R v Reid [2014] NZHC 426 (11 March 2014)

Last Updated: 15 April 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-090-1734 [2014] NZHC 426

THE QUEEN

v

_{SCOTT DAVID REID}

Hearing:	11 March 2014
Appearances:	A Boberg for the Crown H P Retzlaff for the Defendant
Judgment:	11 March 2014

_{SENTENCE OF WOODHOUSE J}

Solicitors:

Ms A Boberg, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr H P Retzlaff, Waitakere Community Law Service, Henderson, Auckland

R v REID [2014] NZHC 426 [11 March 2014]

[1] Mr Reid, you may remain seated in the meantime. When I come to impose the sentence you will need to stand.

[2] As you know, you are to be sentenced for four offences to which you pleaded guilty. These are offences against the Misuse of Drugs Act relating to the class C controlled drug BZP which is an analogue, I understand, of the class B controlled drug ecstasy. The offences are supplying the drug between June and October 2011, offering to supply it between June and July 2011, conspiring with others to supply it between May and November 2011 and producing it between August 2012 and February 2013. I will come in a moment to that significant difference in dates.

[3] Mr Reid, as I mentioned to your counsel, these are serious offences and it needs to be acknowledged and emphasised at the outset that they are. The maximum penalty for those offences, other than the conspiracy, is 8 years imprisonment for a sentence imposed in this Court. The maximum penalty for the conspiracy is 7 years imprisonment. And you should reflect on that.

[4] I will need to explain the sentence to be imposed on you. I need to explain it particularly to you, but it also needs to be explained for the benefit of the community as a whole. But I do want to emphasise to you at the beginning – or make clear to you at the beginning – that the sentence I will impose is, in fact, one of home detention. I have said that so that you do understand at the outset. But I do want you please to listen to what I have to say.

Summary of facts

[5] Your offences were committed with at least three other men. The prosecution of the other men is proceeding, so what I am recording in relation to the others is what the Crown alleges, and what you have admitted in relation to your own offending.

[6] On the basis of the Police summary of facts to which you pleaded guilty, the principal offender in your group was [Mr D]. [He] got pills containing BZP, amongst other things (and I infer amongst other types of controlled drugs), from

gang members. [Mr D] then supplied these pills to you and your other co-offenders for on-sale.

[7] Between the dates referred to above – and I am simply summarising things:

(a) You supplied 447 pills in 23 transactions and in quantities ranging from one to 100 pills;

(b) You offered to supply 851 pills in 18 transactions in amounts ranging from two to 300 pills; and

(c) With others you conspired to supply 1,000 pills.

And I agree with the submission made by Ms Boberg, for the Crown, and I do infer that you do understand this Mr Reid, that what you supplied is dangerous.

[8] You were not arrested until March 2013. When your home was searched Police found a pill press with remnants of a powder, together with pills and other incriminating material. You admitted using the pill press on at least two occasions between August 2012 and February 2013 to produce what you described as ‘party pills’. You also admitted buying pills from people other than [Mr D]. The pills and powder contained the class C controlled drug methedrone, although the specific charge – which was amended over time – refers to BZP.

[9] The Crown has produced a copy of a brief an experienced police officer with information about the prices of class C pills. Based on this the Crown submits that the conspiracy related to pills with a value of up to $50,000 and the actual supply would have produced between $9,000 and $22,000. I will use this as a broad guide, to the extent that the value has relevance – and it does have relevance – but this information relating to class C, as opposed to class B, controlled drugs, was not in the summary of facts to which you pleaded guilty. And the wide range indicated for the actual sales suggests that the conspiracy may have related to a good deal less than the sum referred to by the Crown. And the Crown submission, in fact, says that it could have been up to that sum.

[10] I refer to these matters because in my assessment – and I will come to this again – the offending is what may be described as mid-level commercial drug dealing with class C drugs.

Personal circumstances

[11] I come to your personal circumstances, and they are important in your case.

[12] At the time of the offending you were aged between 22 and 23 years. You have no previous convictions, apart from a conviction for a minor driving offence in July 2008. And that offence has no relevance. To all intents and purposes you are a first offender. The pre-sentence report is a positive one. I have also received positive information in letters from your family and others.

[13] I will set the relevant personal factors in a summary way. (a) Firstly, your age – that is a mitigating factor.

(b) Secondly, the effective absence of any previous offending.

(c) Next, the probation officer said – and I quote:

Mr Reid displayed what appeared to be genuine remorse and a willingness to make amends. He also demonstrated insight into the factors contributing to his offending, including alcohol and drug addictions, associations with criminally minded peers and offending supportive entitlements.

(d) The likelihood of your re-offending is assessed as low.

(e) Your arrest for these offences has been what you described as a “wake-up call”. This can be accepted as genuine. And I hope that acceptance is well placed Mr Reid – and you have nodded to me that it is. It is consistent with the probation officer’s assessment of your remorse and willingness to make amends and it is borne out by your positive actions in seeking to free yourself from dependence on alcohol and drugs and in seeking to establish a constructive life for

yourself and your partner and the child that you are now expecting. The positive steps you have taken in relation to alcohol and drugs include attendance at CADs alcohol and drug courses. I have a letter from the CADs service in that regard.

(f) The next factor is that you say you have stopped associating with those who influenced your offending, including co-offenders. You are entitled I believe – given everything I have already referred to – to the benefit of the doubt in that regard, and that you will maintain that disassociation, which is plainly important. You have no gang affiliations and I mention that because of the apparent connection between [Mr D] and gangs who were the main suppliers to [Mr D].

(g) The next matter concerns your employment history. Until around Christmas 2013 you were working full time as a truck driver. For 2 years before that you were employed in an automotive business and there is a very positive reference from your manager at the time in that business. Since Christmas you have set up your own furniture moving business and, I understand, with two part time employees who are being trained to be drivers for your business. These are positive things, not simply for you but for the community.

(h) You and your partner, Ms Osborne, have been living together for over a year. And, as I mentioned earlier, you and Ms Osborne are now expecting your first child, due in July of this year. The probation officer spoke to Ms Osborne and it is plain that she is supportive of you.

(i) There is also strong support from your mother who, with Ms Osborne, is present in Court today.

[14] In relation to your offending it is apparent that you were fully co-operative with the Police and at least part of the evidence against you on the charge of

producing a controlled drug comes from your own admissions. It also does appear that you may have been influenced by associates at your gym.

Sentence

[15] Mr Reid, I now come more specifically to the sentence.

[16] I need to fix a starting point for this offending. A starting point is a preliminary assessment of the appropriate sentence having regard only to the circumstances of the offence or the offences. In essence, the relative gravity of the offences themselves. No account is taken at that point of your personal circumstances; they come in at the next stage.

[17] Mr Retzlaff, on your behalf, and Ms Boberg, for the Crown, referred in their written submissions to a Court of Appeal case called Terewi.¹ This case provides guidelines for starting points for dealing in and cultivating cannabis, which is also a class C controlled drug. Although that case was dealing with cannabis offences,

_{another Court of Appeal case says that the Terewi guidelines provide a useful}

reference point for class C offending such as yours.²

_{in a broad way.}

And that is what I have applied

[18] I have had regard to the submissions made on your behalf by Mr Retzlaff as to the starting point, and to the submissions for the Crown. I have considered the cases they referred to.³ I have also had regard to two other cases, and I will note

them in the written transcript of what I am now saying.⁴

[19] Ms Boberg submitted that the starting point should be between 4 to 4 ½ years imprisonment. Her oral submission was that it should be at least 4 years. This would put your offending at the top of what is called category 2 of Terewi or the bottom of category 3. It is relevant to state these things in sentencing you in terms of

_{the detail of sentencing. Category 2, in broad terms, relates to lower level}

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

² _{Fraser v R [2013] NZCA 250 at [12].}

³ R v Jethwa [2012] NZHC 2440; R v Vigneau HC Wellington CRI-2011-085-4047, 7 December

_{2011; R v Holden HC Timaru CRI-2010-076-463, 4 November 2010.}

⁴ R v Kamizona [2012] NZHC 2868.; and R v Day HC Hamilton CRI-2010-019-10271, 23 June

2011.

commercial production or dealing in class C drugs. The broad starting point is between 2 to 4 years imprisonment. Category 3 is for the most serious class of offending with a starting point generally of 4 years or more. I am satisfied that your offending does not come into the most serious class of offending – possibly by a long way.

[20] Mr Retzlaff submitted that your offending, and I quote, “lies comfortably in category 2 when all of the aggravating features are considered”. He submitted that the starting point lies within a range between 3 ½ to 4 years imprisonment.

[21] You are to be sentenced for four separate offences, but three of them are closely linked – supplying, offering to supply and conspiracy to supply. I am satisfied that the starting point for the supply and conspiracy to supply offences should be 3 years imprisonment – in other words in the middle of category 2. There must be some increase for the admitted offence of production. However, there is no evidence of the quantity produced. There is also some evidence that the pill press was not originally obtained by you to produce controlled drugs. You are entitled to the benefit of the doubt in relation to the relative gravity of this offending, and on that basis the starting point is increased to 3 years 6 months. I should make clear in that regard that increasing it by 6 months I am looking at the totality of the offending and not saying that the production offence, standing alone, would justify a prison sentence of only 6 months.

[22] I am satisfied that you are entitled to a substantial reduction in the sentence. Giving appropriate weight to the need for accountability, denunciation and deterrence, I am satisfied that other purposes of sentencing, and principles in s 8 of the Sentencing Act, justify a reduction of 15 months. Mr Reid, this is a reduction that some might regard as generous. I do not regard it as generous, but rather as a proper reduction to encourage you, as best as I can with a sentence, to stick to what you have indicated – and that is a pretty clear indication of a determination now to lead a constructive life and avoid any further offending.

[23] Ms Boberg submitted that no credit should be given for the effective absence of previous offences because of the frequency of the current offending. She referred

_{to an observation of the Court of Appeal in a case called Zhang.}⁵

_{Your credit for an}

effective absence of any previous offending is less significant than it might be if you were quite a bit older. You have offended at a relatively young age. However, I am satisfied that you are entitled to some credit for this and it is factored into the total of

15 months. The relevant circumstances in Zhang are quite different. In particular, there were seven distinct offences against seven different victims – and there were direct victims – over a prolonged period. In any event, you are entitled to the reduction for all of the positive factors earlier referred to, not just the absence of

_{previous offending.}

[24] This credit of 15 months reduces the starting point to 27 months imprisonment. You are then entitled to a further credit for your guilty pleas. The maximum reduction is 25%. Ms Boberg submitted that it should not be more than

15-20% because the guilty pleas were entered after you had sought a sentence indication and after bargaining to get another charge of participating in an organised group withdrawn. Ms Boberg referred to another case called Grace.⁶ The circumstances of the guilty plea in Grace are, again, quite different from your

_{circumstances. All of the relevant circumstances of your guilty plea need to be}

_{considered in accordance with a Supreme Court decision called Hessell.}⁷

_Having

considered the circumstances I am satisfied that your guilty pleas, although entered a considerable time after you were charged, were entered at the first reasonable opportunity. In particular, the original charges were for dealing in ecstasy, which is a class B controlled drug, but this was amended when ESR results came through much later. There were also technical difficulties, or technical complications, arising in relation to the sentencing indication you sought. You are entitled, having regard to what I have just referred to, to a reduction of 25%. This would result in a prison

_{sentence of 20 months.}

⁵ _{R v Zhang [2004] NZCA 83; (2004) 20 CRNZ 915 (CA) at 26.}

⁶ _{R v Grace [2013] NZHC 116 at [32].}

⁷ R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 (SC) at [61]-[62].

Home detention

[25] Because the prison sentence, if it were to be imposed, is 2 years or less, home detention can be considered. Mr Retzlaff submitted that there should be a sentence of home detention of 11 to 12 months together with a community work sentence.

[26] Having regard to the relevant provisions of the Sentencing Act and leading Court of Appeal decisions on home detention and on community-based sentences – and I will refer to them in the notes⁸ – I am satisfied that home detention of 12 months, together with community work, is the proper sentence in your case. What may be called the punitive elements of a sentence, relating to deterrence, accountability and denunciation, and which are definitely required, can be met in

appropriate cases with home detention. This has been made quite clear by the Court of Appeal when considering what Parliament has said in the Sentencing Act. These considerations then have to be weighed with countervailing considerations, such as rehabilitation, the least restrictive sentence appropriate to the case, and the personal and family background, amongst other things. These latter considerations are of some significance in your case, as I have already indicated, and are contained in the earlier summary. And one particular consideration which warrants some further emphasis is that you and your partner are expecting your first child in a few months. I am not wanting to suggest that that tips the balance, but it is not something to be overlooked, together with the positive steps you have taken, when considering in a broader way what is best for the community as a whole in relation to the sentence to

_{be imposed on you.}

_{Formal sentence}

[27] Mr Reid, those are the reasons that I have come to this conclusion. You should now stand.

[28] On each of the charges you are sentenced to home detention for 12 months and to community work of 200 hours.

⁸ R v Isofea [2008] NZCA 453; R v Vhavha [2009] NZCA 588; James v R [2010] NZCA 206, (2010) 24 NZTC 24,271; Manikpersadh v R [2011] NZCA 452; Tiplady-Koroheke v R [2012] NZCA 477.

[29] The sentence of home detention is subject to the special conditions during home detention, and special post-detention conditions, which are recorded on page 5 of the pre-sentence report, subject to one amendment of those conditions. This relates to the probation officer’s suggested condition relating to possession and consumption of alcohol and drugs. That should be amended so that the conditions are as follows:

(a) To abstain from the possession and consumption of any controlled drug.

(b) And secondly, to abstain from the possession or consumption of alcohol other than as may be approved by the probation officer and a counsellor at any alcohol counselling program attended by you.

[30] That is the formal sentence Mr Reid. It is now up to you to make sure that you do not come back.

_{[31] You should now stand down.}

Woodhouse J