R v Hobson HC New Plymouth CRI 2010-043-3699

[2011] NZHC 479

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2010-043-3699

QUEEN

v

LANCE MITCHELL HOBSON

Hearing:         12 May 2011

Counsel:         S Ellis for Crown

C Sargeson for Prisoner

Judgment:      12 May 2011

SENTENCING NOTES OF MILLER J

[1]      Mr Hobson, you appear for sentence on one charge of possessing cannabis for supply.

[2]      A search warrant was executed at 45 Brois Street in New Plymouth on 3

November 2010, after police were told that you were operating a “tinnie house” from the address.  It is a Housing New Zealand property and was occupied by you, as the primary tenant, and your de factor partner, Ms Sturgess.  Found were approximately

55.5 grams of cannabis plant, including 49 grams of cannabis in a snaplock bag, 1.7 grams in tinfoil, and 4.8 grams in a plastic bowl on a shelf.  Also found was a “tick list”,  two  small  snaplock  bags,  a  roll  of  tinfoil,  mini  pocket  scales,  a  ceramic

container containing cannabis oil residue, and $155 cash.

R v HOBSON HC NWP CRI 2010-043-3699 12 May 2011

[3]      When spoken to by police Ms Sturgess admitted her and your involvement in the sale of cannabis from the address.  You initially denied the offending, but you pleaded guilty in due course.

[4]      Ms Sturgess was sentenced to home detention, and she is now residing at an address at Sole Avenue at Bell Block.   She received only four and a half months home detention for the same charges together with possession of utensils and receiving, but I note that she is much younger than you and had no previous convictions.

[5]      You are aged 38, and you do have previous convictions.  In 2004, you were convicted of possessing cannabis seed, methamphetamine utensils and a syringe and sentenced to community work.   In 1999, you were convicted of cultivation and possession of cannabis and sentenced to periodic detention.  Also in 1999, you were convicted of twice breaching the periodic detention sentence.  Lastly, you have four convictions for driving with excess alcohol (1991, 1995, 2005, 2011).   Rather disturbingly, I note that on 19 January you were sentenced to four and a half months imprisonment on charges of assault on Ms Sturgess and driving with excess breath alcohol which as I have indicated was a third or subsequent offence.  You completed that sentence on 23 March and you have since been remanded in custody for seven weeks for sentence today.

[6]      The pre-sentence report is not positive.  You minimise your offending, and it is predicted that while you would comply with a sentence short of imprisonment, you would do so without making the most of rehabilitative options.  Imprisonment is recommended.  However, the probation officer also recognises that while in prison you have sought professional help and acknowledges that home detention might both deter  you  from  further  offending  and  offer  an  opportunity for  counselling  in  a supportive environment.

[7]      Counsel agree that the offending falls into the lowest end of category two of Terewi and warrants a starting point of about two years imprisonment.  The Crown suggests two years, the defence 18 months, claiming that you are a heavy user. There is no evidence that your use was such that the sales you made could be

considered occasional only.   I will adopt two years, recognising that the offending was clearly commercial and the quantity not insignificant.[1]    I will not add anything for your previous convictions, recognising that the last drugs conviction was in 2004.

[1] R v Andrews [2000] 2 NZLR 205.

[8]      In mitigation, you will receive credit of 20 per cent for your early guilty plea. You were apprehended on 3 November and entered your plea, after three remands and committal, on 19 January, so the plea cannot be said to have been entered at the earliest opportunity.   (Counsel advise that he was not committed for trial.)   The standard committal did not occur because pleas were entered presumably in response to an intimation, nonetheless it is my understanding that you went through three remands and that means the full discount is not available to you.  That would result in an end sentence of 19 months imprisonment.

[9]      As I have said the pre-sentence report does not recommend home detention. However, a letter of support has been filed confirming that you began treatment at Mental Health and Addition Services before incarceration.  There is also a letter to the Court, dated February 2011, where you admit to long-standing drug and alcohol issues, and say that you are finally motivated to deal with those.  Today I have seen further letters including one from your drug counsellor and another from Prisoners’ Aid and Rehabilitation Services, both indicating that progress has been made.

[10]     There are other letters of support mostly saying that you are a changed man since you met Ms Sturgess.   Ms Sturgess herself, who was 21 at the time of the offending, has written to me.  She says, amongst other things, that, as at 25 February this year, she had been in a relationship with you for two and a half years;  that you were still together;  that she was 14 weeks pregnant;  and that she was the sole carer of your teenage son.   She pleads for an opportunity for the family to resume life together.

[11]     The point of contention is the appropriateness of home detention as an end sentence.   The Crown says that your prior drug offending,  your convictions for breach  of  periodic  detention,  and  attempts  to  minimise  your  offending  together

demonstrate that a community-based sentence is not appropriate.  The defence says

that   you   have   longstanding   drug   and   alcohol   problems   that   you   finally acknowledging and seek treatment for.  The breaches of periodic detention are historic, and since then you have completed community-based sentences, including one in 2004 for drug offending, without incident. Your son is aged 13, you are a committed parent and he is affected by your absence.

[12]     The file records that there has been a difficulty securing a home detention address.  The first address provided was occupied by Ms Sturgess and the probation officer understandably deemed that unsuitable.  The second address was the one at which the offending took place, but it is no longer available to you.   The address most recently provided is 266 Te Arei Street, Bell Block, occupied by Mr Stephen Bloor.    That  is  the  address  that  Ms  Sturgess  initially occupied  while  on  home detention.  It is acceptable.  However, I note that plainly it would not be appropriate for Ms Sturgess to live with you while you are on home detention, even after she ends her own sentence.  Quite apart from her status as your co-offender, she is the victim of the assault for which you were sentenced in January.  Notwithstanding that you have no prior history of violence, domestic or otherwise, she must be considered at risk having regard to the pressure that home detention imposes on those serving it and their families.

[13]    I have hesitated over home detention for a number of reasons:   this is commercial drug offending;   you have relevant previous convictions;   and your attitude, while positive, hasn’t resulted in a degree of change that one would expect from someone who was wholly committed to rehabilitation.  But home detention is available, and the previous drug convictions are both dated and few in number. That, coupled  with  the  signs  of  progress  that  you  have  made  and   your  family commitments, lead me by a narrow margin to select home detention as the least restrictive sentence for you today.

[14]     Your sentence will be nine and a half months home detention.  The address is

266 Te Arei Street, Bell Block. The following conditions are imposed:

(a)      You are to travel directly to that address and there await the arrival of the  probation  officer  and  the  representative  of  the  monitoring company;

(b)Ashley Sturgess may visit the address, but she may not live there and she may not be present there during the hours of 9pm to 7am for the duration  of  your  sentence.    If  you  comply satisfactorily with  this sentence, the Court may entertain an application for variation of this condition   in   due   course,   albeit   not   before   Ms   Sturgess   has satisfactorily completed her own sentence;

(c)      You are not to consume any alcohol or illicit drugs for the duration of the  sentence,  and  you  are  to  undergo  such  drug  testing  as  the probation officer may direct to ensure that you are complying with this condition;

(d)You are to attend assessment, treatment and counselling for alcohol and drug abuse, as directed by the probation officer.

[15]     Consider this your last chance. [16]     You may stand down.

[17]     I omitted to record at the hearing, but did so immediately afterwards, that the standard conditions in s 80C apply and to direct that the standard post-detention conditions expire six months after the detention end date.

Miller J

Solicitors:

Crown Solicitor’s Office, New Plymouth for Crown

Nicholsons, New Plymouth for Prisoner