R v Williams HC Palmerston North CRI 2010-054-1136
[2010] NZHC 1410
•3 August 2010
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2010-054-1136
THE QUEEN
v
ANDREW PAUL WILLIAMS
Counsel: E J McCaughan for Crown
P S Coles for Prisoner
Sentence: 3 August 2010
SENTENCING NOTES OF DOBSON J
[1] Mr Williams, you are appearing for sentence this morning on one conviction for possession of cannabis (which is a class C drug) for sale. That is an offence contrary to s 6(1)(f) of the Misuse of Drugs Act 1975 (the Act) which carries a maximum penalty of eight years’ imprisonment.
[2] During a Police search of the property you were visiting, the vehicle that you were in was searched and a backpack was located in the foot well of the seat that you had occupied. The backpack had four bags, each containing approximately an ounce of cannabis, totalling some 113 grams, valued by the Police, if you had them sold in ounce lots, at about $1,400. The backpack also contained a set of electronic scales and you had two cell phones in your possession. A search of the text messages on
the phones revealed communications about dealing in cannabis. You admit the
R V WILLIAMS HC PMN CRI-2010-054-1136 3 August 2010
cannabis was yours, but you initially denied that you possessed it for the purposes of supplying others.
[3] After a number of appearances in the District Court, you pleaded guilty at what is accepted to be a reasonably early opportunity.
[4] Importantly, you have a number of relevant previous convictions for drug offending. You were sentenced to 18 months’ imprisonment in July 2006 for cultivation of cannabis, and concurrently to six months for attempting to produce cannabis oil. You were sentenced to periodic detention for possession of cannabis in
2000 and 1998, and to corrective training for possession of cannabis in 1997. Now as Mr Coles has said this morning you can treat those before 2000 as historic, but sadly they are on your record and they are a part of a pattern.
[5] In addition, you have a pattern of convictions suggesting disregard for Court orders, including driving whilst suspended in 2003, breach of periodic detention, failing to comply with a prohibition by an enforcement officer and escaping from custody in 2000. Again, those are verging on being historic but they are on your record.
[6] This charge is laid against you indictably and on 28 June 2010 the District Court declined jurisdiction, which is how you come to be appearing before me for sentence today. Since then, on 5 July 2010 you were convicted on three counts of theft, and were sentenced on those convictions to 60 hours’ community work. The pre-sentence report states that you have not started that sentence but you tell me this morning that you have now done one day of that sentence.
[7] Mr Williams, you are of a worrying type of offender who comes before High Court Judges, particularly in provincial centres. The relevant characteristics I identify are that you are no longer young, you have some health problems, you are generally co-operative with the Police when found with cannabis but downplay any commerciality in the dealing that you have to acknowledge, and you seem genuinely to treat your conduct as relatively trivial because you consider it to be “victimless crime”. That is a view that small-scale cannabis dealers who are also users can
persuade themselves of, when they have a habit of cannabis use, are not concerned that it leads to dependence or a craving for other drugs, and that your own use is perceived by you as not causing any harm.
[8] Probably to some extent because of that attitude, your type appear not to be deterred from on-going offending of the same type, irrespective almost of the sentences you receive when you are convicted. Mr Williams, that attitude about the level of criminality involved in what you have done is out of step with New Zealand society, out of step with Parliament’s response to societal concerns, and is therefore inconsistent with the approach that I am obliged to adopt in sentencing you. The Act is justified in attributing a sentence of eight years as the maximum term of imprisonment because use and dealing in cannabis is associated with other offending and the use of cannabis in a range of circumstances leads to the use of more serious drugs.
[9] In terms of the prospects for your rehabilitation after this sentencing, I urge you, Mr Williams, to re-rate the seriousness you appear to attribute to dealing in cannabis. And I urge you, please, to see it as having substantially more serious consequences for yourself and for others than you appear to at the moment.
[10] The purposes of sentencing under s 7 of the Sentencing Act 2002 include denouncing the criminal conduct you have been involved in, and deterring you and others from breaking the law in this way. Under s 8 of the Sentencing Act, I must take into account a number of matters including the gravity of your offending, your degree of culpability, the seriousness of this offending in comparison with other types of offending with an eye on the maximum penalty imposed. I must also take into account the desirability of consistency with other sentences for offending in similar circumstances, and I must ultimately impose the least restrictive outcome that is appropriate in the circumstances. Although I will reflect your own personal circumstances, as Mr Coles acknowledges, in cases of sentencing for drug dealing the personal circumstances of the offender cannot influence the ultimate outcome as much as may be appropriate in other types of offending.
[11] Counsel have this morning referred to the Court of Appeal’s decision in R v Terewi, where the Court of Appeal provided guidelines for sentencing in cases of cannabis cultivation.[1] The guidelines are treated as extending to cases of possession of cannabis for sale or supply. I agree with counsel that your circumstances fall within category 2 of Terewi, which:
[1] R v Terewi [1999] 3 NZLR 62 (CA).
…encompasses small scale cultivation of cannabis plants for commercial purpose, that is with the object of deriving profit. The starting point for sentencing is generally between two and four years, but where sales are infrequent and of very limited extent, a lower starting point may be justified.
[12] On your behalf, Mr Coles has argued that you are at “the very bottom of category 2” and he urges that there is a very limited degree of commerciality involved in what you are doing.
[13] Mr Coles disputes the level of commerciality attributed by the Police analysis of the text messages, and I am inclined to agree that a reference to “harvesting”, and you not being able to do so because you do not have a car, together with suggestions that you were looking to trade cannabis for a car, do suggest that yours was unsophisticated dealing at a relatively low level.
[14] Mr Coles’ argument was that, once credit is given for your guilty pleas, you would qualify for a short term of imprisonment, which can properly be converted into a term of home detention. He cited a number of cases in which an end point of less than two years’ imprisonment was substituted for terms of home detention for possession of cannabis for supply.[2] In Bowman, an end sentence of 20 months’ imprisonment was substituted with 10 months of home detention. In Clegg, a prison sentence in the range of 18 to 20 months was substituted with nine months’ home detention, and in Wihongi, an end sentence of 20 months’ imprisonment was
[2] Cases cited were Police v Bowman HC Palmerston North CRI-2008-054-5896, 13 May 2009,
substituted with 10 months’ home detention.
[15] Mr Coles also invited analogy with a range of other sentencing decisions to illustrate the breadth of circumstances in which the Court of Appeal has recognised that home detention can constitute a deterrent sentence.[3]
[3] R v D [2008] NZCA 254, 30 July 2008, R v Iosefa [2008] NZCA 453, 3 November 2008 and R v Osman [2010] NZCA 199, 14 May 2010.
[16] The submissions for the Police are that the relative seriousness of your offending, and the aggravating and mitigating features of the offending itself, require a higher starting point of between two and a half to three years’ imprisonment. Mr McCaughan this morning has said two and a half years. The Police accept, even although your guilty pleas were entered at what was the fourth call of the charge, that it is appropriate to give a full credit of 33 per cent in line with the Court of Appeal
decision in R v Hessell.[4] A starting point in that range requires a greater degree of
[4] R v Hessell [2010] 2 NZLR 298 (CA).
commerciality in the dealing in cannabis than I am satisfied exists here. Dealing initially just with the circumstances of the offending, I consider a starting point of two years’ imprisonment is appropriate.
[17] The pre-sentence report on you emphasises your view that you consider your crime to be victimless. It assesses you as being at a moderate to high risk of re-offending, which assessment is supported by the observation about continued use of drugs.
[18] Mr Williams, I am troubled by your relevant previous convictions. You have been a relatively persistent offender in relation to cannabis and, as I have said, it may be that you continue because of a personal view that what you are doing is not as seriously wrong as society and the law treats it. You were sentenced four years ago to 18 months’ imprisonment for cultivating cannabis, and at the same time a concurrent six months’ imprisonment for attempting to produce cannabis oil. I have referred to previous sentences of periodic detention in 2000 and 1998, plus an earlier one for possession in 1997. Mr Williams, selling cannabis and possessing cannabis for sale is serious and your total previous convictions warrant an uplift of three months.
[19] Mr Coles has explained the difficulties with your own health. He has referred to the May 2009 assessment of you. Since then, there has been heart surgery and your recuperation has been hampered by renal failure. Those are worrying, but not to an extent that would make a prison sentence disproportionately punitive for you when compared with other similar offenders. A one month reduction for these mitigating circumstances is as much as I feel I can allow. Accordingly, the final starting position dealing with the offending is two years, two months or 26 months. From that, you are entitled to a discount of one third, which is somewhat less than nine months, but if we made it nine months, that leaves an end sentence of 17 months’ imprisonment.
[20] The next issue is whether, as Mr Coles urges, to substitute a term of home detention for the prison term, which qualifies for that because it is what the law deems to be a short term sentence. The pre-sentence report does not support home detention. Although your mother’s address in Dannevirke is recognised as appropriate, your personal circumstances and the circumstances within the home are not seen as supportive of your rehabilitation. Your father has serious health problems. He was in hospital at the time the report was done, but is, I understand, due home. Your mother, who I acknowledge is here today, is supportive, but the view of the report writer is that she is not in a position to exert any strong influence over your behaviour.
[21] When District Court Judge Fraser declined jurisdiction in that Court, he signalled his inclination against home detention, citing:
• your previous offending;
• the extent of the problem he perceived you to have with drugs;
• the absence of rehabilitative initiatives that you might have taken;
• the fact that you would be placed back at home with an ability to continue your offending, and
• the lack of confidence in your ability to abide by conditions given the various breaches of Court orders and an escaping from custody in 2000.
[22] Again Mr Coles urges me to downplay a lot of that conduct as being historic, but I cannot disregard it entirely.
[23] Now with the benefit of the additional submissions in light of those concerns, and the matters raised in the full pre-sentence report and the appendix to it, I have come to the same view. All of the concerns previously identified are relevant.
[24] In none of the three cases Mr Coles cited for substituting home detention[5] had the defendants previously been sentenced to jail terms for drug offending. That is not an absolute bar, and I note, for instance, the decision of Keane J in R v Kettle where the defendant had been convicted of cultivation of cannabis and producing cannabis oil.[6] That offender did have prior convictions some eight years previously for the same offences, which, together with other offences, had resulted in a sentence of three years’ imprisonment. There were no convictions in the intervening period and the sentencing Judge was prepared to substitute home detention in those circumstances. It appears that the offender’s rehabilitative efforts and support were factors encouraging the Judge to sentence to home detention. And I accept the Police submissions here that I cannot identify similar rehabilitative initiatives in your
[5] See footnote [3] above.
[6] R v Kettle HC Hamilton CRI-2009-019-7265, 19 November 2009.
case. Mr Williams, improving the prospects of not offending is in your own hands. So far you appear not to have wanted to, but I urge you to change and I’m going to give you as much help as I can in the conditions that I will impose.
[25] Accordingly, you are sentenced to 17 months’ imprisonment. As a consequence of this sentence, and as requested in the pre-sentence report, I concurrently cancel the recent sentence of community work that was imposed on
5 July 2010.
[26] As recommended in the pre-sentence report, the following special conditions are imposed:
a) you are to attend any assessment or programmes to address gambling issues as directed by a Probation Officer;
b)you are to attend and complete alcohol and drug assessment and attend any counselling or treatment (including residential) as directed by a Probation Officer;
c) you are to attend any other assessment or programmes as directed by a
Probation Officer;
d)you are to attend an assessment for a departmental programme as directed by a Probation Officer.
[27] The Crown have also sought an order for destruction of the cannabis material and that is appropriate, and I so order under s 32 of the Act.
[28] You may stand down.
Dobson J
Solicitors:
Crown Solicitor, Palmerston North
P S Coles, Palmerston North for Prisoner
R v Clegg HC Tauranga CRI-2008-070-2119, 9 July 2008 and R v Wihongi HC Whangarei CRI-
2008-027-001803, 19 November 2008.
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