R v Morgan HC Whangarei CRI-2009-027-001083

[2011] NZHC 292

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2009-027-001083

THE QUEEN

v

DANNY MYLES MORGAN

Hearing:         5 April 2011

Appearances: M Jarman-Taylor for Crown

J S Day for Prisoner

Judgment:      5 April 2011   

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Whangarei

Copy to:            J S Day, Whangarei

[1]      Danny  Myles  Morgan,  you  have  pleaded  guilty  to  one  count  of  selling cannabis.  The charge is a representative one.  The maximum penalty for the offence

R V MORGAN HC WHA CRI-2009-027-001083 5 April 2011

is eight years’ imprisonment.  The District Court has declined jurisdiction and you

are for sentence in this Court.

[2]      The offending occurred while you were serving a four month sentence of home detention for unrelated offending.  It was discovered that during that sentence (which was completed in March 2010), you had been selling cannabis from your mother’s home where you were serving your home detention sentence.

[3]      According  to  the  original  defence  submissions  filed  on  your  behalf  the offending occurred over approximately 13 weeks.   You sold up to  an ounce of cannabis a week.  Due to interruptions in supply an estimate was put of a profit of about $3,000.  You kept no record of the transactions.  You and your co-offender, your brother, would arrange for customers to attend at the address you were serving the sentence where you would sell them cannabis tinnies for $20 or in plastic bags for $50.

[4]      You pleaded guilty prior to committal.   It is accepted that your plea was entered at the earliest reasonable opportunity.

Personal circumstances

[5]      You are in a stable relationship.  You and your partner have a young child. You left school at 14 with no qualifications but you have been in almost consistent employment for most of your life after leaving school.   You have worked as a landscaper, a groundsman, and a concrete worker. You have always been able to find work, which does you credit.   The probation officer notes that you demonstrate remorse for your offending.  You said you were driven to offend due to the loss of your job when you were serving the sentence of home detention.  You were in dire straits financially and you said you sold the drugs out of desperation.  Your drug and alcohol screening test indicates you do not have substance abuse problems.

[6]      The probation officer noted that the causative factors of your offending were your criminal associates and your attitude.  You are assessed as at low to medium risk  of reoffending in  this  way.    However,  the  probation  officer  recommends  a

sentence of imprisonment in light of the fact that you reoffended while you were on home detention, which the probation officer describes as indicating a total disregard for the justice system.

[7]      The Crown submit your offending falls within category 2 of the Court of Appeal guideline judgment in R v Terewi1  which places the starting point between two to four years’ imprisonment.  The Crown submit your start point should be in the middle of that band and home detention would not be an appropriate sentence given the offending occurred while you were serving a sentence of home detention.

[8]      Mr Day accepts that R v Terewi applies but submits your offending should be placed at the lower end of category 2.  While acknowledging the offending on home detention was an aggravating factor he submitted that your position at the time explained the offending and he submitted that you are entitled to a full discount for your  guilty  plea.     He  submits  that  given  your  extreme  remorse  and  your circumstances home detention should still be and would still be an appropriate end sentence in your case and notes that your brother and co-offender received a 16 month sentence on the same charge.

[9]      In sentencing you Mr Morgan I am required to take into account the purposes and principles of the Sentencing Act which include:

making you accept responsibility for the offending.  In relation to that I make it clear to you that your offending cannot be justified in any way on the basis you needed the money.  That is no excuse or justification for offending in this

or indeed any other way;

one  of  the  purposes  is  also  to  deter  you  and  others  from  committing

offending of this kind;  and

also to denounce this sort of offending which has an impact on the

community.

1      R v Terewi [1999] 3 NZLR 62.

[10]     I am also directed to take account of the gravity of the offence which is recognised by the maximum penalty I referred to earlier.   I am also required to consider your culpability and also to consider other relevant authorities to ensure consistency as far as possible in sentencing of this nature.   I am also directed to consider your ultimate rehabilitation and reintegration into the community.

[11]     In relation to that I note that you have some outstanding fines at present and your counsel has arranged a Registrar’s report, as is required, and as part of the sentence I impose I am going to waive those outstanding fines so that you will start with a clean slate.

[12]     Applying those purposes and principles and having regard to what the Court of Appeal said in R v Terewi I consider in this case your offending was definitely commercial in nature.   However, it did not involve significant amounts of money. Apart from R v Terewi I have also considered a number of other recent cases in the

High Court of:  R v Tupaea;2   R v Curtis;3 R v Turoa;4   R v Hemopo.5   Having regard

to those authorities I take as a start point for your sentence two years three months’

imprisonment.

[13]     I turn to the aggravating and mitigating factors personal to you. As you know there is the aggravating factor to your offending in this case which requires an uplift. It  is  the  fact  that  you  offended  in  this  way  while  serving  a  sentence  of  home detention for previous unrelated offending.  An uplift of a further three months is required for that.

[14]     You have several previous convictions but none related to drug offending and they are not relevant to sentencing in this case.

[15]     I consider your previous offences are effectively neutral.

[16]     I turn then to your personal mitigating factors.

2      R v Tupaea HC Auckland CRI-2005-057-000491, 4 October 2005 (Keane J).

3      R v Curtis HC Rotorua CRI-2007-070-000243, 9 May 2007 (Asher J).

4      R v Turoa HC Auckland CRI-2008-055-001629, 31 October 2008 (Venning J).

5      R v Hemopo HC Auckland CRI-2010-055-000234, 5 October 2010 (Brewer J).

[17]     I do not consider any reduction is necessary for your age.  You are now 23. While you are still a young man, you are not so young and you were not so young at the time you offended in this way that your age explains your offending or mitigates it in any way.

[18]     As noted I accept your guilty plea came at the earliest reasonable opportunity. The Supreme Court decision in Hessell v R6 says that in those circumstances a 25 per cent discount would be appropriate.  However at the time you entered your guilty pleas the Court of Appeal decision in Hessell7  applied and that supported a larger discount of a third. The Crown do not oppose the court taking into account the Court of Appeal decision in Hessell in this case in the particular circumstances of your case given the time at which you entered your guilty plea.

[19]     I also  note that  in  Hessell  in  the Court of Appeal,  the Court  of Appeal effectively rolled the discount for remorse into the guilty plea.  In your case, if I had adopted the Supreme Court decision of Hessell I would have in any event included a further discount for remorse.

[20]     The short point is that you are entitled to a discount from the start point of a third to take account of your early guilty plea and remorse.   That leads to an end sentence of one year eight months’ imprisonment.  I do not consider that is out of range of the sentence imposed on your co-offender, taking account of your personal circumstances and role in the offending.

[21]     As  the  sentence  is  less  than  two  years’ imprisonment  the  Court  should consider  whether  a  sentence  of  home  detention  is  appropriate.     As  counsel realistically accepts it is either imprisonment or home detention.  I take into account the provisions of s 15A, 16 and 80A of the Sentencing Act 2002, the decisions of the Court of Appeal in  R  v Hill,8  R  v Salanoa;9     and R  v D10  and  your counsel’s submissions.  Mr Day has said everything that he can on your behalf in support of

the submission that home detention is appropriate.

6      Hessell v R [2011] 1 NZLR 607.

7      Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.

8      R v Hill [2008] 2 NZLR 381, (2008) 23 CRNZ 744 (CA).

9      R v Salanoa [2008] NZCA 185.

10     R v D (CA253/2008) [2008] NZCA 267.

[22]     In your case the factors that favour home detention for rehabilitation and reintegration purposes are your relatively young age, your lack of previous drug offending, the fact  you are now employed,  your relationship, the fact  you have expressed remorse and are assessed as being at a low to medium risk of reoffending. I accept there are reasons for optimism in your case.

[23]     However, there are two significant countervailing factors.   The first is that you committed this offending from your home. As the Court of Appeal said in Hill it is:11

... now well established that home detention is unlikely to be granted where a person is convicted of dealing in a drug from his or her home (see, for example, R v Paki CA165/05 5 September 2005 at [6].

[24]     I note that you have shifted the address from where you were and where there this  offending  occurred  Mr  Morgan  but  there  remains  in  my  view  a  risk  of reoffending from a home base as the probation officer recognised.

[25]     Of  greater  significance  in  your  case,  however,  and  in  my  view  the determinative factor for the Court is that you committed this offending while serving a sentence and in particular a sentence of home detention.   A further sentence of home detention is frankly not appropriate where you have offended whilst on home detention  or  indeed  if  you  had  been  subject  to  some  other  community  based sentence.

[26]     I  agree  with  the  probation  officer  that  further  offending  while  on  home detention indicates a disregard for the justice system.

[27]     I have concluded that when those two countervailing factors are taken into account the need for deterrence and denunciation for such actions outweighs the factors which might otherwise have supported a further sentence of home detention.

[28]     Please stand.   Mr Morgan you are sentenced to imprisonment for one year eight months. As I have said your fines are remitted. That is all, stand down.

11 Above n 8, at [41].

Venning J