R V LLOYD HC DUN CRI-2009-012-001521 [2009] NZHC 1330 (23 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY
                                                               CRI-2009-012-001521



                                        REGINA



                                            v



                          
RICHARD NEVILLE LLOYD



Appearances: L Denton for Crown
             W H Henderson for Prisoner

Judgment:       23 September 2009


                    SENTENCE OF HON. JUSTICE FRENCH



[1]    Richard Neville Lloyd, following pleas of guilty, you appear this
morning for
sentence on two charges under the Misuse of Drugs Act 1975; first, one count of
possession of cannabis plant for supply
and secondly, a count of selling cannabis.
The latter count relates to offending that occurred between 20 January and 12 March
this
year.    Both of these offences carry a maximum penalty of eight years'
imprisonment.


[2]    Your pleas of guilty were originally
entered in the District Court. However,
the District Court Judge declined jurisdiction and referred the matter to this Court for
sentencing.


[3]    The charges arose out of two separate incidents.




R V LLOYD HC DUN CRI-2009-012-001521 23 September 2009

[4]        The facts of the offending were as follows.


[5]    On 26 June 2008 police executed a search warrant at your address.
Police
located a total of 182 grams of cannabis plant material. The cannabis was divided
into 12 tinnies, a bag containing 22 grams,
a bag containing 33 grams and another
bag containing 119 grams. Also located was a set of scales, as well as cash totalling
$485
in $5, $10 and $20 notes.


[6]    You told police the cannabis was yours and claimed that the cash was from
your firewood business.
You were duly charged, and appeared in Court where you
were granted bail.


[7]    In January 2009 the police conducted a covert
operation which involved
monitoring text messages to detect drug dealing activities in Dunedin. During the
course of two months.
police identified you as the author of numerous text messages
indicating, they say, dealing on a large scale. All this despite the
fact that you were
on bail.


[8]    You completed approximately 16 transactions which were organised via text.
It is alleged that
you made sales of some 16 ounces of cannabis to one associate
during the relevant period, each ounce being sold for approximately
$350-$380.


[9]    On 12 March , police executed a search warrant again at your address. There
they located the sum of $8436.30
in cash, in $5, $10, $20, $50 and $100
denominations. You accepted you had been dealing cannabis, but told police the
money at the
address was from the sale of your motorbike and truck.


[10]   The pre-sentence report tells me you are 40 years of age, currently
unemployed. You have used cannabis for most of your life. Unfortunately you also
have an extensive criminal record with some 46 convictions,
predominantly for
dishonesty and violence.        You also have four cannabis-related convictions as
follows:

               i)
    Possession of cannabis in February 1998 ­ sentenced to three
                      months' corrective training.


          
    ii)    Possession of cannabis for supply ­ sentenced to six months'
                      imprisonment on 12 August 1988.



              iii)   Permitting premises to be used for cannabis offending ­
                      sentenced to three months' imprisonment
on 19 June 1990.


               iv)    Possession of cannabis 1994 ­ fined $350.


[11]   The pre-sentence report identifies factors
contributing to your offending as
being your own drug use and the influence of associates. The report assesses you as
being at medium
risk of reoffending.


[12]   On a more positive note, the report also says you have abstained from drug
taking since your arrest
in March, and have expressed a willingness to engage in
counselling.   Further, it records that there have been no reported breaches
of
community-based sentences, and says you are regarded as a reliable worker.


[13]   The report writer accepts imprisonment would be an appropriate sentence,
but suggests, given
your motivation to remain drug-free and your previous
compliance with community-based sentences, that the Court might consider home
detention. That is a course of action supported by your lawyer, Mr Henderson. It is
also supported by a letter I have read this morning
from a community work
supervisor. He speaks well of you.


[14]   I turn now to explain the sentencing decisions I must make today.


[15]   First and foremost I must apply the principles and purposes of sentencing
contained in the Sentencing Act. Of particular
relevance is the need to hold you
accountable for your offending, the need to promote in you a sense of responsibility,
and the need
to denounce your conduct, as well as importantly to deter others from
committing the same or similar offences. I am also mindful
that I must have regard

to issues of rehabilitation and my obligation to impose the least restrictive outcome
that is appropriate
in the circumstances.


[16]   I need also to explain to you that in coming to a decision I am required to
follow what can loosely
be called a two-stage approach. In the first stage, I have to
fix what is known as the starting point ­ that is a phrase you will
have heard the
lawyers talk about today.          What that means is the sentence which reflects the
culpability or blameworthiness
associated with your offending. That is the first
stage: fixing the starting point.


[17]   The second stage is that, having fixed
the starting point, I am then required to
consider whether your personal circumstances warrant any adjustment upwards or
downwards
to the starting point.


[18]   Turning to the first stage: fixing the starting point.


[19]     On this I must be guided by the
Court of Appeal decision of R v Terewi
 [1999] 3 NZLR 62 which sets out bands of offending for this type of offence. Yours
was offending on a small scale, but with a commercial element,
and that places you
in band 2, justifying a starting point of between two and four years' imprisonment.


[20]     I identify the
key aggravating features in your case as being the volume of
dealing and the fact that you continued offending despite being on bail.


[21]   Having regard to those aggravating factors and other similar cases, I consider
a starting point of three years' imprisonment
is appropriate.


[22]    That is the first stage.


[23]   Turning then to factors relating to you personally.


[24]     On the
negative side is your previous criminal history. However, those
offences are either different in kind or somewhat dated. I have therefore
decided that
they should not be grounds for any further uplift from the three years.

[25]   On the credit side, you are entitled
to a discount on account of your guilty
plea. This was not made at the earliest possible opportunity. However I consider that
some
leniency is appropriate, and I am prepared to allow you the full third discount,
which brings the end sentence down to two years'
imprisonment.


[26]   That renders you eligible to be considered for home detention, a course of
action, as I have said, urged upon
me by your lawyer. In support of that submission,
Mr Henderson has referred me to a Court of Appeal decision in R v Hill  [2008] 2
NZLR 381, where home detention was granted in respect of drug-related offending.


[27]     In Hill the Court of Appeal noted that where an
offender is motivated to
change and there is the realistic prospect he or she would be able to change, then
there are obvious benefits
in a sentence of home detention, both from the offender's
perspective and also from society's perspective. However, the Court of
Appeal also
stated it was well established that home detention is unlikely to be granted where a
person has been convicted of dealing
in drugs from home.


[28]   I have carefully considered all of Mr Henderson's submissions. He has said
everything that could possibly
be said in support of home detention, and has said it
well. However, in my view home detention would be an inappropriate response
to
the seriousness of this offending involving, as it did, drug dealing from home and
drug dealing while on bail.


[29]   Deterrence
is the primary consideration in sentencing for drug dealing, and in
my view the interests of specific and general deterrence would
not be sufficiently
met in a sentence of home detention. I have therefore come regrettably to the
decision that the sentence must
be one of two years' imprisonment.


[30]   Richard Neville Lloyd, on the charge of possession of cannabis for supply
you are convicted
and sentenced to a term of imprisonment of two years. On the
charge of sale of cannabis you are convicted and sentenced to a term
of two years'
imprisonment, that term to be served concurrently.

[31]    I order that there be a special release condition that
you are to undertake drug
and alcohol counselling and treatment as directed by the probation service. That
special condition and
the standard release conditions are to apply until the sentence
expiry date.


[32]    I order the destruction of the exhibits and
other paraphernalia associated with
the drug offending, and finally I also order forfeiture of the cash that was found in
June 2008
of $485, and also the further cash found in March 2009 of $8436.30.



Solicitors:
Crown Solicitor, Dunedin
W H Henderson, Dunedin