R v Neilson HC Dunedin CRI-2011-012-000519

[2011] NZHC 1092

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-012-000519

REGINA

v

SHAYNE PAUL NEILSON

Appearances: R Smith for Crown

H Henderson for Prisoner

Judgment:      2 September 2011

SENTENCE OF HON JUSTICE FRENCH

[1]      Shayne Paul Neilson, following a plea of guilty, you appear for sentence this morning on one count of possessing cannabis for sale.

[2]      The maximum penalty for that offence is eight years’ imprisonment.

[3]      The reason you are being sentenced in this Court instead of the District Court is because a District Court Judge has declined jurisdiction.

Facts of the offending

[4]      Earlier this year, police happened to stop a vehicle owned by one of your friends, and found two pounds of cannabis head inside the car.

[5]      The cannabis had been weighed into ounce deal bags – 30 in total.

R V NEILSON HC DUN CRI-2011-012-000519 2 September 2011

[6]      You were responsible for this cannabis, having left it in the car when you had borrowed it.

[7]      You did the decent thing, and came forward and admitted the offending.

[8]      When interviewed, you stated you had bought the cannabis cheaply and had intended to sell the ounce bags for $300 each to fund your butane addiction, and also, you said, to have some money to fix your car.

Pre-sentence report

[9]      The pre-sentence report tells me you are 22 years of age, unemployed, with

25 previous convictions.   These date back to 2005, with a first appearance in the

Youth Court.

[10]     The convictions include theft, traffic offences, possession of an offensive weapon, wilful damage, as well as three breaches of intensive supervision and three breaches of community work.

[11]     There are no previous convictions for drug-related offending.

[12]     Also, you have never been sentenced to a term of imprisonment before.

[13]     In the view of the report writer, there are two key factors contributing to cause your offending.

[14]     The  first  is  your  addiction  to  butane,  and  what  is  described  as  your commitment to a crime sub-culture.

[15]     You are said  to have shown some insight into the need to sort out that substance abuse, but because of your poor compliance record and irregular attendance, you are not considered suitable for departmental programmes.

[16]     Unless, and until, you sort out the butane addiction, you are assessed as presenting a moderate risk of reoffending.

[17]     The report recommends imprisonment.

Sentencing analysis

[18]     I turn now to explain the sentencing decisions I have to make today.

[19]     First and foremost I am required to apply what are called the purposes and principles of sentencing.

[20]     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, put you off, from doing this sort of thing ever again, and to deter others who might be like minded.

[21]     As regards the principles of sentencing, the key principles are the need to take into account the seriousness of the offending, the need to be consistent with other similar cases, and the need to impose the least restrictive sentence that is appropriate in the circumstances.

[22]     So those are the key purposes and principles of sentencing.

[23]     In applying those principles and purposes, I am required to follow what is called a two-stage approach.

[24]     In the first stage, I have to fix what you have heard the lawyers call the starting point. That just simply means the sentence which reflects the blameworthiness or the culpability of your offending.   The second stage is that, having fixed the starting point, I am then required to decide whether it should be increased or reduced, on account of factors relating to you personally, as distinct from the offending.

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

[26]     On this, I have to be guided by a Court of Appeal decision which sets out bands of offending for this type of offence.[1]

[1] R v Terewi [1999] 3 NZLR 62.

[27]     The  lawyers  both  agree,  and  I  accept,  that  because  of  the  commercial element, you fit in band 2, which justifies a starting point of between two and four years’ imprisonment.

[28]     This was a single incident, and relatively small-scale commercial dealing.

[29]     Accordingly, I consider an appropriate starting point to be at the bottom of

that band, and so two years’ imprisonment. [30]         So that is the first stage.

[31]     Turning to the second stage, which is to consider matters that relate to you personally.

[32]     You have previous convictions, and quite a lot of them.

[33]     However, none are drug-related, and as I have mentioned, you have never been to prison before.

[34]     In those circumstances, I have decided there should be no increase to the starting point on account of the previous convictions.

[35]     As regards mitigating factors, you are entitled to a reduction, or discount, on account of your guilty plea.  It was early, and as I have said, you did at least show decency  in  coming  forward  so  as  to  avoid  your  friend  getting  the  blame  for something he had not done.

[36]     I am satisfied that you are, as the lawyers have submitted, entitled to the full possible discount of 25 per cent.

[37]     That brings me to an end sentence of 18 months’ imprisonment.

[38]     In turn, that renders you eligible to be considered for home detention.

[39]     You do not currently have an available address.

[40]     However,  even  if  you  did,  I would  still  not  be  prepared  to  grant  home detention.   That is because of your history of breaching sentences of community work and intensive supervision.

[41]     That history leads me to the conclusion that you are simply not a suitable candidate for home detention.

[42]     The sentence will therefore be 18 months’ imprisonment.

Sentence

[43]     Shayne Paul Neilson, you are convicted of the offence of possessing cannabis for sale, and sentenced to a term of imprisonment of 18 months.

[44]     In addition to the standard conditions, there will be the following special condition:

(a)      You are to attend and complete assessment for substance abuse, and such counselling, education or treatment programmes as directed by the probation officer.

[45]     That special condition is to apply for six months after the sentence expiry date.

Solicitors:

Crown Solicitor’s Office, Dunedin

W H Henderson, Dunedin