R v Kamizona
[2012] NZHC 2868
•1 November 2012
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2012-070-2661 [2012] NZHC 2868
THE QUEEN
v
BRYCE THOMAS KAMIZONA
Hearing: 1 November 2012
Counsel: CA Harold for Crown
DL Bates for Offender
Judgment: 1 November 2012
SENTENCING NOTES OF TOOGOOD J
Solicitors:
CL Harold/J Rhodes, Ronayne Hollister-Jones Lellman, Tauranga: [email protected]
DL Bates, Barrister, Tauranga: [email protected]
R V KAMIZONA HC ROT CRI-2012-070-2661 [1 November 2012]
[1] Bryce Thomas Kamizona, you appear for sentence having pleaded guilty to one charge of offering to supply a Class C drug, methcathinone, one charge of possession of methcathinone for supply and one charge of offering to supply the Class C drug cannabis to a person under 18. On each of those charges you are liable to a maximum penalty of eight years’ imprisonment.
[2] The offending, which you have acknowledged, arose in this way. In the early hours of 19 May 2012, Police went to the hot salt water pools on Adams Avenue, Mt Maunganui. You and another person were found in the pools after having climbed the fence. While talking to you, the Police noticed there was alcohol in your vehicle contrary to a liquor ban which was in force. When the can of alcohol was removed from the vehicle, Police found a small bag of tablets in the ashtray. The vehicle was then searched under the Misuse of Drugs Act 1975 and Police located
110 pills; 5.04 grams of cannabis; ten small plastic bags; a set of digital scales and a cannabis bong.
[3] You admitted that the pills were party pills which you were selling for $45 each. You told the Police that you intended in relation to both the pills and the cannabis to use some yourself, give some to friends and sell some. Tests confirmed the presence of methcathinone in the tablets.
[4] The District Court declined jurisdiction to sentence you because the maximum penalty which that court could impose on these charges was one year’s imprisonment. The case was then transferred to this Court for sentence.
[5] In sentencing you I am required first to establish the starting point which takes account of the nature of your offending itself. In that exercise I am required to look at guidelines provided by the Court of Appeal; the features of your offending, both aggravating and mitigating, if any, in comparison with the sentences imposed in
broadly similar cases.[1] I then look at whether or not the starting point reached on
[1] R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].
that basis should be adjusted to take account of any aggravating or mitigating features which relate to you personally. Personal considerations include looking at
your history of offending and also considering the prospects of your rehabilitation and what steps you have taken in that regard.
[6] In this case I pay particular regard to personal factors, which I will refer to in a moment. Once I have made an adjustment for the personal factors, I will also look at what further discount should be provided in order to give you credit for having pleaded guilty to this offending. The nature of the discount depends on the circumstances of your pleas, including the timing of them.[2]
[2] Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.
[7] I also, in this case, need to have regard to the purposes of sentencing set out in s 7 of the Sentencing Act 2002 (“the Act”) and the sentencing principles in s 8 and other sections.
[8] The purposes of sentencing which I regard as particularly relevant in this case are: the need to hold you accountable for the harm done to the community by this type of offending; to promote in you a sense of responsibility for and acknowledgment of that harm; to denounce your offending; to deter you and others from committing the same or similar offences; and, more particularly, to assist you in your rehabilitation.
[9] I have particular regard in this case to the requirement in s 8(g) that I must impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences and orders set out in the Act. Imprisonment is, of course, at the top of the hierarchy followed, in descending order, by home detention, the community-based sentences of intensive supervision and community detention, and then sentences of community work and supervision.
[10] I have already indicated to your counsel and to the Crown prosecutor that I intend to impose community-based sentences which will achieve a balance between punishing you for drug-dealing offences which are serious, and providing you with an opportunity for rehabilitation and reform designed to encourage you not to reoffend in this way.
[11] In considering the appropriate starting point to reflect the nature of your offending, I have taken the approach that the three broad categories of offending described by the Court of Appeal in R v Terewi[3] should apply. Notwithstanding the element of personal use involved, I consider you should be treated as a small scale dealer for commercial gain. The two-and-a-half year starting point suggested by the Crown in this case is justified by reference to other cases which are broadly comparable.[4] For the benefit of counsel, they will be listed in the written transcript of these notes.
[3] R v Terewi [1999] 3 NZLR 62 (CA).
[4] R v Vigneau HC Wellington CRI-2011-085-4047, 7 December 2011; R v Day HC Hamilton CRI-2010-019-10271, 23 June 2011; R v Mann HC Invercargill CRI-2008-025-4692, 5 May 2009; Kelly v Police HC Christchurch CRI-2010-409-148, 26 August 2010; R v Holden HC Timaru CRI-2010-076-463, 4 November 2010.
[12] I propose to disregard your offending history which is largely in respect of driving offences and Mr Bates, realistically, does not submit that your age is a factor to be taken into account. It is accepted that you pleaded guilty at the first reasonable opportunity. You appear to be genuinely remorseful for your offending and to see your apprehension as providing an opportunity for you to address that behaviour. I consider, therefore, that a full discount of 25 percent should be allowed for your pleas, meaning that a sentence of imprisonment of 22-and-a-half months would be appropriate.
[13] That then engages the prospect of home detention as an alternative to imprisonment, as suggested to me by the Crown.[5] Home detention is not a soft option and, subject to concessions which might allow you to leave your home on some occasions, it amounts, in effect, to serving a sentence of imprisonment in your own home. In this case your parents’ home has been considered suitable for home detention.
[5] Sentencing Act 2002, s 15A.
[14] I am required by the Act to have regard to the desirability of keeping you in the community as far as it is practicable and consonant or consistent with the safety of the community.[6] You described the drug dealing leading to these convictions as
[6] Sentencing Act 2002, s 16(1).
entrepreneurial. There is no evidence that you were dealing on a large scale and that
you are so involved in this type of activity that you pose a threat to the community if any alcohol and drug issues are addressed.
[15] In addition to those matters there are three other important factors personal to you and to this case, which persuade me that I should impose a mix of community- based sentences somewhere short of home detention. The first of these is that you are securely employed and are highly regarded by your employers. Eight years ago, you began work with your current employers as an apprentice straight from school. Since completing your training you have remained as an electrician with the same employer, undertaking work which requires your employer to place a considerable amount of trust and confidence in you. You have the ability to work without supervision and on occasions you have been left in sole charge of what I understand to be a successful family business.
[16] Notwithstanding the shock and disappointment experienced by your employers, they have stood by you because you are regarded as a loyal and valuable employee. Your employers know you better than I do and I have no reason to doubt their judgment.
[17] Clearly you have reached a cross-road in your life. If you take the wrong turn you will undoubtedly be back before the Court. You could not expect your employers to continue to support you and you will get no sympathy from any Judge who sentences you. I am prepared, however, to help steer you on a path which, if you commit to it fully, will lead to your putting those matters behind you and realising the potential for leading a good and honest life which your employers and I believe you have. It will be over to you to see it through and you will have to take some punishment along the way.
[18] The next consideration is that you have demonstrated your ability to abide by orders of the Court by complying with the quite strict terms on which you were bailed after you first appeared in Court six months ago. Finally, you have taken the initiative to see a counsellor whose view is that you have no dependency on either alcohol or other drugs and that your offending was largely opportunistic. It is
particularly significant, given that any community-based sentence would be served from your family home, that you have a supportive family.
[19] Ordinarily I would be inclined to the view that home detention would be appropriate for this offending, given that arrangements can often be made for a sentence of home detention on conditions which allow the offender to remain in employment. In your case, however, the nature of your employment requires you to travel to different work sites making effective monitoring during the day impossible. That means that if home detention was imposed it is more than likely that you would have to leave your current employment; it would be unreasonable to assume that your job could be held open for you over the time you would be detained at home.
[20] I consider, therefore, that a sentence of community detention which effectively imposes a curfew upon you at night, but which gives you the freedom to go to work, will provide a measure of punishment and will hold you accountable for your offending and deter you and others in the future. To the extent that community detention provides you with greater freedom than home detention at the weekend, even if you are able to work, further punishment can be imposed upon you by requiring you to undertake a significant period of community work. That will mean the sacrifice of personal time in order to compensate the community for the harm done by illicit drug dealing.
[21] Finally, I propose to provide the probation officer with the means to guide you along the path of rehabilitation by imposing a period of intensive supervision with such special conditions as may be necessary to assist you. You have recently come out of long-term relationship and the supervision and counselling will assist you properly to find your feet again.
[22] Mr Kamizona please stand.
[23] On each charge you are sentenced to a period of six months’ community detention, which is the maximum period I can impose. That will be subject to a curfew from 7:00 pm until 7:00 am daily.
[24] You are also sentenced to 18 months’ intensive supervision with the special condition that you attend for assessment and complete such programmes as may be determined by your probation officer to address any drug or alcohol issues which might be identified, together with any further counselling or other programmes which the probation officer may deem appropriate.
[25] Finally, in recognition of the fact that the period of six months’ community detention is about half the period of detention you would have received if sentenced to home detention, you will undertake 300 hours of community work at the direction of the probation officer.
[26] All of those sentences, of course, will be served concurrently with each other.
[27] Mr Kamizona, your parents and your employers have shown confidence in you and they are willing to help. Take advantage of those gifts and do not let down those who care about you.
...........................................
Toogood J
6