R v Smith HC Napier CRI 2005-020-4085

[2007] NZHC 1750

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2005-020-4085

THE QUEEN

v

MARK ALEXANDER SMITH

Hearing:         23 May 2007

Appearances: R Collins for the Crown

A Snell for the prisoner

Sentencing:     23 May 2007

SENTENCING REMARKS OF STEVENS J

Solicitors/Counsel:

R Collins for the Crown

A Snell for the prisoner

R V SMITH HC NAP CRI 2005-020-4085  23 May 2007

[1]      Mark Alexander Smith, you have pleaded guilty to four charges under the Misuse of Drugs Act 1975.  One of these is for possession of the Class A controlled drug lysergide (LSD) for the purpose of supply, for which the maximum sentence is life  imprisonment.   You also  possessed  the Class B drug  MDMA  (ecstasy)  for supply and the Class C controlled drug cannabis for the purpose of sale or supply. The   maximum   sentences   for   these   charges   are   14 years   and   eight   years’ imprisonment respectively.   Then there is count 4 relating to cultivating cannabis plant for which the maximum penalty is seven years’ imprisonment.

[2]      I have been assisted  for the purposes of sentencing today by the  helpful written submissions both from the Crown and from your counsel, the pre-sentence report from the Probation Officer, and the oral submissions from Mr Collins and Mr Snell which developed an important issue relating to your turn around as a result of you participation in the Sycamore Tree Programme as mentioned in the probation report.

[3]      I have also received a personal letter from you which I have read carefully. Your letter refers to you having attended that course and it says that it has been of immense value, educating and enlightening you and helping you to change.

Facts

[4]      On 22 December 2005, the Police searched your Haumoana property.  On a search of your house, a black carry bag was found on the couch.   It contained 11 snaplock bags, each containing on average 32 grams of cannabis head plant (the ounce bags), a further bag with 15 grams of cannabis plant, and a shopping bag containing a further 31 grams of cannabis plant.  The carry bag also contained a set of digital scales and tweezers.  Also on your couch was a metal container in which there were 25 snaplock bags containing one LSD tab in each bag.  There was also a plastic pill container wrapped as a Christmas present containing 301 ecstasy pills.

[5]      In a cabinet, the Police found a cannabis plant drying that was about 290mm high, as well as 10 grams of cannabis leaf wrapped in newspaper.  A small amount of loose cannabis leaf was found in a file box in the lounge.

[6]      In your garage, there was a purpose built room for growing cannabis.  It was lined with silver paper, ventilated by an electric extractor fan and contained growing lights, fertiliser, black plastic planter bags, gloves and seedling trays.  In the garage were 28 cannabis plants ranging in size from 40 to 70cm.  In the yard were a further

21 cannabis seedlings in seedling pots, varying in size from 5 to 20cm.

[7]      A search of a car parked at your address revealed a rubbish bag, inside which were three shopping bags, each containing approximately 446 grams of cannabis head plant (the pound bags).

[8]      Located around the house and in the two cars on the property were tick lists, metal scales and over $3000 in cash, the majority of which was in $20 notes.  The drugs  found  on  your  property,  excluding  the  cannabis  plants  that  you  were cultivating, were estimated to have a street value of $39,000.

Personal circumstances and pre-sentence report

[9]      You are 48 years of age.  You were born and raised in Hastings, the second of four children.  You are single and have one child, a 21-year-old son, with whom you say you have good contact.

[10]     You have a diploma in horticulture and a certificate in viticulture.  You began studying in the late 90s for a degree in viticultural/wine science.  While horticulture and viticulture appear to be your main interests, you have had a varied career.  At the time of your arrest, you were involved in the Hawke’s Bay branch of the National Organisation to Reform Marijuana Laws and it seems you were politically active in that organisation.

[11]     By your own report, you have been a heavy cannabis user by your own report for the last 20 years.  You started smoking in your teens and say that you consumed

up to an ounce, that is 60 joints, a week.  You say that you would like to give it up, but you have lacked the resources and, until recently, lacked the determination to do so.  In April however, you attended the 16 hour Sycamore Tree Programme with a restorative justice and victim awareness focus.   You say that you understand now that your offending is not a victimless crime.  The facilitator of this programme was impressed with you and your realisation of the need to take responsibility for your offending.  I will refer to what was said by Ms Katounas:

I was really impressed with him, halfway through the programme he realised that he needed to take responsibility for what he had done.  I believe he was very genuine.

[12]     You have been in prison since August last year.   You have been drug free since April last year.  The Probation Officer states that your motivation to address the causes of your offending will reduce your risk of re-offending.   Some level of optimism is expressed regarding your ability to make the changes and come out of prison ready for a clean start and new direction.

[13]     This latter matter, which I have referred to in some detail, has presented quite a difficult and unusual issue for me as sentencing Judge.  On the one hand, there is a very positive report from Ms Katounas.  On the other hand, there is the submission that was made by Mr Collins, very properly I might add, questioning in the light of various matters which he spoke about, whether your turnaround was genuine.  You will have heard the discussion which took place between me and Mr Collins and your counsel.

[14]     I accept that you are an intelligent and articulate man with a great deal of ability.  There are programmes available within the prison service of which you can take advantage.   You have started down the right course by embarking on the Sycamore Tree Programme, and that is encouraging.  But that must be, as your counsel said, but a first step.  If I am to give you full credit, which I will, for this turnaround, I would expect to see you continue with these programmes, continue to take advantage of the educational opportunities which exist within the prison service so that when you are released you are able to leave prison with a new direction.

[15]     But I can assure you that my sentencing remarks will be monitored by the Parole Board in terms of your performance against the indications of turnaround that I have received and which through your counsel you have said you will continue.  I hope that you do so, because if you do not then there is no doubt that you will be back in Court and Mr Collins will be dealing with you in the future.  I am sure that is not something that you want.

Submissions

Crown submissions

[16]     The Crown submission discussed the tariff cases for Class A, B and C drug offending.   The Crown acknowledged your guilty pleas and indicated that you are entitled to credit for those.  But Mr Collins rightly submitted that the range of drugs, their nature and quality and your criminal record are all aggravating factors.   As a result, the Crown submitted that a starting point of seven years would not be out of line and a concurrent final sentence of five years’ imprisonment would be in keeping with the authorities.

[17]     In elaborating  orally this  morning,  Mr  Collins referred  to the  sentencing remarks of Judge Watson in November 2006 when you were sentenced on two charges  relating  to  sale  of  cannabis  and  possession  of  cannabis  for  supply. Mr Collins also accepted that it would be within range for me to take a lower starting point.   Accordingly, I propose to take a starting point of six years’ imprisonment which is consistent with that which was indicated by your own counsel.

Defence submissions

[18]     I propose to deal with the helpful written and oral submissions from Mr Snell when I discuss mitigating factors later.

Purposes, principles and imprisonment factors

[19]     Under  the  Sentencing  Act  I  am  required  to  keep  in  mind  a  number  of purposes and principles.  I am required to take account of the purposes involving the need to hold you accountable for the harm done to the community; the need to promote a sense of responsibility in you for the harm done and that is bringing it back to the change that you need to make personally; to denounce your conduct and the need to deter you and other like you from committing such offences.

[20]     In terms of the principles of sentencing I must take into account the gravity of the offending and your degree of culpability; the seriousness of the type of offending in comparison to other types of offences; desirability of consistency and impose the least restrictive outcome that is appropriate.

[21]    Under s 6(4) of the Misuse of Drugs Act, I must impose a sentence of imprisonment for possession of LSD for supply, unless it can be demonstrated that in your particular circumstances that I should not do so.  But I see nothing in your circumstances that persuade me to shift this presumption and a community based sentence would be entirely inappropriate, as I am sure you understand.   The same applies  to  s  6(4A)  of  the  Misuse  of  Drugs  Act.    A  fine  would  not  be  at  all appropriate. The proper result of this offending is a substantial period of imprisonment.    In  that  case,  I  do  not  see  that  a  fine  would  add  any  further punishment or serve any productive purpose in your case.

Features of the offending

[22]     I deal first with the aggravating factors.  There is the issue of premeditation. You plainly thought through the growing of cannabis and described the process in some detail to the Police.  You had a wide range of drugs at your disposal.  There are the three types of controlled drugs involved in your case this time round.  There are your previous convictions.  You have demonstrated a willingness to possess and pass on cannabis to other members of the community on previous occasions.

[23]     In terms of mitigating factors, your counsel focussed his submissions on the pleas of guilty prior to trial, and although they were not at the earliest possible opportunity, the Crown acknowledges that you were entitled to test the evidential issue which you did.    Then there  is the  issue of your  genuine remorse  for the offending and acceptance of responsibility for the offending.  Your counsel referred to the assessment in the pre-sentence report that you have a motivation to make changes in your life, the fact that you have remained drug free since April last year and the fact that you expressed a desire to access rehabilitative and educational programmes whilst you are in prison.

[24]     I am going to take that into account.  In a sense, I am taking a chance with you that you will accept what you have said, both to the Probation Officer and to the Court through your counsel.

Guideline judgments – possession of LSD for supply

[25]     There is no single guideline judgment in this area but I have had regard to the case of R v Stanaway [1997] 3 NZLR 129 relating to a Class A controlled drug, R v Urlich [1981] 1 NZLR 310 and a range of other cases.

[26]     So far as the possession of ecstasy for supply is concerned, the leading case on sentencing for Class B drugs is R v Wallace & Christie [1999] 3 NZLR 159.

[27]     In terms of possession of cannabis for supply and cultivation of cannabis, the cases that I have referred to are R v Terewi [1999] 3 NZLR 62 and R v Keefe CA275/02 28 November 2002.

Starting point

[28]     Applying the various cases to which I have been referred, both by the Crown and your counsel, it seems that a starting point for the totality of your offending should be six years’ imprisonment.  I consider that such a starting point accurately reflects the totality of the criminality in this case, particularly as it involved the

possession for supply of three types of controlled drugs, LSD, ecstasy and cannabis, as well as the cultivation charge.

[29]     The  question  then  arises  as  to  what  discount  should  be  applied  for  the mitigating factors.  In this area, I propose to take a chance with you and make a generous allowance for these.

[30] So, for the charge of possession of lysergide for supply you are sentenced to four years’ imprisonment. For the charge of possession of MDMA for supply, you are sentenced to three years’ imprisonment, but that is to be concurrent with the other sentence. For the charge of possession of cannabis for supply, you are sentenced to two years’ imprisonment, and that will also be concurrent. For the cultivation of cannabis, you are sentenced to two years’ imprisonment, again concurrent. These sentences will be all concurrent on the one which you are currently serving for the offending referred to at [17] above. So the total effective sentence is four years’ imprisonment.

[31]     As a final word of encouragement, I urge you to take every advantage of the programmes that are available to you.  I hope that, when you start life on the outside again, you can do so with the benefit of the changes that you have talked about and having had an opportunity to educate yourself further.  Undoubtedly, you have a lot of ability and it is important that you start using that ability for the benefit of both yourself and the community.

[32]     You may stand down.

Stevens J