R v Durbin HC Christchurch CRI-2011-061-842

[2011] NZHC 1897

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-061-842

THE QUEEN

v

BENJAMIN JOHN DURBIN

Hearing:         4 November 2011 (Heard at Ashburton)

Appearances: B M Stanaway for Crown

P D Watts for Accused

Judgment:      4 November 2011

SENTENCE OF WHATA J

Solicitors:

Raymond Donnelly & Co., Crown Solicitors, PO Box 533, Christchurch 8140

Copy to:

P D Watts, 12 Doyle Road, RD 2, Rangiora.

R V DURBIN HC CHCH CRI-2011-061-842 4 November 2011

Introduction

[1]      Benjamin Durbin, you have pleaded guilty to selling cannabis, the unlawful possession of a firearm, and the possession of a pipe for the purposes of smoking methamphetamine.

Summary of offences

[2]      More specifically Mr Durbin you have pleaded guilty to:

(a)       Selling or dealing with cannabis.  The maximum sentence for this is eight years’ imprisonment.

(b)      Unlawful possession of a firearm.  The maximum sentence for this is

four years’ imprisonment or a fine of $5,000 or both;

(c)       Possession of a pipe.  The maximum sentence for this is one year’s

imprisonment or a $500 fine, or both;

[3]      You have also recently been convicted of driving while your licence was suspended and for giving false information as to your identity.  Those convictions were not before me, but I accept that they are relevant in terms of the totality principle and I will come back to that later.

Summary of facts

[4]      I now set out the facts of your offending.

[5]      Between 4 April 2011 and 9 June 2011, the police obtained text message data sent  from  your  cell  phone.    The  text  messages  show  that  you  were  supplying cannabis.  For example, you sent a message: “hey do u no any1 afta skiky 50’s and

250’s of the otha.” There are several such text messages.

[6]      On 1 July 2011, police then executed a search warrant at your house.  They located the following objects:

(a)       A loaded .22 rifle with ammunition (I note that you do not currently hold a firearms licence).

(b)      A glass pipe that had been used to consume methamphetamine.

(c)       An   empty  plastic   snap   lock   bag,   which   had   previously  held methamphetamine.

[7]      Your explanation for the above included the following comments:

(a)       You obtained the rifle from a friend, as he was having trouble with a person who was coming to see him for money that he owed.

(b)In addition, you had not been supplying any drugs, but you did not comment on the text messages.

(c)       Finally, you had smoked methamphetamine over the last two days and that the small bag contained methamphetamine.

Personal Circumstances

[8]      I will now address your personal circumstances.  Unfortunately, Mr Durbin, you have committed many further offences, such as driving related offences, including the giving of false details and drink driving, theft, burglary and breach type offences.

Pre-sentence report

[9]      The pre-sentence report notes that you are a 30 year old man, who was unemployed and living in rented accommodation until your arrest.  The report writer

considers that your unemployment and the ensuing financial pressure contributed to this offending.

[10]     It is also noted that you consider yourself to be withdrawn, with few friends. Your aunt is your only support person.  You think that people take advantage of your gullibility, and you find it difficult to trust people.   Post-release, you plan to find work as a milker, which you are qualified to do.

[11]     The report states that you agree with the summary of facts though you note the following:

(a)       Some of the drug sales did not go through.

(b)The rifle was for protection against drug associates and for killing possums.

(c)       At the time of the driving offences, you believed that you were no longer suspended.

[12]     You accept that it was wrong to try to earn cash from selling drugs; but you point to your addiction and the need to pay drug debts as driving the offending, and you stated that you justified the offending by thinking you were smart enough to avoid detection.

[13]     The report observes that it is likely that you will reoffend.

[14]     Given your offending history, ambivalent remorse and motivation to address your  behaviour,  and  the risk  of reoffending,  the  report  suggests  that  it  is more important to consider incapacitation, incarceration, deterrence and denunciation than rehabilitation.  As your previous terms of imprisonment have been short, and as this offending involved the presence of a firearm, a long sentence of imprisonment is recommended.

[15]     If a short sentence is imposed, it is recommended that the Court impose a release  condition  of  undertaking  drug  assessment  with  a  community  drug  and alcohol agency and any follow up treatment or counselling that is identified.

Family circumstances

[16]     I also have a letter from your aunt, Ms Dossetter.

[17]     She states that you have not offended for two years and that she believed that you had been rehabilitated before your most recent offending.   She identifies the trigger as being the payment of drug debts incurred in previous years, which caused a shortfall in your wood chopping business, which led you to a decision to earn money more quickly.   She has been told by drug counsellors that you have the decision making processes of a 16 year old;  and that people in your position often regress and “have small bumps in their road to becoming normal citizens.”

[18]     She  notes  that  you  had  the  courage  and  honesty  to  tell  her  about  the offending; and she believes that you have “finally grown up and realised the error of your ways.”

[19]     She also refers to your courage and compassion in caring for your mother when she was in the late stages of pancreatic cancer, and the work ethic you showed yourself to be capable of in 2010.

Approach

[20]     I will now describe my approach to your sentencing.

[21]     I will firstly summarise the purposes and principles that govern my approach. I will then briefly review the submissions of counsel.  I will set a starting point for sentencing in a manner consistent with approaches taken in other cases.  I will do so for all offending, so that the full context of your offending is considered from the outset.  For this purpose, I will examine all aggravating and mitigating factors of the offending.   I will then take into account any aggravating and mitigating factors

personal  to  you.    I  will  then  apply  available  discounts  and  then  set  the  final sentences.

Purposes and Principles

[22]     Sections 7, 8 and 9 of the Sentencing Act 2002 are guiding touchstones for the purpose of fixing your sentence.   In your case, I consider that the purposes of accountability, promoting a sense of responsibility, and denouncing and deterring your conduct  are very relevant.[1]     But  so are the purposes  of rehabilitation and reintegration.  There is also a need in this case to maintain consistency with other sentences while at the same time imposing the least restrictive outcome appropriate to the circumstances.[2]   I proceed on that basis.

Crown submissions

[1] Sentencing Act 2002, s 7(1) (a), (b), (e), and (f), respectively.

[2] Sentencing Act 2002, s 7(1)(h) and s 8(e) and (g), respectively.

[23]     The Crown identifies the following aggravating factors:

(a)       The level of premeditation involved in selling cannabis over a period of months.

(b)      The element of commercial gain.

(c)       The possession of a loaded firearm in an easily accessible place,[3]

which was intended for protection from a creditor.

[3] R v Faifua CA287/05, 27 March 2006.

[24]     The Crown says this offending falls within category two of R v Terewi[4] (small scale commercial cultivation of cannabis) with a starting point of between two and four years.  The Crown also refers to R v Taui,[5] in which the Court of Appeal upheld a two year starting point for one count of possession of cannabis for supply and one

count of possession of methamphetamine.

[4] R v Terewi [1999] 3 NZLR 62.

[5] R v Taui CA494/05, 14 June 2006.

[25]     Two major personal aggravating features highlighted by the Crown are that you were on bail during the period covered by the cannabis charge,[6]  and that you have 46 previous convictions, including many drug-related offences.

[6] For this offending, Mr Durbin was sentenced to 200 hours of community work and given a final warning for driving while disqualified.

[26]     In terms of your guilty plea, the Crown submits that, given the strength of their case, a 20 per cent reduction would be sufficient.

[27]     In terms of your sentence, the Crown places this offending within the mid- range of category two, but does not suggest a specific starting point.  It submits that the presence of a firearm justifies a discrete increase in the starting point, with a further increase to reflect your previous convictions, and a guilty plea discount of approximately 20 per cent.   Given the commercial nature of the offending,  the Crown submits that imprisonment is appropriate.

[28]     An order is also sought for the destruction of the firearm and glass pipe.

Defence submissions

[29]     Your counsel says that any application of the Terewi categories must consider the amount of cannabis involved.  This was a small-scale commercial operation, at the  bottom  of  Terewi  band  two.    It  is  said  on  your  behalf  that  there  were  no indications that you were a large-scale drug dealer.  The only evidence of you selling cannabis was the text messages, which indicated sales of small amounts (less than 10 ounces, which had a street value of $3,500), some of which did not occur.

[30]     Your counsel also says that the charge of possession of a pipe is appropriately dealt with by way of a concurrent sentence, and the firearm charge may justify a discreet uplift of a cumulative sentence of one month.[7]

[7] R v MacDonald HC Dunedin CRI-2010-002-715, 10 February 2011.

[31]     A starting  point  of  two  years’ imprisonment,  uplifted  by  six  months  to recognise the other two other charges, is recommended.

[32]     Your counsel says that further disclosure was needed before you were advised as to the appropriate plea and that therefore you entered a guilty plea at the earliest reasonable opportunity and should receive the full 25 per cent discount.

My Assessment

[33]     The cannabis offending is the lead or main charge.   In my view, having reviewed the starting points in various cases, I consider a starting point of two years, or the bottom of Terewi band two is appropriate.   The evidence indicates that the offending was on the lower end of the scale and was, on its face, relatively moderate in terms of financial return.  It appears it was not entirely successful.

[34]     As to the other offending:

(a)      Possession of a firearm:  a starting point of four months imprisonment is consistent with the range of starting points applied in this context;[8]

[8] Police v Wu HC Palmerston North CRI-2007-054-5821, 24 September 2008; R v Wade HC Whangarei CRI-2010-088-4946, 27 July 2011.

(b)Possession of a pipe:   there are various authorities ranging from a sentence of 40 hours’ community work,[9]  one month imprisonment,[10] or a conviction and discharge.[11]    In this context, for the purpose of a starting point (excluding aggravating factors to you personally) one month’s imprisonment is appropriate.

Cumulative or concurrent

[9] R v Foster HC Auckland CRI-2004-044-8658, 7 September 2005.

[10] R v Porter-Riley HC Auckland CRI-2010-092-14703, 12 April 2011, at [21]; R v Wilson HC Auckland CRI-2009-044-927, 28 October 2010, at [30].

[11] R v Paul HC Dunedin CRI-2010-002-267, 15 December 2010, at [6]; R v Blomfield HC Whangarei CRI-2009-088-1654, 12 March 2010, at [19]; R v Feasey HC Auckland CRI-2006-004-7230, 19 February 2007, at [26].

[35]     Mr Durbin, in some cases I have the power to impose a cumulative sentence. This power is governed by s 84 of the Sentencing Act 2002. The first criterion is that cumulative  sentences  cannot  be  imposed  for  offending  that  are  really  just  a

continuing act or series of acts.  I am prepared to proceed on the basis that the loaded

firearm is a separate act and therefore you qualify for cumulative sentence.   But when I assess your offending in the round, I do not consider that a cumulative sentence would be appropriate and the preferable course is to provide an uplift for these aggravating features, as I have done.

[36]     I  also  take  into  account  the  sentence  of  11  months  for  driving  while suspended.  This is quite distinct offending and does not though, in my view, warrant an uplift for totality in the present circumstances.

Aggravating factors of the offence, Sentencing Act 2002, s 9(1)

[37]     I consider  that  I should  provide  uplift  on  the starting  point  on  the  lead offending to reflect the totality of the offending.[12]

[12] R v Wade, supra at [37]-[38].

[38]     Accordingly, this starting point for the lead offending must be uplifted by four months to reflect the presence of a loaded firearm.

Mitigating factors of the offence, Sentencing Act 2002, s 9(2)

[39]     There are no mitigating factors in this offending that I can see.

Aggravating features of the offender, Sentencing Act 2002, s 9(1)

[40]     Mr  Durbin,  as  I  have  said,  you  have  a  lengthy  history  of  drug-related offending, as well as other criminal offending, which must attract uplift in your sentence.  Your drug offending appears to be escalating over time.  You were also on bail at the time of the offending.  However, all of this must be weighed against your previous efforts towards rehabilitation.  I agree with the defence submission that a lengthy sentence would undermine your rehabilitation.

[41]     I therefore impose an uplift of six months on the lead offending to reflect your previous criminal history and the fact that you were on bail.

Mitigating features of the offender, Sentencing Act 2002, s 9(2)

[42]     The  pre-sentencing  report  is  equivocal  about  your  level  of  remorse. However, your previous efforts towards rehabilitation count in your favour.   I am also conscious that, in addition to your guilty plea, you have been relatively open and co-operative about your offending.   For my part, this suggests that you are prepared to be held accountable for what you have done.  While that is not remorse, it furthers a purpose of the Sentencing Act that should be taken into account.  This cannot  be  a  significant  discount,  but  I  consider  it  is  appropriate  to  provide  a reduction of two months to reflect your openness and your proven willingness to make change.   While in this latter regard you plainly have not been entirely successful, some recognition should be made for your efforts and I certainly hope that you do take the opportunity to rehabilitate yourself.

Guilty Plea

[43]     I consider your guilty pleas were made at the first available opportunity.   I

will grant a full 25 per cent discount on the sentences.

Final Sentence

[44]     Mr Durbin, on the charge of selling cannabis I sentence you to 24 months’

imprisonment with the following release conditions:

(a)      You are to undertake assessment to assess drug abuse and any follow- up as recommended by and to the satisfaction of the probation officer and treatment provider.  The treatment provider is to be determined by the probation officer.

(b)You are to undertake treatment and/or counselling to address your offending needs and any follow-up as recommended by and to the satisfaction of the probation officer.  The treatment provider is to be determined by the probation officer.

[45]     On  the  charge  of  possession  of  a  pipe  I  sentence  you  to  23  days’ imprisonment, and on the charge of unlawful possession of a firearm I sentence you to three months’ imprisonment.   I also order that the firearm and glass pipe be destroyed.

[46]     You are to undertake the release conditions within six months of release.[13]

[13] By this I meant at the end of sentence.

[47]     All sentences are to be served concurrently. [48]           Accordingly, please stand down Mr Durbin.

Whata J