R v G HC Auckland CRI 2006-004-16031

[2008] NZHC 1963

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-016031

THE CROWN

v

G AND
T

Hearing:         9 December 2008

Appearances: J Donkin for the Crown

M N Pecotic for the accused T J G 
G W Wells for the accused AGM T 

Judgment:      9 December 2008

SENTENCING NOTES OF JOHN HANSEN J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland

G W Wells, PO Box 6078, Wellesley Street, Auckland

M N Pecotic, PO Box 6397, Wellesley Street, Auckland

R V G AND AND ANOR HC AK CRI 2006-004-016031  9 December 2008

[1]      Ms T  , you and your co-accused have pleaded guilty to a number of charges following the execution of a search warrant at the apartment where you resided.    You  have  both  pleaded  guilty  to  possession  of  methamphetamine  for supply;  you have both pleaded guilty to possession of LSD;  you have both pleaded guilty to possession of a methamphetamine pipe.   In addition, you have pleaded guilty to possession of ecstasy.

[2]      It must be stated clearly at the outset that your culpability is much less than Mr G  , who has also pleaded  guilty to three serious  charges  relating to  the possession of a shotgun, ammunition and a stun gun.

[3]      This offending goes back some considerable time.  As a result of the search of the apartment, the Police search revealed a shotgun, four shotgun  shells, 53.22 calibre bullets, two methamphetamine pipes, 1.7  grams of methamphetamine, .5 grams of ketamine, 22 unused snaplock bags  and a set of electronic scales, 12 ecstasy tablets, two LSD tablets and a small amount of cannabis.  $8413 in cash was also found, as were cellphones that the Police believe were used for arranging for drug deals.  The shotgun was lying in the middle of the lounge floor in plain view.

[4]      The pre-sentence report on you describes a background of drug abuse from a young age and drug addiction.  What it does say, however, is that in your case there are very real signs that you are now prepared to address those difficulties and it recommends home detention on a condition that you immediately go to a residential drug programme.

[5]      The   Crown   submits   in   your   case   that,   although   the   amount   of methamphetamine places this in the lower regions of band 1 in the Court of Appeal tariff case of R v Fatu [2006] 2 NZLR 72, The presence of other accoutrements of dealing, electronic scales, snaplock bags, the significant sum of cash and such like, puts it higher in the band. They submit for a starting point of at least 3 years and 9 months imprisonment, which includes an uplift for your other offending. Your counsel contends for a much lower starting point, contending indeed it should be as low as 2 years and 9 months.

[6]      Taking into account comparable cases, such as R v Maihi HC WH T051522

29 June 2006, Lang J, R v Hoeta HC AK CRI 2006-057-1237 21 November 2006, Lang J and R v Letoa HC AK CRI 2007-092-9096 6 December 2007, Andrews J, it seems to me that an appropriate starting point sentence on the most serious charge, the possession of methamphetamine for supply, is one of 3 years imprisonment.  For the other three offences it is appropriate for an uplift, that uplift being one of 3 months, giving a starting point of 3 years and 3 months.

[7]      There  is  nothing  personally  aggravating  in  your  behaviour.     There  is significant mitigation for your early guilty plea which the Crown accepts was as early as possible; for your previous clean record;  for your youth at the time of the offending, and for the efforts that you have made to rid yourself of your addiction. An allowance for those factors would be appropriately one of 12 months.

[8]      Accordingly,   on   the   possession   of   methamphetamine   for   supply   the appropriate  sentence  is  one  of  2  years  and  3  months  imprisonment.    On  the possession of LSD, possession of methamphetamine and the possession of ecstasy, appropriately you would be sentenced to 2 months imprisonment concurrent. However, in the light of the decision of R v Hill [2008] NZCA 41 29 February 2008 and the state of the legislation at the time of your offending, you are eligible for home detention.

[9]      The Crown contend that the serious nature of the offending, particularly the presence of the accoutrements of dealing, outweigh any suggestion that home detention is an appropriate sentence.   They submit that in drug dealing cases deterrence and denunciation are more important factors to consider than rehabilitation.  However, the Court of Appeal in Hill made it plain that in appropriate cases where rehabilitation is appropriate and possible, that leaving someone in the community to be rehabilitated is a significant factor that can be taken into account. The Court of Appeal noted in R v Stacey [2008] NZCA 465 4 November 2008 that the home detention provisions are set within the general context of the Sentencing Act and it must be imposed in a way consistent with the purposes and principle of that Act. They repeat that deterrence and denunciation are important in areas of offending such as drug offending.

[10]     In the circumstances of your case, given your previous clear record, given the length of your addiction and the fact that for the first time you are realistically addressing that addiction, it seems to me appropriate to impose a sentence of home detention.  I think that is very much not only in your interests, but in the interests of the public and society generally.  It will give you the opportunity to rehabilitate and become a useful member of society, whereas imprisonment is likely to inculcate in you the criminal offending that you have been guilty of on this occasion.

[11]     Accordingly, you are sentenced to 12 months home detention.  They will be on the conditions that:

a)       You are to travel directly today to the Wings Trust 1986 Incorporated house at 31 Oxton Road, Mt Eden, and await the arrival of the probation officer and the security officer;

b)You are to reside at 31 Oxton Road, Mt Eden, or any of the six Wings Trust houses in Auckland, as directed by Wings Trust and the probation officer;

c)        You  are  to  attend   and   complete  treatment   with   Wings   Trust

Incorporated to the satisfaction of the probation officer;

d)You are to attend and complete further alcohol and drug programme counselling and/or residential rehabilitation as directed by the probation officer;

e)       You are to attend and complete any other programme in counselling if and as directed by the probation officer;

f)        You are to abstain from alcohol and illicit drugs for the duration of the home detention at sentence;  and

g)       You are not to associate with your co-offender, Mr G  , for the duration of the home detention at sentence.

And the post-conditions of sentence imposed are:

h)To complete any counselling programmes, including residential, if and as directed by the probation officer;

i)To attend and complete any further programme counselling if directed by the probation officer;

j)To  abstain  from  alcohol  and  illicit  drugs  for  the  duration  of  this sentence;  and

k)Not  to  associate  with  your  co-offender  for  the  duration  of  this sentence.

[12]     There will be an order forfeiting the cash to the Crown.   There will be an order for the destruction of the drugs and utensils.

[13]     Ms T  , given the length of your addiction, it is surprising you have not been before the Courts before.  You have been given the first chance but given the seriousness of this drug, you must realise it is your only chance.  If you do not take it you will end up in jail.

………………………… John Hansen J