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: kim.francis@meredithconnell.co.nz

Counsel: D G Reece, Barrister, Auckland – davidreece@nzcriminallawyer.co.nz

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 814
Decision Date: 24 April 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Olsen involved Shane Olsen, who was convicted on charges of supplying cannabis, possession for supply of a Class C drug, and possession of a restricted weapon. The case was heard on 24 April 2012, with K C Francis representing the Crown and D G Reece representing the defendant. The court was required to decide the appropriate sentence for Olsen, considering the nature and seriousness of the offences, as well as the personal circumstances of the offender. The central issues involved determining the appropriate starting point for the sentence, adjusting it for relevant factors, and deciding whether home detention or imprisonment was more suitable.

The court, presided over by M Peters J, first identified the lead offence as the supply of cannabis. The court acknowledged the seriousness of the offence, considering factors such as the planning involved, the duration of the offending, the quantity of drugs involved, and the harmful effects of drug supply. The court compared Olsen's case with previous cases to determine a suitable starting point, eventually settling on two years and eight months' imprisonment. The court then adjusted this starting point by adding three months due to the possession of restricted weapons, and reduced it by 25% for Olsen's early guilty plea. Given these adjustments, the court determined that a sentence of home detention was appropriate, considering Olsen's lack of prior drug-related convictions and the support available from his parents. The court imposed conditions on the home detention sentence, including mandatory alcohol and drug counselling, restrictions on alcohol and drug consumption, and approval of employment or study by the supervising Probation Officer.

The final orders of the court were that Olsen would serve 12 months of home detention for the supply charge, 12 months of home detention for the possession for supply charge, and 3 months of home detention for the charge under the Arms Act, with all sentences to be served concurrently. This decision reflects the court's emphasis on both the seriousness of the offences and the potential for rehabilitation through home detention, supported by the conditions imposed.

Orders