R v Olsen

[2012] NZHC 814

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-004-021207 [2012] NZHC 814

THE QUEEN

v

SHANE OLSEN

Hearing:         24 April 2012

Appearances: K C Francis for Crown

D G Reece for Prisoner

Judgment:      24 April 2012

SENTENCING NOTES OF PETERS J

Solicitors:           Meredith Connell, Crown Solicitor, Auckland: [email protected]

Counsel:            D G Reece, Barrister, Auckland –  [email protected]

R V OLSEN HC AK CRI 2011-004-021207 [24 April 2012]

Offences

[1]      Mr Olsen, I am sentencing you on the following charges, to which you have pleaded guilty:

(a)       supplying cannabis;[1] and

[1] Misuse of Drugs Act 1975, ss 6(1)(e) and 6(2)(c).

(b)      possession for supply of a Class C drug, namely cannabis plant;[2] and

(c)       possession of a restricted weapon.[3]

[2] Ibid, ss 6(1)(f) and 2(c).

[3] Arms Act 1983, s 50(b).

[2]      The maximum penalty on each of the drug charges is up to eight years’ imprisonment and on the weapons charge it is three years’ imprisonment and a fine of $4,000.00.

Facts

[3]      The facts are as follows.  In February 2011 the Auckland Drug Squad started what they called Operation Shelby, which investigated your activities and those of your associate, Terence Winsor.   In the course of that operation the Police began recording by video the address that you and Mr Winsor were living at in Grey Lynn. Over the following months it was clear that large numbers of persons were visiting the address every day, for one or two minutes at a time.  Between 10 March 2011 and

16 August 2011, just over five months, the number of people coming to the address on any given day ranged from 53 at the low end up to a maximum of 182.

[4]      On 16 August 2011 the Police executed a search warrant at the address.  You and Mr Winsor were there.  You were holding a stun gun when the Police came in,

and you had it turned on.

[5]      The Police found:

(a)       104 cannabis cigarettes wrapped in tinfoil inside a kitchen cupboard; (b)      a snap-lock bag holding 3 grams of cannabis plant material;

(c)       two tinfoil wraps containing cannabis plant material;

(d)      about $850.00 cash under the mattress in your bedroom; and

(e)       another stun gun in the wardrobe in your bedroom.

[6]      The  Police  seek  an  order  forfeiting  $1,430.00  cash  which  they  say  was located on you at the time of your arrest.  They also seek an order forfeiting the stun guns.  They also seek an order for destruction in respect of the drugs.  There is no objection to me making those orders and I make them accordingly.

Personal circumstances

[7]      I have read the helpful pre-sentence report prepared regarding you Mr Olsen. You are aged 36.   You have nine previous convictions which are for assault, disorderly behaviour  and  driving  with  excess  breath  alcohol  but  none  are  drug related.

[8]      You have had jobs in the past and I am pleased to hear that you might have secured one at present.   As I understand it, the most recent position prior to this offending unfortunately was made redundant which meant you were unemployed, and this is when the offending started. You have two sons, aged 13 and 16.  Both are living in Australia with their mothers but I understand from the pre-sentence report that you see them reasonably regularly.

[9]      You have said that you were short of money when you became unemployed and that this offending started so that you could make some extra money.  You said you obtained the stun guns so that you could protect yourself and your girlfriend, because there were some young gang members hanging around the units where you

and Mr Winsor were living, and they were abusing Mr Winsor, and throwing rocks and Molotov cocktails at the units.

[10]     Mr  Olsen,  you  have  been  lucky  in  many  respects.    First,  you  have  an excellent relationship with your parents.  In the pre-sentence report you are reported as describing your upbringing as “one in a million”, saying that you have “awesome support” from your parents and that you maintain a close relationship with them. Many people that come before the Courts do not have that advantage.

[11]     Secondly, you are clearly a capable person.  You got four subjects for School Certificate and I hope that you will start to use that intelligence for something that is likely to be useful to you and to your sons.

[12]     Thirdly, the pre-sentence report says that you do not drink too much alcohol, you do not gamble, and you do not use illegal drugs yourself.  Those are all very encouraging features.

[13]     What is discouraging about the report is that it suggests you cannot see that this type of offending, the supply of drugs, is wrong and that it has a serious impact on society.  The Probation Officer’s view of it is that, although you say that you are sorry,  you  are  really  only  sorry  that  you  got  caught.    You  have  also  blamed Mr Winsor, saying that were only the “middle man”.

[14]     The report also says that you do not think you need to attend  a tikanga education programme.  That is disappointing because these types of programme are often very helpful, and you might actually get some benefit from it.  As I understand it, Mr Olsen, your view of it is that if you can only get a job, you can be relied on to stop offending. You need to comply with the law, Mr Olsen, job or no job.

Approach to sentencing

[15]     In sentencing you today Mr Olsen, I need to do four things.

[16]     First, I need to identify the “lead offence”.   The Crown and your lawyer, Mr Reece, agree that the most serious charge, and that is the one we take as the lead offence, is the supply of cannabis charge.  I am going to take that as the lead offence.

[17]     Secondly,  I need  to  decide what  the  starting  point  is  for that  offending. Where that starting point should be is the main area of disagreement between the Crown and your lawyer, Mr Reece.   The Crown says the starting point should be somewhere between two and a half to three years’ imprisonment, and your lawyer says it should be somewhere between two and two and a half years’ imprisonment. Where that starting point gets set will have a major impact on your sentence.

[18]     Once I have arrived at the starting point, I have to increase it to take account of the fact that you had the stun guns.  Both lawyers are agreed that an uplift in the region of three months for that factor is appropriate and I agree with that.

[19]     Fourthly, I need to increase or reduce the sentence on account of matters that are personal to you.  The main factor here is your guilty plea.  Both lawyers agree that a reduction by as much as 25 per cent would be appropriate given that you pleaded guilty at the earliest possible time.

Starting Point

[20]     In adopting a starting point, I need to remind myself why I am sentencing you and the principles I need to apply.

[21]     There is no dispute that I am to impose a sentence that holds you accountable for the harm your offending has caused – and it will have caused harm – that makes you  understand  that  you  are  responsible  for  that  harm,  that  denounces  your offending, that deters you and others from behaving in the same way in the future and that protects the community.

[22]     I must also bear in mind certain principles.  The supply of cannabis offending is serious.   I will sentence you on the same basis as others who have committed similar offences have been sentenced and I am required under the Sentencing Act

2002 to impose the least restrictive sentence that I can in the circumstances.  Those are the relevant purposes and principles.

[23]     I then need to think about this type of offending and what is aggravating or mitigating about it, just in relation to the offending itself, nothing to do with you personally. The aggravating features I see are that:

(a)      It takes planning to source drugs for supply.  It is not something that is done on the spur of the moment.

(b)Secondly, you were involved in this offending for at least five months, so it was not short lived.  The number of people visiting your address over those five months indicates that you and Mr Winsor were heavily involved in this enterprise.

(c)      Thirdly, you had more than 130 grams of cannabis material at the property.  It is difficult to put a precise figure on what was yours and what was Mr Winsor’s but, regardless, it was a substantial quantity.

(d)Fourthly,  drug  offences  are  serious.    That  reason  is  because  the experts, not me, not you, not anyone in the courtroom, but the experts tell us that cannabis is harmful.  Some people may be able to tolerate the drug, but others cannot and the consequences for them, their families and for society are far reaching.   No one should fool themselves that supplying cannabis is a “victimless” crime because it is not.

[24]     Both sides agree that your offending falls within category two of R v Terewi.[4]

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

The Court  of Appeal  decided that  case and  set  out three categories  into  which cannabis related offending will generally fall.  As I say your offending falls within category two because it is small scale supply but for commercial purposes.  If you are in category two, Mr Olsen, then a starting point of somewhere between two and

four years’ imprisonment will generally be appropriate.

[25]     The Crown says that bearing that in mind, and what other Judges have done in other similar cases, I should adopt a starting point of two and a half to three years’ imprisonment on the lead charge of supplying cannabis.

[26]     Your lawyer says no, it should be slightly lower at two to two and a half

years’ imprisonment.

[27]     I have read the various cases to which I have been referred.  In two of them the Court adopted a starting point of three years and in R v Sadaraka[5]  the Court adopted a starting point of two years, nine months’ imprisonment.

[5] R v Sadaraka HC Auckland CRI-2008-092-16662, 5 June 2009.

[28]     The first case is R v Wong.[6]     I consider Mr Wong’s offending to be more serious than yours because he also had methamphetamine in his possession and he offended on two separate occasions.  Mr Wong had 60 tinnies in his possession when he was caught and the Police also found a point bag of methamphetamine crystals and another tinnie of cannabis at his house.  On a later occasion Mr Wong was found at premises where 21 tinnies were located.  In Mr Wong’s case the Judge adopted a starting point of three years’ imprisonment.

[6] R v Wong HC Auckland CRI-2006-092-5126, 13 October 2006.

[29]     The next case, R v Siakifilo,[7]  involved 213 individually wrapped cannabis tinnies and $1,430.00 cash.   Mr Siakifilo admitted that the tinnies were for sale. Again, the quantity involved made it more serious than your offending.  The Judge adopted a starting point of three years’ imprisonment.

[7] R v Siakifilo HC Auckland CRI-2006-092-9756, 27 February 2007.

[30]     In R v Sadaraka the Police found 199 grams of cannabis plant material, numerous pieces of cut tin foil, rolls of tin foil and snap lock bags.  The total weight located was 199 grams of cannabis, so again substantially more than in your case. They also found a safe holding more than $6,500.00 in cash.  In that case the Judge adopted a starting point of two years, nine months’ imprisonment and, as I say, it is

again different to your case because of the quantity involved.

[31]     Bearing all of those factors in mind I propose to adopt a starting point of two

years, eight months’ imprisonment.

[32]     I also propose to uplift that sentence by three months, to take account of the arms charge.  I would impose a concurrent sentence on the arms charge because, as I see it, this is all part of the same offending and course of conduct.  That would make the starting point  two  years,  11 months’ imprisonment before any discounts.    I consider that appropriate to reflect the totality of the offending.

Adjusting the Starting Point

[33]     I then  need  to  consider  whether there  are  any aggravating  or  mitigating factors relating to you personally Mr Olsen.  There are no aggravating factors.  The Crown agrees that I can put your prior convictions to one side on the basis they are not relevant to the present offending and are historic.

[34]     In terms of the mitigating features relating to you, your counsel has suggested that you are remorseful.  I have to say the comments that you made to the Probation Officer suggest the opposite and indicate to me that you do not understand the harm that this type of offending may cause.  Accordingly I am not willing to allow any reduction on account of remorse.

[35]     You did, however, plead guilty at the earliest opportunity and I agree that I should allow the maximum reduction of 25 per cent to your sentence because of that factor.[8]

[8] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Home Detention

[36]     Given that reduction Mr Olsen,  I am left  with a sentence  of two  years’

imprisonment, and I must consider whether I should impose a sentence of home detention in place of imprisonment.

[37]     Mr Reece has asked me to consider a sentence of home detention.  There is a home detention address available, with your parents. The fact that they are willing to let you serve such a sentence at their address is yet another indication of the support they have offered you.

[38]     The Crown, while recognising this sentence may fall within a range where home detention must be considered, submits that the ordinary sentence response for those who deal in drugs, especially from their home, is a term of imprisonment because of the necessity to deter and denounce such conduct.

[39]     Ordinarily, as the Courts have repeatedly said, and the Crown has said today, those convicted of dealing in controlled drugs will face a sentence of imprisonment. The personal circumstances of the offender must be subordinated to the importance of deterrence.   But that does not mean that personal circumstances can never be relevant.

[40]     By a very narrow margin Mr Olsen I have concluded that a sentence of home detention is the appropriate sentence for you in relation to this offending.  That is for two reasons.  First, you do not have a history of this type of offending.  I hope that this will be the last of it.  If you are convicted in future of any drug-related supply offending you cannot expect to receive a sentence of home detention.

[41]     Secondly, I am willing to consider home detention because your parents are willing to support you.  I would not do so otherwise.  As I say Mr Olsen I wish this to be the last of your offending and my hopes are resting on your intelligence and your parents’ support.

[42]     Home detention is not a soft option.  It is a demanding and difficult sentence to serve.  You and your parents may under-estimate the commitment that is required to complete such a sentence.  I intend to impose conditions as part of the sentence and strict adherence to these conditions will be required.

Sentencing

[43]     Please stand Mr Olsen:

(a)       on the charge of supply I impose a sentence of 12 months’ home

detention.

(b)      on  the  charge  of  possession  for  supply,  I  impose  a  sentence  of

12 months’ home detention; and

(c)       on  the  charge  under  the Arms Act,  I  impose  a  sentence  of  three

months’ home detention.

[44]     These sentences are to be served concurrently.   That means that your total

sentence is 12 months’ home detention.

[45]     The conditions that I attach to your sentence are as follows:

(a)      you are to travel directly to 240 Valley Road, RD 1, Whakatane and you are to await the arrival of the monitoring company and the supervising Probation Officer;

(b)you  are  to  reside  at  240  Valley  Road,  RD  1,  Whakatane  for  the duration of the home detention sentence;

(c)      you are to undertake alcohol and drug counselling to the satisfaction of your supervising Probation Officer and the programme provider;

(d)you are not to purchase, possess or consume alcohol or illicit drugs for the duration of the sentence;

(e)      you are to attend and complete such counselling programmes and treatment to address identified offending behaviour as may be directed by your Probation Officer to the satisfaction of your Probation Officer and programme provider; and

(f)      any  proposed  employment  or  study  is  to  be  approved  by  the supervising Probation Officer to ensure that all monitoring requirements are met.

[46]     Stand down Mr Olsen.

..................................................................

M Peters J