R v Haeata
[2017] NZHC 959
•11 May 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-004-009269 [2017] NZHC 959
THE QUEEN
v
ANDREW HAEATA
Hearing: 11 May 2017 Appearances:
B Northwood for the Crown
R Mansfield for the DefendantSentence:
11 May 2017
SENTENCING NOTES OF HINTON J
Counsel/Solicitors:
Meredith Connell, Auckland
Ronald Mansfield, Barrister, Auckland
R v ANDREW HAEATA [2017] NZHC 959 [11 May 2017]
[1] Mr Haeata, you appear for sentence after having accepted a sentence indication provided by me on 10 April 2017. You have pleaded guilty to two charges of supplying methamphetamine, four charges of possession of methamphetamine for supply, and one charge of offering to supply methamphetamine, and you have been convicted on those charges.
Facts
[2] You were charged following termination of an investigation called
“Operation Bunk”.
[3] Operation Bunk involved obtaining surveillance device warrants to allow interception of private communications of people other than you. As a result of the device surveillance, and separate production orders relating to the cellphone attributed to you, call and text data involving you was obtained.
[4] As a combined result of the surveillance warrants and CCTV monitoring, the Police identified seven occasions when you supplied, possessed for the purpose of supply, or offered to supply, methamphetamine. You operated as a street dealer and were yourself a user of methamphetamine. You have been found to have supplied
4 grams of methamphetamine, been in possession at various times of 8 grams, and offered to supply 3 grams of methamphetamine. The total amount involved in your offending was 15 grams.
Personal circumstances
[5] The pre-sentence report was of course not available at the time of the sentence indication.
[6] You are 38 years old. You have reported as currently being single and having no dependants. You were working in a fencing job prior to your remand and bail. You are currently in receipt of a sickness benefit and have outstanding fines concerning traffic-related matters.
[7] The report-writer noted that your offending-related factors are your drug use, lifestyle and associates, and your sense of entitlement. You acknowledged that your own “P” addiction led to the supply convictions you are now facing.
[8] You have a moderate previous conviction history, mainly involving violence or disorder offending, between 1996 and 2014. You have one previous conviction relating to drugs, which was possession of cannabis in 2010.
[9] The report-writer assessed you as being at a medium risk of reoffending and harm, based on your previous conviction history and propensity for violence. The report-writer also recorded that you have been subject to rehabilitative sentences of supervision, intensive supervision and one sentence of parole, all of which you were compliant with, and no court action was required for non-compliance. You have not been subject to an electronically monitored sentence before.
[10] The pre-sentence report recorded that the proposed home detention address, which is your mother’s address in Flaxmere, is technically feasible to manage a sentence of home detention, if imposed. Your mother is the only occupant of the address and has been assessed as a pro-social support for you. She has been fully advised of the requirements and responsibilities associated with home detention, and has given written consent for you to complete home detention at her address. She has no concerns for her safety in your residing there. You have also been fully advised of the requirements and restrictions in relation to a sentence of home detention, and have signed the offender’s consent form acknowledging your understanding, and the responsibilities you will have.
[11] Accordingly, the report-writer recommends a sentence of home detention.
[12] You reported that you suffer from depression and anxiety, and that you take two types of medication daily to manage your conditions. The report writer noted that you will require absences for doctors and chemist appointments if sentenced to home detention, but stated that these are manageable and that the medical centre you are enrolled at is within walking distance from the proposed home detention address.
Sentencing
Starting point for methamphetamine supply
[13] A three-stage approach is taken to sentencing. First, the appropriate starting point is set for the charges. Secondly, allowance is made for personal aggravating and personal mitigating factors, and finally there is a discount for a guilty plea.
[14] I adopt the starting point of three years’ imprisonment, which was set out in the sentence indication I gave. This is on the basis that your offending falls within band 2 of the Fatu guideline bands, the amount supplied, offered to be supplied, and held, overall amounting to a total of 15 grams.1 Offending within this band attracts a sentence between three years’ and ten years’ imprisonment.
[15] Your offending was of a moderate commercial nature. You were operating as a street dealer. I am also prepared to accept, as your counsel Mr Mansfield submitted earlier than today, that some of the drugs found in your possession would have been for your personal use. This is material in relation to determining the starting point in supply sentences under Fatu, and supports classifying your offending at the lower end of band 2.2
[16] In sentencing you today, I have considered the cases referred to by counsel 3
[17] In particular, I am assisted by the cases of R v Reti and R v Galloway, relied upon by Mr Mansfield in his written submissions. In R v Reti, the defendant was convicted of one charge of possession of methamphetamine for supply. The defendant had 30 grams of methamphetamine in her possession. The Court imposed a starting point of three years’ imprisonment on the basis that while a “good deal of [the methamphetamine] must have been intended for supply”, some of the drugs
were for her personal use. The case was at the lowest end of band 2 of Fatu.4
1 R v Fatu [2006] 2 NZLR 72 (CA) at [34].
2 At [32].
3 R v Wiki [2013] NZHC 3439; R v Reti HC Auckland CRI 2004-044-4049 16 December 2005; R v Galloway [2015] NZHC 1026; R v Blackwell [2012] NZHC 2960; R v Kingi [2013] NZHC 2051. I note that in the sentence indication notes, I referred to an additional case, R v Housham [2016] NZHC 1652, which I do not, in fact, rely upon.
4 R v Reti, above n 3, at [6].
[18] In R v Galloway, the defendant was convicted of one charge of possession of methamphetamine for supply, one representative charge of supplying methamphetamine and one charge of possession of utensils. The defendant had been found engaging in a methamphetamine transaction with an associate and later
11 grams of methamphetamine was found in their joint possession. On appeal, the Court upheld the starting point of three years’ imprisonment. The Court said that, while generous, the starting point was within the acceptable range, given the relatively small quantity of methamphetamine; the fact that the defendant was a small-time dealer who was feeding his habit, and the fact that there was joint possession of the drugs.
[19] I also note R v Wiki, where a starting point of three years and three months’ imprisonment was imposed in circumstances where the offences involved supply of up to 31.9 grams of methamphetamine, although the actual quantity could not be accurately quantified.
[20] In my view, having taken into account the amount of methamphetamine involved, the moderate commercial nature of your offending, the fact that your offending was related to your own addiction, and analogous case law, a starting point of three years’ imprisonment is warranted. This is consistent with the need to deter and to denounce such offending.5
Adjustments to the starting point
[21] I now turn to consider the aggravating and mitigating factors relating to you.
[22] In relation to any aggravating factors, as both counsel submitted, I do not consider that your previous convictions are relevant to your present offending, and so they do not justify an uplift from the starting point.
[23] With respect to personal mitigating factors, you provided evidence at the sentence indication hearing of your efforts at rehabilitation.
5 Sentencing Act 2002, s 7(1)(e)-(f).
[24] That evidence showed that you have sought assistance from medical professionals and professional rehabilitation programmes to help you abstain from drug use and overcome your drug habit. You have also participated in voluntary work in the community, which points towards your improved character. You also provided testimony towards your good character when volunteering; evidence that you have regularly attended Narcotics Anonymous meetings and a support group run by a local medical centre; an affidavit by a clinical psychologist; and drug screening results and your own evidence, both of which suggest that you have not used any illicit drugs for over seven months now.
[25] The Crown accepts that the material provided to me is reliable.
[26] I am particularly encouraged by the first affidavit of Dr Dillon, the clinical psychologist who interviewed you. She records that she considers your rehabilitative efforts to be genuine and that you are rebuilding your life in a pro-social manner with no current impediments that might increase your risk of using drugs again or reoffending. She states that she also considers your continued recovery is best met by your maintaining close links to Narcotics Anonymous and your involvement in gainful activities that provide positive meaning to your life and increase your self-esteem.
[27] The Crown does not submit any additional memoranda for sentencing, having provided a full memorandum for the sentence indication hearing.
[28] As directed by me, the defence has provided an addendum affidavit of Dr Dillon in support of your case. That report is also very positive with respect to your ongoing rehabilitative efforts. It records that you have continued to attend rehabilitation and support groups, and continue to volunteer. Dr Dillon records that the General Manager of the local A&P Society, for whom you have done volunteer work at the HB Show Grounds, has said that he has seen you grow in confidence and develop a very positive attitude towards life, and that he considers you to be a cheerful and capable person. He also said he would welcome you to stay on in a volunteer capacity, and there may be a possibility of employment arising from your volunteer position.
[29] Your GP has also reported that he has witnessed a “gradual but dramatic” improvement in your presentation over the past eight months and that you have made some effort to reduce your use of antidepressants. Your GP reports that your antidepressant dose has been lowered since April as a testament to that fact. Your GP stated that you are a pleasant person and that you present as a “genuine person who says it like it is”.
[30] Your mother also reported to Dr Dillon that you have been helpful to her, that there have been no problems while you have been living with her, and that she would be comfortable having you live with her for the duration of any home detention sentence. Your mother has not found any evidence of your using drugs or alcohol during your stay with her.
[31] Dr Dillon noted that the evidence she had obtained and had access to, all showed that those who are in regular contact with you regard you as genuine and committed to improving yourself. It seems you have maintained these positive gains since you were bailed to your mother’s home, and there is evidence of a consistent commitment to your ongoing rehabilitation and to pro-social community involvement.
[32] I note also that you have recently provided an additional drug screen report that indicates you have continued to abstain from illicit drug use.
[33] On the basis of this information, I consider that a deduction of six months from your sentence is appropriate.
[34] Turning to the guilty plea, it has been around a year since you were charged with these offences. The delays with the sentence indication while you obtained further information cannot go against you. However, leaving that delay to one side, I do not consider the guilty plea made after the sentence indication hearing was a plea made at the earliest opportunity. Therefore, I allow a discount of 20 per cent for
your guilty plea, rather than the maximum of 25 per cent, stated by R v Hessell.6
6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Conclusion
[35] I conclude that the appropriate sentence for you, on the basis of a starting point of three years’ imprisonment, a discount of six months’ imprisonment, and a final discount of 20 per cent for your guilty plea, is two years’ imprisonment.
Home/Community Detention
[36] Given the final sentence imposed is two years’ imprisonment, there is jurisdiction to sentence you to a term of home detention. As I said in the sentence indication, I am prepared to do so.
[37] There is a statutory presumption of imprisonment for convictions dealing with class A drugs.7 That is a presumption, and it is not solely determinative. The Court of Appeal in the case of R v Iosefa noted that home detention carries with it, in considerable measure, the principles of deterrence and denunciation.8 While home detention conditions may not be as onerous and restrictive as imprisonment, home detention is, in itself, a serious sentence.
[38] Home detention also has certain advantages, such as low rates of re-conviction and re-imprisonment, high compliance rates and positive support for offenders’ reintegration and rehabilitation.9
[39] Given your efforts at rehabilitation and the importance this carries in reducing any risk of reoffending, I will, on the basis of your special personal circumstances, sentence you to an end sentence of home detention.
[40] Normally, a sentence of home detention is calculated as half of the length of the sentence of imprisonment that would otherwise be imposed.10 In accordance with that general approach, I consider that a sentence of 12 months’ home detention is appropriate. This is sufficient to deter and denounce your conduct, while being
clearly the least restrictive outcome appropriate in the circumstances.
7 Misuse of Drugs Act 1975, s 6(4).
8 R v Iosefa [2008] NZCA 453 at [41].
9 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33].
10 R v Tate [2016] NZHC 2522 at [32].
[41] Mr Haeata, on each of the charges you face, I sentence you to twelve months’
home detention to be served concurrently.
[42] The following special conditions recorded in the pre-sentence report are to apply. You are:
(a) not to possess, consume or use any alcohol or drugs not prescribed to you;
(b)to notify a Probation Officer prior to commencing, terminating or varying any employment or voluntary work;
(c) not to communicate in any way or associate with co-offenders, without the prior written approval of a Probation Officer;
(d)to attend an assessment for such counselling, programmes or training as directed by the Probation Officer;
(e) to attend and complete any counselling, treatment or programme as directed by and to the satisfaction of a Probation Officer; and
(f) to consent to take, in accordance with the prescribed manner, prescription medication prescribed by a qualified medical practitioner.
[43] Standard conditions are also to apply, including in terms of post-detention conditions.
[44] I want to expressly note that I consider it important that you obtain employment, or are able to obtain employment or voluntary work, on the fullest possible basis, during the term of your sentence of home detention. Either is equally beneficial to you and to the community. This will, however, be a matter for the probation officer to determine.
[45] Mr Haeata, you heard what Mr Northwood said. You must make the most of the opportunity that has been given to you today. If you do not, if you fall by the
wayside this time, the next time you appear in Court for sentencing on methamphetamine offences (which if you do not rehabilitate yourself and overcome your problem you will do), the Court will not treat you in the same way as I have done today. I realise it will not be easy, but you have to keep reminding yourself of how fortunate you are with the sentence that you have been given and how bleak the alternative would be. You obviously are quite capable and people believe in you and like you and they want to help you. There are a lot of positives. You have to stay firmly focused on those and do not hesitate to call for help.
[46] I do not expect to see you back here again.
[47] The sentence is to commence from 8.00 am, 12 May 2017. [48] You may stand down.
------------------------------------------------------ Hinton J
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