R v D HC Auckland CRI 2007-092-8399

[2008] NZHC 1365

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-092-8399

THE QUEEN

v

D

Hearing:         2 September 2008

Appearances: R Reed for the Crown

N Cooke for Mr D 

Judgment:      2 September 2008

SENTENCE OF WOODHOUSE J

Solicitors:

Ms R Reed, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr N Cooke, Solicitor, Auckland

R V D HC AK CRI 2007-092-8399 2 September 2008

[1]      Mr  D    you  may remain  seated  until  I come  to  impose  a  formal sentence.   As I expect you will understand, I need to explain principally for your benefit but also for the benefit of the community, who have an interest in this, why I am about to impose a sentence I will impose.  I think it is appropriate to make clear at the beginning that I propose to impose a sentence of home detention, and I really do hope that I have made the right decision in that regard because it is a decision made to encourage you to take this opportunity, and it may be the last one you get, to avoid getting involved in any further criminal offending.  I hope you understand that. That is why I am saying that right up front.

[2]      In that regard it is proper to say that the submissions that Ms Reed has made for the Crown in relation to the possibility of home detention – the submissions which I think are quite properly made, and as you heard her say – this, many might think, is not a case for home detention.   So I wish to make that clear right at the beginning.

[3]      What I am proposing to do is outline the circumstances of your offending and the background so that it is understood from everybody’s point of view.

Facts

[4]      In  relation to the facts, on 5  February 2006  you  and  your  partner,  with another person, were at an address in Howick.  The Police arrived on an unrelated matter but interaction between you and the police officer led to your being searched.

[5]      You were found to be carrying a bag with 12.8 grams of methamphetamine, 7 ziplock bags containing methamphetamine residue, 40 new ziplock point bags, 11 other ziplock bags and $546 in cash.  There is no dispute about what was found, and I record there was a pre-trial hearing   with a considered judgment from another Judge relating to all of the circumstances of the search and your arrest.

[6]      In your discussion with the probation officer you said that you had purchased the methamphetamine for your own use and you were simply making a social visit to

a friend’s house in Howick.  You told the probation officer you did not agree with the Police summary of facts which records that you went to the address in Howick to carry out a methamphetamine deal.

[7]      Mr D  , your recent statement to the probation officer is contrary to your admission to the Police at the time that you were at the address to carry out a drug deal.  And your partner, Ms Wetini, told the Police at the time that she had gone to the address to assist you in a drug deal.  Now I know there may be some argument about some of the fine detail of that, but the essence is quite clear.  In addition, the residue of methamphetamine in 7 different ziplock bags, and the new ziplock bags, are inconsistent with your statement.

[8]      In this Court, as Ms Reed pointed out, on 9 July this year your counsel confirmed to the Court that you accepted the Police summary of facts.   I have discussed that in some detail to make clear that the sentence that I am imposing is made notwithstanding my clear view on those matters and you are not being given benefit of the doubt in relation to what you have recently said to the probation officer.  I think one of the critical things in all of this is for you to accept the reality of the offending if you are going to make a change.  Do you understand?

[9]      Of course, the simply reality Mr D   is that you pleaded guilty to possession of 12.8 grams of methamphetamine for the purpose of supply.   That is what you have admitted.

Personal circumstances

[10]     In relation to your personal circumstances, you and Ms Wetini have been in a personal relationship for approximately 11 years and you have been married since July 2007.   You have a 10 year old daughter and a 9 year old son.   You have acquired good technical qualifications in computing.

[11]     The  pre-sentence  report  indicates  that  you  recognise  the  harm  you  have caused to your family by this offending.  And I have already indicated, you also need

to  understand  the  serious  harm  caused  by  illegal  drugs  to  others  and  to  the community as a whole.

[12]     You have admitted being a heavy user of cannabis but only a recreational user of  methamphetamine.    You  say that  you  have  not  used  illicit  drugs  since February 2007 and you no longer want illicit drugs to be part of your life.   The probation officer assesses your risk of re-offending as moderate.  Against that – and I need to record – the probation officer has noted your poor record of compliance with community based sentences that have been imposed on you in the past.   So in imposing a sentence of home detention that is being done with knowledge of these matters and again I say Mr D  , I hope that you really will now take this opportunity.

[13]     You have 19 previous convictions as an adult and a further six as a youth. They are for a wide variety of offending, including driving offences, non-compliance with Court orders, violence  and dishonesty.    You  have never  served  a  term  of imprisonment, although you have been remanded in custody on the present charges. It is relevant to record in that regard that you have been in custody now for 9 months

– since December last year.

Purposes of sentencing

[14]     Coming more directly to the question of sentencing, the Sentencing Act sets out the purposes of sentencing which may be taken into account.  Those of particular relevance that I wish to emphasise to you are the need to hold you accountable for the harm your offending has done and will do if it is resumed, to make you accept responsibility for your actions – and I keep coming back to that Mr D  , you must accept responsibility – to denounce what you have done, and to deter you from offending again.  All of those things are important.  But it is also important to assist your rehabilitation so far as that is possible within the limits of the law which bind me..

Starting point

[15]     Under the Misuse of Drugs Act there is a presumption of imprisonment for the offence you have pleaded guilty to.  In determining a term of imprisonment, the first consideration is to fix what is called a starting point, taking account of all the circumstances of your offence, before considering any circumstances personal to you.

[16]     The starting point is based on a Court of Appeal decision: R v Fatu [2006] 2

NZLR 72 (CA).  In cases of possession of methamphetamine for supply where the quantity is between 5 grams and 250 grams, the starting point is between 3 and 9 years.   And that just by itself indicates how seriously these things are taken by Parliament and the community as a whole.

[17]     For the Crown, Ms Reed has submitted that the starting point should be between 3 ½ to 4 years.   On your behalf, Mr Cooke has not submitted a specific starting point, but he recognises, and he accepts, that the starting point is at that beginning point of 3 years imprisonment that is laid down for these offences.

[18]     In addition to looking at what that Court of Appeal case says, I am required to ensure, as far as that is possible, that the sentence imposed on you is consistent with sentences in broadly similar cases and take into account the other things that I have talked  about.   For this purpose  I have  considered sentences imposed in a number of other cases.  I am not going to read out their names but I will record them in the written copy of these sentencing notes.  [R v I’u (HC AK, CRI 2007-004-9815,

4 March 2008, Allan J), R v Wallace (HC HAM, CRI 2006-019-10117, 29 August

2007, Allan J), R v Hollingsworth (HC AK, CRI 2006-055-310, 26 April 2007, Harrison  J),  R  v  Williams  (HC  AK,  CRI  2007-044-005558,  6  May  2008, Winkelmann J), R v Riri (HC ROT, CRI 2006-063-3699, 16 May 2008, MacKenzie J) and R v Tahana (HC AK, CRI 2006-004-6234, 17 September 2007, Heath J).]

[19]     Taking into account the things I have discussed up to this point and giving emphasis to the question of rehabilitation I consider that the appropriate starting

point in your case is 3 years.  That is to achieve the balance that I have talked about –

and I will not repeat what I have said.

Personal circumstances

[20]     I am then required to increase or decease the starting point having regard to relevant personal circumstances.

[21]     The Crown accepts that your previous convictions should not result in any increase in the sentence of imprisonment, and I accept that that is correct.  Although I must say that list of convictions does you no credit.

[22]     You are entitled to a reduction  of  the sentence that  would  otherwise be imposed because of your guilty plea.  You entered a guilty plea as soon as a new indictment was presented.   This was after you had tested the Crown case by challenging evidence, as you were entitled to do.  The Crown accepted that you are entitled – as Ms Reed put it in her written submissions – to a “significant reduction”. I consider you are entitled to a substantial credit of one-third of the sentence that would  otherwise  be  imposed.    That  reduces  the  sentence  –  when  looking  at  a question of imprisonment – to 24 months.  And whether it was 24 months or whether it was a bit higher than that – and on the submissions for the Crown, it would be a bit higher – but at that point I am bound to consider home detention.  In your case I can consider home detention, even though the prison sentence might otherwise be around

2 years because your offending occurred in 2006.

[23]     The pre-sentence report recommends home detention.  It is proposed that, if there is a sentence of home detention, you serve it at a property owned by your mother and step-father in Paparoa, Northland.

[24]     I have to say Mr D   that the proposals in relation to home detention are perhaps not ideal.   Your mother and step-father are in full employment in Auckland.    They  have  advised  the  probation  officer  that  they  do  travel  to  the property regularly on a weekly basis, but the reality is that you would be without support for much of each week and largely left to your own devices.  You do not

have a very good record of complying with Court orders, both in terms of bail and failing to comply with community work.   So the sentence I am imposing is nevertheless being made with knowledge of these matters.

[25]     Against what I have just mentioned there are the positive statements in the pre-sentence report and positive support from your parents.   And I have received today indications, Mr D  , including from the Prison authorities, of what appears to be real efforts you are making to get your life back on track, and I think you are entitled to encouragement to continue with that, and I keep coming back to that.  But it does not deflect from the other side of this, and that is the need to impose a sentence which really does reflect how serious these sorts of things are.

[26]     The last aspect of this is that you have spent 9 months in custody and that is a penalty and, as I understand it, you have never been in prison before.  A period of home detention will be a further period of detention and one short only of prison.  If I impose, as I propose to do, a sentence of 10 months home detention one way of looking at it is that it is equivalent to 20 months in prison and you have also had an additional 9 months in custody.   But that 9 months will not be deducted from the period of home detention.

Final sentence

[27]     I will now impose the sentence.  If you would please stand.

[28]     Mr D  , on the charge of possession of methamphetamine for supply you are sentenced to home detention for a period of 10 months.  In addition to the standard conditions of home detention the further conditions specified in the pre- sentence home detention report are to apply.   And please comply with those conditions.

[29]     The Crown has made an application for forfeiture of $546.90 in cash found along with the drugs.  I understand there is no opposition to forfeiture of that sum.  I accordingly make an order for forfeiture.

[30]     That is the sentence.   The conditions require you to travel to the proposed home detention address.  I add to the formal sentence that the commencement of the home detention date is deferred until tomorrow, 3 September 2008, so you will remain in custody tonight so that arrangements can be made for you to travel to the address tomorrow.

[31]     I do really encourage you, Mr D  , to reflect on all of these things.

[32]     Stand down.

Peter Woodhouse J

ADDENDUM

In the course of submissions from Mr Cooke on behalf of Mr D  , I raised the question whether Mr D   was fully aware of the implications of a sentence of home detention following the period in custody of 9 months.  Mr Cooke confirmed that this had been discussed with Mr D   and Mr D   acknowledged in Court that he still preferred a sentence of home detention if available.