R v Henry
[2012] NZHC 3264
•4 December 2012
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2012-043-1905 [2012] NZHC 3264
THE QUEEN
v
IZAAC HEMI PITIROI HENRY
Charges: Offering to supply cannabis; Possession of cannabis for supply; Contravening protection order (x9)
Plea: Guilty
Counsel: NL Elliott for Crown
SW Hughes QC for Prisoner
Sentenced: 4 December 2012
Cannabis charges – 16 months’ imprisonment on each (concurrent) Protection order – 8 months’ imprisonment on each (concurrent) (16 months and 8 months cumulative – total sentence 24 months)
SENTENCING NOTES OF BREWER J
SOLICITORS/COUNSEL
C&M Legal (New Plymouth) for Crown
Susan Hughes QC (New Plymouth) for Prisoner
R V HENRY HC NWP CRI-2012-043-1905 [4 December 2012]
Introduction
[1] Mr Henry, you appear for sentence today having pleaded guilty to one charge of offering to supply cannabis and one charge of possession of cannabis for the purposes of supply. Those are offences under the Misuse of Drugs Act 1975 and each carries a maximum penalty of eight years’ imprisonment. You have also pleaded guilty to nine charges of breaching a protection order under the Domestic Violence Act 1995. Each of those offences is punishable by up to two years’ imprisonment.
[2] I shall summarise the factual background briefly.
Facts
Drug offending
[3] In March 2012, the Police started to make enquiries relating to possible drug related activities involving you. They obtained text message data from your cellphone over the following months. That data indicated that you were involved in the dealing of cannabis.
[4] Between 13 March 2012 and 20 March 2012, you were responsible for sourcing, possessing, offering and supplying cannabis in a number of drug dealing transactions. The Police have provided a schedule of text data which details the transactions you were involved in during that period.
[5] Each of the drugs charges has been laid as being representative of your offending over that period.
Protection order offending
[6] On 13 May 2011, the New Plymouth Family Court issued a protection order for the victim (who is named in the order). She is your ex-partner. The charges you are being sentenced for relate to that protection order.
[7] The charges can be broken into three groups. The first group[1] relates to a series of text messages sent to the victim which were of a threatening tone and have been said to amount to psychological abuse. The victim’s response to these texts was to the effect that the relationship you had with her was over.
[1] CRN 1841, 1842 and 1843.
[8] The second group consists of two charges[2] involving telephone calls to the victim. On 5 May 2012, you called the victim and she told you the relationship was over. You then became threatening and intimidating. On 9 May 2012, you again called her and she told you to leave her alone. In response, you said you were going to “end it”, which frightened the victim and she subsequently contacted the Police.
[2] CRN 1697 and 1698.
[9] When located by Police on 24 May 2012 and asked about the breaches of the protection order, you said that the victim pulls you in and then pushes you away. You were then remanded in custody.
[10] The final group consists of four charges which followed from you being remanded in custody.[3] You sent letters to the victim daily, continuing what has been said to be psychological abuse and saying that you would wait for her until you got out of prison to continue the relationship. You continued to express your love for the victim in the letters, but that was mixed up with material which could well be said to be emotional abuse. The prison has subsequently stopped sending your letters.
Approach to sentencing
[3] CRN 1844, 1845, 1846 and 1847.
[11] Both Ms Hughes QC and Ms Elliott have submitted to me that in your case your two sets of offending, namely the drug offending and the breaches of the protection order, are unconnected and so require cumulative sentences to be imposed. I agree that is how I have to look at it. That means that you will serve separate sentences for each set of offending. However, your end sentence must not be out of proportion with the overall gravity of your offending. That is, the end
sentence must be proportional to the totality of your offending.
[12] Within each set of offending there is more than one offence, and within each set of offending the offences are interrelated. The two drugs charges relate to the same period of activity. The breaches of protection order all relate to the same victim and to the same protection order. That requires me to hand down concurrent sentences in respect of each related offence. That is, I have to impose one effective sentence for each set of offending – one effective sentence for the drug offending and another effective sentence for the breaches of the protection order. The two effective sentences will be cumulative.
[13] In sentencing you for the drug offending, I must take a lead offence. I admit to finding that difficult on the material provided to me. The Crown has provided me with a schedule of text messages, without identifying what transactions occurred and what quantities of cannabis were involved with them. From my reading of the schedule, I can reasonably infer that there were at least six separate offers to sell cannabis, seemingly in amounts of one or two ounces, although Ms Elliott (in the context of an estimate of what a dry weight might be) has pointed to a larger amount on one occasion. It is hard to establish whether transactions of these volumes were regular or irregular particularly given that the messages only cover a one week period. Ms Elliott is unable to tell me whether there were text messages analysed on either side of that one week period and, as Ms Hughes has said on your behalf, I have to adopt the inference which is most favourable to you in those circumstances.
[14] Given the limited information provided on the amount of cannabis you had in your possession, I will treat the offering to supply as the lead offence, although, in practice, the two overlap.
[15] For the breaches of the protection order offending, not all of the charges are easily separable on the information that I have. However, I will treat the 9 May 2012 phone call to the victim which caused her to call the Police as being the lead offence for this set.
[16] As I have said, the lack of specificity in the summary of facts works in your favour. That is to say, I will take the interpretation most favourable to you in calculating the sentence.
Purposes and principles of sentencing
[17] In sentencing you today, I have to take into account the purposes and principles provided for in the Sentencing Act 2002.[4] These include the need to hold you accountable for the harm done to the victim and the community by your offending; to promote in you a sense of responsibility and acknowledgement for the harm; to provide for the interests of the victim; to denounce and deter your conduct; and to protect the community from you. I must also consider the gravity of your
offending and the effect on the victim as a result of your offending. Finally, your sentence must be consistent with sentences received by others for similar offending.
[4] Sentencing Act 2002, ss 7 and 8.
[18] Because the lawyers have given me written submissions, they have not today spoken much about the cases they have referred me to. But I have read the submissions and I have read the cases they have urged upon me as being similar to your case and, as will be obvious to you, I cannot treat you in a way which is very different to the way in which the Courts have treated other people in your situation for similar offending.
Starting point
[19] When it comes to calculating a sentence, the law says that I have to start by identifying a starting point. A starting point takes into account the circumstances of the offence itself. Once a starting point has been fixed, a Judge has to look at the personal circumstances of the offender to see whether the starting point should be adjusted up or down. Because I have two separate sets of offending which will result in cumulative sentences, I have to undertake that exercise for each separate set of offending.
[20] The Crown has submitted today that the relevant aggravating factor of the drug dealing is that it was commercial in nature. In terms of the breaches of the protection order, aggravating factors are said to be that you wrote letters after you
had already been arrested for the use of the telephone; you caused your victim
significant distress, as is reflected in her victim impact statement; and that you have a series of previous convictions for breaching protection orders. In particular, four convictions for breaching a protection order in relation to the same victim.
[21] The Crown does accept that you are entitled to a discount for your guilty pleas in respect of all of the charges that you face.
[22] The Crown has submitted that the starting point for your drug offending should be two-and-a-half years’ imprisonment. This, they say, is because you fall into category 2 of the bands set out by the Court of Appeal in a case called R v Terewi.[5] With a 25% discount for your guilty plea, this would take you to an end sentence of 22-23 months’ imprisonment on the drugs charges.
[5] R v Terewi [1999] 3 NZLR 62 (CA).
[23] As for the breaches of protection order, the Crown seeks a starting point of six to nine months’ imprisonment, with an uplift of three to six months for your previous convictions. Again, the Crown concedes that a 25% discount for your guilty pleas is available, and that would take you on the Crown’s submission to between nine and 14 months’ imprisonment on the breaches of protection order charges.
[24] On your behalf, Ms Hughes has submitted that your drug offending falls into the lower band of category 2 because of the lack of any evidence that the text messages resulted in any sale of significant value. Ms Hughes also makes the point that there was no cannabis located at your property.
[25] In relation to the breaches of the protection order, Ms Hughes has emphasised that at no time was the contact other than verbal or written – there were no face-to- face meetings. Further, Ms Hughes has submitted that you should receive a full discount for your guilty plea. Overall, she submits that a global sentence of nine months’ imprisonment should be imposed, comprising six months for the breaches of
protection order and a further three months for the drug offending.
[26] I have had the benefit of reading your victim’s victim impact statement. She has admirably said she simply wants to move forward with her life and hopes that you get the treatment you need. She is now at peace without the constant shadow that you have cast over her life and she is of the view that both she and her daughter can now move forward. But, of course, that is because you are in prison and your ability to communicate with her has been removed.
[27] I have also had the benefit of reading your pre-sentence report. I must say it is not overly favourable to you. You are assessed as being at a high risk of re- offending. The contributing factors to your offending are said to have been your substance abuse, your propensity for violence, and financial and relationship difficulties. The report notes that you have made an offer of reparation to the victim, although the details of this and your financial ability to make reparation are very vague.
Drug offending
[28] I turn to setting a starting point for the drug offending.
[29] As I have said, the Court of Appeal in the case called R v Terewi has set a series of levels or bands as starting points in cannabis offending. The Crown has submitted that the obvious aggravating feature of your drug offending is the commercial nature of your dealings. This is actually taken into account when setting the bands, so I do not consider it as a separate factor.
[30] It is clear to me, as it is to both the lawyers here, that your offending does fall into category 2 of Terewi, namely small scale commercial operation. The starting point for band 2 is generally two to four years’ imprisonment. The issue for determination is where in that band your offending sits. There are a number of other Court cases that I can look at in setting your starting point. I do not need to address them all; there are many hundreds of them.
[31] However, the Crown has pointed me to the R v Sell,[6] a case involving seven charges of possession for supply and three charges of offering to sell cannabis. The prisoner in that case sent or received approximately 16 text messages in a nine-day period relating to cannabis dealing. It was evident that the offender was dealing on an almost daily basis. A Police search found 130 grams of cannabis packaged in snaplock bags and ready to sell. A starting point of two-and-a-half years’ imprisonment was taken.
[6] R v Sell HC Invercargill CRI-2008-025-4710, 5 May 2009.
[32] Ms Hughes has submitted that Sell involved significantly more serious offending than yours. I cannot agree. The inference from the text messages is that over this one week period you were dealing on an almost daily basis. However, I do accept that you were not found in possession of any cannabis when searched by Police, and the summary of facts does not allege specific dealing amounts.
[33] I do not accept that your offending was at the level where a starting point of two years’ imprisonment should be taken, as for example in another case called R v Bosson.[7] That case involved the sale of two cannabis tinnies to an undercover police officer. There was also a separate representative charge of having sold three tinnies on a separate occasion, and another representative charge of having sold an unspecified number of tinnies to different people between September 2011 and March 2012. On the face of the text messages attached to the summary of facts in your case, which you do not dispute, you were dealing in bigger quantities.
[7] R v Bosson [2012] NZHC 1956.
[34] Therefore, I will set a starting point for the charge of offering to sell at two years and three months’ imprisonment.
[35] I think, Mr Henry, that if the summary of facts had related more directly to the text messages, and if there had been greater analysis of the text messages, a greater starting point would have been justified. I note that more serious charges were withdrawn before you pleaded guilty to the current charges, and I suspect that
your lawyer has done rather well for you in this case.
[36] So far as the breaches of protection order are concerned, unlike the drug offending, there is no tariff case for a breach of a protection order. However, I find the decision of Lang J in a case called Lane v Police[8] useful. There, a protection order was taken out by the prisoner’s ex partner. Four charges of breaching a protection order were laid. The first three related to text messages, while the other involved loitering around the victim’s shop. Lang J, on appeal, said that a starting point of no more than nine months’ imprisonment was appropriate for this level of offending, given that there was no actual violence or threats of violence. The Judge
took a starting point of eight months’ imprisonment.
[8] Lane v Police HC Rotorua CRI-2010-463-32, 18 May 2010.
[37] In another case I have referred to, called Toko v Police,[9] the prisoner appealed a sentence handed down for three breaches of a protection order. These occurred when the appellant wrote three letters from prison while serving a sentence for unrelated offending. Keane J described each letter as “an insidious threat to his former partner, designed to disturb and distress her”.[10] Those three offences meant he had committed 15 breaches of a protection order since 2005. On appeal, Keane J accepted the starting point of nine months’ imprisonment.
[9] Toko v Police [2012] NZHC 1900.
[10] Ibid, at [17].
[38] In your case, Mr Henry, I consider it a significant aggravating feature that you persisted in breaching the protection order, even after being held in custody on remand on charges which included breaching the protection order. I also find it aggravating that the breaches were not simply attempts to contact the victim but involved communications which at least would be emotionally distressing to the victim. In that respect, I find your case closer to the decision in Toko. However, you were much more persistent than in Toko and on that basis I impose a starting point
for the breaches of the protection orders of 10 months’ imprisonment.
[39] I now turn to your personal factors.
[40] I do not find that there is anything in your background to be particularly redeeming. You have made an offer of reparation, and in some circumstances that might entitle you to a discount for remorse. However, the details surrounding the offer are too vague to be helpful. Without more, I am not prepared to afford you a discount for remorse.
[41] There is the matter of your previous convictions. You are developing quite a list of previous convictions. They include wilful damage, breaches of protection orders, violence and burglary. Given that growing record, I am entitled to uplift both your sentences. However, I will have regard only to the convictions for breaching a protection order, of which you previously have four convictions. As Toko and Lane demonstrate, that is a significantly aggravating feature. I uplift your sentence for breaches of a protection order by approximately one-third, or three months, as Lang J did in Lane. That takes your sentence on the breaches of protection order to
13 months’ imprisonment.
[42] You have no previous convictions for drug offending, so I will make no uplift in respect of the drug offending.
[43] Both lawyers have submitted to me that a 25% discount is appropriate to account for your guilty pleas, in line with the Supreme Court’s decision in Hessell v R.[11] I agree. While your pleas were slightly delayed, I accept that there was negotiation with the Crown as to what charges would be proceeded with and you pleaded guilty immediately after the current charges had been formulated.
[11] Hessell v R [2011] 1 NZLR 607.
[44] In respect of each set of offences, that represents a discount on the drug offending of six-and-three-quarter months and three-and-a-quarter months for the breaches of the protection order. At this stage, that would leave end sentences of 20-
and-a-quarter months and nine-and-three-quarter months.
[45] The total sentence I have calculated is two-and-a-half years’ imprisonment. I now have to stand back and look at that to see whether it is disproportionate to the overall criminality of your offending.
[46] You have no previous convictions for drug offending. Ms Hughes submits that you now accept that your relationship with the complainant is at an end and that unless you move on you will find yourself returning to prison for longer and longer periods of time. Ms Hughes also submits that I have to look at the drug offending as being one week in your life, with there being no evidence of anything beyond or outside that week. Finally, Ms Hughes has said, quite properly, that when it comes to the breaches of the protection order, although your conduct has been persistent it has not been of the face-to-face confrontation kind.
[47] There is no science to the evaluation of where the calculated sentence fits in relation to the totality of your offending. It is a matter of judgment. In my judgment, an overall sentence of two-and-a-half years’ imprisonment would be too hard a response to your overall offending. I consider that two years would be appropriate. I shall adjust the drug offending sentences to 16 months and the breaches of protection order to eight months.
Sentence
[48] On the charges of offering to sell cannabis and possession of cannabis for the purpose of supply, I sentence you to 16 months’ imprisonment for each charge, with those sentences to be served concurrently with each other. On each of the charges of breaching a protection order, I sentence you to eight months’ imprisonment, to be served concurrently with each other. The sentences for drug offending are to be served cumulatively with the sentences for breaching the protection order. That
brings your effective end sentence to 24 months’ imprisonment. Stand down.
Brewer J