R v Elliot HC Gisborne CRI 2010-416-0065

[2011] NZHC 1642

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2010-416-0065

THE QUEEN

v

RODNEY GEORGE ELLIOT

Hearing:         28 October 2011

Counsel:         R J Collins for Crown

J Krebs for Prisoner

Judgment:      28 October 2011

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Gisborne
Counsel:

J Krebs, Napier

R V ELLIOT HC GIS CRI 2010-416-0065 28 October 2011

[1]      Mr Elliot you appear for sentence today in response to your pleas of guilty to charges of cultivating the Class C controlled drug cannabis and selling that drug. The sentence I imposed on you on 27 August 2010 was set aside by the Court of Appeal, as part of the relief granted on your successful appeal against the forfeiture order I made. Therefore, it falls to me to sentence afresh today.

[2]      When I sentenced you last year, I indicated that the starting point for sentence of 3 years 6 months imprisonment would have been appropriate.   I deducted from that a credit of approximately 28% to reflect the early guilty pleas, tempered by the need for a disputed fact hearing that was largely resolved in favour of the Crown. That would have left an end sentence of 2 years 6 months imprisonment.

[3]      As it happened, the allowance made for mitigating factors relating to your plea  of  guilty  is  somewhat  higher  than  it  would  be  now.    Subsequent  to  the sentencing, our Supreme Court[1]  gave a decision saying that the maximum discount ordinarily would be 25%.  I had been working on a credit of 33%.  However, in the circumstances, I am not going to depart from what I said earlier and I will apply that higher credit to you.

[1] Hessell v R [2011] NZSC 607 (SC).

[4]      I am also going to allow credit in respect of a matter that had not previously been before the Court.  Very recently, your wife to be suffered a stroke and it is clear that you will need to spend time with her to care for her and to ensure she has appropriate transportation to attend to medical appointments.  I allow a further credit for that subsequent factor of six months which would allow an end sentence of 2 years  imprisonment,  bringing  you  within  the  jurisdiction  for  ordering  home detention.

[5]      Ordinarily I would have sentenced you to prison, given the forfeiture order I have made and the allowance of 40% of the net proceeds in your favour.  However, when I take account of the need to care for your wife to be, I consider that such a sentence would be unduly harsh.

[6]      I propose to impose a sentence of 9 months home detention to reflect the offending.   A suitable property exists for the sentence of home detention to be served.  It is at 677 Pukehina Parade, Pukehina.

[7]      I defer commencement of that sentence for a period of two months.[2]   I do that so you have the ability freely to move and to transport Ms Christie to whatever medical attendances she needs given her inability to drive during that period.  That means that your sentence of home detention will commence on 28 December 2011 and will go for a period of 9 months from that day.

[2] Sentencing Act 2002, s 80W.

[8]      Between now and 28 December 2011, you are remanded on bail to report to the police station at Te Puke between the hours of 8am and 5pm each Saturday, with the first report being on Saturday 5 November 2011.

[9]      On 28 December 2011, at 10am, you shall meet a probation officer at the property. That will be to arrange electronic monitoring.

[10]     You shall be on home detention on standard conditions.   I also include a special condition requiring you to undertake such alcohol and drug counselling and to attend such programmes as a probation officer may require.  You must complete that counselling or programme to the satisfaction of the probation officer.  You are not to consume illicit drugs during the term of your sentence.

[11]     Mr Elliot, you should realise that you are fortunate not to be going to prison. I think from what I heard from you last time that there is a good chance you can turn your life around.  I hope with your impending marriage that you are able to do so.  If you ever appear before the Courts again on charges of this nature you can expect to go to jail for some time.

[12]     Stand down.

P R Heath J