R v Morrell

[2013] NZHC 2801

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-020-1466 [2013] NZHC 2801

THE QUEEN

v

JOSEPH JOHN MORRELL

Hearing:                   24 October 2013

Counsel:                  J D Lucas for Crown

M Phelps for Defendant

Judgment:                24 October 2013

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Napier
Counsel:

A J S Snell, Hastings

R v MORRELL [2013] NZHC 2801 [24 October 2013]

Introduction

[1]      Joseph  John  Morrell,  you  appear  for  sentence  today  on  one  charge  of possessing the Class C controlled drug cannabis, for supply.  A plea of guilty was entered  on  6 August  2013.    Subsequently,  Judge  Down,  in  the  District  Court, declined jurisdiction to sentence and committed you to this Court for that purpose. The offence to which you have pleaded guilty carries a maximum penalty of eight years imprisonment.

Facts

[2]      As a result of information received, police officers executed a search warrant at an address in Flaxmere and a storage shed at Twyford.  The former is a residential property rented by your wife, and also used by you.  The storage shed was rented by you, and is secure in nature.

[3]      At the time of the search, Police had in their possession text data indicating that you had purchased 2.27 kilograms (about 5 pounds) of cannabis head on 20

April 2013, for $20,000.

[4]      In searching the storage shed, police officers located a vehicle which was registered in your wife’s name.   A large plastic bin was found in the boot of the vehicle, inside which police officers located 48 bags of cannabis head, each containing 32 grams.  That is slightly in excess of one ounce, a quantity in which cannabis is frequently sold at street level.

[5]      The total weight of the cannabis head was 1.5 kilograms.   Based on the average street value of an ounce of good quality cannabis, $350 per ounce, the cannabis in your possession had the potential to realise a market value of about

$19,000.

Personal history

[6]      Mr  Morrell,  you  are  presently  aged  26  years.     The  probation  officer responsible for preparing the pre-sentence report identifies your associates and drug

use as factors contributing to your offending.  You told the probation officer that you

thought you could make a “quick buck” from selling the cannabis.

[7]      The pre-sentence report writer recommends a community-based sentence, a mix of supervision and community detention.   That, I will say immediately, is an unrealistic recommendation.   Attention has been drawn to past breaches of community-based sentences, between 2008 and 2009.

[8]      Your wife has  told the pre-sentence report writer that  you  were a “hard working person who now realises the impact” of your convictions on your family and employment.  I am told that if a community-based sentence were imposed, there is a reasonable possibility of re-employment.

[9]      You have expressed remorse for your offending.   There is nothing in the material I have read to cast doubt on the genuineness of that.  I am impressed that you have made genuine attempts to obtain assistance to rid yourself of your cannabis habit.

[10]     I understand too that you are attempting to distance yourself from your gang affiliations.   I understand the problems that are inherent with members of your whanau being members of a gang, but it is something that you need to work on to get away from that type of bad influence.

Crown submissions

[11]     Mr Lucas, for the Crown, has referred to your gang affiliations.  He submits that the information obtained from the text messaging and the real evidence gathered following the search is indicative of commercial offending, with gang undertones, and with the potential for large amounts of profit to be made in a relatively short time.  Mr Lucas also points to the secure nature of the facility in which you were storing the cannabis.

[12]     As aggravating factors, Mr Lucas relies on your previous convictions.  There are two cannabis related convictions, one each of possession and cultivation, from

2009  and  2010.    Others  involve  possession  of  weapons,  burglary  and  multiple driving offences.

[13]   Mr Lucas acknowledges that if the end sentence falls under two years imprisonment,   home   detention   may   be   considered   as   a   viable   option   to imprisonment, with the addition of a period of community work.

Defence submissions

[14]     On your behalf, Mr Phelps has contended for a sentence of home detention, coupled  with  one  of  community  work.    He  points  to  the  existence  of  a  very supportive wife who has made a favourable impression on the pre-sentence report writer.   He has also referred to the progress you have been making in your apprenticeship and the likelihood of further work being available should you be placed on home detention.  In addition, there are your efforts at rehabilitation.  Mr Phelps also tells me that you are regarded as a good father to your three children.

Analysis

[15]     I must apply guidance given on sentencing tariffs by our Court of Appeal.1

Your offending falls within category 2.   That relates to small to medium size enterprises.  This was, in my view, in that category.  It was primarily for the purpose of selling cannabis, for which the starting point for sentence is between two and four years imprisonment.

[16]     I incline towards the Crown’s assessment of seriousness and I use a starting point of two years and nine months imprisonment.   I say that notwithstanding the fact that there is no evidence of actual sales.  However, I think from the amount of cannabis in your possession, it is a clear inference that the number of sales that were to take place in the near future and that a significant sum of cash would likely be received in return.  I am not prepared to infer that that quantity of cannabis was to feed your personal habit, albeit that some of it may well have been used for that purpose.

[17]     There are no other aggravating factors relevant to the offence.

[18]     It is important, in considering your previous convictions for cannabis related offending,  not  to  punish  you  twice  for the same offending.   An uplift  is  often required to increase a sentence for the purpose of protecting the public  from a recidivist offender, and to recognise that the Court is dealing with a person who has

been of bad character.2   In the context of this particular offending, a modest uplift is

required.  I assess that at two months.

[19]     That being so, before I take account of mitigating factors, the revised starting point for sentence is two years and 11 months imprisonment.

[20]     There are no mitigating factors relevant to the offending.  But there are some that are personal to you and the relatively early guilty plea must be factored in.

[21]     You have expressed remorse.  Ordinarily, a credit for remorse is coupled with the credit given for a guilty plea; though sometimes remorse can be recognised separately.  In this case, I propose to do that by adding a period of two months to the credit I propose to give to mark your efforts at rehabilitation.

[22]     You are beginning to show insight into your offending and the reasons for it. Voluntarily, you are undertaking counselling.  I act on the basis that your attempts to rehabilitate are made genuinely, rather than as a cynical response to persuade the me to sentence you to something less than imprisonment.  My assessment takes account of the employment in which you have been gainfully involved and the support in rehabilitation likely to come from your wife.  In my view, those two factors, coupled with the remorse to which I have referred, require a further credit of six months. That brings the starting point down to two years five months imprisonment.

[23]     That  brings  me  to  the  guilty plea.   Although  not  entered  at  the  earliest possible time, the Crown acknowledges that it was entered after withdrawal of a separate charge of possessing an offensive weapon.  That being so, I treat your plea as being entered at the earliest possible time. You are to be given a credit of 25% for

impose home detention, that would leave a final sentence of imprisonment of one year and 10 months imprisonment.  Because that end sentence is less than two years imprisonment, you are eligible for the sentence of home detention.

[24]     I am satisfied that  a sentence of imprisonment  is not needed to  achieve relevant  sentencing  goals.   A sentence of home detention,  coupled with  one of community work, will, in my view, be adequate.  However, you need to recognise Mr Morrell that this is likely to be your last chance.  If you offend in this way in the future, you will almost certainly go to prison.   So please take advantage of the opportunity that you will be given today.

Result

[25]     You are sentenced to a term of home detention of 10 months.   You are ordered to undertake 150 hours community work.

[26]     Home detention is granted on the basis that you reside at 54 Folkestone Drive, Flaxmere for the duration of the sentence.  Standard terms of home detention apply.  In addition, I impose a special condition that you undergo any programmes as to alcohol and drug rehabilitation that may be directed by a probation officer, and that you complete them to his or her satisfaction.  Release conditions will be for six months from the sentence expiry date.

[27]     On your release from Court today, you shall go immediately to the home detention address.  You will be met by an assessor who will make the appropriate practical arrangements for the electronic monitoring to commence.

[28]     I make an order for the destruction of the cannabis.

P R Heath J