R v Vercoe HC Invercargill CRI 2010-025-3955

[2010] NZHC 2319

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-025-3955

QUEEN

v

MANAWA JAMES VERCOE

Hearing:         13 December 2010

Counsel:         M Sinclair for Crown

B Kilkelly for Prisoner

Sentencing:     13 December 2010

SENTENCING NOTES OF MILLER J

[1]      Mr Vercoe, you appear for sentence on 22 charges which I will tabulate in my  Sentencing  Notes. They  relate  mostly  to  the  sale  of  cannabis,  LSD  and

methamphetamine, but there are also two charges of burglary.

Offence	Section	Maximum penalty
Possession  of  methamphetamine  for supply (x3)	Misuse of Drugs Act 1975,  ss  6(1)(c)  and (f)	Life imprisonment
Possession of lysergic acid (LSD) for supply	Misuse of Drugs Act 1975,  ss  6(1)(c)  and (f)	Life imprisonment
Offer  to  supply  lysergic  acid  (LSD) (Representative)	Misuse of Drugs Act 1975, s 6(1)(c)	Life imprisonment
Produced cannabis oil	Misuse of Drugs Act 1975, s 6(1)(b)	14 years imprisonment

R V VERCOE HC INV CRI 2010-025-3955  13 December 2010

Possession  of  cannabis  for  supply  to people over 18 (x10) (Representative)	Misuse of Drugs Act 1975, s 6(1)(d) and (f)	8 years imprisonment
Possession   of   cannabis   for   sale   to people over 18	Misuse of Drugs Act 1975, s 6(1)(e) and (f)	8 years imprisonment
Offer to sell cannabis to people over 18 (x3)	Misuse of Drugs Act 1975, s 6(1)(e)	8 years imprisonment
Burglary (x2)	Crimes  Act  1961,  s 231(1)(a)	10 years imprisonment

[2]      I observe that the 10 charges of possession for supply to persons over 18 were charged under s 6(1)(f) of the Misuse of Drugs Act;  that is, they are charges of possession for sale.  But the informations speak of possession for supply to persons over 18, which is not an offence under s 6 at all.  It is an offence under s 7, and it attracts a maximum penalty of three months imprisonment.  That is clearly an error, as you have accepted today.   The summary of facts to which you have pleaded establishes clearly, mostly by reference to the texts and tick lists, that you were dealing throughout.  With your consent I will treat the 10 charges of possession for supply as possession for sale;  in effect there are 11 charges of that nature.

[3]      The facts are that you and your partner were targeted in a police operation which began on 7 May.  Text messages were intercepted during specified periods in May, July and August.  They establish that you were actively dealing in cannabis on a daily basis.  In July you sent a text indicating that you were cooking cannabis oil.  I note that is not referred to in the summary of facts, but you accept that those are the facts relating to your guilty plea to that charge.  Between 7 May and 11 August you were recorded as having 110 separate conversations with people relating to selling cannabis, usually in quantities between one tin and an ounce.

[4]      On 7 August you bought a quantity of LSD tabs which you then offered to sell to nine unidentified persons at $50 a trip.

[5]      On   7   and   8   May   and   on   22   June   you   were   in   possession   of methamphetamine, and on the last of those dates you attempted to trade methamphetamine for cannabis.

[6]      A search warrant was executed on 14 September.  Found at your house were cannabis pipes, a set of electronic scales, pre-cut aluminium foils, tick lists, snap lock bags and a cannabis pipe.  Also found was cannabis weighing in total 38 grams, albeit that 30 grams of that was claimed by your partner as her own.  Two thousand and twenty-five dollars in cash was also found.

[7]      Within the garage were found a large quantity of contractors’ tools.  These tools were the product of burglaries of two building sites in the Queenstown area, in which  approximately  $38,000  worth  of  tools  were  stolen.     Analysis  of  your cellphone data showed that you travelled to Queenstown in the early hours of the morning of both burglaries, receiving directions to the locations by text from an unidentified associate.

[8]      I note that these burglaries differ from those commonly associated with drug dealing.  Users often steal property to fund their habits, and as a result drug dealers are commonly found to have received stolen property.  You were both a dealer and a burglar.   These were targeted, expert burglaries, on a substantial scale.   However, your  explanation  is  that  you  committed  the  burglaries  because  you  owed  drug money, that is, there was a connection between the drug dealing and the burglaries. You say your own consumption was out of control.

[9]      You are aged 30 and you report a very dysfunctional upbringing, in which you were both abandoned and abused.   As a youth you associated yourself with Black Power.  You have two sons of your own, with one of whom you retain contact. In interview with the probation officer, you admitted dealing drugs since May 2010 during the off season, but you disputed the burglaries, saying you were guilty only of receiving, and parts of the drug charges.  You claimed you were mostly using the methamphetamine.   As your counsel will have told you, I must take as proved all facts necessary to the charges to which you have pleaded guilty.  I accept you are a user, and perhaps a substantial user, but the motivation for this offending was commercial;   you were supplementing your income by dealing in the off season. Your reoffending risk is assessed as high;  that assessment must be correct so long as your drug use remains untreated.  It is to be hoped that you get the opportunity to do that.

[10]   You have a remarkable conviction history, containing no less than 41 convictions for burglary.  Almost all of those were in the Youth Court, where you were last convicted in 1995, but in 2009 you were convicted of burglary and associated with that were several charges of receiving.  You also have two previous drugs convictions.

[11]     I am going to sentence you by calculating cumulative sentences for the drug offending, as one group, and the burglaries, as a second group.  Implicit in that will be a totality allowance for the drug offending.   Although methamphetamine is a Class A drug and cannabis is Class C, I propose to take the more extensive cannabis offending as the lead offences.  That includes the cannabis oil charge, which has a

14-year maximum.  I acknowledge that I might have taken the class A offending as the lead, since there are four charges, but it was on a smaller scale, and one gets to the same result in the end.

[12]     I think you are accurately described as a commercial and industrious but relatively low level cannabis dealer.    The offending was not particularly sophisticated.    The  cannabis  offending  alone  would  attract  a  starting  point  of between  two  and  four  years  imprisonment.     I  have  considered  a  number  of

comparable cases which I will refer to in my Sentencing Notes.[1]   They lead me to the

conclusion that for the cannabis offending alone the proper starting point would be two years and nine months imprisonment.  There must be an uplift for the class A offending.   That would attract a starting point of two to four years on its own. However, I do not know how much methamphetamine was sold, and this was I think ancillary to your main line of business as a cannabis dealer.  So I will add six months for the methamphetamine and LSD offending.  That means your starting point for all of the drug offending is three years and three months imprisonment.   That is substantially less than the Crown submits, but it includes an allowance for totality as I have said.

[1] Keefe v R [2010] NZCA 366, R v Robertson [2009] NZCA 154, R v Mann HC Invercargill CRI-

[13]     Turning to the burglaries, you are a recidivist burglar.[2]   In assessing you as a recidivist, I take into account your history of burglaries but recognise that most of them were committed as a youth.   What leads me ultimately to assess you as a recidivist is the more recent property offences, which include theft and receiving. These do confirm that you have gone back to your old ways.

[2] Senior v Police (200) 18 CRNZ 340.

[14]     I  have  considered  comparable  cases.[3]    Again,  I  will  list  them  in  my Sentencing Notes.  They lead me to the conclusion that a starting point of two years would be appropriate for the burglaries.

[3] R v Stevens [2009] NZCA 190, R v Anglem [2009] NZCA 358, R v Mosley [2008] NZCA 336, R v Ashbrook CA158/00, 25 October 2000.

[15]     That would result in an overall starting point of five years three months.

[16]     Turning  to  aggravating  factors,  your  history  of  burglary  convictions  is relevant, but there would be a risk of double-counting if something were added to the burglary starting points.   I do not treat your other convictions as an aggravating factor.   However, there is one aggravating factor that must be taken into account. You were subject to release conditions at the time you committed these offences. That is a significant aggravating factor.  It requires an uplift of six months.

[17]     In mitigation, there is your guilty pleas, which were entered on 16 November. The charges were laid on 21 September. There was a little delay in disclosure and I accept that you should receive a 30 per cent discount for the guilty pleas.  They were entered before a recent Supreme Court decision which reduced the bare credit to be given for a guilty plea.  In your circumstances the only fair thing to do is to give you that credit.

[18]     That would result in an end sentence of four years imprisonment.

[19]     I must at this point stand back and assess whether the sentence is appropriate having regard to the totality of the offending.   The law requires that I sentence separate offending cumulatively as a general rule, but an adjustment must be made if the overall penalty is wholly out of proportion to the gravity of the overall offending.

However, I do not think that any additional allowance is called for.  I have already made some in the sentences for the drugs charges and the starting point for the burglaries.

[20]     Accordingly, Mr Vercoe, your sentence is four years, made up as follows:

a)        For all the cannabis offending - two years six months imprisonment;

b)For the two burglaries, 18 months imprisonment, which is cumulative upon the cannabis sentences;

c)       For the possession of methamphetamine and LSD for supply and the offer to supply LSD, two years imprisonment, which is concurrent with the cannabis sentence.

[21]     I must consider a fine, but that would be pointless.  As requested, there will be an order for return of the stolen property and destruction of the drugs exhibits including the cellphone.

[22]     You may stand down.

Miller J

Solicitors:

Preston Russell Law, Invercargill for Crown.

2008-025-4692, 5 May 2009, R v Sell HC Invercargill CRI-2008-025-4710, 5 May 2009, R v Gray
[2008] NZCA 224, R v Paki CA165/05, 5 September 2005, R v Breitmeyer CA17/04, 6 July 2004.