R v L HC Dunedin CRI 2009-005-281

[2009] NZHC 2126

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2009-005-000281

REGINA

v

L

Hearing:         18 November 2009

Counsel:         L C Denton for Crown

M Newell for Prisoner

Judgment:      18 November 2009

SENTENCING REMARKS OF FOGARTY J

[1]      L    you  appear  for  sentence  having  pleaded  guilty  to possession for supply of cannabis, supplying cannabis and offering to sell cannabis. You are one of a number of persons who have been dealing in cannabis in the Balclutha area.  You are a person who deals in drugs partly to support your own drug use.

[2]      The police intercepted a number of text messages showing that you had been regularly offering cannabis for sale and making sales.  You have co-operated with the police and have acknowledged that you have been doing this for a period of

years.

R V L HC DUN CRI 2009-005-000281 18 November 2009

[3]      Under the principles of the Court of Appeal addressed in R v Terewi [1999]

3 NZLR 62 it is common ground between the Crown and your counsel that you fall into what is called Category 2, the middle of three categories where the starting point for sentence is a range between two and four years.

[4]      There is a difference between the lawyers as to where within the range you fit.  Mr Newell’s argument would place you somewhere between two to two and a half years.  Ms Denton argues between two and a half to three years.  She argues it should be three years because of your continuation in dealing after a fruitless search by the police exercising the search warrant.

[5]      Ms L   you have clearly been a persistent dealer in cannabis and there is an argument that  you should be imprisoned for this.   However, in recent years Parliament has altered the law to give greater weight and preference to sentences of home detention.  Home detention is still a very significant sentence and studies show that a long sentence of home detention is a very difficult sentence in fact to suffer.

[6]      The other circumstance is that you have two daughters aged 16 and 14.  One of your daughters has already got into trouble.  Clearly it is preferable for women who have children in their care to remain caring for them.  The evidence on the file indicates that it would be difficult and unlikely that the father of the children would be able to look after them.

[7]      There is a strong principle of consistency in sentencing and your counsel, Mr Newell, has selected 12 cases across New Zealand in the last 18 months similar to  yours,  all  of  which  have  been  sentences  of  home  detention.      Against  that Ms Denton has mentioned the sentence of one of the other persons apprehended in the Balclutha area, Mr Waihi, who was given 11 months imprisonment.  One should note that he will be unlikely to serve that full length of time because he will be paroled at an earlier date.

[8]      Mr Newell has submitted that the amount and level of sentences that he researched across the country may not have been placed before the sentencing Judge in that case.   Another couple, Mr and Mrs Gilson, were given respectively home

detention and community detention and a reason for that is again that they had children in their care.

[9]      The police oppose home detention and particularly oppose home detention into the dwelling in which the offending occurred.   That latter point is a policy position taken by the police not reflected in the Sentencing Act 2002.   What is reflected  and  must  be  taken  into  account  in  home  detention  is  the  risk  of re-offending.    In the case of dealing with cannabis using mobile phones to contact customers it seems to me generally, and in this case, that the risk remains essentially the same no matter which dwelling you reside at.

[10]     That risk is addressed by the fact that in a home detention sentence the probation officer has fairly regular contact, the regularity and frequency depending on the judgment of the probation officer.   You have agreed to entry by the probation officer into your house.   You will appreciate that any offending during the home detention sentence will have to be viewed extremely seriously by the Court.

[11]     You have written a letter essentially pleading to be sentenced in a way which keeps you looking after your children and you have said that you are not going to sell drugs any more.

[12]     I certainly hope that is the case but I suspect that there is a risk that it is not but I can only repeat again that you will find yourself in real trouble and you may well be separated from your children if you do offend in that manner.  It is those two teenage girls who you really need to direct your care and attention to.

[13]     For these reasons, I have concluded that the appropriate starting point of sentence is mid-way between the two competing positions between the Crown and your defence counsel of two and a half years.  You are entitled to a full one-third discount which would indicate a sentence of one year eight months.   That being below two years the Court is obliged to consider the suitability of home detention. For the reasons that I have given I am satisfied that home detention is not only suitable but in terms of the consistency of sentencing it is the appropriate sentence

and  I  am  reinforced  in  that  by  the  community  interest  in  the  two  girls,  your daughters, continuing to be in your care.

[14]     For  these  reasons, Ms  L  ,  I am  sentencing  you  to  ten  months  home detention.  I am now just going to turn, with the assistance of counsel and Ms Beale (probation officer), to the conditions:

•Travel directly to 6 Stewart Street, Balclutha and await the arrival of the probation officer and a Chubb security officer to complete the installation of the electronic monitoring equipment.

•To reside at 6 Stewart Street, Balclutha in compliance with the conditions of home detention and not move from that address without the prior approval of the Court.

•    To undertake employment as approved by the probation officer.

• To abstain from the consumption of alcohol and drugs (excluding those prescribed by a medical practitioner) for the full duration of home detention.

•To   attend   any  such   treatment/counselling  or   programme   as   may  be considered appropriate and as directed by the probation officer.  The details are to be determined by the probation officer.

[15]     I thank counsel for their assistance.

Solicitors:

Crown Solicitor, Dunedin

M Newell, Dunedin, for Prisoner