R v Swan

[2013] NZHC 792

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-5053 [2013] NZHC 792

THE QUEEN

v

LEO SWAN

Appearances: J E Tarrant for the Crown

J S Gurnick for the Prisoner

Sentence:       17 April 2013

SENTENCING NOTES OF PRIESTLEY J

Counsel:

J E Tarrant, Crown Solicitor, Hamilton. Email: [email protected]

J S Gurnick, Public Defence Service, Hamilton. [email protected]

R V SWAN HC HAM CRI-2012-019-5053 [17 April 2013]

[1]      Leo  Swan,  I  am  obliged  by  the  law,  as  I  see  it,  to  impose  a  term  of imprisonment on you.  This is a tragedy from your point of view because you are a young man.  You do not have an unblemished record.  I accept virtually everything which Mr Gurnick has ably said on your behalf.  You were led astray by an older person.  You were, I think, excited by the combination of lawlessness and the activities  in  which  you  were  involved.    I  accept,  however,  that  you  are  now genuinely remorseful and that you realise that what you were involved in last year was wrong.

[2]      Depending on the strength of your own character you do, I think, have the ability to stay out of trouble in the future when you are released from imprisonment. Whether you do that will be entirely a matter for you.  You have said to other people you intend to turn your life around.  The proof of the pudding will be whether you can in fact do it and in that I wish you well.

[3]      It is my job to sentence you today on some 26 charges, all under the Misuse of Drugs Act 1975.  To those charges you pleaded guilty in the District Court at an early opportunity although that Court, for jurisdictional reasons, has remanded you to  this  Court  for  sentencing.    The  charges  in  question  include  one  charge  of possession of cannabis for supply; 17 charges of offering to sell cannabis to people

18 years or more; three charges of offering to supply cannabis to people under the age of 18 years; a charge of supplying cannabis; and one charge of attempting to procure methamphetamine.

[4]      The possession to supply and offering to sell charges all carry maximum terms of imprisonment of eight years.  The other charges to which I have referred, for reasons I do not need to elaborate, carry a maximum term of three months imprisonment.

[5]      You know, Mr Swan, the details of your offending but because what I say today may be used in other courts in respect of other offenders I need to say a little about that.

[6]      One of the problems counsel have faced is separating your offending from that of your co-offender, one Michael James Bell.  Mr Bell is an older man than you, aged 37.  He was sentenced in July 2012 by Lang J to a term of two years and one months imprisonment.1

[7]      The offending, which you have admitted to, involves a considerable degree of assistance in what was clearly a cannabis cultivation operation carried out by Mr Bell on a rural property near Cambridge. That property was raided in April 2012 and a cannabis plantation was found.  The police found 10.45 kg of high quality cannabis head (the most valuable part, from a smoker’s point of view, of cannabis plants) and

5 kg of cabbage. These items were stored in a shed.

[8]      You  were  not  at  that  stage  implicated.    However,  analysis  of  Mr  Bell’s cellphone led to search warrants being carried out on your own phone and your own calls being analysed.  It became apparent from text messages that you had been responsible for a number of drug deals and transactions.

[9]      As is always the case with historical offending it is not easy to be precise on volumes.  The agreed summary of facts, however, indicates that you frequently offered cannabis to other people.  On 17 occasions you offered to sell to various associates or acquaintances of yours and on another three occasions to minors.  The quantities of cannabis you offered ranged from tinnies or $25 bags, $50 bags, ounces which you were prepared to sell at between $180 to $250 each ounce, and pounds which at that time had a price range of anywhere between $2,400 and $4,200.  On one occasion you offered a pound of cannabis for $4,500.

[10]    It is quite difficult for me to assess with any accuracy your culpability for sentencing purposes.  I asked counsel at the outset the extent to which I should factor in the cannabis quantities which I have mentioned, because you, unlike Mr Bell, have not been charged with cultivating cannabis.  Your counsel has realistically accepted, however, that you were aware of the cannabis cultivation operation and that the quantities referred to in the summary of facts represented the sources of the various offers of cannabis you made from time to time.

[11]     For sentencing purposes, however, I must be alert to the fact that you have not been charged (unlike Mr Bell) with cultivation of cannabis.  Unlike Mr Bell, however, you face a much larger number of charges relating to offering to sell cannabis.

[12]     In fact I think the involvement with Mr Bell has bedevilled both counsel and the sentencing process.  Mr Bell was sentenced approximately nine months ago and as a result of a sentencing indication given, not by this Court but the District Court, Ms  Tarrant  in  her  submissions  is  respectfully  critical  of  Lang  J’s  sentencing, regarding it as being far too lenient and not an appropriate benchmark for me to adopt for you.  Mr Gurnick, on the other hand, submits that matters of parity are important and that, although you do face a greater number of charges than Mr Bell, I should not stray much above the benchmark set by Lang J.

[13]     I say something now about your personal circumstances.  At the time of the offending you were aged but 19 and you are now 20.  Unfortunately you do have a criminal record.   There are some eight previous convictions, including excess blood/alcohol, theft, threatening to kill, other Land Transport matters, and possession of needles or syringes in respect of which you were sentenced in October 2011 to 50 hours community work.   The possession of firearms without a licence conviction, which was also visited with a community work sentence, is slightly alarming.

[14]     I note that the summary of facts refers to messages which you sent in which you  stated,  in  a  boastful  way,  that  you  were  employed  to  protect  a  cannabis cultivation operation and had night vision goggles, night vision cameras, and a shotgun.  However, I do not intend to factor those matters in to assess your overall culpability because you have not been charged with them.

[15]     I need not mention Sentencing Act purposes and principles.  I note, however, that s 6(4) of the Misuse of Drugs Act 1975 has to be given due weight by me in respect of people who supply drugs.  I note too that there are numerous authorities by New Zealand appellate courts which suggest that, although not totally irrelevant, minimal weight can be given to personal circumstances so far as the drug offending is concerned.

[16]     Your offending, Mr Swan, was repetitive.   It was also as a result of an ongoing commercial operation from which you must have gained some degree of financial benefit.  What you have done with the money I do not know and have no intention of asking.  But you were not doing this for love or for nothing.

[17]     You  are,  however,  entitled to  a  number  of substantial  mitigating  credits. These include your remorse which, as I said at the outset, I accept is genuine.  You have clearly been distressed by the predicament in which you have found yourself. One of the pointers to that is your father from whom you were estranged and who was prepared to write you off has been so impressed by your change of attitude that he has now reconciled with you and indeed was prepared to make his home available to you for home detention purposes.

[18]     You do not, as I have said, have an unblemished record, but in imposing a term of imprisonment on you I must be mindful of the fact you are a young man. Finally, you have pleaded guilty to all these charges in the District Court before committal.  It is common ground between counsel you are entitled to the maximum

25% discount for that permitted by Hessell v R.2

[19]     Turning  now  to  counsel’s  submissions,  Ms  Tarrant,  in  addition  to  her anxieties over Lang J’s sentencing, has stressed that I should impose a sentence which reflects the number of counts involved and your deliberate and premeditated offending.   Inclusive of reflecting totality she submits a start point of between 4½ and 5 years is appropriate.

[20]     Mr Gurnick for his part, as I have said, is endeavouring to use the sentence imposed on Mr Bell as a benchmark.  He has stressed in his submission that Mr Bell was an older man, and much more sophisticated and culpable.  Mr Bell, he tells me, had a considerable length of convictions.  In Mr Gurnick’s submission I should, from the previous start point, having given appropriate credits for the mitigating factors I have mentioned, come down to a sentence of two years or slightly less and impose a sentence of home detention, coupled with community work.   Certainly that is the

recommendation of the probation officer who supplied this Court with a presentence report.

[21]     Other relevant factors arising out of your personal circumstances include the assessment of the report writer that you present a low risk of re-offending or harm to others and are generally ashamed of your actions.  I note too that from time to time, because of ongoing anxiety disorders you have contemplated suicide.  Fortunately, however, you seem to have put that somewhat dark thought behind you.  However, your  mental  health  and  well-being  are  factors  which   I  need  to  take  into consideration.

[22]     Given the large number of counts you face I have no option but to fix a start point which sits somewhat higher than that adopted by Lang J in Bell.   Your offending, as Ms Tarrant has submitted, fits either the top of band 2 of R v Terewi,3 or arguably at the bottom of band 3.

[23]     However, as I have said, the exact quantities with which you were dealing or offering  are  problematic.    Although  I  consider  I  would  have  been  justified  in adopting a start point of four years imprisonment, in all the circumstances and so as not  to  skew  your  culpability  with  that  of  your  co-offender,  who  in  terms  of experience and age was probably the driving party, I intend to adopt a start point of

3 ½ years imprisonment.  With your age and remorse I intend to give you a discount in the order of 15 percent or slightly over and from that lower figure of just under three years (35 months) I will give you the full discount and credit of 25 percent mandated by Hessell.  That would bring me down to an end sentence of 26 months or two years two months imprisonment.

[24]     I am satisfied that is a lenient sentence and is also, in all the circumstances, a sentence which reflects your culpability.  It is also a sentence tempered somewhat for your youth and your mental health issues.

[25]     Stand up at this point please.

[26]     I intend to use the possession of cannabis for supply charge as the lead charge but I do not intend to differentiate that from the offering to sell or supply cannabis counts which you face.

[27]     On the counts therefore of possession of cannabis for the purpose of supply, offering to sell cannabis, and supplying cannabis, I sentence you on all those charges to a term of two years and two months imprisonment.  On the other charges which you face, carrying maximum penalties of three months imprisonment, you are convicted and discharged.  All the terms I have imposed on you Mr Swan are to be served concurrently.

[28]     I alert the prison authorities to the fact you have mental health issues and a past incident where you have contemplated taking your life and direct, to the extent that I have any power of direction, that you are to initially be kept under observation and that your mental health be monitored.

[29]     I also recommend that, if it would serve some useful purpose, you be given the opportunity to participate in drug addiction courses, although I note that in your counsel’s  assessment  drugs  are  not  currently  a  problem  for  you.    They  were, however, a problem for you in the past.

[30]     Thank you Mr Swan and I wish you well.  Stand down.

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Priestley J