R v S HC Invercargill Cri-2008-025-4710

[2009] NZHC 500

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2008-025-004710

REGINA

v

S

Hearing:         5 May 2009

Appearances: M Morris for Crown

K McHugh for Prisoner

Judgment:      5 May 2009

SENTENCE OF HON. JUSTICE FRENCH

[1]      S  , following pleas of guilty you appear for sentence this morning  on  ten  drug  dealing  charges  relating  to  cannabis:  seven  charges  of possession for supply, and three charges of offering to sell, all offences punishable by a term of imprisonment for eight years.

[2]      Your offending came to light in November 2008  as a result of a police operation codenamed ‘Operation Santa’.   The operation involved surveillance of cellphone communications by known drug dealers in Invercargill.

[3]      Police  ascertained  that  between  19  and  27  November  2008  you  sent  or received approximately 16 text messages relating to dealing in cannabis.  Eight of

those text messages clearly identified you as having cannabis plant material in your

R V S HC INV CRI-2008-025-004710  5 May 2009

possession for the purposes of sale.  Two also clearly identified you as offering to sell cannabis.   According to the police summary, it was evident  that  you  were actively dealing drugs on an almost daily basis.

[4]      A police search of the house where you were living found a shopping bag containing five snaplock ounce bags of cannabis plant material with a total weight of

130 grams, packaged, ready for sale.   This cannabis is estimated to have a street value of between $1500 and $2000.

[5]      When  interviewed  by  the  police,  you  were  co-operative.    You  admitted selling deal bags of cannabis from your flat and told the police you were the sole user of the cellphone that had been used for the sale and supply of cannabis.  You also admitted to selling tinnies of cannabis for $20 each.

[6]      I have  read  the  pre-sentence  report,  as  well  as  the  references  that  were supplied to the District Court Judge who declined jurisdiction.

[7]      The report tells me you are 21 years of age, and that the offending took place from a flat in Invercargill.   You are, however, now living with your parents in Queenstown and currently employed in Queenstown as a steel fixer, having previously worked as a shearer.   Your only previous convictions are two driving matters and one for fighting in a public place.  You have the good fortune to come from a stable and supportive family background.    Despite their obvious disappointment in what has happened, your family are continuing to support you.  It seems you are also well regarded by both your past and your current employer.  The current employer says in fact there is a permanent job for you in Queenstown.

[8]      According to the report, your explanation for the offending is that you were dealing to fund your own cannabis use.   In the view of the report writer,  your motivation to address your drug use is low and accordingly your risk of re-offending correspondingly high.

[9]      Despite  that,  the  report  recommends  a  community-based  sentence  of community detention  combined  with  community  work.    Home  detention  is  not

recommended because of the nature of your employment, which requires you to work on different sites.

[10]     I turn at this point to explain the sentencing decision that I have to make today.

[11]     Essentially, by law I am required to follow a two-stage, or two-step approach. In the first stage I am required to fix what is known as the starting point – something that you would have heard your counsel talk about this morning.   Starting point means the sentence which reflects the culpability or blameworthinesss associated with your offending.  So stage one involves me in assessing the seriousness of the offending by taking into account both aggravating and mitigating factors, and then arriving at what is called a starting point, having regard to similar cases.  That is the first stage.

[12]     The second stage requires me to consider aggravating and mitigating factors relating to you personally, as distinct from relating to the offending, to see whether this starting point should be adjusted upwards or downwards.

[13]     Turning then to the first stage: fixing the starting point.

[14]     In  cases  involving  cannabis  offending,  the  Court  of  Appeal  has  set  out categories of offending in a decision called R v Terewi [1999] 3 NZLR 62. Although on its facts that case was actually concerned with cultivation, it also applies to all types of cannabis dealing.

[15]     It is common ground that you, Mr S  , fall in category 2 – small scale with a commercial purpose.  Category 2 calls generally for a starting point of between two to four years’ imprisonment.

[16]     In your case, I consider a starting point of two to two and a half years’

imprisonment is justified.

[17]     In terms of factors relating to you personally, you are, as your counsel has submitted, entitled to full credit for your early guilty plea, which would bring the term of imprisonment down to an approximate range of 16 to 21 months.

[18]     That, in turn, means that I must consider whether or not a community-based sentence would be appropriate.

[19]     I have found this a very difficult decision to make.

[20]     On the one hand, the Crown is submitting, rightly, that drug dealing is serious offending, and that this offending occurred from home.

[21]     On the other hand, you have changed addresses and are now in a much more stable situation.   Further, your previous record is limited, you have been a good employee and you are young.

[22]     After very careful consideration, I have decided to take a lenient approach in this case.  I am prepared to give you one last chance.

[23]     In my view, the principles of deterrence and denunciation can be met in your case by a community-based sentence.

[24]     I have decided to follow the recommendation made in the pre-sentence report because  of  your  employment  situation,  and  impose  a  sentence  of  community detention and community work.

[25]     What I have in mind is to impose a sentence of six months’ community detention, combined with 300 hours’ community work.

[26]     In imposing that sentence, I am conscious of the fact that earlier this morning I imposed a term of imprisonment on another person who was also caught up in Operation Santa.   However, I believe there are significant distinguishing features between  your case and his that justify a different approach.   Those include, of course, the aggravating features relating to that particular offender and his offending, which I have identified in the sentencing notes.

[27]     Finally, before passing sentence, I would like to say this to you Mr S  . When the District Court Judge declined jurisdiction, he very properly observed that you would in all probability go to prison.  That has not happened.  You have been very fortunate, and  you have been treated leniently today.   But let there be no mistake.  If there is a next time, it will be imprisonment.  Make sure there is no next time.   As I have said, you are very fortunate that your parents have been so supportive,  and  they  of  course  are  going  to  be  affected  by  this  sentence  of community detention as well.  Do not forget that.  Do not let them down.

[28]     Logan Lindsay S  , on each of the charges I sentence you to a concurrent term of community detention of six months, together with 300 hours’ community work.  Under the Sentencing Act 2002, those two sentences (community detention and community work) are concurrent.

[29]     The conditions of the community detention will be that:

i)        It is to be electronically monitored.

ii)       The address you are required to reside at is 27B Robertson

Street, Frankton, Queenstown.

iii)The curfew hours will be 7.30 p.m. to 6.30 a.m., seven days a week.  First curfew to commence on 11 May 2009.

[30]     As Mr Morris has also properly reminded me, I also have to make an order for destruction of the property that was found by the police search.  I so order.

Solicitors:

Preston Russell Law, Invercargill

McKenzie Gray, Invercargill