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R v B HC Auckland CRI 2008-092-15900 [2009] NZHC 329 (17 March 2009)

Last Updated: 30 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY




CRI 2008-092-015900



THE QUEEN




v




B




Hearing: 17 March 2009

Appearances: L Hamilton for Crown

P J B Winter for Accused

Judgment: 17 March 2009


SENTENCE OF COOPER J






















Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

P J B Winter, PO Box 105495, Auckland 1143

R V B HC AK CRI 2008-092-015900 17 March 2009

[1] B , you appear today for sentence on a charge of possession of the Class C controlled drug cannabis for a purpose or purposes contained in ss 6(1)(d) or 6(1)(e) of the Misuse of Drugs Act. The offence carries with it a potential maximum term of eight years’ imprisonment, which is an indication of the seriousness with which drug dealing is viewed by the legislature.

[2] The facts were that at approximately 4.00 p.m. on 4 June 2006 you checked in at the Auckland International Airport for a flight to Dubai, which was to leave at

5.45 p.m. that evening. You checked in two bags, one of which was a brown Louis Vuitton suitcase. That contained a silver vest and Customs found in its lining two vacuum packed packages of cannabis leaf wrapped in tin foil. The total weight of the cannabis was 167.4 grams which equates to a street value of between $3,300 and

$4,100. When spoken to by the Customs Officers you admitted the drugs were yours and offered no explanation.

[3] I have read the pre-sentence reports that have been prepared for today and I understand that you are 32 years of age, currently living with your mother after breaking up with your partner. You are on the sickness benefit as the result of drug addiction in the past. You had a good upbringing, although your parents separated and for a time you lived with your grandparents in Mt Maunganui. You gave birth to a daughter when you were 17. At the age of 23 you became involved with an older man who had criminal connections. You have since had two abortions and one miscarriage. Your life became unbalanced and you had dealings with the police.

[4] You left school at the age of 15. You did various courses in tourism and hospitality and you also worked in massage parlours. You have travelled to the Middle East to work as a “hostess”, whatever that involves, on a number of occasions, and you were on your way there again when you were arrested.

[5] Since the offending you have lived with your mother and you have made a conscious effort to break connections with criminal associates. According to the report you advised the author that you started smoking cannabis when you were 15 and became a regular user from the age of 21. The author identifies a harmful

pattern of drug use over the 12 months leading up to January 2009. That included more recently involvement with methamphetamine. However, you do not appear to have abused alcohol. You have attended sessions at the Community Alcohol and Drugs Service and you have been trying to address your addictions with the assistance of Mr McCormick of the Bexley Clinic.

[6] You have got various health problems, suffering from eczema and asthma, and you also have medication for anxiety.

[7] You told the author of the report that you had made your arrangements to travel in a hurry and you took cannabis with you because you did not know what to do with it. There is apparently a degree of denial that possession was for supply, but I have to sentence you on that basis because that is the offence to which you have pleaded guilty.

[8] Because of the steps that you have taken to address your problems the author of the report assesses you as a low risk of re-offending and you have impressed the author as being highly motivated to address your drug use and life-style. It is very important that you continue along that path.

[9] The pre-sentence report recommends home detention with counselling required as a special condition. I note that your mother has evidently moved to a house which she has rented specifically for you and her to share, during any period of home detention. The address is assessed as a suitable one. Can I observe that you are very lucky to have a mother who is so devoted to your future.

[10] Mr Winter has provided the Court with a report from Mr McCormick, the psychiatrist, dated 20 November 2008. He too refers to your history of drug abuse, but he considers that you have taken significant steps along the path to becoming free of your addiction.

[11] You have no prior convictions which need to be taken into account for the purposes of today’s sentencing.

[12] Ms Hamilton for the Crown has, in written submissions, highlighted the importance in any case involving offending against the Misuse of Drugs Act, including yours, of accountability, denunciation, and deterrence, all of which are mentioned in the Sentencing Act which governs how I treat you today. In her written submissions, Ms Hamilton emphasised that there was in her view premeditation and commerciality involved in this offending. I was invited to treat the case as falling within Category 2 of a case called R v Terewi [1990] 3 NZLR 62, in which the Court of Appeal set out relevant sentencing principles for cases of this kind. On the basis of that decision Ms Hamilton submits that I should adopt a starting point of three years’ imprisonment before giving you credit for your early guilty plea. She opposes a sentence of home detention because of the importance of deterrence in cases of this kind.

[13] Mr Winter filed written submissions and has also addressed me orally today on your behalf. He has stressed the importance of rehabilitation, the principle of imposing the least restrictive outcome and considering your particular circumstances which might make a sentence of imprisonment disproportionately severe. All those things that he mentioned are also principles set out in the Sentencing Act.

[14] You were apprehended with over 166 grams of cannabis and that is above the presumptive level set out in the Misuse of Drugs Act, so that if you have that amount of cannabis you are deemed to have it for supply. But he argued that there was no premeditation. It was not packed in a measured form as is sometimes the case. You were dependent on the drug and there were no other indications that you intended to sell it found on you.

[15] Mr Winter referred me to the same decision of the Court of Appeal and suggested that you should be in a twilight zone as he put it, between Categories 1 and 2 and he urged me to impose a sentence of home detention on the basis of the progress that you have made so far, the fact that for various reasons you would find prison difficult and because of the supportive environment in which you could serve such a sentence.

[16] I have been talking about this decision of the Court of Appeal in R v Terewi and the choice which it offers between Category 1 and Category 2. Category 1 consists of small-scale operations for personal use. Category 2 involves again small- scale activities but where there is a commercial purpose with the object of deriving profit. In the latter category of case sentencing should be between two and four years, although the Court conceded that where sales were infrequent and of very limited extent, a lower starting point might be justified. This is a case where you are charged with possession and there is no evidence of any sale.

[17] I would place the appropriate starting point for sentencing in this case at the bottom of Category 2. Although the quantity involved significantly exceeds the presumptive amount for supply under the Fifth Schedule of the Misuse of Drugs Act, and consequently, it is hard to accept that there was not some element of commerciality, nevertheless, the circumstances were that you were about to travel overseas and concealment would no doubt have been necessary even if the cannabis was simply for your own personal use.

[18] The approximate amount and value of the cannabis found in your possession was about the same as that possessed by one of the offenders in another decision of the Court of Appeal, called R v Hansen (CA128/05, 29 August 2005), and in that case a starting point of about two years was adopted by the Court.

[19] I propose to adopt that starting point in your case. I do not regard your case as comparable to the cases relied on by the Crown in urging a higher starting point. They were all cases where there was ongoing activity and more sophistication. They were cases where there were paraphernalia associated with commercial supply which is not your case. So I consider a starting point of three years is not warranted.

[20] Having then adopted the starting point of two years, I need to take into account your guilty plea, which was plainly made at the earliest possible stage and prior to depositions. A standard reduction for a guilty plea as early as that is one- third of the sentence that would otherwise be imposed, and so that takes me down to a sentence of one year and four months. Now, once that position is reached, I am obliged then to consider whether I should impose a sentence of home detention.

[21] That is the recommendation in the pre-sentence report. Having regard to other decisions which are relevant, including the decision of the Court of Appeal in R v Hill [2008] NZCA 41; [2008] 2 NZLR 381. Although you do not technically fall within the category of case which that decision was dealing with, nevertheless the emphasis in that case on the importance of rehabilitation, I think, is appropriate here.

[22] The indications are that you have started down a path which could result in your getting your life in order and contributing in a useful way to society and your family, and you might end up in a position where you can return to them the support that you are receiving from your mother.

[23] I consider that home detention is the appropriate outcome in this case. The address is suitable, the other statutory pre-conditions have been satisfied. I propose to sentence you accordingly.

[24] Would you now stand please.

[25] I now sentence you to home detention for a period of eight months. The conditions of that sentence will be that:

a) You are to travel directly to 23 Patumahoe Road, once this hearing is over, at Pukekohe and there await the arrival of the probation officer and the monitoring service.

b) You are to reside at 23 Patumahoe Road, Pukekohe for the duration of the sentence of home detention.

c) You are to comply with the requirements of electronic monitoring as directed by the probation officer.

d) You are to participate in an assessment and complete for the satisfaction of the probation officer an alcohol and drug assessment and any treatment or programme that may be directed by the probation officer.

e) You are to participate in an assessment and complete to the satisfaction of the probation officer any other counselling or programme deemed necessary.

f) You are not to associate with any person or persons nominated in writing by the probation officer.

[26] You may stand down.


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