R v Dickson

[2023] NZHC 1124

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-070-001570

[2023] NZHC 1124

THE KING

v

JAMES BRADLEY DICKSON

Hearing:	11 May 2023
Appearances:	A Pollett for the Crown M Hine for the Defendant
Judgment:	11 May 2023

SENTENCING NOTES OF WALKER J

This judgment was delivered by me on 11 May 2023 at 10.20 am Registrar/Deputy Registrar

R v DICKSON [2023] NZHC 1124 [11 May 2023]

[1]        James Bradley Dickson, you appear before me today for sentencing following your plea of guilty to a charge of importing cocaine.1

[2]        I will first set out the facts to which you have admitted as recorded in the summary of facts before the Court. I will sentence you based on this summary together with any inferences I can reliably draw from it. Then I will turn to the starting point of a prison sentence. Finally, I will address factors personal to you before setting out my conclusion as to an end sentence and why I reached that end sentence. As I have reached an end sentence of imprisonment of two years or less, I will then turn to the question of whether that sentence should be commuted to a community sentence.

[3]        There is one preliminary matter. I picked up on my review of your criminal and traffic history that it currently records two convictions for importing cocaine. That is an error. The Crown accepts it is an error. It needs to be rectified; it is common ground that you pleaded guilty to one charge only and that is the offence you are being sentenced for here today. You are accordingly discharged under s 147 of the Criminal Procedure Act 2011 in respect of charge 2.2

[4]I turn now to the factual background.

The factual background

[5]        The agreed summary of facts underpinning your guilty plea reveals that you became involved with a group of people whose objective was to acquire cocaine and methamphetamine imported into New Zealand from South America. You allowed one of those people to send a courier parcel to your home address. Cocaine was concealed inside. On delivery you took the parcel to that person.

[6]        On 2 February 2021, the principal offender texted you to arrange a meeting to discuss the arrival of a second courier parcel. You told him that you had moved and no longer lived there. The same day New Zealand Customs intercepted a courier parcel

1      Misuse of Drugs Act 1975, s 6(1)(a) with a maximum penalty of life imprisonment. CRN:2100400476.

2      CRN:21004004795.

with your old address on it. Customs found concealed within the parcel a plastic bag containing approximately 300 grams of cocaine.

[7]The parcel was addressed to a “Haiden Smith”.

[8]        On 3 February 2021, one of the principal offenders instructed an associate to tell you that the name would be “Haiden Smith” and to expect it to arrive the next day. That same day you texted a person next door to your old address saying, “Hey Maggie it Shud b turning up today sum time an it was haidan smith da name”.

[9]        New Zealand Customs tried to deliver the courier parcel to your old address, but the new occupants refused to receive it.

[10]      Thereafter the principal offenders made unsuccessful efforts to find the parcel. Eventually a new delivery address was provided but you played no part in arranging a new address.

[11]      Those are the facts to which you pleaded guilty, and which set out the basis for sentencing.

[12]      For your part, I record that when interviewed by Police, you admitted those facts, said you were suspicious of the first package but then realised it was some type of controlled drug. I will return to the point that you were frank with Police from the outset later in my sentencing.

[13]      You claim that you become involved innocently when an old school friend (one of the principal offenders) asked you if he could use your address to send personal items from prison because he had only just been released and had no fixed address. You say that you became aware that it was not delivery of personal items but something illicit, likely drugs. You say you were pestered in relation to a second parcel and feared what would happen if you did not help to locate the delivery. As your counsel submits, you thought you were caught between the devil and the deep blue sea. You say you went to the neighbour’s home and took away what you thought was the delivery, but it turned out to be something else. It appears according to what you

say that you were prepared to pick up the parcel and deliver it to the principal offender. This is despite you then being aware that it was likely illicit drugs.

[14]      The Crown does not accept your version. Crown counsel points out that you did not at any stage in the investigation indicate your unwillingness to participate due to fear or threats. You participated in a DVD interview with Police and did not mention acting under duress or pressure.

[15]      Under the Sentencing Act 2002, it is for me to make a finding as to what weight I should attach to these disputed facts. As to the mitigating facts, in the end, I do not find them significant because the Crown accepts you had a lesser role in the importation of cocaine. However, I do note that your frankness, even to the point of revealing information unhelpful to you, is more consistent with truth telling than fabrication.

Approach to sentencing

[16]      Sentencing is conducted for the purposes, and according to the principles in ss 7 and 8 of the Sentencing Act 2002. I have regard here to the level of seriousness of your offending, the need to ensure the sentence is consistent with other sentences for this type of offending and deterrence. The need for deterrence is important in cases of drug related offending. In addition, you need to be held accountable. In this instance, the courier parcel was intercepted so that the cocaine in question did not reach the streets but there can be no doubt that commercial scale drug offending causes serious social harm to the community. If people are willing to be “catchers” as colloquially called, it allows the drug trade to continue. Finally, there is also the requirement to impose the least restrictive outcome appropriate in the circumstances.

[17]      I must first set a starting point which reflects the seriousness of your offending. I will then adjust for your personal circumstances and guilty plea.3

3      I will not apply the sentencing indication that you received on 19 May 2022 which was not accepted by you. The circumstances have changed; the charges are reduced, and the indication has long expired.

Starting point

[18]      There is no guideline judgment for sentencing cocaine offenders but in 2019, the Court of Appeal provided guidelines for sentencing methamphetamine offenders.4 It is useful to base the starting point on this judgment recognising also that the social harm caused by cocaine is less than the devastating social harm caused by methamphetamine.

[19]      The guidelines set out by the Court of Appeal do not alter the requirement for me as sentencing Judge to exercise flexibility and discretion in setting sentences.5 Sentencing is an evaluative exercise directed at the individual. Last year, the Supreme Court confirmed and modified some aspects of the approach of the Court of Appeal.6

[20]      The guidelines set a range of starting points based firstly on the quantity of controlled drugs at issue. Based on quantity alone and the amended Zhang guidelines, the lower end of Band 3 is relevant. It relates to quantities above 250 grams but less than 500 grams for which the starting point is between six and 12 years. However, I consider Band 2 is more appropriate in your case. Band 2 relates to quantities of less than 250 grams and the starting point is in the range two and six years.

[21]      The Crown does not argue against this. Rather, the crux of the difference between the Crown position and your lawyer’s position is where your offending sits within Band 2.

[22]      There are three reasons why I consider Band 2 is more appropriate. First, your offending relates to cocaine and not methamphetamine. Secondly, the Supreme Court has recognised that the potency of role can drive movement within and between quantum driven bands.7 Thirdly, and most materially, your lesser role means it is appropriate to look to a start point below the band determined by quantity alone.

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

5      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [120].

6      Berkland v R; Harding v R [2022] NZSC 143.

7      Berkland v R; Harding v R [2022] NZSC 143 at [126].

[23]      The Crown relies on two cases which it says share sufficient characteristics with your case that I should adopt the same starting point.8 Relying on these two decisions, the Crown submits that the appropriate starting point is in the range of four years to four years and six months’ imprisonment. Mr Hine argues that a starting point at the lower lend of band 2 is more appropriate, namely in the range of two to three years.

[24]      I consider that the facts in the cases relied on by the Crown are not sufficiently similar. In one, the offender was paid $5,000 to allow use of his address. There is no information before me to suggest that you received payment. In the other, the offender’s role was significantly greater than yours because his phone was used to pay Customs’ duty, it had the consignment details recorded on it and contained discussions with a member of a crime syndicate relating to the package.

[25]       I have also read the sentencing notes in respect of the participants involved in the overall conspiracy to import drugs and their roles.9

[26]      In my assessment a starting point of three years imprisonment best reflects your role and the way you became involved.

Adjustments for personal circumstances

[27]      The Crown has not suggested that any aggravating factors are applicable. I agree with this assessment. While you have some convictions in the past, none are relevant to this offending.

[28]      As for the matters in your favour, you pleaded guilty on the morning of trial. There is a back story to that, as evidenced by the dismissal of one charge. The Crown suggest a five per cent discount for late plea is available. Mr Hine on your behalf advocates for a 15 per cent discount. He relies on what he describes as a “like case”.10

8      R v Fangupo [2019] NZHC 2896; Wang v R [2021] NZCA 79.

9      R v Gear [2023] NZHC 432; R v Swinton [2023] NZHC 216; R v Waitai [2023] NZHC 175.

10     R v Mathers [2022] NZHC 3473.

[29]      I accept that the guilty plea was agreed to before the start of trial but only put into effect on the first day of trial. Also relevant is your frankness with Police from the very outset. In those circumstances, I consider a 12 per cent discount is appropriate.

[30]      I turn to factors personal to you. You are now 40 years old. Your mother is Pākehā and your father Māori (Te Arawa and Ngai te Rangi). I have before me a cultural report prepared by Maria Pipi, and two pre-sentence reports; the first is dated 3 March 2023. The second is dated 22 March 2023. I also have a letter of support from a potential employer.

[31]      The pre-sentence report identifies that you are a qualified builder and that you are currently working on a casual basis for Sherlock Contracting. I pause to note that you have very strong support from a friend who is part-owner of this family business. He confirms he has been mentoring you since September 2022 and working alongside you to help you change your habits. You have been mates for over 15 years. He has said that provided you continue with your current work ethic and behaviour, there is no reason why you could not be employed with the company going forward.

[32]      I understand you are also supported by your mother. You have previously completed a four-month sentence of community detention at your mother’s home in 2021 with no report of problems.

[33]      The report suggests to me that you have some insight into the position you have now found yourself in. You admit your choice of friends and associates has been a problem for you. You have unresolved conflict issues with members of your whānau and recognise that you need to be around better people. You have two children, aged 18 and five years old from previous relationships. I understand you do not have a relationship with your son currently but you a carer for your daughter along with your former partner.

[34]      The second pre-sentence report confirms that Oranga Tamariki have no concerns with you residing with your mother in the event the Court is minded to impose a community based sentence. The conclusion drawn by the Probation Officer

is a recommendation of a sentence of home detention with post-detention conditions. The proposed address has been deemed suitable.

[35]      I have also carefully reviewed the comprehensive cultural report prepared by Ms Pipi. She has spent considerable time with you. It is an in depth and thoughtful report which examines your family history and your own personal history. It records multiple interviews with you. It states that together with Ms Pipi you have collaborated to come up with a pathway for positive engagement and preparation for rehabilitation.

[36]       The report speaks of you feeling as an outsider throughout much of your life leading to a desire to please others and susceptibility to peer pressure. There have been difficulties in your life, including learning difficulties. I suspect that if you were of school age today those difficulties might have been better addressed. Based on the self-reporting, you appear able to express yourself well and through the process of gathering information for your cultural report, have reached a level of understanding about your circumstances, and your weaknesses, which have led to poor decision making in the past.

[37]      There are other relevant matters in the cultural report in relation to mental health issues. These are supported by medical records provided to the Court. They need not be described here save to say that there is some degree of vulnerability which I have taken on board.

[38]      Taking those interdependent personal factors into account, I consider that a  15 per cent discount is available to you. Most material to this assessment is your commitment to rehabilitation. In addition, I accept that you have a relationship with your five-year-old daughter which is important to you. You have told the Court that you care for your daughter every Tuesday and Wednesday and every second weekend from Friday to Sunday. This is an important consideration both in terms of your drive to rehabilitate and for the sake of your daughter. A further 5 per cent discount is available in this regard.

Remorse

[39]      I have considered a discount for remorse as a distinct available ground and separate from your guilty plea. It was expressed early and again in the context of your interview with report writers. I accept it is genuine.

[40]      You have said that “I’m sorry for my kids, that I’m in this mess. I want things to be better for them”. I consider that an additional 5 per cent is available.

[41]This results in an end sentence of 22 months.

Should the sentence be one of home detention?

[42]      An end sentence of less than two years requires consideration of whether this sentence should be converted to one of home detention.

[43]      I consider it is preferable that you remain in the community rather than in custody. This will best serve your rehabilitative needs. It will give you at least an opportunity to continue working, subject to the approval of Probation. That opportunity is important for your future. It will give you the chance to be a better father to your daughter and for you to deal once and for all with the struggles you currently face. Courts need to take a hard line on drug offending but in this case a sentence of imprisonment would be counterproductive.

[44]      It should not be underestimated how difficult a sentence of home detention is. There are no compliance concerns raised by your time on bail. A sentence of imprisonment is likely to put you exactly in the sort of environment that got you into this mess in the first place. Because home detention does not allow the possibility of parole, it is conventional to impose a time for half the length of time of the equivalent sentence of imprisonment. I consider home detention for 11 months is the least restrictive sentence available in the circumstances.

[45]      As I have indicated in my sentencing notes, the prospect of employment with Mr Fleming’s company is an important aspect of rehabilitation. It is not however for this Court to direct that you be entitled to work there bearing in mind some of the cell

phone coverage difficulties and EM monitoring. That will be a matter for the Probation Officer who will need to determine what safeguards should be put in place. Having said that, I encourage your probation officer to look favourably on any request to work. It is likely that steps could be put in place to monitor compliance particularly bearing in mind any breach of home detention conditions could mean the end of the home detention sentence and you ending up in custody.

Sentence

[46]      Mr Dickson, please stand. I sentence you to 11 months’ home detention at the address referred to in the pre-sentencing report on the following conditions:

(a)Do not possess, consume or use any alcohol or drugs not prescribed to you.

(b)You must attend any assessment for Alcohol and Drug Counselling Programme directed by a Probation Officer and attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(c)Attend and complete an appropriate Drug Harm Programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.

(d)Attend and complete an appropriate Counselling/Treatment Programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer, but I strongly encourage the ongoing involvement of Ms Pipi if practical.

(e)Do not associate with or contact any of your co-defendants.

[47]      Mr Dickson, I trust that you see this sentence as a turning point for you. It is an opportunity to change your life for the better for your sake but even more importantly, for the sake of your children.

[48]You may stand down, and I wish you well.

ADDENDUM

[49]      In addition, there are post-detention conditions for a period of six months as follows:

(a)To complete any programmes not completed whilst subject to home detention; and

(b)Not to possess, consume or use any alcohol or drugs not prescribed to you.

[50]You may stand down.

............................................................

Walker J