R V MARCEL JEREMIAH BELL HC WN CRI 2007-091-4305 [2009] NZHC 129 (13 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                    CRI 2007-091-4305



                                    THE QUEEN



                                              v



                         
 MARCEL JEREMIAH BELL



Hearing:       13 February 2009

Counsel:       M A O'Conoghue for Crown
               V C Nisbet for Accused

Sentence:      13 February 2009


                      SENTENCING OF SIMON FRANCE J



[1]    Mr Bell appears for sentence on charges
of:


       a)      supplying methamphetamine;


       b)      selling cannabis;


       c)      conspiring to sell cannabis;


       d)      injuring with intent to injure.




R V MARCEL JEREMIAH BELL HC WN CRI 2007-091-4305 13 February 2009

Facts



(a)       Drug offending


[2]       As part of a police operation an undercover officer knocked on Mr Bell's
door seeking to buy
cannabis. He was sold a tinny for $20. An inquiry as to
methamphetamine was met with an instruction to return an hour later. Compliance
with that direction led to the officer buying a point for $100, and an invitation to
return.


[3]       The conspiracy charge relates
to his agreeing with other occupants of the
house to operate it as a tinny house.


(b)       Injury with intent


[4]       Money
was stolen from Mr Bell's brother.         Some time after, Mr Bell
remonstrated with the alleged thief. That person threw a punch.
Mr Bell responded
by hitting him in the head with a hammer. The number of blows is disputed but head
wounds requiring stitches was
the outcome, as well as abrasions to the right arm and
hand. It is accepted by the Crown it could be seen as excessive self-defence,
or
provocation.


Starting Point


[5]       There are two different types of offending for which separate terms must be
imposed.
     Concerning the drug offending, the individual sales are very minor.
However, the context of those sales, and the conspiracy
charge, show involvement in
a tinnie house operation. The aggravating aspects are the sale of two different drugs,
and the willingness
to supply the market. That makes a jail term appropriate, and I
take a starting point of two years.


[6]       Concerning the injuring
charge, the starting point for an assault to the head
with a hammer must be in the order 2 to 2½ years.                However, given
the

comparatively modest injuries, and the degree of provocation I reduce that to
eighteen months.


[7]    Because they are cumulative
some assessment should be made of whether,
together, 3½ years is too high for the starting point for this total offending. It is
a
marginal call. I might have been tempted to make a modest adjustment but note that
you have previous convictions for possessing
an offensive weapon, assaulting police,
several offensive behaviour charges, resisting police, wilful damage and numerous
driving
offences.    The victim in this case suffered short-term effects such as
dizziness, and he was unable to work. He says it induced
a change in his own
behaviour for the worst, but I view that with some caution without knowing more.
The victim is now, himself,
a sentenced inmate.


[8]    Weighing all these factors, but particularly your previous record, I am of the
view no adjustment is
needed for totality.


Mitigation


[9]    You are twenty-five years old, and the eldest in a large family. You come
from a background
of gang connections. Your description is that you were born into
the Mongrel Mob, where you are now a patched member. You have work
skills, and
not far from completing a building apprenticeship. Hopefully that opportunity will
come your way and you will take it.
The report writer notes you are willing to work,
and there is no doubt you can do well if circumstances allow, and you want.


[10]
  On your behalf Ms Nisbet emphasises, rightly, the positive aspects of the
reports, your early plea and the relatively minor nature
of the drug offending. He
submits a final sentence should be in the range of eighteen months to 2½ years, and
seeks a home detention outcome.


[11]   I have
received today three letters of support. One speaks of your good work
habits, the others of your personal situation. It is clear
that there are family matters,
including the expected birth of your child, which makes this a particularly difficult
time for your
loved ones. The letter also sheds further light on the background to the

assault. Finally, it shows that you have continuing family
support. I have to do what
is right, and your offending means jail is inevitable. But those letters have helped
me in deciding to
impose what many will see as a lenient sentence.


[12]    The main factor that affects the penalty is your early guilty plea. However,
I
note you have previously been to jail only once for a very short time. It seems to me
there are real prospects that life could
be different if you choose, and I am going to
give you a bit more off to encourage you to choose the right option. In the end I may
look stupid for trying, but that will not be the first time, so let's see.


[13]    All that means I reduce the starting point by
twenty-one months, to give you
a final sentence of twenty-one months. Anything other than an actual jail term is
inappropriate given
the range of offending. That means you will need to serve seven
months and then it will be over to the Parole Board. (This is incorrect
but was said
at the hearing.)


Final sentence


[14]    On charges of:


        a)      selling methamphetamine;


        b) 
    conspiracy to sell cannabis;


I sentence you to thirteen months' imprisonment.


[15]    On charge of injuring with intent I
add eight months, meaning a final total
sentence of twenty-one months (i.e. cumulative terms of thirteen months and eight
months).

[16]   On charge of selling cannabis I convict you but discharge you without further
penalty.




                            
                              _______________________
                                                                      Simon
France J

Solicitors:
M A O'Donoghue, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [e-mail]
V C Nisbet, PO Box
10 909, Wellington