R v Phillips

[2012] NZHC 3255

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-027-1169 [2012] NZHC 3255

THE QUEEN

v

NEIL ARTHUR PHILLIPS

Hearing:         4 December 2012

Counsel:         C A Anderson for Crown

D Blaikie for Prisoner

Judgment:      4 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Counsel:

D Blaikie, PO Box 382, Kaikohe

R V NEIL ARTHUR PHILLIPS HC WHA CRI 2012-027-1169 [4 December 2012]

Introduction

[1]      Neil Arthur Phillips, you appear for sentence today having pleaded guilty to six counts of selling the Class C controlled drug cannabis and six of possessing cannabis for the purpose of sale.

[2]      Those pleas were entered in the District Court at Kaikohe on 23 July 2012. Jurisdiction was declined.[1]  You are now in the High Court for sentence.

Facts

[1] R v McLeod [1998] 2 NZLR 65 (CA).

[3]      Your offending was detected during the course of a Police operation that took place between 17 November 2011 and 27 June 2012.   Your specific offending, however, was limited to a period of some two months.  The first visit by the special duty constable to your home was on 20 April 2012 and the last on 21 June 2012.

[4]      During that time there were sales in respect of $50 bags and it was also made clear that ounce bags could be sold for between $300 and $350.

[5]      When the search warrant was executed and  your car was searched,  four cannabis bags were located.  While I understand you dispute some aspects of that, I must proceed on the agreed summary for the purpose of sentencing.

Analysis

[6]      I take into account that the offending covers a relatively short period of time particularly in comparison with other offending that has been detected during the same operation with which I have been dealing over the last day or so.

[7]      However, it does appear that you had the ability to secure product relatively easily.  You were able to sell both in ounces and $50 bags.  The amount, however,

that you received during this period was relatively small.   The cash involved was

$580 and, if one were to fix a dollar value for the amount of cannabis in your possession for sale, one would arrive at a total figure of about $1630.

[8]      My task is to assess where on the continuum of business your offending falls. There is a range of between two years and four years imprisonment as a starting point.  I use a starting point of two years six months.[2]

[2] R v Terewi [1999] 3 NZLR 62 (CA) at para [4].

[9]      The  next  step  is  to  consider  whether  there  are  any  aggravating  factors personal to you.  I discount for present purposes the earlier drug offending.  That was some time ago and I consider that those convictions ought to be regarded as spent. There are however, other convictions which have continued on into 2010.   I am concerned that your record suggests that you have difficulties with both drugs and with anger management.  Those issues will need to be addressed and you need to be willing to address them seriously if you are to get your life back on track, whatever I do with you today.

[10]     I intend to add a one month allowance for those aggravating factors.  That leaves a provisional starting point of two years and seven months.

[11]     You are entitled to credit for your early guilty pleas.  I give that credit at 25%, which I round to seven months.[3]  That would bring a sentence of imprisonment down to two years.  That means I need to consider whether you are a suitable candidate for home detention.

[3] Hessell v R [2011] 1 NZLR 607 (CA) at para [75].

[12]    You will have heard me talk to your counsel during this hearing about contradictions in your character that I can see.  While the court is not particularly keen to have this happen, when you came into Court and your two boys went over spontaneously to greet you, it was very clear to me the nature of the relationship you have with them.  It is clear that you have done a very good job raising your children.

[13]     But then, on the other hand, you go and behave like this and behave in a manner that shows a lack of control of yourself which then, as you now understand,

has put members of your family in jeopardy.

[14]     Now, the decision for me today is whether to give you one last chance or whether to send you to jail.  I must say that when I came into Court this morning I was leaning towards a prison sentence.  The reactions that I have seen in Court today and the submissions made by Mr Blaikie have persuaded me, by a very fine margin, that I ought to give you an opportunity to make good yourself and probably to repay your children  for the time  you have spent  away from them, through  your own stupidity, in being involved in actions of this type.

[15]     I  am  going  to  impose  conditions  that  will  require  you  to  undertake counselling and programmes relating to both anger management and drug abuse.  If you do not approach those with an open mind and a real willingness to succeed, I suspect you will find yourself back in here before another Judge facing sentence. Now, it is your choice whether that happens or not.  So, you hold the key to your own destiny at this stage.

Result

[16]     On each charge you are sentenced to a term of 12 months home detention. The standard conditions will apply.  In addition the following special conditions will be imposed:

(a)      You are required to undergo such programme or counselling on drug related or anger management matters as may be recommended by your probation officer and to complete that programme to his or her satisfaction.   Those conditions will also apply to the post-detention period.

(b)When leaving this Court you shall go directly to report to a probation officer at Community Probation Service in Kaikohe.

(c)       You shall travel there by the most direct route.

(d)You shall reside at 50A Amokura Drive, Kerikeri and not move from that address without the prior written approval of a probation officer.

(e)       You  shall  not  purchase,  possess  or  consume  alcohol  and/or  illicit drugs for the period of the sentence.

(f)       You shall not permit alcohol and/or illicit drugs to be present at the address at which you are residing.

[17]     I still have some misgivings about whether I am doing the right thing today.  I

hope you will prove in the fullness of time that I have made the right decision.

[18]     Stand down.

P R Heath J

Addendum

[19]     I make an order for the destruction of drugs seized.

P R Heath J