R v Gillett
[2024] NZHC 385
•29 February 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2021-088-2754
[2024] NZHC 385
THE KING v
TAIOMA ROBERT GILLETT
Hearing: 29 February 2024 Counsel:
A J Goodwin for Crown
J Scott (on instructions from S Thode) for Defendant
Judgment:
29 February 2024
JUDGMENT OF BREWER J
[Application for adjournment of sentencing]
Solicitors:
Marsden Woods Inskip Smith (Whangārei) for Crown Thode Utting (Whangārei) for Defendant
R v GILLETT [2024] NZHC 385 [29 February 2024]
Introduction
[1] On 22 December 2023, Mr Gillett pleaded guilty to very serious drugs charges involving the importation of methamphetamine and his own participation in an organised criminal group. Mr Gillett’s pleas of guilty followed a sentence indication given by Becroft J on 13 December 2023. His Honour indicated a starting point of 12-and-a-half years to 13 years’ imprisonment. Justice Becroft also indicated there would be a 12-and-a-half per cent reduction for the pleas of guilty.
[2] Justice Becroft was aware that Mr Gillett had recently commenced a programme at Odyssey House to address his methamphetamine dependency. Mr Gillett applied for continuing bail so that he could continue to participate in the programmes at Odyssey House. This application was granted.
[3] Mr Gillett is scheduled to be sentenced on 15 March 2024. He now applies for an adjournment of the sentencing to enable him to continue to engage with the Odyssey House programmes. The information I have is that the programmes will continue for a further six to nine months. Accordingly, any adjournment of the sentencing would be for a like period.
Submissions
[4] The issue, therefore, is whether the interests of justice require Mr Gillett’s sentencing to be put off for a further six to nine months. Mr Scott, for Mr Gillett, submits that the interests of justice go firmly to allowing Mr Gillett to continue to engage with the Odyssey House programmes. He has made careful submissions this morning in support of that position.
[5] Mr Scott submits that Becroft J made it clear that successful engagement with the Odyssey House programme would be a significant factor to be considered in the setting of the final sentence. Mr Scott has filed an updated report from Odyssey House dated 19 February 2024 which outlines Mr Gillett’s positive engagement with the programme. Mr Scott points out that should sentencing proceed on the scheduled date of 15 March 2024, Mr Gillett will only have engaged with the programme for three months.
[6] Mr Scott goes on to address the positive aspects of permitting the adjournment of the sentencing. First, Mr Gillett would have the best opportunity to address his addiction. That would not only make imprisonment more bearable for Mr Gillett but would benefit the community on his release since being free of methamphetamine dependency would reduce his likelihood of committing further criminal offending. Mr Scott refers to s 25(1)(d) of the Sentencing Act 2002 which states that the court may adjourn proceedings in respect of any offence after an offender has pleaded guilty to enable a rehabilitation programme to be undertaken.
[7] Mr Goodwin, for the Crown, submits that the length of the proposed adjournment is too long and the application itself does not recognise the reality of Mr Gillett’s situation. Mr Goodwin cites the Supreme Court decision in Berkland v R1 in which the court held that the primary focus of the adjournment power under s 25 of the Sentencing Act was about alternatives to incarceration. There is, in this case, no alternative to incarceration. Mr Goodwin, however, acknowledges that the court noted that the power in s 25 also enabled the court to obtain information on an offender such as their amenability to rehabilitation. In this latter respect, Mr Goodwin’s submission is that Mr Gillett has not been remanded in custody following his pleas of guilty but has instead been permitted to engage with the Odyssey House programme for a period of three months. His record during those three months would be before the sentencing court and would be sufficient for the court to consider Mr Gillett’s capacity for rehabilitation.
[8] Mr Goodwin also makes the submission that against the inevitability of a substantial prison sentence, the weight to be given to Mr Gillett completing nine to 12 months of the programme as opposed to three months of the programme would be negligible. Further, the Department of Corrections runs significant programmes for the treatment of drug addiction for prisoners in custody and these programmes would be available for Mr Gillett.
[9] Finally, Mr Goodwin points to the nature of the charges to which Mr Gillett has pleaded guilty. They are very serious charges of involvement at a middleman level
1 Berkland v R [2022] NZSC 143; [2022] 1 NZLR 509.
in the importation of methamphetamine in very significant quantities for profit. There is no indication that Mr Gillett’s involvement in this offending was driven by a methamphetamine addiction.
[10] Mr Goodwin points out that in Zhang v R,2 the Court of Appeal, in discussing the type of case that might warrant an adjournment, noted that there should be independent evidence to suggest that the offending was caused by factors that the proposed programme is designed to target. Here there is a mismatch.
Discussion
[11] I must address the reality of the situation. Mr Gillett has pleaded guilty to very serious charges relating to drug importation and his involvement in an organised criminal group. He has accepted the sentence indication of Becroft J. He is going to go to prison for a significant period. It might well be to his personal benefit for him to continue with the Odyssey House programme. The benefit would be both overcoming a methamphetamine dependence and potentially securing a greater personal factors discount on his starting point for imprisonment. But, Mr Gillett’s personal interests do not override the interests of the proper functioning of the Justice system, which includes the sentencing of prisoners for serious offending at the first reasonable opportunity.
[12] I agree with Mr Goodwin that if Mr Gillett can come to court with a positive report from Odyssey House dealing with his three months engagement with their programmes, then that will count in his favour at sentencing. His potential for rehabilitation will have been established. That is a factor the sentencing Judge will take into account.
[13] I also accept Mr Goodwin’s submission that the Department of Corrections has well known programmes aimed at prisoners who have drug addictions. These will be available to Mr Gillett.
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[14] Mr Gillett has received an indulgence that has permitted him to continue with the Odyssey House programme notwithstanding his pleas of guilty to his offending. This will have the effect of enabling him to put before the court at sentencing as much material as is reasonably possible to inform the court of his addiction and of his potential for rehabilitation. In my view, it is in the interests of justice now for Mr Gillett to be sentenced as scheduled.
[15] The application for further adjournment of sentencing is dismissed. I direct that Mr Gillett be remanded on his existing terms of bail to appear for his sentencing at 10 am on 15 March 2024.
Brewer J
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