EDITORIAL NOTE: NO SUPPRESSION APPLIED.
IN THE DISTRICT COURT
AT TAURANGA
CRI-2015-070-001624
[2017] NZDC 3143
THE QUEEN
v
ANTHONY NELSON EKINS
Hearing:
17 February 2017
Appearances:
N Batts for the Crown
M Ryan for the Defendant
Judgment:
17 February 2017
NOTES OF JUDGE T R INGRAM ON SENTENCING
[1]
Mr Ekins, you are 44 years old, you are here to deal with sentencing in
relation to a single charge of possession of Class A drug, namely methamphetamine,
for supply and two charges of possession of cannabis for supply.
[2]
On 15 April a search warrant was executed at your property and a large
amount of dried cannabis leaf material was located, totalling 2.767 kilograms. I
accept that that was what is known as “cabbage” and was likely to be used for other
purposes than sale in that form.
[3]
There were 10 snap lock bags located in a hiding spot and there were
266 grams bagged up in ounce lots. Your bedroom had a backpack with another
snap lock bag which contained 24 grams, approximately an ounce.
R v ANTHONY NELSON EKINS [2017] NZDC 3143 [17 February 2017]
[4]
You were entirely straightforward with the police, accepted everything
belonged to you and you claimed that it was all for your personal use. You were
given bail and on 30 July the police executed another warrant at your property.
Upstairs the police found a substantial quantity of methamphetamine. I will not
detail all the various ways it was bagged up, suffice it to say that there was some
five grams in one bag and there were several other bags, one of which contained
2.6 grams of methamphetamine, another bag with 11 grams of powder but only
8.5 grams of methamphetamine.
[5]
There were two other small bags containing 582 and 338 milligrams of
methamphetamine. The methamphetamine appears to have been cut with some other
substance.
Downstairs in your master bedroom there was 162 grams of loose
cannabis leaf and a vacuum-sealed bag with 101 grams of cannabis head material.
[6]
Your property had a live video screen showing a feed of the front of your
road. You claimed in evidence that that was for watching the children and I mean no
disrespect to you, but the jury laughed at that and so did I, it was just ridiculous.
This was clearly a drug dealing operation and that is a standard part of drug dealing
operations these days.
[7]
You were arrested and taken to Court. You were not very well searched by
the police because it took until the following day for the custody staff to locate
$2772 in cash on you. You have been in Court plenty, you have got six prior pages
of convictions, none of them involving anything like the seriousness of these
matters. There are eight charges of possession of cannabis, three for possession of
methamphetamine and there are nine charges involving non-compliance with
community-based sentences.
[8]
Put shortly, at this point, Mr Ekins, you have not been making anything like a
serious effort at getting on a living a decent life, looking after your family and
staying out of trouble. You have been getting into plenty of trouble and this is the
kind of thing that you have got yourself in to.
[9]
I note from the pre-sentence report that you enjoy support from other people
and surprisingly that includes the officer in charge of this particular case,
Detective Harris. He is a local drug squad detective who appears regularly in front
of me and I hold his opinion in high regard. I take into account the fact that he
thinks you have been making an effort and that weighs with me.
[10]
The probation report says you are a medium risk of further offending and
deals with home detention but home detention is not a practical option given the
length of sentence I consider I have to impose today. The Crown have asked for a
sentence of three to three and a half years for the methamphetamine and an uplift of
18 months to two years for the cannabis. That would produce an end sentence in the
range of four and a half and five years.
[11]
On your behalf, Mr Ryan has submitted that three years would be appropriate
for the methamphetamine.
He is suggesting that something in the order of
18 months should be imposed as an uplift, together with a further three months for
the fact that the methamphetamine and second lot of cannabis offending occurred
whilst you were on bail in relation to a drug dealing charge on cannabis.
[12]
The leading cases are well known, R v Fatu 1 applies to the
methamphetamine, this is clearly a band 2 case and the total of methamphetamine is
something in the order of 17 grams. Mr Ryan and the Crown accept that this falls
towards the lower end of band 2 and three years seems to be generally agreed
between them as being an appropriate starting point.
[13]
As far as the cannabis is concerned, this is clearly category 2 and the
suggestion is that this should be something in the order of two years for a starting
point, perhaps as low as 18 months on a totality basis.
The authorities are
particularly clear and R v Terewi 2 sets out a principle which is well known in this
area of sentencing that offenders’ personal circumstances are not usually of much
significance for offenders in category 2. That means I cannot put much store on your
personal circumstances.
1
2
R v Fatu [2006] 2 NZLR 72 (CA)
R v Terewi [1999] 3 NZLR 62 (CA)
[14]
I want you to understand that your family were there throughout the trial, I
saw them, and I understand that losing you to a prison sentence for a period of time
is going to be hard on them but you need to understand that you are the one that put
them in that position. People who fool around with substantial amounts of drugs are
going to get substantial prison sentences. I have every sympathy for you and your
family, but you need to understand that cuts absolutely no ice when it comes to
imposition of the sentence.
[15]
At your age and stage in life you need to start thinking hard about changing
your ways. You either get away from the drug scene or your family is simply going
to be losing you again for longer and longer periods. That is a matter for regret but it
is entirely in your hands.
[16]
The Sentencing Act 2002 requires me to hold you accountable for what you
do and promote a sense of responsibility in you. I need to denounce your conduct,
deter you and others and protect the community with a sentence I impose.
[17]
I accept unreservedly that you had a longstanding habit of consuming
cannabis, I consider that you need rehabilitation and that is a matter that the
Parole Board can explore with you in due course. This is serious offending of its
type, it falls generally towards the lower end within the constraints that I already
mentioned. I need to be consistent with sentences imposed on others in similar
circumstances and unhappily the least restrictive outcome that is appropriate is a
sentence of imprisonment here.
[18]
Two of these offences occurred whilst you were on bail, there is substantial
harm which results from people dealing methamphetamine in this community and I
need to take account of that. It is obviously premeditated behaviour and you have
been in a lot of trouble over a long period of time, with drugs and with other things,
and you know better than to be behaving like that.
[19]
I am satisfied on the basis of the applicable authorities and statutory factors
that in these circumstances a sentence of imprisonment is required and that no
sentence less than imprisonment could ever be appropriate for the seriousness of this
offending.
[20]
I take a starting point of three years for the methamphetamine. It seems to
me that an appropriate starting point for the cannabis would be 18 months.
I
consider there should be a six month uplift to reflect the fact that both the
methamphetamine and the second lot of cannabis offending occurred whilst you
were on bail on a drug dealing charge in relation to cannabis. Your prior record, in
my view, does not justify any uplift. I see no reason to apply any discount in relation
to you.
[21]
The position, as far as I am concerned, Mr Ekins, is that you need to have an
answer for the Parole Board when you see them which will not be too far away and
the first question you will be asked is, “What has changed while you are in here?”
Detective Harris has pointed the way, you need to get your act together and arrange
to do a full-time residential drug rehabilitation course and you need to be ready for
that with the Parole Board when you see them.
[22]
If you are ready with that when you see the Parole Board they may well be
willing to help you with the rehabilitation that you so desperately need but unless or
until you are prepared to take your own drug addiction into your hands and make a
determined effort to get away from it, I regret to say it is unlikely that either the
Parole Board or in future if you offend, the Courts are going to have much sympathy
with a man of your age coming before the Courts repeated on offending of this kind.
The matter is entirely in your hands.
[23]
Doing the arithmetic, I take a starting point of three years and add to that an
uplift of two years for the cannabis, the appropriate sentence is one of five years.
[24]
Accordingly, on the methamphetamine charge you will be convicted and
sentenced to five years’ imprisonment.
[25]
On the cannabis charges, both of them, you will be convicted and sentenced
to two years’ imprisonment to be served concurrently with the methamphetamine
charge.
[26]
I accept that the quantity of cash found and the circumstances in which it was
found, I justify its forfeiture. There will accordingly be an order for destruction of
the drugs and forfeiture of the $2742 cash that was found on you.
[27]
Net result for you today, Mr Ekins, is five years’ imprisonment and there is a
forfeiture order in relation to drugs and the cash.
T R Ingram
District Court Judge