R v Eveleigh HC Auckland CRI 2009-044-6390
[2010] NZHC 546
•23 April 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
| CRI-2009 | -044 | -006390 |
| CRI-2009 | -044 | -001023 |
| CRI-2009 | -044 | -006826 |
THE QUEEN
v
SCOTT IAN EVELEIGH
Hearing: 23 April 2010
Counsel: L Farmer for the Crown
G Anderson for the prisoner
Judgment: 23 April 2010
SENTENCING REMARKS OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140 G Anderson, PO Box 31 716, Milford, North Shore City 0741
R V SCOTT IAN EVELEIGH HC AK CRI-2009-044-006390 23 April 2010
Introduction
[ 1 ] Scott Ian Eveleigh, you appear today for sentence having pleaded guilty to,
and been convicted, of the offences set out in the schedule attached to the sentencing notes. These offences comprise three indictable charges, injuring with intent, threatening to kill and possession of cannabis for supply. The remaining charges were laid on a summary basis.
On the charge of possession of cannabis for supply, the District Court (at the request of your counsel) declined jurisdiction and there is now no dispute that you may be sentenced on the basis that the maximum term of imprisonment is eight years.
For the purposes of sentencing you today, I have been assisted by the helpful written submissions from the Crown and from your own counsel. I have also read the pre-sentence report and listened carefully to the oral submissions made in Court today. I have noted the fact that you wrote to the victim of the violence offending and I have also been shown the photographs of the dreadful injuries which you inflicted on the victim. For reasons that the victim cannot now be located, I do not have a victim impact statement.
Factual background
The charges fall into two separate incidents. On 5 June 2009, Police executed a search warrant on your home at 15 Glencourt Place, Glenfield. They found in various places throughout the house, including a safe a total of 137 grams of cannabis, 0.7 grams of methamphetamine, 0.5 grams of ketamine (I appreciate that charge has been dropped but it is relevant to what was found at the scene), four tabs of LSD, a grinder that had been used to grind cannabis, two handheld digital scales, two pipes used for smoking methamphetamine, and other items including tinfoil and numerous snaplock bags. There was also a tick book which was being used to keep track of sales and purchases of cannabis. In addition, there was $500 in cash.
You admitted to the Police that all items located belonged to you and that you had supplied cannabis to friends and associates.
The second incident occurred on 2 August 2009. On that evening, you drove the complainant to a party. At one point the complainant met a female with whom he exchanged personal details. You witnessed this and pulled the complainant to one side, made derogatory remarks about the female and told the complainant to stay away from her.
Later in the evening you and the complainant were leaving the party. An argument developed between the pair of you. The exact nature of the argument is not relevant for present purposes, save to say that you became extremely aggressive.
There is some dispute between you and the complainant over exactly what happened during the altercation. The complainant says that you punched and kicked him a number of times, particularly about the face and head, including while he lay on the ground trying to defend himself. He complained of serious pain and swelling in his ankle after you stood on the ankle and pain and blurred vision following kicks to his face and head. It is clear that the complainant did not retaliate. You have denied kicking him, but admitted punching him about ten times. Both counsel accept that the differences are not relevant to the sentencing process. However, I have had the benefit of seeing the photograph booklet as I have described, and it is clear that the injuries that were sustained were to the head and the face, and were serious.
Later in your car, you said that you were going to take the complainant to the Headhunters and he would be killed and put in a hole. I note that you have denied being associated with that gang, but you admitted threatening to kill the complainant.
Pre-sentence report and recommendations
[ 10] You are 22 years of age. You were 21 at the time of these offences. You live in a stable relationship with your partner and daughter, who is now four years old. You say your partner and daughter both mean a lot to you.
[ 11 ] You are the sixth of nine children and you grew up in Huntly. You describe your home life as happy but say you were disciplined physically by your stepfather. You say you never really knew your biological father. The relationship between you and your stepfather deteriorated and you left home at a relatively young age.
[ 12] After leaving home, you stayed with your half-brother, who is described in the report as a recidivist offender, well known to the justice system. You say you were influenced by him and his associates who you say were used to using violence to get their own way.
[13] Nevertheless, you were able to form your own relationship which seems to be stable and, to your credit, you developed a trade becoming a self-employed painter. I understand that you have been contracting for about three years and have almost completed your trade certificate.
[ 14] The factors identified in the report as influencing your offending include your frequent drug use and a tendency to resort to violence, probably learned behaviour from your earlier family life and the contact you have had with these undesirables with whom you were living.
[15] During the oral submissions, I indicated to your counsel that I would include in my sentencing remarks a reference to the need for you to engage in rehabilitation courses for anger management and also to deal with your obvious drug addiction. I commend you to take up any courses that may be offered to you while you are in prison.
Prior offending
[ 16] Your criminal history discloses the following previous offenses: possession of an offensive weapon; threatening behaviour; wilful damage; assault with an instrument (two charges); cultivating cannabis and threatening to kill. That is not an impressive record.
Crown submissions
[ 17] Regarding the incident of violence on 2 August 2009, the Crown submitted that I should consider band 2 of R v Harris [2008] NZCA 528. The Crown submitted that the aggravating factors included that your attack on the complainant was prolonged and involved repeated punching to the head, and that the complainant did indeed suffer significant injuries as a result. The Crown submitted that a starting point for sentencing would be somewhere between two and a half and three years.
[ 18] Regarding the drug offending on 5 June 2009, the Crown submitted that aggravating factors included the broad extent of the offending, namely, the possession of 137 grams of cannabis, and clear indications of commercial activity as is apparent from the facts, indicating a degree of premeditation. With regard to the commercial activity involved, even if on a limited scale, the Crown suggests that the Court must consider the general harm caused by you to the community through this offending, which sadly we see in the Courts here far too often. The Crown submitted, based on the application of the lower end of category 2 in R v Terewi [ 1999] 3 NZLR 62, that a starting point of between two and two and a half years’ imprisonment would be appropriate.
[ 19] Because there are two distinct groups of offending that are not related and not part of a connected series of events, the Crown submitted that cumulative sentences were appropriate. Your counsel did not take argument with that, quite properly.
[20] The Crown invited me to increase the sentences because of your previous convictions, but I have already indicated during the oral submissions that I do not propose to do that.
[21 ] In terms of mitigating factors, the Crown acknowledged that you are entitled to reasonably generous discounts for the early guilty pleas. That is to your credit, as is the remorse that you have shown.
Submissions from your counsel
Your counsel acknowledges the violent offending was serious and involved a prolonged attack to the head. Further, it occurred while you were under intensive supervision. Your counsel properly acknowledged your previous offending. A starting point of 24 months, with an uplift to 26.5 months for aggravating factors, was suggested. Very properly your counsel drew attention to the mitigating factors of your relatively young age, the guilty pleas and the fact that you have expressed remorse and it seems may still be friendly with the victim.
With regard to the drug offending, your counsel indicated that it is clear that you are a user and that the drugs found in your possession on 5 June 2009 were for your own use, as well as for sale to your associates. He submitted that it was not a sophisticated operation. I accept that. The problem for me is that there were clear indications of commerciality and once you are into possession for sale it is more serious.
Like the Crown, your counsel submitted that your drug offending fell at the lower end of category 2 in Terewi and drew the Court’s attention to the fact that it was with his encouragement that the District Court Judge declined jurisdiction and sent the file up to this Court so that all the sentencing could occur together. It was obviously a sensible course to take, because that way the Judge sentencing you can take into account the totality of all the offences.
Your counsel submitted that you entered your guilty pleas at the first available opportunity. This is correct in one of the sets of offending. It was not quite that in respect of the other, but I propose to make a generous allowance nonetheless.
Purposes and principles of sentencing
Under the Sentencing Act 2002, I am required to keep in mind a number of purposes and principles when deciding on the appropriate sentence. In your case, I have specific regard to the purposes in s 7. That is: the need to hold you accountable
for the harm done to the community by your offending; the need to promote in you a sense of responsibility for, and an acknowledgement of that harm; the need to denounce your conduct and deter you and others like you from committing the same or similar offences. Then I have to consider the need to protect the community. But I am also required to take into account your rehabilitation and reintegration. I have already mentioned an aspect of that with regard to your need for rehabilitation.
In terms of the principles of sentencing in s 8, I am required to take into account the gravity of your offending, the seriousness of this type of offending and the need to consider the general desirability of consistency in sentencing, and the need to impose the least restrictive outcome that is appropriate in the circumstances. Finally, I am required to take into account your particular circumstances. I have noted that you do have family support here today.
Features of the offending
The Court of Appeal in R v Taueki [2005] 3 NZLR 372 sets out the orthodox approach to sentencing. Accordingly, I will first set a starting point based on the features of the offending, and then adjust the starting point according to any mitigating and aggravating features relating to you, as the offender.
With regard to the violent offending, I have already identified the aggravating features of the attack on the head and the length of the assault.
Regarding the drug offending, premeditation is in a sense inherent in that type of offending, but I must take into account the commercial nature of the supply of cannabis and the harm to the community resulting from your offending.
In terms of you as the offender, you have been previously convicted for the offences that I outlined earlier, but I do not propose to increase the starting point for that offending on this occasion. You should regard yourself as lucky that I am being generous in that regard.
As to the mitigating factors, I have already referred to the remorse expressed in the letter to the victim, I have acknowledged your guilty pleas and also note the pre-sentence report acknowledges the efforts you have made to turn your life around, your motivation to change based on your concern for your partner and your daughter and the fact that you have completed the Turning Point anger management programme.
Approach to sentencing for injuring with intent
The guideline case is R v Harris [2008] NZCA 528 and there is no doubt that this case falls within band 2 where, when the injuries are moderate, a sentence of up to two years can be justified. Beyond the extent of the injuries, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved. Such features are identified in Taueki and refer to various factors including the nature of the violence and whether there was extreme violence, whether it was gratuitous, unprovoked and whether it was an attack to the head.
Your counsel and the Crown have referred me to a number of cases relevant to injuring with intent to injure and threatening to kill including: R v Highley CA164/06, 13 September 2006; R v Chiyabi [2008] NZCA 10; R v Puke [2009] NZCA 582; R v Chan HC Auckland CRI-2004-004-21038, 30 May 2006; Waru v Police HC Auckland CRI-2006-404-393, 6 December 2006; R v McMillan CA317/01, 31 October 2001; R v Chamberlain CA423/98, 15 December 1998; R v Heke CA96/06, 6 July 2006 and R v Heti [ 1992] 8 CRNZ 554.
Approach to sentencing for cannabis offences
Terewi provides the guidelines for the approach to sentencing for cultivation of cannabis. But these guidelines have been extended to apply in respect of possession for supply of cannabis: see R v Keefe CA275/02, 28 November 2002.
Category 2 deals with small scale cultivation of cannabis plant for a commercial purpose, that is with the object of deriving profit. A starting point of two to four years’ imprisonment is generally regarded as appropriate.
The Crown and your counsel have helpfully referred me to a number of cases including: R v Sadaraka HC Auckland CRI-2008-092-16662, 5 June 2009; R v Kerekere HC Gisborne CRI-2009-016-1947, 30 July 2009; R v Smith [1980] 1 NZLR 412; R v Rameka CA240/96, 25 July 1996; R v Howell HC Hamilton CRI2009-019-737, 14 July 2009 and R v Tautari HC Whangarei CRI-2008-088- 4129/4130, 16 July 2009.
Discussion
I deal first with the violent offending that took place on 2 August 2009. I am satisfied that the attack in Harris was more sustained and more prolonged and the injuries more extensive than in this case. But I do consider that the offending falls at the upper end of band 2. I then take into account the aggravating features identified. Taking all these factors into account, the starting point that I fix for this offending is 30 months’ imprisonment.
With respect to the mitigating factors, you pleaded guilty at not the first opportunity but I propose to fix a discount of 25 percent. That would bring the sentence back, for those offences, to 22 months’ imprisonment and note that I am not giving an uplift for your previous offending.
Turning then to the drug offending, category 2 of Terewi suggests a starting point of two to two and a half years’ imprisonment. I have concluded that your offending should attract a starting point of 24 months for these offences, but I will apply a discount of 33 percent in acknowledgement of your early guilty plea. That would mean that a sentence of 16 months’ imprisonment would be appropriate.
[41 ] I accept the Crown’s submissions that there needs to be cumulative
sentences. If you add the two together that totals 38 months’ imprisonment.
However, I am required under s 85 of the Sentencing Act to consider the totality of
the offending. Whilst the individual sentences must reflect the seriousness of each offence, the cumulative sentence must not result in a total period of imprisonment out of proportion to the gravity of the overall offending.
Taking this into account, and taking into account your relative young age and the steps that you have taken to improve yourself already, which I hope you will continue, I will reduce that by a further four months. That will result in a final sentence of 34 months’ imprisonment.
I have to allocate those across the individual counts and I propose to do that. On the charge of injuring with intent, you are sentenced to 18 months’ imprisonment. On the charge of possession of cannabis for supply, you are sentenced to 16 months’ imprisonment, and that is to be cumulative on the injuring with intent. On the charge of threatening to kill, you are sentenced to one year imprisonment but that will be concurrent. On the charge of possession of methamphetamine, possession of LSD, possession of utensils, you are sentenced to three months’ imprisonment on each charge, but they will be concurrent.
Therefore, the total sentence that you will serve is 34 months’ imprisonment. I hope that you use the time in prison to take further steps to improve yourself.
I make an order for destruction of all the cannabis and associated drug paraphernalia pursuant to s 32 of the Misuse of Drugs Act 1975.
You may stand down.
Stevens J
Schedule
| Charge | Date | Section | Maximum penalty |
| Injuring with intent | guilty plea 16 February 2010 | s 189(2) Crimes Act 1961 | Five years’ imprisonment |
| Threatening to kill | guilty plea 16 February 2010 | s 306(1) Crimes Act 1961 | Seven years’ imprisonment |
| Possession for supply (Cannabis) | guilty plea 30 July 2009 | s 6(1)(f) Misuse of Drugs Act 1975 | Eight years’ imprisonment |
| Possession of methamphetamine | guilty plea 30 July 2009 | s 7(1)(a) Misuse of Drugs Act 1975 | Six months’ imprisonment and/or $1,000 fine |
| Possession of LSD | guilty plea 30 July 2009 | s 7(1)(a) Misuse of Drugs Act 1975 | Six months’ imprisonment and/or $1,000 fine |
| Possession of utensils (methamphetamine) | guilty plea 30 July 2009 | s 13(1)(a) Misuse of Drugs Act 1975 | One year imprisonment and/or $500 fine |
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