R v Dillon HC Auckland CRI 2009-044-7883

[2010] NZHC 2112

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-044-7883

THE QUEEN

v

WILL JUNIOR DILLON

Hearing:         26 November 2010

Appearances: Mr S McColgan for Crown

Mr R Mansfield for Prisoner

Sentence:       26 November 2010

SENTENCING REMARKS OF LANG J

Solicitors/Counsel:

Crown Solicitor, Auckland

Mr R Mansfield, Auckland

R V DILLON HC AK CRI-2009-044-7883  26 November 2010

[1]      Mr Dillon, you appear for sentence today having pleaded guilty, just before your trial, to charges of obstructing the course of justice, offering to supply methamphetamine and receiving a stolen motor vehicle.   In terms of maximum penalty, the charge of offering to supply methamphetamine is most serious because it carries a maximum sentence of life imprisonment.   The charge of obstructing the course of justice carries a maximum sentence of seven years imprisonment, and the charge of receiving the stolen motor vehicle also carries a maximum sentence of seven years imprisonment.

The facts

[2]      The facts are not in dispute.  They are contained in a summary of facts that you accept is accurate.

[3]      You received a stolen motor vehicle on or about 11 May 2009.  The vehicle had been stolen some three days earlier.  It is not apparent why you took possession of the vehicle, but you treated it from the time you acquired it as your own.

[4]      The incident that has given rise to the most serious charges occurred on 11

May 2009.   On that date one of your associates contacted you and you agreed to supply half a gram of methamphetamine to that person.  You and your associate then travelled to an address in Glenfield in the stolen vehicle.  There you met a person who turned out to be the intended end recipient of the methamphetamine.   Your associate and this person became involved in an argument.  This ended up with your associate stabbing the other person.  You then fled the address in the stolen vehicle. You travelled some distance and dumped the vehicle.  You and your associate also got rid of your clothes.  You then sent text messages to a potential witness saying that that person should tell lies and not reveal the involvement of your or your co- offender in the incident in which the other person had been stabbed.   I accept, however, that  you did not know that the stab wound that the other person had received was fatal until you heard that on the news some time later.

[5]      You pleaded not guilty to the charges.   You were originally charged with being an accessory after the fact to murder.  Ultimately, the Crown agreed to reduce that charge to the charge of obstructing the course of justice just before your trial.

[6]      It is clear, however, that the Crown always had a strong case in relation to the charges.  You frankly accepted your involvement in the incident in the manner that I have described.  This means that your conviction on at least the charges of receiving and offering to supply methamphetamine were virtually guaranteed.  It is perhaps a moot point as to whether you would have been convicted on the charge of being an accessory after the fact to murder.  I accept that, although the maximum penalty in relation to that charge is the same as obstructing the course of justice, nevertheless it does carry more serious connotations.  It would indicate that you were prepared to become involved in actions that prevented the investigation and prosecution of those responsible for a wrongful death.

Sentencing Act 2002

[7]      In sentencing you, I have to have regard to the principles and purposes of sentencing.  In this case, I take the most serious aspect of your offending to be the steps that you took to prevent the investigation of the stabbing of the deceased from proceeding smoothly.  Those were deliberate acts, and were calculated to throw the investigation of the crime off the track.  The Court obviously must send a signal to people who are involved in activities of the type that, if they are caught, they will be dealt  with  severely.    Issues  of  deterrence and  denunciation  are  therefore  to  the forefront.

[8]      The same can be said in relation to your drug offending.  In virtually every case involving the supply or offering to supply methamphetamine a sentence of imprisonment is imposed.   This reflects the principles and purposes of sentencing and also the principles contained in the Misuse of Drugs Act 1975.  The only way in which the courts can send a clear message to people who are involved in commercial drug offending is that they will receive a sentence of imprisonment if they are caught.

[9]      Having said that, it is important that I impose a sentence that is broadly consistent with those imposed in other cases.  I also need to ensure that I impose a sentence that is the least restrictive outcome in all the circumstances.  In your case that means imposing a sentence of imprisonment that is as short as is reasonably possible,  having  regard  to  both  the  circumstances  of  your  offending  and  your personal circumstances.

The approach to be taken on sentencing

[10]     In sentencing you, I need to bear in mind the fact that the three charges to which you have pleaded guilty are different in both nature and timing.  The receiving charge arises from a completely separate incident that occurred three days before the main offending.  The offer to supply methamphetamine is also separate in nature to the  charge  of  obstructing  the  course  of  justice.    I  take  the  latter  two  charges, however, to be integrally linked in time, circumstance and place, in the sense that they both evolved out of a single incident in which the drug dealing was the first component and the events that followed the stabbing the second.

[11]     I would be possible for me to impose concurrent sentences on the obstruction and drug charge and then to apply a cumulative sentence in respect of the receiving charge.  For ease of simplicity, however, I propose to impose a sentence on the lead charge of obstructing the course of justice that takes into account your criminality in relation to all three charges.

Starting point

[12]     The first step in the sentencing process is to identify a starting point for your offending.  This means the sentence that would be imposed on you having regard to all the circumstances of your offending, but putting to one side any factors that are personal to you.

Obstructing the course of justice

[13]     It is not possible  to point to any guideline judgment of the Court of Appeal in relation to the charge of obstructing the course of justice.  That charge can arise in an enormous variety of ways, and the circumstances of no two cases are ever the same.

[14]     Both counsel agree that the most helpful guide is to be gained from sentences imposed by the courts in relation to charges of being an accessory after the fact to murder.  Although, as I have said, that has more serious connotations in the present context than the charge of obstruction, the elements of the charge are broadly the same and the maximum penalty is the same.

[15]     Counsel have referred me to a number of decisions.  Obviously they differ factually from the circumstances in your case.  A common theme, however, is that a starting point of around 18 months imprisonment is selected.   Both counsel agree that that is the appropriate starting point in your case, and I adopt it as a starting point in relation to the obstruction charge.

Offering to supply methamphetamine

[16]     I then need to ascertain the extent to which I should increase that starting point  to  reflect  the  drug offending.    The  Crown  says  that  this  should  attract  a sentence of somewhere around or above six months.   On its own, Mr Dillon, it would  attract  a  starting  point  of  more  than  that.    It  would  fall  within  Band  1 identified in a decision of the Court of Appeal called R v Fatu [2006] 2 NZLR 72.  In that case the Court of Appeal said that those who deal in methamphetamine of up to five grams will receive a sentence of between two and four years imprisonment.

[17]     The  circumstances  of  this  case  indicate  that  you  were  quite  prepared  to become involved in the supply of methamphetamine to your associate.  Your counsel says that that was not for commercial gain, but I do not accept that.  I am sure that you would have added your margin to the half gram of methamphetamine that you proposed to supply to him.  You are charged with offering to supply, and not with

supply itself.  There is not a great deal of difference between those two concepts in this case, because I infer that the only thing that stopped the supply being completed was the altercation that broke out between your associate and the person who died.

[18]     I need, however, to take into account principles of totality so that I do not impose a sentence that is disproportionate to the totality of your offending.   That being the case, I propose to add an uplift of seven months imprisonment to reflect the charge of offering to supply methamphetamine.

Receiving the stolen motor vehicle

[19]     The receiving charge also requires a discrete uplift because, as I have said, it involved separate offending that occurred three days before the principal charges. You have previous convictions for receiving.  I suspect that, on its own, this charge, which involved the cynical use of a stolen motor vehicle for your own purposes, would carry a starting point of around nine months imprisonment.  I propose to uplift the starting point that I have selected by a further three months having regard to totality principles.

[20]   This means that I have selected an end starting point of 28 months imprisonment.

Aggravating factors

[21]     You have a number of previous convictions.   Included in these, as I have said, are convictions for receiving.   I have taken into account those convictions, however, in setting a starting point for the sentence to be imposed in that charge, so no further uplift is required.

[22]     You have a previous conviction for being involved in drug-related activity. This takes the form of being in possession of utensils in 2007.  On that charge you received a sentence of home detention.  This indicates that you have been involved in the drug culture for some time and you frankly admit that.  Indeed, you accept that you  were  addicted  to  methamphetamine  at  the  time  of  this  offending.    Having

reflected on the matter, I do not propose to add any uplift to reflect your previous convictions in relation to drug-related activity.

[23]     You need to know, Mr Dillon, you are now classified in the system as a known drug dealer.  This means that, if you appear on similar charges again in the future, it is highly likely that the sentencing Judge will increase the sentence to be imposed to reflect the fact that you have not learnt the lesson from the sentence that you receive today.

[24]     There is no uplift required in relation to the obstruction charge to reflect your previous convictions, although you have a large number of convictions for failure to comply with Court orders.

[25]     This means that the end starting point of 28 months imprisonment is not increased to reflect aggravating factors personal to you.

Mitigating factors

[26]     I now need to consider mitigating factors that are personal to you.

[27]     You  appear  for  sentence  at  the  age  of  23  years.    You  have  amassed  a reasonably large list of previous convictions.   For that reason you cannot, as your counsel realistically accepts, claim any credit for your past record.

[28]     I am obviously required to give you a discount for the fact that you have pleaded  guilty.    This  occurred  just  a  few  days  before  your  trial  was  due  to commence.  As a result, it can only be given limited credit.  I also need to take into account the fact that the Crown case against you was undoubtedly strong.  In those circumstances, I consider that a discount of just over ten per cent would be appropriate.

[29]     Your counsel also urges me to make some further allowance for the fact that you have shown remorse for your actions and that you are determined to rehabilitate yourself.  It is difficult to gauge remorse in a situation where somebody has pleaded guilty just before trial.  I accept, however, that other circumstances were at play here.

In particular, you faced the charge of being an accessory after the fact to murder. You were also, no doubt, under the influence to some extent of your company- accused who was ultimately convicted on a charge of murder.

[30]     I am prepared to give you some limited recognition for the remorse that you have shown.  Again, Mr Dillon, you need to know that this is the only time on which that is likely to occur.   Judges regularly read letters such as that which you have handed to me today.   Most offenders are remorseful on the day that they are sentenced.  That is also often reflected in comments that they make to the probation officer who prepares the pre-sentence report.   I record your expressed remorse in these sentencing remarks so that they will be available in the future.  It will not be much use in the future, Mr Dillon, saying that you are remorseful if you re-offend again after having said that to me today.

[31]     Taking those factors into consideration, I propose to reduce your sentence by four months which is approximately 14 per cent.

Sentence

[32]     On the lead charge of obstructing the course of justice you are sentenced to

24 months imprisonment.

[33]     On the charge of offering to supply methamphetamine you are sentenced to seven months imprisonment.

[34]     On the charge of receiving the stolen motor vehicle you are sentenced to three months imprisonment.

[35]     All of those sentences are to be served concurrently.   This means that the effective sentence that I impose on you is one of two years imprisonment.

[36]     At the conclusion of your sentence, which will be today given the time that you have spent in custody on remand, you are released on the standard conditions together with the following special conditions, which shall enure for six months following the date of your release:

a)      You are to attend and complete an appropriate medium intensity rehabilitative programme to the satisfaction of your probation officer and programme provider.   Details of that programme will be determined by your probation officer.

b)You are to attend an assessment at a community alcohol and drug service centre and to complete any such counselling as may be recommended by the assessment to the satisfaction of your probation officer and the programme providers.

c)       You are not to communicate or associate with your co-offender unless you have the prior written consent of your probation officer.

[37]     Stand down.

Lang J