R v Murphy HC Dunedin CRI 2010-012-2036

[2010] NZHC 1612

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2010-012-002036

REGINA

v

BLAIR ANTHONY MURPHY

Appearances: R D Smith for Crown

A J Logan for Prisoner

Judgment:      2 September 2010

SENTENCE OF HON. JUSTICE FRENCH

[1]      Blair Anthony Murphy, following a plea of guilty you appear for sentence this morning on one representative charge of selling cannabis between November

2009  and  March  2010.    The  maximum  penalty  for  this  offence  is  eight  years’

imprisonment.

Facts of the offending

[2]      Your  offending  came  to  light  as  a  result  of  a  covert  police  operation codenamed ‘Rocket’.  The operation was targeting the sale of cannabis in Dunedin by the Mongrel Mob gang.

[3]    Between  November  2009  and  March  2010  police  intercepted communications  which  revealed  that  you  were  purchasing  cannabis  from  your

R V MURPHY HC DUN CRI-2010-012-002036  2 September 2010

brother, Shane Parkinson, and on-selling it in smaller amounts.  Your brother Shane is a member of the Mongrel Mob gang.

[4]      You would buy a small bag of cannabis every day, worth about $50.   The total cannabis sold in one week is estimated to have been up to about one ounce. Throughout the identified period of offending (ie November to March) you made approximately $100 per week, amounting to a total estimated profit of between

$1500 and $2000.

[5]      When  arrested,  you  were  co-operative  with  the  police  and  made  full admissions.

Pre-sentence report

[6]      I have read the pre-sentence report and I can say that it makes for quite sad reading, because it appears that you have stupidly put so much in jeopardy.

[7]      You are 37 years of age, the father of a little girl.  You work as a drainlayer and obviously have a stable work record, having worked for the same company for some six years, and with prospects of promotion.

[8]      You  have  six  previous  convictions.    Five  of  those  are  somewhat  dated, occurring between 1992 and 1995, although they do include possession of cannabis seeds.

[9]      The  one  recent  conviction,  however,  is  a  significant  matter.    It  was  in November last year and was for possession of cannabis for supply.  On that occasion you were sentenced to 75 hours’ community work.

[10]     You deny being a full member of the gang, but admit you are considered an associate because of family connections.

[11]     You told the probation  officer that the offending was the result of  your criminal connections and an indifference to the use of cannabis by others.

[12]     Given your insight, your offending history and the seriousness of the offence, the report writer has assessed you at medium risk of reoffending.   The report’s recommendation is for community work.  However, it fails to address the fact that you committed the current offending while subject to a sentence of community work imposed for similar offending as recently as late-2009.

Sentencing analysis

[13]     I turn then to explain the sentencing decisions I have to make today.

[14]     First and foremost I am required to apply what are called the purposes and principles of sentencing under the Sentencing Act 2002.

[15]     As regards the purposes of sentencing, they are to hold you accountable; to denounce drug dealing on behalf of the community, and to deter you from doing this ever again, and to deter others who might be like-minded.

[16]    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 and the need to impose the least restrictive sentence appropriate in the circumstances.

[17]     Those, then, are the key principles and purposes of sentencing.

[18]     In applying those principles and purposes, I am required to follow what has been called a two-stage model.

[19]     In the first stage, I am required to fix what is known as the starting point. That simply means the sentence which reflects the culpability or blameworthiness associated with your offending.

[20]     The second stage, is that having fixed the 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 the offending.

[21]     So turning then to stage one: fixing the starting point.

[22]     On this, I have to be guided by a Court of Appeal decision which sets out bands of offending for this type of offence: see R v Terewi [1999] 3 NZLR 62. The lawyers agree, and I accept, that because of the commercial element you fit in band

2, justifying a starting point of between two and four years’ imprisonment.

[23]     I identify the key aggravating factors in your offending as being the period of time that was involved, the commercial element and the pre-meditation.

[24]     Having regard to the Court of Appeal decision, the aggravating features and other cases, including in particular the sentences imposed in respect of other people caught up in Operation Rocket, I consider that in your case an appropriate starting point is two years’ imprisonment.

[25]     So that is the first stage, fixing the starting point.

[26]     Turning to the second stage, the factors relating to you personally.

[27]     Unfortunately, there is a very significant aggravating factor relating to you personally, and that is the fact that this offending occurred immediately following the imposition of the sentence of community work for similar offending.

[28]     Mr Murphy, when I came into Court today I was provisionally minded to give an uplift of six months on account of that aggravating feature.  However, after listening to the lawyers I have decided that it should be less than that, and it should only be an uplift of another three months.  That brings me to an indicative sentence of 27 months’ imprisonment.

[29]     As regarding mitigating factors relating to you personally, Mr Logan has advanced two matters which he asks me to take into account.  The first is your good work record.  The second is your early guilty plea.

[30]     It is well established that in drug dealing cases, personal circumstances do not carry the same weight as in other cases.  I am therefore not prepared to consider that

your work record justifies independently a discount on its own.  However, you are entitled to a significant discount as a result of your early guilty plea.  it was entered at the earliest possible opportunity and therefore warrants a discount of a full third. That means I arrive at an end sentence of 18 months’ imprisonment.

[31]     In turn, that renders you eligible to be considered for home detention.  Or at least it would do, if there was a suitable address.   I am satisfied that the address proposed is not suitable, because of recent police interest in the house and the drug- related conviction of one occupant.

[32]     There is a provision in the Sentencing Act which enables the Court to grant leave to apply for home detention should a suitable address become available later.  I have therefore considered it appropriate that I should turn my mind to that provision.

[33]     It is not unknown for home detention to be granted in drug dealing cases.  In R v Hill [2008] NZCA 41, the Court of Appeal said that where an offender is motivated to change and there is the realistic prospect he or she would be able to change, there are obvious benefits in a sentence of home detention both from the offender’s perspective and from society’s perspective.

[34]     In your favour, in terms of home detention, there is your stable work record, your apparent insight into your offending and the fact that your previous history is not as extensive as is sometimes the case in other decisions.

[35]     However, after very careful reflection I have come to the view that home detention would, regardless of the availability of a suitable address, be an inappropriate response anyway due to the seriousness of the offending, involving as it did drug dealing while you were supposed to be serving a sentence of community work for similar offending.

[36]     Deterrence is the primary consideration in sentencing for drug dealing.  In my view, the interests of specific and general deterrence would not be sufficiently met in a sentence of home detention.  I have therefore come, regrettably, to the conclusion that the sentence must be one of imprisonment.

Sentence

[37]     Blair Anthony Murphy, you are convicted of the charge of selling cannabis and you are sentenced to a term of imprisonment of 18 months.

Solicitors:
Crown Solicitor’s Office, Dunedin
Ross Dowling Marquet Griffin, Dunedin