R v H HC Auckland CRI 2007-092-6572
[2009] NZHC 1661
•22 April 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-092-006572
THE QUEEN
v
H
Hearing: 22 April 2009
Appearances: C Ryan for the Crown
C Comeskey for the prisoner
Judgment: 22 April 2009
SENTENCING NOTES OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140
C Comeskey, PO Box 4304, Shortland Street, Auckland 1140
R V H HC AK CRI 2007-092-006572 22 April 2009
[1] H , you appear for sentencing today having pleaded guilty to one charge of permitting premises to be used for the purpose of the commission of an offence against the Misuse of Drugs Act 1975 for which the maximum penalty is ten years’ imprisonment. You also face one charge of possession of equipment capable of being used in the commission of an offence under ss 6(1)(b) and 9 of the Misuse of Drugs Act 1975 and the maximum penalty for that offence is five years’ imprisonment. The charges to which you have pleaded guilty are serious.
[2] For the purpose of your sentencing today, I have been assisted by helpful written and oral submissions from the Crown and very thorough and helpful submissions from your own counsel, Mr Comeskey. I have also read the very sincere and supportive letter from your brother Mr Lance H , as well as the pre-sentence report. I acknowledge the presence of your family and parents in Court today demonstrating the support which you have.
Factual background
[3] On 1 March 2006, Police inquiries resulted in the execution of a search warrant at 2 Lissleton Drive, East Tamaki. That was a property in respect of which you and your wife were tenants. The lease was formally in your wife’s name. You and another person, Mr Lee, were present at the address during the execution of the search warrant.
[4] Police discovered a clandestine laboratory containing various amounts of equipment and precursor chemicals used in the manufacture of methamphetamine. Disturbingly, a total of 27.9 grams of methamphetamine was located in the house. The equipment was located in various stages of the manufacture of methamphetamine. Fingerprints were located on several items used in the manufacture and these were identified as yours.
[5] You were also searched and a small plastic bag containing orange crystalline powder and methamphetamine was found in your possession, that weighed 2.9 grams. You were sentenced in respect of this matter together with a charge of
cultivating cannabis at the same address in the District Court at Manukau by Judge Singh on 26 March 2007. You were sentenced to a term of imprisonment of 18 months with leave to apply for home detention. I have taken the trouble of obtaining the sentencing notes of Judge Singh so I am aware of the basis upon which the sentence was imposed. It was important for me to do this, so that when I come to determine the appropriate sentence, I can apply the totality principle because all of the offending occurred at the same time and in respect of the same address.
Personal circumstances and pre-sentence report
[6] You are 43 years of age and of European descent. You were born in Auckland. You lived for a period in Invercargill and then moved to South Africa for five years. You returned to New Zealand at the age of 12 and attended Papakura High School. You left school in the fifth form to complete a Federated Farmers apprenticeship, which you completed when you were 18 and began work as a sharemilker.
[7] At the age of 20 you married your first wife and had two children together. You separated in 1996 and then began a relationship with your second partner, with whom you have four children. You separated from that relationship in 2001 and you care for two of the children. At the end of 2001 you met and married your current wife.
[8] You are currently self-employed as a painting contractor which, as your counsel explained, is a thriving business. You are described as a reliable and hardworking person. You have no health issues and are not viewed as having any harmful pattern of alcohol abuse.
[9] You explained to the Probation Officer that your past offending occurred because of your inability to overcome your addiction to cannabis. You said you rented the house at Lissleton Drive for your friend Mr Lee who was sick. He was growing and using cannabis in the house for his illness. You became anxious because the house was rented under the name of your wife and you tried to hide the cannabis. Shortly before the Police search three associates of Mr Lee had used the
house for the manufacture of methamphetamine. These associates had left the house before the Police raided.
[10] You have expressed remorse for your offending, which the Probation Officer accepts as genuine, and state that you have never been a user of methamphetamine. You say that since your arrest you have turned your back on drugs altogether. Encouragingly you have voluntarily completed an alcohol and drug course in 2007. You also completed in 2007, a CADS assessment, six group sessions with CADS and the department’s Medium Intensity Rehabilitation Programme. The Probation Officer notes that no other rehabilitative programmes are necessary, but obviously during the sentence that you will serve this needs to be carefully monitored. You are assessed as having a low risk of re-offending.
[11] The Probation Officer arranged for all the relevant consents for a sentence of home detention to be obtained and the probation report recommends either community detention and community work, or home detention.
Previous convictions
[12] You have several previous convictions relating to cannabis, methamphetamine possession, failure to answer bail, assault, misuse of a telephone, burglary and driving offences. As I have already noted, the most recent of these convictions occurred in March 2007 – the other part of the offending that occurred at the Lissleton Drive address. You have $13,500 in outside fines.
Submissions
[13] The Crown acknowledged that this offending was part of the offending for which you were sentenced in March 2007and that I must in sentencing you today apply the totality principle.
[14] The Crown submitted that a starting point of between two and three years’
imprisonment would be appropriate if I were to impose a sentence of imprisonment.
[15] The Crown referred to various aggravating features and submitted that there were no mitigating features regarding the offending, because quite frankly it was serious. But the Crown acknowledged that you are entitled to credit for mitigating features relating to you as the offender, including your guilty pleas, your remorse, rehabilitation steps undertaken and your offer to undergo courses to deal with your previous addiction.
[16] The sentencing submissions of the Crown were based on the premise that the lead offence would be the permitting premises to be used charge and I agree with that approach.
[17] Your counsel Mr Comeskey submitted that this was a case in which a non- custodial sentence could properly be imposed. Your counsel agreed that a starting point of two years’ imprisonment is appropriate and in discussion he also acknowledged that a small uplift for the second offence would be appropriate.
[18] Your counsel emphasised the mitigating features to which I have already referred and submitted that a discount to reflect these would be appropriate. Further, your counsel acknowledged that the appropriate sentence as between community detention and home detention would be one of home detention.
Relevant purposes and principles of sentencing
[19] 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; the need to deter you and others like you from committing the same or a similar offence; and the need to assist in your rehabilitation and reintegration.
[20] In sentencing you, I also take into account the principles of sentencing according to s 8 of the Sentencing Act, 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 and with similar offenders; the need to take into account particular circumstances of the offender that would mean an ordinarily appropriate sentence would be disproportionately severe; and the need to impose the least restrictive outcome that is appropriate in your circumstances.
Features of the offending
[21] The Court of Appeal in R v Taueki [2005] 3 NZLR 372 sets 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 for any mitigating and aggravating features relating you, as the offender. I will then deal with the totality aspect as I have indicated.
[22] In terms of aggravating features, I have taken those into account in relation to the seriousness of the offending, because of course it relates to drugs and methamphetamine in particular. Obviously, in this case there was a degree of premeditation in allowing the premises to be rented and used in the way in which they were.
[23] In terms of you as the offender, I do have regard for, but do not make any uplift for, your previous convictions. I am regarding them as in the past.
[24] In terms of mitigating factors, specifically I recognise your guilty pleas, the genuine remorse that you have shown, the rehabilitation efforts you have undertaken and the fact that you have already served a sentence successfully for other offences that arose out of the same incident.
[25] There are no relevant presumptions operating here. I note the general presumption against imprisonment in s 16 of the Sentencing Act, but there is no specific presumption in favour of imprisonment under the Misuse of Drugs Act in the circumstances of this case.
Relevant case law
[26] I treat the lead offence as permitting premises to be used for the commission of an offence under the Misuse of Drugs Act. I have considered all of the cases that have been referred to me by counsel, including R v Kennedy HC PMN CRI 2007-054-3776 29 August 2008, Clifford J; R v Gough [2008] NZCA 21; R v Meyer HC HAM CRI 2005-068-555 30 October 2008, Courtney J; R v Langi HC AK CRI 2006-092-9147 4 November 2008, Winkelmann J; R v Gibbons HC HAM CRI 2006-019-617 14 August 2007, Asher J; R v Puckey HC AK CRI 2004-044-
5853 11 July 2006, Asher J; and R v Kissling & Anderson HC ROT CRI 2003-063-
10099 12 October 2004, Rodney Hansen J. In particular, I have noted the various starting point and end sentences imposed in those cases because in their different ways they provide guidance to this Court in dealing with your sentence today.
Analysis
[27] First I must set the starting point. Your offending is similar to that in the case of Kissling and Kennedy and I am going to take an initial starting point on the lead offence of two years’ imprisonment. In other words, I agree with the suggestion of your counsel. I will apply an uplift of three months to reflect your guilty plea in respect of the possession of equipment charge, so that is two years and three months. But I allow a discount of nine months for the mitigating factors personal to you, which I have identified. So that would make a sentence of one year and six months’ imprisonment were I going to impose a sentence of imprisonment.
[28] I have to then stand back and consider the totality of the offending bearing in mind the circumstances of the offending for which you were sentenced by Judge Singh in March 2007, and I make a further allowance of four months’ imprisonment. So that the final imprisonment sentence, were I to impose that, would be one year and two months’ imprisonment.
[29] Then I must consider the possibility of home detention. I can do that where I
am satisfied that the purpose or purposes for which the sentence is being imposed
cannot be achieved by any less restrictive sentence, or combination of sentences, and this is a case involving a short term sentence of imprisonment, which it is at one year and two months.
[30] I am satisfied from the probation report that all of the statutory conditions set down by s 80A(2)(a) of the Sentencing Act have been met. There is a suitable residence. All of the relevant parties have consented and I know that you understand what the sentence involves and that conditions will be imposed, because they were set out in the probation report.
[31] In terms of the alternative of community detention and community work, I have considered that as a sentence, because it was raised by the Probation Officer. The reason given for putting that forward as an option was convenience in terms of administration because of your work. However, I am not satisfied that such a sentence would meet the purposes and principles of sentencing, to which I have already referred, because I must hold you accountable. There must be an element of deterrence, obviously, and denunciation.
[32] Nevertheless, I am prepared to impose a sentence of home detention. The sentence that I will impose on the lead offence is home detention for a period of seven months. I adopt the conditions that were proposed by the Probation Officer. They will be that:
a) You proceed directly to 8A Kelwyn Road, Kelston and await the arrival of the Probation Officer and monitoring company;
b)You reside at 8A Kelwyn Road, Kelston or an address approved by the Probation Officer for the duration of the home detention sentence;
c) You abstain from the consumption of alcohol and/or the use of illicit drugs for the duration of your home detention period;
d)You comply with any direction given by the Probation Officer for a home visit to be undertaken. This includes allowing the Probation Officer and monitoring officer to access your residence; and
e) You are not to communicate or associate with your co-offenders, either directly or indirectly unless you have the prior written approval of your Probation Officer. In other words, that condition is there to ensure that you put the past in the past.
[33] For the possession of equipment charge, I impose a sentence of four months’ home detention, but that is to be served concurrently with the other sentence of seven months’ home detention which I have imposed.
[34] Mr H you have been given a break today. I have been impressed by the steps that you have taken to rehabilitate yourself. I have been impressed by the support that you have from your family, and I hope that you heard the words of your counsel when he said that you should not let them down. I do not want to see you back here ever again.
[35] You may stand down.
Stevens J
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