R v S HC Auckland CRI 2008-092-16662

[2009] NZHC 679

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-092-016662

THE QUEEN

v

S

Hearing:         5 June 2009

Appearances: C P Paterson for the Crown

I Sapoulo for the Prisoner

Sentence imposed:     Possession of cannabis for supply (x1) Selling cannabis (x1)

10 months home detention with special conditions:

see para [14]

Judgment:      5 June 2009

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, P O Box 2213, Auckland

Sapolu Law, PO Box 75420, Manurewa, Auckland

R V S HC AK CRI 2008-092-016662  5 June 2009

[1]      S  , you appear for sentence today, now aged 29, years on one charge of possession of cannabis for supply and one of selling cannabis. You have pleaded guilty to both offences.  The maximum penalty for each of them is

8 years’ imprisonment.

[2]      Your offending was detected as a result of a search warrant being executed by the Police at the address of 153 Banbury Road, Otara at 4.50pm on 16 October

2008.  You and your de facto partner were present when the search was undertaken, together with your children.   As a result of the search, a number of items were located which indicated offending of the type to which I have referred.

[3]      In the master bedroom there was a white plastic bucket and a brown paper bag containing cannabis plant material, four tin foil packages containing plant material, numerous pieces of cut tin foil and rolls of tin foil, and a number of snaplock plastic bags.  The total weight of the cannabis located was 199 grams, or 9 ounces.  In the second bedroom, a safe was located which contained $6,526 in cash.

[4]      You admitted ownership of the cannabis and the cannabis paraphernalia. You said that you had been selling and supplying cannabis to the occupants of the address for about two months.  You said that you sold ounce bags containing 30 tinnies for

$600 and supplied them as more product was needed.  You admitted to ownership of the cash and accepted that it was the proceeds of sale of cannabis to the occupants of the house.   In explanation, you indicated that you were too tempted by what you described as “easy money” and that you planned to stop selling in the middle of November 2008.

[5]      You are a first offender.  You have not previously appeared before the Court on criminal charges.   The pre-sentence report provides background as to your circumstances.  You have no ongoing health conditions.  You are the mother of five children aged from 6 months to 12 years of age who are presently in the shared care of yourself and their father.  Problems have arisen previously over your relationship with a man who was a patched member of the Tribesmen gang.   Nevertheless the report  writer  has   described   you   as   confident,   philosophical,   intelligent   and

forthcoming and provided information which demonstrates you have some insight into the reasons for your offending.

[6]      The primary goals I have to take into account in sentencing you are the need to denounce the offending of this type and to hold you accountable for the harm done by offending of this type.  Balanced against that, I take account of the need to impose the least restrictive outcome to enable you to rehabilitate and get back on the straight and narrow if you can.

[7]      The aggravating features are the level of commerciality and the fact that you were supplying a tinnie house which goes on to supply members of the public, some of who are quite vulnerable.  I do not regard the presence of gang regalia in the place as relevant to the present charges, but it is of concern that you dealt in this drug while your children were present.

[8]      In mitigation, it can properly be said that you should be given credit for accepting responsibility for the offending at an early time, by entering pleas of guilty.  I am also satisfied that you show real remorse for what you have done.

[9]      There are relatively strict guidelines by which I must sentence.  You fall in a band of offending that includes small scale dealing for commercial gain, the starting point for which is normally a sentence of between 2 and 4 years’ imprisonment.  The total amount of cannabis located was not insignificant.  The amount of cash on the premises indicate relatively frequent dealing, something which was effectively admitted by you in speaking to the Police.  If you come within the length of sentence that makes you eligible for the sentence of home detention, the question is whether it is necessary to impose imprisonment to mark your offending.

[10]     Taking account of the seriousness of the particular offending, I take a starting point for sentencing 2 years and 9 months’ imprisonment.   To that, I need to add

3 months to take account of all aggravating circumstances.  From that starting point of 3 years, I deduct one third as a gross credit to deal with both remorse and your early pleas of guilty.   That reduces the provisional sentence to one of 2  years’ imprisonment.  The sentence of that length makes you eligible for home detention.

[11]     Ms  Paterson  for  the  Crown  submits  that  imprisonment  is  required  to adequately denounce your offending.  Ms Supolu on your behalf submits that home detention is an adequate community response.

[12]    The Probation Officer considers that your risk of re-offending might be categorised as low.   He accepts that you demonstrate true remorse and accept the need to get your life back to the stage where you no longer carry any risk of re- offending.  You appear to have recognised problems with drugs and alcohol and, to your credit, you have taken steps to try to address those issues.   You have also completed a computer course which demonstrates to me that you are taking active steps to improve your position.

[13]     Ordinarily, I would be wary about imposing home detention for someone who has dealt in cannabis from a residential address.  But, I am satisfied in this case that the imposition of a non-custodial sentence is desirable from your perspective, from your children’s perspective, and also from the perspective of the community generally.  It is important that you have an opportunity to get your life in order and not be shackled for the rest of your life by a prison sentence in relation to first time offending of this type.

[14]     Accordingly, I find that a sentence of home detention would be appropriate. The assessor has indicated the address and the facilities for electronic monitoring are suitable.  I impose a sentence of 10 months’ home detention on standard conditions and the following special conditions:

a)       You must travel directly to 246C Bairds Road, Otara on your release and you must remain at that address to be met by the Supervising Probation Officer and a Chubb Security Officer.

b)You must reside at 246C Bairds Road, Otara for the duration of the home detention sentence.

c)       You must abstain from the possession or consumption of alcohol or illicit drugs during the period of home detention.

d)You shall be assessed and if found suitable, attend and complete an alcohol and/or drugs programme to the satisfaction of the programme provider and the Probation Officer.

[15]     In imposing the last of those conditions, I recognise that you have already undergone counselling, but I want to make sure that all of your potential problems in that regard are dealt with adequately.   For that reason, I have given power to the Probation Officer to assess you and require you to undertake and complete such a course if necessary.

[16]     Ms S  , you can consider yourself fortunate to escape imprisonment given your level of dealing that has taken place.  To a degree, I am taking a risk that you will in fact take to turn your life around.  This will be the only opportunity you get of this type, but I will urge your strongly to take advantage of it.

[17]     Ms S  , you are sentenced to 10 months’ home detention on standard conditions and the special conditions to which I have had referred, on each charge. Those sentences are to be served concurrently.

[18]     Stand down please.

P R Heath J