R v Wolland HC Auckland CRI-2010-092-13356

[2011] NZHC 147

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-13356

THE QUEEN

v

PATRICK WOLLAND

Hearing:         18 February 2011

Appearances: Ms E Harrison for Crown

Ms I Jayanandan for Prisoner

Judgment:      18 February 2011

SENTENCING REMARKS OF LANG J

R V WOLLAND HC AK CRI-2010-092-13356 18 February 2011

[1]      Mr Wolland, you appear for sentence today having pleaded guilty in the District Court to a charge of being in possession of cannabis plant for supply.  The maximum penalty for that offence is a sentence of eight years imprisonment.  The District Court declined jurisdiction to sentence you and remanded you to this Court for sentence.

The facts

[2]      The facts that give rise to your offending are narrow in compass.  The police were called to your address on 28 August 2010 because somebody had reported a male person smashing a window.  When they got there, they found that you were the person  who  had  smashed  the  window.    You  had  done  that  because  you  had apparently locked your keys inside the address and you needed to get in.

[3]      The police went into the address to inspect the damage that you had caused. When they entered they found what appeared to be cannabis plant material inside the address, together with tinfoil squares on the kitchen table.  They ultimately found a bag of cannabis at the address.  In all, they located 48.6 grams of cannabis.

Sentencing Act 2002

[4]      The courts adopt  a reasonably uniform approach when  it comes to  drug dealing.  As you well know, people who deal in drugs in any quantity go to prison. That is the only way in which the Court can properly send a message that drug dealing will not be tolerated.  Issues of deterrence and denunciation are always to the forefront when it comes to dealing in drugs.

[5]      At the same time, however, the courts are required by the Sentencing Act

2002 to ensure that the sentences that it imposes are consistent with those imposed in relation to other offending in similar cases.  It is also required to impose a sentence that is the least restrictive outcome in the circumstances, and that provides, so far as possible, for rehabilitation and reintegration of the offender into the community.

Starting point

[6]      The sentencing approach in this area is governed by a decision of the Court of Appeal called R v Terewi1.   It provides that in cases of small to moderate scale commercial drug dealing, sentences of two to four years imprisonment are imposed. The Court may go below two years imprisonment where sales are infrequent, but that is not the position here.

[7]      You candidly acknowledged to the probation officer that you were selling cannabis to meet your family’s needs and also to meet your own need for the drug.  I see no reason to go below two years imprisonment.   The issue really is how far above that I should go.   I take  you to be a street level dealer selling in small quantities, probably cannabis bullets or tinnies.   That being the case, I consider a starting point of two years thee months imprisonment is appropriate.

Aggravating factors

[8]      The Court has the power to increase the starting point if it finds that there are aggravating  factors  personal  to  the  offender.    You  have  served  some  lengthy sentences of imprisonment in the past for serious crimes.  Those crimes were not, however, drug-related and I put them to one side for present purposes.

[9]      There are, however, two convictions that are relevant.  On 29 May 2009, you were fined $200 on a charge of being in possession of cannabis.  Then, four months later, you received a sentence of one year’s supervision and 75 hours community work on a charge of selling or supplying cannabis.  Your current offending occurred just before the sentence of supervision imposed on that occasion was due to expire.

[10]     The fact that you have been prepared to offend again in relation to cannabis is a serious matter.  It shows that previous sentences that the Court has imposed upon you  have  not  deterred  you  from  continuing  to  offend.    It  makes  your  present offending that much more serious.

[11]     The Crown submits that a short uplift is required to recognise this fact.   I consider that an uplift of two months is appropriate and I therefore take an end starting point of two years five months imprisonment.

Mitigating factors

[12]     I now need to consider the extent to which your sentence should be reduced to reflect mitigating factors.  The only real mitigating factor in your case is the fact that you pleaded guilty prior to depositions.   In R v Hessell2  the Supreme Court observed that a guilty plea is always a significant mitigating factor, and the earlier the plea, the more credit can be given for it.

[13]     On the other hand, you were caught virtually red-handed and conviction was inevitable.   I propose to apply a discount of around 20 per cent and reduce your sentence by seven months to reflect that fact.  This leaves an end sentence of one year ten months imprisonment.

Home detention

[14]   The real issue in sentencing you is whether I should accede to the recommendation in the probation report and sentence you to home detention. Ordinarily, that would not be an option because of your past convictions and the fact that  you  have  continued  to  offend  notwithstanding  that  you  have  received community based sentences in the past.  You have now been fined and sentenced to supervision and community work in respect of cannabis offending.  You were also prepared to offend from your home address.  Those factors would generally mean that home detention is simply not an option.

[15]     I consider, however, that there is some force in the recommendation made by the probation officer.  The probation officer points out that, through no fault of your own, you have not yet been given the opportunity to attend any programme for your obvious addiction to cannabis.  The probation officer considers that you should have

the benefit of such a programme and that this will not be possible if you receive a full-time custodial sentence.

[16]     When I came into Court today, I had decided to send you to prison because of the fact that you had not responded to previous sentences.   The persuasive submissions of your counsel have changed my mind.  I am prepared to give you a chance.  You need to recognise, Mr Wolland, that this is your last chance.  You now need to take advantage of such rehabilitative programmes as are offered to you.

[17]     You are fortunate that you now have the benefit of the support of your partner from whom you have been estranged.  She is prepared to make her address available to  you,  and that  has been assessed as  being suitable for the purposes  of home detention.  I would hope that the Department of Corrections monitors you carefully. In the event that there is a hint that you are abusing the sentence of home detention in any way, or engaging in drug use, then I would expect an immediate application for cancellation of the sentence of home detention and substitution of a sentence of imprisonment.   In the event that you offend again in a drug-related way, then you must know that all community-based options are at an end, and the inevitable result will be a sentence of imprisonment.

Sentence

[18]     Mr Wolland, I sentence you to ten months home detention.   I impose the following conditions:

(a)       You are to travel directly from Court to the home detention address of

68 Valiant Street, Mangere and there you are to await the arrival of a probation officer and a representative from the monitoring company.

(b)You are to remain at that address for the duration of the sentence of home detention.

(c)       You are to abstain from the consumption of alcohol and illicit drugs while subject to the sentence.

(d)You  are  not  to  associate  with  any  person  deemed  unsuitable  as directed by the probation officer.

(e)      You are to undertake such drug testing on a periodic basis as the probation officer may direct.

(f)      You are to attend an assessment for alcohol and drug programme, and you are to attend and complete any programme that may be recommended by your probation officer.   You are to complete that programme   to   the   satisfaction   of   your   probation   officer   and programme provider.

(g)You are to undertake and complete a departmental rehabilitation programme administered by the Department of Corrections, and you are to abide by the rules of the programme to the satisfaction of the programme provider and probation officer.

(h)You  are  to  attend,  participate  in,  and  adhere  to  the  rules  of  a maintenance group once you have completed a departmental rehabilitation  programme  to  the  satisfaction  of  your  programme

officer and group facilitator.

Order

[19]     I make an order for the destruction of the drugs that were found in your possession.

[20]     Stand down.

Lang J

Solicitors/Counsel:
Crown Solicitor, Auckland
Ms I Jayanandan, Auckland