R v Gorman HC Rotorua CRI-2011-063-534
[2011] NZHC 222
•17 March 2011
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2011-063-534
THE QUEEN
v
KEVIN WILLIAM GORMAN
Hearing: 17 March 2011
Appearances: S Simmers for the Crown
M Dorset for Mr Gorman
Judgment: 17 March 2011
SENTENCE OF WOODHOUSE J
Solicitors:
Mr S Simmers, Gordon Pilditch, Office of the Crown Solicitor, Rotorua
Ms M Dorset, Barrister, Rotorua
R V GORMAN HC ROT CRI-2011-063-534 17 March 2011
[1] Mr Gorman, you may remain seated while I explain the sentence I am going to impose and then you will need to stand.
Offences
[2] You pleaded guilty to two charges of selling cannabis to a person aged over
18 years, these offences occurring on 25 and 26 November 2010. You also pleaded guilty to one charge of possession of cannabis for supply on 26 November 2010. The maximum penalty for each of these offences is 8 years imprisonment. And that is something that you need to reflect on.
Facts
[3] On 25 November 2010 an undercover policeman was outside a house in Rotorua. He saw a woman go to the front door. There was a short exchange between the woman and you and she then left. The police officer who was observing this did not make any further comment about the exchange between you and the woman. The officer went to the door. You were carrying a plastic container with two small plastic bags containing cannabis – approximately 1 gram each. You asked the officer how many he wanted. He bought both bags for $20 each. He asked if it was good to come back and you said it was. Your mother was there at the time. And as the officer left another car pulled into the driveway.
[4] On 26 November, the following day, in the afternoon, the same officer returned to the property and again spoke to you and asked for cannabis. You said that you did not have any but a delivery was coming from, and I quote, “up the coast”. That evening there was another sale, this time by one of your co-accused, and he had possession of a number of bags of cannabis for sale. The police summary of facts does not indicate that you were in the house at the time.
[5] You were not living in this house. As I understand it, it is in fact the house where your mother was living with other people. She, and two others, were charged
with you, and they face additional charges. You told the probation officer that you made the sale that you were directly involved in only to help your mother who was busy. The fact is, however, that you were there the following day and you told the undercover policeman that further deliveries were coming.
Personal
[6] I come to your personal circumstances.
[7] You are aged 27. The pre-sentence report says that you are, and I quote, “the product of a dysfunctional upbringing”. You have a reasonably long list of convictions going back to the age of 16. And it makes bleak reading Mr Gorman.
[8] The probation officer says that in July 2007 you began a relationship with Maria Lemon and at the time of this offending you were living with her and her parents. The probation officer says that in spite of this further offending the indications are that this has been a positive development which provided you with a constructive and supportive environment. I do not doubt that they have been supporting, and supportive, but unfortunately your own actions make clear that you have let them down badly. Do you understand that – and you have acknowledged to me that you do.
[9] You have five previous convictions for offences against the Misuse of Drugs Act, although not of the most serious type and indicative of use rather than any commercial activity. You have a substantial number of convictions for a range of offences including convictions for dishonesty. They started in 2000, when, as I have said, you were aged 16. There have been sentences of imprisonment in 2002 for burglary, in 2003 for burglary and a range of driving offences, in 2005 for possession of methamphetamine and other offences, and in 2007 for dishonesty and other offences.
[10] The present offences were committed while you were on remand on bail for theft of a car, an offence you committed on 7 November 2010. The present offences also occurred when you were still serving sentences of intensive supervision of one
year, imposed in January 2010, for assaulting a female and for illegally discharging a firearm.
[11] On 29 November 2010 you were sentenced to 5 months home detention for the theft of the car, breach of a community work sentence and breach of conditions on the intensive supervision sentence.
Sentencing
[12] Mr Gorman, I come more specifically to the sentencing.
[13] A Court of Appeal case called Terewi,[1] says that the starting point for sentencing for small scale cannabis dealing should generally be between 2 and 4 years imprisonment. The Court said that where sales are infrequent and of very limited extent a lower starting point may be justified. The starting point relates to the nature of the offending before considering factors personal to the offender. So at the moment I am looking at the offences themselves in isolation and not having any regard to your personal circumstances, including your list of previous convictions.
[1] R v Terewi [1999] 3 NZLR 62 (CA).
[14] The Crown submits that the starting point should be in the region of 2 to 2 ½ years imprisonment. I am referring here to the written submissions. Mr Simmers, for the Crown, submitted that although you were only directly involved in one sale, and pleaded guilty effectively to being a party to another sale and possession on the following day, an inference can be drawn that you were involved to a greater extent. And Mr Simmers made reference to our cases: Harris,[2] Tautari,[3] Sanders[4] and
Christie.[5]
[2] R v Harris HC Whangarei, CRI-2008-088-004127, 19 February 2009, Andrews J.
[3] R v Roberts and Tautari HC Whangarei, CRI-2008-088-4129, 16 July 2009, Allan J.
[4] R v Sanders And Ors HC Whangarei, CRI-2009-088-000552, 18 February 2009, Andrews J.
[5] R v Christie HC Rotorua, CRI-2008-070-3855, 22 September 2008, Stevens J.
[15] Ms Dorset, on your behalf, has submitted that the starting point should be 2 years or less.
[16] I consider that the starting point for your sentence should be 15 months imprisonment. And I should note that I discussed the circumstances of the offending with Mr Simmers and he effectively acknowledged that there would be a basis for perhaps coming below the 2 year general level. The summary of facts to which you pleaded guilty indicates that there was a commercial operation being run from this house. The operation was small scale, but it was nevertheless an operation with regular sales and cannabis being got for further sales. However, it does appear that your three co-offenders, who include your mother – with the other co-offenders being relatively young I understand, were substantially more involved in this operation than you were. It was their operation and essentially I would infer at this point the operation of your mother. The police summary of facts records further offending through to late December 2010 on a number of occasions without any indication of your being involved in any way. There is no indication even that you were present in the house. As I said earlier, you were not living at this house, you were living with your partner Ms Lemon.
[17] You are entitled to the benefit of any reasonable doubt in respect of your involvement in the offending and the nature of your offending. From the information available, including the police summary of facts, there was only one sale by you and this was a small quantity. Your involvement in offending on 26
November I would describe as peripheral. Your offending was at a considerably lower level than the offending in the four cases Mr Simmers referred to. And in making that observation I am not in any way being critical of the submissions for the Crown; it was helpful to have the cases for reference. It is for these reasons that I consider that the appropriate starting point for the sentence should be 15 months imprisonment. And as I keep emphasising, looking at the offending alone.
[18] That starting point should be increased because this offending occurred while you were on bail and while you were subject to the existing sentence of intensive supervision. The increase I intend to impose is 3 months, which is possibly very lenient Mr Gorman in view of the offending and the offending on bail, and the offending while still subject to another sentence. Do you understand what I am saying – and you have acknowledged that you do. And I really hope you mean it.
[19] You are entitled to a reduction to take account of relevant personal factors in your favour. You pleaded guilty at an early stage and the Crown accepts that you are entitled to the maximum reduction of 25% for the guilty pleas. I would contrast this with your mother who has apparently pleaded not guilty to a range of charges. There is not a great deal more than this which would warrant a significant reduction. However, there are matters referred to in the pre-sentence report which persuade me that you are entitled to some further discount. The probation officer said, and I quote:
Kevin Gorman is a man from a dysfunctional background who has not had appropriate role models, and who has quickly fallen prey to the attractions of crime and gang life, with its associated substance abuse. He has an extensive history of offending, covering most offending types, he has a poor record of compliance with sanctions imposed, and there has been little evidence of motivation to address offending behaviour. However, he does appear to have overcome his issues of substance abuse, he has extricated himself from the gang culture, he appears to be in a supportive relationship, and he advises that he is willing to complete any such programmes as may assist him to avoid any further offending.
[20] The reference to the supportive relationship is to Ms Lemon, who is in Court today in support of you, and there is further support from her family – her parents.
[21] Taking account of the guilty plea, and the other matters I have just referred to, and having regard to all relevant purposes and principles of sentencing, I consider that the end sentence, if imprisonment were to be imposed, should be 12 months imprisonment.
Home detention
[22] It remains to consider whether a sentence of home detention rather than imprisonment should be imposed.
[23] Mr Simmers, I consider entirely properly, submitted that this is not a case for home detention. There has been an eloquent submission on your behalf from Ms Dorset in support of a submission that there should be home detention. The probation officer has recommended home detention subject to special conditions. This is a recommendation made by the probation officer with what I consider to be a
clear-eyed assessment of your offending and circumstances and with recognition that a sentence of imprisonment could very well be imposed.
[24] And Mr Gorman, as I keep emphasising, the reason for that is because of not just the list of convictions going back to the age of 16 but the continued offending while subject to other sentences and simply not responding to sentences and Court orders. Your case, Mr Gorman, is very much on the borderline. As I have just said, the history of your offending, and responses to sentences and other Court orders, is bad. One particularly important consideration in your case is the need to bring home to you that you have to take responsibility for your own life – you have to do it – and completely remove yourself from this cycle of offending. If you don’t you will be at risk of facing a lengthy sentence of imprisonment. And you have indicated that you understand what I am saying to you.
[25] You are very fortunate to have the support of your partner and her family. You had, apparently, responded reasonably positively to the existing sentence of home detention that was imposed in November to be served at the home of Ms Lemon and her parents. The home detention report in respect of this offending is positive. This, and one other thing, is what tilts the balance to a sentence of home detention, which is what I intend to impose. The matters I am referring to at the moment indicate that for the first time in your life you are not in a dysfunctional environment. You are, and you are very fortunate, to be in a positively supportive environment. As Ms Dorset indicated, this includes support in respect of matters of Maori culture which it seems you are now only really coming to appreciate. And that is important.
[26] The other thing I just mentioned is that you have been in custody since you were arrested on 22 December 2010 – that is to say, close to 3 months. This is a further matter that I do take into account in imposing a sentence of home detention and the length of the home detention sentence.
[27] Mr Gorman, I intend to give you a chance. That’s what you are getting – an opportunity now to sort out your life. And you have indicated again that you
understand. I will impose a sentence of home detention subject to the conditions that are recommended.
Formal sentence
[28] You should now stand.
[29] For each of the offences you are sentenced to home detention for 9 months commencing today.
[30] This sentence is subject to the following special conditions:
(a) You are to travel directly from Court to 44 Leslie Avenue, Rotorua and await the arrival of the supervising probation officer.
(b)You are to reside at 44 Lesley Avenue, Rotorua for the duration of the home detention.
(c) For the duration of the sentence you are not to consume alcohol or any illicit drugs.
(d)Subject to meeting criteria, you are to undertake a pre-programme interview and complete any departmental programme, subject to availability, to the satisfaction of the probation officer and the programme facilitator.
(e) You are to undertake an alcohol and other drug assessment and complete any recommended counselling or treatment for abuse of alcohol and other drugs to the satisfaction of the probation officer and the programme provider.
(f) You are to undertake and complete an assessment by a departmental psychologist and attend any treatment recommended, including bi-
cultural therapy, to the satisfaction of the probation officer and the psychologist.
[31] I intend to impose post-detention conditions for a period of 6 months, being the last three conditions just referred to. And I will make clear in the typed sentencing notes what they are. The post-detention conditions are those at [30](d), (e) and (f).
[32] Mr Gorman, that is the sentence. You now have to respond in the way that you have told me you will. This is your chance. Stand down.
Peter Woodhouse J
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