R v Lambess [2012] NZHC 97 (9 February 2012)

High Court of New Zealand

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R v Lambess [2012] NZHC 97 (9 February 2012)

Last Updated: 27 February 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-6110 [2012] NZHC 97

THE QUEEN

v

LESLEY RACHAEL LAMBESS

Hearing: 9 February 2012

Counsel: J O'Sullivan for Crown

S Green for Prisoner

Judgment: 9 February 2012

_{SENTENCING REMARKS OF LANG J}

R V LAMBESS HC HAM CRI-2011-019-6110 9 February 2012

[1] Ms Lambess, you appear for sentence today having pleaded guilty in the District Court to charges of being in possession of cannabis for supply and selling cannabis. The maximum sentence for both charges is one of eight years imprisonment.

The facts

[2] The facts giving rise to your offending fall within a very narrow compass. On 10 August 2011 the police executed a search warrant at your home in relation to an unrelated matter. You lived at that address with two other family members. When the police spoke to you after their arrival, you told them that you had cannabis in your bedroom. You then took the police to the bedroom, where you uplifted a black plastic rubbish bag and gave it to the police. Inside the bag was a plastic bucket with a lid. Inside the bucket were plastic bags containing a total of 764 grams of dried cannabis head material.

[3] Nine of those bags were of a snaplock variety commonly used by drug dealers to sell smaller quantities of cannabis. Each of these contained approximately an ounce of cannabis, which is a common quantity for street level dealers to sell. In addition, the police found a wad of currency at the bottom of the bucket totalling

$2050.00.

[4] You initially said that you were holding on to the cannabis and money for a friend, but your early pleas of guilty make it clear that that was not the case. When you were interviewed by the probation officer, you admitted quite frankly that you were selling cannabis in an endeavour to move out of an intolerable residential lifestyle.

Sentencing Act 2002

[5] In any case involving drug dealing, as I am sure you know, issues of deterrence and denunciation are to the forefront. The only way in which the courts can contribute meaningfully to drug use and dealing is to impose stern sentences when drug dealers are apprehended. Having said that, the key in your case is to

select a sentence that is commensurate with those imposed in broadly similar cases and to provide a sentence that is the most restrictive outcome in the circumstances.

[6] In your case, as I shall explain and as you have heard discussed during submissions, the only realistic outcome is a sentence of imprisonment. I need to determine what the shortest sentence of imprisonment can be to reflect both the gravity of your offending and also the need to impose the least restrictive outcome possible in the circumstances.

Starting point

[7] Counsel agree that the starting point for any sentence in your case is governed by a decision of the Court of Appeal in R v Terewi.[1] They also agree that your offending, given the amount of cannabis found in your possession and the amount of the cash found in your possession, falls within the category of offending identified in Terewi as requiring a starting point of between two and four years imprisonment. I assess you to be a reasonably busy retailer of cannabis, selling in ounce bags for the most part rather than at street level in tinnies. The cash that was found in your possession also suggests that you were not selling in $20

denominations, but in larger amounts.

[8] For that reason your offending cannot be seen at the bottom of the band identified by counsel. Both counsel have submitted, and I agree, that an appropriate starting point in your case is one of two years six months imprisonment.

Aggravating factors

[9] I now need to decide whether or not that starting point should be increased to reflect aggravating factors personal to you.

[10] In the present case there is a significant aggravating factor, and this relates to your previous convictions for drug-related offending. You have a reasonably large

_{number of previous convictions, most of which are for dishonesty offences. In 1992,}

however, you were convicted of being in possession of cannabis and in 1994 for selling cannabis. Then in 1999 you came before the Court again, this time on charges of being in possession of LSD and methamphetamine. Then in 2001 you were convicted of being in possession of cannabis oil.

[11] The most relevant previous conviction for present purposes occurred in 2008, when you received a sentence of 12 months imprisonment on a charge of being in possession of cannabis for supply. That sentence was imposed in the District Court and you appealed against it to the High Court.[2] I have read the judgment of the Judge who sat on the appeal, and it is clear from that that you were found in possession of a considerable quantity of cannabis on that occasion. The police had

found 232 grams of cannabis in your vehicle. The sentencing Judge had taken a starting point of 18 months imprisonment and reduced that to an end sentence of 12 months imprisonment. On appeal, Panckhurst J said that that sentence was “unimpeachable”.

[12] The concerning feature about the present offending, Ms Lambess, is that it occurred relatively shortly after you had been released from prison on the earlier occasion. Of equal concern is the fact that you had successfully completed drug counselling and treatment as part of your parole conditions after your release from prison. One would have expected, therefore, that you would have been reluctant to get involved in drug dealing, particularly in drug dealing at this level so soon after completing treatment for this very issue.

[13] For this reason I accept the submission from the Crown that an uplift must be applied to reflect the fact that you have offended again. This is not to penalise you again for your earlier offending. Rather, it means that you have elected to offend again in circumstances when you know what will happen if you are caught. You knew that a sentence of imprisonment was likely, but you decided to take that risk for the commercial gain that the sale of cannabis gave you. This adds a more serious

_{element to your offending, and an uplift is required.}

[14] The Crown submits that an uplift of up to 12 months is required. I consider that that is too high, having regard to the starting point that I have selected. It would be an uplift of more than one-third. I consider, as does your counsel, that an appropriate level of uplift in this case is one of six months.

[15] This leads me to an end starting point of three years imprisonment.

Mitigating factors

[16] I now need to consider the extent to which I should reduce that sentence to reflect mitigating factors personal to you. Here I identify two. The most significant, of course, is the fact that you pleaded guilty at a very early stage. You appeared for the first time in the District Court on 16 August 2011, when you were remanded without plea. You then appeared on 13 September 2011, when you entered your guilty pleas. You have therefore saved the State the very considerable cost of preparing for a defended hearing. You have also acknowledged your responsibility at a very early stage.

[17] In a case called Hessell v R the Supreme Court indicated that sentencing Judges must view the discount to be given to a guilty plea having regard to all the circumstances.[3] It rejected the previous approach to sentencing in which a discount of a nominated amount was automatically given depending on the stage at which the plea was entered. The Supreme Court indicated that where conviction is inevitable, a lesser discount may be given for a guilty plea. In this case, of course, you had little

hope of defending the charge given the quantity of cannabis and the cash that was found in your possession.

[18] For that reason the Crown submits that a starting point of 20 per cent is appropriate. That is against the backdrop of a further comment by the Supreme Court in Hessell to the effect that the maximum discount to be given to a guilty plea

_{is one of 25 per cent.}[4]

[19] Your counsel contends that a discount of 25 per cent is warranted. I have reached the conclusion that I should give that level of discount, principally because you pleaded guilty at such an early stage and this meant that the prosecution had to do very little to prepare the case for final disposition. Such an early acceptance of responsibility should, in my view, be met with the maximum discount available.

[20] In cases involving drug dealing, the Court is constrained from having regard to any great extent to personal circumstances. Nevertheless, in your case I am prepared to allow a further small discount to reflect the fact that you have many good qualities. These are reflected in the references that are before me. You have had your own issues, but despite these, you have engaged extensively in volunteer work and this has been of considerable assistance to other people. I propose to recognise that fact by deducting a further two months from your sentence.

[21] Your counsel submits that you are now approaching a level of maturity in relation to your drug offending that should enable you to cease your involvement with drugs. I have to say that that is not borne out by the fact that you offended so soon after being released from prison. The only way in which you can now demonstrate that you are truly committed to rehabilitation is by staying away from drugs in the future. If you continue to offend, then unfortunately, the sentences will simply become longer and you will spend greater periods of time in prison. I am not prepared at this juncture to reduce your sentence further to reflect efforts of rehabilitation.

[22] Furthermore, even if your sentence had been one of two years imprisonment or less, I would not have been prepared to consider a sentence of home detention. You must now be regarded as a recidivist offender, and the Court of Appeal has made it clear on numerous decisions that a sentence of home detention is likely to be inappropriate in cases involving drug dealers.

[23] In addition, your offending cannot by any means be described as being at the lower level. In a case called R v Hill[5] the Court of Appeal indicated that sentences of

home detention would generally only be considered in drug-related cases where offending was at a low level.

Sentence

[24] On each of the charges to which you have pleaded guilty you are sentenced to two years one month imprisonment.

Forfeiture

[25] I make an order for the forfeiture of the cash that was found in your possession.

_{[26] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

S K Green, Hamilton

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

[2] Lambess v New Zealand Police cri-2008-419-88, 26 November 2008.
[3] _{Hessell v R [2011] 1 NZLR 607 at [73]-[74].}
[4] At [75].

[5] R v Hill [2008] NZCA 41.