R v Phillips

[2013] NZHC 233

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-042-2382 [2013] NZHC 233

THE QUEEN

v

BERNARD PHILLIPS

Hearing:         18 February 2013

Counsel:         L McGuinniety for Crown

W Jones for Prisoner

Sentencing:     18 February 2013

SENTENCING NOTES OF MILLER J

[1]      Mr Phillips, you appear today for sentence on two charges, one of selling cannabis and the other of offering to sell it.   The District Court has declined jurisdiction on the ground that the appropriate sentence may exceed the one year’s imprisonment available in that Court’s summary jurisdiction.

[2]      The  facts  are  that  your  cellphone  traffic  was  analysed  after  the  police identified you as a possible drug dealer.   The data revealed that you were an industrious seller of cannabis at the retail level.  Over the period 30 April to 23 July

2012 there were 338 text conversations in which you offered to sell the drug.  These offers involved 55 different phone numbers.   You deal mainly in tinnies, but occasionally  in  ounces  and  half  ounces.    You  admitted  dealing  the  drug  when

apprehended.

R v PHILLIPS HC NEL CRI-2012-042-2382 [18 February 2013]

[3]      There is a pre-sentence report and a drug assessment.   The former records that you are aged 21 and were born in Fiji.  Your father continues to live there, and you report being estranged from your mother, who has remarried in this country. You did not achieve well at school but you have had some short term employment since. You are currently single but have a good relationship with your former partner and see your younger child regularly.  I am told that child is aged 11 months.  You say that you sold cannabis to address financial problems and claim you only sold to friends.   That latter claim is obviously nonsense.   You have several previous convictions only one of which, possession of cannabis, is relevant, and you are considered at low risk of reoffending.  That assessment seems to be a little generous because I would regard you as being at risk of further drug offending unless you are successfully treated.   The alcohol and drug assessment confirms that.   It says you have a harmful pattern of drug use;   you exhibit signs of dependency.   Outpatient treatment is recommended.

[4]      You have sought home detention.  The probation officer opposes, considering that the rural address is unsuitable and saying that you lied to her about who was living there.  Your ex-partner lives there, but you apparently sought to hide the fact. There are also indications that if you are on home detention you will be unable to pay the rent and the police oppose, noting that you offended from the home.  The last of these reasons is sufficient in my opinion to rule the address out for home detention purposes.

[5]      Your  case  falls  into  the  category of  small  scale  commercial  dealing.    It normally attracts a starting point of two to four years imprisonment.   I am not prepared to accept that the starting point should be lower than that.  This was plainly commercial activity.   I will take a starting point of two years and three months imprisonment.

[6]      You are entitled to a discount of 25 per cent for your early guilty pleas.  I am told that you do have prospects of rehabilitation, and you are completing a drug counselling course at present.  It cannot be described, however, as one of those cases where exceptional leniency is appropriate having regard to a demonstrated commitment to rehabilitation.  It seems to me too little too late.  So I will not allow

any further deduction for that.   That means your sentence will be 20 months imprisonment.

[7]      You  are  a  suitable  candidate  for  home  detention  provided  there  is  an appropriate address, but as I have said, I am not prepared to countenance the address you have offered having regard to the several objections that have been made.

[8]      I will give you leave to apply under s 80I of the Sentencing Act.  What that means Mr Phillips is that if you can find an appropriate address you can apply to the Court to cancel your sentence of imprisonment and substitute a sentence of home detention, but you will need to find a suitable address and you need to persuade the Court that that is a proper thing to do. All I have done is given you leave to apply, so I recommend that to you.

[9]      You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for the Crown

Zindels, Nelson for Prisoner