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R v Carson [2012] NZHC 3414 (14 December 2012)

Last Updated: 9 January 2013


IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-019-2006 [2012] NZHC 3414


THE QUEEN


v


MARK DAVID CARSON

Hearing: 14 December 2012

Counsel: R Laybourn for Prisoner

R G Douch for Crown

Judgment: 14 December 2012


SENTENCING REMARKS OF LANG J

R V MARK DAVID CARSON HC HAM CRI-2010-019-2006 [14 December 2012]

[1] Mr Carson, you appear for sentence today having pleaded guilty following a sentence indication on charges of conspiring to supply cannabis and conspiring to supply the Class A controlled drug lysergide.

[2] In the sentencing indication that I gave you on 27 September 2012, I set out the facts of your offending and I do not propose to repeat them here. My sentencing indication will form an appendix to these remarks and must be read as part and parcel of these remarks.

[3] I concluded that an appropriate sentence for your offending was one of one year nine months imprisonment. That took into account the mitigating factor of guilty pleas entered within a short period after the indication. It left open, however, the possibility that the sentence could be further reduced slightly by other mitigating factors personal to you. I was not able to ascertain those, of course, until I had the benefit of the pre-sentence report and the submissions filed by your counsel. I now have the benefit of that material and am therefore in a position to pass sentence.

[4] You appear for sentence at the age of 45 years. The pre-sentence report makes it clear that you have a reasonably strong work ethic. You have had difficulties in your family life and I have no doubt that these contributed to the manner in which you became involved in drugs. You acknowledged to the probation officer you had given little thought to the consequences of your actions at the time you committed your offences. You obviously were fully involved, at that time, in drug-related activity and had little time to think of the ramifications that such activity causes for the wider community.

[5] The probation officer assesses you as being at a low risk of re-offending. You have obtained full-time employment and in a letter to the Court you have said that you are committed, in the future, to undertaking a law abiding life. You also say you are deeply saddened and embarrassed by your total disregard for the law, and the fact that you failed to function in a normal and proper manner as you had been brought up to do. You also say you have now realised that it is time to get back on track. You want to act your age and become a worthwhile member of the community.

[6] In any case where the Court sentences an offender, particularly offenders in relation to drug-dealing activities, it needs to bear in mind that expressions of remorse and aspiration may be occasioned in large part by the offender’s knowledge that he or she is about to be sentenced.

[7] I am satisfied, however, having regard to your background, that you are genuine in what you say. I consider there is a real prospect that you will again become a worthwhile member of the community. For that reason I am prepared to make a further small allowance both for your remorse and to recognise the fact that you have genuine prospects of rehabilitation. I consider the Court should be seen to encourage these rather than discourage them. For that reason I am prepared to reduce the sentence by a further two months to reflect those factors.

[8] When I gave the sentencing indication, the Crown did not alert me to the fact that the indication also needed to cover the charge of conspiring to supply cannabis. The Crown accepts today, however, that this offending was at a low level and can appropriately be met by a short concurrent term of imprisonment.

Sentence

[9] Mr Carson, on the charge of conspiring to supply lysergide you are sentenced to one year seven months imprisonment. On the charge of conspiring to supply cannabis you are sentenced to one months imprisonment. Those charges are to be served concurrently, which means you will serve an effective sentence of one year

seven months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

R Laybourn, Hamilton

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY CRI-2010-019-2006


THE QUEEN V

MARK DAVID CARSON

Hearing: 27 September 2012

Counsel: R Douch for Crown

R Laybourn for Mr Carson

Date of remarks: 27 September 2012

SENTENCE INDICATION OF LANG J

Solicitors:

Crown Solicitor, Hamilton –

Counsel:

R Laybourn, Hamilton – laybournlaw@xtra.co.nz

[1] I have been asked today to give a sentence indication in respect of Mr Carson, who faces a charge of supplying the Class A controlled drug lysergide. For the purposes of today’s hearing, the Crown has indicated that it would be prepared to accept a guilty plea to the lesser charge of conspiring to supply that drug. As I will indicate, however, the reduction of the charge does not have a very significant impact on the appropriate sentence to be imposed.

[2] For the purposes of today’s hearing, I have a summary of facts that both counsel agree I can proceed upon. I also have a copy of Mr Carson’s criminal history. I emphasise at the outset that the indication I give today is solely for the purpose of today’s hearing and based on the material in my possession.

[3] In the event that Mr Carson elects not to accept the indication and proceeds to trial, the trial Judge will sentence him according to the evidence that comes out in the trial. That may, of course, be significantly different than the current summary discloses. It may be in Mr Carson’s favour, or it may be against his interests. He needs to make his own decision based on that prospect.

Background

[4] The summary of facts records that Mr Carson had an association with one Stephen Gray, who was the subject of an extensive police electronic interception operation between May and October 2009. During the course of the operation the police intercepted communications between Mr Carson and Mr Gray. These occurred for the most part when Mr Carson visited Mr Gray’s address. This occurred at least 20 times during the period covered by the operation.

[5] Mr Gray had access to quantities of lysergide (LSD), and Mr Carson acquired quantities of that drug from him for the purpose of on-supply to others. The tenor of the intercepted conversations is to the effect that the LSD in question was of considerable strength. One of the difficult aspects in the present case, however, is that it is impossible to estimate exactly how much LSD Mr Carson acquired.

[6] During a conversation on 28 August 2009, Mr Carson paid Mr Gray the sum of $1,000 and observed that he still owed him the sum of $250. This could suggest that Mr Carson had acquired a large number of LSD trips from Mr Gray, because LSD trips generally sell for $20. The Crown acknowledges, however, that Mr Carson was acquiring other drugs from Mr Gray during this period for his own use. For that reason, the sums of money mentioned in the intercepted conversations are not a reliable indicator of the quantity of drug changing hands at any given time.

[7] On 3 September 2009, a further conversation took place. In this conversation Mr Carson told Mr Gray of a discussion he had had with a third party who was enquiring as to what Mr Carson had “put into those cardboard things”. It appears that the trips that Mr Carson had supplied this person had produced effects that were extraordinary in the eyes of the persons who had consumed them. During this conversation, Mr Carson paid Mr Gray a further sum of $600 and said that he owed him $100 more. The same comments apply in relation to this payment as the comments I have made in relation to the payments made on 28 August 2009.

[8] On 18 September 2009, a further conversation took place. During this, Mr Carson advised Mr Gray that he was shortly to be approached by an associate who was going to obtain some LSD trips. The associate was then going to take the LSD trips to Auckland. Mr Carson said that once the trips arrived in Auckland, business would take off because the trips that the associate was to receive were unique at that time.

Starting point

[9] In setting a starting point, the Court is hindered to some extent by the fact that there is no “tariff” or guideline judgment of the Court of Appeal in this area. The best that can be done is examine sentences imposed in other broadly similar cases. The Crown has referred me to cases in which a three year sentence was imposed on a 19 year old who had supplied 13 tabs of LSD. In another case, a starting point of three years imprisonment for supplying ten tabs of LSD was held to be within, but towards the upper end of, the range for a first offender. Those cases provide assistance to the extent that they suggest that around three years

imprisonment is an appropriate starting point, even where just ten to 13 tabs of LSD

are involved.

[10] In the present case, as I have said, there is no way in which the Court can make a finding regarding the quantity involved. Nevertheless, the tenor of the intercepted conversations is to the effect that it is significantly more than just one or two trips.

[11] Another factor that needs to be weighed into the equation is that Mr Carson is now pleading guilty to the reduced charge of conspiracy. That does not matter greatly in the present case, because it is clear that actual supplies occurred. As a result, the conspiracy moved well beyond being a mere plan and, instead, was executed. In those circumstances the Court of Appeal and Supreme Court have held that very little discount can be given.

[12] Had Mr Carson been appearing on a charge of supplying LSD, I would have selected a starting point of between two years six months and two years nine months imprisonment. Having regard to the fact that the quantity is unknown and the charge is now conspiracy, I propose to adopt a starting point of two years three months imprisonment.

Discount for guilty plea

[13] Although Mr Carson has some previous convictions, they are for minor matters and there is no suggestion that the starting point should be increased to reflect those. The only matter in respect of which I can give credit at this stage is the guilty plea. Although the guilty plea would be entered late in the piece, the Crown accepts that the complex nature of the police operation leading to these charges means that a significant discount should still be given. It does not quarrel with a discount of 20 per cent, which is in line with that offered to other offenders from the same operation who have pleaded guilty at a relatively late stage.

[14] Applying that factor, and rounding it up, the sentence of two years three months imprisonment is reduced by six months to one year nine months imprisonment.

Home detention

[15] That brings the sentence within the range in which a sentence of home detention can be imposed. I can make no comment on that other than to say that, as Mr Carson’s counsel acknowledges, sentences of home detention are not that common in relation to commercial drug offending. Whether or not that type of sentence is appropriate in the present case would need to be considered further once a pre-sentence report is available. At that time, also, it would be necessary to decide whether any additional discount should be allowed to address issues of remorse and other matters personal to Mr Carson.

[16] The sentence indication will remain open for a period of one week. If Mr Carson wishes to take advantage of the indication I have given, he needs to appear in this Court at 9 am on Friday 5 October 2012. At that time I will take guilty pleas of those persons who wish to take advantage of sentence indications being given today.


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