R v Irvine HC Invercargill CRI-2010-025-004392

[2011] NZHC 399

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2010-025-004392

THE QUEEN

v

ROBERT STEPHEN IRVINE

Hearing:         4 April 2011

Counsel:         E J Riddell for the Crown

J K Fraser for the prisoner

Judgment:      4 April 2011

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, DX YA90011, Invercargill. J K Fraser, PO Box 935, Invercargill.

R V IRVINE HC INV CRI-2010-025-004392 4 April 2011

[1]      Mr Irvine, you appear for sentence today having pleaded guilty in the District Court to a charge of being in possession of cannabis for supply.   The maximum penalty for that offence is eight years imprisonment.

The facts

[2]      The charge follows a search by the Police of your house on 21 December

2010.  Once the Police went inside the house, they found cannabis in a variety of forms.    They  found  six  cannabis  tinnies  and  three  zip-sealed  bags  containing cannabis plant.  Those bags are commonly known as $50 bags, because they contain a quantity of cannabis usually sold for about $50.  They also found $130 in cash in your possession, together with two pill containers containing cannabis seed.

[3]      In the kitchen of the address they found a plastic container with another zip- sealed bag containing cannabis plant.  They also found approximately eight grams of loose cannabis.  Also in the kitchen were other trappings of a small time cannabis dealer, including empty zip-sealed bags, a set of scales and pieces of tinfoil cut into a size appropriate for packaging cannabis tinnies.  In all the Police found 17.53 grams of cannabis at your house.

[4]      You frankly acknowledged that the cannabis was yours.  You said that you used it yourself and that you would use some of it to barter with your associates. You said you have been supplying others with cannabis for a number of weeks.

Starting point

[5]      The starting point for offending of this type is governed by the decision of the Court of Appeal in R v Terewi.[1]     I am sure that you are fully familiar with that decision and have heard of it several times in the past.  It says that in cases of lower level commercial dealing a starting point of two to four years imprisonment will be appropriate.    The  Court  may  go  below  the  two  year  limit  where  the  evidence

[1] R v Terewi [1999] 3 NZLR 62.

suggests that sales are infrequent.

[6]      There  is  no  way of  knowing  exactly how  frequently  you  sold  cannabis. Certainly, however, you had all the trappings of a lower level dealer.  You had the necessary packaging.  You had small quantities of cannabis and you had cash in your possession consistent with that held by a low level dealer.

[7]      I accept that it is possible to go below the two year starting point advocated in Terewi, but only really because of the relatively small quantity of cannabis found and the type of packaging that was also found.  I propose to adopt a starting point of one year, nine months imprisonment in respect of the charge.

Aggravating factors

[8]      The Crown asks me to apply an uplift to that starting point to recognise the fact that you have several previous convictions for cannabis-related offending.

[9]      Your offending in this way began in 1995, when you were convicted of being in possession of cannabis.   You were then convicted again in 1998 of being in possession of cannabis oil and cannabis seeds.  In 2002 you were sentenced to one years imprisonment on a charge of cultivating cannabis.  Then, on 9 June 2009, you received an effective sentence of one year four months imprisonment on a raft of drug-related charges.  These included being in possession of cannabis for supply, and charges relating to morphine and other drugs.  At the time of the present offending I understand that you were still subject to the release conditions imposed as a result of that sentence of imprisonment.

[10]     Previous convictions, where they are relevant, are an aggravating factor in terms of the Sentencing Act 2002.  It is important, however, to ensure that, when an uplift is applied to reflect this factor, it is not used to re-sentence an offender in respect of earlier offending.  It must reflect the principle that the present offending is made that much more serious by the fact that previous sentences of imprisonment have had no effect.

[11]     Mr Irvine, you are an advocate of the use of cannabis.  You believe that it should be legalised. You say that there is no reason why people should not be able to

use it as you do, to self-medicate against pain caused by earlier work-related injuries. You may hold those views, and you are entitled to them, but you I am sure now appreciate that every time you come before the Court on drug-related offending like this it will be taken into account as an aggravating factor.

[12]     The Crown suggests an uplift of six months imprisonment, and I consider that is appropriate in the circumstances of this case.  I therefore take an end starting point of two years, three months imprisonment on the charge to which you have pleaded guilty.

Mitigating factors

[13]     I now need to consider the extent to which that sentence should be reduced to reflect mitigating factors personal to you.

[14]     You appear for sentence at 57 years of age.  You had a lengthy career as a slaughterman, and you were obviously good at your job.  You say that you suffered injuries as a result of this, and that your use of alcohol and drugs in recent years has been to provide a form of pain relief.

[15]     I accept that may be the case, but it does not represent a mitigating factor that

I can take into account in imposing sentence.

[16]     The only mitigating factor that I can realistically take into account is your guilty plea, which came at an early stage.  You were arrested on 21 December 2010 and you pleaded guilty on or about 8 February 2011.  I take that to be a guilty plea entered at the earliest opportunity, although of course there was little in the way of any defence open to you.

[17]     In R v Hessell[2] the Supreme Court confirmed that a discount of up to 25 per cent may be given for an early guilty plea.   I propose to reduce your sentence by

[2] R v Hessell [2010] 2 NZLR 298.

seven months, or just over 25 per cent, to reflect that factor.

Sentence

[18]     On the charge to which you have pleaded guilty you are sentenced to one year, eight months imprisonment.

Orders for forfeiture and destruction

[19]     I make an order for the forfeiture of the money found in your possession and the destruction of all the drugs and drug-related material found at your address.

……………………………..

Lang J