R v Harding HC Wellington CRI 2011-091-3903 [2011] NZHC 1977 (9 December 2011)

Last Updated: 6 February 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI 2011-091-3903}

THE QUEEN

v

CHRISTOPHER KEVIN HARDING

Hearing: 22 September 2011

Counsel: K Grau for the Crown

P Surridge for the Accused

Judgment: 9 December 2011

_{SENTENCING REMARKS OF MALLON J}

The charge

[1] Mr Harding, you are here for sentence having pleaded guilty to a charge of possession of cannabis for the purpose of supply or sale. You are here in the High Court for sentencing because the District Court declined jurisdiction.

Circumstances of offending

[2] You were charged following the execution of a search warrant at your residential address. The police found a plastic bag containing 9 cannabis tinnies and a bucket containing 7 ounce bags of cannabis. Together the cannabis found totalled

208 grams. Other than glad snap lock bags and tin foil in the kitchen, no other items

_{potentially associated with supplying or selling cannabis was found.}

R v HARDING HC WN CRI 2011-091-3903 9 December 2011

Circumstances of offender

[3] You are 60 years old. You have been with your wife for over thirty years. As a result of suffering injuries in a motor vehicle accident you have had on-going pain in your leg, hip and lower back for many years. Photographs have been supplied to the Court showing the severity of your injuries, and I have heard further from your counsel this afternoon about your injuries and the steps that you are taking in relation to those including having recently changed your medical care.

[4] You have been unable to work and there is a medical certificate confirming that you have been on constant medication for pain relief. You say that the medication has been inadequate and that cannabis helps you to manage the on-going pain. You have been a regular cannabis user for many years and have developed a high tolerance to it. You say that you do not sell cannabis but do trade it with friends at times for a “nice change” of “smoke”.

[5] You acknowledged to the pre-sentence report writer that you require assistance regarding your drug use. You have said that you are open to attending substance abuse education.

[6] You have a number of previous convictions. For present purposes, the relevant ones are possession of cannabis x5 (on dates between 1992 and 2006), possession of cannabis for supply (1991), possession of cannabis oil for supply x2 (1997) and selling cannabis (1994). The most serious of these was the 1997 possession of cannabis oil for supply for which you received a sentence of imprisonment of one year and nine months.

Sentencing approach

[7] In sentencing you I am required to take into account the principles and purposes of sentencing 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 may be aimed at rehabilitation.

[8] I approach your sentence by first considering what sentence for the nature of the offending would be appropriate, before taking into account aggravating and mitigating factors personal to you.

Starting point

[9] The Court of Appeal’s decision in R v Terewi is the guideline judgment for sentencing in cannabis offending.[1] The Crown submits that your offending falls within the low end of category two as described in Terewi and that a starting point of two years is appropriate. Your counsel does not make submissions in opposition to that.

[10] I consider that any commercial element in your offending was minor. I say that because even if all the cannabis that was found was sold as ounces at $350 each the total revenue would be $2,450. Other than the amount found and the way in which it was packaged, there is nothing suggesting that you were making much money from cannabis supply. Given your long standing cannabis use and your pain issues I accept that some of the cannabis would have been smoked by you.

[11] Because of the low level of commerciality I consider that a starting point of no more than two years is appropriate. That is consistent with the two cases the Crown have provided[2] although there are other examples where this starting point[3] or lower starting points[4] have been taken when the level of cannabis found was much greater.

Personal aggravating and mitigating factors

[12] The Crown submits that your previous convictions are aggravating and that the starting point should be uplifted for this. Although a small uplift could be added

I have decided against that. That is because your most recent conviction was five years ago and was for possession, and your most recent supply conviction was fourteen years ago. I also consider that in taking a two year starting point rather than something a little lower, as some of the cases have, the principle of deterrence is adequately accounted for.

[13] The mitigating factor is your guilty plea. It was made at an early time and I

will therefore allow you a 25% discount for this. That brings your sentence down to

18 months’ imprisonment. I note that this is in the vicinity of the level the District Court Judge indicated had he had jurisdiction and before considering the issue of home detention.

Home Detention

[14] As to that, the Crown submits that home detention is not appropriate because the offending occurred in the home and you have a history of drug dealing offending which has not deterred you from further offending. I note that in one of the cases relied on by the Crown, however, the court imposed community detention.[5] In the other home detention was not granted but the Court there had concerns about the lack of support for the offender at the proposed address.[6] There are examples of home detention being granted[7] and others were it is not for this type of offending.[8]

The particular circumstances of the case determine this.

[15] While the two factors the Crown has referred to are relevant to whether home detention is appropriate, I have reached the view that it should be granted in your case. This is because of the relatively low level of commerciality, that your last drug

_{dealing offence was fourteen years ago and because I consider that, in view of your}

on-going pain issues and your willingness to engage in a suitable programme, a more rehabilitative sentence is appropriate.

End sentence

[16] I therefore sentence you to 9 months’ home detention. It will be subject to the special condition that you attend any such assessment, counselling, or treatment to address the abuse of drugs as directed and to the satisfaction of the probation officer and service provider.

[17] That is all. There will need to be arrangements made for setting up the home detention at the stated home detention address.

Mallon J

---

[1] _{R v Terewi [1999] 3 NZLR 62 (CA).}
[2] R v Riwai HC Palmerston North CRI-2009-054-1838, 9 October 2009; R v Williams HC Palmerston North CRI-2010-054-1136, 3 August 2010.
[3] R v Hartley HC Gisborne CRI-2006-016-3469, 16 February 2009; R v Andrews [2000] 2 NZLR _205.

[4] R v Ali CA156/04, 29 July 2004; R v O’Reilly HC Palmerston North CRI-2006-031-443,

31 August 2006.
[5] _{R v Riwai.}
[6] _{R v Williams}
[7] For example: R v Pulham HC Whangarei CRI-2006-029-168, 12 October 2006; R v Rihari HC Whangarei S05102, 23 September 2005; R v Gillies HC Napier CRI-2004-020-1348, 30 July 2004; _{R v O’Reilly.}
[8] For example: R v Hartley; R v Stainton [2008] NZCA 370; Barker v Police HC Dunedin CRI-
2010-412-11, 12 May 2010; R v Shelford CA3/06, 22 March 2006; R v Poutai HC Palmerston
North CRI-2005-054-4831, 28 September 2006.