R v Hamerton HC Auckland CRI 2009-004-20040

[2010] NZHC 944

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-20040

CRI-2009-004-7670

THE QUEEN

v

JASON BRIAN VICTOR HAMERTON

Hearing:         3 June 2010

Appearances: B R Northwood for Crown

L Freyer for Accused

Judgment:      3 June 2010

SENTENCE OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

L Freyer, PO Box 6069, Wellesley Street, Auckland 1141

R V HAMERTON HC AK CRI-2009-004-20040  3 June 2010

[1]      Mr Hamerton, I now have to sentence you on five counts to which you have pleaded guilty.  Four of the charges were laid under the Misuse of Drugs Act 1975 and comprise two counts of supplying methamphetamine a Class A controlled drug, one count of possession of methamphetamine for supply, and a charge of possession of a pipe for the purpose of smoking methamphetamine.

[2]      The charges of supplying methamphetamine and possessing it for supply carry maximum penalties of life imprisonment.  The count of possession of a pipe for smoking methamphetamine carries a maximum penalty of one year’s imprisonment.  The remaining charge, which was laid under ss 346(1) and 247 of the Crimes Act 1961, is of receiving stolen property of a value between  $500 and

$1,000.  It also carries a maximum penalty of one year’s imprisonment.

[3]      It   appears   from   the   summary   of   facts   that   you   have   supplied methamphetamine on two occasions.   On 3 December 2008 the quantity supplied was unknown.  The person supplied was a Mr Allan Hutton.  There was evidence of a number of text messages between you and your partner at the time and co-offender, Pauline Bishop.   Then on 18 December 2008 you supplied two grams to a person called “Vicky”, who was apparently a regular customer of Ms Bishop.

[4]      At about 10.20 a.m. on Saturday 31 January 2009 you were at an address in Auckland city, when police executed a drug search warrant of the apartment and all persons inside and a motor vehicle associated with you.  During the search the police found   a   large   quantity   of   white   crystalline   substance   believed   to   be methamphetamine   in   multiple   clear   zip-lock   bags   and   in   total   there   was approximately 10.5 grams of this crystalline substance found.   There was a used glass methamphetamine pipe and a Toshiba laptop which was found in the wardrobe of  the  master  bedroom.     A  laptop  of  that  description  had  been  stolen  on

17 November 2008 from a vehicle parked outside an address in St Johns, Auckland. It was the property of a Mr Billings and is valued at $888.

[5]      During their search the police also located other indicators of drug dealing, including the sum of $21,780 in cash, what are known as “tick” lists in which drug dealers record their dealings with customers, digital scales with white crystalline

residue and assorted plastic zip-lock bags commonly used for packaging drugs into quantities for sale.  You were unwilling to answer any questions put to you by police at the time and refused to offer any explanation for the items that had been found.

[6]      You were a joint tenant on the tenancy agreement of the apartment.

[7]      From the pre-sentence report that has been prepared for today I note that  you are in your late thirties and unemployed.  You have two children aged eleven and twelve.   You appear to have commenced using methamphetamine in 2003.   What was intermittent use became more regular following the breakdown of your marriage in 2004.  You had in fact, as counsel reminded me this morning, not offended before attaining the age of 33 years.

[8]      The report identifies your drug addiction as the main reason you became involved in the current offending.   You state that you have accepted the need to address this by appropriate treatment programmes and accept that residential drug treatment following your release from custody would be desirable.  You have in fact appeared before the Courts on numerous occasions with 25 previous convictions, dating between 1989 and 2010, including a conviction for male assaults female in

2010, convictions for procuring and possessing LSD, ecstasy, fantasy and methamphetamine during 2006 (for which you received sentences of community service), attempted burglary and two charges of shoplifting in 2006, an array of driving convictions between 2004 and 2007, and charges of burglary and theft in

2004, for which you were sentenced to a short term of imprisonment.

[9]      The author of the pre-sentence report notes an escalation in your offending from property related crimes to the current offending, describing it as a natural progression reflecting your deep-seated addiction.   He referred to you playing the double game that addicts play of appearing to make changes while holding fast to the addictive behaviour which can destroy their lives and those that they hold dear.

[10]     There is evidence that you have a good deal of family support from your parents and from your siblings and one of your sisters has written to the Court from Australia saying you are a kind and loving person, generous in helping others.  She

says you have two wonderful sons who love you dearly and need you in their lives.  I have also had letters from your parents and copies of letters that your sons wrote to you.   So, plainly Mr Hamerton there is every reason for you to try to break your addiction, turn yourself around and reclaim the person you used to be.  Currently, the author of the report assesses you as a high risk of re-offending but notes that you have promised your children to tackle your addiction and try to set them an example. You need to keep that promise for their sake and your own.

[11]     The letter you have written to me, dated 4 May 2010, indicates that you have as a result of the period that you have spent whilst in custody not taking drugs, been able I think, to fully grasp the extent of your addiction and its consequences.  Your parents have also said that they have noticed a significant change in you in this time. So it is good that you have got to that position and you now need to keep it up.

[12]     Sentencing in cases such as this needs to make you accountable for what you have done, to denounce that conduct and deter others, to promote a sense of responsibility and to protect the community.  There is now widespread concern at the effects of the use of methamphetamine, both on those who actually consume it and those whose lives can be badly affected by those who use it;  and you can see that in your own family.  That is why where, as in your case the offending plainly had a commercial element, imprisonment is inevitable and you were evidently assisting your then partner in what was a reasonably significant drug dealing operation.

[13]     This Court must also take into account the decision of the Court of Appeal in a case called R v Fatu1  which set out guidelines in respect to the sale or supply of methamphetamine.  Both counsel in their written submissions accepted that the facts of this case place your offending in the second of the categories identified in that decision which dealt with supplies of methamphetamine between five and 250 grams and proposed starting points for sentencing purposes of between three to nine years’

imprisonment.

[14]     Here one of the supplies was of an unknown amount, the other occasion involved two grams, but then you were in possession of 10.5 grams for supply, so

1 R v Fatu [2006] 2 NZLR 72.

the total amount involved is 12.5 grams in what was pretty clearly a commercial setting.

[15]     Mr Northwood, for the Crown, submits that in the circumstances a justified starting point would be between three and a half and four years’ imprisonment.  He then notes that there are aggravating circumstances relating to your record of 25 previous convictions, including charges involving possession of LSD and methamphetamine.  Taking your record into account he maintains that a sentence of four years would be justified were it not for the mitigating factor of your guilty plea. The  guilty  plea  was  entered  at  call-over  and  in  his  submission  should  carry  a discount of 20 per cent.

[16]     On your behalf, Ms Freyer in her written submissions noted that you have previously been  employed doing useful  work  as a painter.   You  have accepted responsibility for this offending, choosing to be remanded in custody prior to your guilty plea.   Responsibly, and I think inevitably having regard to the quantity of methamphetamine involved in these charges, Ms Freyer accepted that a sentence of up  to  four  years  would  be  appropriate  taking  into  account  the  gravity  of  the offending and your previous record and before taking into account mitigating factors.

[17]     In mitigation she relies, of course, on your guilty plea, your employment history prior  to  your  addiction,  your  apparent  determination  now  to  rehabilitate yourself, remorse and the strength of your support and relationships with your family members.   She reminded me also of the Court’s obligation under s 8(g) of the Sentencing Act 2002 to impose the least restrictive outcome appropriate in the circumstances of the case.  She argued for a 25 per cent reduction from the sentence that would otherwise be appropriate, emphasising that your willingness to plead guilty was communicated well before the actual call-over date and you relinquished your bail status in advance of the guilty pleas effectively to commence serving your sentence.

[18]     I  am  satisfied  that  an  appropriate  starting  point  looking  at  the  actual offending would be three years and nine months.  To that must be added an element to reflect your previous offending, including drug offending.   I accept that that

offending was not at the serious end of the scale.   However, looking at your past record as a whole I allow a period of three months for the previous offending, bringing me to the point of a sentence of four years.

[19]     I am then satisfied that a 25 per cent reduction is appropriate to reflect the mitigating factors mentioned by Ms Freyer.   That brings the end sentence back to three years.  This is not a case where there is any need to impose a minimum term. So that Mr Hamerton if parole is granted at the earliest time that it can be, you will not have very much longer time to serve.

[20]     Arguably the offence of receiving stolen goods could be the subject of a cumulative   sentence   being   different   in   kind   from   the   other   offending. Mr Northwood has not urged that approach and the stolen computer was seized at the time of the search that resulted in the possession of methamphetamine charge.  The theft occurred on 17 November 2008, two and a half months before the search.  I will treat this offending as temporally linked so as to justify a concurrent sentence of two months’ imprisonment. Please now stand.

[21]     In the circumstances of this case I will take the charge of possession of methamphetamine for supply as the lead offence and mark the gravity of the overall offending by imposing a sentence of three years’ imprisonment on that count.   I impose a sentence of two years six months in the case of each of the two counts of supplying methamphetamine, a sentence of three months’ imprisonment for possession of the pipe and two months’ imprisonment for the count of receiving stolen property.  All of those terms are to be served concurrently.  You may stand down.