R v Dunn

[2013] NZHC 2383

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-090-004721 [2013] NZHC 2383

THE QUEEN

v

DAVID JAMES DUNN

Hearing:	12 September 2013
Appearances:	S McColgan for Crown J Krebs for Prisoner
Judgment:	12 September 2013

SENTENCING NOTES OF ANDREWS J

Solicitors/Counsel:

Meredith Connell, Auckland

J Krebs, Napier

R v DUNN [2013] NZHC 2383 [12 September 2013]

Charges

[1]      Mr Dunn, you appear for sentencing today having been convicted after a jury found you guilty on a charge of possessing methamphetamine for supply.

Relevant facts

[2]      The charge was laid after the Police executed a search warrant at the West Auckland headquarters of the Headhunters gang, on 11 March 2011.  They found a plastic  container  which  had  15.2 g  of  methamphetamine  in  it  in  a  “Pak-lite” backpack that also contained your personal belongings, and documents relating to you.   You admitted that the bag was yours.   The jury accepted that you were in possession of the methamphetamine found in your bag, rejected your contention that you had it for your own personal use, and found that you had it for the purpose of supplying at least some of it to others.  You will know that 15.2 g is well above the statutory presumption of possession for the purposes of supply, which is 5 g.

[3]      On the same night as the search of the gang headquarters, the Police executed a search warrant at your home address.  They found 0.73 g of methamphetamine, as well as a pipe and straw.  You entered guilty pleas to charges laid in respect of that, and were sentenced to 40 hours community work.

Pre-sentence report

[4]      I turn now to consider the pre-sentence report.  I understand from the report that you are 49 years old and have been with your partner for nine years, and have a daughter from a previous relationship.  You have been self-employed as a builder, but at the time of this offending you were cleaning properties and selling firewood. You have been a member of the Headhunters gang since you were in your early 20’s, and you were president from July 2010.

[5]      The probation officer said that offending-supportive associates, drug abuse, and an offending-supportive attitude were contributing factors to your offending. You were assessed as being at a moderate to high risk of re-offending. The probation officer said that you had complied with previous community-based sentences.  You

told the probation officer, at the interview for the pre-sentence report, that you had not used methamphetamine since 2011.  On the basis of the information you gave the probation officer, you were assessed as not having a harmful pattern of drug abuse, but it was recommended that you complete an assessment with Community Alcohol and Drug Services, and based on the outcome of that, undertake a programme to address substance abuse.

[6]      You have a history of criminal and traffic convictions dating back to 1981. These cover a wide range of offences, including drug-related offending.  You have six previous convictions for offending relating to methamphetamine, not including the two most recent convictions.   In particular, in 2003  you were sentenced  to imprisonment for six years for conspiring to deal with methamphetamine, possessing and manufacturing methamphetamine.   Then in 2008, I imposed a sentence of 18 months  imprisonment  on  three  charges  of  supplying  methamphetamine  and  one

charge of supplying MDMA.1

[7]      As a result of a direction I gave when you were convicted, the probation officer addressed a possible sentence of home detention.  The report notes that the address you gave is remote, and that the Police considered it to be unsuitable given your ranking within the Headhunters gang, and the fact the firearms have been found at the address.

Sentencing process

[8]      The first step in sentencing you, Mr Dunn, is to establish what is referred to as the starting point, which is the sentence that would be imposed, by referring to guideline decisions, and comparable cases, before considering any factors relating to your offending or you, personally, that would lead me to impose a sentence that is greater or less than the starting point.  I then consider what adjustments have to be made in order to reach the end sentence.

[9]      When I sentence you I have to take into account the purposes and principles of sentencing.  I have to hold you accountable – that is, to make you responsible for

your offending.   I have to consider deterring you, and others, and protecting the community.  I also have to denounce your offending – which means to make it clear to you that your offending is not acceptable.   At the same time, the purpose of sentencing any offender is to help that offender to get back into the community and to be a useful member of the community.

[10]     There is a particular need to protect the community from methamphetamine. The social cost to families and to the community that follows from the use of methamphetamine is destructive, it is devastating, and its effects are seen in the Courts every single day.

[11]     In  your case the relevant  principles  of sentencing are the  gravity  of the offending, including your culpability in the offending, the seriousness of your offending in comparison with other types of offences, and the general desirability of maintaining consistency in appropriate sentencing levels.   I am directed to impose the least restrictive outcome that is appropriate in the circumstances.

[12]     While it is desirable to keep offenders in the community, if that is practicable with regard to the safety of the community, the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant in your case.  For the offence on which you have been convicted, the Misuse of Drugs Act provides  that  there  is  a  presumption  that  a  sentence  of  imprisonment  will  be imposed.

Starting point

[13]     I come now to the starting point.   The guideline case for sentencing on methamphetamine charges is the decision of the Court of Appeal decision in Fatu.2

In  that  case  the  Court  of Appeal  set  four  levels,  or  bands,  for  sentencing  for manufacturing methamphetamine, and those are applied to the supply of methamphetamine.  The bands depend on the quantity involved.  The lowest band is less than 5 g, the highest is 500 g or more.  The quantity of methamphetamine found in your bag (that is, 15.2 g) clearly falls within the second band, which covers

quantities between 5 and 250 g.  For offending which is within the second band the starting point is between three and nine years imprisonment.

[14]     On behalf of the Crown, Mr McColgan submitted that your offending falls at the lower end of band two.  He submitted that 15.2 g of methamphetamine is three times the level at which there is a presumption of possession for supply, and that it could yield 152 street-level deals each of 0.1 g.  Mr McColgan also submitted that I could conclude that the majority of the methamphetamine in the Pak-lite bag was to be supplied to others.

[15]    On your behalf, Mr Krebs submitted that the mathematical approach of proceeding simply from the quantity of methamphetamine is not inflexible and that I could conclude that most of the methamphetamine in the bag was for your own personal use.   He submitted that there was evidence that you were using methamphetamine, and in this respect he referred to the methamphetamine and pipe found at your home, and he also submitted that there was no evidence of commercial supply – for example, scales, tick lists, cash – found either in your bag or at your home, or indeed on you personally.   On that basis, Mr Krebs submitted that your offending should be described as being a very low-level supply, and clearly in band one of Fatu.

[16]   I accept that the jury was not required to state how much of the methamphetamine you had for supply, and they did not do so.  However, I cannot accept that it was as small a proportion of it as Mr Krebs submits.   Mr Krebs submitted  that  you  were  a  heavy user  of  methamphetamine,  but  that  would  be inconsistent with the probation officer’s assessment, on the basis of the information that you gave him, that you did not have a harmful pattern of drug abuse.  So, while I can accept that you were using methamphetamine, I cannot conclude that the methamphetamine in your bag was substantially for your own use.

[17]     In any event, even if your offending could properly be described as “low- level” dealing, the starting point for sentencing in band one is two to four years imprisonment, so there is clearly an overlap between the two bands.

[18]     I have considered the sentences imposed in cases where the circumstances were similar to yours.  I refer first to two of the cases referred to by Mr McColgan. In Nordstrand v Police, Police had found 16.4 g of methamphetamine, scales, and

$3,800 in cash, and a starting point of four years six months imprisonment was upheld in appeal.3   In R v McGrath, a starting point of four years imprisonment was adopted when 20 g of methamphetamine was found, and $12,000 in cash.4

[19]     I also refer to three further cases. A starting point of four years imprisonment was adopted in R v Martin, where 19.9 g of methamphetamine was found, in small quantities in snaplock bags and $6,000 in cash.5   In R v Wallis, the starting point was three years nine months for a charge of possession for supply where a total of 13.4 g of methamphetamine was found in snaplock bags, along with electronic scales and just over $1,200.6     In R v Hollingsworth, the starting point was three years imprisonment for a charge of possession for supply where the prisoner had 13.5 g of methamphetamine, scales, a methamphetamine pipe, and several empty snaplock bags.7

[20]     In his written submissions Mr McColgan acknowledged that although the Police found scales, cash, a pipe and other items that would indicate drug dealing during the search of the gang headquarters, these were not directly linked to you. However, he submitted that I could take them into account in your sentencing.  Mr Krebs submitted that I could not do that, and that the absence of any link between you and those items distinguished your sentencing from the cases referred to by the Crown.  As there was no link between you and the scales etc found in the search, I do not take them into account.  The starting point must take into account the quantity of methamphetamine found, and the absence of any other indications of commercial dealing.

[21]     In Fatu, I note that the Court of Appeal said that the quantity of the drug involved (rather than any anticipated monetary yields) provides the most helpful

3      Nordstrand v Police HC Whangarei CRI-2001-488-51, 26 September 2011.

4      R v McGrath HC Wellington CRI-2007-078-793, 7 November 2008.

5      R v Martin HC New Plymouth CRI-2010-043-61, 11 February 2010.

6      R v Wallis HC Hamilton CRI-2006-019-10117, 29 August 2007.

7      R v Hollingsworth HC Auckland CRI-2006-055-310, 26 April 2007.

measure of culpability.8   In your case, the quantity of methamphetamine involved (in my view) very clearly indicates commerciality.   Further, the fact is that the jury found you guilty of possession for supply; that is, for a commercial purpose.  I have concluded that your offending involved commercial dealing and that it is on the border between bands one and two of the Fatu bands, and that the starting point should be three years imprisonment.

Personal factors

[22]     I now turn to consider whether the starting point should be adjusted to take account of matters that relate to you, personally.  Mr McColgan submitted that there should be an uplift of nine to 12 months on the starting point.   He submitted that your conviction history shows that you have had a continued and persistent commitment to commercial involvement in methamphetamine dealing (notwithstanding earlier sentences of imprisonment) and that a deterrent sentence is needed.  He also submitted that you had failed to take advantage of opportunities you have been given for rehabilitation.

[23]     Mr Krebs submitted that the present offending is in a different category from your previous offending.   He submitted that the offending on which you have previously been sentenced to imprisonment was of a more serious nature so a deterrent sentence on the present offending is not clearly indicated.

[24]     I have referred back to my notes of your sentencing in 2008.  You were then sentenced, having been found guilty on three charges of offering to supply methamphetamine and one charge of offering to supply MDMA.  The lead charges, for the purposes of your sentencing, were the charges of offering to supply methamphetamine.  The Crown accepted that the offers related to amounts that could

be described as being for personal use.9   I referred to comments in the pre-sentence

report, they were as follows:10

[23]     The Probation Officer recorded factors assessed as contributing to your offending as including your use of drugs, and an association

8      Fatu, above n 2, at [26].

9      R v Dunn above, n 1, at [19] and [20].

10     At [23] and [24].

with people who either used drugs or encouraged that sort of behaviour.  The report writer said that your entire support network appeared to be either actively involved in offending or completely unaware of it.  It is said in the report that your associates who were interviewed for the preparation of the report rather took the view that you are a victim of the system.

[24]      In the circumstances, the Probation Officer assessed your motivation to address your offending as being negligible and assessed you as having a high risk of re-offending and therefore posing a high risk to the community.

[25]     I note that very similar factors were noted in the pre-sentence report for

today’s sentencing.

[26]     When I sentenced you in 2008 I imposed special conditions, including that you not associate with anyone associated with any gang, or participate in any gang- related activity, and that you undertake and complete any drug and alcohol treatment, and counselling to address your offending, as directed by your probation officer.11

Those conditions were designed to reduce your risk of re-offending.  I note that you

have said in the letter that you have given to me today, that when an assessment was undertaken at the time it was found that you did not require any particular drug or alcohol treatment.  However, it appears that my intention that you reduce any risk of offending, had little success.  In the circumstances, I accept that a deterrent sentence is required and accordingly, I will apply an uplift of six months to the starting point, to arrive at an adjusted starting point of three years and six months imprisonment.

[27]     I turn now to consider whether there are any personal matters which could lead to a reduction of the adjusted starting point.  There is, of course, no question of any deduction for a guilty plea.  However, Mr Krebs submitted that you should be given credit for the efforts that you have made to rehabilitate yourself, for remorse, and the time you spent on strict conditions of bail.  Mr Krebs has submitted that with the approach of your 50th birthday you now have a genuine desire to reform and that you are substantially supported by your partner.  Mr Krebs has given me copies of responses to approaches that you have made to obtain treatment and a copy of a

recent result of a drug test which shows no evidence of drugs consumption.

[28]     I accept that you were on bail for the period from April 2011 up until the end of your trial.   Your bail conditions included a residential condition, a 7.00pm to

7.00am  curfew,  non-association  orders,  and  orders  preventing  the  disposal  of property.  I have noted that a variation was allowed over the 2011 Christmas/New Year period, and that there were some changes of address.  The delay in getting to your trial is in part explained by the fact that a trial fixture for November 2012 was vacated.

[29]     In Howie v R, the Court of Appeal acknowledged that “a small but significant deduction” is sometimes made when sentencing a person who has been on EM bail on strict conditions, but noted that there is no statutory or common law obligation to allow such a deduction.12   Your conditions of bail cannot be said to have been in any measure comparable to EM bail, but I accept that you were on bail for a reasonably lengthy period of time and that the conditions were, to an extent, restrictive.   Mr McColgan accepted that in particular the duration of the bail, the curfew condition, and the non-association condition were restrictive.

[30]     I also note Mr Krebs’ submission as to your attempts to enrol in rehabilitative programmes, and I have referred to those.  In particular I note that the response has, in general terms, been that when you are in custody those organisations are unable to offer programmes but they indicate a willingness to consider the matter upon release, if you are sentenced to imprisonment.

[31]     In the light of the matters that I have referred to, and in particular the period on bail on reasonably restrictive terms, I accept that a reduction of six months should be  allowed,  which  leads  me  to  a  final  sentence  of  three  years  imprisonment. Because I have reached that conclusion the question of home detention does not arise because that would require me to have concluded that a sentence of two  years imprisonment, or less, was appropriate.

[32]     I  have  great  sympathy  and  understanding  for  your  wish  to  undertake treatment.  It is unfortunate that it was not assessed as being required after the 2008

term of imprisonment but I would hope that treatment, as required, will be available later.

[33]     Would you please stand.

Sentence

[34]     Mr Dunn, on the charge of possession of methamphetamine for supply, you are sentenced to three years imprisonment.

[35]     Thank you Mr Dunn. Would you please stand down.

Andrews  J