R v D HC Dunedin CRI 2009-012-1520 [2009] NZHC 2132 (19 November 2009)

Last Updated: 2 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

_{CRI 2009-012-001520}

REGINA

v

D

Hearing: 19 November 2009

Counsel: R D Smith for Crown

Q Stratford for Prisoner

Judgment: 19 November 2009

_{SENTENCING REMARKS OF FOGARTY J}

[1] D you appear for sentence on two charges, one of cultivation of cannabis on 19 January this year, and the other selling cannabis on

11 January to 12 March of this year.

[2] On 19 January the police attended your flat on an unrelated matter and found there 18 grams of cannabis plant, scales, tin foil and three cannabis plants growing under light, and four more cannabis plants growing outside. You admitted growing the cannabis in order to save yourself money from buying it and selling some tinnies for friends. You were charged and remanded on bail. You moved your place of

_{residence from the flat to your parents because that is where you were bailed to.}

R V D HC DUN CRI 2009-012-001520 19 November 2009

[3] In the meantime you carried on acquiring quantities of cannabis from Mr Richard Lloyd and then on-distributing them. You were doing this on a large scale. You purchased 31 ounces of cannabis between 5 February and 1 March of this year.

[4] Mr D under the principles that we apply in sentencing from the Court of Appeal decision of R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62, the starting point for calculation of your sentence would be in the order of two and a half years. On top of that the Crown, quite rightly, point out there should be an uplift of about six months for the aggravating feature that you carried on this criminal behaviour when you had already been charged in respect of the cannabis found at your flat. That is of some concern to me. It shows, at that stage, that you were quite deliberately flouting the law and undeterred by the charges you were facing.

[5] It is to your advantage that it is common ground between counsel that Mr Lloyd was the more serious offender. He received a sentence of two years which started from a starting point of three years and then he received a full one-third discount. Since then the law on discounting has changed: R v Hessell [2009] NZCA

450, and you are entitled to a discount in the order of 25%. If we took a starting point of two and a half years, adding six months for the aggravation, and then a 25% discount, you will still end up with a sentence of imprisonment for you of two and a half years.

[6] Now there are two reasons why I consider it justified to bring that down to two years indicative term of imprisonment. One is the sentence given to Mr Lloyd in this Court on 23 September, which I have just referred to. The second is your age. You are 20 years old. You have not been to prison and related to that I am satisfied that there are very good prospects of rehabilitation for you and it is to your credit that you have undertaken courses and changed your lifestyle, all designed to both remove the addiction to cannabis and to change your social associates and environment so that you do not reoffend. You are also holding down a good position with the local Port and you are foreman of the men under you. Rehabilitation is a very important consideration when dealing with youth offenders.

[7] It strikes me from what you have achieved in attaining the status of foreman, Mr D , that you are an intelligent young man. I do hope that you realise that it is only because of the recent policies of Parliament relating to home detention and the quite sensible policy of Parliament to try to stop young people developing into criminals that you are not going to prison. Your offending, if you were an older man with a significant criminal history, would mean you would go to jail and you would have been sentenced to go to jail for a period of about two and a half years.

[8] I am satisfied that this is a case for home detention. I do take into account the various dicta from the Court of Appeal from time to time which says that drug offenders will not normally get home detention. In this case it is at the home of your parents which is another important aspect of your rehabilitation.

[9] I need also to take into account that you have spent two and a half months in custody, which is, to a degree, your own fault because of offending on bail, and then six months on electronic bail, the conditions of which are very similar to home detention.

[10] I have been persuaded, however, that you must have a sterner sentence than Mr Farquhar, who had a lesser degree of culpability than you. He, aged 17 years, and after two a half months in custody was given six months home detention and 300 hours of community work.

[11] You have had two and a half months in custody but before sentence, as I indicated, you had also had six months on electronic bail. I am satisfied the appropriate sentence for you, therefore, is home detention of six months, plus 300 hours community work. You have already, off your own initiative, made arrangements with the SPCA to work for them and they have offered you as many hours as would be available in a community sentence order. You have recognised yourself that this would be a much better environment for you to work in as it would avoid associations with other offenders. I agree.

[12] For these reasons I am sentencing you to home detention and I will now discuss with counsel and Ms Beal, the probation officer, the specific conditions. I will go through them from page 2 of 3 of Appendix 1:

• You are to travel directly to 8 Mary Street, Concord, Dunedin, and to remain there until the arrival of your supervising probation officer.

• You are to reside at that address for the duration of your home detention sentence of six months.

• You are to abstain from the consumption of alcohol and/or illicit drugs for the duration of that time.

• You are to attend any treatment/programme/education as may be deemed appropriate by the probation officer.

[13] You will be entitled to take up employment including continuing employment with the Port provided that the probation officer is satisfied that appropriate arrangements can be made to secure your attendance at those work premises.

[14] In addition to this you are sentenced to 300 hours community work. [15] There will be an order for forfeiture of all paraphernalia.

[16] Mr D that is your sentence. I hope for your sake this is the last time you will ever appear in this Court.

Solicitors:

Aspinall Joel, Dunedin, for Appellant

Crown Solicitor, Dunedin, for Respondent