R v Holden HC Timaru CRI 2010-076-463

[2010] NZHC 1993

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2010-076-463

THE QUEEN

v

MICHAEL JOHN HOLDEN

Counsel:         A R McRae for the Crown

Q C S Hix for the Prisoner

Date:              4 November 2010

SENTENCE OF WILD J

[1]      Mr Holden, I normally require a prisoner to stand up when I am sentencing him.  But, as you are on two crutches, you may remain seated in the dock while I am sentencing you.

[2]      You are for sentence on four charges of dealing Class C controlled drugs. The charges are:

Date of offence	Offence	Section in Misuse of Drugs Act 1975	Maximum penalty
1	9.3.10	Possession of Class C Controlled Drug for Supply – 6K-MBDB (Butylone)  CRN 10076000937	Section 6(1)(e)	8 years imprisonment
2	21.4.10	Possession of Class C Controlled Drug for Supply – BZP (Benzylpiperazine)  CRN 10076001586	Section 6(1)(e)	8 years imprisonment
3	21.4.10	Possession of Class C Controlled	Section 6(1)(e)	8 years

R V HOLDEN HC TIM CRI 2010-076-463  4 November 2010

Drug for Supply – IFMPP [this should read, according to the summary of facts TFMPP] (Trifluromethylphenil Piperazine) CRN 10076001587	imprisonment
4	21.4.10	Possession of Class C Controlled Drug for Supply – 6K-MBDB (Butylone)  CRN 10076001588588	Section 6(1)(e)	8 years imprisonment

[3]      I am sentencing you because the District Court, on 29 September, declined sentencing jurisdiction.

[4]      These charges result from what the Police found when they executed two successive search warrants at your home here in Timaru on 9 March and 21 April this year.

[5]      On 9 March the Police found just over 42 grams of Butylone.   That is an analogue of MDMA, commonly known as Ecstasy.  Butylone sells for around $40 a gram, so you had about $1,700 worth.   In view of your subsequent guilty plea, it does not now matter greatly that you initially denied to the Police this Butylone was yours, but claimed you had been set up.

[6]      On 21 April the Police found in your possession three further quantities of Class C controlled drugs.  You had a further 106 grams of a powder containing a mixture of Butylone and TFMPP.  TFMPP is a drug used to enhance the effect of other drugs.  More seriously, hidden in a pack in your locked shed, the Police found just under 760 grams of BZP.  Your counsel says that that had been there for some time.  In fact he says it was there when the Police conducted their first search on 9

March.   I do not know whether that is right or wrong.   Without a contested facts hearing, I can’t determine that.   BZP sells for about $30 a gram.   Although the market value of the TFMPP/Butylone mix is not exactly known, the Police think the two gram bags would sell for about $40.  So on that second occasion you had about

$25,000 worth of drugs to sell.   In addition, the Police found a large quantity of plastic deal bags, small spoons used to put powders into these bags, electronic weigh scales and $1,310 in cash, most of it in $20 notes.  This time, you admitted to the Police that all those drugs and that drug dealing equipment were yours, and you told

them that you were dealing for a local man.  So in total, those two searches found you in possession of Class C controlled drugs with a street value of about $27,000.

[7]      I agree with Crown counsel - your own counsel does not entirely accept this - that dealing at that level puts you squarely in Category 2 as described in R v Terewi [1999] 3 NZLR 62, the leading Court of Appeal decision laying down sentencing guidelines for dealing in Class C drugs. The Court of Appeal said the sentencing starting points for Category 2 were in the range 2-4 years imprisonment.

[8]      I mention that on your behalf Mr Hix has sought to extinguish Terewi itself, because Ms Terewi had been convicted of cultivating cannabis, as well as supplying it, and because, and in 1999 dollar values, she was in possession of somewhere between $52,000 and $74,000 worth of cannabis compared with the $27,000 worth of drugs in your case.

[9]     In sentencing you for this offending I take a starting point of 3 years imprisonment.  I consider that reflects the seriousness of the various aspects of the four offences.   First, the fact that they were committed on two dates separated by about six weeks.  Secondly, the amounts of the drugs you had for supply.  Thirdly, the fact that you were the street dealer or “retailer” – the last and smallest man in the supply chain, but nevertheless an essential one.

[10]     I intend imposing a lead or effective sentence on the most serious offence, that of possession of the approximately 760  grams of BZP.   Because that lead sentence will be the effective end sentence, it will reflect the totality of your offending.  I will impose lesser, concurrent, sentences on the other three offences.

[11]     I look now at you as the man I am sentencing.  Is there anything about you that requires me to either increase or reduce the sentence I impose from that starting point of 3 years imprisonment?

[12]     You are 39.  You are single, although you have the primary care, I thought of your two sons aged 11 and 16, but it may be only one.  One at least of them lives with you, but spends time with their mother who lives in Temuka.  You have got

family scattered around the South Island:  your mother in Cromwell, your sister, who

I think is here in Court, in Ashburton and your brother in Christchurch.

[13]     Since you comprehensively broke your leg in a motorcycle accident about a year ago you have been receiving an invalid’s benefit.   Before your accident you were working for a company providing tree trimming services.  Your ability to work in the future is I am told, and I can see, obviously still unclear.

[14]     The report I have substantiates your claim that you have been alcohol free for the last 10 years, but before that had a real drink problem.   That reflects in your criminal record.  Up until about 2000 your convictions are for violence, for driving with excess breath alcohol (nine convictions for that, with a maximum breath count of a staggering 979), disqualified driving, dishonesty and property damage.

[15]     In the last 10 years your convictions have been largely for drug offences. You have eight convictions:   five for possession of cannabis, one for cultivating cannabis, one for possession of a syringe and one for breach of the Medicines Act

1981.  With the exception of one conviction for possession of cannabis in 1992, all those convictions were in the last 10 years.  In those 10 years you also have some convictions for dishonesty, wilful damage, disorderly conduct and the like.   But I agree with the observation of the reporting probation officer that the nature of your offending has changed significantly, although less so its frequency.  In all, and I am not sure if you have ever counted them up (prisoner shakes his head), you have 97 convictions dating back to the Youth Courts in Timaru and Ashburton in 1988.

[16]     I see two aggravating features – that is things that require me to increase the sentence I am going to impose on you.  The first is that these are the ninth, tenth, eleventh  and  twelfth  drug  offences  for  which  you  have  been  you  have  been convicted, and they are the first for dealing in drugs.  I am concerned, Mr Holden, that you have substituted drug dealing for dishonesty as a means of supplementing your income.  A sentence that denounces what you have been doing and deters you from doing it again in the future, and deters others who might be minded to deal in drugs, is required.

[17]     The second – and lesser – aggravating feature is that the 21 April offences were committed when you were on bail for a charge of possession of cannabis simpliciter, a charge that was subsequently dropped, but they were committed when you must have known that you also faced a charge resulting from what the Police had found on 9 March.  The real point is that you went right on dealing in Class C drugs.

[18]     These two aggravating features warrant my increasing your sentence by 6 months to 3½ years imprisonment.

[19]     On a more positive note, you are entitled to a full one-third discount to reflect the guilty pleas you entered on 17 August.   That is less than a month after the informations in respect of the 21 April offences were laid on 19 July.

[20]     That reduces the sentence by 14 months to a sentence of 2 years 4 months imprisonment.

[21]     Your  counsel  submits  that  I  must  try  and  achieve  parity  with  another offender, I’ll call her X.   I think you know who she is.   She was sentenced on a representative charge of possession of Class C drugs for supply to 7 months home detention and 250 hours community work.  Given the differences acknowledged by Mr Hix, I see no lack of parity between those sentences and the effective sentence I intend imposing on you.  For the record, the two significant differences (but not the only ones) are:

a)        The  fact  that  X  did  not  have  the  significant  number  of  previous convictions you have, and she had no convictions for drug offences.

b)        Your home was searched twice, hers only once.  You had a total of

$27,000 worth of drugs, X had $10,000 worth.

[22]     In reliance on the Court of Appeal’s not uncontentious decision in R v Hill [2008] 2 NZLR 38l Mr Hix has made a strong plea to me to consider home detention for you, detained in your sister’s home in Tinwald, which is just south of Ashburton.

He has asked me to consider that even if I was of the view that a sentence of over 2 years imprisonment was the appropriate one for you, which I am.   You are very lucky, Mr Holden, to have the strong support of your sister Tania, who is in Court today.   Mr Hix has stressed the rehabilitative opportunities that home detention in your sister’s home on a farm might offer you, despite your disabilities.  Having seen the difficulty with which you came into the dock in Court this afternoon I am not sure about that.

[23]     However, I very much regret that I consider this offending by you is just too serious to consider home detention.   To be dealing in illicit drugs from your own home twice on top of eight previous drug offences, and about 90 other previous offences spread over 30 years, is just not a home detention situation.  So I do not have to consider the other concerns the Crown has expressed as  to  your being detained in your sister’s home, and I therefore won’t go into what those concerns are.

[24]     In the result, on the BZP charge (CRN 10076001586) I sentence you to 2 years and 4 months imprisonment.

[25]     On  each  of  the  two  other  21  April  charges  (CRNs  10076001587  and

10076001588588) I sentence you to 12 months imprisonment.   On the 9 March charge (CRN 10076000937) I sentence you to 6 months imprisonment.   As I mentioned, those three sentences are concurrent.  Your effective sentence is thus one of 2 years and 4 months imprisonment.

[26]     I am satisfied the $1,310, mainly in $20 notes, found in your possession on

21 April was there consequent upon the commission of drug dealing offences. Accordingly, pursuant to s 32(3) Misuse of Drugs Act 1975 I order that that money be forfeited to the Crown.

[27]     The Crown also asks for an order for destruction of the drugs and drug paraphernalia  seized  from  you  by the  Crown.    Pursuant  to  s  32(1)  of  the  Act, forfeiture to the Crown is automatic by virtue of your conviction.  No order by me is necessary.

[28]     You may stand down.

(Counsel for the Crown seeks also an order for forfeiture of the $1,005 cash seized by the Police on 9 March.  Discussion between Crown counsel and the Judge about this, in particular the lack of detail in the statement of facts about this money.  The Judge asks counsel for the prisoner about this, and suggests he takes instructions. After taking instructions, counsel advises that the prisoner has no particular view about that $1,005.)

[29]     With some reluctance I will alter the forfeiture order in respect of the cash from $1,310 to $2,315.

[30]     Mr Holden, now you may stand down.

Solicitors:

Crown Solicitor, Timaru for the Crown