R v R HC Tauranga Cri-2010-070-5854

[2010] NZHC 2073

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2010-070-005854

THE QUEEN

v

R

Appearances: T R Bayley for the Crown

M G Dixon for the prisoner

Sentence:       5 November 2010

SENTENCING NOTES OF PRIESTLEY J

Counsel:

T R Bayley, Crown Solicitors, P O Box 13063, Tauranga Central 3141. DX HP40041
Fax: [phone]. Email: t.bayley@rhjl

M G Dixon, P O Box 13110, Tauranga Central 3141. Fax: [phone]. Email: [email protected]

R V R HC TAU CRI-2010-070-005854  5 November 2010

[1]      These sentencing notes will be brief given that counsel have had discussions and that both counsel are of the view that the sentence I had in mind would be totally appropriate.

[2]      The prisoner appears on three charges laid under the Misuse of Drugs Act

1975.  His offending ranges from May 2009 to May 2010.  Three charges were laid against him summarily.  The first was cultivating cannabis, the second was selling cannabis, and the third was possessing cannabis for the purpose of supply.

[3]      The prisoner, to his credit, pleaded guilty on what was effectively the first available opportunity (approximately six weeks after the informations were laid) in July 2010.  He was convicted on those three charges by Judge Rollo, who, given the amounts of cannabis involved, declined jurisdiction.   Thus in terms of s 44 of the Summary Proceedings Act 1957 and s 3 of the Crimes Act the prisoner is now convicted on an indictable basis and can be sentenced to a term of more than 12 months imprisonment.

[4]      Regrettably, given that he has a partner and, at the time, six children, most of the offending appears to have been carried out in his home near Paengaroa.   The police executed a search warrant.  Cannabis leaf was found in various parts of the house.   So too were 325 cannabis seeds.   So too were approximately seventy prepackaged cannabis tinnies.

[5]      It is not necessary for me to say much about volumes and values.  The street value would have been in the range of $3,500.   The growing system which the prisoner had adopted was a hydroponic system.   The cannabis leaf approximated

1.4 kg.

[6]      The  prisoner’s  explanation  for  this  offending was  that  he  had  become  a regular and heavy cannabis user, in part because of various illnesses which cause him  pain.     He  has  been  on  an  invalid’s  benefit  or  a  sickness  benefit  for approximately 12 years.   There is medical evidence to the effect he suffers from spherocytis and nephrotic syndrome.

[7]      The  prisoner  described  the  financial  difficulties  under  which  he  and  his family laboured.  He began growing cannabis in part because he would not then have to pay for it and partly because he wanted to supplement his income.

[8]      The prisoner, to his credit, has accepted responsibility for his offending and has demonstrated some considerable insight into the consequences of it and particularly the risk to which he has subjected his partner and family.

[9]      The prisoner has nine previous convictions but none of them appear to relate to drug offending.  The most recent (apart from two breaches of community work in

2006), appears to have been for obstructing the police in 2001.   I note that the prisoner was not sentenced in respect of that until over four years after the offence date.

[10]     Counsel are agreed that in terms of the tariff case R v Terewi[1] the prisoner’s offending sits inside category 2.   Given the volumes and totality involved for this small scale cultivation and commercial supply I regard a start point of three years to be appropriate, ranging across all three charges.  There is no need for me to consider comparable authorities.  Counsel agree that this is an appropriate start point.

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

[11]     Having regard to the mitigating factors to which I have referred, particularly the effect of his offending on his family, his long standing health problems, his early guilty plea, and his remorse.  I would in the normal course of events have imposed a sentence of somewhere between one year ten months and two years imprisonment.

[12]     In terms of the Sentencing Act, however, and the relevant Court of Appeal authorities, having reached what would be regarded as a short sentence I need to turn my mind to whether a home detention sentence would be appropriate in the circumstances of the offending and the prisoner.

[13]     The  main  obstacle  with  such  a  sentence,  of  course,  would  be  that  the offending took place in the prisoner’s home.  He lives in what I understand to be a fairly isolated area.  However, there is no strong opposition to home detention as an

outcome by either the police or the Crown.  I note that the Child Youth and Family Service indicated some opposition, based on a perceived risk of the prisoner’s children being exposed to drug use.  However, that risk, in my view, is unlikely to be a sustained risk unless the prisoner reverts to his previous unacceptable behaviour.

[14]     Mr Dixon, who has served his client well in this, has obtained a report from Nga Kakano Foundation.   That report suggests that the prisoner is currently free from  drugs  although  I  note  the  DSM  iv  indicates  a  score  consistent  with  mild cannabis abuse.

[15]     The prisoner’s partner, who has recently had their seventh child, is in Court today.   She has provided me with a helpful letter, which I have read.   That letter describes the prisoner as being a very supportive partner and father over the 13 years which  they have  had  together,  which  includes  good  and  bad  times.    Were  the prisoner to be removed from the family unit it would obviously have a considerable and adverse impact on Ms Priest and the young children.  There is also a supportive letter from the prisoner’s father, which in simple terms tells me that his son is a brilliant father and partner but he knows that he has “stuffed up”.

[16]     What I think is required here is a home detention sentence coupled with appropriate conditions designed to rehabilitate the prisoner and also a degree of community work so that the prisoner is well aware he has not been let off lightly and that being detained in his own home is not a soft option.

[Stand up please]

[17]     Accordingly on all three counts I sentence the prisoner to 10 months home detention.   I also impose a sentence, to be served concurrently, of 150 hours community work.

[18]     At the conclusion of the sentencing procedure and related formalities today, the prisoner is to proceed to his address at 454 Allport Road, Paengaroa, in the Te Puke district to await the arrival there of a security officer and a probation officer.

[19]     Specific special conditions which I impose are:

a)       He is not to purchase or consume any alcohol for the duration of the home detention period.

b)        He is not to consume any illicit drugs.

c)      He is to attend and complete an appropriate drug and alcohol rehabilitation programme to the satisfaction of the probation officer and the programme provider.

d)He  is  to  undertake  budgeting  advice  to  the  satisfaction  of  the probation officer.

e)       He is to report to any other programmes which the probation officer may direct.

f)        He is to attend and complete any counselling programmes, including any programmes which are family or father related, as directed by the probation officer.

[20]     On the issue of community work I direct that the Corrections Department is to be alert to the prisoner’s health situation.  It seems to me that community work which might play to the prisoner’s clear strengths of dealing with young people, particularly young families, rather than heavy manual work would be desirable in this particular situation.

.......................................… Priestley J