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High Court of New Zealand Decisions |
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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URL: http://www.nzlii.org/nz/cases/NZHC/2009/329.html