R v Felts

[2013] NZHC 451

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-055-001262

CRI-2011-055-003191 [2013] NZHC 451

THE QUEEN

v

MARK FELTS

Appearances: N R Webby for Crown

E Te Whata for Prisoner

Judgment:      8 March 2013

SENTENCING NOTES OF ELLIS J

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – Email: [email protected]
Public Defence Service, P O Box 76715, Manukau 2241

Fax: [phone] – E Te Whata – Email: [email protected]

R V FELTS HC AK CRI-2012-055-001262 [8 March 2013]

[1]      Mr Felts, you appear for sentence today having pleaded guilty in the District

Court to ten charges that relate to a variety of offending between July 2011 and May

2012.More specifically, you pleaded guilty to: (a)     4 counts of burglary;1

(b)      1 count of cultivating cannabis;2

(c)       1 count of possessing cannabis for sale or supply;3

(d)      1 count of possession of methamphetamine;4

(e)       1 count of possessing a knife;5

(f)       1 count of wilful damage;6 and

(g)      1 count of failing to answer bail.7

[2]      The different types and circumstances of these offences make sentencing you a  little  but  complicated,  but  I  am  going  to  try  and  keep  my  explanation  and comments as brief and clear as possible.

Facts

[3]      First, I need to summarise the facts that relate to each of the charges.  I will deal with the burglaries first, then the drug offences and then the other charges.

[4]      The first burglary in time took place on 9 July 2011.  At about 1.15 am on that date you broke into the Mobil Station at 222 Great South Road, Drury.   The

CCTV showed you climbing down through a hole in the roof and into the area

1 Crimes Act 1961, s 231(1)(a), maximum sentence 10 years’ imprisonment.

2 Misuse of Drugs Act 1975, s 9(3), maximum sentence 7 years’ imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(f) and (3)(c), maximum sentence 8 years’ imprisonment.
4 Misuse of Drugs Act 1975, s 7*1)(a) and (2), six months’ imprisonment or a $10,000 fine.

5 Summary Offences Act 1981, s 13A, three months’ imprisonment or a fine of $2,000.

6 Summary Offences Act 1981, s 11(1)(a), three months’ imprisonment and $2,000 fine.

7 Bail Act 2000, s 37(a), one year imprisonment or $2,000 fine.

behind the counter.  You took property from a cabinet used to store surplus cigarette cartons but it is not known how much you took.  You left again through the hole in the roof.

[5]      Just before 2 am on 29 April 2012 you again burgled the Mobil Station.  The CCTV footage shows you repeating what you had done on 9 July the year before. Again, it is not known exactly what you took.

[6]      At about 5 in the morning of 3 May 2012 you burgled the Manuroa Superette in Takanini.  The CCTV shows that you again got in and out through a hole made in the roof. You took cigarettes and cash worth approximately $5,000.

[7]      Six days later at a similar time you burgled the same superette.  This time there was no CCTV footage because the camera was tampered with.  But other evidence was  found.   You  got  in  and  out  through  a hole in  the roof and  took cigarettes worth approximately $1,600.

[8]      Now I am going to talk a little bit about your drug offending.

[9]      At 4.30 pm on 21 September 2011 the Police stopped a car in Manurewa. There was a strong smell of cannabis in the car. You were in the back passenger seat and had with you a large bag that contained a sealed plastic box that was full of cannabis plant material.  A packet of unused ziplock bags was also inside the bag. The Police also found a rubbish bag containing several unprocessed cannabis plants and some dried cannabis wrapped in plastic in the boot of the car.  Police found a total of 2.6 kg of mainly wet cannabis material.  They say a conservative estimate based on that net weight was that when it was dried about 385.6 grams would have been obtained.

[10]     The Police also found in the car a black camera or phone case hidden behind your seat which contained three point bags of methamphetamine.    The methamphetamine in the bags totalled .5 grams.  They also found a black flick knife in your shoulder bag.

[11]     Two  months  later,  at  about  8.50  am  on  17  November  2011,  the  Police executed a search warrant at an address where you lived with some others.   The Police went into the sleep out where you were living and found a planter box containing three cannabis plants.   They were still quite young and about 10 centimetres high.   You had set up a surveillance system monitoring the driveway. You admitted that the plants were yours but said that you had grown them for your own use.

[12]     The wilful damage charge relates to something that happened while  you were, I think, on remand in Mount Eden after your arrest in May 2012.  Early in the morning you were put into a cell within the prison truck so you could be taken to court.  The cell is monitored by a camera.  While security staff were putting other prisoners into the truck you began banging your handcuffs against the lens of the CCTV monitor, which caused scratches to the lens.  You said you were just trying to get security staff’s attention because you wanted to move to another cell within the truck.

[13]     As I understand it, you also failed to answer District Court bail on 9 February

2012.

Personal circumstances

[14]     I now need to say something about your personal circumstances.  You are 32 years old, I think.  This is the ninth time in the last five years you have appeared for sentencing and in total you have 55 prior convictions, including six burglary convictions between about 2001 and 2010 and convictions for 11 other dishonesty offences like theft and shoplifting, and four cannabis-related convictions and one methamphetamine-related conviction.

[15]    The most recent full pre-sentence report is dated 7 September 2012 and it focuses on the burglary and wilful damage charges.   It says  that you present a medium risk of re-offending in this way but you present a low risk of harm to others. It says you accept what you did was wrong, but say you committed the burglaries because you were struggling financially.  You said to the report writer that you use

cannabis at least three times a week, or that you used at that time anyway cannabis at least three times a week.  The report says you completed the Ka Awatea alcohol and drug programme in 2011 and that you were doing the Getting Started programme run by the Community Alcohol and Drug Services while in jail.  It says that you would benefit from attending a variety of other alcohol and drug-related programmes.

[16]     There is another earlier full sentence report from January 2012 which focuses more on the drug and the knife charges.  That report says that you have two children and that you have regular contact with them.  It says that your last job was four years ago, as a mechanic, but have been a sickness beneficiary in between stints in prison since that time.  It says that you suffer from depression and take medication for it and you said to that report writer that you were using cannabis daily.  You told the writer that you had been associated with Black Power until mid-2011 but you are now not because you want to focus on your children.

[17]     You told the writer that you only pleaded guilty to the drug charges because you were drunk when the Police arrested you and made admissions to them.  You said the cannabis in the bag was yours but did not know about the plants in the boot. You said you had received the cannabis in payment for a day’s work and you said the methamphetamine bag belonged to someone else.

[18]     You also said that you have used cannabis since you were nine.    You said that the fact that the law prohibits cannabis use but not alcohol is a double standard and recreational use of cannabis should be allowed.  No doubt for those reasons you had difficulty at first accepting that there is any problem with your cannabis use although you say – and you still say – that you accept the consequences of what you did. And you said at that time, and you have said subsequently, that you are prepared to engage with alcohol and drug programmes.

[19]     There  is  also  a  more  recent,  supplementary,  pre-sentence  report,  from February this year.  It refers to the letters you have written and I have read the one that was handed up this morning.  It says that you have completed a number of courses  –  and  again  you  have  handed  up  some  more  certificates  about  that  – including business studies and educational programmes.  You have said that you are

completing as many programmes as possible to assist with your reintegration when you get out of prison.   You say that you are motivated to live differently and not to re-offend, that you are willing to attend a residential drug treatment programme and that you have been assessed as suitable to undertake the Bridge programme.

Purposes and principles of sentencing

[20]     In terms of the Court’s general approach to sentencing the law says that there are a whole lot of matters that I am required to take into account when sentencing you today.  They are all important but I am not going to talk about them to you in any detail this moring.  I will just refer to the most relevant of them as I go along.

Sentence indication hearing: burglary and wilful damage charges

[21]     Now, as you know, there has already been a sentence indication hearing in the District Court in relation to the burglary and wilful damage charges.  It was after you accepted that indication that you pleaded guilty to those charges.  The upshot of it was that for those charges the indicated sentence was three years imprisonment.8

[22]     Although that indication is not binding on me, both the Crown and your lawyer, Ms Te Whata, accept it is reasonable, and so do I.  In forming that view I have considered what guidance there is in other court decisions9  and the sentences that have been imposed in cases that are similar to yours.10   I have taken the burglary on 3 May 2012 as the lead offence and had regard to the facts that I have already

spoken about. They show that you deliberately set out to steal from the superette and you must have planned the break-in carefully.   You took from a small business

$5,000 worth of property and cash and you damaged the building as well.11

8 Judge McAuslan’s notes show that the three year term was arrived at in the following way: (a) A starting point of three years nine months’ imprisonment;

(b) An uplift of six months to reflect prior convictions; and
(c) A guilty plea discount of 25 per cent;

(d) A final reduction of 2 months for mitigating factors personal to Mr Felts.

9 In this respect I respectfully adopt the summary of the present position given by Wylie J in Ikahihifo v Police [2012] NZHC 3553 at [16].

10  In particular Ikahihifo v Police (ibid); Moses v Police HC Whangarei CRI-2011-488-000006, 24

March 2011; Kauwhata v R [2010] NZCA 437; Wootton v R [2010] NZCA 548.

11 Starting point of two years six months.

[23]     In reaching a three year end sentence I take into account that there were three other burglaries12 and the fact that you have previous burglary and other dishonesty convictions which do not help you today.13   But on a more positive note, I also took into account – as did Judge McAuslan – your guilty plea and the remorse that you are now showing and the evidence of your desire to do something better with your life going forward.  Pleading guilty tells me that you began to take responsibility and

you have continued to take responsibility for what you have done and also means that you have saved the State the cost of one or more trials.14

[24]     So for all those reasons I agree with Judge McAuslan that the appropriate end sentence on the burglary charges would be one of three years imprisonment.

Other charges: cumulative sentence

[25]     Now, as I think Ms Te Whata has explained to you, because the burglary charges are really quite different from the drug charges the Crown submits, and she responsibly accepts, that there must be a separate sentence for your drug offending that will be added to the burglary sentence and I agree with that.  The Crown says an additional sentence with a starting point of between 15 and 18 months’ imprisonment is appropriate but with a full discount for your guilty pleas. Ms Te Whata asks for an end sentence of approximately a further seven to eight months’ imprisonment.

[26]     If the possession for supply charge is taken as the lead offence the main issue is whether you were intending to sell the cannabis that was found in the car on that day in September 2011 for profit.  Although there quite a lot of cannabis found you have said that it was for the private use of you and your friends.  In my view there is no evidence that really contradicts that and, indeed, it seems clear that you yourself have been a high user of cannabis for a long time.  The Crown also seems to accept

that there was not evidence of a commercial element to what you were doing.

12 Uplift of one year for totality.

13 Uplift of six months.

14 Discount of 25 per cent.

[27]     In sentencing people for drug offending, the Court’s main goal is to condemn such offending and try and put you and others off from committing such offences in the future. Again, it is important to try and arrive at a sentence that is consistent with other similar cases and I have considered a number of those.15   In your case there is also the knife charge and there should be a small increase for that and the other drug charges.16   I do not propose to add anything for your previous convictions though.

[28]    Taking these and the relevant Court of Appeal guidelines into account, I consider that the starting point for sentencing you on the possession for supply charge would be 16 months imprisonment.17    But again, as I have said, it is agreed that a 25 per cent for your guilty pleas and to recognise the positive steps that you have been taking in prison should be given.

[29]     So if we were going to combine the end sentences for the burglary and drugs charges that would give a total effective sentence of four years imprisonment but, for the reasons given by Ms Te Whata and in light of the further positive steps you have been taking, I propose to reduce this to a final sentence of three years and nine months’ imprisonment.

[30]     So Mr Felts if you could stand up now.

[31]     I am going to provide a breakdown to counsel of precisely how the sentence is made up but what you need to know now is that the combined end sentence for all the offences for which you have been sentenced today is three years and nine months’ imprisonment.   And in  saying that,  I do  recognise  that  you  are really making an effort to get things together and I really hope that you manage to do that

and wish you well when you get out of prison.

15  For example R v Walters [2012] NZHC 1750; R v Fraser HC Wanganui CRI-2010-083-980, 26

October 2010; R v Andrews [2000] 2 NZLR 205.

16 Uplift of two months.

17 R v Terewi [1999] 3 NZLR 62. But, like Asher J in R v Parekura HC Rotorua CRI-2009-087-779,

18 August 2009, I have reservations about the aptness of any direct application of Terewi in this case.

[32]     There will be orders for the destruction of the cannabis and the cannabis plants found by the Police and your surveillance system.   The reparation that was sought is not feasible so I make no orders about that.

[33]     Please stand down.

Rebecca Ellis J

Postscript

[34]     When first sentencing Mr Felts this morning some confusion arose as a result of Mr Webby’s oral explanation of the Crown’s written submissions on the appropriate sentence for the drugs charges.  What he made clear was the 15 – 18 months referred to in his written submissions was prior to any guilty plea discount the effect of which I discussed at the time with Mr Webby.  That was contrary to the way I had interpreted his written submissions which had of course been taken into account when preparing my draft sentencing notes.

[35]     As a result of Mr Webby’s advice it was my intention to reduce the sentence for the drug offences contained in my notes from 20 to 16 months (paragraph [28] above) which would have reduced the combined end sentence from four years and three months to four years.   The same final reduction as in my original notes (paragraph [29]) would have given a final sentence of 3 years 9 months.

[36]     In the event, however, I accidentally omitted to make those changes.

[37]     As soon as the Court had adjourned I realised my mistake and asked the Court Taker to arrange to have counsel and Mr Felts come back to Court so I could correct it, if counsel for the Crown did not object.  It seems clear that a Judge may

make such a change provided it is made prior to signing the Return of Prisoners

Tried form.18

[38]     Although the Registry was unable to locate Mr Webby, Mr Perkins appeared on  his  behalf  and  did  not  object  to  the  changes  being  made.    Mr  Felts  was accordingly sentenced to 3 years and 9 months imprisonment.  The corrections that have been made to my original sentencing remarks have been highlighted in bold,

above.

18 Police v Hallmond [1951] NZLR 432 (SC); R v Davidson [1966] NZLR 626 (CA).

R v FELTS SCHEDULE

SENTENCE FOR EACH CHARGE

Offence	Date of offence	Recommended sentence	Concurrent or cumulative
4 x Burglary	9 July 2011 (CRN 12055001209)	Three years imprisonment	Concurrent
	3 May 2012 (CRN 12055001210)	Three years imprisonment
	29 April 2012 (CRN 12055001214)	Three years imprisonment
	9 May 2012 (CRN 12055001399)	Three years imprisonment
Wilful damage	31 May 2012	Convicted and discharged
Cultivation of cannabis	17 November 2011	Three months imprisonment	Concurrent on each other, but cumulative on the burglary charges
Possession of cannabis for the purposes of sale/supply	21 September 2011	Nine months imprisonment
Possession of methamphetamine	21 September 2011	Two months’ imprisonment
Possession of a knife	21 September 2011	Convicted and discharged
Failure to answer bail	9 February 2012	Convicted and discharged