Police v Joyce [2017] NZDC 13208 (20 June 2017)

Last Updated: 15 November 2017

EDITORIAL NOTE: PERSONAL/COMMERICAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT MANUKAU

CRI-2017-092-003416 [2017] NZDC 13208

NEW ZEALAND POLICE

Prosecutor

v

CHARLES HAMUERA JOYCE

_Defendant

Hearing:	20 June 2017
Appearances:	D Bonnar for the Prosecutor J Maddox for the Defendant
Judgment:	20 June 2017

_{NOTES OF JUDGE J BERGSENG ON SENTENCING}

[1] Mr Joyce, you appear for sentence having pleaded guilty to a series of charges that begin in February of 2016, a charge of selling cannabis, that is a representative charge between the dates of 1 and 16 February 2016, and arising out of the same incident possession of cannabis for supply. You were admitted to bail on those charges and then on 11 August 2016 further charges of possession of cannabis simpliciter, possession of utensils for smoking cannabis. Then another serious charge from 11 January 2017, you were jointly charged with two others, again possession of cannabis for supply and finally a charge of breach of bail.

[2] The summary of facts are not in dispute. What they tell me is that on

16 February the police executed a search warrant at the address of [address deleted]. That was where you were residing at. In the course of that search they found 200 grams of cannabis packaged as 258 tinnies, additionally they found

_$7742.

NEW ZEALAND POLICE v CHARLES HAMUERA JOYCE [2017] NZDC 13208 [20 June 2017]

[3] Your comment to the Police was that you admitted to selling the pre- packaged cannabis tinnies from your address, you said that you were selling about

150 tinnies a day to pay for your mortgage, you admitted to selling them at $20 per tinnie.

[4] Again on 16 August a warrant was executed at the same address.

21.6 grams of cannabis was found packaged as tinnies. A tick list was found, but I note you are not charged with dealing on this occasion. It appears that there was also someone else at the address at the same time, so the possession of cannabis charge on this occasion is simpliciter, that means the maximum penalty is three months’ imprisonment.

[5] On 17 January 2017 a third warrant was executed, again at the same address. On this occasion the police noted that there was a makeshift shop counter set up in your garage. Two other people were present and they attempted to run from the address. What was located in the search was a total of 31 grams of cannabis packaged as 78 tinnies and $1550 in cash. Your comment was that you knew the cannabis was being sold from the garage and that it was helping you to pay the mortgage.

[6] You do not have any previous drug-related convictions. The only conviction you have at the age of 35 is a drink-drive from 2013.

[7] A number of Provision of Advice to Courts reports have been obtained. The first back in September of 2016 where you confirmed that you had been dealing to pay your mortgage, you saw that as a short-term plan obviously to get you out of a financial hole. Unfortunately it seems from reading that report while the report-writer was present the police executed the second search warrant. The recommendation out of that report was a term of imprisonment.

[8] The updated report of April again really confirmed what the earlier report had said, you saw the lure of what you thought was easy money. The report-writer thought that you were in denial regarding your own drug use and the way that it was

impacting on your life and you saw the use of drugs as being normal and acceptable. Again, the recommendation was a term of imprisonment.

[9] On 1 May a further update was requested. There was no suitable address and again 15 June the report again is consistent effectively, it recommends a term of imprisonment on the basis that there is no suitable address for you.

[10] The police have filed written submissions for sentencing. They submit that deterrence is a fundamental requirement on sentencing for drug-dealing offences. The overall quantity is seen as being reasonably significant, 252 grams, and a total of

$9292 in cash. They note your admission as to what you were selling on a daily basis back in February 2016, your reason being financially motivated and that this was the ongoing operation of a tinnie home. They have referred me to the tariff decision case of R v Terewi 1, they have also referred me to a number of cases including R v Andrews 2 where the comment was made that there is no twilight between commercial and personal use and where commercial elements are involved in dealing the starting point will be a term of imprisonment between two and four years. Other cases relied on by the police include R v Dudley 3, R v Reese 4 and R v De Silva 5. They submit a starting point of three to three and a half years on the dealing charges, that there should be an uplift for the fact that this was offending on bail and the totality of the offending and that you are entitled to credit for your plea of guilty.

[11] On your behalf Mr Maddox has made submissions and also addressed me today. He submits that the starting point should be significantly below that submitted by the police. His written submissions were directed towards a community-based sentence but he accepts that prison is the only option for you, given that there is no address available where you could undertake such a sentence in

_{the community.}

1 R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA)

2 R v Andrews (2000) 17 CRNZ 382

3 R v Dudley HC Hamilton CRI-2011-019-000215, 31 May 2011

4 R v Reese HC Christchurch CRI-2005-009-010188, 15 June 2007

5 R v De Silva HC Auckland CRI-2008-092-006936, 28 July 2009

[12] Mr Maddox explains that your offending arose as a result of your home being used by others for the supply of cannabis, he effectively describes your house as being the distribution point. He accepts as an aggravating factor that multiple offending was involved over a significant period. The mitigating factors are said to be that there is no evidence as to the scale of the offending and he submits that the Court should not speculate in terms of volume, that you have entered an early guilty plea, that you are remorseful and that you can rely on the ongoing family support that you have and your previous good character. He has referred to a number of cases, R v Huihui 6, R v Pakau7, R v Allen 8, all cases which he says involve more serious offending. He invites me to impose a starting point below the two-year point. He emphasizes that while you have been in prison your house has been burnt to the ground. It was partly owned by you and other family members and that has resulted in a significant financial loss. He also notes ongoing family support and that they were unaware of the situation that you had got yourself into.

[13] The purposes of sentencing include holding you accountable for your offending, denunciation and deterrence are always relevant factors when it comes to drug-dealing. As for the principles of sentencing I need to take into account the overall gravity of the offending, I need to be consistent with similar cases for similar types of offending and I must impose the least restrictive outcome that is appropriate in the circumstances.

[14] With respect to Mr Maddox’s submissions my view is that they have failed to encapsulate the seriousness of your offending. They have been directed more towards allowing premises to be used. It is for that reason that I went through in some detail the first summary of facts relating to the February offending and what I see are very clear admissions that you made.

[15] The lead charge for sentencing today is the charge of selling cannabis, it is a representative charge so it is reflecting offending over a period of some 16 days between 1 and 16 February 2016. That is aggravated by the fact that at the time the

_{search was undertaken on 16 February some 258 tinnies or just on}

6 R v Huihui HC Whangarei CRI-2010-088-001180, 7 October 2010

7 R v Pakau CRI-2008-043-3109.

8 R v Allen HC Whangarei CRI-2010-029-000764, 7 October 2010

200 grams of cannabis pre-packaged as 258 tinnies was located together with the significant amount of cash, $7742.

[16] The admission you made was that you had been selling 150 tinnies a day to pay your mortgage at $20 per tinnie. If I look back just over the previous two weeks which covers the period of the representative charge 150 tinnies at $20 a tinnie is

$3000 a day over two weeks $42,200. That to me is a clear indication of the scale of the offending. So while Mr Maddox has submitted that there is no evidence upon which volume can be assessed your own admissions give a very clear view of the scale of this operation, it was commercial in nature, it was designed to obtain money for you, you saw it as easy money and you were prepared to be fully engaged, those were the admissions that you made.

[17] The Court of Appeal in R v Terewi set out three categories of offending:

Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between 2 and 4 years but where sales are infrequent and of very limited extent a lower starting point may be justified.

[18] Effectively Mr Maddox was inviting me to go below the starting point dictated by the Court of Appeal. My view is that this offending which fits in the mid-range of category 2 of R v Terewi, that is affirmed by the fact that you carried on with the offending. There was the second occasion from January 2017, when you were involved again in the sale of cannabis. On this occasion it seems that your role is more that of a party than as a principal offender, although it is still clearly an important role that you were playing and the offending would not have been able to be undertaken by the others involved if you had not been prepared to be involved to the extent that you were.

[19] When I consider all of those factors the starting point I adopt is one of three

years’ imprisonment.

[20] I can take into account any personal aggravating features. You do not have any convictions that would warrant an uplift. The fact that this offending took place while you were on bail for the first set of charges does need to be reflected by an

uplift, the uplift will be one of four months and that gets me to three years and four months or 40 months’ imprisonment.

[21] In terms of the mitigating factors the Courts have indicated that personal circumstances count for little when a person is commercially dealing in drug-related offending. I can however take into account that this is the first occasion that you have been involved in this type of offending, and it may be that I am being slightly generous when I do so, but I reduce the sentence by four months.

[22] I can then take into account your guilty plea. I give you a 20 percent reduction or one of eight months.

[23] In my view there is no genuine remorse which should be reflected by a further reduction. It is clear that the offending has had an impact not only on yourself but your wider family but they are not matters which, in my view, result in a further reduction to the sentence.

[24] The end sentence on the dealing charges and the possession for supply is one

of two years and four months’ imprisonment.

[25] In respect of the dealing charge possession for supply from 11 January 2017 I have recognised your lesser role and the sentence imposed on that is one of six months’ imprisonment

[26] There will be an order for destruction of the cannabis and all cannabis-related paraphernalia.

[27] There will also be an order for forfeiture of all of the cash that was seized.

[28] On the charge of possession of cannabis and possession of the bong the term will be one month and that is concurrent, so the all up sentence remains at two years and four months.

[29] There is a breach of bail charge to which you have pleaded guilty to, on that you are convicted and discharged.

J Bergseng

District Court Judge