R v Finlayson
[2017] NZHC 1198
•2 June 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2015-088-3515 [2017] NZHC 1198
THE QUEEN
v
DILLON FINLAYSON
Hearing: 2 June 2017 Appearances:
N J Dore for Crown
L Postlewaight for DefendantJudgment:
2 June 2017
SENTENCING REMARKS OF LANG J
R v FINLAYSON [2017] NZHC 1198 [2 June 2017]
[1] Mr Finalyson, you pleaded guilty to 24 charges of supplying methamphetamine and supplying cannabis.1 By far the greatest number of the charges related to supplying methamphetamine. The Crown has offered no evidence on six remaining charges. Those are charges 6, 13, 16, 17, 18 and 29 in the current Crown charge notice. You are now discharged on those charges under s 147 of the Crimes Act 1961.
[2] The maximum sentence in respect of the methamphetamine-related charges is life imprisonment. The maximum sentence in relation to the cannabis charges is seven years imprisonment.
[3] You entered your guilty pleas after I conducted a sentence indication hearing on 12 April 2017.2 In my sentence indication remarks, I set out the facts underpinning your offending. I do not propose to repeat those here. My sentence indication remarks will be annexed to and form part of these sentencing remarks. The short point is that the police operation in which your offending was detected revealed that you were a busy retailer of both methamphetamine and cannabis. You sold cannabis in half-ounce and ounce lots. You tended to sell methamphetamine in quantities of grams and half-grams.
[4] I took a starting point of four years four months imprisonment to reflect your culpability on all the charges. I then applied a discount of one year two months to reflect guilty pleas in the event that they were to be entered shortly after the hearing. That would result in an end sentence of three years two months imprisonment before
taking into account other mitigating factors.3
1 Supplying methamphetamine (x 8), Offering to supply methamphetamine (x 13), Possessing methamphetamine for supply (x 3), Offering to sell cannabis (x 1), Selling cannabis (x 1), Offering to sell cannabis (x 2), Offering to supply methamphetamine (x 14), Supplying methamphetamine (x 9), Conspiring to supply methamphetamine (x 3), Possession methamphetamine for supply (x 3), Conspiring to supply methamphetamine (x 3), Possession of methamphetamine (x 1).
2 R v Finlayson [2017] NZHC 725.
3 At [9] of the sentence indication the end sentence indication is erroneously recorded as being three years three months.
Mitigating factors
[5] As I told you during the sentence indication hearing, the Court can only apply modest discounts to reflect personal mitigating factors other than guilty pleas. Your offending is serious drug offending and in the case of that type of offending personal circumstances count for much less than they ordinarily do.
[6] The greatest mitigating factor I detect is that you appear to have a degree of insight into your offending. You were clearly led into it out of financial necessity and you turned to dealing in drugs as a way of supporting your family. This means that you may remain at some risk in the future of becoming engaged again in similar activity. You need to understand that, from now on if you offend in this type of way, the courts will regard you as a recidivist drug dealer and the sentences will become very much longer.
[7] I acknowledge that you have used your time on remand in a worthwhile manner. Today your counsel has handed up a letter in which you express your remorse, together with a number of certificates for achievements whilst on remand. I commend those efforts. You will no doubt in the near future need to convince the Parole Board that you are worthy of release into the community and that you have learned your lesson.
[8] I propose to reduce the sentence by a further two months to reflect the factors to which I have referred. This means that the effective end sentence will be one of three years imprisonment.
Sentence
[9] On each of the methamphetamine-related charges, you are sentenced to three years imprisonment. Those sentences are to be served concurrently.
[10] On the cannabis charges, you are sentenced to nine months. Those sentences are also to be served concurrently with each other, and concurrently with the sentences imposed on the methamphetamine charges.
[11] Stand down.
Lang J
Solicitors:
Crown Solicitor, Whangarei
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2015-088-3515 [2017] NZHC 725
THE QUEEN
v
DILLON FINLAYSON
Hearing: 12 April 2017 Appearances:
N J Dore for Crown
L Postlewaight for DefendantJudgment:
12 April 2017
SENTENCE INDICATION OF LANG J
[1] Mr Finlayson faces 31 charges of dealing in methamphetamine and cannabis. He is due to stand trial in this Court in May 2017.
[2] Mr Finlayson has now sought a sentence indication in respect of 24 charges. A sentence indication is an indication of the sentence that would be imposed in the event that Mr Finlyason was to enter guilty pleas within a short period of the indication. If he does not accept the indication and is subsequently found guilty or pleads guilty, the Judge who sentences him will be bound to do so on the basis of the facts as he or she finds them to be. In the event the present indication will be of no effect or value. It is anticipated that in the event that Mr Finlayson accepts the
indication, the Crown will withdraw six charges.4
The facts
[3] The charges all result from a police operation in which the police intercepted a large number of electronic communications in the greater Northland area. Most of these were between members and associates of the Headhunters gang. Text messages to and from Mr Finlayson’s cellphone were intercepted as a result of the operation.
[4] These revealed that Mr Finlayson was a relatively busy dealer selling grams and half-grams of methamphetamine. He was also prepared to sell cannabis in half- ounce and ounce lots. In total, Mr Finlayson supplied, offered to supply or was in the possession for the purposes of supply of a total of 28 grams of methamphetamine. Of this amount, a total of five grams of methamphetamine was found when the police searched his premises at the termination of the operation on
17 December 2015. In total, he offered to supply 14 grams of cannabis.
4 Charges 6, 13, 16, 17, 18 and 29.
Starting point
[5] The starting point in relation to the methamphetamine charges is governed by the decision of the Court of Appeal in R v Fatu.5 This identified bands of offending for persons who deal in methamphetamine and suggested starting points in respect of each.
[6] Mr Finlayson’s offending would fall within band 2 identified in Fatu. This relates to supplying between five and 250 grams of methamphetamine. Offending within this band will attract a starting point of between three and nine years imprisonment. Given the amount involved, Mr Finlayson clearly falls towards the bottom end of this band. I consider his position to be roughly analogous to that of Mr Housham, another offender identified in the same police operation. Mr Housham pleaded guilty to charges reflecting the fact that he dealt in approximately 36 grams of methamphetamine. The Judge who sentenced him selected a starting point of four
years three months imprisonment.6
[7] I consider Mr Finlayson’s offending to be slightly below this level but not by much. For that reason I would take an overall starting point in relation to the methamphetamine charges of four years one month imprisonment. I would add an uplift of three months to reflect the charges of offering to supply cannabis. This would result in an end sentence of four years four months imprisonment before taking into account aggravating factors.
Aggravating factors
[8] To the best of my knowledge there are no aggravating factors such as offending whilst on bail or subject to release conditions. Mr Finlayson has some previous convictions, but these relate to driving offences and breach of community
work. They would not require the Court to impose any uplift.
5 R v Fatu [2006] 2 NZLR 72 (CA).
6 R v Housham [2016] NZHC 1652.
Mitigating factors
[9] So far as mitigating factors are concerned, the only one to be considered at this stage is that relating to guilty pleas. Another Judge has advised defendants in this particular proceeding that they can expect a discount of 25 per cent in the event that they enter guilty pleas within the near future. I will honour that commitment and apply a discount of 25 per cent, or one year two months. This would result in an end sentence of three years three months imprisonment.
[10] It is possible that a further modest discount may be made for other personal circumstances that are identified in the pre-sentence report. I say “modest” because, in this area of the law, the weight that can be given to personal factors is much less than is the case in other areas.
[11] In the event that Mr Finlayson wishes to accept the indication, his counsel should file a memorandum to that effect no later than Friday 21 April 2017. Mr Finlayson would then be arraigned at the criminal caller in this Court on 27 April
2017 at 9 am.
Lang J
Solicitors:
Crown Solicitor, Whangarei
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