R v Care [2012] NZHC 2410 (18 September 2012)

Last Updated: 10 October 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-002124 [2012] NZHC 2410

THE QUEEN

v

JOSHUA SCOTT CARE

Charges: selling Class C drug cannabis x 1,

possession of the Class C drug cannabis for supply x1;

possession of Class B drug cannabis oil x1; possession of Class A drug methamphetamine x1; possession of a pipe for smoking methamphetamine x1; possession of a Class B drug cannabis resin x1

unlawful possession of firearms x 2;

unlawful possession of ammunition x1

Plea: Guilty

Appearances: S N Cameron for Crown

M H McIvor for Prisoner

Sentenced : 18 September 2012

Selling class C drug cannabis and possession of Class C drug cannabis – 2 years 6 months’ imprisonment;

possession of Class B drug cannabis oil x1 – 2 months’ imprisonment;

possession of Class A drug methamphetamine x1 – 2 months’

imprisonment;

possession of a pipe for smoking methamphetamine x1 – 2 months’

imprisonment;

possession of a Class B drug cannabis resin x1 – 2 months’

imprisonment;

unlawful possession of firearms and ammunition – 9 months’

imprisonment. Sentences are concurrent

Total: 2 years 6 months’ imprisonment

_{SENTENCING NOTES OF VENNING J}

Solicitors: Crown Solicitor, Hamilton

Copy to: M H McIvor, Hamilton

R V CARE HC HAM CRI-2012-019-002124 [18 September 2012]

[1] Joshua Scott Care, you are for sentence in this Court having pleaded guilty to selling the Class C drug cannabis, possession of the Class C drug cannabis for supply; possession of a Class B drug cannabis oil; possession of a Class A drug methamphetamine; possession of a pipe for smoking methamphetamine; possession of a Class B drug cannabis resin; and three charges under s 45 of the Arms Act

1983. The District Court declined jurisdiction. The maximum penalty for the more serious drug offending in this Court is eight years’ imprisonment. The maximum penalty for the firearms offences is four years’ imprisonment.

[2] Between 1 January and 29 March this year you sold cannabis in the form of tinnies to associates and other people in the Thames community. The operation only came to an end on 29 March when the police executed a drug search warrant at your home. You and your partner were present. The police located a number of illegal drugs, drug paraphernalia, cash and firearms at your home. In addition to a small quantity of methamphetamine and the pipe used for smoking it, the police located 20 tinnies, individually wrapped and ready for sale. There was also a snaplock bag containing loose cannabis weighing 0.9 grams and a jar containing 6.2 grams of loose cannabis. There was $540 cash in your wallet and some further money in an ice-cream container. You had $1,250 cash on your person, the majority of which was in $20 denominations. There were a further two tinfoil packages of cannabis resin found. There were a number of firearms about the property, including a sawn-off shotgun.

[3] The probation officer suggests you at are a low risk of reoffending and low risk of harm to others, provided you are able to maintain a drug free lifestyle. That, however, is where the problem lies. Regrettably, your past record of offending suggests that you are not able to attain a drug free lifestyle. You have had the opportunity to do that in the past but have failed to take the opportunity. You have a substantial number of convictions associated with drug offending, including cultivation of cannabis in October 2010. In March 2011 you were placed on intensive supervision for one year six months, with a final warning. Despite that the current offending occurred while you were still subject to that sentence.

[4] You are currently living with your partner. She is pregnant with your child. You are a trained chef and you have in the past worked in restaurants in Thames. You have also worked with a local builder.

[5] You have told the probation officer you offended because you found yourself in the situation where your associates were users of drugs and you began using again yourself and fell back into involvement with the drug scene. That, however, is an attempt to minimise your involvement. You were clearly involved in a commercial operation of selling cannabis yourself. You say you have made the decision not to place yourself in that position again and you now avoid being around anyone using drugs. You say that Mr McIvor is instructed the firearms were owned by someone else but you are no longer associated with that person. You admit to a slug gun. The probation report writer suggests that you accept you have made a real “stuff up” and you regret allowing the firearms to be there. Mr Care, in your case, words are cheap. Actions speak much louder. Your past history suggests you have a real problem with drugs and drug offending. You have not addressed it despite the chances you have been given and the fact that you were subject to a sentence of intensive supervision.

[6] The Crown submit an appropriate start point for sentence for drug offending is two and a half years’ imprisonment. They seek a cumulative sentence of 12 months for the firearms offending, taking the starting point of three years six months. The Crown argue a more substantial starting point could be taken but acknowledge the totality factor.

[7] Mr McIvor has submitted that a starting point of around two years’ imprisonment could be appropriate and in his written submissions argued for the sentence of home detention. He submits that the .22 was a slug gun, and the other firearms belonged to a friend. He notes that none of the firearms were loaded and has said you used them for shooting, hunting possums. Despite Mr McIvor’s submissions, Mr Care I have to say that in your case the suggestion of anything less than imprisonment as an appropriate sentence is simply unrealistic.

[8] In sentencing you I am required to take into account the purposes and principles of the Sentencing Act which in this case, the particularly relevant ones are:

to make you accept responsibility for your offending. There can be no excuse or justification for offending of this nature;

to deter you and others from offending in this way;

to denounce this sort of offending which has an impact on the community by the distribution of drugs throughout the community.

[9] I am also required to take account of the gravity of the offence which is recognised by the maximum penalty I have referred to and the fact that you are in this Court for sentence. I am also required to consider your culpability and other relevant authorities, cases where people have been sentenced to similar offending; to ensure a degree of consistency in the sentences imposed by the Court for this offending.

[10] Applying those purposes and principles and having regard to what the Court of Appeal said in R v Terewi[1] I consider your offending was definitely commercial in nature. Apart from the variety and quantity of drugs and the number of tinnies found at your property, I note the property had CCTV surveillance camera directed down the path leading to the address and as I have noted there were a number of firearms at the property. This Court has said on a number of occasions that the presence of

firearms with drugs where drug dealing is involved is a particularly aggravating factor. I agree with the Crown submission that it is unrealistic to suggest the firearms were not in some way associated with the drug dealing. This Court deals on a regular basis with serious offences where drug deals have gone wrong and resort has been had to weapons with sometimes fatal consequences.

[11] I take the drug offending as the lead offence. In order to reflect the totality of the offending, including the firearm and other drug related offending, I take a starting point of three years, three months.

[12] The same sentence could be arrived by taking the sentence of two years, six months for the drug offending with an uplift of a cumulative sentence of nine months

for the firearms but I regard the firearms as an aggravating feature and take the drug offending as the lead sentence. The fact that your current offending occurred while you were still subject to a sentence of 18 months’ supervision warrants an uplift of a further three months. I regard that as a serious aggravating feature, given the offending in that case was also drug related and you were on a final warning. The starting point then before personal mitigating factors is three years six months’ imprisonment.

[13] Mr McIvor has submitted on your behalf that you are now seeking to deal with your significant drug problem and have agreed to go into a drug rehabilitation programme and that has been confirmed. I am afraid to say Mr Care in your case that has been too little too late. You have failed as I have said to take your chances to date. The stage has been reached with your offending that your personal circumstances must be secondary to the overriding principles of denunciation and deterrence.

[14] It is also said that you are now remorseful. It has to be said again your actions do not really suggest that. While you made a frank statement to the police, your continued offending in this way, whilst subject to a sentence, remains of concern. There is also a suggestion on your behalf that the $1,250 found on your person was the balance of your remainder of pokie winnings. I note that most of the money found on your person was in $20 notes, which was commonly used in the transaction of tinnie sales and I do not accept that. I consider that money to be the proceeds of your drug dealing and offending.

[15] The principal mitigating factor is your acknowledgement of responsibility by the early guilty pleas. I propose to give you close to a full credit for those guilty pleas in accordance with the Supreme Court decision in R v Hessell.[2]

[16] The starting point of three years six months’ imprisonment will be reduced to

two years six months’ imprisonment.

[17] Please stand. On the charges of selling a class C drug cannabis and possession of cannabis for supply you are sentenced to imprisonment for two years, six months. For the remainder of the other drug offending you are sentenced to two months’ imprisonment. In relation to the firearms offences you are sentenced to nine months’ imprisonment. The sentences are concurrent. The effective sentence is two years six months’ imprisonment.

[18] There will be an order for the forfeiture and destruction of the firearms and ammunition. There will also be an order for forfeiture and destruction of all drug related items seized. Finally there will be an order for forfeiture of the cash seized from the property on your person and in the wallet. I am satisfied, on the balance of probabilities, that that cash was received in the course of or consequent upon an offence under s 6 of the Misuse of Drugs Act 1975. To avoid doubt I do not forfeit

_{the money found in the tin on the property. That is all, stand down.}

Venning J

---

[1] R v Terewi [1999] 3 NZLR 62.

[2] R v Hessell [2011] 1 NZLR 607, [2010] NZSC 135.