R v Botting [2013] NZHC 991 (7 May 2013)

Last Updated: 14 May 2013

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-025-000445 [2013] NZHC 991

REGINA

v

MURRAY FRANCIS BOTTING

Hearing: 7 May 2013

Counsel: R W Donnelly for Crown

W N Dawkins for Prisoner

Judgment: 7 May 2013

_{SENTENCING REMARKS OF WHATA J}

[1] Mr Botting you have pleaded guilty to five charges relating to the possession and selling of cannabis. On each of the charges the maximum penalty is eight years imprisonment.

Facts

[2] You were involved in the sale and distribution of cannabis in Invercargill and Eastern Southland for about five years. In October 2012 your luggage was searched at the Invercargill Airport and two bags containing a total of ten pounds of cannabis were found together with cash of about $920 and an electronic diary containing a ledger of the cannabis sales. The value of the cannabis was $42,000 or if sold in ounce weights about $44,800. You say, however, that you purchased the cannabis

_{for about $30,000. A search of your electronic diary and of your cellphone revealed}

R V BOTTING HC INV CRI 2013-025-000445 [7 May 2013]

a large number of cannabis sales. You also sold a total of $33,820 of cannabis to various people over the several months before you were arrested. You also conceded in an interview that you had been travelling to the Eastern Bay of Plenty for five years, both by air and road and on no more than five occasions purchased cannabis at

$3,000 a pound.

Personal circumstances

[3] I have had the benefit of a pre-sentence report dealing with your background. Your report states that you are currently residing in a flatting situation with one other person. It says that you are currently maintaining a vacant property and intend to move into that property if you are placed on electronically monitored sentencing. You have the support of your parents and you are the father of an adult son. Your daughter passed away I understand about two years ago. You separated from your wife about five years ago.

[4] You are currently employed as a contractor for Dongwha who operate a fibreboard mill on the outskirts of Mataura. Your employer is aware of your offending and is prepared to continue to employ you.

[5] You are generally in good health and capable of participating in community work if appropriate. In terms of your previous offending you have appeared on charges of burglary and theft in the Youth Court. You have a number of District Court convictions relating to, for example, driving related offences, firearms offences, possession of liquor in a public place, and similar sort of scale offences. You have no drug related convictions and your most recent convictions occurred in

2008.

[6] In terms of your pre-sentence report, you admit the offending. You say that it is linked to failure of your logging contracting business and that you needed to pay down debt. You are not a user of drugs and the pre-sentence report says that your risk of reoffending is low provided that you take steps to address your financial issues. The report recommends home detention with post detention conditions.

[7] Finally there are testimonials as to your good character. There is also a letter from your wife explaining the financial and emotional pressure that you were under.

Purposes and principles of sentencing

[8] In forming my view as to your sentence I must have regard to the purposes and principles of the Sentencing Act 2002. Particularly relevant Mr Botting is the need to denounce your conduct, to deter others from doing it, but also to have regard to your rehabilitation. In terms of the principles I must apply, I must have regard to the gravity of the offending and the degree of your culpability, the desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offending.

Crown submissions

[9] The Crown submits that a starting point of three years and nine months would be appropriate. The Crown cites cases which it says have similar characteristics and which it says support that starting point.1

Defence submissions

[10] Your counsel has also provided detailed submissions on the appropriate starting point for sentence. He refers to key purposes and principles, as I have done, and he refers to the leading authority of R v Terewi.2 Most significantly he says your offending does not involve a large scale commercial operation accompanied by a degree of sophistication and organisation. He says that you were involved in a small to medium sized commercial operation with the objective of deriving profit. He then provides a very thorough canvas of a range of cases dealing with cannabis related offending. For my part this canvas of cases demonstrate that I must engage in a fact

specific exercise and the starting point is set by reference to the facts of your

_offending.

1 Referring to R v Brundell HC Rotorua CRI 2011-012-2384, 14 October 2011; and R v Marchant

_{HC Tauranga CRI 2008-087-1222, 26 November 2008.}

2 R v Terewi [1999] 3 NZLR 62 (CA).

[11] Your counsel also accepts that in terms of aggravating factors, drug dealing is inherently harmful to the community and that there was an element of planning involved.

[12] He helpfully identifies mitigating factors, including your co-operation. He points out that in one case 5% was deducted from the starting point for co-operation with the police and for remorse.3

[13] Your counsel then refers to your personal history as part of the explanation for your offending. The personal circumstances include your failing logging business and health problems your daughter experienced to her death at the age of 14 in 2010.

[14] Given all of the above your counsel recommends to me an appropriate starting point of no more than three years together with a further allowance of 10% for your personal circumstances and 25% for your guilty plea.

[15] Finally, your counsel submits that you are eligible for home detention by reference to a series of cases where similar offending is said to have been involved.

Assessment

[16] I accept your counsel’s submission that a starting point of three years is appropriate in this case. Your offending is best placed in category 2 of Terewi. Your offending involved moderate scale distribution of cannabis for a commercial purpose, with reasonably regular transactions. I am satisfied this places you in the middle of category 2. This is less than the starting point suggested by the Crown, who relied on R v Brundell and R v Marchant. But in my view the facts in both those cases involve more sophisticated operations and what could be said to be a more dedicated approach to the production and/or sale of cannabis. Conversely this case might be said to be more comparable with the level of commerciality involved

_{in R v Haddon but greater than the activity in R v Gray.}4

3 _{Referring to Makara v R [2012] NZCA 499.}

4 R v Haddon [2012] NZHC 1034; R v Gray [2009] NZCA 31.

[17] There are no additional aggravating factors relating to the offending or to you personally that would warrant uplift. While there are multiple charges, they really are part and parcel of the same offending. I do not consider that your previous convictions are relevant for the purposes of your sentencing.

[18] As to mitigating factors, I accept that R v Terewi is not authority for the proposition that in cases involving commercial drug dealing the offender’s personal circumstances must always be ignored. I think that your offending can fairly be described as a sole operator under the burden of significant debt. Your criminal dealings and your difficult financial circumstances can be linked to difficult personal circumstances, including the breakdown of your marital relationship and the passing of your daughter. Any discount, however, for this cannot be significant and I place it at 5%. I also accept that you are remorseful for your behaviour and that you accept that you made a poor decision when you took up drug dealing. I consider that this warrants a further discount of 5%. I note that you were co-operative with the police and that you entered a guilty plea at the earliest possible date. The former is relevant in my view to the type of sentence, and the latter carries with it a mandatory further deduction of 25%.

[19] In those circumstances Mr Botting, were I to impose a sentence of imprisonment on you, I would impose a sentence of one year 11 months.

Home detention

[20] I consider that not only are you eligible for home detention but that it would be appropriate for you in this context having regard especially to the importance of your rehabilitation. Your pre-sentence report identifies that the risk of your reoffending is low provided that you take steps to address your financial issues by legitimate means. You now have a job with a supportive employer and it appears a caring and supportive family environment. Like you, I can see the light at the end of the tunnel and while this Court must denounce your action through some form of incarceration, I consider that home detention is the most appropriate and proportionate to the nature of your offending and the background to it.

[21] Given the foregoing, I propose to impose a sentence of home detention of

11 months. Your pre-sentence report also recommends post detention conditions and other special conditions which I impose.

[22] Accordingly, please stand Mr Botting, on each of the charges of possession and sale of cannabis I sentence you to 11 months home detention, all to be served concurrently.

[23] There shall also be an order for forfeiture and destruction as sought by the

Crown.

Solicitors:

Preston Russell Law, Invercargill

Bill Dawkins Law, Invercargill