R v Horridge HC Auckland CRI 2008-004-28704

[2010] NZHC 291

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2008-004-028704

THE QUEEN

v

GLENN ANTHONY HORRIDGE

Hearing:         5 March 2010

Counsel:         A Jordan for the Crown

A Ives for the prisoner

Judgment:      5 March 2010

SENTENCING REMARKS OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

A Ives, PO Box 210, Shortland Street, Auckland 1140

R V GLENN ANTHONY HORRIDGE HC AK CRI-2008-004-028704  5 March 2010

[1]      Glenn Anthony Horridge, you  appear  for  sentencing  today  having  pleaded guilty to two offences under the Misuse of Drugs Act 1975.   Firstly, the possession

of the Class C controlled drug cannabis for supply; and secondly, sale of the Class C controlled  drug  cannabis.  In  each  case  the  maximum  penalty  is  eight  years’ imprisonment.

[2]      For  the  purposes  of  sentencing  today,  I  have  been  assisted  by  written submissions  from  the  Crown,  as  elaborated  in  court  by  Ms  Jordan  today,  helpful written submissions from your counsel Ms Ives, and the oral discussion on the key points  today. I have also received a pre-sentence report with a home detention annexure, a  certificate  relating  to  the  fact  that you have completed a Community Alcohol and Drug Services (CADS)  programme, a letter of  support  from  your employer and letters of support from friends and family, which I have read.   It is to your credit that you have taken significant steps towards rehabilitation in the period up until sentencing today.

Factual background

[3]      In   September   2008,   the   Auckland   Police   Drug   Squad   commenced   an operation  code-named  “Marley”  investigating  the  cannabis  cultivation  and  drug dealing  operations  of  Simon  Prest.             As  a  result  of  the  investigation  into  these activities,  a  number  of  other  people  were  identified  as  either  assisting  him  in  the cannabis   cultivation   operation   or   being   associated   with   him   to   facilitate   the distribution of drugs.  You were identified as part of Operation Marley.

[4]      Through  intercepted  text  messages  the  Police  identified  that   you  were involved  in  supplying  cannabis  on  a  large  scale  to  a  number  of  unknown  people. Intercepted  text  messages  between  23  September  and  29  October  2008  showed  a total of 106 separate examples of you supplying drugs.

[5]      On  18  December  2008,  Police  executed  a  search  warrant  at  your  home address, 24 Ellis Avenue, Mt Roskill.  You were present at this time.  Located at the premises were a large number of clear plastic snaplock bags, two sets of electronic scales and 20 separate bags containing a total of 45.4 grams of cannabis head.  When

spoken to by the Police you admitted that the cannabis was yours but stated it was for personal use.

Pre-sentence report and recommendations

[6]      You  are  25  years  old  and  presently reside  at  a  flat  in  Kingsland  with  your partner, Ms Dundas, with whom  you have been living with for the past two and a half years.  You have known each other since school days and have no children.  It is pleasing to see her in court today supporting you, along with your mother.

[7]      You  were  born  in  Auckland  and  have  three  siblings  with  whom  you  have regular  contact.                 Your  parents  separated  when  you  were  seven  years  old  and thereafter you were raised by your mother, who did her best to provide you with a good upbringing.   You  have not described any other incidents of note during your childhood.

[8]      You told the probation officer that you were rebellious at school and that you left when you were in the fourth form.  You say that you attained a good standard of literacy,  but  no  formal  qualifications.  Since  leaving  school,  you  worked  as  a storeman and sales representative and for the past seven years have been working in the building industry.   In particular, you have worked for Effective Fencing for the past four  years and  your employer has spoken highly of  your work ethic and  your productivity.

[9]      You  reported  that  you  started  drinking  when  you  were  16  years  of  age. Fortunately over  time  your use of  alcohol has diminished.   You say that  you  now restrict yourself to drinking twice a week and do not drink more than six cans of pre- mix bourbon and cola in any one sitting.

[10]     In terms of drug use, you said that you started smoking cannabis when you were 18 years of age and your usage gradually escalated to the point where you were smoking daily.   You  say  your  usage  was  at  the  highest  at  the  time  of  your  arrest. You report no other drug use and say that you generally enjoy a good level of health.

[11]     You do not dispute the Police summary of facts.  You say that at the time of your  offending  you  and  your  partner  were  living  in  a  “party house”  where  all  the occupants smoked cannabis regularly.  You maintain that the cannabis found was for your own personal consumption.

[12]     Factors identified by the report writer as having contributed to your offending included your   involvement   with   drugs   and   involvement   with   associates   who supported your criminal activity.  During the interview you acknowledged that these factors were problematic and required to be addressed.   You say that you and your partner have since moved out of the house where the offending took place and you have  subsequently  and  successfully  severed  links  with  your  former  associates. I venture to suggest that, that is actually an important part of stepping out on the right path for the future.  Stay away from them.

[13]     Further, and again positively, you have completed a CADS programme, and I have  seen  the  certificate.   It  will  be  important  that  you  continue  with  further  drug rehabilitation because these addiction problems are not easy to beat.   Rehabilitation will  only be  achieved  by regular  courses  and  strong  personal  commitment  by  you and  your  partner  to  make  it  work. You  have  also  expressed  remorse  for  your offending.

[14]     To  your credit, the report writer  assessed  you  as  being highly motivated  to address your drug use and, given the measures you have taken since your arrest, you have been assessed as having greatly reduced the risk of re-offending.

[15]     Sentences involving electronic monitoring have been canvassed and you have given  your  consent  to  be  sentenced  in  that  way.   The  address  proposed  has  been deemed  suitable  and  your  partner  too  has  given  consent  to  a  possible  sentence  of home detention.   A recommendation of community detention is made in the report, but I do not consider that is a suitable of sentence.

Prior offending

[16]     You have ten previous convictions, two of which are drug-related ones: one

for  cannabis  and  one  for  possession  of  methamphetamine.     In  respect  of  each  of those  you  were  sentenced  to  community  work  and  there  are  other  convictions  as well, but are of less relevance today.   There have, however, been three breaches of community work but I am told the breaches were due to pressure from work.

Crown submissions

[17]     The Crown submitted that your offending was clearly commercial in nature and that it falls within band 2 in R v Terewi [1999] 3 NZLR 62 (CA).

[18]     The Crown referred to aggravating factors including premeditation, which is inherent in the commercial sale of cannabis; the commerciality and being part of a more  significant  operation  involving  the  growing  of  cannabis  as  shown  by  the investigation  in  Operation  Marley.           The  Crown  also  referred  to  the  extent  of  the harm to the community through commercial dealing of this type.

[19]     The Crown referred to  your previous convictions, two of which were drug- related, and to the other breaches of Court orders.  The Crown acknowledged you are entitled  to  credit  for  your  guilty  plea  in  accordance  with  the  benchmark  in  R  v Hessell [2009] NZCA 450.

[20]     In  terms  of  home  detention,  the  Crown  submitted  that  a  sentence  of  home detention was finely balanced, and I agree with that assessment.  You are right on the cusp  and  the  reason  I  say  that  is  because  in  a  sense  your  offending  occurred  in  a home environment and if you are returned to that environment, which you would be with home detention, then you are going back to the same type of environment – not the actual house, but the same type of environment.   So both you and your partner are going to have to be very vigilant not to fall back into your old ways.

[21]     In terms of starting points, the Crown submitted that a starting point of three years’  imprisonment  would  be  appropriate  and  various  case  references  in  support were referred to.

Submissions on your behalf

[22]     Ms Ives submitted that this was relatively low level commerciality and that your offending was on the borderline between categories 1 and 2 of Terewi.  Well I say at once that, given that there were 106 examples of you transacting the supply of cannabis over a five week period, I do not agree that it is low level.   You need to understand that with that volume that was commerciality and  you need  to put that behind you.

[23]     Ms  Ives  emphasised  the  mitigating  factors,  in  particular  the  steps  that  you have taken towards rehabilitation and your remorse.  She submitted that you should have credit for the guilty pleas, up to 30 percent in the light of the Hessell decision. She referred me to the chronology relating to disclosure, depositions and your final pleas of guilty in the District Court.

[24]     Ms  Ives  emphasised  that  you  are  still  relatively  young  and  have  a  steady history  of  employment,  and  only  limited  convictions  in  the  drug  area.      She  also referred  to  the  letters  of  support,  the  letter  from  your  employer  and  the  certificate from CADS.  She submitted that a sentence of home detention is appropriate taking into account all the circumstances.

Purposes and principles of sentencing

[25]     Under the Sentencing Act 2002, I am required to keep in mind a number of purposes and principles when deciding upon an appropriate sentence. In your case, I have specific regard to the purposes in s 7: the need to hold you accountable for the harm done to the community by your offending; the need to promote in you a sense

of  responsibility for  and  an  acknowledgement  of  that  harm; the need to denounce your conduct and deter you and others like you from committing the same or similar

offences.  Then there is the need to protect the community.  But, I am also required

to take into account the prospect of your rehabilitation and reintegration.

[26]     In  terms  of  the  principles  of  sentencing  in  s  8,  I  am  required  to  take  into account the gravity of your offending; the seriousness of the type of offending with which  you  have  been  charged;  the  need  to  consider  the  general  desirability  of consistency between sentences and then to impose the least restrictive outcome that is appropriate in the circumstances.   Finally, I am required to take into account the particular circumstances of you as an individual.

Sentencing process

[27]     The Court of Appeal in R v Taueki [2005] 3 NZLR 372 sets out the orthodox approach to sentencing. Accordingly, I will first set a starting point based on the features of the offending and then adjust that starting point according to any mitigating and aggravating features relating to you as the offender.

[28]     I  have  already referred  to  the  aggravating  factors  submitted  by the  Crown, and I agree that they are appropriately to be taken into account in this case.  I do not consider that there are any mitigating factors relating to the offending.

[29]     In terms of  you as the offender, and considering aggravating factors, I note that  only two  of  the  prior  convictions  are  for  drug-related  offending.   So  I do  not treat them as aggravating and I will not therefore give an uplift.  But I do emphasise that you are now starting to build up an unfortunate record with those convictions for possession and these convictions for dealing and supply.   So if there is a next time, then you will not be treated so leniently.

[30]     In   terms   of   mitigating   factors,   there   is   of   course   your   remorse,   your rehabilitation efforts and your early guilty pleas – and I will as indicated, be taking those into account.

Approach to cannabis sentences

[31]     Terewi provides guidance for the cultivation of cannabis, but these guidelines have been extended to apply in respect of possession of cannabis for supply: see R v Keefe  CA272/02,  28  November  2002.         Terewi  sets out three broad categories of offending at [4], and I am satisfied that your case falls within category 2, namely, offending with a commercial purpose (having the object of deriving profit) and for this category a starting point of between two and four years’ imprisonment is generally appropriate. In R  v  Andrews  [2000] 2 NZLR 205 it was held that any commercial element, no matter how small, should attract a starting point of two to four years’ imprisonment.

[32]     Counsel helpfully referred me to comparable cases: R v Gray [2008] NZCA

224; R v De Silva HC Auckland CRI-2008-092-006936, 28 July 2009; and R v Loach

HC Dunedin CRI-2009-005-00281, 18 November 2009.

[33]     Your counsel referred me to two decisions: R v Christie HC Rotorua CRI-

2008-070-3855, 22 September 2008 and  R  v  Packer  HC  Rotorua  CRI-2008-063-

0444, 5 September 2009.  I have to say, having been the sentencing Judge in each of those,  the  circumstances  were  different  and  at  a  lower  level  than  your  particular offending.

[34]     I consider that your case falls more appropriately in line with De Silva.

Discussion

[35]     I agree with the Crown submission that your offending is within category 2 of

Terewi.   It involves commerciality of the type described in band 2, already referred

to. I  accept  that  the  summary  of  facts  did  not  contain  significant  detail  as  to  the actual quantities of cannabis that you supplied. However, I have to take into account the volume of transactions concerned over the short period of time involved.   I am satisfied that the supply involved significant supply and that  you were involved in

numerous sales.

[36]     The  evidence  of  106  text  messages  assists  me  in  reaching  this  conclusion, together with the other evidence found at the home when the Police conducted the search:   the   snaplock   bags,   the   electronic   scales   and   other   cannabis   related paraphernalia.   Your  role  was  as  a  commercial  distributor  that  was  vital to  ensure that these controlled drugs that were being cultivated by others got to market.  That is serious offending.

[37]     Therefore, I fix a starting point of three years’ imprisonment.   I accept that you  are  entitled  to  a  discount  for  your  remorse  and  rehabilitation  efforts  and  I propose to allow four months in that regard.  You are also entitled to a discount of 25 percent  under  the  Hessell  guidelines  for  your  early  guilty  pleas.  Applying  that discount  means  that,  if  I  were  to  sentence  you  to  imprisonment,  it  would  be  a sentence of 24 months, or two years’ imprisonment.

Home detention

[38]     A   sentence   of   home   detention   is   available   to   the   Court   where   the circumstances in s 80A(1)(a) of the Sentencing Act applies.   An important factor is whether the sentence to be imposed is one of a short term sentence of imprisonment, and you qualify on that basis.

[39]     Then I have to consider the suitability of home detention noting that there is

no prevailing presumption of favour of home detention if the end sentence is within

24  months.   Rather,  it  is  whether  such  a  sentence  is  appropriate  in  all  the circumstances:  see  R  v  Stacey  [2008]  NZCA  465.          I  note  that  rehabilitation considerations  are  expressly considered  to  be  important  in  determining  whether  to impose a sentence of home detention: see R v Hill CA559/07, 29 February 2008.

[40]     I have to be satisfied that the residence is suitable: which it is. That the occupants of the proposed residence understand the terms and conditions: which they do. That  you  understand  the  conditions: which  you  have  indicated  that  you do. Then, I have to stand back and consider whether it is  appropriate  in  all the circumstances. In cases of dealing where  the  dealing  has been  conducted  from  a

house, the Court is usually very reluctant to send you back into that environment and normally you would be going to prison.

[41]     But, I have decided that home detention is appropriate in your case and I take note  of  what  was  said  in  the  pre-sentence  report  that  you  are  highly motivated  to change.  I have taken into account your steps towards rehabilitation and the fact that you are supported both by your mother and your partner.   But I do record in these notes a warning that, if there is any breach of your terms of home detention, or any repeat offending in the future, you cannot expect similar leniency from the Court.

Result

[42]     On  the  charge  of  possession  of  the  Class  C  controlled  drug  cannabis  for supply,  I  sentence  you  to  12  months’  home  detention.        I  also  impose  a  similar sentence on the second charge of sale of the Class C controlled drug cannabis, but that  will  be  concurrent.   So  one  term  of  12  months’  home  detention.   The  home detention address in this case will be Flat 2, 21 Finch Street, Kingsland, Auckland.

[43]     I  consider  it  important  in  your  case  that  rehabilitation  steps  be  encouraged and continued.  I hope your probation officer will advise you on further programmes including further CADS programmes.  I also consider that it is important that you be employed in order to, if possible, support yourself and your partner going forward.

[44]     I propose  to  impose  the  standard  conditions  of  home  detention,  but  I  grant leave  to  the  Department  of  Corrections  to  apply  further  if  special  conditions  are required to facilitate the two objectives of ongoing rehabilitation and employment.

[45]     Finally,  I  make  an  order  for  the  destruction  of  all  cannabis  and  associated paraphernalia pursuant to s 32 of the Misuse of Drugs Act.

Stevens J