R v M HC Napier CRI-2005-020-2391

[2005] NZHC 91

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2005-020-2391

THE QUEEN

v

M

Hearing:         5 October 2005

Appearances: R B Philip for the prisoner

D M Kerr for the Crown

Judgment:      5 October 2005

SENTENCE OF MACKENZIE J

M  ,

[1]      You appear for sentence on one charge of possession of cannabis plant for the purpose of supply.  You pleaded guilty to that charge.

[2]      The facts are that on 17th May 2005 police executed a search warrant at your address in Hastings.  During that search they located a plastic bag containing nine snaplock plastic bags which each contained loose cannabis.  In the same bag were 49 tinnies.   The bags containing the loose cannabis ranged in weight from 29 to 33 grams.  Also located was a white bag which contained 93 tinnies, and other items located were an electronic set of scales, 32 cut-up pieces of tin-foil, rolls of tin-foil, and numerous snaplock plastic bags.   In another room was a bag containing 17

tinnies and a notebook of the type commonly referred to as a tick book, and inside it

R V M HC NAP CRI-2005-020-2391  5 October 2005

was $440 in notes.  The combined weight of the cannabis located at the address was

475 grams.  On 18th May, police executed a search warrant on another address, and located in a locked shed at the rear of that address were 4.467 kilograms of cannabis head and 10.883 kilograms of loose cannabis material.  It was either stored in plastic bags or packaged in the form known as tinnies.  In total there were 50 tinnies located in the shed.  You have admitted possession of all of that cannabis and have pleaded guilty at an early stage.

[3]      Your personal circumstances are covered in some detail in the pre-sentence report, and I will not describe them in detail, although I have, of course, taken all of those matters into account.   You had in recent times become involved with your church  and  with  work  in  that  church,  and  that  seems  to  have  had  a  beneficial influence on you in that your conviction history, which is reasonably substantial for the period from 1974 through to 1991, has markedly improved and there is only one sentence, but unfortunately for you for possession of cannabis, in the period since

1991.  That was in 2003.  You have explained a number of factors which have led you to this situation.

[4]      Your probation officer recommends community work.   While I have full regard to the injunction in s 16 of the Sentencing Act that a community-based sentence is to be preferred where available, this was serious offending and a non- custodial sentence is out of the question.  Both counsel submit, and I agree, that this offending falls into the second category in R v Terewi [1999] 3 NZLR 62 and that a starting point of the order of three years is appropriate. I agree and I fix a starting point of three years. That takes into account the circumstances of the offending itself, and I find beyond the quantities involved, which were considerable, no particular aggravating features which I have to take into account in fixing that start point.

[5]      I come to mitigating features.   There is your early guilty plea.   You have expressed remorse at the falling by the way on this occasion.  As I have said, your record in recent years has been such that I regard that as a mitigating feature.

[6]      Taking  all  of  those  matters  into  account,  I  consider  that  an  appropriate discount from the starting point of three years is a period of one year, leaving a term of two years, which is the term that I impose.

[7]     Your counsel has sought leave to apply for home detention.   In the circumstances, particularly because this was offending within the home, and also taking into account that you are currently residing with a friend and apparently, to some degree at least, estranged from your wife, who your counsel says you wish to return to, I do not consider that the circumstances are such that leave should be granted.  Leave is accordingly declined.

[8]      Counsel for the Crown also seeks an order for forfeiture of the cash located totalling $440, and an order for forfeiture is accordingly made.

“A D MacKenzie J”

Solicitors

Bate Hallett, Hastings, for the prisoner

Crown Solicitor, Napier, for the Crown