R v Leech HC Dunedin CRI-2011-012-003416

[2011] NZHC 1263

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-012-003416

REGINA

v

LEON DEAN-MICHAEL LEECH

Hearing:         29 September 2011

Appearances: R Smith for Crown

A Stevens for Prisoner

Judgment:      29 September 2011

SENTENCE OF HON JUSTICE FRENCH

[1]      Leon Dean-Michael Leech, following pleas of guilty you appear for sentence this morning on one representative count of selling cannabis and five charges of possession for supply of cannabis.  The maximum penalty for each of these offences is a term of imprisonment of eight years.  The reason you are being sentenced in this Court and not the District Court is because a District Court Judge has declined jurisdiction.

Facts of the offending

[2]      For a period of three years and nine months between August 2007 and May

2011 you and another offender, Mr Brundell, were involved in the distribution of cannabis in the Dunedin area.   The statement of facts describes it as being on a

substantial scale.

R V LEECH HC DUN CRI-2011-012-003416 29 September 2011

[3]      The  cannabis  was  sourced  by  Mr  Brundell  from  the  North  Island  and transported to you in Dunedin – sometimes by car, sometimes by public transport, and in the later stages by a paid courier.

[4]      You packaged the cannabis when it arrived into smaller amounts and sold it from  your  home  in  the  form  of  tinnies  ($25),  ounces  ($350-$400)  and  pounds ($5000-$5600).   You would then forward some of the money back through bank accounts of various associates.  The police have not yet been able to identify all of the bank accounts involved.  Analysis of those bank accounts which the police have been able to identify reveals 90 cash deposits between August 2007 and May 2011. These are said, by your counsel, Mrs Stevens, to total $99,445.  The police have a different figure of $104,000, but nothing turns on that.   Whatever the figure is, it does not, as I have said, include all bank accounts yet to be identified, nor does it include cash sent by the courier.

[5]      The total amount of cannabis involved in the supply was between 16 and 19 pounds. The value is estimated at being between $89,600 and $106,400.

[6]      The value placed upon the cannabis dealing as a whole by the Crown is between $193,600 and $210,400.  Your counsel puts it, taking the lower levels, at

$186,945.

[7]      It is agreed that your total profit was in the vicinity of $50,000.

[8]      When interviewed by the police you were co-operative and admitted the offending, but offered no explanation. As for Mr Brundell, I am informed that he has pleaded guilty but has yet to be sentenced.

Pre-sentence report

[9]      I have read the pre-sentence report, along with the additional information that Mrs Stevens has supplied.  The information tells me that you are 37 years of age, a beneficiary with five children.  You only became a beneficiary because you took on the care of your youngest daughter.  Her very positive school report suggests you are at least in some aspects a good parent.

[10]     You have 11 previous convictions.  Six of those involve cannabis offending occurring between 2004 and 2009.  They are largely for possession, but do include a conviction for cultivation.

[11]     According to the report, you have a clear level of insight into your offending and are assessed at low risk of further offending.

[12]     You claim that your involvement in cannabis grew out of a spinal injury, and your use of cannabis as a relaxant.  Once surgery reduced your need for a pain killer, you had excess cannabis so started dealing for profit, and it all escalated from there.

[13]     While the report notes that you do not display any specific remorse, you did acknowledge the negative effect your actions are having and will continue to have on your family.

[14]     The report concludes by recommending a term of imprisonment.

Sentencing analysis

[15]     I turn now at this point to explain the sentencing decisions that I am required by law to make today.

[16]     First I am required to apply what are called the principles and purposes of sentencing.  They are found in the Sentencing Act 2002.  As regards the purposes of this sentencing, they are:

(i)       to hold you accountable for what you have done;

(ii)       to denounce drug dealing on behalf of the community;

(iii)to deter you, to put you off, from ever doing this sort of thing again, and to deter others who might be like-minded.

[17]     As regards the principles of sentencing, the key principles are the need to take into account the seriousness of your offending, the need for me to be consistent

with sentences imposed by other Judges in similar cases and the need to impose the least restrictive sentence that is appropriate in the circumstances.

[18]     Those are the key principles and purposes of sentencing.

[19]     In applying those principles and purposes, I am required to follow what has loosely been called a two-stage approach.  In the first stage I have to fix what you have heard the lawyers call the starting point.  All that means is simply the sentence which reflects the culpability or if you like the blameworthiness of your offending. That is the first stage.

[20]     The second stage is that, having fixed that starting point, I then have to decide whether it should be increased or reduced on account of factors that relate to you personally as distinct from your offending.

The starting point

[21]     On this I have to be guided by a Court of Appeal decision,[1]  which sets out bands of offending for this type of crime.  Selling or supplying for profit is covered by bands 2 and 3.  Band 2 is small-scale offending for a commercial purpose and has a starting point generally of between two and four years’ imprisonment.   Band 3, however, involves large-scale offending, usually with a considerable degree of sophistication and organisation.  Band 3 has a starting point of four years or more.

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

[22]     Initially,  the  Crown’s  view  was  that  you  were  sitting  on  the  borderline between the two categories.  Mr Smith told me this morning that he has modified that stance to a certain degree and now considers you to be in the upper level of band

2.  He advocates a starting point of three and a half years.

[23]     Mrs Stevens agrees that you are in the upper level of band 2.  She, however suggests an appropriate starting point is three years, having regard to the fact that there was no particular sophistication involved.  In saying that, she is referring to the

reliance on public transport and the like.

[24]     Having regard to the duration of the offending, the volume and the values involved, as well as other similar cases, I have come to the clear view that an appropriate starting point is three and a half years’ imprisonment.

[25]     My starting point, before considering factors relating to you personally, is therefore three and a half years’ imprisonment.

Personal factors

[26]     Unfortunately there is an aggravating factor relating to you personally, and that is those previous convictions.  Mrs Stevens, as you will have heard, submitted that no uplift is justified.  I disagree, but accept that given they were dealt with by way of fines, any uplift should be modest.  I therefore consider an appropriate uplift to be only three months.

[27]     As regards mitigating factors, Mrs Stevens has identified a number of factors which in her submission justify a discount in the order of 30 per cent. They are:

(i)the fact that you have been assessed at low risk of further offending;

(ii)the reasons why you became involved with cannabis in the first place;

(iii)the fact that you had a history of employment before going on a benefit and that you have been a good father;

(iv)     your positive attitude; (v)         your early guilty plea;

(vi)your expressed willingness to engage in counselling for drug use, despite the fact that no harmful pattern of abuse has actually been detected.

[28]     Mrs Stevens has said everything that could possibly be said on your behalf, and she has said it well.  It is, however, established that generally speaking, personal circumstances of those involved in drug dealing carry little weight.   With the exception of the early guilty plea, I do not agree that any of the other matters raised by Mrs Stevens are sufficiently compelling to warrant a discount.

[29]     Your guilty plea is to your credit.  It was very early.  On the other hand, the Crown case was particularly strong, and that is something the Supreme Court has said in a case that I am to take into account.[2]

[2] Hessell v R [2011] 1 NZLR 607.

[30]     Weighing it all up, I have decided the most just course is to give a discount of

20 per cent for the early guilty plea.

[31]     That means that I have arrived at an end sentence of a term of imprisonment of three years.

Sentence

[32]     Leon Dean-Michael Leech, you are convicted on each of the counts before the Court and sentenced on each to a term of imprisonment of three years.  Those terms are of course to be concurrent.

[33]     In  addition,  I  make  forfeiture  orders  ordering  forfeiture  of  your  motor vehicle, registration number DPN265.  I also make an order for forfeiture of the cash that was found in your possession.

Solicitors:

Crown Solicitor’s Office, Dunedin

A Stevens, Dunedin