R v Reid HC Auckland CRI 2010-006-570

[2010] NZHC 1890

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-006-570

THE QUEEN

v

WILLIAM PATRICK REID

Hearing:         21 September 2010

Counsel:         R E Savage and K E Hogan for Crown

S L Opai for Prisoner

Judgment:      21 September 2010

SENTENCING NOTES OF MacKENZIE J

[1]      William Patrick Reid you appear for sentence on one count of possession of cannabis for supply.   You pleaded guilty to that charge in the District Court in Blenheim  on  12 April 2010.    You  were  referred  to  this  Court  at  Blenheim  for sentence and the matter was subsequently transferred to Auckland.

[2]      Before I come to sentencing, there is an application by the Crown for an instrument forfeiture order made in respect of the motor vehicle which you were driving when you were apprehended, and in which the cannabis was found.   The necessary procedural requirements for the making of an instrument forfeiture order have been carried out.   The case for forfeiture is a clear and obvious one, in that much of the cannabis was found in your vehicle.  Your counsel, quite properly, does

not oppose the making of an order.  In those circumstances, I do not consider that a

R V REID HC AK CRI-2010-006-570  21 September 2010

separate hearing of the application is necessary, and I am able to deal with the application at this hearing.  At the outset of the hearing I indicated to counsel after inviting them to make any oral submissions they wished in support of their written submissions on the point that I considered it appropriate that an order be made, and counsel were able to make submissions on sentencing on that basis.

[3]      The facts are that on the evening of Sunday 14 March 2010 police executed a search warrant under s 18 of the Misuse of Drug Act on your vehicle as you drove off the Inter Islander ferry in Picton.  The vehicle was registered to you and you were the driver and sole occupant.  Upon opening the doors of the vehicle police noted a strong smell of cannabis.  In a chilly bin they found 14 ounce bags of cannabis head and one bag containing approximately 242 grams of cannabis head.  There were also: two buckets containing six plastic bags with approximately 2.63 kilograms of cannabis head;  one ounce bag containing cannabis head;  one .22 calibre rifle and ammunition;  and $1,385 in cash of various denominations.  At the same time police executed another search warrant at your home address in Blenheim.  In a shed they found ten ounce bags containing cannabis head, two rifles and one shotgun.   The street value is estimated for the cannabis, that if sold in ounce form, it could attract a street value of between $31,000 and $63,000.  As to the firearms found, you were a licensed  firearm  owner  and  so  lawfully in  possession  of  those  weapons.    You acknowledged ownership of the cannabis and entered an early guilty plea.

[4]      You are 55  years of age and have lived an outdoor life involved in the forestry and fishing industries and in hunting.  You have clearly been a hard worker all your life although age is catching up with you somewhat in limiting your ability to continue the active outdoor life which you have led.  Your former employer for whom you had worked for four or five years as a paua diver speaks very highly of your work.  There are a number of other positive references from family members and friends.  There are no issues of alcohol or drug abuse.  You have no history of previous offending of this sort.   Your only previous convictions are two driving convictions which are now over 35 years old.

[5]      I must first fix a starting point for  your offending, having regard to the aggravating and mitigating factors relating to the offending.   The total amount of

cannabis found was approximately three and a half kilograms.   Counsel for the Crown submits that the offending falls within category 2 of R v Terewi and your counsel agrees with that assessment.[1]     The Crown submits that a starting point should be between three and three and a half years imprisonment.   Your counsel submits that it should be somewhat lower.  The count which you face is possession for  supply,  not  cultivation.    You  claim  that  you  had  come  across  the  cannabis growing in the bush while hunting and that you had harvested the crop and dried it. There is no evidence which would suggest that this was part of an ongoing operation,

and I approach the task of fixing a starting point on the basis that this was a one off involvement albeit a quite large one.   The presence of firearms in a drug dealing context is ordinarily a serious aggravating factor.  In your case, I do not regard it as so.  You were licensed to have the firearms and they would have been necessary for your hunting activities.  I consider that an appropriate starting point, having regard to all the circumstances of the offending, would be a point close to the three year start point which the Crown has submitted, possibly slightly less than that.  I need not be more precise than that for the reasons to which I will come.

[1] R v Terewi [1999] 3 NZLR 623.

[6]      There are no aggravating personal factors.  You are entitled to a reduction of one third to reflect your early guilty plea.  You have taken responsibility and you are to be commended for that.  That would leave an end sentence, even if I were to adopt a starting point as high  as three  years, which  would be within the range  for  a sentence of home detention.   Because of that I consider that the other mitigating personal factors are best taken into account in determining whether that option is appropriate here.

[7]      Personal circumstances can ordinarily carry little weight in cases involving drug dealing.  But personal circumstances can influence the choice of a sentence of home detention in preference to one of imprisonment particularly where there has been an acceptance of responsibility for the offending by entering an early guilty plea, and where there are prospects of rehabilitation which justify imposing home detention.

[8]      You have entered an early guilty plea and your comments to the probation officer, and your letter to the Court, which I have read, indicate that you accept responsibility and are prepared to take the punishment imposed on you and that is to your credit.  You are effectively a first offender.  That too is to your credit.  There is nothing in your past which would suggest that a sentence structured to achieve a strong rehabilitative component would not be appropriate.   I consider that rehabilitation is likely to be better achieved with a non-custodial sentence.   The sentence must also reflect the sentencing purpose of deterrence.   Because you are effectively a first offender I consider that the necessary deterrence may be achieved by a sentence short of a custodial one.  A further relevant personal circumstance is your family situation.  You are a member of a close and supportive family, as is clear from the letters of support from your family.  You have elderly parents and the shock and distress to them of the imposition of a custodial sentence on  you could be significant.  These are factors which enable this Court to adopt a merciful approach in determining an appropriate sentence.

[9]      There is a suitable address available for home detention with electronic monitoring.    That  is  with  your  sister  and  brother-in-law  and  their  two  young children.  They are willing to have you serve the sentence in their home.  Your sister has written a letter of support for you.  She is particularly concerned about the effect of your offending on your parents.  There is nothing in your past which suggests to me that your presence in the household would be a bad influence for the two children such as might make home detention at that address inappropriate.

[10]     In all the circumstances, I have come to the conclusion that this is one of those cases of drug offending in which a sentence of imprisonment may properly be avoided.  I consider that the necessary purposes of sentencing can be achieved by the imposition of a sentence of community work in conjunction with a sentence of home detention.

[11]     I must fix the term of home detention.  That needs to be related to the term of imprisonment which would otherwise be imposed and it needs to take into account the different conditions which attach;   namely that you will serve the whole of a sentence of home detention not the one half which you would serve if a short term of

imprisonment were imposed on you.   In fixing the term I take into account the various mitigating factors which I have mentioned in coming to the conclusion that the home detention sentence is appropriate.  I also take into account the time that you have spent on restrictive bail conditions and make some allowance for that in that the terms of restriction when compared to a sentence of home detention do, in my view, justify some allowance.   I also take into account the instrument forfeiture order which I have indicated that I will make.

[12]     Taking all those matters into account I consider that the appropriate term of home detention is ten months.   The maximum that I could impose would be 12 months.   But I consider having taken the matters into account that a ten month sentence is appropriate.   I also consider that you should, as the probation officer suggests,  serve  some  time  of  community work  and  I propose  to  fix  a  term  of

150 hours community work.

[13]     Before finally coming and imposing the sentence on you I deal with the matters of forfeiture which arise.   As I have indicated there will be an instrument forfeiture order in respect of your 1991 Suzuki Samurai station wagon registration number ERN723.  I order destruction of the cannabis and drug paraphernalia seized. An order is also sought for the forfeiture of the cash found on you.  Counsel for the Crown submits that there is jurisdiction to order forfeiture on the basis that the money was to be used to acquire more cannabis so it can be said that it was to be used for the purpose of committing further similar offending.  Your explanation as to the circumstances of how this cannabis came to be in your possession, which I have accepted for the purposes of sentencing you, does not enable me to draw that inference and there will be no order as to forfeiture of the cash.

[14]     The sentence is that you will be sentenced to 150 hours of community work and to a sentence of ten months home detention.   That sentence is subject to the standard conditions and to the following special conditions.  Your conditions will be that you are:

a)       To travel to 11 Lemonwood Place, The Gardens, Manurewa and await the arrival of the probation officer and installation of the electronic monitoring equipment;

b)To remain at 11 Lemonwood Place, The Gardens, Manurewa and not to  leave  the  address  unless  given  approval  by  the  supervising probation officer for the duration of the sentence;

c)       To comply with directions as to electronic monitoring as directed by the probation officer;  and

d)To abstain from alcohol and illicit drug use for the duration of the sentence.

[15]     That is all, stand down.

“A D MacKenzie J”

Solicitors:           Crown Solicitor Auckland for Crown

Sharon Opai, Barrister, Taupo for Prisoner