R v Litt HC Hamilton CRI 2011-024-326

[2011] NZHC 2064

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2011-024-326

THE QUEEN

v

RYAN MICHAEL JOSEPH LITT

Hearing:         25 August 2011

Counsel:         J O'Sullivan for Crown

G Walsh for Prisoner

Judgment:      25 August 2011

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Hamilton
Counsel:

G Walsh, Hamilton

R V LITT HC HAM CRI 2011-024-326 25 August 2011

Introduction

[1]      Ryan Michael Joseph Litt, you appear for sentence today having pleaded guilty to one charge of possessing the Class C controlled drug, cannabis for sale. The District  Court  declined to  sentence  you  on  the grounds  that  the  maximum penalty it could impose was likely to be inadequate. Your sentencing was transferred to this Court, where a maximum penalty of eight years imprisonment is available.  I hope that brings home to you the seriousness of the offending in which you were engaged.

The facts

[2]      On 11 April 2011, at about 1.50pm, police officers executed a search warrant at 5 Te Putu Street, Taupiri, where you were living with your grandparents.  There were  others  in  your  bedroom  when  the  search  was  undertaken.    A number  of allegations were, I understand, made against you arising out of the way in which you conducted yourself while the search was in progress.  My understanding is that they have been resolved and I do not intend to dwell on them or take them into account.

[3]      A quantity of cannabis totalling just over one kilogram was located in various parts of the house.  On my calculation 971 grams of that was found in various parts of your bedroom.  The cannabis was accompanied by the usual indicia of dealing; examples  of  which  are  snap-lock  bags,  tinfoil  and  digital  scales.    No  money, however, was located.

[4]      The clear impression that this cannabis was possessed for sale was reinforced by the discovery of a locked room in the garage to the house.  29 mature cannabis plans (weighing 84 grams) were found hanging from chicken wire in that room and an electric fan was being used to dry it.

[5]      As I have said, the cannabis located at the address weighed just over one kilogram.   There are 28 grams in one ounce.   Therefore, around 36–37 ounces of cannabis were found.  An ounce is a popular quantity of cannabis for sale purposes.

The Crown suggests that one ounce will sell, on the street, for between $280 and

$500.   Using the lower end of that band, the street value was something around

$10,000.

Submissions

[6]      The Crown has submitted that your offending falls in the middle range of category 2 of a guideline judgment of our Court of Appeal, R v Terewi.[1]   There are decisions of a higher Court that I am required to apply for sentencing purposes and that is one of them.  The band in issue is between two and four years starting point and reflects small-scale commercial cannabis operations.  The Crown has submitted that the amount of cannabis located, the way in which it was packaged or stored and the existence of a drying room are indicative of commercial activity that was continuing at the time the search warrant was undertaken.  While not sophisticated,

the operation was nevertheless well organised.

[1] R v Terewi [1999] 3 NZLR 62 (CA) at para [4].

[7]      The Crown has  submitted that the Court should take a starting point of three years imprisonment and give an appropriate credit for your early guilty plea.  The Crown takes a neutral stance in relation to the possibility of a sentence of home detention.

[8]      Mr Walsh, on your behalf, accepts that the offending falls within the band to which I have referred.  He suggests, however, that a starting point of something in the order of two years six months may be more appropriate.  Mr Walsh puts forward your relatively early guilty plea, your remorse, your relative youth, the existence of a strong support network and the fact that you have self-referred for assistance with regard to your drug problems as reasons for additional credit.

[9]      Mr Walsh has submitted to me that a sentence of home detention would adequately respond to the offending.  He refers to a positive pre-sentence report.

Analysis

[10]     In drug related offending where commercial sale is involved, the Court is required to take account of the need to denounce the offending, to deter you and others from committing offences of this type and to hold you accountable for your actions.  It is often said that little weight can be given to personal circumstances in cases involving drug dealing.  Having said that, I would like to acknowledge the fact that you seem to be in a stable relationship with a supportive partner and there is certainly evidence that you have a caring relationship with your child.  Those factors are relevant because I am also required to impose the least restrictive sentencing outcome appropriate in the circumstances.

[11]     The aggravating factors all relate to the quantity of cannabis for sale.  That is something that goes to the appropriate starting point.   I agree that this is a case involving small scale commercial dealing.   I take a starting point for sentence of three years imprisonment.

[12]     In mitigation, I take account of your relatively early guilty plea.  You were first charged with others present at your home.  After appearing in Court, an amendment was made and you pleaded guilty on 1 July 2011.   I consider that an appropriate credit for the guilty plea is 25%.

[13]     I have doubts about the extent of the remorse that you have expressed.  The pre-sentence report suggests there remains a lack of insight into the seriousness of the offending, though there is an acknowledgement of a financial motive for it.

[14]     Some credit should be given for the fact that you have taken steps to change your lifestyle through Wahi Whaanui, alcohol and drug counselling.  You are also entitled to some credit for your relative youth.   But youth is not something that continues forever.   At some point you have to take responsibility for your own actions and grow into a mature adult.  With a partner and a child, it is time that you made that transition from youth to adult and do it quite quickly.

[15]     Combining the credit for youth and self-referral for counselling, I allow a period of three months.  That is before the deduction of a credit for the guilty plea which would leave a sentence of two years nine months imprisonment.  The 25% reduction I round to nine months.   That leaves an end sentence of two years imprisonment which brings into play the possibility for home detention.

[16]     You will have heard the exchange that I had with your lawyer about home detention.    I  am  always  reluctant  to  grant  home  detention  in  cases  where  the offending has taken place in the home.  Obviously, a risk is present as to whether the offending will be repeated.  Your mother, however, has given me a degree of reassurance by making it clear that she lives very close to where you will serve home detention and would be prepared to take regular steps to supervise you during this period.  I have no doubt that she is being truthful in saying that to me.

[17]     So, the question I have to answer is whether there is a need for imprisonment to provide adequate denunciation, deterrence and accountability for the offending. By a  very  narrow  margin  I intend  to  give  you  the  opportunity  of  serving  this sentence by home detention.  I am taking a chance and I hope that you will repay the opportunity you have been given by developing into a citizen who can be proud of his role in the community.  You are obviously an intelligent man and you need to realise your potential promptly.   The sentence will however be the maximum available, one of 12 months home detention.  During that period you will have the opportunity to undertake counselling for your drug-related problems.

Result

[18]     Mr Litt, on the charge of possessing cannabis for the purpose of sale, you are sentenced to 12 months home detention.   That shall be served at 1A Green Lane, Taupiri. After completion of this hearing you must travel directly to that address and await the arrival of a probation officer and a security officer.

[19]     Your sentence of home detention will be on standard terms but will include conditions that you not move from the address without the prior written approval of a probation officer, not consume or possess alcohol or illicit drugs for the duration of

your sentence and to attend an assessment and any treatment or counselling programmes deemed necessary to address your drug-related problems.   You must also complete any courses to the satisfaction of a probation officer and programme provider.

[20]     You need to be very clear that any breach of the home detention conditions could result in the Crown applying for you to be re-sentenced.  If that happens you will inevitably go to jail.   The future is now in your hands and you are the only person who can determine which road you will go down.  You are at a cross-roads. Make the right choices.

[21]     Stand down.

P R Heath J