R v Greer

[2013] NZHC 3025

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-009-5283 [2013] NZHC 3025

REGINA

v

KEVAN BERIA GREER

Hearing:                   14 November 2013

Appearances:           M Elliott for Crown

K J Gray and A Trinder for Accused

Judgment:                14 November 2013

SENTENCING OF FOGARTY J

[1]      Mr Greer, you face charges of:

Possession of Class C cannabis for supply;

Supplying Class C controlled drug (cannabis) to persons under the age of 18, as a representative charge;

Dealing   to   people   under   18   for   sexual   exploitation,   another representative charge;

Possession of Class B drug (Ritalin) for supply;

Possession of Class B drug (morphine) for supply.

[2]      These charges relate to the possession and supply of drugs to school students from your Toyota van.  The vehicle was fitted with curtains, which meant the interior

could not be viewed from the outside.

R v GREER [2013] NZHC 3025 [14 November 2013]

[3]      The police observed you parked outside Burnside High School, during school hours, in May of this year.  The police approached the vehicle and executed a search warrant.  Two 16 year old school girls were inside the vehicle.  Both were there to get cannabis.  The police searched the vehicle and found:  155 grams of cannabis, with an estimated street value of between $1,300 and $3,100; 53 x 60 milligram morphine sulphate tablets; 53 x 20 milligram Ritalin tablets; a large amount of money in cash, which is the subject to a dispute as to whether that was from drug dealing or legitimate business activities; a digital camera and various other items. The  digital  camera  contained  17  photographs,  showing  six  different  females  in various states of undress, exposing either breasts or genitals.

[4]      The text data from your phone indicates you had supplied cannabis to more than 20 school aged students between January 2013 and May 2013.   None of the victims of the offending wanted to provide victim impact statements.

[5]      Mr Greer, the sentencing in this Court is in accordance with the purposes and principles  of  the  Sentencing Act,  passed  by  Parliament  in  2002.    I  agree  with Mr Elliott for the Crown that the principle sentencing purpose for drug offences is denunciation and deterrence, personal factors being secondary to that.

[6]      This offending has had an enormous impact on your family, and on your children.  It is regrettable that some persons in the community have sought to take out their anger at this offending against your children.   Unfortunately, I can do nothing about that.  It is to your credit that your family is supporting you.  I have read those letters in support.  But, for the purposes of sentencing, the law is clear that it is denunciation and deterrence, with personal factors being secondary to that.

[7]      As Ms Gray acknowledged, and I think Mr Elliott did too, this is actually a difficult sentencing exercise.  I am very pleased that both Mr Elliott and Ms Gray and her team have met prior to this hearing and worked through the issues.  As a result, there is not a significant difference between counsel as to how the sentencing should be analysed, and what the end sentence should be.

[8]      I, of course, have a duty to form my own view on that, and I have.  But, as will appear from the reasons that I give, I am considerably assisted by the work that counsel has done.

[9]      Counsel are agreed that the guideline judgment of the Court of Appeal is still the decision of Teriwi,1  decided in 1999, which categorised offending into three categories.  This offending falls within category 2, which means that the Courts start with a 2 to 4 year band of starting point for sentencing.   That is 2 to 4 years of imprisonment.

[10]     The only difference between counsel is where, in a two to three band, the starting point should be.  This is the most significant difference between counsel, and has occupied a fairly significant portion of the oral argument that I have heard this morning.  Of the cases cited to me, I find as material guides the cases cited to me by Mr Elliott, of Taitua2  (100 grams, starting point of 2½   years) and Wharawhara3

(100 grams, starting point of 2½ years), and the decision of Ruhl4  (200 grams,

starting point of 2 years).   I have summarised those cases down to quantities of drugs, because it is a fairly dominant principle of drug offending that it be driven by the assessment of the amount of drugs involved.   Mr Elliott, responsibly, did not push for any particular number.   He thought it was between 2½ and 3 years.   Ms Gray argued, by reference to these cases, and others which I did not find as helpful, that it should be 2 years.

[11]     The reason I did not find the other cases cited by Ms Gray to be helpful is I thought that they were much larger scale offending.  In Kahui5 it was 592 grams of cannabis and a much more sophisticated exercise.  In Kirby6 it was a tinny business with a proven or estimated turnover of $10,000 per week.  Similarly, in Siakifilo7  I

thought that was a larger scale exercise.  In my view, measured against these cases,

1      R v Teriwi [1993] 3 NZLR 62 (CA).

2      R v Taitua HC Auckland CRI 2007-092-013667, 15 February 2008.

3      R v Wharawhara HC Hamilton CRI 2006-019-9951, 28 June 2007.

4      R v Ruhl HC Auckland CRI-2008-029-000457, 12 August 2009.

5      R v Kahui HC Auckland CRI 2005-092-12470, 11 August 2006.

6      R v Kirby & Ors HC Auckland CRI 2007-055-1511, 4 December 2007.

7      R v Siakifilo HC Auckland CRI 2006-092-9756, 27 February 2007.

the proven offending was a relatively small scale exercise, and I adopt a starting point of 2 years.

[12]     The next question becomes one of an uplift for the offending by supply to persons under the age of 18.   Counsel have treated this as the lead offence, and I agree.

[13]     Parliament  has  distinguished,  in  s 6  of  the  Misuse  of  Drugs  Act  1975, supplying drugs to persons under the age of 18 (s 6(1)(e)).   The reason for that I think is because of science.  It is reasonably well-established now that the supply of cannabis to teenagers, whose brains are still in a state of formation, can have very serious consequences on their life development.  It promotes demotivation at a time when  young people need as much motivation as they can to study hard, to go through the years of completing an apprenticeship or acquiring a profession at university.  It is a matter of considerable concern to the community.    For those children who are at risk of mental illness, the science, as I understand it, suggests that taking cannabis more than doubles the risk that they will develop mental illness.

[14]     Counsel were agreed that there should be an uplift by reason of supplying to students, and I agree.  They were agreed on 1 year, and I accept that figure.  That takes the indicative sentence to 3 years.

[15]     The charges in respect of Ritalin and morphine can be treated separately, or as an aggravation to the cannabis dealing.  Mr Elliott preferred the latter, and I am content to go down that route, as it makes no difference to the end sentence.   He argued for 18 months.

[16]     I have taken into account that, within your family, there was a prescription for Ritalin.  But I am impressed by the fact that quantities of morphine and Ritalin were found on your person and in the van.  I agree with Mr Elliott’s recommendation of an

18 month uplift.  I do not apprehend any difference from Ms Gray, who recognises the inevitability of that.  That takes the total sentence, indicative so far, in respect of the lead offending to 4½ years.

[17]     Mr Elliott was arguing that there should be a further uplift for the sexual exploitation charge.   I prefer to treat the charge separately, but cumulatively.  The sexual exploitation charge relates to the evidence that school girls were being offered either  drugs  for  free  or  at  a  cheaper  price  in  return  for  submitting  to  the photographing that I have referred to.  It would appear that the serious offending in this regard involved two girls.

[18]     The section itself is s 98AA(1) of the Crimes Act.   It is a section which covers all sorts of sexual exploitation.  There is very little guidance in the cases as to how the sentence should be fixed.   The Crown submitted that this aspect of the offending warranted an uplift in the region of 1½  years imprisonment.

[19]     Mr Elliott, at my invitation, explained what might seem unusual to the public as to why this charge of sexual exploitation is not being treated as the lead charge in this case,  and  all the other factors  aggravated  to that.    It  is principally,  on his reasoning, to do with the fact that there may have only been two, of the likely 20 students supplied on the evidence, who were victims of this offence.

[20]     I was comfortable with the approach of both the Crown and the defence to take the supplying of cannabis to persons under 18 as the lead offence, because, on my  understanding  of  the  science,  the  long  term  effects  on  the  community  of supplying cannabis and targeting supply of cannabis to students is very serious.  The analysis  could  have  been  done  the  other  way,  but  I am  of  the  view  that  it  is appropriate, particularly with the lack of guidance from existing authorities, that you be sentenced in respect of the sexual exploitation charge to 1½ year imprisonment.  I am treating that as a separate charge, not an aggravation of the cannabis dealing.

[21]     That reaches the conclusion that on the cannabis charge I have a total of 4 ½

years.

[22]     I should add that there are no mitigating factors, apart from the plea of guilty that I will come to.   I have mentioned the pressure that has been placed on your family and the suffering that your children have endured, but, of course, that is not a mitigating factor.   Likewise, I see no mitigating factors in the sexual exploitation.

That indicates a total sentence of 6 years, which is essentially where counsel got to.

5 to 6 years was their conclusion.

[23]     I then must stand back and apply the totality principle, and see whether or not that sentence should be reduced.  I do not think so.  I think this is serious offending, and I do not propose to reduce that indicative sum.

[24]     Counsel are agreed, however, because of your prompt plea of guilty, that there ought to be, and you are entitled by law, to a discount of 25% for your guilty pleas. That reduces to an end sentence of 4½ years.

[25]     For these reasons, on the lead charge of supplying cannabis to persons under the age of 18, you are sentenced to 3 years.  On the charge of dealing to people under the age of 18 for sexual exploitation, you are sentenced cumulatively to 1½ years. On the charge of possession of Class C (cannabis) for supply there is a concurrent sentence, it does not add to your time of imprisonment, of 2 years.  On the charge of possession of Class B drug (Ritalin) for supply, 1 year concurrent.  On the possession of Class B (morphine) for supply, 1 year concurrent.

[26]     Your van is forfeited, and there will be an order for destruction of the drugs and paraphernalia.

[27]     The  question  of  the  forfeiture  of  the  large  sum  of  cash  found  in  your possession needs a half day hearing, and that will be given a back-up fixture before Christmas, before me.  If it cannot be heard as a back-up fixture before Christmas, it will be given a firm date in the new year.

Solicitors:

Raymond Donnelly & Co, Christchurch

Public Defence Service, Christchurch