R v Vigneau HC Wellington CRI 2011-085-4047 [2011] NZHC 1967 (7 December 2011)

Last Updated: 6 February 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI 2011-085-4047}

THE QUEEN

v

CHRISTOPHER ANDRE JEAN VIGNEAU

Hearing: 18 November 2011

Counsel: I R Murray and A Whittaker for the Crown

K Jefferies for the Prisoner

Judgment: 7 December 2011

_{SENTENCING REMARKS OF MALLON J}

The charges

[1] Mr Vigneau, you appear for sentence, having pleaded guilty to the following charges:

(a) Selling 4-MEC (s 6(1)(e) of the Misuse of Drugs Act 1975); (b) Selling cannabis (s 6(1)(e) of the Misuse of Drugs Act);

(c) Possession of 4-MEC for the purpose of sale (s 6(1)(f) of the Misuse of Drugs Act);

(d) Possession of cannabis for the purpose of sale (s 6(1)(f) of the Misuse of Drugs Act);

R v VIGNEAU HC WN CRI 2011-085-4047 7 December 2011

(e) Possession of LSD (s 7(1)(a) of the Misuse of Drugs Act).

[2] Cannabis and 4-MEC are class C drugs. LSD is a class A drug. The charges of selling and possession for the purposes of sale each have a maximum penalty of eight years’ imprisonment. Possession of LSD has a maximum penalty of 6 months’ imprisonment and/or a $1000 fine.

[3] You are here in the High Court for sentencing because the District Court declined jurisdiction.

Circumstances of offending

[4] The selling charges relate to the period of 26 August 2010 to 25 August 2011. The possession for sale and the possession charges relate to 25 August 2011. On that day you were arrested and searched, and the house at which you lived was also searched pursuant to a search warrant. The background to your arrest was that a parcel of pills was sent from Blenheim to Wellington to an address which did not exist. The parcel was unable to be delivered and was eventually opened by the courier company. The courier company alerted the police who then carried out further enquiries.

[5] The LSD tab which is the subject of the possession charge was found in your pocket. The other charges arose from items found in the search of your house. In various places in your house the police found a total of 128.4 grams of cannabis. This was packaged into four “one ounce” bags, a “$50” bag, three “$20” bags, and a further bag of 15.35 grams. Together the cannabis had a value of about $1,600 if all sold as $50 bags. The police also found 10 tablets and crushed powder which was found to be the drug 4-MEC. The police also found cash in the sum of $3,123.50 and notebooks in which there was a tick list and a number of other entries relating to your drug dealing activity.

[6] The summary of facts prepared by the police said that these notebooks showed that you were “selling in the vicinity of $10,000 of drugs per week and therefore turned over $520,000 during the period of these charges”. This was

disputed by you and a disputed facts hearing took place on 18 November 2011. Following that hearing I issued a minute in which I stated that I was not satisfied that your turnover was at the level stated in the summary of facts. I concluded that:

..: Mr Vigneau was more than an occasional dealer. His turnover was regularly at least $1,500 a week and at times more than this, but that it was not at the level stated in the summary of facts. He was persistent and committed. His intention was to make money from doing so. Although his supplies could be variable ..., over the period of the charges he had access to reasonably regular supplies. The tick list and other entries about who owes him various amounts are consistent with not insignificant amounts being supplied regularly. He acknowledged that sometimes he would have sold

$3,000 worth of drugs on a single occasion. He regularly sold a supply of pills for those attending particular events. He acknowledged that he sold 100 pills for particular occasions and there are entries in the diary consistent with this. Other entries refer to 25 “bickies”. He also referred to selling 40 or 50 pills for a party of above 100 people. He also regularly obtained cannabis (in quantities of at least a pound) which he on-sold in varying amounts (in ounce, $50 and $20 bags). Consistent with entries in his diary, the search of Mr Vigneau’s home found 128.14 grams of cannabis packaged in ounce, $50 and $20 bags.

[7] So that is the basis on which I sentence you.

Circumstances of offender

[8] I now turn to consider your circumstances. You are 25 years old. You have spent periods living in France and Australia but have been living back in New Zealand for a number of years. Prior to your remand on these charges you have from time to time been employed in various ways, including in seeking to establish your own clothing label. You told the pre-sentence report writer that you started selling cannabis to pay your rent.

[9] At the time of your arrest you had been in a relationship with your partner for about two years. You have a number of good friends. A number of supportive character references have been supplied. It is clear from them that you have many good qualities and that you have the ability to move on from your present situation in a positive way.

[10] There is a drug and alcohol assessment report. You acknowledge that you have previously used alcohol excessively but in the last 12 months you have not

done so. You have taken various drugs for a number of years. You deny, however, having a substance use problem. The assessor says that your denial of a problem in this area is “concerning” and that if you do not take steps to address your “harmful pattern of substance use, there is a high risk that [you] will reoffend in a similar fashion”. The pre-sentence report writer had a similar view.

[11] You have a number of previous convictions for minor matters. The most recent of these was for assault in April 2008. All those matters resulted in small fines or reparation and cost orders. None of these were for drug offending.

Sentencing approach

[12] In sentencing you I am required to take into account the principles and purposes set out in the Sentencing Act. Of particular relevance in drug offending is deterrence. Consistency with other offenders convicted of similar offending is also important. Depending on the circumstances of the offender, a sentence aimed at rehabilitation may be appropriate.

[13] Here it is appropriate to consider the charges together, because they are similar in kind and are connected, and to impose concurrent sentences on the charges. I approach the sentence by first considering what sentence for the nature of the offending as a whole would be appropriate, before taking into account aggravating and mitigating factors personal to you.

Starting point

[14] The Court of Appeal’s decision in R v Terewi is the guideline judgment for cannabis offending.1 As 4-MEC is also a class C drug both counsel consider it also provides guidance for offending relating to this drug. The Crown submits that, given the value of the offending and its persistence and regularity, the offending is on the cusp of what are called band 2 and band 3 in R v Terewi and that a starting point of around 4 years imprisonment is appropriate. Your counsel submits that the offending

_{is in band 2 and that a starting point of no more than 3 years is appropriate.}

1 R v Terewi [1993] 3 NZLR 62 (CA).

[15] I agree with your counsel that a 3 year starting point is appropriate. I consider that it was not “large-scale commercial” offending to be close to or within band 3. The Court of Appeal described this as annual revenue of $100,000 in 1999 values. The revenue here, as proven, was not comparable to that. Nevertheless the turnover was regular and at a not insubstantial level. Your persistence and commitment to what your saw as a business venture to make money are aggravating features. In light of these aggravating features I consider that a 3 year starting point is consistent with sentences in other comparable cases.

[16] The Crown refers to R v Kahui as being broadly comparable.2 In that case a four year starting point was adopted. However, as the Crown acknowledges, the operation had a greater degree of sophistication than here. The offender was paying associates up to $500 per week to distribute cannabis which suggests that the money being derived was much higher than here. I consider R v Holden3, Kelly v Police,4

and R v Mann,5 which all involved cannabis and class C pills being supplied over a

sustained period and with the intention of deriving profit, are closer comparators. In these cases 3 year starting points were taken. Cases involving ongoing cannabis dealing which I have also found helpful in determining the appropriate starting point for you are R v Gray (three year starting point),6 R v Rosevear (two years but smaller scale),7 R v Reynolds (three year starting point for reasonably active but not prolific cannabis dealing plus one charge relating to a class B drug), R v Wihongi (two and half year starting point),8 and R v Pula (three year starting point).9

Personal aggravating and mitigating factors

[17] There are no personal aggravating factors. The mitigating factors are your early guilty plea and your stated remorse. For that I consider a total discount of just a little over 25% to be appropriate. That brings the sentence down to two years and

_{two months’ imprisonment. That puts it outside the length at which home detention}

2 _{R v Kahui HC Auckland CRI-2005-092-12470, 11 August 2006.}

3 _{R v Holden HC Timaru CRI-2010-076-463, 4 November 2010.}

4 _{Kelly v Police HC Christchurch CRI-2010-409-148, 26 August 2010.}

5 _{R v Mann HC Invercargill CRI-2008-025-4692, 5 May 2009.}

6 _{R v Gray [2008] NZCA 224.}

7 _{R v Rosevear CA238/05, 29 August 2005.}

8 _{R v Wihongi HC Whangarei CRI-2008-027-1803, 19 November 2008.}

9 R v Pula HC Auckland CRI-2005-004-8014, 6 September 2005.

could be considered but I consider that there are no other relevant mitigating factors to enable me to discount the sentence further. No particular factors have been advanced which strongly support home detention in your case and your counsel does not seek it on your behalf.

End sentence

[18] So what all this means is that your overall sentence will be two years and two

months’ imprisonment. I allocate this as follows:

(a) On the selling cannabis charge: two years and two months.

(b) On the selling 4-MEC charge: two years and two months (concurrent). (c) On the possession of cannabis for supply charge: 6 months

(concurrent);

(d) On the possession of 4-MEC for supply charge: 6 months

(concurrent);

(e) On the possession of LSD charge: one month (concurrent).

[19] The Crown seeks a forfeiture order of the cash which was seized at the time of the search warrant. There is no opposition raised as to this. I make the order accordingly.

[20] Stand down.

Mallon J