R v Sauer

[2012] NZHC 3262

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-088-2763 [2012] NZHC 3262

THE QUEEN

v

STEVEN STANLEY SAUER

Hearing:         4 December 2012

Counsel:         A Patterson for Crown

C Muston for Prisoner

Judgment:      4 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Counsel:

C Muston, PO Box 1905, Whangarei

R V SAUER HC WHA CRI 2012-088-2763 [4 December 2012]

Introduction

[1]      Steven Stanley Sauer, you appear for sentence today having pleaded guilty to

10 charges of offering to supply the Class C controlled drug cannabis and one of possessing cannabis for sale.  Those guilty pleas were entered in the District Court. Jurisdiction was declined.[1]    That means you are here for sentence today because a wider range of sentencing options are available to this Court.

Facts

[1] R v McLeod [1998] 2 NZLR 65 (CA).

[2]      Your offending was detected through the analysis of cellphone data obtained on a search warrant from Vodafone.  It revealed a number of text messages that were exchanged between yourself and others concerning the offering of cannabis for sale. The possession for supply charge arises out of cannabis found in your possession when the Police executed a search warrant at your home on 10 August 2012 at the conclusion of their investigations.

[3]      I do not propose to go through the facts in detail.  It is sufficient to say that the offending occurred over a period of about three months.   In broad terms the amount of cannabis alleged to be involved has a street value of about $3000. However, only $140 was located when your property was searched at the conclusion of the Police investigation.

[4]      That is a relatively significant factor.   You told the probation officer who prepared  the  pre-sentence  report  that  you  had  been  using  cannabis  frequently; indeed, every two hours for self-medication.  You told the probation officer that you began to sell drugs this year to feed that habit.

[5]      To your credit you have attended the Salvation Army Bridge programme.  I

have looked at the certificate of attendance which tells me that you have completed a

12 week programme; phase one of which was eight weeks of intensive days and

phase two, an aftercare programme of four weeks.   During the intensive day programme you received one-on-one counselling on a regular basis.

Analysis

[6]      My first task is to assess the nature of the operation.  There is no evidence of any person going to your home to collect cannabis.  Nevertheless, it is clear that a number of offers were made by text to supply.  The most concerning is the offer to supply one pound of cannabis, a significant quantity.

[7]      The text messaging suggests that you had the ability to procure amounts of cannabis at a reasonably high level.  Nevertheless, the operation was relatively small and I need to temper my assessment by reference to the regularity with which you were using cannabis for your personal situation.

[8]      There is a range of between two and four years imprisonment that I must consider for assessing a starting point for sentence.  I fix the appropriate period at two years and six months.[2]

[2] R v Terewi [1999] 3 NZLR 62 (CA) at para [4].

[9]      The  Crown  has  asked  me  to  take  account  of  your  prior  convictions, potentially as aggravating factors.   You do not have a particularly long criminal record.   You last offended in 2003 when you were fined $300 for possession of cannabis.   The next most recent offence occurred in  1999.   I treat all of those convictions as spent and do not uplift for further aggravating factors.

[10]     In mitigation, I take into account your attempts at rehabilitation and the fact that you have been prepared to attend the Bridge programme.  There has also been negative testing for drugs.   I allow a period of two months credit for mitigating factors.

[11]     That leaves a revised starting point of two years and four months, from which it is necessary to give a credit for the guilty pleas.  I assess that credit as 25%.[3]    I

take the view that you pleaded guilty at the earliest possible time after receiving advice from counsel assigned to act for you.  That would leave a prison sentence of one year and nine months.

[3] Hessell v R [2011] 1 NZLR 607 (CA) at para [75].

[12]     Mr Muston has asked me to impose home detention.  Ordinarily, that would not be something that appealed to me.  There are two reasons for that.   First, you offended from the home.  Second, one of your children, aged four, was present when the Police executed the search warrant at your home.  The possibility of reoffending from the home and the presence of young children is something that concerns me.

[13]     Balanced against that, however, are your steps taken to rehabilitate.  I am a strong believer in allowing people who show a willingness to rehabilitate to do so fully.   You, I sense, are at a crossroads.   If you are able to keep up your clean situation you have the prospect of doing well in life, looking after your family and not getting into trouble with the law again.  If you do not, then you risk coming back here and being sentenced to longer and longer terms of imprisonment which will lead to a very sad life for you.

[14]     I am going to give you a chance.   I propose to couple sentences of home detention and community work and to require you to undergo programmes designed to ensure that you rid yourself of this habit.  You need to bear in mind that this is a chance. This is a risk I am taking to a large extent.  I hope you will prove me right in the decision that I make.

Result

[15]     On each charge you are sentenced to nine months home detention and 200 hours community work.

[16]     As a special term of the sentence of home detention, you are required to undertake such programmes as a probation officer may direct and to complete those programmes to the satisfaction of a probation officer.   You are not to purchase, possess or consume alcohol or illicit substances for the duration of the sentence of

home detention.  Nor are you to have such substances in your home.  I emphasise that is both alcohol and drugs.

[17]     After you leave Court today you must travel directly to 37 Corks Road, Kamo, where you will serve the sentence of home detention, and await the arrival of a probation officer or security guard for the electronic monitoring to begin.

[18]     The special conditions I have imposed in respect of programmes will apply also as post-detention conditions so that once you finish your home detention there will be a period during which you will remain subject to that supervision.

[19]     I have already said to you that this is a chance for you.  You should consider yourself fortunate not to be going to prison.   Please make sure that you make the most of this.

[20]     Stand down.

P R Heath J