009

[19]     On the afternoon of 18 August 2009, you engaged in text messaging with the special duties constable.  The next day he drove to Wanaka and was given directions

to an address at 229 Stone Street, Wanaka.   That was an address to which you had been bailed, presumably after your appearance in Court on 6 July 2009.

[20]     Once the officer arrived,  you indicated that he  should come in.   There  you introduced him to another person who was in the lounge of the address.   You were evidently in the throes of a drug dealing transaction with this person, because  you provided him with a snaplock plastic bag of cannabis head material that appeared to be  one  ounce  in  weight.   You  told  that  person  that  you  were  prepared  to  sell  that cannabis to him for $175.  He gave that sum of money to you and then left with the cannabis.

[21]     You  then  engaged  in  further  discussions  with  the  undercover  officer.   You agreed  to  give  him  an  ounce  of  cannabis  together  with  the  tyres  that  you  had acquired from him on the previous occasion.  In return, you received four tyres from the officer.

[22]     The officer then asked if he could obtain another ounce of cannabis for $350. You  said  that  you  could  do  that  and  then  provided  him  with  three  snaplock  bags, each of which contained cannabis head material.  One of these bags weighed half an ounce and the other bag weighed a full ounce.   You handed the bags to the officer, who in turn gave you $350 in cash.

[23]     The  officer  asked  you  if  there  was  any  chance  of  obtaining  a  pound  of cannabis.   You  said  that  you  could  not  supply  a  pound  at  that  time,  but  that  you would contact the officer later if  you could source it.   You said that it would cost about $4,800 per pound.

CRN 710 - Cultivating cannabis on 22 September 2009

[24]     The police ultimately terminated their operation on 22 September 2009.   At that time they executed search warrants on your three addresses.  They found a house bus  on  the  section  at  Hawea. When  they  searched  the  house  bus  they  located  a manhole that led to an enclosed cavity.   Within the cavity was a purpose built area for  growing  cannabis.   The  police  located  ten  healthy  cannabis  plants  growing  in pots.   They were well tended and beginning to produce good quality cannabis head material.   They were all about one metre in height.   The growing cavity contained lighting  and  other  cultivation  paraphernalia.   You  frankly  admitted  that  the  plants were yours and that you had grown them.

CRN 737 – Representative charge of selling cannabis between February 2007 and

September 2009

[25]     The  police  subsequently carried  out  an  analysis  of  your  bank  accounts  and known  sources  of  income.             This  revealed  that  unexplained  cash  income  totalling approximately $100,000 had been accumulated by you during 2007 and 2008.  As a result,  the  police  concluded  that  the  unexplained  income  represented  the  sale  of cannabis during this period.   You clearly accept that that was the case by virtue of your guilty plea to this charge.

[26]     The remaining charges that  you face  are unrelated to  your  cannabis related activity.  The charge of intimidation arises out of an incident on 10 September 2009. On that date you were at the Alexandra District Court, where you were due to appear as a police witness at a defended hearing.   When the Duty Solicitor approached the front doors of the Court, you stood in the doorway in front of him in an intimidating manner with your fists clenched.   As the solicitor walked past, you stared at him in

an  intimidating  manner  and  told  him  to  “watch  it”.   The  solicitor  took  this  as  a personal threat and felt intimidated by your behavior.

[27]     When the police spoke to you about this incident, you admitted speaking to the solicitor as he had walked past but you said that you said “how’s it” rather than, “watch it”.

Assault

[28]     The  remaining  charge  is  that  of  assault.   This  arises  out  of  the  incident  to which I have already referred in the early hours of 5 July 2009.   At that time you were in a bar in central Wanaka.  You were ejected as a result of your behavior, and upon being ejected you encountered the victim.   The victim apparently found your ejection  from  the  bar  funny.   You  took  umbrage  at  this  and  confronted  him.   The victim turned his back but you punched him in the back of the head with your closed fist.  When the victim recovered from this blow, you punched him and slapped him around the face on approximately four occasions.  This led to the victim having pain in the jaw, face and the back of his head.   Fortunately, however, he did not require medical treatment.

Sentencing Act 2002

[29]     In sentencing you, I am required to have regard to the purposes and principles

of sentencing contained in the Sentencing Act 2002.   As I am sure you know well, Mr  Downs,  any  person  who  becomes  involved  in  dealing  in  drugs,  whether  it  be Class  A,  B  or  C,  runs  the  very real  risk  of  receiving  a  sentence  of  imprisonment. This is because issues of deterrence and denunciation are to the forefront.   People who choose to become involved in that activity must understand that the inevitable consequence of doing so, if they are detected, is a sentence of imprisonment.

[30]     The real issue  is  fixing  a  sentence  that  is  broadly  consistent  with  those imposed in other cases and imposing the shortest sentence of imprisonment that is appropriate having regard to your circumstances and those of your offending.

Starting point

[31]     The  drug  charges  fall  to  be  dealt  with  under  the  decision  of  the  Court  of Appeal in R v Terewi [1999] 3 NZLR 62. Both counsel accept that your offending falls within a band of offending identified in Terewi  as  having  a  starting  point  of between  two  and  four  years  imprisonment. Several  factors  about  your  offending suggest to me that the starting point should be fixed in the middle of that range.

[32]     First,  there  is  the  fact  that  there  were  several  discrete  supplies  of  ounce  or half-ounce quantities of cannabis.

[33]     Secondly, the offending obviously continued over a significant period.   This

is apparent from the fact that  you have pleaded guilty to the representative charge that  spans  the  years  2007  and  2008.  It  also  involved  a  reasonably  significant quantity  of  money,  as  shown  by  the  unidentified  income  that  the  police  have discovered.

[34]     Thirdly, it is clear that  you were prepared to deal with people even though you did not know them at all.   That fact is made plain by your willingness to deal with the undercover police officer, notwithstanding the fact that  you did not know anything about him at all.

[35]     I  therefore  take  you  as  a  person  operating  at  the  retail  end,  albeit  on  a reasonably busy scale.   I consider that an appropriate starting point is one of three years  three  months  imprisonment  on  the  lead  charges,  which  I take  to  be  those  in CRNs 706, 708, 709, 737 and 710.

[36]     So far as the other cannabis charges are concerned, I take the culpability in relation to those charges to be captured by the starting point that I have adopted in relation to these charges.

Aggravating factors

[37]     Another issue in relation to these charges is whether I should apply an uplift

in relation to those charges to reflect the fact that the offending that occurred after

5 July was whilst you were on bail.  Another factor I need to take into account is the fact that you have previous convictions for drug-related activity.

[38]     Your first cannabis-related conviction occurred in 1997, when you were fined

$100 on a charge of cultivating cannabis.  You then have convictions for possession

of cannabis in 1998 and cultivating cannabis and being in possession of cannabis for supply in 1998.   On the latter two charges you received sentences of four and three months  imprisonment  respectively.   You  were  then  convicted  again  of  cultivating cannabis  in  2006.     That  must  have  been  a  relatively  low  level  offence,  however, because you received a fine of $300.

[39]     Mr Downs, you need to realise that you are now becoming a recidivist drug offender.   This  means  that  each  time  you  appear  for  sentence,  you  run  the  risk  of having your sentence increased to reflect that fact.  The purpose of the increase is not to punish you again in respect of earlier offending.   Rather, it recognises the reality that earlier  sentences have not served  to deter  you.   You have  been determined to become involved in drug dealing, and in a reasonably   substantial way, notwithstanding the fact that you know that prison is the likely outcome if you are caught.

[40]     I consider that an overall uplift of three months imprisonment is appropriate

to  reflect  both  of  the  factors  to  which  I  have  referred.       This  means  that  the  end starting point that I take in relation to the drug-related charges is one of three years six months imprisonment.

Cumulative sentence

[41]     I  consider  that  the  assault  charge  warrants  recognition.      It  was  entirely unprovoked, in my view, and cannot go unpunished.   I take a starting point of three months  imprisonment  on  that  charge  and  reduce  it  by  one  month  to  reflect  your guilty  plea. The  end  sentence  on  that  charge,  therefore,  is  one  of  two  months imprisonment, which I propose to impose cumulatively on the other sentences that I am going to impose.

Mitigating factors

[42]     So far as mitigating factors are concerned, the only real mitigating factor is your  early  guilty  plea.    The  Crown  accepts  that  that  warrants  the  full  one-third discount  identified  in  R  v  Hessell  [2009]  NZCA  450. This  means  that  the  end sentence of three years six months imprisonment on the drug-related charges needs to be reduced by one-third, or 14 months, leaving an end sentence on those charges of two years four months imprisonment.

[43]     The charge of intimidation can be dealt with, in my view, appropriately by a conviction and discharge.

[44]     The  remaining  charge  of  dangerous  driving  relates  to  an  incident  on  the afternoon of 13 May 2009 when you deliberately swerved across the centre line of SH84 and into the path of another vehicle.  This meant that the other vehicle had to swerve to avoid you.  Fortunately, it appears that no damage was done.

[45]     I propose to convict and discharge you on that charge also, but to impose the mandatory period of disqualification in respect of it.

Sentence

[46]     On  Informations  ending  706,  708,  709,  710  and  737,  you  are  sentenced  to two years four months imprisonment.  Those sentences are to be served concurrently with each other.

[47]     On  Informations  ending  703,  704  and  755,  you  are  sentenced  to  two  years imprisonment.   Those sentences are to be served concurrently with each  other and concurrently with the other sentences that I have imposed.

[48]     On  the  charge  of  assault  you  are  sentenced  to  two  months  imprisonment. That sentence is to be served cumulatively on the sentence of two years four months imprisonment that I have imposed in relation to CRNs ending 706, 708, 709, 710 and 737.

[49]     On  the  charge  of  dangerous  driving  you  are  convicted  and  discharged  but disqualified  from  holding or  obtaining a  motor  driver’s  licence  for  a  period  of  six months.

[50]     On the charge of intimidation you are convicted and discharged.

[51]     On  CRNs  ending  702,  705  and  707,  I  convict  and  discharge  you  at  the request of the Crown.   I take that step because the Crown has a concern that those charges   may  duplicate   other   charges   in   respect   of   which   you   have   received substantive sentences.

Forfeiture

[52]     I am satisfied that the cash that was found on you when you were searched at the  police  station  on  6  July  2009  represented  the  proceeds  of  sale  of  drugs. I therefore direct that that sum be forfeit to the Crown.

Order for destruction

[53]     I   make   an   order   for   the   destruction   of   any   drugs   and   drug-related paraphernalia that have not yet been destroyed.

Lang J