R v Williams
[2021] NZHC 1368
•10 June 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-22
[2021] NZHC 1368
THE QUEEN v
ORREN SCOTT WILLIAMS
Hearing: 10 June 2021 Appearances:
J N Hamilton for the Crown
P J Morgan QC for the Defendant
Date of sentence:
10 June 2021
SENTENCING NOTES OF JAGOSE J
Counsel/Solicitors:
P J Morgan QC, Hamilton
Hamilton Legal, Crown Solicitor, Hamilton
R v WILLIAMS [2021] NZHC 1368 [10 June 2021]
[1] Mr Williams, on your guilty pleas, Downs J entered convictions against you in this Court on 3 November 2020 for:1
(a)possession of cannabis for supply;2
(b)offering to supply cannabis;3 and
(c)possession of methamphetamine.4
[2] I now am to sentence you for your convictions. In sentencing you, I must accept as proven all facts essential to your guilty pleas.5 The Crown recommends, as you’ve heard, that you be sentenced to a term of imprisonment of up to three years. Your counsel, Philip Morgan QC, recommends community detention. I am not bound by the lawyers’ views. I must come to my own decision. I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your culpability (or responsibility) for it.
Background
[3] I briefly address the background to your offending, as outlined in the ultimate summary of facts dated yesterday and accepted by you, for which I thank you.
[4] On 6 June 2019, at the time of your arrest on, what we’ve heard is, unrelated matters, you had the crystal equivalent of 0.880 of a gram of methamphetamine in your possession. In searching your house, police then found suspended lines and plant material suggesting a drying room for harvested cannabis, “snap lock bags consistent with packaging for ounce quantities of cannabis”, and a hidden bag containing more than 270 grams of cannabis in your possession for sale.
1 R v Williams HC Hamilton CRI-2020-419-22, 3 November 2020 (Minute of Downs J) at [1].
2 Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty: eight years’ imprisonment.
3 Section 6(1)(e). Maximum penalty: eight years’ imprisonment.
4 Section 7(1)(a). Maximum penalty: six months’ imprisonment or a fine not exceeding $1,000 or both.
5 Sentencing Act 2002, s 24(1)(b).
[5] Analysis of electronic messages associated with you established, during the four weeks or so from 5 May 2019 to your arrest on 6 June 2019, you sold or offered to sell cannabis to various people over the age of 18 years.
[6] The Crown suggests the evidence establishes you had a reliable and substantial source of cannabis for supply in large commercial amounts, and a close working relationship with a particular customer, to whom you offered to supply three pounds of cannabis at about $3,200 a pound, or ounces at $200–$300 each. To the contrary, Mr Morgan says the evidence only establishes you sold two ounces of cannabis, and were in possession of another ten ounces, while acting as middle-man in a prospective transaction to off-load another’s unsold cannabis. But he accepts your conduct in these respects was not “a one-off occasion”.
[7] Your wider involvement in cannabis supply led to you becoming caught up in others’ more serious criminal offending, with chastening consequences for you.
Personal circumstances
—PAC report
[8] The Department of Corrections’ pre-sentence report notes these are your first instances of drug-related offending. With only one prior conviction, you are assessed at low risk of reoffending, but given the antisocial nature of your offending now, of medium risk of harm to the public. You live with your wife and two children in Hauturu, in a stable and supportive relationship. You have 10 years of farming experience, and are in a dry stock operation partnership with your father-in-law.
[9] You say the cannabis plants at your home are for your personal use and pain relief. The large amount of dried cannabis was to help a friend earn money to buy a house before the birth of his child. Although you acknowledge occasionally using methamphetamine socially, you deny the methamphetamine in your possession was yours, saying you held it as collateral to ensure a cannabis customer would pay a debt. You regret your actions in these respects, which you knew were unlawful.
Approach to sentencing
[10] I now turn to explain how I will sentence you. I take a two-stage approach: first, to identify a starting point for offending of this type. That involves identifying the offending’s aggravating and mitigating features.6 Second, I take into account all aggravating and mitigating factors personal to you, together with a discount for your guilty pleas, all calculated as a percentage of the starting point.7
[11] I am to have regard for the statutory purposes and principles of sentencing.8 Of particular relevance to drug-related sentencing are to hold you accountable for the harm caused, to promote a sense of responsibility in you, to denounce your conduct, to deter you and others from committing similar offences, and to protect the community and assist in your rehabilitation and reintegration with it.9
[12] I must consider the gravity (or seriousness) of your offending in comparison with other types of offences.10 Consistency in sentencing is desirable,11 but I must take into account anything in your circumstances as would make an otherwise appropriate sentence “disproportionately severe”.12 I must impose the least restrictive outcome appropriate in the circumstances,13 consistent with appropriate sentencing levels. These purposes and principles of sentencing have no ranking.14
Analysis
—starting point
[13]My first step is to set a starting point for your sentence.
[14] Given no distinction is to be made between cultivating and selling cannabis (despite the minor disparity in their respective 7 and 8-year maximum terms of
6 R v Taueki [2005] 3 NZLR 372 (CA).
7 Moses v R [2020] NZCA 296 at [46]–[47].
8 Sentencing Act, ss 7 and 8.
9 Section 7(1); and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [58].
10 Section 8(a)–(b).
11 Section 8(e).
12 Section 8(h).
13 Section 8(g).
14 Moses v R, above n 7, at [4], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [37].
imprisonment),15 their materiality is for establishment of a sentencing starting point in a range from 2 to 4 years’ imprisonment, or lower where “sales are infrequent and of very limited extent”.16 The lower bound reflects, in particular, circumstances of cannabis cultivation.
[15] There is a clear legislative presumption that, if anything, supplying is the more serious offence.17 Supply alone — implying both separate source and customer, rather than simpler distribution of personal surplus — does not justify the lower bound. But the usual measure of the seriousness of drug offending — the amount subject to the offending — is complicated by the uncertainty if you could ever truly be said to have had access to three pounds of cannabis for supply.
[16] I therefore take a starting point in category two of the relevant tariff decision, of between two and four years’ imprisonment,18 as warranted by the commerciality of even those of the transactions that came to pass and your recognition of the commercial opportunity presented by the balance.19 The offending is aggravated by the premeditated nature of your conduct in seeking to resolve supply and demand.20 It also is aggravated by your conduct as a “middleman”, seeking to resolve others’ supply and demand problems. And last, it is aggravated by your capacity to resolve those [others’] problems using your own network. But none of that was particularly sophisticated or (in light of the incomplete transactions) large-scale.
[17] Nonetheless, that gives you a “leading role” in larger offending than you might have achieved by your own resources,21 and was facilitative of others’ offending. It is no answer the cannabis may, or even would, have found another route to market. Here, you were that route, and must bear the deemed consequent social harm. Considering a representative sample of category two cannabis sentencings at an appellate level and
15 Misuse of Drugs Act, ss 6 and 9; R v Gray [2008] NZCA 224 at [9]–[12]; and R v Kennedy [2011] NZCA 109 at [14].
16 R v Terewi [1999] 3 NZLR 63 (CA).
17 R v Gray, above n 15, at [12].
18 R v Terewi, above n 16, at [4].
19 R v Andrews [2000] 2 NZLR 205 (CA) at [9].
20 Sentencing Act, s 9(i).
21 Zhang v R, above n 9, at [115].
their starting points,22 I take a starting point of two years and nine months’ imprisonment.
[18] That starting point includes a three-month uplift for your methamphetamine offending, which is made more egregious by your possession of it as a commercial counter.
—adjustment for personal factors and guilty plea
[19] No further uplift is required for your personal factors. I recognise the personal deterrence of your offending’s consequences. While those circumstances delayed an earlier guilty plea, and your responsible acknowledgment of past transactions also complicates credit for good character, I allow a universal discount of 30 per cent, to bring your end sentence to one year and eleven months’ imprisonment.
—short-term imprisonment
[20] Having determined that duration, and considering neither denunciation of your conduct nor your rehabilitation and reintegration requires you to serve a short term of imprisonment, you are eligible for home detention.23 Home detention itself carries a considerable measure of denunciation and deterrence.24 It would be for a period of eleven months and two weeks, being all the time you would have served in prison.25 The applicable purposes of sentencing, including deterrence of others, would not be
22 Crutchley v R [2015] NZCA 473 (starting point: three years’ imprisonment); Ramsey v R [2013] NZCA 277 (starting point: three years’ imprisonment); Tomars v R [2013] NZCA 54 (starting point: three years’ imprisonment); Lord v R [2012] NZCA 276 (starting point: two years and nine months’ imprisonment); Codlin v R [2012] NZCA 71 (starting point: two years and nine months’ imprisonment); R v Bryant [2009] NZCA 287 at [25] (starting point: two years and six months’ imprisonment); R v Gray, above n 15 (starting point: three years’ imprisonment); R v Rakatau [2007] NZCA 21 (starting point: two years and ten months’ imprisonment); R v Evans CA444/05, 7 June 2006 (starting point: two years’ imprisonment); R v Shelford CA3/06, 22 March 2006 (starting point: 18 months’ imprisonment, uplifted to 21 months’ imprisonment for other factors); R v Paki CA165/05, 5 September 2005 (starting point: two years and two months’ imprisonment); R v Coleman CA80/05, 31 August 2005 (starting point: three years’ imprisonment); and R v Edmonds CA23/02, 28 May 2002 (starting point: two years’ imprisonment).
23 Sentencing Act, s 15A; and R v Vhavha [2009] NZCA 588 at [31].
24 R v Iosefa [2008] NZCA 453, at [41]; Fairbrother v R [2013] NZCA 340 at [29].25 Parole Act 2002, s 86(1).
met by any less restrictive sentence. Community detention is limited to a six-month period,26 even if then coupled with up to 400 hours community work.27
[21] I view your best rehabilitative and reintegrative activity is working on your and your father-in-law’s farms. Your residence (excluding its laundry) and its occupants, including you, are suitable for home detention’s electronic monitoring, although its wider farm environment is not. Nonetheless, a probation officer may approve your leave from the residence to attend on those farms.28 That supervised discretion offers the best prospect of meeting all applicable sentencing purposes in your case.
Sentence
[22] Mr Williams, please stand. On your convictions, I sentence you to eleven months and two weeks’ home detention on standard conditions at your Hauturu residence. You may stand down.
—Jagose J
26 Sentencing Act, s 69B(2).
27 Sentencing Act, s 55(2).
28 Sentencing Act, s 80C(3)(c)(iii).
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