R V JEREMY WAYNE HARRISON HC WANG CRI 2008-083-1736 [2009] NZHC 338 (18 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
WANGANUI REGISTRY
                                                                 CRI 2008-083-1736



                                   THE QUEEN



                                          v



                         JEREMY
WAYNE HARRISON



Hearing:      18 February 2009 at Wanganui
              17 March 2009 at Wellington

Counsel:      H C Mallalieu
(Wanganui) and M C Snape (Wellington) for Crown
              M J Bullock for Accused

Sentence:     18 March 2009


           
           SENTENCE OF SIMON FRANCE J



[1]    Mr Harrison appears for sentencing on:


       a)     three charges of selling cannabis;


       b)     four charges of possessing cannabis for sale.


[2]    The facts are that Mr Harrison sold the cannabis to an undercover
duty officer
from his house. On each occasion two tinnies were sold for $20 each, and at the
time there were plainly other tinnies
available for purchase. This latter fact has led
to the possession for supply charge. Also found at the time of the final search
of
Mr Harrison's house was a further 24 tinnies in the front passenger foot well of his


R V JEREMY WAYNE HARRISON HC WANG CRI 2008-083-1736
18 March 2009

car. Mr Harrison admitted that he had been selling cannabis for the past seven to
eight months, and that he did so
in order to make money. He would buy an ounce
bag of cannabis and break it down into tinnies.


[3]    Mr Harrison is thirty years
old. He has a limited previous criminal record.
Of note are two convictions in 1998 for cultivation of cannabis and manufacturing
of
cannabis oil for which he received a sentence of periodic detention. In this decade
there have been convictions entered for burglary
for which he was sentenced to nine
months' imprisonment, driving while disqualified and disorderly behaviour. This
disorderly behaviour
offence was the last in time, and occurred in October 2005, and
prior to that the driving offence was back in May 2002.


[4]   
The facts of this matter are similar to another matter being sentenced today.
Both offenders are represented by Mr Bullock who, in
each case, was seeking a
sentence of home detention. On both occasions the reportwriter had considered
home detention an inappropriate
sentence and so had not arranged for such a report
to be prepared. I indicated that I would hear argument on the issue, and would
adjourn sentencing to obtain such a report only if I was committed to imposing that
sentence other factors allowing.


Home detention?


[5]    Mr Harrison has two children aged eight and nine. As at the time that the
pre-sentence report was prepared, he was living
with them and also a sixteen year
old nephew. He had been in a "on and off" relationship with his partner of twelve
years. Mr Harrison's
use of cannabis, and his recent offending, seems to have been a
source of friction and has led to a parting of the ways. I am today
told that the split
is permanent.


[6]    Mr Harrison's offending was towards the bottom end of such offending.
However, it was
drug dealing, and had been continuing for seven to eight months. In
my view his was not a particularly compelling case for a sentence
of home detention,
although my sense was that he now had a genuine realisation of what the
consequences of his conduct could well
be. He advised the reportwriter that he had

significantly reduced his drug use and was committed to change.            His risk
of
re-offending on the department models was assessed as low, but the report-writer
was less convinced.     It was noted that all
the information was self reported,
something I would have thought was normally the case, and the writer was sceptical
as to his claim
to now having fully given up. It is noted that previous responses to
community based sentences have been positive.


[7]    The positive
features in relation to Mr Harrison were his apparent
commitment to change, the fact that he was the full time caregiver for the
children,
the fact that he had been initially remanded in custody and so had been exposed to
the consequences of such conduct (although I note that
in 2001 he had been
sentenced to that short term of imprisonment), and, frankly, the fact that he came
before me for sentencing on
the same day as the other unrelated cannabis offender.


[8]    In that other case I was of a firm view that a sentence of home detention
was
the correct outcome. With Mr Harrison I was not quite so sure, although it still
seemed to me to be a viable option. Although
one could identify circumstances of
difference, in my mind I could not see that a different outcome for these two cases
would be
justifiable. Since consistency is the most important characteristic of a just
sentencing system, I formed the view that Mr Harrison
should also be sentenced to
home detention.


[9]    A report has been prepared. The Crown raises one valid concern. With the
end
of his relationship, Mr Harrison will be alone at the house with three children.
There is no other adult to provide supervision and
encouragement. It is a proper
point to raise and one I have reflected on.       However, Mr Harrison has family
members who will
provide support. The commitment to the children is I believe the
source of his more mature focus. I stressed to him that it is they
who will suffer if he
does not get his act together and keep it together. He acknowledged he understood
this. Accordingly, I have
decided to stay on the path I committed to. The situation
is suitable. I consider that a longer term of home detention that is being
imposed in
the other case is required given the length of time over which Mr Harrison was
offending, and so impose a term of nine
months concurrently on all charges. That

will mean that it ends just before Christmas of this year. I impose the following
special
conditions:


       a)      to travel directly to 121A Cornfoot Street, Wanganui and await the
               arrival of the probation
service;


       b)      to reside at that address for the duration of the home detention;


       c)      to attend an alcohol
and drug assessment, and thereafter participate
               and complete any courses that are required;


       d)      not to
consume illicit drugs;


       e)      to attend for any assessment for a departmental rehabilitation
               programme and,
consequent upon that, to attend, participate and
               complete such programmes as he is directed.              Included
in that
               requirement is any following maintenance programme that is required.




                                
                        _________________________
                                                                      Simon France
J

Solicitors:
H C Mallalieu, Armstrong Barton Lawyers, PO Box 441, Wanganui
email: [e-mail]
M C Snape,
Luke Cunningham & Clere, PO Box 10357, Wellington, email: [e-mail]
M J Bullock, Solicitor, PO Box 11, Wanganui, email: [e-mail]