Dobbs v Police [2013] NZHC 656 (27 March 2013)

Last Updated: 11 April 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-22 [2013] NZHC 656

BRETT DOBBS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 27 March 2013

Counsel: T Aickin for Appellant

KB Bell for Respondent

Judgment: 27 March 2013

_{JUDGMENT OF PANCKHURST J}

[1] This is an appeal against a sentence of six months imprisonment imposed in relation to a charge of possession of cannabis for supply.

[2] On 12 August 2012 a search warrant was executed at an address in Stanmore Road. The appellant was present. He was found to be in possession of seven tinnie bags containing small quantities of cannabis and four snap-lock bags containing slightly greater quantities of cannabis. In all, the cannabis weighed 11.8 grams, hence, less than half an ounce. Mr Dobbs was also in possession of $110 in cash. When spoken to by the Police he said that he was selling the tinnies for $20 and the

_{snap lock bags for $40.}

DOBBS V NEW ZEALAND POLICE HC CHCH CRI 2013-409-22 [27 March 2013]

[3] He pleaded guilty to the possession for supply charge on 12 December, although there appear to be extenuating circumstances which explain any delay in the entry of the plea.

[4] Mr Dobbs who is aged 43 years, appeared before Judge Gittos in the District Court on 12 March for sentencing. The Judge noted in the course of his sentencing remarks that the appellant is a chronic alcoholic and also a recidivist offender. He was at that point also homeless and the pre-sentence report was very pessimistic. Mr Dobbs obviously suffers from alcoholism. He made quite despairing remarks to the Probation Officer, along the lines, he was beyond treatment, unmotivated to accept treatment, and that he appreciated his life expectancy was not great.

[5] The Judge noted that the recommendation in the report was to make an order that he come up for sentence if called upon. Judge Gittos considered that this failed to recognise the seriousness of dealing in cannabis. He went on to say this:

If you had a home address to which the Court could reliably send you for a sentence of home detention or community detention and if in the course of a sentence of that kind you were minded to do something to address your alcoholism then a sentence of that sort might well be appropriate, but that is not available. It does not appear to be available in the short term if ever.

It seems to me that in order to meet the needs of deterrence and denunciation and in order to try and do something to help you in terms of your health if you will not take any steps yourself the best course the Court can adopt is to impose a sentence of imprisonment which is an appropriate response for this sort of offending and may have the effect of making some positive improvements in your health at least in the short term with the colder months coming on.

Hence, without further elaboration a sentence of six months imprisonment was imposed. No special release conditions were added because the Judge thought that would be a pointless exercise.

[6] Ms Aickin in support of the appeal has advanced a number of matters. These include that the Judge took into account irrelevant considerations, that he did not adequately consider the sentencing hierarchy and treat imprisonment as a sentence of last resort, and that in any event a sentence of six months imprisonment was clearly excessive for this offending, given the jurisdictional limit of 12 months imprisonment that applied in this case.

[7] I accept that the passage from the sentencing remarks to which I have referred does indicate that the Judge was in part at least, influenced by the consideration that some time in custody would be a good thing, in that it would distance the appellant from consumption of alcohol and provide him with a bed during the winter months.

[8] I agree that these were factors which could not properly influence the sentencing process, other than in the sense that where competing options have to be considered, plainly enough, an offenders approach to life and to rehabilitation is a relevant consideration. However, approaching the matter without those considerations in mind, I am not persuaded that the sentence imposed was clearly excessive. As Ms Bell rightly said, the jurisdictional limit of 12 months imprisonment is a bar and does not prevent the normal approach to sentencing having application.

[9] Even small scale cannabis dealing ordinarily attracts a sentence of imprisonment unless an offender presents as one who is worthy of a lesser sentence on account of the availability of rehabilitative initiatives, or there are some other features which warrant deviating from a sentence of imprisonment in favour of home detention and the like.

[10] To my mind, however, Mr Dobbs is not in that category. Whilst he is clearly a tragic figure, he also has an extensive list of previous offending, none of it drug related, and in addition he is not able to address his chronic alcohol problem. In those circumstances it seems to me inevitable that a sentence of imprisonment, as ordained in Terewi, was the only appropriate sentence.

[11] Initially I was of a mind to revisit the sentencing exercise, in a more conventional way and ask whether a starting point of say eight months imprisonment could have been arrived at and whether, after allowing a discount for the plea, six months remained within the available range.

[12] On reflection however, and in light of Ms Bell’s submission, it seems to me that six months was clearly an available sentence in light of the Court of Appeal

guidance. It may be a first offence in relation to drugs, but it is not in my view a sentence which was either inappropriate or clearly excessive.

[13] For these reasons, the appeal is dismissed.

Solicitors:

T Aickin, Barrister

KB Bell: [e-mail]