R v MacDonald HC Dunedin Cri-2010-002-715
[2011] NZHC 41
•10 February 2011
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2010-002-000715
R E G I N A
v
TONY JOHN MACDONALD
Appearances: L C Denton for Crown
B Dawkins for Prisoner
Judgment: 10 February 2011
SENTENCE OF HON JUSTICE FRENCH
[1] Tony John MacDonald, following pleas of guilty you appear for sentence this morning on three charges:
[i] Possession of cannabis for supply, the maximum penalty for
which is eight years’ imprisonment.
[ii] Cultivation of cannabis, the maximum penalty for which is seven years’ imprisonment.
[iii] Unlawful possession of a firearm, the maximum penalty for
which is four years’ imprisonment.
R v MACDONALD HC DUN CRI-2010-002-000715 [10 February 2011]
Facts of the offending
[2] In August last year police executed a search warrant at your address. There they found 36 ounces of cannabis comprising the following:
[i] Eighteen $50 deal bags each containing 5-7 grams of cannabis. [ii] Eight ¾ ounce bags, each containing 19-28 grams.
[iii] One bag containing 223 grams. [iv] One bag containing 455 grams.
[3] Police also discovered ten small cannabis plants located in a grow shed, as well as $690 in cash, and paraphernalia including a transformer, potting mix, heat lamp and a power cord running into the shed.
[4] When spoken to by police you claimed the cannabis was for your own personal use but that you had supplied approximately five ounces to an associate.
[5] In addition to the cannabis the police search revealed a .22 rifle. One live bullet was in the magazine attached to the rifle, with another 190 rounds in the house. You do not hold a firearms licence.
[6] Police appear to accept that the firearm was not related to the drug offending and that you were using it for rabbit shooting.
[7] Finally in this account of the relevant facts I note that while you persisted in your story about the cannabis being solely for personal use to the probation officer, your counsel, Mr Dawkins, says you have confirmed now that is not correct and you accept the police summary of facts.
[8] There is therefore a commercial element to this offending, albeit at a relatively low level.
Pre-sentence report
[9] The pre-sentence report tells me you are 30 years of age, a self-employed shearing contractor and the father of five children, three of whom live with you, including ten-month old twins. You have three previous convictions, two of which involve drug dealing. In February 2007 you were convicted of cultivating cannabis and possession of cannabis for supply. On that occasion you were sentenced to a term of imprisonment of two years with leave to apply for home detention. It appears from your instructions to Mr Dawkins that you never in fact undertook home detention because of problems in obtaining a suitable address in time.
[10] The report writer assesses you as having low motivation to change and being at moderate to high risk of reoffending. No expressions of remorse were noted, and you are considered to have a harmful pattern of drug use. The report recommends imprisonment with special conditions.
[11] In addition to the probation report, I have read a reference Mr Dawkins supplied this morning. The reference is very positive indeed. It speaks highly of you both as a worker and as a family man. As I said to Mr Dawkins after I had read the letter, it is indeed very sad that someone should put all of that at risk.
Sentencing analysis
[12] I turn now to explain the sentencing decisions I have to make today.
[13] First and foremost I am required to apply what are called the principles and purposes of sentencing under the Sentencing Act 2002. As regards the purposes of sentencing, they are:
i) to hold you accountable;
ii) to denounce drug dealing on behalf of the community;
iii)to deter you from doing this again, and to deter others who might be like-minded.
[14] As regards the principles of sentencing, the key principles of particular relevance are the need to take into account the seriousness of the offending, the need for consistency with other like cases and the need to impose the least restrictive outcome appropriate in the circumstances. Those are the key principles and purposes of sentencing.
[15] In applying those principles and purposes, I am required to follow what has been called a two-stage model. In the first stage I have to fix what you will have heard the lawyers call the starting point. What that simply means is the sentence which reflects the culpability or blameworthiness of your offending. That is the first stage, fixing the starting point.
[16] The second stage is that, having fixed that starting point, I am then required to consider whether there should be any adjustment to it, either upwards or downwards, on account of your personal circumstances as distinct from the circumstances of your offending.
[17] So turning to stage one: fixing the starting point.
[18] On the drug charges I must be guided by a Court of Appeal decision[1], which sets out bands of offending for this type of offence. The lawyers agree, and I accept, that you sit at the bottom of band 2, justifying a starting point of two years’ imprisonment.
[1] R v Terewi [1999] 3 NZLR 62 (CA)
[19] Turning then to the second stage: the factors relating to you personally.
[20] Unfortunately there is a significant aggravating factor relating to you personally, and that is the fact of those previous recent drug convictions in 2007. On account of those previous convictions, I consider an uplift of a further six months’ imprisonment is warranted.
[21] That brings me to an indicative sentence for the drug charges of 30 months.
[22] As regards mitigating factors relating to you personally, you are entitled to a significant discount on account of your early guilty plea. As you will have heard, there is a possible issue as to the exact amount of the discount. That is because at the time you entered your guilty plea, a Court of Appeal decision[2]said you should receive a discount of 33.3 per cent. However, since that time, that decision has been overruled and the Supreme Court has held that the maximum discount possible on account of an early guilty plea is 25 per cent[3].
[2] R v Hessell [2010] 2 NZLR 298 (CA)
[3] Hessell v R [2010] NZSC 135
[23] So the issue is, does that Supreme Court decision apply retrospectively?
[24] Differing views have been expressed and I am grateful to Mr Dawkins for the research he has undertaken regarding the authorities. It is clear from those authorities[4] that the majority of them appear to favour the full third being given, and that is the approach I have also decided to adopt. It is, I should add, an approach endorsed by the Crown in this case.
[4] Poutawa v Police HC Rotorua CRI-2010-463-000076, 10 December 2010; R v Tai [2010] NZCA 598; R v Collier HC Tauranga CRI-2010-087-001377, 26 November 2010; R v Karetai HC Invercargill CRI-2010-025-002751, 13 December 2010; R v Maats and Kaa HC Gisborne CRI-2010-016-001863, 14 December 2010; cf R v Toetoe HC Napier CRI-2010-041-001646, 22November 2010
[25] As regards the firearm charge, I identify the aggravating factors as being that the rifle was loaded and the number of rounds of ammunition. Having regard to those factors, and again taking your early guilty plea into account, I consider that a term of imprisonment of one month is warranted. I also agree with the Crown that the term should be cumulative because the offending is different in kind and nature.
[26] All of that means that the total effective term of imprisonment is 21 months.
[27] That in turn means you are eligible to be considered for home detention, an option strongly advocated by Mr Dawkins.
[28] Mr Dawkins promotes home detention on the grounds of the relatively low- level offending and on the grounds of your family circumstances. He also points to
the fact that you have expressed a willingness to participate in a sentence of
supervision and attend counselling. In his submission you are an ideal candidate for home detention and in the course of submissions he emphasised to me that home detention is not a soft option and that it has a deterrent function as noted in previous cases.
[29] It is not unknown for home detention to be granted in drug dealing cases, as evidenced by the significant number of decisions Mr Dawkins has cited. However, I have come to a clear view that in your case, having regard to those recent previous convictions, home detention would not be an appropriate response. In particular, it would not sufficiently meet the interests of specific and general deterrence.
[30] I have therefore regrettably come to the conclusion that the sentence must be one of imprisonment.
[31] Tony John MacDonald, on the charge of possession of cannabis for supply you are sentenced to a term of imprisonment of 20 months, with the following release conditions:
[i] You are to undertake assessment to address drug abuse and any follow-up as recommended by and to the satisfaction of the probation officer and treatment provider, the treatment provider to be determined by the probation officer.
[ii] You are to undertake assessment, treatment, counselling to address your offending needs and any follow-up as recommended by and to the satisfaction of the probation officer, the treatment provider to be determined by the probation officer.
[32] These release conditions are to expire six months after the sentence expiry date.
[33] On the charge of cultivation of cannabis you are sentenced to a term of imprisonment of 20 months, to be concurrent, with the same release conditions.
[34] On the charge of unlawful possession of a firearm you are sentenced to a term of imprisonment of one month which is to be cumulative on the 20 months for the drug dealing offences. The total effective term of imprisonment is thus 21 months.
[35] I order the forfeiture and destruction of all cannabis and related paraphernalia seized by the police, and forfeiture of the $690 in cash located at the premises. I also make an order for destruction of the rifle and the ammunition.
Solicitors:
Crown Solicitor’s Office, Dunedin
Bill Dawkins Law, Invercargill
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