R v Margetson HC Dunedin CRI-2011-012-003495

[2011] NZHC 2006

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-012-003495

THE QUEEN

v

ANTHONY THOMAS WILLIAM MARGETSON

Hearing:         14 December 2011

Appearances: R D Smith for Crown

A Dawson for Prisoner

Judgment:      14 December 2011

SENTENCE OF WHATA J

Solicitors:

Wilkinson Adams, Crown Solicitors, PO Box 803, Dunedin 9054

Public Defence Service, DX YX 10180, Dunedin

R V MARGETSON HC DUN CRI-2011-012-003495 14 December 2011

[1]      Mr Margetson, you appear for sentence on three charges, two for possession and one for sale of cannabis.

Offences

[2]      Indeed, you pleaded guilty on 6 October 2011, to two counts of possession of cannabis  for  supply  and  one  count  of  selling  cannabis.    Each  count  carries  a maximum penalty of eight years’ imprisonment.

[3]      An order for forfeiture of $60 from the first search and $815 from the second search is also requested.

Facts

[4]      The facts  are summarised  in  the police summary,  but  you  disagree  with certain aspects of them.

[5]      Two  search  warrants  pursuant  to  the  Misuse  of  Drugs  Act  1975  were executed on your address.

[6]      In the first (on 11 August 2011), 90 grams of low quality cannabis leaf and 32 grams of high quality cannabis head was found in your bedroom.  Hidden under the bed there were a number of small deal bags, each containing cannabis bud and having a street value of $20.  A small amount of cash ($60) was located with these. You were interviewed and admitted selling cannabis in the form of $20 bags over the preceding three months.

[7]      The second search warrant was carried out on 2 September 2011.  You were at home on this occasion, and the search turned up 2.5 ounces of cannabis head in your room and $815 cash in your wallet.  You explained the cash as being from your parents, flatmates and personal savings.  During the course of the search you threw your cellphone into the bush area of the neighbouring property.   This was later recovered and text message data showed that you were selling cannabis to approximately 60 people.

[8]      You say that instead of selling cannabis for profit, as stated in the Summary, you were doing so as a means of covering the cost of your own cannabis use.  You also say that 60 clients is an exaggeration.  You say that you never in fact sold larger amounts of cannabis (being half ounces) although there were occasional mentions of this in text messages.  These sales never transpired and it was only smaller amounts of cannabis that were sold.

Resolution of disputed facts

[9]      I am prepared to proceed on the basis that your offending was low-level cannabis dealing for the purpose of funding your habit.   That still makes it commercial activity and therefore if the cash is the product of that activity it may be forfeited.  On this aspect I am not satisfied that the cash was directly linked to that activity.  There is no evidence other than the dealing to show such a link.  No records for example were produced that might illustrate such a link.  You have explained it was paid to you by flatmates and other persons.   That explanation has not been contradicted.     The  Court  carries  the  burden  of  showing,  on  the  balance  of probabilities that there was a link. That burden has not been discharged.

Personal circumstances

[10]     You are 20 years old and flat with two others in Dunedin. You were born and grew up here, with your parents separating when you were approximately four years old. You retain good relationships with your family and also have good relationships with friends and your employer.

[11]     You were on the unemployment benefit for a number of years but for the past three months you have been working as a kitchen hand at Capers Café.   You are enthusiastic about this job, saying that you love it and typically work four days per week.  This provides you with $250 to $300 weekly, which is spent on necessities and leaves very little disposable income at week’s end.

[12]     You have a harmful pattern of cannabis use, having begun to use it at the age of 15 with this developing into a dependency.  Combined with your lack of income, you say that it was this inability to support your own cannabis usage that triggered the start of your sale of cannabis.  You were assertive in stating that you never sold cannabis for financial profit.

[13]     You accept full responsibility for the offending and were candid as to your remorse, saying ―I don’t know how to show remorse for this, other than proving that through my actions … I am remorseful, whether people believe me or not‖   and ―I wish it didn’t take something like this for me to make positive changes in my life‖.

[14]     The  pre-sentence  report  discusses  a  variety  of  sentences  that  might  be imposed and recommends community detention with conditions.

Community Detention/Home Detention Assessment

[15]     An assessment was made of the proposed address and it was deemed suitable. In discussions with you, concerns were expressed that home detention would jeopardise your current employment.  You are considered a sutiable candidate for an electronically monitored sentence.

Prior convictions

[16]     You  have  four  previous  convictions,  all  of  which  are  for  fairly  minor offences.  You have one previous cannabis conviction approximately a year ago, for which you were ordered to complete community work.  There is a later conviction for breach of this order, and you were sentenced to further hours, which appear to have been successfully completed.

[17]     You have some unpaid fines.

[18]     A reference is provided by the owner of the café you are currently working in.  He says you were the best applicant for the job and were happy to get it, you are hardworking and savvy.  You get along well with other staff and customers and are positive. You consistently turn up on time and are seen as a great asset to the café.

Purposes and principles of sentencing

[19]     In sentencing you I must have regard to the purposes and principles of the Sentencing Act 2002.  Particularly relevant in your case is the need to acknowledge your responsibility for the harm caused by cannabis use and sale, denunciation of your  activity,  deterrence  of it  and  the need  to  protect  the community.    I must, however, have regard to the importance of rehabilitation and your reintegration into the community.

[20]     In terms of principles, I must look at the gravity of your offending and the degree of your culpability.  The seriousness of your offence is also relevant as well as ensuring consistency with appropriate sentencing levels.  I am obliged to impose the least restrictive outcome appropriate to the circumstances and to have regard to your personal circumstances.

[21]     The Sentencing Act also requires that I look at aggravating and mitigating factors including the extent of any harm done and premeditation.   I must look at aggravating factors personal to you, including whether or not the offending was committed while on bail and your prior convictions.

[22]     Finally, in terms of mitigating factors I have to have regard to your age, your guilty plea and any previous good character.

[23]     The Crown submits that the current offending falls within category 2 of R v Terewi.[1]   The Crown cites aggravating features of the scale/duration of the offending, offending whilst on bail, premeditation and persistence, and a recent Court appearance.

[1] R v Terewi [1993] 3 NZLR 62.

[24]     A starting point of two years’ imprisonment is suggested since the offending is commercial, but at the low end.   An uplift of 12 months is suggested for the charges of possession for supply.   Crown counsel state that these other charges occurred while you were on bail and recommends a further uplift with a resulting starting point of three years and six months.

[25]     The Crown submits that any personal circumstances mitigating the offending are to carry limited weight, given that it is a drugs case, although counsel does accept that  your  youth  is  relevant  overall.    A guilty  plea  discount  of  20  per  cent  is recommended.

[26]     A final sentence in the range of two years six months to two years and nine months’ imprisonment is considered appropriate by the Crown.  The Crown does not support the imposition of a community based sentence given your continued offending and a prior breach while on a community based sentence.  Home detention is also opposed particularly because of the breach while on bail.  Forfeiture of the money seized is also sought.  I have already indicated my position on that.

Defence submissions

[27]     Defence counsel accepts that the starting point will be for a sentence of imprisonment, and is in agreement with the Crown that this should be at the lower

end of category 2 of Terewi.

[28]     It is submitted that selling cannabis should be taken as the lead offence, since it runs over the longest period and the possession of cannabis was the means to this end. All three offences carry the same maximum penalty.

[29]     Counsel submits that the charges should be viewed on a totality basis, with concurrent sentences.  A starting point of two years is recommended for the selling charge, with uplifts of six months each for the possession for supply charges.  This would result in a starting point of three years.  A number of cases are then cited and discussed in support of this approach.

[30]     The personal aggravating factor of a previous minor cannabis conviction is noted, but submitted that it does not justify a further uplift.   Mitigating factors include your youth and remorse.   Credit is also requested for your willingness to engage with help for your drug addiction.  Counsel says that you would welcome the rehabilitative options outlined in the pre-sentence report and you recognise that you need to break from your current pattern of drug use.

[31]     Full credit is also sought for your guilty plea.

[32]     Your counsel notes that if a discount of six to 7 months were given for the personal mitigating factors, and a full discount for your guilty plea, a final sentence would be in the region of 20 to 24 months and this would allow the Court to consider a sentence of home detention.

My analysis/setting a starting point

[33]     I accept that this is low end commercial dealing.   Putting aside concerns about offending while on bail, this would put the preliminary starting point at two years for the selling offence.   An uplift of 12 months also seems appropriate for possession for supply charges.  This takes the starting point to three years as initially agreed by Counsel.

[34]     I  consider  that  my  starting  point  is  consistent  with  the  most  relevant authorities.  I note that in R v Byrne[2]  involving similar scale supply offending, the starting point was two years.   But I have incorporated your related offending and unlike that case, to arrive at a starting point of three years.

Personal Aggravating factors

[2] R v Byrne HC Auckland CRI-2009-044-9940, 13 August 2010.

[35]     I accept that the breach on bail was aggravating, but I consider that the three year starting point reflects a sufficient degree of severity in terms of the totality of the offending, including while on bail.  In relation to your prior offending, I do not consider that offending is sufficient to warrant an uplift of the starting point.

Mitigating Factors

[36]     As to mitigating factors, age is a mandatory relevant consideration.   While the Court of Appeal has said that personal circumstances carry little weight in drugs cases, I must reconcile that comment with the clearly stated views of the Court of Appeal in relation to the importance of youth.[3]    The Court of Appeal has made it plain also that youth is relevant to sentencing[4]  – particularly the effect of imprisonment on a younger person.[5]     It is also important to combine that consideration with the principles and purposes that seek to ensure rehabilitation.  In this regard the accused has employment and a strong reference.  I also note that this

is a recent and important development.

[3] Pouwhare v R [2010] NZCA 268.

[4] Churchward v R [2011] NZCA 531 at [77].

[5] R v Chankau [2007] NZCA 587 at [26].

[37]     Given this, I am prepared to allow a discount, factoring also your remorse, of six months.

Guilty plea

[38]     I can see no reason why you ought not to get the benefit of 25 per cent given your early guilty pleas.  I agree with your counsel that the Court needs to be seen to acknowledge early guilty pleas.

[39]     So, if I were to impose a sentence of imprisonment, that would result in a sentence of 22 months.

[40]     I now turn to consider in light of that outcome, whether home detention is appropriate.

Home detention

[41]     Guidance on home detention in cases of drug dealing was provided by the Court of Appeal in R v Hill.[6]     The Court considered rehabilitative prospects as important  —  if  the  offender  is  motivated  for  change  and  there  was  a  realistic prospect of success, home detention was considered to have obvious benefits.

[6] R v Hill [2008] 2 NZLR 381.

[42]     While, it is ―well-established‖ that home detention would be unlikely to be granted where a person is convicted of drug dealing from their home.  Overall, the cases suggest that home detention may be considered appropriate where a short term of imprisonment is contemplated and where:

(a)       The offender displays remorse and has insight into the offending. (b) Is motivated to change.

(c)       Has pleaded guilty — R v Hill suggests home detention may not be an option  where  the  offender  has  not  acknowledged  guilt  from  the

outset.[7]

[7] Ibid at [40].

[43]     In the current case you have displayed insight, you have motivation to change and you have pleaded guilty.   These all weigh in favour of home detention.   It is unclear from the facts where you were selling the cannabis from.   I note that the address now proposed for home detention is different from the residence at which you were living at the time of your offending.

[44]     The other  factor  that  I think  weighs  strongly in  favour of  a community sentence is your recent employment.   You were clearly happy to be offered employment and you are really apparently enjoying your work, and this will aid in your rehabilitation. There is strong support from your employer.

[45]     In R v Heremaia[8]  this was a factor that was taken into account.  There the Court said that there would be difficulties for the accused continuing to work if sentenced to home detention, but it was possible if structured carefully.  In this case you and your employer are enthusiastic about your work prospects.

[8] R v Heremaia HC Whangarei CRI-2008-088-2483, 25 July 2011.

[46]     Mr  Smith  has  stressed  that  the  offending  on  bail  triggers  the  need  for deterrence.  It could be said that your offending on bail was brazen.  In some ways it reflects your immaturity.

[47]     Ultimately, in my view your relative youth tips the balance in your favour, but I have to say, only just.  I really want to emphasise that.  This is a last chance for you and you are really getting the benefit of the doubt.  You are borderline young and really I have just fallen on the side of  your youth here and now.   I don’t anticipate largess will be afforded to you beyond this point.

[48]     I also remind myself that lengthy home detention is not a soft option, falling just below imprisonment in the hierarchy of sentences.

[49]     In summary, while there are factors both for and against the grant of home detention here, I consider that it is appropriate to be imposed as I say, as a ―last

chance‖ for you.

Final Sentence

[50]     Mr Margetson, please stand.  I now impose my final sentence.

[51]     In all of the circumstances and having regard to the totality of the offending, I consider  that  home  detention  of  eleven  months  is  appropriate  in  relation  to  all charges and all sentences are to be served concurrently.

[52]     I  would  also  implore  the  probation  officer  to  encourage  your  ongoing employment.

[53]     In terms of the home detention, I impose the following conditions:

(a)      To travel directly to 46  Kauri Street, Ravensbourne, Dunedin and remain there to await the arrival of a probation officer.

(b)To reside at 46 Kauri Street, Ravensbourne, Dunedin in accordance with the conditions of home detention.

(c)      To attend any treatment and/or counselling to address cannabis-related issues as may be directed by the probation officer and to the satisfaction of the programme provider.

[54]     There are no post detention conditions.

[55]     The sentence shall commence at 9.30 a.m. 15 December 2011.

Postscript

[56]     Counsel indicated that in relation to the $60, that had already been forfeited by consent.

Whata J