R v De Serville HC Auckland CRI2006-004-18441
[2008] NZHC 2549
•29 August 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI2006-004-18441
THE QUEEN
v
JUSTIN DE SERVILLE ANTHONY FAITHFULL
Hearing: 29 August 2008
Appearances: Mr M Wharepouri for Crown
Mr P Kaye for De Serville
Mr L Freyer for Faithfull
Judgment: 29 August 2008
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Auckland
Counsel:
Mr P Kaye, AucklandMr L Freyer, Auckland
R V DE SERVILLE AND ANOR HC AK CRI2006-004-18441 29 August 2008
[1] Mr De Serville and Mr Faithfull, you appear for sentence today having pleaded guilty to a number of charges laid under the provisions of the Misuse of Drugs Act 1975.
[2] Following your pleas of guilty the Crown offered no evidence in relation to the remaining charges that you faced. These were Counts 1, 6, 9, 10, 11 and 12 in the indictment. I now discharge you on those counts pursuant to s 347 of the Crimes Act 1961.
[3] The most serious offences for which you appear for sentence are those of being in possession of methamphetamine for the purposes of supply. As you well know those charges carry a maximum sentence of life imprisonment. Each of the other charges to which you have pleaded guilty also carry sentences of imprisonment as the maximum penalty.
Factual background
[4] The offending for both of you began when you, Mr Faithfull, rented a number of storage units in the Ellerslie area. You did this over the period between May
2005 and August 2006. I am satisfied after hearing counsel today that you rented those units for your own purposes and that you did not expressly do so for the purpose of enabling drugs or drug-related paraphernalia to be stored in them. I am told that the photographs of those units show that a number of other items were stored in them, including builder’s materials for use in your work as a builder, and also furniture.
[5] On 25 August 2006 the police carried out searches of those four units. They did so when they executed a warrant issued under the Summary Proceedings Act
1957 and the Misuse of Drugs Act 1975.
[6] In one of the units the police found a black satchel bag containing five gram of methamphetamine. That had an estimated street value of approximately $5,000.
[7] In another unit the police found a large number of plastic bottles containing various liquids, including the chemical sulphuric acid which is a precursor chemical used in the manufacture of methamphetamine. A wide variety of other materials, substances and equipment was found in the units. All of them were capable of being used in the manufacture of methamphetamine and, in particular, the first stage of that process. It is quite clear that at least some of the items had in fact been used in the manufacture of methamphetamine in the past.
[8] Originally the police charged you with manufacturing methamphetamine. Ultimately the Crown has elected to offer no evidence on that charge. As a result, I accept that neither of you was involved in the actual manufacture of methamphetamine. Rather, it appears that you were prepared to store materials, equipment and substances for others who intended to use those items for the manufacture of methamphetamine. Nevertheless, you must both accept responsibility for the actual methamphetamine that was found in the unit because you were in possession of it.
[9] I accept, however, in your case, Mr Faithfull, that the methamphetamine probably belonged to Mr De Serville. I have no doubt, however, that by your plea that you knew it was there. You also accept that from time to time you and Mr De Serville consumed methamphetamine. It is therefore likely that you would have had resort to that methamphetamine, at least for your own use. You also, by your plea, acknowledge that you knew at lest some of it was going to be supplied to others. It follows from what I have said, Mr De Serville, that I accept that you were the prime mover behind the methamphetamine in the bag that was found in the unit.
[10] Mr De Serville, you face additional charges as a result of an incident that occurred on the morning of Saturday 28 October 2006. On that morning you were the driver of a motor vehicle that was stopped in Auckland City. The vehicle was searched and you were arrested. The police found a sum of $740 in cash together with two point bags containing methamphetamine. Each of those bags contained .1 of a gram. Those items were found on your person.
[11] When the police searched your vehicle, they found a large number of other drug-related items. These included numerous zip lock bags and also glass pipes used to smoke methamphetamine together with other paraphernalia associated with the consumption of methamphetamine. More importantly, however, the police found 30 zip lock bags containing 24.6 grams of the Class A controlled drug methamphetamine. This was a significant quantity and the manner in which it was packaged makes it clear it was for the purposes of supply to others rather than for your own use. I take you, therefore, to be a dealer in methamphetamine. You were prepared to sell that drug for your own personal gain.
[12] Also in the vehicle the police found a stun gun, a can of what is colloquially referred to as “pepper spray”, and a Samurai sword. You do not face any additional charges as a result of that, but I agree with the Crown that those items were undoubtedly in your possession as part and parcel of the protection measures that you took in your capacity as a drug dealer. Those factors, too, are an aggravating factor of your offending.
Sentencing Act 2002
[13] In sentencing you I have to take into account the purposes and principles of sentencing as set out in the Sentencing Act 2002. In any case involving drug dealing offending the issues of deterrence and denunciation are to the forefront. As you particularly, Mr De Serville, must now be aware, methamphetamine is probably the single greatest threat facing our society. It is responsible for wrecking homes, marriages and family lives. It also leads significantly to other forms of offending.
[14] As a result the courts have taken the view that sentences of imprisonment must generally be imposed on people who appear for sentence for such offending. That is coupled with the presumption in s 6(4) of the Misuse of Drugs Act 1975 which provides that sentences of imprisonment will generally be appropriate for offending under the Act involving drug dealing.
[15] The real issue here is the extent to which the Court should pay heed to another purpose and principle contained in the Sentencing Act. That is that the
Court must impose the least restrictive outcome in the circumstances and must also provide for your rehabilitation and reintegration into the community. Those are obviously important matters. Balanced against them must be the need to impose a sentence that is broadly consistent with those that are imposed in other cases. I say “broadly consistent” because the circumstances of no two cases will ever be exactly the same.
Starting point
[16] The first step in the sentencing process that I must undertake is to select the appropriate starting point for the sentences to be imposed upon you. The starting point is the sentence that would ordinarily be imposed after a defended hearing taking into account all of the factors relating to the offending itself. The starting point does not take into account aggravating or mitigating factors that are personal to either of you.
[17] In this context the leading authority, as counsel recognise, is the decision of the Court of Appeal in R v Fatu [2006] 2 NZLR 72 . In that case the Court divided drug-dealing offending in relation to methamphetamine into three broad categories. All of these overlap to some extent.
[18] In Band 1 the Court prescribed a starting point of between two and four years imprisonment. That Band applies to offending involving up to five grams of methamphetamine. The second Band is for offending involving between five and
250 grams of methamphetamine. The starting point for offending in this category is between three and nine years imprisonment.
[19] I accept in relation to you, Mr Faithfull, that you fall at the top end of Band 1 or at the bottom end of Band 2 because of the amount of methamphetamine that was found in your possession, namely five grams.
[20] In each case I propose to take the lead charge as being that of possession of methamphetamine for supply and to build into the starting point your culpability in relation to other offending. For that reason, Mr Faithfull, I would select a starting
point in your case of around two years nine months imprisonment. I uplift that to three years to take into account the fact that you also allowed the units to be used for the storage of other drug related materials and paraphernalia.
[21] In reaching that starting point I accept the fact that you were not the prime mover. Your culpability lies in the fact, as I have said, that you allowed Mr De Serville to store both drugs and drug-related equipment and paraphernalia in premises that you had rented. This places you in a lower category, in my view, than a person who undertakes such an enterprise for his own purposes and gain.
[22] Mr De Serville, your situation is obviously different. You were, as I have said, the prime mover in relation to the methamphetamine and the other items that were found in the units. In addition, there is the fact that you were stopped with a large amount of methamphetamine on the second occasion. At that time you also had weapons of various forms with you.
[23] Your counsel suggests that a starting point in your case should be in the vicinity of four to four and a half years. I have conducted a review of sentences imposed by this Court in relation to offending involving broadly similar amounts of methamphetamine: R v Holloway HC AK CRI 2005-090-7291 26 May 2006
Williams J; R v White HC AK CRI 2006-019-1754 30 June 2006 Asher J; R v Yorston HC AK CRI 2005-004-18740 19 May 2006 Priestley J; R v Harris HC PN CRI 2006-054-1008 26 February 2007 Harrison J. Virtually without exception I have discovered that offending in this realm, involving around 30 grams of methamphetamine, will involve a starting point of at least four to four and a half years.
[24] I then have to factor in, as your counsel recognises, the fact that you were prepared to allow equipment materials and substances relating to the manufacture of methamphetamine to be stored in premises that you arranged. That factor means that the starting point I adopt in relation to all matters is one of five years imprisonment.
Aggravating factors
[25] In your case, Mr Faithfull, there are no aggravating factors relating to you personally that would justify an uplift in the starting point that I have selected. You do have previous convictions, but these are for driving with excess alcohol. They have no relevance in the present context and I put them to one side.
[26] The position again for you, Mr De Serville, is different. You do have previous drug related convictions and I have to say that they are serious. Prior to sentencing I obtained a copy of the sentencing notes of the Judge who sentenced you in December 2000 on charges of conspiring to supply morphine and ecstasy. It is quite clear from those sentencing notes that, although you were not the prime mover in that offending, nevertheless you were a significant player. This is reflected by the fact that the Judge who sentenced you imposed a sentence of four years imprisonment. The fact that you were prepared in 2006 to go out and offend again in a serious way is obviously a matter of concern. It suggests that you simply did not learn your lesson from the original sentence that was imposed upon you.
[27] Having read the materials that have been placed before me today, I am satisfied that it was your on-going use of drugs throughout the period between at least 2000 and 2006 that led you to offend again. The significance of this is such that I consider that it requires an uplift in the starting point that I have selected. This is not to punish you again for your earlier offending but to recognise the fact that your later offending was made more serious by your failure to take account of the fact that you had already been convicted once.
[28] I propose to adopt a relatively merciful approach, however. An uplift of a year to 18 months could easily be justified. I propose to increase the starting point that I have selected by six months to reflect your previous convictions.
Mitigating factors
[29] I now need to consider the mitigating factors that apply to you both. In both cases you have pleaded guilty, albeit not at the earliest stage. For that reason I
cannot give you full credit for your pleas of guilty. Nevertheless, I accept your counsels’ submission that resolution of these charges took some time. The fact that extended negotiations took place is recognised by the fact that the Crown was ultimately prepared to offer no evidence on the serious charge of manufacturing. For this reason I propose to give you both a credit of just over 20 per cent to reflect your guilty pleas.
[30] So far as you, Mr Faithfull, are concerned, you appear for sentence at the age of 52 years. You are a builder with a good work record. You do not have a drug or alcohol addiction problem. I am satisfied that you were drawn into this offending by virtue of the fact that you were associated with Mr De Serville and that you shared methamphetamine with him from time to time. I do not consider that you pose an ongoing risk to society in terms of drug dealing offences. You now know that if you are caught again you will inevitably receive not only a sentence of imprisonment but also an increase in the sentence to reflect the fact that you have not learned the lesson that I hope you are receiving today.
[31] The Probation Officer reports that you are at medium risk of reoffending. That is based primarily on the fact that you do not accept that you have various issues in this area. I am satisfied, as I have said, that provided you stay away from methamphetamine you have very little chance of coming before the Court again.
[32] I cannot give you a credit for a previously clean record because you do have previous convictions.
[33] Mr De Serville, your case presents much greater difficulty so far as I am concerned. You have been prepared to become involved, not once but twice, in serious drug offending. You have, however, taken enormous steps to address the issues that you face in relation to the use of drugs.
[34] Following your release on bail after the present offending you initially attended the Higher Ground programme. Although your attendance there was only for three months, nevertheless I am satisfied you made progress. Since then you have been involved with the Wings Trust, and the material that I have received from
Wings Trust makes it clear that you have made enormous strides in dealing with your addiction. You are now virtually a model attendee at that programme and you are about to accept a position of great responsibility because you will be the mentor or host for new entrants to the programme. I accept that the Wings Trust would never have given you that position if they had been of the view that you posed a current risk of becoming involved in drugs again.
[35] The steps that you have taken need to be recognised. People who do not take the kind of steps that you have been prepared to take, inevitably as you yourself show, come before the courts again. Occasionally they come before the courts for much more serious offending. It is therefore very much in the interests of society and the community to recognise that those who are prepared to genuinely rehabilitate themselves should receive credit for that from the Court. I accept also that those efforts have now continued over some considerable period and that you are committed in the future to maintaining them.
[36] I find myself, for that reason, in the same position as did Williams J at first instance in a case to which I am about to refer, R v Hill CA 559/07, 29 February
2008. In that case, too, the offender had undertaken extensive efforts of rehabilitation. For that reason the Judge allowed a discount of 35 per cent to reflect not only the guilty pleas, but also that fact.
[37] As your counsel has mentioned, there are other factors as well that in your case need to be taken into account. I have been provided with materials that the Crown accepts should reflect a further reduction in the sentence that I am imposing upon you. I find myself able to bring myself to the unusual position of being able to offer you a discount of 50 per cent on the sentence that would otherwise be imposed upon you.
[38] The end sentence therefore that I would ordinarily impose upon you, Mr Faithfull, is one of two years and four months imprisonment allowing an eight- month discount for the matters to which I have referred.
[39] The end sentence that I would ordinarily impose upon you, Mr De Serville, is one of two years nine months imprisonment taking into account the mitigating factors to which I have referred.
[40] I now need to turn to the issue of home detention.
Home detention
[41] Both of you seek a sentence of home detention. You are fortunate that that sentence is open to you. As your counsel may have explained to you, you fall within what is called a transitional period between changes in legislation. The sentencing legislation was changed on 1 October 2007 to allow the Court to impose a sentence of home detention in circumstances where it would otherwise impose a sentence of two years imprisonment or less. In a case called R v Hill the Court of Appeal has confirmed that the two-year limit does not apply to offenders who committed their offences prior to 1 October 2007. Your offending, of course, took place in 2006 and so you fall within the transitional provisions. This means that you are eligible for home detention when you would not have been under the new regime.
[42] In considering whether a sentence of home detention should be imposed the Court is required to have regard again to the factors that I have referred in mitigation. In your case, Mr Faithfull, that includes the fact that you effectively appear for sentence at the age of 52 years with no relevant previous convictions. You propose to live with your mother, you propose to carry on work as a builder and you have offered to carry out a sentence of community work. A sentence of home detention is the sentence that the Probation Officer recommends, coupled with a sentence of community work.
[43] I have reached the view, as I have said, that you pose a low risk of reoffending. For that reason I am prepared to impose a sentence of home detention upon you.
[44] Mr De Serville, your case falls very much at the margin. In R v Hill the Court of Appeal was prepared to accept that an end sentence of two years six months did not prevent a sentence of home detention being imposed in very similar circumstances to yours. The fact that the end sentence is one of two years nine months in my view is neither here nor there in terms of Hill.
[45] You have extremely positive comments made about you in the pre-sentence report. The pre-sentence report acknowledges that a custodial sentence is likely but recommends a sentence of home detention. All of the other material to which I have been referred also suggests that to send you back to prison would be completely counter-productive and would not be in society’s interests.
[46] There is a further factor in your case. This is the fact that you have served nearly 12 months in prison. As a result, you would be automatically eligible to be reviewed by the Parole Board. Having regard to the steps that you have taken to rehabilitate yourself, I feel reasonably confident that the Parole Board would release you in the near future.
[47] For that reason I see no real point in returning you to prison. The community is far better served if you remain where you are at the Wings Trust helping other people who face the same problems that you have faced in the past. For that reason, and notwithstanding the seriousness of your offending, I propose to accede to counsel’s submission that I should impose a sentence of home detention upon you.
Sentence
[48] As I have said, each of you is to receive a sentence of home detention. In cases involving Class A drugs the sentence of home detention should be a lengthy one. The maximum sentence is one of 12 months home detention and I impose that sentence on you both on each charge to which you have pleaded guilty. Those sentences, of course, are concurrent.
[49] In addition, I direct that you, Mr Faithfull, are to carry out 200 hours of community work. In your case, Mr De Serville, I direct that you are to carry out a sentence of 400 hours community work.
Special conditions
[50] In each case, although I hope that it will not be necessary, I impose a special condition that you do not consume illicit drugs during the period of home detention.
[51] In your case, Mr De Serville, I also direct that you not consume alcohol during the period of home detention. In your case, Mr Faithfull, I do not detect any abuse issues in relation to alcohol and I decline to make a similar direction.
[52] Mr De Serville, the additional special conditions are:
a) On completion of Court formalities you are to go directly to 18
Walters Road, Mt Eden and await the arrival of a Probation Officer and monitoring company representative.
b)You are to reside at 18 Walters Road, Mt Eden throughout the period of home detention and you are to leave the address only when authorised in writing by the supervising Probation Officer.
c) You are to continue the rehabilitation programme offered by Wings Trust including 12-Step meetings and meetings in support of other rehabilitation facilities.
d)You are to attend and complete any other programmes, counselling or assessments if directed by the Probation Officer.
[53] Mr Faithfull:
a) You are to travel immediately to 11 Wesley Glade, Hillsborough after completion of Court formalities and you are to wait at that address until the home detention equipment has been fully installed.
b) You are to reside at that address for the duration of your sentence.
c) You are to leave the address only when authorised in writing by the supervising Probation Officer.
d)You are to attend and complete any programmes, counselling or assessments if directed to do so by the Probation Officer.
Lang J
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