R v Busby [2012] NZHC 3234 (3 December 2012)

Last Updated: 10 December 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-027-1171 [2012] NZHC 3234

THE QUEEN

v

THOMAS JAMES BUSBY

Hearing: 3 December 2012

Counsel: B M O'Connor for Crown

S Nicholson for Prisoner

Judgment: 3 December 2012

_{SENTENCING NOTES OF HEATH J}

Solicitors:

Crown Solicitor, PO Box 146, Whangarei

Counsel:

_{S Nicholson, PO Box 3, Kerikeri}

R V BUSBY HC WHA CRI 2012-027-1171 [3 December 2012]

Introduction

[1] Thomas James Busby, you appear for sentence today having pleaded guilty to charges involving Class C controlled drugs. You initially appeared before the District Court. Jurisdiction was declined.[1] You are now for sentence in this Court.

Facts

[2] Between April and June 2012, you are charged with five charges of selling cannabis and two of possessing cannabis for supply. A further charge of possessing cannabis for supply arises out of a separate incident on 8 August 2012. That offending occurred while you were on bail in respect of the earlier charges.

[3] The first set of charges arose out of a Police operation that occurred in the Northland area. In the course of that operation, police officers visited various premises from which they considered cannabis could be obtained.

[4] The first such visit to your property was on 4 April 2012. On that occasion the police officer purchased a single cannabis tinnie from you by paying $20. Another officer met with you and purchased another tinnie for $20. You were observed removing the cannabis tinnies that you sold from a large plastic bag containing approximately 12 pre-rolled tinnies.

[5] On 3 May 2012, one of the police officers returned to your home. He noticed that you were holding a single cannabis tinnie in your hand which he purchased for

$20 before leaving.

[6] On 7 June 2012, another transaction occurred whereby a tinnie was sold to one of the police officers for $20.

[7] On 8 June 2012, a further purchase of cannabis tinnie took place. Again, $20 was exchanged.

[8] A search warrant was executed at your home on 28 June 2012. During that search, 11 tinnies of cannabis in a bowl in plain sight of the kitchen area of the sleep- out was located. Nearby, on the kitchen bench, was a box of tea containing $1060 in mainly $20 notes.

[9] The Police in respect of that offending seek an order for forfeiture of the cash totalling $1060 and an order for destruction of the drug exhibits. Both are made.

[10] On 4 August 2012, you were being checked for bail at your home address. You had previously been bailed on the earlier charges. There was no one home at the time. At about 11.20am on 8 August 2012, the Police went to your address to locate you and to arrest you for breaching bail. When they knocked at your door a strong odour of cannabis came from inside. A search revealed a snap-lock bag containing approximately 29 pre-rolled tinfoil packages containing cannabis plant material. Beside that bag was a small glass jar containing a further 16 pre-rolled tinfoil packages containing cannabis plant material. Other similar items were located during the course of the search.

[11] A sum containing $640 in $20 notes was found in your partner’s wallet. There has not been any attempt to suggest that that did not come from the dealing. In respect of that particular charge, the Police seek forfeiture of the sum of $640 and an order for destruction of the cannabis. Both orders are made.

Analysis

[12] Mr Busby, this operation has the hallmarks of a small to medium size operation. You had the sort of stock that one would expect for people who were visiting relatively frequently to buy cannabis from you. The level of stock located on the last occasion tends to corroborate that view.

[13] The frequency and regularity of likely transactions are evidenced by the cash that was actually seized at the time.

[14] In the range of starting points I am allowed to take,[2] I choose one of two years nine months imprisonment to reflect the nature of your offending.

[15] So far as aggravating factors personal to you are concerned, you have prior convictions and the first of the offending took place while you were still subject to a sentence of community work. The last of the offending was while you were on bail. I take an uplift of six months for that, making the revised starting point one of three years and three months.

[16] There are no personal mitigating factors I am prepared to take into account. You are, however, entitled to 25% credit for your early guilty pleas,[3] which I round to 10 months. On a totality basis, that makes the end sentence one of two years five months imprisonment.

Result

[17] Mr Busby, you are sentenced to a term of two years and five months imprisonment on each charge. Those terms are to be served concurrently.

[18] The orders I have made for forfeiture and destruction in respect of the money and cannabis seized are confirmed.[4]

_{[19] Stand down, please.}

_{P R Heath J}

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[1] R v McLeod [1988] 2 NZLR 65 (CA).
[2] _{R v Terewi [1999] 3 NZLR 62 (CA).}
[3] _{Hessell v R [2011] 1 NZLR 607 (SC) at para [75].}
[4] See paras [9] and [11] above.