R v S HC Ak CRI 2008-092-11895

[2010] NZHC 45

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-092-11895

CRI 2008-092-11896

THE QUEEN

v

S
S

Charges:Possession of cannabis for supply; Selling cannabis;

Possession of morphine

Plea:               Guilty

Appearances: Nick Malarao for Crown

Murray Gibson for Joseph S 
Edith Te Whata for Dawn S 

Sentenced:     9 February 2010

Mr S- 2 years 4 months on cannabis charges; convicted and discharged on morphine charge

Mrs S- 10 months home detention; convicted and discharged on morphine charge

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown Murray Gibson (Auckland) for Joseph S   Edith Te Whata (Manukau City) for Dawn S 

R V S AND ANOR HC AK CRI 2008-092-11895  9 February 2010

Introduction

[1]      Mr and Mrs S  , you appear for sentence today having each pleaded guilty to joint charges of possessing cannabis for supply, selling cannabis and possession of morphine.  The maximum term of imprisonment for which you are eligible is eight years.

Facts

[2]      The facts are not in dispute.  The police searched your property in July 2009. They found  41  grams  of  cannabis  plant  including tinnies  pre-prepared  for  sale, measuring scales, four tablespoons of morphine which had been prepared for consumption and frozen, and significantly $3,075 in cash.  Both of you admitted to the police that you were in possession of the plant material, the implements and the money.

Starting Point

[3]      Against those depressingly common facts I must fix the starting point for your sentence.  The starting point is the term of imprisonment which is appropriate to reflect the circumstances of the offending.  Once that is fixed it may be adjusted upwards, for any adverse or bad features, or downwards, for any favourable or good features.

[4]      I do not need to dwell at length on the starting point.  The Crown submits that the appropriate level is three years.   Mr Gibson on Mr S  's behalf has, as you have heard, persuaded me that two-and-a-half years is the more appropriate starting point.  Ms Te Whata agrees.  Accordingly, on the facts of the offending themselves, a sentence of three years imprisonment would be appropriate to reflect the standard principles of denunciation, deterrence and accountability.

[5]      Mr S  , you are aware that there are two aggravating features.  First, there is your background.   You have many previous convictions.   You are not being

sentenced for those.   You are, however, subject to an uplift or increase for your convictions for this type of offending.   For  example, in March  2009  you were sentenced for possessing cannabis for supply and possessing utensils for methamphetamine.   Earlier in 2005 you were sentenced for cultivating cannabis. Those facts alone justify an increase of six months.

[6]      Second, you committed this offending while you were subject to an earlier sentence of community work.   That was a merciful penalty imposed on you on

5 March 2009 for possession of cannabis for supply.   When you committed these offences you had only served 77 hours out of the total 400 hours service.  The Court of Appeal has said that this factor in itself justifies an increase.   I agree.   It is appropriate that the starting point should be increased upwards by a further six months.  The ultimate starting point is three years six months.

[7]      There are no aggravating circumstances relating to Mrs S  .  While she has convictions in February and March 2002 relating to cultivation of cannabis and possessing cannabis plant, I am satisfied that they are sufficiently historical in nature to be left there.  They do not impact on the starting point.  Accordingly, Mrs S  , your starting point is two years six months.

Mitigation

(1)      J S 

[8]      Mr S  , against your adjusted starting point of three years and six months, you are entitled to a substantial discount for your plea of guilty.  Arguably it could have been entered the day after you were arrested.  However, it was not.  There is some suggestion that the plea was entered on the third appearance.   Mr Gibson is unable to explain why.  He was not appearing for you then.  However, I am prepared to give you the benefit of any doubt and to give you a full discount of one third for entering a plea.  You know, Mr S  , a plea of guilty is given a lot of weight by a Court.  It reflects remorse on your part and it saves the state the cost of a trial.

[9]      Unfortunately there are no other mitigating factors.  You are 40 years of age. You live in a stable relationship with your co-accused, Mrs S  .   You have a number of children.  You have many previous convictions.  However, Mr S  , I am satisfied that they are largely a consequence of your previous alcohol addiction. To your credit you have overcome that problem.  Regrettably, though, it has been replaced by an addiction to other substances, namely cannabis and morphine.

[10]     For what it is worth, having read your report, I believe you have a number of positive qualities.   You can make something of your life.   But it is for you to determine where and when you do that.  You know that if you participate in this type of offending again you will be caught inevitably and come back here.  You will then be sentenced to increasing terms of imprisonment.  That is not to your advantage, or the community.

[11]     In the end result, allowing a full discount of 33% for your guilty plea against the adjusted starting point of three years and six months, you are sentenced today to a term of two years and four months imprisonment on both the cannabis charges. You are convicted and  discharged on the charge of possessing morphine.   The sentences of imprisonment are concurrent.   More importantly, Mr S  , I have acceded to Mr Gibson's submission.  An order is made discharging you from serving the balance of the order for community work;  in other words,  you will not be required to serve  any more hours of  community work pursuant to the sentence imposed in March 2009.  I hope that factor is treated by you as a mark of leniency. Use it to your advantage.

[12]     I cannot persuade you to change your ways.  It all rests in your hands.  It is encouraging to know that you are prepared to participate in courses which will assist in treating your addictions.  If you do that you have my best wishes.

[13]     An order is made forfeiting the sum of $3,075 and for destruction of the cannabis material.  Please stand down.

(2)      D S 

[14]     Mrs  S  ,  against  your  starting  point  of  two-and-a-half  years,  you  are entitled also to a reduction of one third or 33%.

[15]     You are 43 years of age.  You have had, as the probation officer observed, a bleak childhood.  You have suffered all of the consequential disadvantages.  I accept that you have done the best for yourself.  You have, however, a number of previous convictions.  Of most importance is the probation officer's assessment that with the right rehabilitative steps you present a low risk of re-offending.  The plea of guilty, as you heard me say to your husband, is important.   It reflects your remorse and atonement.

[16]     Accordingly the appropriate end sentence, allowing a full discount against the starting point of two years and six months, is one year and eight months imprisonment.

[17]     There is one other question.  Should you be sentenced to prison or allowed home detention?  Normally when people deal from their houses, home detention is not an option.  But, having read carefully what Ms Te Whata has said and heard her today, I think an exception should be made for you.  There is an appropriate address. Home detention, Mrs S  , is no easy option.  You will be confined to the property in Manurewa for a lengthy term.  You know that you are not allowed to leave except under special circumstances.   That confinement will create its own tensions, especially as there are a number of other occupants at the same address.  That will put pressure on those people.   It will be a major task for you to manage it.   I emphasise again, home detention is not a soft option.

[18]     In the circumstances  you are sentenced to home detention for a term of

10 months subject to these conditions:

(1)Immediately following sentence you are to travel to 69 Mahia Road, Manurewa and await the arrival of a probation officer and a representative of the monitoring company;

(2)      You are to reside at that address for the duration of your sentence of home detention;

(3)You are not to consume or possess alcohol.  I am not going to make a prohibition on illegal drugs.   That is because if you do consume an illegal drug, your sentence will be revoked and you will be sent to prison;

(4)You  are  to  attend  an  assessment  for  drug  abuse  and  attend  and complete an appropriate drug treatment programme if and as recommended by the assessment to the satisfaction of your probation officer and programme provider.  Details of the programme are to be determined by the probation officer.  That will be the only occasion on which you will be able to leave the address unless you obtain meaningful employment which is satisfactory to the probation officer.

[19]     You are convicted and discharged on the charge of possession of morphine.

[20]     There you are.   You know the future lies in your hands.   If you commit another offence of this nature you will be sent to prison for a long time.  There will be no other chances.  You will be separated from your whanau.  You will not see your children or your grandchildren for a long time.  I trust that you take advantage of the opportunity you have to remain in the community and any improvement

programmes recommended by the probation officer.  Please stand down.

Rhys Harrison J