R v Emery [2012] NZHC 2933 (6 November 2012)

Last Updated: 5 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-092-6506 [2012] NZHC 2933

THE QUEEN

v

CLINTON ARNOLD FENTON EMERY

Hearing: 6 November 2012

Counsel: M R Walker for Crown

O R Hintze for Prisoner

Judgment: 6 November 2012

_{SENTENCING NOTES OF HEATH J}

Solicitors:

Crown Solicitor, Auckland

Counsel:

B J Meyer, PO Box 941, Auckland

_{O R Hintze, PO Box 38474, Howick, Auckland}

R V EMERY HC AK CRI 2012-092-6506 [6 November 2012]

Introduction

[1] Clinton Arnold Fenton Emery, you appear for sentence today having pleaded guilty in the District Court at Manukau, on 18 July 2012, to four charges of selling cannabis, one of possessing cannabis for the purpose of sale, one of possessing cannabis, one of possessing a firearm, one of driving while suspended on a third or subsequent occasion, and two of failing to answer bail imposed in the District Court.

[2] The offending occurred over a period between 28 November 2011 and 8 May

2012. The District Court declined jurisdiction to sentence you. That is why you are in this Court for sentence.

Facts

[3] In February 2012, the Counties-Manukau Organised Crime Unit began an investigation into the sale and distribution of cannabis in its policing area. The initial phase identified you and another man, Kasey Warbrick, as working together to facilitate the sale of cannabis. Telephone data from four cellular telephones, two of which were used by you, provided evidence for the offences to which you have now pleaded guilty.

[4] On 4 February 2012, you were driving an Audi motor vehicle in Otara when you were stopped by a police officer. At that time, I understand you were suspended from driving. After stopping you, the police officer noticed a strong smell of cannabis was coming from the vehicle. He conducted a warrantless search of the car, for drugs. While the arresting officer was speaking to you, you gave to him one of the telephone numbers to which I have referred.

[5] A search of the boot of the vehicle located a clear plastic zip-lock bag containing a large quantity of cannabis. On weighing, it was found to contain 2.4 ounces of plant material. A sawn-off double barrelled shotgun, with 9 shotgun cartridges was also found in the car boot.

[6] You told the arresting officer, on interview, that you intended to smoke the majority of the cannabis found in the car, but also wanted to sell around 10 tinnies. So far as the firearm was concerned, you indicated that you had recently left the Tribesman gang and carried the firearm for protection.

[7] Following your appearance on charges arising out of that incident, you were remanded on bail.

[8] Mr Warbrick was arrested on 15 February 2012. His vehicle was also searched for drugs. Some 25 tinnies were found. Mr Warbrick was charged with possessing cannabis for the purpose of supply.

[9] Afterwards, in discussions with a police officer Mr Warbrick provided two further cellular telephone numbers. They are two of those to which I referred earlier.

[10] As a result, search warrants were obtained for historical text message data, from 28 November 2011 until 5 March 2012. That data revealed communications between you and Mr Warbrick. Typically, they involved inquiries from a customer seeking cannabis and a response to that request. Numerous examples are given of the type of communication. It is unnecessary for me to go through them.

[11] You were arrested again on 27 March 2012 and taken to the Manukau Police Station for interview. You said that you had been selling cannabis to “put food on the table”.

[12] Initially, the Crown sought an order confiscating the Audi motor vehicle. It is now accepted that the vehicle belongs to another person and is of insufficient value to justify confiscation. That is not pursued. However, an order destroying the firearm is.

Analysis

[13] The amount of cannabis that was being offered for sale and sold was not insignificant. From the analysis of the text messages, about 20 cannabis tinnies were

being delivered, seven days a week for three months. That demonstrates a commercial element. That requires a starting point between two and four years imprisonment.[1]

[14] Mr Walker, for the Crown, submits that the appropriate starting point is between three and three and a half years imprisonment, with an uplift of three months to reflect the firearms charges. On the other hand, Mr Hintze, on your behalf, suggests that the appropriate starting point is two years six months with an uplift of no more than two months for the firearms charge and, perhaps, another month to reflect your bail history.

[15] In a case like this, the primary sentencing goals must be denunciation of your offending and deterrence of you and others from acting in a similar way in the future. On that basis, I propose to choose a starting point of three years and three months imprisonment.

[16] You are 27 years old. You do have previous convictions. Given the length of time that has passed since then, I do not propose to add anything to your sentence to reflect an uplift for personal aggravating factors.

[17] I acknowledge your present willingness to attempt rehabilitation. Had this factor not been raised so late in the piece, I would have been sympathetic to an attempt by you to do that. I will say something later about that willingness which should alert the Parole Board to your desire to do something about your addiction.

[18] There are no mitigating factors, other than the guilty pleas. You first appeared in the District Court on 8 February 2012 and pleaded guilty following a sentence indication on 18 July 2012. A credit in the vicinity of 20% is appropriate. I round that up to nine months imprisonment.

[19] Deducting that credit from the starting point, I reach an end sentence on the lead charges of selling cannabis of two years six months imprisonment. Having

_{done that, I am now required to impose separate sentences for each of the offences}

with which you have been charged. Although I will be mentioning different figures, the effective term of imprisonment you will serve is no longer than two years and six months.

Result

[20] Mr Emery,

(a) On each of the charges of selling cannabis, you are sentenced to a term of two years and six months imprisonment;

(b) On the charge of possessing cannabis for sale, you are sentenced to two years and three months imprisonment;

(c) On the charge of possessing cannabis, you are sentenced to a term of six months imprisonment;

(d) On the charge of possession of a firearm, you are sentenced to a term of three months imprisonment;

(e) On the charge of driving while suspended, you are convicted and sentenced to a term of one months imprisonment and disqualified from holding or obtaining a driver licence for a period of 12 months;

(f) On each of the charges of failing to answer District Court bail, you are convicted and discharged.

[21] It would have been open to me to impose cumulative sentences, particularly in relation to the driving and the firearms charges. I have not done so because I consider the end sentence of two years and six months imprisonment is sufficient to respond to all offending.

[22] As I say, all of those sentences are to be served concurrently. You become eligible for parole after serving one-third of that sentence. If you carry out and show

that you really do wish to rehabilitate, I wish to record for the Parole Board’s

assistance, my own view that you should be given an opportunity to do so.

[23] But you will have to demonstrate while in prison that you have that desire and willingness to do so. Undoubtedly, if you do have that, it will help you in obtaining parole at the earliest possible time. But, ultimately, it is not my decision. It is the decision of those on the Parole Board at the time.

[24] I make an order for destruction of the firearm seized.

[25] I also make an order for remission of all fines that you owe. It is clear that you cannot pay them. I would rather you have the opportunity to make a fresh start when you come out of prison than risk the possibility of you going back to criminal activities to support your family.

[26] Mr Emery, I really do hope that you can continue this desire to do something about your addiction and, on that basis, I wish you well.

_{[27] Stand down.}

P R Heath J

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[1] R v Terewi [1999] 3 NZLR 62 (CA) at para [4].