R v Christison [2012] NZHC 2067 (15 August 2012)

Last Updated: 22 September 2012

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-041-418 [2012] NZHC 2067

THE QUEEN

v

SAMUEL ERIC CHRISTISON

Hearing: 15 August 2012

Appearances: R J Collins for Crown

N C Hewat for Prisoner

Sentence: 15 August 2012

_{SENTENCING REMARKS OF PETERS J}

_{Solicitors: Elvidge & Partners, Crown Solicitor, Napier:} [e-mail]

_{Counsel: N C Hewat, PO Box 636, Napier 4140}

R V CHRISTISON HC NAP CRI-2012-041-418 [15 August 2012]

Introduction

[1] Mr Christison, I am sentencing you on two charges, to which you have pleaded guilty:

(a) The first is offering to sell a Class C drug, namely cannabis.[1] This charge concerns the period 30 December 2011 to 29 January 2012.

(b) The second charge is possession for sale of a Class C drug, namely cannabis,[2] on 14 February 2012.

[2] You pleaded guilty to these charges on 11 April 2012. The maximum penalty on each charge is eight years’ imprisonment.

Facts

[3] The facts are as follows. In late December 2011, the Police became aware that you were selling cannabis. By looking at your cell phone records the Police found that you had made at least 32 separate offers to sell cannabis between

30 December 2011 and 29 January 2012.

[4] The Police obtained and executed a search warrant at your home in February

2012. They found 14 snap-lock bags, five containing cannabis and nine containing cannabis plant material. The total cannabis that the Police found that day was

12.6 grams.

[5] You admitted to the Police that you had been selling cannabis to friends and associates for some time, and that you sold between a half and an ounce of cannabis every three to four days. You earned something from these activities, although

_{precisely how much is in dispute.}

Personal circumstances

[6] You are 21. You have 13 previous convictions, all acquired since 2009, at which time you would have been 18. These convictions include two for possession of cannabis and some driving offences and breaches of community-based sentences.

[7] You have developed a serious dependency on cannabis, and you say that, at least in part, your offending was so you could sustain your addiction. From the pre- sentence report which I have read it appears that you began smoking cannabis regularly when you were 15, following the death of your mother and as a way to get some relief from the stress and grief that would have caused you.

[8] To compound that matter, you were subject to an assault when you were aged

16. That was an assault to the head which caused you further difficulties and more recently your child has died. So, at a young age, Mr Christison it is fair to say you have had to deal with events that many people would not have to deal with for many years, and some they would not have to deal with at all.

[9] As I have said, I have read the pre-sentence report. It is fair to say that the Corrections Officer expresses reservations about you and your willingness to address your problems. On the other hand that report was prepared several months ago and whatever view the Corrections Officer may have taken, and it might have been quite properly taken, there is other material which puts a different light on things.

[10] The first of those is a report from Mr Dwyer, a registered psychologist. His professional view is that you have developed an addiction to marijuana and you are experiencing the problems that go with that addiction – irritability, anxiety, withdrawal symptoms and so on. His view is that you are also now well engaged and enjoying your studies at Eastern Institute of Technology. Plainly your academic record, a copy of which I have, is very encouraging and you certainly have the aptitude to complete your course and to do well if you continue to apply yourself.

[11] You have also undertaken rehabilitative steps by referring yourself to

Hawke’s Bay Addiction Services. Reports from the professionals administering

those services state that there has been a marked change in your presentation over recent months. They consider that you are beginning to understand where you have “gone wrong” in the past. These rehabilitative steps could be viewed as a pre- sentence measure to “curry favour”. I suspect that counsellors are good at detecting when someone is genuine and when someone is not. They clearly take the view that you are in the genuine category. At the end of the day, whatever your motivation for starting that course, you are still taking those steps and attending the sessions and they will have some beneficial effect.

Approach to sentencing

[12] In sentencing you today Mr Christison, I need to do three things.

[13] First, I need to identify the lead offence. Then I need to identify what the starting point is for the offending. Thirdly, I am required to consider whether there are any reasons why I should increase or reduce the sentence on account of matters that are personal to you.

[14] Dealing with the lead offence, the charge of offering to sell cannabis relates to offending over the course of a month, whereas the possession for supply charge involves a relatively small quantity. I propose to take the offering to sell charge as the lead offence.

Starting Point

[15] Coming to the starting point, I need first to remind myself why I am sentencing you and the principles I must apply.

[16] There is no dispute that I am to impose a sentence that holds you accountable for the harm that your offending has caused; that makes you understand that you are responsible for that harm; that denounces your offending, that deters you and others from behaving in the same way in the future; and that protects the community from you. You should not be under any doubt, Mr Christison, that dealing in drugs and

possessing them does cause harm to the community. Do not fool yourself into thinking that these sorts of offences are victimless because they are not.

[17] I must also bear in mind certain principles. Dealing in a Class C drug is serious. I will sentence you on the same basis as others who have committed similar offences have been sentenced and I am required under the Sentencing Act 2002 (“Act”) to impose the least restrictive sentence that I can in the circumstances. Those are the matters I have to bear in mind in terms of a framework for sentencing you.

[18] I also bear in mind that the supply of cannabis requires planning. It is not done on the spur of the moment because you have to source the drugs. Also, drug offending is serious, as I have said. Experts tell us that cannabis is a harmful drug and the consequences for those who take it and for society are far reaching.

[19] The Crown submits that your offending falls within category two of the bands that the Court of Appeal set in R v Terewi.[3] There is some dispute about that in this case because of the quantity of cannabis that you had. If I were to treat this as a category two case it would attract a starting point of between two and four years’ imprisonment.

[20] The Crown has, very helpfully, referred me to many cases as to the appropriate “starting point”.[4] Some of these, however, are not on all fours with your case because they include, for example, instances in which the offender has supplied LSD or methamphetamine; where the amount offered for sale was substantially greater than that in your case; or where the number of offers detected in a short space of time was considerably greater than in yours. The starting point adopted in those

_{cases ranged from two to three years’ imprisonment.}

[21] Your counsel takes issue with categorisation of this as a band two case but I

propose to proceed for the moment on the basis that it is in band two.

[22] Given that, I propose to adopt a starting point on the lead offence, namely the offering to sell charge, of two years’ imprisonment and a starting point for the possession charge of four months, giving an overall starting point of two years, four months’ imprisonment.

Adjusting the starting point

[23] I then turn to the final part of the exercise, Mr Christison, which is to consider whether I need to increase or reduce the sentence on account of other matters.

[24] The Crown, very fairly, has not suggested that there should be any uplift for other factors so it will not be going up from two years, four months’.

[25] I then turn to the mitigating factors which the Act requires me to consider.

[26] First, the Act requires me to take into account your age, to the extent that it is appropriate to do so in the circumstances. One reason why it might be appropriate, in a case such as this, to make some reduction on account of the age of the offender is that a lengthy sentence may be crushing on a younger person whereas a more mature person is better able to cope and has more resources to call upon. Another reason is that there is more scope to turn things around with a young person. The prospects of rehabilitation are greater. Your own efforts over the last six months are some evidence of that. I propose to reduce your sentence by three months on account of your age.

[27] Secondly, the Crown has said in its submission that it is a matter for the Court whether the personal circumstances to which I have referred, namely the death of your mother, the death of your child and the effects of the assault may be taken into

_{account as either relevant or on compassionate grounds.}[5] _{I do propose to make a}

reduction of a further three months on account of those matters. That is to encapsulate also the efforts that you have made to rehabilitate yourself. That brings the sentence down to 22 months.

[28] Then I am obliged to take into account the fact that you pleaded guilty to the offending. The Crown acknowledges that a reduction of some 20 per cent should be allowed for that. Your own counsel says 25 per cent. I am going to adopt 20 per cent, Mr Christison, because I have been rather generous to you in the other areas.

[29] I propose to allow a 20 per cent reduction to your sentence as a result of your guilty pleas.

[30] After those adjustments Mr Christison, I am left with a sentence of 17 to 18

months’ imprisonment.

Home Detention

[31] Because that is less than 2 years’ imprisonment, I must consider whether it is

appropriate to impose a sentence of home detention instead of imprisonment.

[32] Your lawyer has very helpfully referred me to several cases which confirm that home detention may be an appropriate sentence for offending such as this.[6]

[33] The proposed home detention address is with your father, where your siblings also live. It is not the address from which you were selling and that is an important matter. The Corrections Department have assessed it as a suitable address for the serving of a home detention sentence. The fact that your father is willing to let you serve your sentence at the family home together with your siblings is an indication of their family support for you, and one for which you should be grateful.

[34] While it is important that I impose a sentence that deters you, I am also obliged by law to impose the least restrictive outcome appropriate. Given the

availability and suitability of the address and the family support, I do propose to sentence you to home detention.

[35] But you should understand Mr Christison that you could not expect such a sentence in the future if there is a repetition of this offending.

Sentence

[36] Please stand:

(a) on the charge of offering to sell I impose a sentence of nine months’

home detention;

(b) on the charge of possession for sale, I impose a sentence of three

months’ home detention.

[37] These sentences are to be served concurrently. That means your total sentence is nine months’ home detention.

[38] The conditions that I attach to your sentence are as follows:

(a) you are to travel directly to 54 Wycliffe Street, Napier and await the arrival of the monitoring company and the supervising Probation Officer;

(b) you are to reside at 54 Wycliffe Street, Napier for the duration of the home detention sentence;

(c) you are not to purchase, possess or consume illicit drugs for the duration of the home detention sentence;

(d) you are to undertake alcohol and drug counselling to the satisfaction of your supervising Probation Officer and the programme provider;

(e) you are to attend and complete such counselling programmes and treatment to address identified offending behaviour as may be directed by your Probation Officer to the satisfaction of your Probation Officer and programme provider;

(f) any proposed employment or ongoing study is to be approved by the supervising Probation Officer to ensure that all monitoring requirements are met; and

[39] In addition, you will be subject to the standard conditions for a home detention sentence set out in s 80C(2) of the Act.

[40] Stand down.

..................................................................

M Peters J

---

[1] _{Misuse of Drugs Act 1975, ss 6(1)(e) and 6(2)(c).}

[2] Ibid, ss 6(1)(f) and 6(2)(c).

[3] _{R v Terewi [1999] 3 NZLR 62.}

[4] R v Knutson HC Whangarei CRI-2009-027-2551, 16 October 2009; R v Lloyd HC Dunedin CRI-

2009-012-152, 23 September 2009; R v Bowman HC Palmerston North CRI-2008-054-5896, 13 May

2009; R v Mann HC Invercargill CRI-2008-025-4692, 5 May 2009; R v Sell HC Invercargill CRI-

2008-025-4710, 5 May 2009 and R v Massie HC Invercargill, CRI-2008-025-2028, 2 September

2008.

[5] Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

[6] R v Barton [2000] 2 NZLR 459 (CA); R v Weir HC Auckland CRI-2011-057-1203, 18 October 2011;

and R v Olsen [2012] NZHC 814.