Donaldson v Donaldson

[2015] NZHC 3093

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-088-1927 [2015] NZHC 3093

THE QUEEN

v

SHANE KARL RAYNOR LEGG

Hearing:	4 December 2015
Appearances:	M B Smith for the Crown C Muston for the Defendant
Date:	4 December 2015

SENTENCING REMARKS OF THOMAS J

Solicitors:

MWIS, Whangarei.

Counsel:

C Muston, Whangarei.

R v SHANE KARL RAYNOR LEGG [2015] NZHC 3093 [4 December 2015]

[1]      Mr Legg, you appear for sentence today having pleaded guilty to one charge of possessing methamphetamine for supply, the maximum penalty being a sentence of life imprisonment.

Facts

[2]      The amount of methamphetamine located at your home was 2.5 grams.

[3]      The facts are as follows.  Early in the morning on 22 July 2014, the Police executed a search warrant at an address where you were residing in Whangarei. There was some delay before anybody came to the door causing the Police to enter by force.   Present at the address were you, your co-offender, Mr Kingi, who has already been sentenced, an associate of you both and your parents.

[4]      In your bedroom, the Police located a CCTV camera surveillance system. The monitor showed a split level screen with four different camera views of the rear, the rear deck, driveway and front yard of the property.   The Police analysed the surveillance footage which showed numerous visitors arriving and leaving the address.

[5]       In their search of the lounge area, the Police located a plastic bag.  In that plastic  bag  were  three  separate  pouches  or  containers,  each  containing  a  small amount of crystals.  There were also seven new unused small plastic snaplock bags. Furthermore, the Police located in that same plastic bag two straws, an empty plastic bag, and a used glass pipe (commonly used for smoking methamphetamine).

[6]      The ESR conducted an analysis of the crystalline substance located in the pouches and bags to which I have referred.  In the first was a substance commonly used as a cutting agent by methamphetamine dealers weighing six grams.   In the second, was 250 milligrams of a substance containing methamphetamine and in the third, 2.2 grams of a substance containing methamphetamine.

[7]      In the lounge area, the Police also located a set of sensitive digital scales capable of weighing parts of a gram consistent with the distribution of methamphetamine.  In your wallet was approximately $1,800 in cash.

[8]      In your bedroom, the Police located another glass pipe commonly used to smoke methamphetamine and a second set of digital scales.  In the lounge area, the Police also found a number of empty unused snaplock bags and a number of bags containing what appeared to be methamphetamine residue.

[9]       I have already referred to Mr Kingi, who was at your address that day.  He pleaded guilty and has been sentenced to six years’ imprisonment on charges of possession of methamphetamine for supply and unlawful possession of a firearm and ammunition.

Personal circumstances

[10]     I turn to your personal circumstances, Mr Legg.  I have read the pre-sentence report and a letter from your mother.

[11]     The pre-sentence report writer says that you said the following:

Just over three years ago the police broke my neck. A friend came to see me in hospital and we started hanging out quite a bit and eventually I started smoking methamphetamine with him.  Time passed and I ran out of money to pay for my drug habit.  I started selling but it was pretty close to the time when the Police raided the house, two weeks, if that.

[12]     I understand from Mr Muston that you dispute you told the pre-sentence report writer that you had been selling about two weeks prior to your arrest.

[13]     The report writer says that you lay a significant portion of the blame for your offending behaviour and subsequent substance use at the feet of the Police.   The writer of the report assesses your risk of harm to the community as low, basing that partly on your current and previous offenses, long term substance use and what the writer describes as your poor decision making.

[14]     You meet the criteria for the departmental short rehabilitative programme.  It is recommended that you attend an assessment with Community Alcohol and Drugs Services (CADS) and attend any counselling or programme as recommended as a result.

[15]     The report writer says that, while you accept responsibility, you appear to have little insight into the offending behaviour and often use your injury as a justification for your actions.

[16]     It is noted that you intend to return to your parents’ home in Ruawai in Northland upon release.  You have a close relationship with your parents, who are here to support you today.

[17]     Prior to your neck being broken, you were studying at the Eastern Institute of Technology, studying construction and building.  Since your injury, you have been unable to work and on an Invalids’ Benefit.  You acknowledged to the report writer that, prior to your arrest, your friends were coming around, wanting to get high. You noted that they all live in the Whangarei area and none live close to your parents’ address.

[18]     The report writer says you display an antisocial attitude combined with a sense of entitlement, discussing how hard your life has been and that you struggle to go anywhere.   In that regard, I acknowledge your very poor physical health and I have seen from the material submitted to the Court by Mr Muston, on your behalf, extensive evidence of your physical condition.

[19]     In respect of your drug use, you said that you had been using about four grams a week consistently up to your arrest. You said your addiction got worse but it happened slowly and you did not think at the time you had a problem.  Jail has been a sobering experience for you, you say.

[20]     In respect of your physical condition, your neck was broken about three and half years ago.  Since then, you have suffered nerve damage, resulting in the loss of

hand movement on your left hand side. You will have further surgeries over the next

12 months to correct damage to your throat.

[21]     I have referred to the letter I received this morning from your mother.  She talks about how much she and her husband have endured since your accident and how she watched you fight for your life.   She says that she allowed you to have friends visit more often than they should have and acknowledges the contribution that made to the situation in which you are today.  She misses you.  She accepts you lost your way and she wants you home so she can help you, take care of you and show you that life is not always hard but it is, she says, only as hard as you make it. She describes you as a kind soul, saying you help people, give them money and cars. She warned  you  about  what  your  friends  were  up  to  but  you  did  not  seem  to understand it at the time.

[22]     Those are your personal circumstances.  I will refer to some other material in connection with your situation when I address Mr Muston’s submissions on your behalf.

Prior convictions

[23]     You do have relevant prior convictions.  You were sentenced in 2010 on a charge of possession of cannabis for supply.   You were sentenced to 11 months’ home detention.

[24]     The  Crown  also  refers  to  what  the  Crown  submits  is  evidence  of  your previous involvement in methamphetamine.   By that, they refer to some proposed propensity evidence which would have been led should the trial have proceeded.

[25]     The Crown does not really take it any further than that but simply asks the Court to bear in mind that you do not come to this Court without a history of prior involvement with methamphetamine.

Submissions

[26]     It is accepted by both the Crown and defence counsel that your sentencing falls to be considered under the Court of Appeal decision of R v Fatu.1    You fall within band one, categorised as low level supply, less than five grams, where a starting point of two to four years’ imprisonment is the range stipulated by the Court of Appeal.

[27]     The Crown accepts you fall within the lower end of that range and submits, therefore, a starting point of two to two and half years’ imprisonment.

[28]     The Crown  refers to  the other drug dealing  paraphernalia  found at  your address on the day of the search warrant to which I have already referred.

[29]     Mr Muston, on your behalf, accepts the starting point.   He refers to the extensive material lodged with the Court about your serious medical condition and asks that you should have that recognised so far as the impact on you of your time in prison is concerned.   That is, that a time in prison would be more severe on you given your particular physical difficulties.

[30]     The defence also refers to the courses you have already undertaken while you have been remanded in custody.  Mr Legg, you have completed a significant number of courses including anger management, learning self control, and alcohol and drug intervention courses.  I commend you for your participation in those various courses.

[31]     The prison authorities agree that you have been a compliant prisoner and, indeed, a role model and you have worked hard to maintain that stance.

Assessment of starting point and sentence

[32]     Mr Legg, in sentencing you, I need to hold you accountable for the harm done to the community by methamphetamine offending.   To make sure that you accept responsibility for that, to denounce the conduct, deter others, and to assist in

your  rehabilitation.     I  have  considered,  as  indicated,  the  case  law  to  ensure

1      R v Fatu [2006] 2 NZLR 72 (CA) at [34].

consistency in sentencing so that others sentenced for similar offending receive a similar outcome.

[33]     I  must  impose  the  least  restrictive  outcome  and  take  into  account  your particular circumstances which might mean that a sentence would be disproportionately severe, bearing in mind those circumstances.

[34]     The  aggravating  factors  of  the  offending  are  clearly  the  harm  to  the community involved in methamphetamine offending; the premeditation inherent in the charge; and the clear commerciality of your possession of the methamphetamine as emphasised by the drug dealing paraphernalia located at your address.

[35]     In  the  circumstances,  I  take  a  starting  point  of  two  and  half  years’

imprisonment.

[36]     I take note of your prior convictions but do not impose an uplift in the circumstances.

[37]   In mitigation, I acknowledge that a sentence of imprisonment will be disproportionately severe given your significant physical health challenges.   I also give you credit for the rehabilitative steps you have taken while you have been remanded in custody.  That reduces the starting point to 26 months’ imprisonment and, from there,  I give  you  full credit for  your guilty plea resulting in an end sentence of 20 months’ imprisonment.

[38]     I have given careful consideration as to whether I should impose special conditions on your release from prison, directed principally at ensuring that you continue the steps you have already taken to cease your drug use.   I do, however, take note of the physical challenges you face.  I have heard this morning that there is a meeting scheduled in December involving four medical specialists which will discuss the operation you need.  Mr Muston says that the operation will take about

12 hours and I have no doubt that there will be a considerable recovery period and rehabilitation following that.

[39]     In the circumstances, and also given the area where you will be residing, I am not satisfied that it will be in the best interests of your rehabilitation to impose additional special conditions on release.   It seems to me inevitable that, given the extensive medical procedure you will have to undergo, if you are focused on proper recovery, you will follow the advice of the medical specialists and refrain from any involvement with illegal substances.

[40]     For  those  reasons,  I  do  not  intend  to  impose  any  special  conditions  on sentence.

Forfeiture

[41]     There are two other issues I need to deal with.   The Crown has requested forfeiture of $19,047 cash located at your address and $1,828.40 found in your wallet.  In respect of the $19,047, the Crown had applied for forfeiture of that money when Mr Kingi was sentenced.   The sentencing Judge noted that she would have made that order but for the fact that you had yet to be dealt with.  You do not dispute the forfeiture application by the Crown in respect of that sum so the $19,047 cash is forfeited.

[42]     The Crown asks for forfeiture of the cash found in wallet.  In respect of that, I need to be satisfied that the money was received by you in the course of, or consequent  upon,  the  commission  of  the  offending.    Because  you  have  been remanded in custody, your parents have been unable to access your bank account. You have asked for an opportunity to put evidence before the Court as to legitimate source of those funds.  I will allow you that opportunity and the matter will be called on 4 February 2016 at 10 am.  It would be helpful if counsel could hold discussions to see if the matter can be resolved in the interim.

[43]     If there is any question of remission of fines then that could be addressed at the same time.

Other charges

[44]     The last matter to be dealt with today is the withdrawal of the other charges. Mr Smith, you confirm that the Crown offers no evidence on the remaining charges and so the remaining charges are dismissed pursuant to s 147 of the Criminal Procedure Act 2011.

Sentence

[45]   Mr Legg, please stand.   Mr Legg, on the charge of possession of methamphetamine for supply, you are sentenced to 20 months’ imprisonment.

Thomas J