R v Duthie HC Rotorua CRI 2006-070-5847

[2008] NZHC 2540

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-070-5847

THE QUEEN

v

RICHARD ALAN DUTHIE

Hearing:         28 August 2008

Appearances: K Hogan for the Crown

D Jones QC and M Cross for the prisoner

Judgment:      28 August 2008

SENTENCING NOTES OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140
Crown Solicitor, PO Box 13063, Tauranga 3141

D Jones QC, PO Box 1750, Shortland Street, Auckland 1140

R V DUTHIE HC ROT CRI 2006-070-5847  28 August 2008

[1]      Richard Alan Duthie you appear for sentence today having pleaded guilty to the various charges set out in the schedule.  These included charges under the Misuse of Drugs Act 1975, the Arms Act 1983 and the Crimes Act 1961.

[2]      In summary, they include two charges relating to offending on 21 September

2006 (the Tauranga charges), three charges relating to offending on 3 September

2007 (the second incident) and four charges relating to offending on 28 September

2007 (the third incident).

[3]      In addition, you appear for sentence having pleaded guilty to two offences which took place while you were in Waikeria Prison.  These occurred on 11 October

2007 and involved possession of a Class A controlled drug methamphetamine and possession of a pipe.

[4]      For the purposes of your sentencing, I have been assisted by helpful written submissions from the Crown, both the Crown Solicitors offices in Auckland and Tauranga, as well as oral submissions from the Crown today from Ms Hogan.  I have also received detailed written submissions from your counsel, Mr Jones QC, and heard oral submissions from him today.

[5]      I have had the benefit of a comprehensive pre-sentence report dated 28 July

2008 from the Department of Corrections.  In addition, I have received and read a handwritten letter from yourself.

Facts

[6]      I will deal with the Tauranga charges first.   On 21 September 2006, the Police executed a search warrant at 37 Oxford Street, Tauranga.  Two people were seen in a vehicle in the driveway with the vehicle attempting to leave the address. Police observed you pass two plastic bags to your passenger, Ms Crawford, as you sat in the driver’s seat.  The vehicle was stopped from leaving the address and the armed offenders squad removed you both from the car.

[7]     Two snaplock bags  were  seized,  each  containing 28  grams  of methamphetamine.  Ms Crawford stated that while you were seated in the car you threw the bags at her and told her to hide them.

[8]      You were searched and in a bag you were found to be carrying $19,500 in cash, together with a drug receipt book, or tick list, recording the names of people and amounts owed by them.   Police also found a set of electronic scales in your jacket pocket and in a wallet in your trouser pocket the sum of $1,720.  You also had a buck knife in your possession.

[9]      I do not need to go into any further detail regarding that offending, save to note that a text message was received on a Nokia cellphone at 8.20pm while it was in the possession of the Police.  The text was a request from a buyer to acquire drugs and inquiring about price.

[10]     So  far  as  the  offending  on  3  September  2007  (the  second  incident)  is concerned, you were driving a blue Holden Commodore on Henderson Valley Road. You became involved in a high speed Police chase, as a result of which you lost control of the vehicle and ended up in a ditch.  The Police approached you while you were unable to exit the car.  You shouted at one of the officers words which I will quote, “fuck off or I’ll blow you away”.   You then pulled a handgun from your jacket and fired two shots from your vehicle before driving along the ditch for roughly one hundred metres and then exiting the ditch further along the road.  The vehicle was later located in Ranui and the Police found nine millimetre shell casing on the rear seat of the vehicle.

[11]     So far as the 28 September 2007 (the third incident) offending is concerned, the Police searched your address at Burton Street, Grafton and located a loaded nine millimetre Glock 19 semi-automatic pistol inside a red shoulder bag, as well as a loaded Beretta semi-automatic pistol on the bathroom basin.   In addition, Police found bundles of cash totalling $74,980 in a backpack, together with a further $1,690 in a black wallet which was found with the Beretta firearm and cellphones.   The Police found 768 superman logo LSD tablets with a street value of between $11,500 and $30,000.  These were contained in a suitcase carried in to the apartment by your

co-offender Ms Henman.   Bags containing a total of 1959  grams of ContacNT granules were located.   This quantity of ContacNT is capable of producing pseudoephedrine hydrochloride amounting to 783 grams with a potential methamphetamine production of up to 570 grams.

[12]     With respect to the cash that was located as part of the third incident, you have  through  your  counsel  advanced  claims  that  you  legitimately derived  these funds.  Two sources are suggested – the first is the estate of your late mother and there is an affidavit from one of the trustees, which will need to be considered by the Court in due course.   Additionally, your counsel has indicated that in due course affidavit evidence may be able to be provided relating to the legitimate source of other parts of the cash concerned.

[13]     Counsel are agreed that it is not possible for me to resolve the question of forfeiture today.  The evidence is incomplete.  Even when all of the affidavits from your side have been completed, obviously the Crown will need to make inquiries and may  wish  to  file  evidence  prior  to  any  hearing  to  determine  the  question  of forfeiture, so I put that entirely to one side for today.  Having said that, your counsel accepts that the number of LSD tablets located and the ContacNT found indicate an extensive involvement in the drug scene, in particular relating to the LSD tablets a significant degree of commerciality.

[14]     On 11 October 2007 you were being transferred from Waikeria Prison, as a remand prisoner, to appear in the Rotorua High Court.  Prior to your transfer, prison officers at the Receiving Office searched you.   You were wearing a pair of Nike sports shoes which, upon search, revealed some screwed up toilet paper.   When prison officers unwrapped the toilet paper they located a glass pipe used for smoking methamphetamine with burn marks at the bulb end.   Officers also located a small clear plastic bag containing approximately two  grams of  methamphetamine.    In explanation for your possession of these items, you stated that on the day you were being transferred from Mt Eden Prison to Waikeria you had found the items in or about the prison bus.

Personal circumstances and pre-sentence report

[15]     You are 41 years of age and identify as a New Zealand European.   Your mother raised you along with your three younger brothers and sister.  I note that two of your siblings are here today.   Your mother died some two years ago and your father is still alive, but left your family when  you were young.   You have not maintained a relationship with him.  You are close to your siblings but do not see them very often.  You have a son aged 22 years.

[16]     You report that your health is generally good, however department records indicate that you have a history of drug abuse which is at harmful levels.  You have stated that methamphetamine is your drug of choice and that you have regularly used methamphetamine with your associates.  You are assessed as being a moderate risk gambler.  You have worked in a variety of jobs, including drain laying and in the forestry and farming industries.  You were unemployed for two years prior to your imprisonment.

[17]     In  relation  to  the  charges  of  possession  for  supply,  you  have  advanced various explanations to the probation officer.  In relation to the firearms charges, you said that you were under the influence of methamphetamine and that you did not plan to shoot at the police.  You said that you were scared and afraid for your life. You have stated, and indeed repeated in your letter to me, that you are not a violent man, however you acknowledged you bought the pistols from an associate to protect yourself from other criminals and gangs.   You stated that you accepted the LSD tablets  as  payment  from  associates.    You  have  stated  that  your  actions  were impulsive but that you did fleetingly consider the legal consequences of your behaviour.

[18]     The probation officer has identified the main factors contributing to your offending as being your capacity to use violence, your drug use, your criminal peers, and attitudes which appear to be supportive of offending generally.  On this aspect your counsel has said that your guilty pleas, in relation to all of the charges that are being dealt with today, indicate that finally you have realised that there is a need to face up to all of your previous offending, deal with the inevitable punishment that

must follow from that and then move on.  You have finally expressed some remorse, which is important given that at least in relation to some of this offending it could have gone seriously wrong and it may well have ended up with charges far worse than you are facing today.  I appreciate that you acknowledge the seriousness of your offending and the potential for what could have happened, particularly in relation to the use of the firearms in relation to the Police.

[19]     You have stated that you have lessened your drug dependency, but it is really now for you to address that fully.  I hope that you will take advantage of the various courses that are available during your imprisonment to turn your life around so that when your term of imprisonment is completed you will be able to be and remain drug-free so that you can enter back into society and be with and support your family.  In the past, the probation officer has noted that you have had a number of opportunities to address your drug dependency and the Community Probation and Psychological Services are unable to offer further rehabilitative interventions at this time.   What is required, Mr Duthie, is for you to take the initiative and having decided you want to turn your life around, actually take some positive steps to make sure that happens.

[20]     The  probation  officer  has  assessed  you  as  presenting  a  high  risk  of  re- offending, and noted you have limited insight into your offending behaviour and a medium level of motivation to deal with such offending.

Prior convictions

[21]     Your criminal history extends back more than 20 years.   You have prior convictions involving all classes of drugs along with violent offences, gun offences and driving convictions.  You have received sentences across the whole range of the sentencing spectrum as your offending has escalated.  You have had the benefit of rehabilitative interventions, but sadly none of these have been effective.

[22]     The most significant prior convictions include possession of cannabis for supply in 2003, possession for supply of cannabis and methamphetamine in 2003, and possession of a precursor substance in the same year.  There was further drug-

related offending prior to that.  Significantly, the Tauranga charges were committed whilst you were still subject to a sentence of imprisonment for the 2003 offending. Finally, you have outstanding fines of $8,478.

Crown submissions

[23]     The Crown submits that a starting point of around seven to eight years’

imprisonment   would   be   appropriate   with   regard   to   the   third   incident,   the

28 September 2007 offending.   In relation to the second incident on 3 September

2007, the Crown submits that a cumulative sentence is appropriate, as that offending is different in kind.   In the circumstances of this case, the Crown submits that a starting point in the region of six to six and a half years’ imprisonment.

[24]  For the charges of supplying methamphetamine and possession of methamphetamine for supply, relating to the Tauranga charges, a starting point of five to five and a half years has been suggested.  The Crown accept that the Court must take into account the totality principle and Ms Hogan appearing today, in respect of  all matters, submits that this is the correct approach  to  be followed. Indeed, both counsel agree that is an appropriate way to approach your sentencing. This would involve taking the charge of possession of LSD for supply as the lead offence and then building an appropriate overall starting point, bearing in mind the totality principle.  For the drug offending, the Crown submits that a starting point in the region of ten years’ imprisonment would be appropriate.

[25]     The Crown then submits that a sentence should be imposed in respect of the firearms  charges using the starting point of six  to six  and  a  half  years  already referred to.  Having regard to the totality principal the Crown submits that a starting point for all matters in the region of 13 to 15 years’ imprisonment is appropriate. Finally, the Crown suggests that a minimum period of imprisonment should be imposed under s 86 of the Sentencing Act 2002.  The Crown also seeks forfeiture of all of the cash associated with your offending and the destruction of the items of drugs found.

[26]     I do not need to go into any further detail regarding the Crown submissions bearing in mind that the parties are not significantly far apart in relation to starting points.   I simply note that with respect to the Tauranga charges, your co-offender Ms Crawford  was  dealt  with  on  the  basis  that  a  starting  point  of  four  years’ imprisonment would be appropriate.  Accordingly, as she was treated as a secondary party the figure suggested of five to five and a half years for yourself in relation to that offending is not out of line with the way in which your co-offender was dealt with.

[27]     The Crown submitted that any credit for guilty pleas should take into account that, in relation to the Tauranga charges, the pleas were not entered at an early stage.

Defence submissions

[28]     Your counsel, Mr Jones, accepts the Crown submissions in relation to the Tauranga offending warrant a starting point of five to five and a half years’ imprisonment.   He seeks a discount to acknowledge your guilty plea, but accepts your 2003 drug-related convictions require an uplift.  He urged that the Court deal with the matter by way of a global uplift rather than apply any uplift to each set of charges because this could risk double-ups.

[29]     With regard to the second incident (3 September 2007), Mr Jones submitted a starting point of no more than six years’ imprisonment.   He submitted that your behaviour on that occasion disclosed a fear of being shot by the Police rather than a desire to confront the Police.   He emphasised you were looking to flee the scene when rocks were thrown at your vehicle.  He submitted that you were fearful when this occurred and that you only fired warning shots.

[30]     Mr Jones submitted that you should receive a significant discount for your early guilty plea and he emphasised that your offending should be seen in context and was less serious than in the case of R v Wells HC AK CRI 2003-092-26964

30 April 2004, Harrison J.   Mr Jones also submitted that in relation to the third incident (28 September 2007) a starting point of six years’ imprisonment was warranted.  He emphasised that the time line disclosed the drugs were primarily in

the possession of your co-offender Ms Henman and he emphasised that there is a dispute regarding the cash located on this occasion.  Again, he submitted that you should receive a discount for your early guilty pleas.

Purposes and principles of sentencing

[31]     The Sentencing Act 2002 requires that I keep a number of purposes and principles in mind when deciding on an appropriate sentence.  In your case, I have specific regard to the following purposes of sentencing as set out in s 7 of the Act: the need to hold you accountable for the harm done to the community; the need to promote in you a sense of responsibility for, and an acknowledgement of, that harm; the need to denounce your conduct; and the need to deter you and others like you from committing the same or a similar offence.

[32]     In  sentencing  you  I  also  take  into  account  the  principles  of  sentencing according to s 8 of the Sentencing Act 2002, including: the need to take into account the gravity of your offending, including the degree of your culpability; the need to take into account the seriousness of this type of offence in comparison with other types of offences; the need to consider the general desirability of consistency with appropriate sentencing levels in respect of similar offences committed in similar circumstances;  and  the  need  to  impose  the  least  restrictive  outcome  that  is appropriate in your circumstances.

Features of the offending

[33]     The Court of Appeal in R v Taueki [2005] 3 NZLR 372 set out the orthodox approach to sentencing. Accordingly, I will first set a starting point based on the features of the offending, and then adjust the starting point according to any mitigating and aggravating features relating to you as the offender.

[34]     In terms of aggravating features, s 9(1) of the Sentencing Act sets out the factors that are considered aggravating.  In your case, I consider that the applicable aggravating factors are:

a)       The quantity and value of the LSD tablets, which, as I have already noted, indicate a significant degree of commerciality;

b)The possession for supply in that case plainly involves an element of premeditation, although I accept that is inherent to a certain extent in the offence itself;

c)       The  quantity  and  potential  value  of  the  ContacNT  located  (1959 grams);

d)       The offending took place while you were subject to bail conditions;

e)       The serious aggravating feature of the lethal combination of drugs and loaded firearms that warrants attention as an aggravating feature:  see R v Plews HC HAM CRI 2007-019-2653 8 May 2008, Harrison J;

f)        You continued to offend whilst in prison, as indicated by the Waikeria charges;

g)       In respect of the Tauranga charges, there is again an obvious degree of commerciality as indicated by the tick list and the significant amount of cash that was found on that occasion.

[35]     In terms of the actual offending itself, there are no mitigating factors.

Features of the offender

[36]     In terms of aggravating features,  I must take into account your previous convictions, particularly for serious drug offending.

[37]     In terms of mitigating features, you are entitled to credit for your guilty pleas, the fact that some of the offending was influenced by an addiction to methamphetamine and your remorse, which I will take into account.

[38]     In terms of comparable cases for possession for supply of LSD, there is no single guideline judgment regarding this type of offending, but I have referred to R v Stanaway [1997] 3 NZLR 129; R v Urlich [1981] 1 NZLR 310; R v Faulkner HC AK CRI 2006-004-25880 15 April 2008, Stevens J; R v Walsh HC PMN CRI 2004-

054-2655 29 June 2006, Ronald Young J and R v Gibb HC PMN CIV 2006-054-

1263 20 October 2006, Ronald Young J.

[39]     For the supply of methamphetamine I obviously have regard to the guideline decision of R v Fatu [2006] 2 NZLR 72. Your counsel acknowledged that this was a matter that fell within band two of that case. In addition, I have considered the cases of R v Fonotia CA413/06 10 May 2007; R v Harris HC PMN CRI 2006-054-1008

26  February  2007,  Harrison  J;  R  v  Creelman  HC  AK  CRI  2005-090-003426

30 March 2007, Venning J and R v Holloway HC AK CRI 2005-090-7291 26 May

2006, Williams J.

[40]     For the offence of using a firearm against a law enforcement officer, again there is no tariff or guideline decision, but I have had regard to the cases of R v Harris [2008] NZCA 214 and R v Wells, as I indicated earlier.

Analysis

[41]     The Crown and defence accept that the lead charge should be the possession of LSD for supply and that I should approach the matter on a totality basis.

[42]     I propose to use as a starting point for the lead offence a starting point of six years’ imprisonment.   In light of the related drug offending described above, two years’ imprisonment should be added to reflect the totality of your drug offending. That  would  mean  a  starting  point  for  the  drug  offending  of  eight   years’ imprisonment before aggravating and mitigating features are taken into account.

With regard to the charge of using a firearm against a law enforcement officer, I could have imposed a cumulative sentence but prefer to use an appropriate starting point  as   suggested   by   your  counsel.      I  have,   therefore,   used   five   years’

imprisonment.  That would leave a global starting point, taking into account all of the offending, of 13 years’ imprisonment.

[43]     It is important that I stand back and reflect on whether this is a suitable starting point bearing in mind the totality of the offending and its overall seriousness, including the aggravating circumstances to which I have referred.  I am satisfied that it does.

Adjusting the starting point

[44]     Next, I note that your previous convictions span more than 20 years.   The most  relevant  of  those  cover  a  broad  range  of  drug-related  offending  and demonstrate that your offending has become gradually more serious over time.  Also, there is the dangerous combination of drug and arms offences to take into account. In making an uplift for these matters, I appreciate that any sentence should not be crushing and accordingly I use only an uplift of 12 months’ imprisonment over and above the 13 years.  That will create, before any discount, a term of imprisonment of

14 years.  With regard to the uplift, I suggest that it is generous and could have been much higher.

[45]     You are entitled to a significant discount for the early guilty pleas in respect of the first and second incidents.  In respect of the Tauranga offending, the plea was late and followed your absconding.   But Mr Jones has submitted that there were some reasons for the late plea.

[46]     I have also, as indicated, taken into account and give you credit for the fact that your offending was in part the result of an addiction to methamphetamine and that you have finally shown some remorse.  For all these factors, I propose to give you a credit of three years, so that makes a total of 11 years’ imprisonment which will be imposed on the lead offence of possession of the Class A controlled drug LSD for supply.

[47]     Next, I have to consider the question or whether I should impose a minimum period of imprisonment as suggested by the Crown under s 86 of the Sentencing Act.

[48]     Under   that   section,   the   Court   may   impose   a   minimum   period   of imprisonment if it is satisfied that the period that would otherwise be applicable is insufficient to hold you accountable for the harm done in relation to the offending, to denounce the conduct, deter you and others and to protect the community.

[49]     Your   counsel   has   helpfully  acknowledged   that   a   minimum   term   of imprisonment  is  available  given  the  nature  and  extent  of  the  offending.    He submitted  that  a  realistic  figure  would  be  50%  of  the  sentence  to  satisfy  the principles of denunciation and deterrence, but also bearing in mind the requirement of imposing the least restrictive penalty, which I must.

[50]     Bearing in mind the seriousness of the offending and the fact that  I am satisfied that the requirements of s 86(2) have been met in respect of each of the factors referred to, I consider that a minimum period of imprisonment in your case should be six years.

[51]     In relation to the other offending, all of these following sentences will be concurrent.  Therefore, for the possession of precursor substance, in relation to the

28 September 2007 offending, three years’ imprisonment; unlawful possession of a pistol, two years’ imprisonment; using a firearm against a law enforcement officer, five years’ imprisonment; threatening to kill, three years’ imprisonment; unlawful possession of a pistol, two years’ imprisonment.   On the Tauranga charges, for supplying the Class A controlled drug methamphetamine, five years’ imprisonment and possession of the Class A controlled drug methamphetamine for supply, five years’ imprisonment.   On the Waikeria charges, for possession of the Class A controlled drug methamphetamine, three months’ imprisonment and possession of a pipe six months’ imprisonment.  As I have said all of those are concurrent and what this means is that once you have served the sentence which I have imposed in relation to the lead offence you can wipe the slate clean.

[52]     It remains for me to deal with the application by the Crown for forfeiture of the cash in relation to the Tauranga incident.  I make the order for the forfeiture of that cash, that is $19,500 and $1,720.70.  There will also be an order for destruction of all items located and all drug material under s 32 of the Misuse of Drugs Act

1975.

[53]     I  reserve  for  future  determination  any question  of  forfeiture  of  the  cash relating to the third incident, the offending on 28 September 2007.

[54]     You may stand down.

Stevens J

Schedule of charges

21 September 2006

Offence	Counts	Section	Maximum penalty	Section
Supplying the Class A controlled drug methamphetamine	1	s 6(1)(c) of the Misuse of Drugs Act 1975	Life imprisonment	s 6(2)(a) of the Misuse of Drugs Act 1975
Possession of the Class A controlled drug methamphetamine for supply	1	S 6(1)(f) of the Misuse of Drugs Act 1975	Life imprisonment	s 6(2)(a) of the Misuse of Drugs Act 1975

3 September 2007

Offence	Counts	Section	Maximum penalty	Section
Using a firearm against a law enforcement officer	1	s 198A(1) of the Crimes Act 1961	14 years’ imprisonment	s 198A(1) of the Crimes Act 1961
Threatening to kill	1	s 306(1)(a) of the Crimes Act 1961	7 years’ imprisonment	s 306(1)(a) of the Crimes Act 1961
Unlawful possession of a pistol	1	s 45 of the Arms Act 1983	4 years’ imprisonment	s 45 of the Arms Act 1983

28 September 2007

Offence	Counts	Section	Maximum penalty	Section
Possession of the Class A controlled drug LSD for supply	1	s 6(1)(f) of the Misuse of Drugs Act 1975	Life imprisonment	s 6(2)(c) of the Misuse of Drugs Act 1975
Possession of precursor substance, pseudoephedrine	1	s 12A(2)(b) of the Misuse of Drugs Act 1975	5 years’ imprisonment	s 12A(3)(b) of the Misuse of Drugs Act 1975
Unlawful possession of a pistol	x 2 Glock 19 and Baretta pistols	s 45 of the Arms Act 1983	4 years’ imprisonment	s 45 of the Arms Act 1983

11 October 2007

Offence	Counts	Section	Maximum penalty	Section
Possession of the Class A controlled drug methamphetamine	1	s 7(1)(a) of the Misuse of Drugs Act 1975	6 months’ imprisonment and/or $1,000 fine	s 7(1)(a) of the Misuse of Drugs Act 1975
Possession of a pipe	1	s 13(1)(a) of the Misuse of Drugs Act 1975	1 year imprisonment and/or $500 fine	s 13(3) of the Misuse of Drugs Act 1975