R v Warbrick

[2013] NZHC 2108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-1716 [2013] NZHC 2108

THE QUEEN

v

KASEY JACOB WARBRICK

Hearing:                   20 August 2013

Counsel:                  C G McDiarmid for the Crown

D S Wallwork for the Prisoner

Sentence:                 20 August 2013

SENTENCING NOTES OF BROWN J

Solicitors:      Crown Solicitors, Auckland

Counsel:       D S Wallwork, Manukau

R v WARBRICK [2013] NZHC 2108 [20 August 2013]

Introduction

[1]      Kasey Jacob Warbrick you appear for sentence today having pleaded guilty in the District Court at Manukau on 22 August 2012 to four charges of selling cannabis. The offending occurred between 28 November 2011 and 15 February 2012 and you were formally convicted of the charges by Ellis J in this Court on 19 February 2013. The District Court has declined jurisdiction to sentence you and that is why you are being sentenced in the High Court.

Background facts

[2]     In February 2012 the Counties Manukau Organised Crime Unit began investigation into the sale and distribution of cannabis in its policing area.   The investigation revealed that you and another man, Clinton Emery, were working together to sell and distribute cannabis.   On 6  November 2012 Mr Emery was sentenced to two years and six months imprisonment in relation to his part in your joint activities.  I will come back to the relevance of Mr Emery’s sentence later.

[3]      The Police investigation showed that you and Mr Emery were operating a “dial-a-tinny” cannabis selling operation.  Essentially you would receive orders for cannabis by text message and you delivered the orders by car.

[4]      The police analysis of the text messages sent and received from cellphones showed that you and Mr Emery were dealing on average 20 tinnies a day,1  seven days a week, for a period of around three months.  The summary of facts (which you have accepted) records that over the three month period 1,800 tinnies or nine kilograms of cannabis were sold earning about $36,000.

[5]      You were arrested on 15 February 2012. Your car was searched for drugs and

25 tinnies were found.

1      A tinnie costs $20 and, according to the summary of facts, only amounts to 0.5 grams.

Your circumstances and the circumstances of your offending

[6]      Now I want to say something about you personally and the circumstances of your offending.

[7]      You  are  22  years  old.    You  are  Maori.    You  have  said  you  had  a  bad upbringing and were physically abused by your father.   You stopped living permanently at home when you were 11 and stayed with families of your friends in an attempt to stay away from him.  You left school when you were 16 and got a job. You have got children.

[8]      In terms of your present offending, I understand that after the earthquakes your family made the move from Christchurch to Auckland and you were feeling the pinch financially.  You met Mr Emery through work.  He offered you the chance to sell cannabis.  You saw it as a way of supporting your own habit and making some money.  Even though you went into it with your eyes open you are to be regarded as having sold the same amount of cannabis as Mr Emery.  For what it is worth it seems to me that he was probably the ringleader.

[9]      You are now very critical of the decisions you made and you acknowledge the importance of providing for your family and being the best father you can.  You have talked about your desire to deal with your cannabis habit and change your life. You have attempted to do so.  Your first attempt at completing drug treatment failed. You were exited from the programme after returning a positive drug test at an early stage.  Then when you appeared for sentencing earlier this year on 19 February the presiding Judge raised with the Crown the possibility of adjourning the sentencing for six months to enable you to complete a course at the Raukura Hauora O Tainui residential facility.   Regrettably you were discharged from the service on 10 April

2013 for contravening the kaupapa of the service.

[10]     Hence  you  find  yourself  back  here  today  having  failed  to  seize  the opportunity which the Judge afforded you on 19 February.  As Mr McDiarmid has said, the Judge at the time emphasised to you the chance you had been given and the importance of seizing it with both hands.  The Judge then said if you did not comply

with the conditions then in all likelihood you would be sentenced to a term of imprisonment.

[11]     I agree with what your counsel, Ms Wallwork, said.  It is a shame that you did not finish the course.   She has tendered material that shows that you have a significant level of family and whanau support.  In particular, the message from your mother Leah Warbrick, who is present in Court today and also the letter from the Komiti Marae Orakei Trust.   I have also taken into account the CV that has been tendered which shows that you are capable of working and have held regular work.

Analysis

[12]     Bearing all those factors in mind I must now talk about the sentence that has to be imposed on you today.

[13]     As the facts of your case show there was undoubtedly a commercial element to what you and Mr Emery were doing.   The Court of Appeal has said that this means the relevant starting point for a sentence should be between two and four years imprisonment.

[14]     In a case like this, the Court’s main goal in sentencing you is to condemn your offending and to try and stop you and others from offending like this in the future.  It is also important to try and arrive at a sentence that is consistent with other similar cases and, in  your case in particular, to be consistent with the sentence imposed on Mr Emery which was two years and six months imprisonment.

[15]     Mr McDiarmid for the Crown has submitted the appropriate starting point is three years three months because that was the starting point adopted by the Judge who sentenced Mr Emery but I do not agree with that.   Mr Emery’s sentencing starting point included an extra three months for a charge related to the gun in Mr Emery’s possession when he was arrested.  You have not been charged with a firearms offence and there is nothing in the statement of facts to which you pleaded about a gun.  However, apart from taking that difference into account, I agree with Mr McDiarmid that the starting point should be the same as Mr Emery’s and for that reason three years is appropriate.  It is also within the range that Ms Wallwork has

submitted, although she has argued that it could be slightly less than three years.  I think three years is the starting point although I do agree with Ms Wallwork when she submits that there should be no uplift.

[16]     Mr McDiarmid submits that any starting point should be reduced by 20 per cent because of your guilty plea and he does not consider any further discount should be given.  Ms Wallwork says a discount of 25 per cent for a guilty plea is appropriate and she emphasises that you should not be penalised for the investigation that was necessary to ensure there was no double up in terms of the charges you were facing. She also says that I should take into account your remorse,  your motivation to change, albeit it has not borne fruit at this stage, and your co-operation with the police.

[17]     In the end I consider the starting point of three years should be reduced by

10 months to take account of all the things I have just mentioned.   Taking away

10 months from three years would result in an end sentence of two years and two months imprisonment and that sentence needs to be imposed for each of the four offences you pleaded guilty to but those sentences are served concurrently.

Result

[18]     Mr  Warbrick  on  each  of  the  four  charges  of  selling  cannabis  you  are sentenced to a term of two years and two months imprisonment.

[19]     Those sentences are to be served concurrently so you will be eligible for parole after serving a third of your two year and two month sentence.  If you stay committed to making some changes in  your life and  you manage to  show that commitment while you are in prison then I am sure it will help you get parole at the earliest possible time.  Although I can, and do, record for the Parole Board’s assistance my own view that you should, if possible, be given every opportunity to rehabilitate. Whether you are in fact released in about seven and a half months is out of my hands.   It will of course be a decision for those on the Parole Board at the relevant time.

[20]     So Mr Warbrick I really do hope that you can do something about your addiction and that on your release from prison you will be able to look after yourself and your family as I know you want to.  I have no choice but to send you to prison today but I do wish you well.

[21]     Please stand down.

Brown J