R v Mihos HC Wellington CRI-2005-085-5886

[2007] NZHC 1715

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-085-5886

THE QUEEN

v

JIMMY MIHOS

Hearing:         4 April 2007

Appearances: S Barr for Crown

C Stevenson for Prisoner

Sentence:       4 April 2007

SENTENCING NOTES OF CLIFFORD J

[1]      You may stay seated.  I have to go through something of a legal process here, which your counsel has no doubt explained to you.

Introduction

[2]        Mr Mihos, you appear for sentence having pleaded guilty to one charge of the supply of a Class B controlled drug, namely Gamma-Butyrolactone (GBL).  The

maximum penalty for this offence is 14 years’ imprisonment.

R V MIHOS HC WN CRI-2005-085-5886  4 April 2007

Summary of Facts

[3]      I find the facts upon which I am to sentence you to be as follows.

[4]      In July of 2005 the police were conducting a covert investigation into the drug dealing activities of two persons, a male and a female.  The police obtained an interception warrant as part of those operations.

[5]      As a result of that interception warrant the police became aware of a number of communications between that female and you, regarding “Gina”, a codename for GBL.

[6]      Those communications indicated the female inquiring about GBL, and you indicating a willingness to supply GBL to her.

[7]      Intercepted messages from 14 July indicated you supplied GBL to her on that day.  A subsequent message confirms that.

[8]      The quantity supplied is not specified.  The Crown submits that more than a single  dose  was  supplied,  but  acknowledges  there  is  insufficient  evidence  to conclude how much more was supplied.   It is accepted, however, that the amount supplied was small and there was no element of commerciality in the factual circumstances.

Sentencing process

[9]      In sentencing I am to be guided by the principles in the Sentencing Act 2002, particularly ss 7, 8 and 9.   As submitted by the Crown, in these circumstances of particular relevance are the need to denounce your conduct and to deter others from committing similar offences.

[10]     In imposing sentence I am required first to identify what is called the starting point.  That is the sentence that takes account of the nature of your offending itself: what you did on the day.  To arrive at a final sentence, I then have to consider what

are  called  aggravating  or  mitigating  factors  –  these  are  things  that  make  that offending  more  or  less  serious  –  relating  to  you,  your  circumstances  and  your personal history.  And obviously today, in terms of the submissions I have received, the first key question is whether I discharge you without conviction or whether in fact you are convicted and sentencing would follow from that.

[11]     In explaining my sentencing to you I will refer to your pre-sentence report, the submissions made by Mr Stevenson on your behalf and by Mr Barr for the Crown.

Pre-sentence Report

[12]     The pre-sentence report indicates that you are 34 years old and are not in a relationship and have no children.  You come from a stable and supportive family environment and your parents and brother were surprised and deeply disappointed to learn of this offending.  I have read and paid attention to the personal references that have been provided for you, including the letter I received this morning from your father.  Obviously you are lucky to have such a supportive family and a supportive community.

[13]     You  were  previously  in  an  “unstable”  relationship  with  the  female  in question, but are said to have no intention of resuming that relationship.  Although your former partner is said to have a drug addiction, you deny that you use any illegal drugs and there is no evidence of that that is relevant to these proceedings.

[14]     Prior to relocation to Wellington, you were living in Auckland establishing a residential property building company.   You relocated to Wellington to join your father and brother in fulltime employment in the family business.   You do not receive any wages or drawings from the business, and are financially supported by your parents.

[15]     You do not have any previous convictions.

[16]     Although you express remorse for your offending the report notes that you lack insight, and that  you minimise the seriousness  of  your  offending.    In  that context I have read the contents of your letter addressed to the Court today, and the acknowledgements contained there of your recognition of the criminality of what happened on the day in question.

[17]     The report writer concluded that you were at a moderate risk of re-offending and  that  you  have  a  moderate  motivation  to  change  your  ways.    A  significant sentence of community work was suggested as a suitable penalty for your offending.

Crown Submissions

[18]     In reviewing the facts relating to your offending, the Crown submits, as I have  noted,  that  more  than  a  single  dose  was  involved.    Given  the  Crown’s acceptance that only a small unspecific amount was involved, and the absence of commerciality, I do not put much weight on that submission.  The Crown also notes, and in a way that you have admitted yourself, the deliberate nature of the offending in question, although it may have been occasioned by personal matters.

[19]     The  Crown  refers  me  to  a  number  of  cases  in  which  short  terms  of imprisonment have been imposed in relation to single instances of low level dealing in Class B controlled drugs.

[20]     It notes the comments of the Court of Appeal in R v Wallace [1999] 3 NZLR

159 however, that a non-custodial sentence will be justified in cases of dealing in

Class B controlled drugs only in special circumstances.

[21]     The Crown submits that a starting point in the range of four to eight months’

imprisonment might be appropriate.

[22]     The Crown has referred me this morning to two further cases, R v Rollo [1981] 2 NZLR 667 and Wattam v Police HC AK CRI-2004-404-63 21 May 2004, which deal with the question of discharges without conviction particularly where

there may be subsequent consequences in terms of professional recognition or registration.  I will return to that matter.

[23]     The Crown acknowledges your guilty plea as a mitigating factor.

Submissions for the Prisoner

[24]     On your behalf, Mr Stevenson submits that this was atypical behaviour, one- off, and at the very lowest level of drug dealing offending.  He further submits that the context of your relationship with the female in question is very important and needs to be borne in mind.  I have also read the letter, as I have said, you addressed to the Court and have taken account of what you say there.

[25]     Mr Stevenson also referred to the fact that prior to its classification as a Class B  controlled  drug  in  2002,  GBL  had  been  available  as  a  health  or  dietary supplement, and in other forms.   In my view, that does not detract from the seriousness  of  this  offending.    The  decision  to  classify this  drug  as  a  Class  B controlled drug reflects the serious harm it, along with other similar drugs, causes.

[26]    As to your personal position, he points to the absence of any previous convictions, your standing in your family and your community, and your shame and embarrassment.  Your actions, he says, were out of character.

[27]     Mr Stevenson in fact provided two sentencing memoranda, and I have read and carefully considered them both.

[28]     As to penalty – perhaps most importantly this morning – he submits that a discharge without conviction would be appropriate.  He does so particularly in light of the potential consequences for you in terms of registration as a chartered accountant.  Failing that, his submission – I take it – is that a non-custodial sentence of community work would be an appropriate response to your offending.   He has provided me with a number of authorities in support of those submissions.

Sentencing discussion

[29]     In terms first of Mr Stevenson’s submissions that I should discharge you without conviction, I note that to do so I am required to be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[30]     In this context, he has pointed to the possible consequences for you, as an accountant, of the disciplinary rules of the Institute of Chartered Accountants, should you be convicted.  He has attached a decision of that tribunal, but that concerned an dishonesty offence.  In this context, he has clarified for me this morning that you are training and face application, rather than a challenge to your current status.

[31]     He has also referred me to a number of Court decisions, which I have read.  I note the very unusual factual circumstances in each of those decisions.  He has also referred me to the fact that a person, who was charged as a result of the police inquiry involved here with offering to supply a drug, was discharged without conviction.  Mr Barr has confirmed that, but I have not been provided with any more details on that point.

[32]     This is a difficult decision.

[33]     I note the authority that indicates that where an independent body is charged with  determining  the  suitability  of  individuals  for  membership  of  professional bodies, the Court may be of a mind to enter a conviction and leave it to that body to assess suitability with the benefit of full disclosure of all the facts.

[34]     I carefully considered Mr Stevenson’s submissions.

[35]     Having considered those matters, I have not reached the position where I am satisfied that the consequence of a conviction would be out of all proportion to the gravity of your offence.   Accordingly, I do not consider a discharge without conviction is appropriate.  In reaching that conclusion, I have also borne in mind the

importance of general deterrence – that is, the deterrence of others in drug offence sentencing.

[36]     The second principal question I must decide today is whether or not your offending calls for a sentence of imprisonment, or whether a sentence of community work would be more appropriate.

[37]     In considering this matter, I note the general authority of Wallace as to the applicability of custodial sentences, but also its recognition that where any commercial element is absent and the quantities are small some form of non- custodial sentence may be appropriate.

[38]     In considering the possibility of a non-custodial sentence, I am also mindful of the fact that this is your first offending, and of all of the matters your counsel has drawn to my attention as regards the circumstances of this offending, your until now clean record, your family support and the working environment which you are now part of.

[39]     Were it not for those matters, I would have considered a starting point around the lower end of the range submitted by the Crown.

Conclusion

[40]     Taking account of those considerations, and s 16 of the Sentencing Act, I

have concluded that a non-custodial sentence of community work is appropriate.

[41]     Taking further account of the mitigating factor of your guilty plea, I sentence you to 150 hours community work.

[42]     In terms of the factors I have recognised today in reaching that sentence, I will also record that I think these are matters that the Accountants’ Registration Board could take account of at the appropriate time.

[43]     Thank you Mr Mihos, you may stand down.

Clifford J

Solicitors:

Luke Cunningham & Clere, Wellington, for Crown