R v Albert

[2016] NZHC 241

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-057-001428 [2016] NZHC 241

THE QUEEN

v

ARNOLD ALBERT

Hearing:	23 February 2016
Appearances:	J Pridgeon for the Crown PHH Tomlinson for the Defendant
Sentencing:	23 February 2016

SENTENCING NOTES OF WOOLFORD J

Solicitors:           Crown Solicitor, Manukau

Counsel:            PHH Tomlinson, Auckland

R v ALBERT [2016] NZHC 241 [23 February 2016]

Introduction

[1]      Mr Albert, you have pleaded guilty to one charge of supplying the class A controlled drug methamphetamine.1    The charge is representative and encompasses numerous instances of supply.   The maximum penalty for this offence is life imprisonment.2

Facts

[2]      There is no dispute about the facts on which I am to sentence you.

[3]      Your offending came to light as a result of a police operation code named “Operation Cesium”.  The operation began in 2013 and targeted the sale and supply of methamphetamine in Wiauku, Pukekohe and other South Auckland communities.

[4]       The principal target of the operation was an associate of yours, Ms Catherine Norton.   In the period between 13 November 2013 and 8 May 2014 Ms Norton acquired large quantities of methamphetamine.  Your role involved making regular, often daily, purchases of one or two grams of methamphetamine from Ms Norton. You then divided these into smaller dealing amounts before on-selling them to other persons including your family, associates, and on a number occasions an undercover police officer.

[5]      Mobile phone records obtained by the police demonstrate that you purchased about 98 grams of methamphetamine from Ms Norton during the period of your offending.  The quantity that you re-sold or supplied to others is agreed to be about

80 grams.

[6]      In general, you supplied the methamphetamine in tenths of a gram or points, or on occasion, in half gram quantities. The biggest supply that you made was a one- off supply of seven grams to an undercover police officer.  I accept, however, that in

general, you were dealing in small amounts as a low level supplier or street dealer.

1      Misuse of Drugs Act 1975, s 6(1)(c).

2      Misuse of Drugs Act 1975, s 6(2)(a)

Such dealing is by definition, commercial, but you yourself were not making any significant profit.  I will assess your culpability on that basis.

Personal circumstances

[7]      I will also consider your personal circumstances.

[8]      You are 51 years old.  You have 12 previous convictions dating back to1979. The most relevant of these are your convictions for possessing methamphetamine in

2013 and possessing cannabis and stimulants in 2012.  However, all of your previous offending has been at a low level and you have never before served a term of imprisonment.

[9]      You  used  to  be  a  member  of  the  Black  Power  gang,  but  informed  the Department of Corrections in your interview for this sentencing that you had handed in your patch about 10 years ago.

[10]     It is clear that you have struggled with addiction to methamphetamine and other drugs.   This has been identified by the Department of Corrections as contributing to your offending.   Since your arrest on the current charge you have made efforts to rehabilitate yourself.  In January 2015, you were released on bail to attend a residential treatment programme at Raukura Hauora O Tainui in Weymouth. You successfully completed that programme, and I have this morning received a report in complimentary terms about your progress.   You continue to attend AA meetings.  You appear to be doing well.  You say that you have now set goals for yourself,  including finding  employment  and  being  a better  role model  for  your children and grandchildren.   These are important and positive steps.   The report prepared on you by the Department of Corrections considers that you will likely need further intervention to sustain this change.  I hope, Mr Albert, that you will take advantage of any future programmes available to you to continue your rehabilitation.

[11]     You have five children and nine grandchildren.   Your partner, Ms Hoeta, became involved with your offending as you were living together during that period. She is now working hard to support your daughter, who I understand has suffered a loss.

[12]     I have also been assisted today by a handwritten letter from you, Mr Albert, and I accept that you are showing real remorse and are keen to become a better role model for your whanau.

Approach to sentencing

[13]     In sentencing you, Mr Albert, I am going to adopt a three stage approach.3

First, I will set a starting point based on the features of the offending itself and taking guidance from previous cases.  Second, I will adjust this starting point based on any aggravating or mitigating features in your personal circumstances.   Third, I will consider the appropriate discount for your guilty plea.

[14]     Throughout  this  process  I have regard to  the  purposes  and  principles  of sentencing set out in ss 7 and 8 of the Sentencing Act 2002.  These include the need to impose a sentence that denounces your conduct, promotes accountability, and deters others from engaging in similar behaviour.  At the same time, I must bear in mind the need for rehabilitation and the principle that I should impose the least restrictive outcome appropriate in your circumstances.  Finally, I will need to ensure consistency both with similar cases generally, and with any of your co-offenders in particular.

Starting point

[15]     I begin then by considering the appropriate starting point.

[16]     The guideline judgement for the supply of methamphetamine is R v Fatu.4   It states  that  supplying  quantities  of  methamphetamine  between  five  grams  and

250 grams,  should  attract  a  starting  point  of  between  three  and  nine  years imprisonment.  The amount you supplied falls in the middle to lower range of that band.

[17]     The Crown submits that the starting point should be in the vicinity of five years imprisonment.  Mr Tomlinson, on your behalf, contends that a starting point of

3      R v Taueki [2005] 3 NZLR 372 (CA) and Hessell v R [2010] NZSC 135.

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

four and a-half years would be appropriate.  He emphasises that, although you were a regular dealer, your operation was not sophisticated or large scale.   Rather, you supplied small quantities, primarily to finance your own addiction to methamphetamine.

[18]     Counsel have also assisted by referring me to a number of comparable cases.5

[19]     Having considered the authorities and arguments advanced by counsel, I have decided that the appropriate starting point for your offending is four and a half years imprisonment.

Adjusting the starting point

[20]     I turn now to consider your personal circumstances.

[21]     As I have said, you have a number of previous convictions, some of them drug related.  Given that they are all for very low level offending, I am not going to increase the starting point.  However, your criminal record prevents me from giving you any discount for previous good character.

[22]     Mr Tomlinson  seeks  discounts  for  you  on  two  other  grounds.    First,  he submits, you should have a discount for your efforts at rehabilitation and, second, for the time you spent on restrictive bail.

[23]     The Courts have acknowledged in a number of cases that a discount may be appropriate for significant efforts at rehabilitation despite the emphasis on deterrence in class A drug dealing.6    Mr Tomlinson makes the point that due credit for your efforts at rehabilitation are important to encourage not only you, but also other offenders to break the cycle of addiction.

[24]     I take into account, therefore, that you have successfully completed a full residential programme and that you appear motivated to change your life.   I am

5      R v McGarry [2015] NZHC 1368; R v Waddell [2013] NZHC 3339; R v Oldeman [2013] NZHC

1709; R v Wilkie HC Wellington CRI-2006-063-775, 26 May 2006.

6      R v Hill [2008] NZCA 41 at [37]; R v Rawiri [2011] NZCA 244 at [19]-[23]; R v Waddell, above n 5, at [18].

persuaded that this is deserving of recognition, and I will reduce the starting point by

15 per cent, or eight months imprisonment.

[25]     You were granted bail in January 2015 to enter the residential programme where you were generally subject to a 24 hour curfew except when accompanied by a staff member.  You finished the programme in July 2015 and have since remained subject to a 24 hour curfew at your bail address.   Being on bail allowed you to receive treatment and  rehabilitation, so  I am  mindful not  to give  you a double discount.   Nonetheless, I am satisfied that your sentence should be reduced by a further  four  months  imprisonment  to  reflect  the  time  that  you  have  spent  with

considerable restrictions on your liberty.7

[26]     Together, these personal factors bring your sentence to three years six months imprisonment.

Guilty plea discount

[27]     The final issue for me to decide is what discount you should receive for your guilty plea.   You entered your plea of guilty on 22 December 2015.   This was a considerable  period  after  you  were  charged.     However,   I  take  account  of Mr Tomlinson’s submission that discussions with the Crown as to the amount of methamphetamine supplied and the number of charges to be brought have been ongoing since early last year.  Your plea has also saved considerable expense in what could have been a lengthy trial involving a large number of witnesses.   In light of these factors, I will allow you a further 20 per cent discount.  This results in an end sentence of two years and nine months imprisonment.

Sentence

[28]     Mr Albert please stand.

[29]     On the charge of supplying the Class A controlled drug methamphetamine you are sentenced to two years and nine months imprisonment.  You will be eligible

7      Cases where discounts were given for time spent on restrictive bail include R v Beckham [2012] NZCA 603; R v Cristia [2008] NZCA 19; R v Tamou [2008] NZCA 88.

for parole after serving a third of your sentence and the Parole Board, no doubt, will have regard to the real efforts you have made to rehabilitate yourself.

[30]     You may stand down.

……………………………….

Woolford J