R v Esterhuizen

[2013] NZHC 716

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-2338 [2013] NZHC 716

THE QUEEN

v

JOHANNES JOCHEMUS ESTERHUIZEN

Hearing:         10 April 2013

Counsel:         N L Elliott for the Crown

R B Crowley for the Accused

Sentence:       10 April 2013

SENTENCING REMARKS OF MALLON J

Introduction

[1]      You appear for sentence having pleaded guilty to one charge of offering to sell  a  Class  C  drug  namely Ecstasy.   You  pleaded  guilty  following  a  sentence indication of 17 months’ imprisonment, with the further indication that home detention  deserved  serious  consideration  but  that  would  be  a  matter  for  the sentencing judge.

Circumstances of the offending

[2]      You were apprehended as part of a police investigation into the sale and supply of illegal drugs in the New Plymouth area, and more broadly of the activities

of a newly formed Taranaki chapter of the Rebels gang and their associates.  The

R v ESTERHUIZEN HC NWP CRI 2011-043-2338 [10 April 2013]

investigation included electronic surveillance.  Through that surveillance, the police discovered that you were in contact with a member of the gang.  He planned to buy drugs from you and then on-sell them at a profit throughout the New Plymouth area.

[3]      During 25 June and 7 July 2011, text messages showed that you offered to supply this person with 1000 units of ecstasy at $22 per unit.  The person you were in communication with rejected that offer and instead asked for 2000 tablets.  You told him that the price for 2000 tablets had increased to $30 per unit.  That was not acceptable to him and the deal did not appear to proceed any further.  It is common ground between the parties according to the sentence indication of Allan J that no drugs or money exchanged hands.

[4]      Others who were involved in similar offending and who were caught as part of the same investigation have been sentenced to home detention for periods of between six to eight months (converted from imprisonment terms ranging between

13½ months to 21 months’ imprisonment).

Sentence indication

[5]      You were initially committed for trial on two charges.  The Crown advised that it would not proceed with one of the charges and would amend the other charge to allege class C offending if you pleaded guilty to that amended charge.   You subsequently sought a sentence indication in respect of that charge.

[6]      Allan J gave the sentence indication on 14 February 2013.   His Honour applied the guidelines in R v Terewi by analogy.   His Honour considered that the offending fell within the bottom of band two of Terewi, taking into account that the police found nothing to suggest that you had been actually dealing drugs and no material was placed before the Court to suggest that you could have sourced such a quantity.   His Honour adopted a starting point of two years’ imprisonment.   He reduced that starting point by 20 per cent to reflect your guilty plea.  He also reduced this by a further two months to reflect remorse and difficulties in your youth.

[7]      When Allan J gave his sentence indication, he did not have a pre-sentence report or a home detention appendix.  His formal sentence indication was 17 months’ imprisonment but with an indication that home detention could be appropriate.

[8]      I agree with Allan J’s starting point and the only question for me is whether I should take any different view of personal aggravating and mitigating factors in light of the information before me.

Personal aggravating and mitigating factors

[9]      The pre-sentence report has now been provided to the Court.   You are 25 years old and live in Whanganui.   You grew up in South Africa and your family emigrated to New Zealand when you were 13.  When you left school you started an electrical apprenticeship and worked as an apprentice for five years.   Because of your drug use, you stopped working before you completed your apprenticeship and you are currently unemployed.   You now wish and intend to complete your apprenticeship and hope to obtain permission from the probation officer to attend work if you are sentenced to home detention.

[10]     You have no relevant previous convictions.  You told the report writer that at the time of the offending you were in a “downward spiral” because you had broken up with your girlfriend and you were using large amounts of cannabis and methamphetamine.   You told the writer that you met your co-offenders over this period.  You said that the methamphetamine prevented you from thinking straight. You said that the idea of being able to source drugs in that quantity was “fanciful”. You expressed remorse.  You have taken positive steps to address your drug use by self-referring to Alcohol and other Drugs Services for a few months at the end of

2011. You say that you have been drug free for some months.

[11]     Having reviewed the pre-sentence report, I agree with Allan J’s assessment of the personal factors and see no reason to depart from his approach.  The pre-sentence report is a positive one and is consistent with the letter you submitted to the Court at the time of the sentence indication.   Subject to the issue of home detention that means an end sentence of 17 months’ imprisonment.

Home detention

[12]    The proposed home detention address has been assessed as suitable for electronic monitoring.  Your counsel submits that home detention is appropriate[1] and the Crown agrees.  I note that three offenders involved in similar offending and who were  caught  as  part  of  the  same  investigation  have  been  sentenced  to  home detention.

[1] In oral submissions counsel raised whether I would consider the sentence recommended in the pre-sentence report of community detention and supervision. My view remained that home detention was appropriate. The positive pre-sentence report would be reflected by imposing home detention for a period of seven months rather than eight months.

[13]     I agree that in light of the pre-sentence report (in particular your motivation to change, efforts to rehabilitate, and intention to return to work) and parity with your  co-offenders,  home  detention  is  appropriate.    The  sentence  will  be  seven months’ home detention which is at the low end of the available range because of your positive pre-sentence report.  The conditions will be that you are to travel to the home detention address stated in the pre-sentence report and to remain there until the probation officer and a representative of the monitoring company arrive; you are to reside at that address for the duration of the sentence;  you are to undertake an alcohol and drug assessment and to attend and complete any subsequent programme or counselling as directed by and to the satisfaction of the probation officer and the programme provider.  You are to abstain from the consumption and possession of illicit drugs for the duration of the sentence.

[14]     Thank you. You can stand down.

Mallon J

Solicitors:

Crown Solicitor’s Office, New Plymouth

Roger Crowley, Wanganui