R v Gordon
[2012] NZHC 1117
•16 May 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2011-009-008240
CRI-2012-009-002319
CRI-2011-009-003011 [2012] NZHC 1117
THE QUEEN
v
ROBERT WILLIAM GORDON JEREMY RAYMOND WHALL MICHELLE JOY TAGESTAD
Appearances: N M Robson for Crown
A S Greig for Robert Gordon
P J Butler for Jeremy Whall
G P Tyrell for Michelle Tagestad
Judgment: 16 May 2012
REMARKS ON SENTENCE OF CHISHOLM J
[1] Robert Gordon, Jeremy Whall and Michelle Tagestad, you have pleaded guilty to the charges that I will mention in a moment. The District Court declined jurisdiction and referred the matter to this Court for sentencing. That is because of limits on what a District Court Judge can do in a situation like this.
[2] As far as you are concerned, Mr Gordon, you face two charges: possession of a precursor substance and possession of methamphetamine. Mr Whall, you are charged with possession of material with intent. Ms Tagestad you have three charges: two of possessing material with intent, one of possessing a precursor
substance and one of possessing Benzylpiperazine.
R V GORDON HC CHCH CRI-2011-009-008240 [16 May 2012]
[3] The offending was revealed as a result of a police operation which commenced in October 2010. Between January and July, you, Mr Whall, purchased iodine on six occasions and on one of those occasions Ms Tagestad was also present.
[4] In July Ms Tagestad booked into a Christchurch hotel. She was joined there by Mr Gordon. After you, Mr Gordon, left the hotel the vehicle you were driving was stopped by the police and they found 5 grams of methamphetamine, scales and medication in the form of 24 capsules containing pseudoephedrine. There was also search of the hotel unit pursuant to a search warrant. Mr Whall and Ms Tagestad you were present in the bathroom. Chemicals, material and equipment capable of manufacturing methamphetamine were found in the bathroom and in the lounge.
[5] It is common ground (in other words there is no dispute) that with the exception of an unrelated matter which I will mention in a moment concerning Ms Tagestad, you were all operating together to supply your own needs. There was no commerciality.
[6] The other matter, in respect of which you face sentence Ms Tagestad, occurred on 2 March 2011. A vehicle in which you were a passenger was stopped and you were found to have in your possession a packet of Benzylpiperazine
[7] At this stage I am going to talk about you each individually. I am going to start with you Mr Gordon.
Robert William Gordon
[8] As I have already mentioned, you face two charges. You are 31 years of age. You have three previous drug related convictions in 2000 concerning the supply of LSD, cocaine, and a Class B drug. You were sentenced on that occasion to imprisonment for one year and one month. The sentence was suspended.
[9] As in the case of each of you, there is a very full and helpful probation officer’s report. You live in Gore; you have a supportive family; the probation officer reports genuine remorse; the underlying reason for the offending, as the
probation officer sees it, is your drug problem. The assessment is that you appear to be motivated to remain drug free and at the time the report was prepared you were in employment with a contracting company. I understand that is no longer the case.
[10] You self referred to a psychologist who has provided a report. That was not the first time you had self referred to the psychologist to try and get on top of your drug addiction. The psychologist’s report before the Court indicates that you have already attended four sessions and the psychologist believes that you are prepared to put in the effort. Of course it goes without saying that you have got to. You have no option.
[11] The probation officer tells me that you have the support of your mother, your step-father and your former girlfriend. Your employer has also written to the Court confirming that you have undertaken your employment tasks in a professional manner. There are letters from your mother and step-father, as well as a letter you have written.
[12] I can be very brief as far as aggravating and mitigating factors are concerned. In terms of the offending there are no aggravating factors. The personal aggravating factor is, of course, that you have previous offending involving drugs. Previous offending is never helpful when it comes to sentencing. But I take into account that it was over 10 years ago. As far as mitigating factors are concerned, I take into account that you have pleaded guilty and that you have taken steps to rehabilitate yourself.
[13] The Crown suggests that the starting point should be in the region of 18 to 21 months and no real issue is taken with that by your counsel, Mr Greig. I adopt a starting point of 18 months. I cannot ignore the fact that you have previous convictions which attracted a suspended prison sentence. You were given a chance then. I apply an uplift of two months to reflect the previous convictions. That brings me to a notional sentence of 20 months imprisonment. You are entitled to a 25% discount for your guilty plea which would bring the prison sentence down to
15 months, which is within the home detention range.
[14] There are three possibilities: one is that I simply send you to prison; another is that although there is no home detention report at this stage (and I understand that it is in the pipeline), that I impose a prison sentence with leave to apply for home detention as soon as the report comes through; and the third is to impose a sentence of intensive supervision.
[15] In the normal course of events someone with previous convictions for serious drug offending would be facing a sentence of imprisonment. But I have to say that the steps you, with the support of your family, are taking persuade me that that is not the right course. But for the rehabilitative factors that are so evident in the probation report and in the letters before me, I would have imposed a sentence in the region of
15 months imprisonment, probably with a reduction to reflect your personal motivation to change.
[16] As it is, I have decided that the appropriate sentence is home detention. Given that you have previous convictions, intensive supervision would not be appropriate. So it is necessary to decide on the sentence of home detention (which I am anticipating will follow but it might be a few days down the track). Around
15 months imprisonment would equate with something in the region of seven to eight months home detention. In your case the home detention period will be seven months.
[17] Would you stand now Mr Gordon. The sentence that I impose on you in relation to the charge of possession of methamphetamine is a sentence of fourteen months imprisonment but I am granting you leave pursuant to s 80I of the Sentencing Act 2002 to apply for home detention. The home detention (and I am confident that the report will be favourable) will be for a period of seven months. There will be a concurrent sentence of seven months home detention for possessing a precursor substance.
[18] The conditions of the home detention will be that you are:
(a) to go directly to the home detention address and await the probation officer and security officer;
(b)to reside at the address for the duration of the sentence of home detention;
(c) not to purchase, possess or consume alcohol and/or illicit drugs for the duration of the home detention;
(d) to report to the probation officer as and when directed;
(e) to attend and complete any recommended counselling or treatment including inpatient for the abuse of alcohol and other drugs to the satisfaction of the probation officer and programme provider;
(f) to attend a pre-programme interview and, if suitable, to attend and complete a departmental rehabilitation to the satisfaction of the programme facilitators.
[19] So that completes your sentencing, you may sit.
Jeremy Raymond Whall
[20] You face the one charge of having equipment with intent. You are 32 years of age; you have a lengthy list of previous convictions, mainly for dishonestly. There is, however, a previous conviction in 2004 for possession of methamphetamine.
[21] It is apparent from the probation officer’s report that you have been grappling with a methamphetamine problem for some time. You have been on electronic bail for around nine months and Mr Butler brought to my attention that the bail has been effectively a 24 hour curfew.
[22] You have the support of your mother and you have apparently not used methamphetamine for around eight months, which is a feather in your cap, but this is only the beginning. You have to stick with it. You meet the Corrections criteria for an intensive rehabilitation programme.
[23] I do not need to repeat the aggravating and mitigating features. I have already outlined those concerning Mr Gordon and yours are the same.
[24] As far as the Crown’s starting point is concerned, it is in broad terms a range of 18 to 21 months. For my part, given that there is only one charge, I think that might be a bit high and I would adopt a starting point of 15 months. You do, however, have a previous conviction and I would uplift that by a month to reflect the previous conviction, albeit some time ago. That would bring the notional sentence to
16 months. You are entitled to credit for your guilty plea of 25% (four months) which would bring the prison sentence down to 12 months. Because that is within the range for a community based sentence I now turn to the issue of community based sentences.
[25] In the normal course of events I would have sentenced you to home detention, Mr Whall, for six months. There is, however, strength in Mr Butler’s submission that the time that you have already spent on the 24 hour curfew should be taken into account and I agree with him that the appropriate sentence in your case is
12 months intensive supervision. If you would stand I will pass sentence. [26] You are sentenced to 12 months intensive supervision.
[27] You are to undertake and complete the Corrections MIRP programme and abide by the rules of the programme to the satisfaction of the programme provider and probation officer. If any other conditions are required there will have to be an application to the Court, which I expect could dealt with on the papers.
[28] The final thing I should direct in your case is that electronically monitored bail is now formally terminated. That completes your sentencing.
Michelle Joy Tagestad
[29] You face more charges than the others but, as Mr Tyrell said, you are basically all in this together. I do not think that there is any need for a significant discrepancy between you and the others.
[30] You are 32 years of age. Although you have a lengthy list of previous convictions the drug related convictions are the only ones that are relevant. In 1998 you were convicted of having cannabis for supply. That does not help you one little scrap. The remaining charges were possession of utensils and instruments in 1997,
1998, 2003 and 2004.
[31] Your probation officer’s report makes sad reading in many respects and it provides insight into why you are grappling with drugs these days. The report indicates that since you were bailed you have not used drugs.
[32] As far as aggravating and mitigating features are concerned, they are essentially the same as for the other two that I have just sentenced.
[33] The Crown’s starting point for you was a little higher than the others: two to two and a half years. But, as I have already said, I do not see a lot of difference between your offending and the offending of the other two. You do, however, face another unrelated charge.
[34] I would have thought the proper starting point in your case, taking into account the additional charge, is 20 months. I would add two months for the previous offending, which would take it to 22 months. Then I provide a discount of
25% (five and a half months, I will say six months). So that would bring the prison sentence in your case down to 16 months. You are therefore eligible for a community based sentence and home detention is the appropriate sentence in your case, bearing in mind that you are facing a number of charges and you also have previous convictions.
[35] So I am going to sentence you to eight months home detention. I will now ask you to stand so that I can impose the sentence.
[36] On the charge of possession of a precursor substance you are sentenced to eight months home detention; on the other possession charges you are sentenced to concurrent sentences of eight months home detention; and you are convicted and discharged on the charge of possession of Benzylpiperazine.
[37] The conditions of your home detention are that you are:
(a) to go directly to Flat 2, 29 Perth Street, Richmond, Christchurch, and await the probation officer and security officer.
(b)reside at that address for the duration of the sentence of home detention.
(c) not to purchase, possess or consume alcohol and/or illicit drugs for the duration of the home detention.
(d) report to the probation officer as and when directed.
(e) to attend and complete any recommended counselling or treatment including inpatient treatment for the abuse of alcohol and other drugs to the satisfaction of the probation officer and programme provider
(f) to attend a pre-programme interview and, if suitable, to attend and complete a departmental rehabilitation programme to the satisfaction of the programme facilitators.
[38] There will be an order for the destruction of the Benzylpiperazine.
Robert William Gordon (again)
[39] Mr Greig has just indicated to me that he has spoken with the probation officer. Although a report is not yet in a form where it can be transmitted to the Court, the probation officer has confirmed that the address of 46 Ballantyne Road, Wanaka, is suitable for home detention.
[40] Mr Greig properly points out that unless I re-visit the sentencing a further application will be required which would, of course, involve everyone in unnecessary time and expense.
[41] I am, therefore, going to modify the sentence that I imposed on you a short time ago. You are sentenced to home detention on the conditions already announced. The address to which you will have to report will be 46 Ballantyne Road, Wanaka,
and that will be the address at which you are to remain for the duration of the period of home detention.
Postscript
[42] In some ways you three are lucky that you are able to go home tonight. Given your previous convictions another appearance involving drugs is unlikely to have that outcome. It is for the good of you and your families (and all of you have family support) to get rid of the drug addiction and move on.
Addendum
[43] When imposing a sentences of home detention on Mr Gordon and Ms Tagestad for more than six months I omitted to record pursuant to s 80N(2)(a) of the Sentencing Act that the standard post-detention conditions will apply to each prisoner for a period of six months (not the standard 12 months) from the detention end date.
Solicitors:
Raymond Donnelly & Co, Christchurch, [email protected]
Anthony Greig, Christchurch, [email protected]
Weston Ward & Lascelles, Christchurch, [email protected]
Patrick Butler, Christchurch, [email protected]
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