R v H HC Whangarei CRI 2009-088-3318

[2010] NZHC 8

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2009-088-003318

THE QUEEN

v

H

Hearing:         4 February 2010

Appearances: A B Fairley for Prisoner

K R Thomas for Crown

Judgment:      4 February 2010

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Whangarei

Thomson Wilson, Whangarei

R V H HC WHA CRI 2009-088-003318  4 February 2010

[1]      H  , you appear for sentence, having pleaded under s 153A, for possession of cannabis for sale or supply on 18 February 2009. Jurisdiction was declined in the District Court.

[2]      On 19 February 2009 the police executed a search warrant at your Whangarei address. You were present when it was executed. In your bedroom the police located a tobacco tin containing nine cannabis tinnies and in a spectacle case a further six tinnies. Another was discovered in a tobacco container in the kitchen. In your wallet was $580 cash.

[3]      You  admitted  that  the tinnies  were  yours  and  that  you  had  been  selling cannabis for five months, at the rate of two ounces of cannabis head each week, translating to 28 tinnies, each of which you sold for $20. You do not accept that the cash discovered was wholly attributable to that. $500 was, you say, the residue of

$570 withdrawn that morning for rent, attributable to a back-payment from WINZ

dated 16 February 2009.

Pre-sentence report

[4]      Your pre-sentence report recommends that you be sentenced to community detention at your present address, your address for the past three years, and 12 months intensive supervision.

[5]      You are aged 44, your report says, and you have been for a significant time a beneficiary.  Your sexual  identity has  proved  indeterminate  and  that  has  been  a source of great difficulty for you. You have often been isolated as a result. You are also, your report says, schizophrenic and on anti-psychotic medication. You do not use alcohol but you smoke cannabis regularly and you are assessed to do so to an extent that is harmful.

[6]      You have, your report says, significant previous convictions, a number of which related to illicit drugs. You accept that you might benefit from treatment or counselling through Norfolk Villa, where drug dependency and mental illness, in

tandem, can be catered for. You are assessed as being at medium to high risk of re-offending.

[7]      A sentence of imprisonment, your report acknowledges, may be proper given your history of offending and, indeed, that is a sentence you accept. You feel safe in a custodial setting where your mental health needs are monitored and catered for.

[8]      Home detention is considered likely to be difficult for you because of your mental  and  emotional  condition.  Community  detention  might,  your  report  says, prove less arduous but would still be punitive and deterrent. That and intensive supervision,  your  report  says,  could  give  you  the  opportunity to  engage  in  the counselling necessary.

[9]      The sentence that is recommended is held out in the report to be feasible in this sense. The address at which you would live, some three kilometres from the centre of Whangarei, and which you occupy solely and have for some years, is considered suitable. I note that there is no objection raised by the police.

[10]     Another aspect of your report to which I need to refer is that you have $7,000 or so fines outstanding and it is proposed that on sentence those fines be remitted. I have confirmed with your counsel that the jurisdiction to remit fines on sentence lies in the District Court. It is not a power that can be exercised on sentence in this Court.

Materials

[11]     Apart from that report I have as well a letter from a consultant psychiatrist dated 3 February 2010. She questions whether you are schizophrenic and whether your medication is appropriate. What she does say is that you have suffered significant adverse developmental experiences, that these have influenced your personality and that you could suffer a related personality disorder.

[12]     Principally, you have long identified yourself as a female, she says, and you have acted consistently and that has proved difficult for your family, for you and for others, leading to the kind of isolated behaviour that your pre-sentence report speaks

of. She says also that you are engaged with alcohol and drug services, that you have begun attending a therapeutic group and she proposes with your consent to advise those assisting you of the issues she describes. She does not consider you require any further psychiatric monitoring. Psychological therapy, she does consider, could well be beneficial.

[13]     I have as well two letters. One is from a Jehovah’s Witness who met you in the course of her public ministry. You expressed an interest in bible study. Since June 2009 you have persisted in that course. She has found you both diligent and extremely well mannered, thoughtful and appreciative. She has seen you assist your neighbours. She considers it a privilege to have worked with you.

[14]     I have also a letter from Northland District Health Board, Norfolk Villa, Mental Health and Addiction Services. It confirms that you have completed the first three of a four week session cluster.

Sentencing principles

[15]     You will understand that on sentence I must denounce your offending, I must hold you accountable for it. I must impose a sentence consistent with the sentences imposed in other like cases and the sentence I impose must be deterrent. Against that I have to balance the need to impose a sentence on you which rehabilitates you and enables you to reintegrate with the community.

[16]     In such cases as these those latter purposes are secondary because the Misuse of Drugs Act normally calls for a sentence of imprisonment to be imposed. That said, as an exception to the general principle, personal circumstances can be taken into account for a wide variety of reasons if they bear on the level of actual culpability of an offender: R v Bailey (CA 189/84, 17 October 1984) and R v Coronno (CA 366/01,

6 December 2001).

[17]     More recently in the case of R v Hill (CA 559/07, 29 February 2008) home detention was endorsed as a sentence proper, where a sentence of imprisonment

would normally be required, where significant effort has been made since the date of the offence which would suggest that remorse is real and tangible.

Crown submissions

[18]     The Crown contends that your offence lies within the mid range of R v Terewi  & Hutchings  (CA  113/99,  CA  439/98,  25  May  1999),  which  attracts  a starting point in the range two – four years. The Crown contends for a starting point of three years.

[19]     You were found in possession of 16 cannabis tinnies and that in itself is significant, the Crown says. Also  you admitted to having sold cannabis for the preceding five months. The Crown, taking your admissions at their most literal, contends that you could have earned as much over over five months as $22,000, an inference you strongly contest.

[20]     The  Crown  contends  also  that  aggravating  your offending is  that  it  was premeditated and that you do have previous convictions, 76 in all, of which ten were for drug offending. The Crown does not suggest that these are independently aggravating but does contend that they, when coupled with the offending for which you are sentence, support the starting point proposed.

[21]     The Crown accepts in principle that the factors identified in the pre-sentence and psychiatric reports going to your emotional stability could go to your level of culpability. It does not oppose in principle some allowance for that. It accepts that you are entitled to a discount for plea. You pleaded prior to the preliminary hearing, some eight months, it seems, after first being charged. It proposes a 25 percent discount.

Defence submissions

[22]     Your counsel, Mr Fairley, accepts that your offence lies within category two

Terewi and contends that at most a starting point of two years, six months would

fairly reflect  your offending and  your previous  related  convictions. You do not accept the $22,000 calculation. Quite apart from anything else, that is a figure you might have obtained in gross and does not reflect outlay, but there are other issues with it which suggest that it cannot be taken literally.

[23]     As to your previous convictions, Mr Fairley says, only the 2006 conviction for supply can be pertinent. It has been three years since you were last before the Court.

Conclusions

[24]     Your offence is most reliably measured, I consider, by the number of tinnies found in your possession and against your general admission that you had been selling tinnies in some quantity for five months.

[25]     You gave an account of the order of sales, which may be open to more than one interpretation. I do not take it literally. You are to be sentenced on the premise that you have been involved in a continuous course of selling, but not as a dealer in a full commercial sense. You are a user, who has supplemented his benefit and supported his habit. And your last related conviction was three years ago. So while you have shown a recent propensity to offend in this way, you are not in the most serious category of street dealer.

[26]     I regard you as lying towards the lower end of Terewi category two and I take a  starting  point  for  sentence  of  two  years,  six  months  imprisonment.  You  are entitled, I consider, to two discounts, the first a discount reflecting the difficulties identified in your pre-sentence report, which may reduce your culpability. That will be three months. You are also entitled to a discount for plea. Counsel concur in a 25 percent discount, seven months, and I agree. The result is that if you are to be sentenced to imprisonment, that would be for one year, eight months.

[27]     The more considerable issue is whether instead a sentence served within the community is more proper in both the public and your interest. The Crown opposes any such sentence as being insufficient to denounce your offending but the factors

that have led me to fix the term I have satisfy me also that the recommendation in the pre-sentence report is right in principle, though not detail. I have made it clear that the sentence recommended, community detention, is not sufficient and so the issue is whether home detention is a sentence you are capable of completing.

[28]   The officer who prepared your pre-sentence report, and who is highly experienced, doubts that you have and that is why he proposed community detention and intensive supervision. I consider, however, that there are reasons to suppose that you could complete home detention, and that despite the fact that the offending occurred in your home.

[29]     Since you offended on 19 February 2009 you have been bailed to your home and have not offended. Secondly,  the letter from the Jehovah's Witness, whom you met in June 2009, suggests that you have some capacity for sustained discipline. I take less from the letter suggesting that you have attended therapy of three sessions. That says little by itself but when set against the earlier letter does give some cause for hope.

[30]     I sentence you to ten months home detention on these terms:

1.You   are   to   travel   directly  to   2/160   Kamo   Road,   Whangarei immediately following sentencing to await the arrival of the probation officer and the electronic monitoring company representative.

2.You are to remain at 2/160 Kamo Road, Whangarei for the duration of the sentence of home detention unless otherwise approved by the probation officer

3.You are not to purchase, possess or consume alcohol for the duration of the sentence of home detention.

4.You are to undertake a full assessment for cannabis dependency and attend such counselling and treatment for cannabis dependency as directed by the probation officer.

5.        You are, by consent, to undertake such psychiatric or psychological

treatment as directed by the probation officer.

P.J. Keane J