R v M HC Invercargill Cri-2010-025-904

[2010] NZHC 1343

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2010-025-000904

REGINA

v

M

Hearing:         3 August 2010

Counsel:         M G Sinclair for Crown

S Vidal for Prisoner

Judgment:      3 August 2010

SENTENCE OF PANCKHURST J

Ms M  :

[1]      On 10 March the police executed a search warrant at an address which was occupied by the prisoner and her aunt.  The aunt was at home at the time.  She took the police to the prisoner’s bedroom and pointed them in the direction of cannabis tinnies and ounces of cannabis which were stored in various different places.  There were five ounces of cannabis in one place and 12 ounces in another and a total of 30 tinnies split into two separate amounts.

[2]      The aunt then showed the police a set of electronic scales which were in the kitchen area.   Initially she said that cannabis was under her control and in her possession and indicated that she had been dealing in it.  However, the following day both the aunt and Ms M   went to the police station.   At this stage a different account was given.  The prisoner said that the cannabis was hers.  She also explained

that she was selling it because she was in debt and she needed money.  As one would

R V M HC INV CRI-2010-025-000904  3 August 2010

expect on this basis she was charged with the present offence of possessing cannabis for the purpose of supply.

[3]      The total amount of the cannabis that was seized weighed 500 grams or a little over one pound.   Depending how it was sold, whether in ounce lots or as tinnies, it has a value which is estimated in the sum of between $4,000 to $8,000. My own calculations suggest a figure perhaps a little under that upper amount.  On any view of it this was a significant amount of cannabis which was in the prisoner’s possession for the purpose of supply to others.

[4]      There are two complications which I need to deal with now before I turn to Ms M  ’s personal circumstances.   The first concerns her plea in the District Court.  On 7 May she signed a request to plead guilty prior to a committal hearing. The plea was actually entered a few days later on 18 May at which time the Judge also recorded a conviction.

[5]      In advance of the sentencing this morning I raised with counsel whether this entry of  a  conviction  was  significant  and,  in  particular,  whether  it  impacted  in relation to the maximum penalty available to this Court in imposing sentence.  What occurred after entry of that summary conviction was that Judge Phillips, on 1 July, declined jurisdiction.   By then he had seen the sentencing submissions and also concluded that he did not have jurisdiction to sentence above the summary maximum and he then committed the prisoner for sentence in this Court.

[6]      Counsel have referred me to various decisions of the Court of Appeal.  Two of them, R v McLeod 1  and R v Hoe,2  were relied upon by Ms Vidal this morning. Whereas Ms Sinclair has drawn my attention to the case of R v Webber.3    I regard Webber as the decision closest in point.   It seems to me that it too concerned a situation where the conviction was entered at an early stage and without thought for the consequences.  Subsequently when a Judge who was to sentence the prisoner saw

the sentencing submissions, a decision was taken to commit the prisoner for sentence to this Court.

1      R v McLeod [1988] 2 NZLR 65.

2      R v Hoe [2001] 2 NZLR 633 (CA).

3      R v Webber [1999] 1 NZLR 656.

[7]      Against that background the Court in Webber said this:

We are satisfied that the District Court Judge’s initial notation must be regarded as erroneous.  He had no jurisdiction under Section 153A [of the Summary Proceedings Act 1957] to enter a conviction.  He was limited to recording the guilty plea and adjourning the proceedings for sentencing following the Section 28F processes.  It cannot possibly be inferred from his brief note that having acted under Section 153A the District Court Judge then turned to Section 28F and without hearing any submissions or having relevant  sentencing  material  before  the  Court  accepted  jurisdiction  to sentence and was proceeding to sentence.

I consider that those observations apply equally here.  Accordingly I treat the entry of summary conviction as an error, and an error in excess of jurisdiction, given the circumstances that prevailed at the time.

[8]      The second matter concerns the position of the prisoner’s aunt who I am told is a woman aged 31 years.   She has, in recent times, pleaded guilty to a similar offence upon arraignment.  She therefore awaits sentence in the District Court where the sentencing maximum will be the same as is available to me in this Court.  But her sentencing is not to occur until November.   As I have already commented to counsel,  there  would  have  been  advantage  in  the  two  sentencings  proceeding together.   It is not immediately clear to me on what basis the other offender has entered a plea of guilty.   She, I am told, has a previous conviction for cannabis dealing.  At first sight this case has all the hallmarks of one where a young offender is accepting responsibility for someone else but, to her credit, the prisoner has not permitted her counsel to advance that argument.  Rather, her stance is that she is the primary offender, although obviously her aunt also accepts that she was involved in this activity.

[9]      Ms M   is 18 years of age.  There have been some problems in her life, particularly in recent times.  She is an admitted user of cannabis and it is that which, it appears, has led her into this offending.  She was short of money, cannabis is a costly commodity, she commenced to deal it seems in order to both raise money which she needed for other reasons, but also to ensure her supply of cannabis which she was using on a regular basis.  All of this, it seems, occurred at a time when she was also involved in prostitution.  Fortunately that continued for only a brief while. She then sought medical help and was prescribed an ante-depressant for depression

and this, Ms Vidal has told me, preceded the subject offending.   She is now in regular employment in a secretarial or administrative position at the Murihika marae where she works six hours a day.  That employment remains open to her.

[10]     The   pre-sentence   report   impresses   me   as   an   insightful   and   realistic assessment of the case.   The end recommendation is for home detention, coupled with some special conditions.   Ms M   has only, effectively, one previous conviction for driving while her licence was revoked.  This was in June of last year. She was sentenced to community work.  She was then breached in relation to that community work sentence in November of 2009, producing a second conviction.  In the end result she is still subject to a community work sentence, in relation to which there are 110 hours outstanding, although that figure may be further reduced by now.

[11]     Counsel are in broad agreement that this case falls squarely within the second category identified in R v Terewi 4  and that a starting-point for sentencing is of the order of two and a half years’ imprisonment.  Ms Vidal, however, has submitted that some recognition should be given for the prisoner’s age coupled, I think, with the circumstances that I have already described, the predicament she was in at the time that she became involved in this.  And, of course, there is also an allowance to be made for her guilty plea which was entered on request and at a time when she was entitled to near the full one-third discount.

[12]     After making allowances for these aspects, Ms Vidal’s submission was that a sentence of the order of about 15 months’ imprisonment would be appropriate.  But then the submission was advanced that this is a case for home detention.

[13]     In anticipation of the sentencing I have been referred to numerous recent decisions of Judges sitting in this Court where home detention was imposed for what can be described as serious cannabis offending.   In the main the offenders were facing charges of cannabis cultivation.  In some instances the Judge adopted a start point within category 3 of Terewi, but nonetheless imposed an end sentence of home detention.  To my mind, the cases demonstrate on the one hand the existence of a tension  when  measured  against  the  reasoning  in  Terewi,  but  also  a  consistent

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

approach in that the offenders were people who had all taken steps to deal with their situations in anticipation of the sentencing and, otherwise, had positive pre-sentence reports and backgrounds.  So I see the issue in this case of whether Ms M   is in a comparable situation where I can responsibly consider home detention as an appropriate sentencing option.   Unfortunately there are no recent Court of Appeal decisions which deal with cannabis offending where this same issue of home detention has arisen.

[14]     The home detention appendix contemplates that if that sentence is imposed the prisoner would reside at a different address from that where she was previously living with her aunt.   More importantly, I have been told this morning that the prisoner is now able to serve such a sentence at her parents’ address, subject to its approval by the Probation Service which would take about two weeks.

[15]     With reference to her personal circumstances, I accept that she is young and to my observation immature, or certainly not wise beyond her years.  I accept what has been said about her recent past and the impacts that that has had upon her, because those matters are also referred to, if a little obliquely, in the pre-sentence report.    I  am  also  influenced  by  the  fact  that  she  has  no  previous  relevant convictions.    Accordingly,  it  does  seem  to  me  that  this  was  a  deliberate  and foolhardy excursion into cannabis offending, at a time when she was living in the home of an aunt who apparently is much more mature and also has a background which involves drug offending.  This combination of circumstances has, in the end, persuaded me that the normal sentence of imprisonment can be avoided in favour of home detention in this case.

[16]     You are sentenced to eight months’ home detention.  In the first instance you will go directly to 10 Falcon Street, Invercargill to await the arrival of probation and security officers, but I also direct that an appendix be obtained in relation to your parents’  home  address,  which  I  consider  should  be  substituted  as  the  sentence address if possible.  That is a matter that can be dealt with on the papers as soon as that appendix is available.

[17]     I  make  as  well  the  further  special  conditions  recommended  in  the  pre- sentence report concerning alcohol and drug use during the term of the sentence and imposing a requirement to undertake and complete alcohol and drug counselling to the satisfaction of your probation officer and treatment provider.  I should mention in that regard that Ms Vidal explained that there has been a willingness to undertake that form of treatment prior to the imposition of this sentence, but that the providers prefer that people do not commence a course while they are awaiting sentence, for obvious reasons.

[18]     Ms M  , you have been given a chance, so make the most of it.