R v Tomars

[2012] NZHC 3241

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-029-0642 [2012] NZHC 3241

THE QUEEN

v

CHRISTOPHER MORRIS TOMARS

Hearing:         3 December 2012

Counsel:         C Anderson for Crown

D R James for Prisoner

Judgment:      3 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei

Palmer Macauley, PO Box 576, Kerikeri

R V TOMARS HC WHA CRI 2012-029-0642 [3 December 2012]

Introduction

[1]      Christopher  Morris  Tomars,  you  pleaded  guilty  in  the  District  Court  at Kaitaia on 4 October 2012, to nine charges of offering to sell the Class C controlled drug cannabis, five of selling cannabis and three of possessing cannabis for supply.

[2]      The maximum penalty for each of those offences is eight years imprisonment. The District Court declined to sentence you.[1]    You have been brought before this Court for sentence today.

Facts

[1] R v McLeod [1988] 2 NZLR 65 (CA).

[3]      The offending was detected during the course of the Police operation in Northland which was designed to target places at which the Police believed cannabis was being sold.  It involved special duty officers and subsequent examination of text data, which was obtained from Vodafone following application for a search warrant. That information was derived from cellphone records that you had.

[4]      The offending occurred in the period between 16 December 2011 and 28 June

2012.  Of the offences 10, including the offence charged following the final search warrant  on  28 June 2012,  involved  the police officers, with  the balance of the charges evidenced by the text messaging disclosed.

[5]      The sales and the offers to sell involved both tinnies and ounce bags.  The sale of ounce bags suggests an ability to access cannabis in commercial quantities for sale.

[6]      Following the search warrant for text message information, a number of drug dealing conversations were identified.  In general terms you would converse by text message  with  different  customers.    Arrangements  would  be  made  for  them  to

purchase either tinnies or ounces of cannabis.

[7]      Following submissions made by Mr James, on your behalf, I accept that the vast majority of the offer charges arise from inquiries that were made to you rather than attempts by you to find customers.  There was one occasion with one of the police officers where the latter situation arose.

Analysis

[8]      The first thing I am required to do is to identify the nature of the dealing operation.  This was commercial dealing.  It was for financial gain.  You showed an ability to procure supplies readily.   That is then confirmed by your sales in both ounces and tinnies.  It suggests a medium size operation.

[9]      The starting point I must take is in the range between two and four years imprisonment.[2]   Being as generous as I can, I would put that at the midpoint and use a starting point for sentence of three years imprisonment.

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

[10]     Mr James, who has probably said everything on your behalf that could be said today, has submitted that your good character should count in your favour.  It is clear that you have led a good life up until the time you began this offending, from the time you were last convicted.  You are obviously a good craftsman and that is evidenced by the employment that would be available to you were you not to go to jail.  The difficulty I have, however, is that the prior convictions necessarily mean that you cannot rely wholly on prior good character.  Certainly you have reformed yourself, but that is simply neutral in the assessment I have to make.

[11]     You are entitled to a credit of 25% to recognise the early guilty pleas.[3]    I round that to nine months.  Being as generous as I can, that leaves the end sentence at two years three months imprisonment.   That means that home detention is not

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

available as a sentence.

Result

[12]     On each of the charges to which you have pleaded guilty, you are sentenced to a term of two years and three months imprisonment.  Those terms are to be served concurrently, so that the actual sentence is two years three months.

[13]     I make an order forfeiting the money seized and an order for destruction of the drugs seized.

[14]     Mr Tomars, your counsel made out a good case for home detention had it been possible for that to be done.  I wish you well for the future.  I think you must now serve the time that you have to.   I have some belief that you will be able to contribute to society on your release but one thing you have to do is make sure you do not get involved in anything like this again, because you will only risk going to prison on more and more occasions.

[15]     Stand down.

P R Heath J