R v Logan

[2017] NZHC 994

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-008863 [2017] NZHC 994

THE QUEEN

v

CAMERON WILLIAM LOGAN

Hearing:	16 May 2017
Counsel:	AL McConachy for Crown PJB Winter for Defendant
Judgment:	16 May 2017

SENTENCING NOTES OF DOWNS J

Solicitors/Counsel:

Meredith Connell, Auckland.

PBJ Winter, Auckland.

R v LOGAN [2017] NZHC 994 [16 May 2017]

[1]      Mr Logan, you appear for sentence in relation to two charges: supplying cocaine, and  possessing  cocaine for the purpose of supply.    Both  were laid  on

31 August 2016.   Cocaine is a Class A controlled drug.   You pleaded guilty on

4 April 2017 following a sentence indication before me.   You will recall that no doubt.

[2]      Your  offending  came  to  light  as  a  result  of  a  Police  operation  named Operation Ceviche.  You were identified as sourcing cocaine from Mr Lay, which you would on-sell.   Between 1 April and 31 August 2016 you supplied a total of

30 grams of cocaine to others.  Police executed a search warrant at your home on

31 August 2016.   They located nine snaplock bags, each containing one gram of cocaine.   Police also located $11,950 in cash, digital scales and unused snaplock bags.  You exercised your right to remain silent.  It is common ground at least some of the cocaine was for your own consumption.

[3]      I settle upon a starting point of two years and nine months’ imprisonment.  I

do so for three reasons:

(a)      First, a starting point between two and a half years and three and a half years’ imprisonment was adopted in a case called R v Kilgour,1 which involved two charges of supplying not more than 28 grams of cocaine.

(b)Second, the Court of Appeal has held a guideline judgment in relation to methamphetamine sentencing bands should be utilised as a check in this area.2     You fall towards the bottom of band two of that case, which creates a broad range between three and nine years imprisonment.

(c)      Third, a starting point of three years was adopted by the District Court for a co-offender, Mr Noon, who supplied 70 grams of cocaine.  You,

of course, sold less.

1      R v Kilgour HC Dunedin S4/00, 2 November 2000.

2      Clarke v R [2013] NZCA 473 at [22]–[25].

[4]      I turn now to mitigating features.

[5]      The Supreme Court has emphasised personal circumstances are subordinated to the sentencing imperative of deterrence when people deal commercially in controlled drugs.3   You have no relevant previous convictions.4   You are attempting to deal with your use of cocaine through counselling (with Community Alcohol and Drug Services).  The pre-sentence report records a genuine motivation on your part to change your behaviour.  I commend you for that.

[6]      However,  the  same  report  says  you  minimise  the  significance  of  your offending.   I pause at this juncture to repeat cocaine is a Class A controlled drug. Dealing in a Class A controlled drug is punishable by life imprisonment.  The fact cocaine is apparently widely available within the entertainment industry, and apparently seen by some in that industry to be acceptable, does not make it so.  The rule of law presupposes equal treatment.  There are no special rules for people with certain occupations.

[7]      Overall, however,  your pre-sentence report is positive.   It recommends a sentence of home detention.   In light of your previous good character and rehabilitative efforts, I discount three months from the starting point.  Your guilty pleas attract a further 20 percent discount.  They were prompt, but they could have been made earlier. The prosecution case was strong.

[8]      This leaves a finite sentence of 24 months’ imprisonment.  And, jurisdiction for home detention.  Mr Winter urges that. The Crown abides.

[9]      I am satisfied home detention is appropriate.   You are, essentially, a first offender.  You are making progress to rehabilitate.  You have support—that is apparent from people present in court today. And, the amount of the drug is not such as to preclude a sentence of this nature.  But, you have avoided imprisonment by a fine margin.  I repeat I am troubled by your view the offending is not particularly

serious.  Mr Winter submitted this may reflect your positive disposition, which may

3      R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

4      The defendant has two convictions for offending contrary to the Land Transport Act, one of which is stale.

have been misinterpreted by the writer of the pre-sentence report.   I have trouble accepting that submission.

[10]     The question then becomes the length of the term of home detention.   A co-offender, Mr Noon, was sentenced to a term of 12 months’ home detention.  He of course dealt in 70 grams of the drug.  You dealt in 30 grams.  Having regard to that, Mr Winter submits that there should be some amelioration of the length of the term in order to ensure there is no disparity between you and Mr Noon.  He advances a range of between six to eight months.

[11]     I regard that range as inadequate.  You accept you have lapsed at least once by consuming cocaine since arrest.   It is important there is a regime that provides adequate oversight of your behaviour.  And in the end, all cases must turn on their own circumstances.  There is no escaping from the fact you dealt in a large amount of the drug.  I consider an appropriate term is 10 months’ home detention.  That is the sentence I impose.

[12]     You are also to undertake drug and alcohol counselling as recommended by the Probation Service.  By consent, the cash found at your home is forfeited pursuant to the Misuse of Drugs Act 1975. The cocaine will of course be destroyed.

……………………………..

Downs J