R v W HC Nelson CRI 2008-042-3202 [2009] NZHC 1503 (20 February 2009)

Last Updated: 27 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

_{CRI 2008-042-003202}

THE QUEEN

v

W

Counsel: H J Boyd-Wilson for the Crown

J C S Sandston for the Prisoner

Date: 20 February 2009

_{SENTENCE OF WILD J}

[1] Mr W , you appear for sentence this morning having pleaded guilty to a charge of allowing your home at Washington Road here in Nelson to be used to for the supply of cannabis.

[2] That offence, which is under s 12 Misuse of Drugs Act 1975, carries a maximum sentence of 3 years imprisonment.

[3] The charge was laid indictably on 1 September 2008. You pleaded guilty on

9 December, following three appearances in the District Court. The following day the District Court Judge here in Nelson declined sentencing jurisdiction and that is

_{why I am sentencing you this morning.}

R V W HC NEL CRI 2008-042-003202 20 February 2009

[4] Over the past five years the Police have received numerous complaints that a

‘tinnie house’ was operating from your home. Many of those complaints came from your neighbours and they were directed to you and Mr Heemskerk who lived with you in the house, and who I sentenced to imprisonment on Wednesday this week.

[5] On 9 August 2008 a man was assaulted and his car stolen by a Black Power gang member. That was apparently debt collecting: that man had not paid for some tinnies he had bought the previous week from the tinnie house operated at your home. I mention that because it introduces a sinister element to what was going on.

[6] On 12 August the Police executed a search warrant. They found Mr Heemskerk sitting at a desk near the doorway. I am not going to repeat what the Police found when they executed that search warrant, because I said it when I sentenced Mr Heemskerk. Suffice it to say you were in bed or in your bedroom at the time.

[7] There followed the further observations by the Police, in particular on 21, 22 and 23 August, when the Police saw significant numbers of people coming and going from the address, and again I outlined that when I sentenced Mr Heemskerk. I also outlined what the Police found when they executed a second search warrant on

29 August. On that occasion you, Mr W , were at home, as were two other men, one of them an associate of the Black Power. Mr Heemskerk came back shortly afterwards. I am not going to go through again, as I did on Wednesday, the details of the scope of this tinnie house operation that was operating from your home, and obviously had been for several years.

[8] You came to Court this morning with your walking sticks, but you are normally confined to a wheelchair. That is because a motor cycle accident in 1991 left you with severe disabilities. They are mainly physical: you are paralysed down the left side of your body. But the accident has also affected your short term memory and, as is obvious in Court this morning, also your ability to speak and to communicate. I am told that you are able to walk around your home using your walking sticks - you can get out as far as the letterbox in that way - but if you

venture further afield it is normally by wheelchair or, as Mr Sandston has told me this morning, by taxi.

[9] Mr W , were it not for those physical disabilities, I would send you to prison, just as I sent Mr Heemskerk to prison. And a sentence of imprisonment was what the Crown was initially seeking. The Crown’s submission that (made in its written submissions) that I take a starting point of 6 months imprisonment demonstrates a lenient view of your part in this tinnie house operation that I don’t share.

[10] You should know why I don’t share it Mr W . This is the account the reporting probation officer obtained from you about your offending:

In relation to the Allows Premises to Be Used conviction Mr W stated that he had nothing to do with the sale of the cannabis and that it was all the co offender. He further stated that because of his injuries he is unable to roll cigarettes or cannabis and certainly would not be able to cut foil into squares or roll it. He reported that he is grateful to the police for “cleaning up” his house and getting rid of the co offender. The writer asked Mr W why he had not asked the co offender to leave before this time and he replied “I did but no one listens to a cripple, what was I going to do?” He questioned Mr W further as to how he can prevent this from happening again in the future and stated that he now has a new flatmate who is very good, and from now on he will get help when making decisions around who will live in his house.

Mr W presented to be remorseful for his offending and as stated above was grateful to the police for their intervention.

[11] Mr W , I do not believe that. Although I have some concerns as to the extent of the Black Power gang involvement in this tinnie house, I think you were a willing, rather than a reluctant, participant in the tinnie house. The reason I say that is that the report I have from the Addiction Service of the Nelson Marlborough District Health Board reports that you have an addiction to both cannabis and nicotine i.e. cigarettes. It states that you are – or at least were at the time of the report earlier this month – smoking an ounce of cannabis every three days. At the same time, you were smoking 100 grams of tobacco a week. Those figures indicate that you are a very heavy regular smoker of both cannabis and cigarettes. You accept that the tinnie house was supporting those expensive habits. That is why I think you were a willing participant in this tinnie house over the last several years.

[12] I accept that you pleaded guilty at a relatively early stage, and I accept that you have, finally, been cooperative and candid with the Police about what was going on.

[13] So, what sentence or sentences are appropriate for your willing participation in allowing this tinnie house to be operated from your home? You are charged with allowing it to be operated during August 2008, but you accept that it had been going on for several years.

[14] The probation report I have considers but, for the reasons it gives, discounts, a number of possible sentences. The recommendation is a sentence of supervision with special conditions aimed at dealing with your cannabis and nicotine (or cigarette) addictions, and another addiction you have, which is gambling.

[15] I adjourned sentencing you from Wednesday this week to this morning because there was a suggestion in the material I had, that you had $92,000 in Bonus Bonds. As I said at the time, I was considering a substantial fine or reparation. And as I said to Mr Boyd-Wilson this morning, I was considering - and wanting - to order reparation in favour of one or more of the drug addiction services in Nelson, because it is those services that have to deal with the victims of this offending. It is said, but wrongly said, that crimes like this are victimless crimes. They are absolutely not.

[16] The Crown expressed the view that the Sentencing Act does not permit me to order reparation of that sort. And I do have some doubts. I do not want to impose a sentence which you might be able to appeal because it is beyond this Court’s jurisdiction.

[17] Accordingly, I intend to order you to pay a fine and I intend to impose a sentence of supervision in the hope, Mr W , that some oversight will be brought into the way that you have been living for the past few years: smoking dope, smoking cigarettes, gambling and the like.

[18] I required you to make a financial declaration pursuant to s 42 of the

Sentencing Act. That discloses that you have a little over $6,000 left in savings,

most of it in a deposit at the bank. Most of the $92,000 you had in Bonus Bonds you spent in September last year, in purchasing for $85,000 what is described as a “vessel”, I imagine it is a launch, in Picton.

[19] Mr Sandston, this morning, has told me that although your income from ACC and from your boarder largely covers your living expenses, your family consider that you do need some financial buffer or contingency against the unexpected, and I reluctantly accept that.

[20] Accordingly, Mr W , I fine you $4,000. In addition, I sentence you to supervision for 12 months. In addition to the standard conditions, pursuant to s 50 of the Sentencing Act, I impose these two special conditions:

i) First, you are to attend gambling counselling, treatment that is recommended by the service provider to the satisfaction of the counsellor and probation officer.

ii) Secondly, you are to undertake alcohol and drug assessment counselling, treatment that is recommended by the service provider to the satisfaction of the counsellor and your probation officer.

[21] Mr W , a final comment from me. Neither of those special conditions will be of any use whatsoever unless you – you personally – resolve to do something about these addictions you have. So it is really up to you.

Solicitors:

Crown Solicitor, Tasman for the Crown

McFadden McMeeken Phillips, Nelson for the Prisoner