R v Dudley HC Hamilton CRI-2011-019-215

[2011] NZHC 1485

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-215

THE QUEEN

v

JOHNATHON SHANE DUDLEY

Counsel:         J M O'Sullivan for Crown

J E Galt for Prisoner

Judgment:      31 May 2011

SENTENCING NOTES OF DOBSON J

[1]      You are appearing for sentence before me this morning on one count of possession of cannabis for the purpose of supply and one count of selling cannabis. You pleaded guilty to those counts in the District Court on 11 January this year.  As the Crown has sought a sentence of more than 12 months’ imprisonment, the District Court declined jurisdiction to sentence you and your sentence is to be decided in this Court.  On sentencing in this Court, both convictions carry a maximum penalty of eight years’ imprisonment.

Background

[2]      As set out in the summary of facts, all of the evidence was obtained by the

Police in a single search of your house in Hamilton. There, the Police found:

18 tinnies of cannabis (approximately 10.8-21.6 grams);

R v DUDLEY HC HAM CRI-2011-019-215 31 May 2011

a  further  4.6 grams  of  cannabis  (comprising  the  1.8  grams  of  “loose cannabis” found in your bedroom, 2.4 grams of cannabis in the “silver

metal dish” and 0.4 grams of cannabis in a “snaplock” bag); and

64 grams of dried cannabis bud.

[3]      That is a total of somewhere between 79 and 90 grams of cannabis.  You will have heard me discussing the maths with counsel this morning. Along with that, $60 in cash was found in varying denominations, plus digital scales, drug paraphernalia, a roll of tinfoil with a number of pre-cut pieces and a black taser weapon.  Mr Galt, in his written submissions, made the point that the charge in relation to the taser has been withdrawn, with you claiming that it, in fact, was your partner’s.

[4]      The Police also located your mobile phone.  On that phone were various text messages received by you, which requested you to provide those sending the texts with cannabis.   Indeed, a request by the Police to view your text messaging data showed  that  between  1 December  and  10 December  last  year  you  repeatedly communicated  in  terms  suggesting  that  you  were  selling,  or  offering  to  sell, cannabis. The Police analysis of the texts recalled from the service provider suggests that a majority of about 100 texts per day were about the supply of cannabis, and that some 30-40 different numbers were involved.

Pre-sentence report

[5]      Mr Dudley, I have read the pre-sentence report prepared by the Department of Corrections.  It records that you assume full responsibility for your offending, and express a willingness to engage in drug counselling, and you have repeated that to me this morning.  Also, the report writer acknowledges your insight into your offending.  However, the report writer also notes that these are things you have said in the past, and the report records that  you, over the past 12  years, amassed a considerable number of convictions for dishonesty and drug-related offending.  Your first, for selling, was at the age of 18.

[6]      The previous pre-sentence reports record the same pattern of an expressed willingness to change.  And yet, so far, Mr Dudley, that has not occurred.  You have what the report writer records as “successfully” completed a Corrections Drug Treatment Unit programme, and you completed further substance abuse counselling with Hanmer Clinic in 2008.  However, you have continued your involvement with drugs.

[7]      In light of those circumstances, you are assessed as having a low motivation to change, and I have to treat any claimed motivation to make positive changes with caution. You are also assessed at a medium to high risk of re-offending, and that risk is inextricably linked to your drug habit and your associated connections.

[8]      I have read the letter that Mr Galt handed to me this morning and I have heard you this morning.  You say you are remorseful.  You hopefully now appreciate that your record follows you and the time to demonstrate remorse and commit to change is when you conclude a sentence, not when you are facing another one.  So I certainly hope that you will not do it again.

[9]      The report writer has recommended a sentence of imprisonment and that is realistic.

Approach on sentence

[10]     In sentencing you, I have to be guided first by the Sentencing Act 2002 (the Act).  The Court is directed by the sentencing purposes and principles contained in ss 7 and 8 of that Act, which require me to pass a sentence that will deter you and others from committing similar offences in the future, and hold you accountable for your actions.  The Act also requires the Court to impose the least restrictive outcome that is appropriate in the circumstances and to assist in rehabilitation.

[11]     In settling on the appropriate sentence, I must first identify a starting point for your offending.  That is arrived at by considering the bad features that aggravate, or make the offending worse, and any mitigating features of the offending that enable it to be seen as less serious.  I consider its relative seriousness in light of decisions of

this Court and the Court of Appeal in similar cases.  From that, I must then give due weight to aggravating and mitigating features which are personal to you  as the offender.

Starting point

[12]     The Court of Appeal’s decision in R v Terewi,1  which you may have heard counsel refer to, is the starting point for offending relating to the sale or possession for the purpose of supply of cannabis.2    In Terewi, the Court of Appeal identified three categories for offending.   Yours fits within the second band: small-scale possession for a commercial purpose.  In Terewi, the Court stated that an appropriate starting point will generally be between two and four years’ imprisonment, but where sales are infrequent and of limited extent, a lower starting point may be justified.

Comparable cases

[13]     In considering what the starting point should be in your case, it is instructive to look at other, similar offending.  Sadly, there is a large number of sentencing in more or less comparable situations, and I propose to annex to these sentencing notes when they are issued a brief review of the facts, starting points and end sentences in some seven earlier cases.  They adopted starting points ranging from three years six months’ imprisonment down to 12 months’ imprisonment, with discounts of around

25 per cent where guilty pleas were entered.

Discussion

[14]     So you are for sentence on two convictions, and it is appropriate to consider concurrent sentences for both.  That is, that you would serve them at the same time. The Police say your offending is in the middle of band two of Terewi, and Mr Galt argues that it is towards the lower end of that band.   I accept your offending is towards the lower end of the second band in Terewi.  You had less than 100 grams of cannabis, however we do the maths, and the amount of cash that you had did not

indicate a large-scale operation.   On the other side, texts suggested you may have been supplying “on tick” and that is possibly an indication of a larger, on-going scale of dealing.  There is, here, evidence that you were only selling for around a month.  I do  not  consider,  however,  that  your operation  was  limited in  scale such  that  it justifies a starting point of less than two years.3   In the period analysed by the Police, it was small-scale, but constant – that is how I would describe it.   There is no suggestion that you were in this for a short-term gain.   Indeed, your history of offending suggests to me anything but.

[15]     I also note that the Crown seeks to rely on the existence of a taser weapon as aggravating.  In order for the Crown to rely on that fact as aggravating, it would have to prove that it was yours beyond reasonable doubt.4   I note that in the pre-sentence report you state that it was your fiancée’s.  I cannot be certain whose taser it was, so I place no weight on its existence.   I do note, however, that your offending was committed whilst you were subject to a sentence of community detention for possession of a cannabis utensil.  I disregard the circumstances in which you were not complying with that sentence, but the fact that you were on a sentence justifies a

slight uplift from the minimum.  I do not see it as warranting as large an uplift as the Crown seeks, but I adopt, in the end, a starting point of two years and one month’s imprisonment.

End point

[16]     From  that  starting  point,  I  now  turn  to  consider  the  aggravating  and mitigating factors that are personal to you as the offender.  You have an extensive criminal history – 56 convictions in all, from 1998 to 2010.  Six of those relate to previous drug offending, although only one, I note, is for selling and that is as long ago as 1998.   To reflect that previous history, I consider an uplift of two months’

imprisonment is required, and that gets us to two years and three months.

3      See R v Rihari HC Whangarei SO5102, 23 September 2005, R v Shelford CA3/06, 22 March

2006 and R v Poutai HC Palmerston North CRI-2005-054-4831, 28 September 2006.

4      Sentencing Act 2002, s 24(2)(c).

[17]     You  pleaded  guilty  more  or  less  at  the  first  opportunity.   And  I  accept Mr Galt’s explanation for the sequence from December to January.  You are entitled to a significant discount in that respect.  The maximum that you are entitled to is

25 per cent.5    However, you are not automatically entitled to that discount.  I must

stand back and consider, in the circumstances of your case, what reduction is justified.6    That consideration includes weighing the strength of the prosecution’s case.  Here, that case was undoubtedly strong.  In pleading guilty when you did, you did save the State considerable expense and time in prosecuting you, but in light of the undisputed circumstances, I do consider the prosecution’s case to have been a strong one.

[18]     The law now allows a separate discount for genuine remorse.  I have thought carefully about that, and in light of the letter and your comments to me this morning, as to whether it is warranted.   I have to balance what you have said against the observations in the pre-sentence report and I do accept those.  I therefore consider that a discount of six months is to be justified, and I settle on an end sentence of one year and nine months’ imprisonment.

[19]     I said earlier that I must impose the least restrictive sentence possible.   A sentence of home detention is available where the end sentence settled upon is less than two years’ imprisonment.  I further note that a sentence of home detention is not an uncommon occurrence on sentencings similar to yours.  However, in your case there is no suitable address.  Your father was not prepared to assist, and in light of the  failure  by  your  partner’s  sister  to  assist  the  report  writer  in  making  an assessment, I consider her address also to be unsuitable.  Further, even if you were to have a suitable address, I consider that a sentence of home detention in your case would be inappropriate, given your assessed risk of re-offending and the fact that your current offending was committed at home whilst subject to a sentence (albeit one of community work).

[20]     I therefore sentence you, Mr Dudley, to a sentence of one year and nine

months’ imprisonment on both convictions, to be served concurrently.  I impose the

following release conditions, and these are the ones that were recommended by the pre-sentence report writer:

(a)      First,  to  attend  and  complete  an  appropriate  drug  and  alcohol programme   to   the   satisfaction   of   the   Probation   Officer   and programme provider.  Details of the appropriate programme are to be determined by the Probation Officer.

(b)And secondly, to attend and complete such counselling or programme or treatment to address identified offending behaviour as may be directed by the Probation Officer and to the satisfaction of the Probation Officer and the programme provider.

[21]     You may stand down.

Dobson J

Solicitors:

Crown Solicitor, Hamilton

Schedule of Previous Cases

R v Paki

The  Court  of  Appeal  considered  an  appeal  against  a  sentence  of  20  months’

imprisonment.7     That sentence was upheld on appeal.   In Paki, the Police found

15 tinnies, a small additional amount of cannabis, and tick lists at the offender’s address.   Ms Paki admitted to dealing from the address for about six months.   A starting point of two years and two months’ imprisonment was upheld on appeal.

R v Tonihi

Ms Tonihi was sentenced to one year, six months’ imprisonment with leave to apply for home detention on five charges of possession of cannabis for supply and four charges of supply.8   An undercover officer had purchased cannabis tinnies from her on four occasions (two tinnies on each occasion and the officer saw other tinnies on each occasion).  A later search of the property located 62 tinnies.  She told Police that she earned approximately $300 per week from cannabis dealings – she received

drops of 50 tinnies a week.  She said she started dealing to support her habit and to help care for her grandchildren.  She dealt from home and her partner sold it when she was not there.  She had previous convictions, mostly historical and for low-level offending.   Offending was within category two and a two and a half year starting point was adopted.   Guilty pleas, remorse, efforts at rehabilitation, and a lack of previous convictions for drug offending justified a discount to 18 months.

R v Paewhenua

Mr Paewhenua was sentenced to one year six months’ imprisonment (with leave to apply for home detention) for possession of cannabis for supply and supply.9    He was found with nine tinnies and $826.20 cash (mostly in $20 notes) in his house, and admitted selling tinnies regularly over the previous month (25 to 50 sales at $20 each on a good week).   At the time, he was unemployed due to permanent damage

sustained to his hand at work, and his partner had just had a baby.  He had one minor

7      R v Paki CA165/05, 5 September 2005.

8      R v Tonihi HC Napier CRI-2006-020-3900, 23 May 2007.

previous cannabis conviction and eight other convictions.   In the circumstances, a merciful sentence was appropriate – justifying a discount from the starting point of two years to 18 months.

R v Kite

Mr Kite  was  sentenced  to  one  year  eight  months’  imprisonment  (to  be  served concurrently) on each of his convictions for sale and possession of cannabis for supply.10   A search of his address uncovered 30 grams of cannabis and he admitted that he would purchase an ounce of cannabis, break it down into about 25 cigarettes and then sell them for $20 over a one to two week period, making a profit of about

$150 per ounce.  He said he had been doing it for approximately two months.  He was not a user, his offending being the result of financial pressure.   Courtney J considered that his offending justified a starting point of two years.  An uplift of six months was required to account for aggravating factors that it was an “established trade”  (instead  of  a  one-off  or  a  few  instances),  two  previous  drug-related convictions and that he was serving a sentence of home detention at the time for cultivation of cannabis.   Mitigating factors were his guilty plea and co-operation with Police, justifying a discount of 10 months.

R v Shelford

Mr Shelford was sentenced to 21 months’ imprisonment for possession for sale or supply and possession of utensils following the execution of a search warrant at his home.11     That sentence was upheld on appeal.   Police located a cannabis plant,

25 grams of low quality cannabis leaf, a pipe for consuming cannabis, a set of scales, and  four  bags  each  containing  27  –  30 grams  of  high  quality  cannabis  head. Mr Shelford claimed, both to Police and at trial, that all the cannabis was for his own use.  He was found guilty and the sentencing Judge proceeded on the basis that the four bags of cannabis, weighing a total of 113 grams, were for on-sale.  Put at its lowest, the value of the cannabis was $1,000.   The Judge held that, despite the categorisation of the offending as category two of Terewi, the appropriate starting point was 18 months’ imprisonment.   To that, he added three months to reflect

aggravating factors (appellant was serving a sentence of community work at the time, and had an extensive criminal history).

R v Poutai

Mr Poutai was sentenced to 14 months’ imprisonment after pleading guilty to one charge of possession of cannabis for sale and one charge of possession of cannabis oil.12    A search warrant was executed at Mr Poutai’s residence and Police located cannabis oil equivalent to two or three capsules, 11 cannabis tinnies, and cash. Ronald  Young  J  noted  that  Mr Poutai  had  a  long  list  of  prior  drug  offending, although all relatively minor.  The relevant offending occurred while Mr Poutai was

on bail for a prior possession charge.  Mr Poutai had not previously been sentenced to imprisonment.   On the charge of possession for sale, the sentencing Judge concluded that the offending was “low end dealing” that warranted a starting point of

15 months’ imprisonment. Three months was added to reflect past offending, and then four months was deducted to reflect the plea of guilty.  Leave to apply for home detention was refused on the basis that the risk of reoffending was high.   On the charge  of  possession  of  cannabis  oil,  Mr Poutai  was  sentenced  to  one  month’s imprisonment concurrent.

R v Rihari

Ms Rihari  was  sentenced  to  nine  months’  imprisonment  following  her  pleading guilty to one charge each of sale or cannabis and possession for the purpose of supply.13    A search warrant was executed at Ms Rihari’s residence.   There, Police located six cannabis tinnies.  Ms Rihari admitted to Police that she had grown four cannabis plants behind her house and had been progressively harvesting these and selling tinnies.   She advised that she had sold  $400-$500 of cannabis over the previous two months and that the six tinnies were the last ones left.  She said by way of explanation that she had debt with a finance company that she hoped to pay off.

Nicholson J categorised the offending as category two of Terewi, and was satisfied that the sales were infrequent and of a very limited extent.  The Judge referred to “the explanation you gave both to the Police and the Probation Officer that you were

not operating a tinnie house as such, but you knew people who like yourself smoke cannabis and you made some of your cannabis available to them”.   His Honour concluded that the appropriate starting point was 12 months’ imprisonment. Six months were added to that starting point to reflect Ms Rihari’s previous convictions for drug offending, including a conviction for cultivation in 2004.  Nine months were then deducted for personal mitigating factors.