R v Elliot (Sentencing) HC Gisborne CRI 2009-016-3799

[2010] NZHC 1482

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2009-016-3799

THE QUEEN

v

RODNEY GEORGE ELLIOT

Hearing:         27 August 2010

Counsel:         R J Collins for Crown

A J S Snell for R G Elliot

Judgment:      27 August 2010

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 609, Napier
Counsel:

A J S Snell, PO Box 101, Hastings

R V ELLIOT HC GIS CRI 2009-016-3799 [27 August 2010]

[1]      Mr Elliot, you appear today for sentence, having entered pleas of guilty to charges of cultivating the Class C controlled drug cannabis and selling that drug. The District Court convicted  you of those offences, but declined jurisdiction to sentence.  You were remanded to this Court for sentence.

[2]      The offending was detected during Operation Rattle.  Other offenders have been sentenced arising out of that operation.[1]   However, no real help can be given to me by the sentences imposed.  Your situation is markedly different as a result of the instrument forfeiture order I am making in respect of your property at Moana Road, near Gisborne.[2]

[1] R v Clare & Ors HC Gisborne CRI 2009-016-3709, 4 March 2010 (Allan J).

[2] Sentencing Act 2002, s 10B.

[3]      I set out fully, in the judgment I gave on 19 August 2010,[3] factual findings in relation to your degree of culpability.   I do not propose to go through those again now.

[3] R v Elliot HC Gisborne CRI 2009-016-3799, 19 August 2010 at paras [25]-[35].

[4]      What I am required to do is to sentence you, based on the principles and purposes of the Sentencing Act, but also having regard to the amount forfeited to the Crown through the order I have made.  Although the amount to be forfeited might be reduced from that originally contemplated if Mr Snell’s submissions on your behalf are later accepted in relation to an exclusion for payment of legal fees, I do not see that  as  changing,  in  any meaningful  way,  the  way in  which  I should  approach sentencing today.

[5]      In a recent case in Auckland,[4] a Judge of this Court after making a forfeiture order in respect of a sum of about $465,000, convicted and discharged that offender. I consider a similar approach should be taken in your case.

[4] R v Brazendale HC Auckland CRI 2009-092-17133, 20 August 2010 (Cooper J); judgment and sentencing notes.

[6]      I should, however, first indicate in case there is any appeal, what sentence would otherwise have been passed.

[7]      If I were sentencing without reference to a forfeiture order, I would have taken a starting point of three and a half years imprisonment from which I would have deducted 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.[5]    That would have left an end sentence of two years and six months imprisonment.

[5] Hessell v R [2010] 2 NZLR 298 (CA) at paras [15] and [46].

[8]      However, I am satisfied, having regard to the forfeiture of the Moana Road property, that no further sentence is required of a punitive nature.  Denunciation and deterrence are adequately marked by the extent of the forfeiture order to be made.

[9]      The only sentence which I intend to pass today is for rehabilitation purposes and that will relate to a term of supervision to encourage you to continue your present steps to rid yourself from cannabis addiction.

[10]     On the charges on which you have been convicted, I sentence you to a term of supervision for a period of one year.  That will be on standard terms together with a special condition that you undergo such drug abuse programmes as a probation officer may recommend.   You shall report to a probation officer, no later than midday on 30 August 2010, to commence that sentence.

[11]     Stand down.

P R Heath J