R v Harris HC Auckland CRI 2010-057-115

[2010] NZHC 1608

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-057-115

THE QUEEN

v

BRENT OWEN HARRIS

Appearances: Z Johnston for the Crown

P Winter for the Prisoner

Sentence:       31 August 2010

SENTENCING NOTES OF PRIESTLEY J

Counsel:

Z Johnston, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]
Email: [email protected]

P Winter, P O Box 105495, Auckland 1143. Fax: [phone] [email protected]

R V HARRIS HC AK CRI-2010-057-115  31 August 2010

[1]      Brent   Owen   Harris,   I   am   sentencing   you   today  on   one   charge   of manufacturing methamphetamine.  That is a charge for which the Misuse of Drugs Act provides a maximum penalty of life imprisonment.  It is serious.  Although, as you  will  have heard  in  my dialogue with  counsel,  you  are  going to  be treated leniently, I need to sound you a very clear warning that if you offend with drugs again you are likely to go to jail for a very long time.

[2]      You have clearly had addiction problems and if you fail to get on top of those problems and re-offend,  you cannot expect any court within the land to extend further leniency to you.

[3]      Effectively, on 3 June 2010 the police executed a search warrant at your home.     They  found  there  a  clandestine  laboratory  in  the  form  of  precursor equipment, chemicals, and other precursor products.     Two grams of methamphetamine was found in a bag in the lounge, which would have had a street value of somewhere between $1400 and $2000.  There were two handwritten notes which contained instructions relating to part of the manufacturing phase of methamphetamine.

[4]      You pleaded guilty at an early opportunity, namely on 23 June.  You have in fact been in custody since 3 June, almost three months.

[5]      I have read the pre-sentence report.  The pre-sentence report recommends, if possible, home detention with various conditions attaching to it.  At the time of your offending you were apparently living alone on a 50 acre farm near Pukekawa.  You are aged 36.

[6]      Your partner, who is in court today, is supportive of you.   You have three children.  In November 2007 you sustained a bad injury as a result of a farm bike accident.  Doubtless that has caused you some pain.  You have continued to work long hours.  I accept that you turned to drug abuse in part to relieve you of pain and to give you that “buzz” which otherwise was unavailable to you in the long hours that you were working.

[7]      You do have previous convictions including one conviction in August 2001 relating to conspiracy to supply a class B drug in late 1999.   For that you were sentenced to community service.  I take it from that sentence that the offending was not too serious and at the lower end of the scale.

[8]      The probation report assesses you as having a high motivation to change.  It also assesses your likelihood of re-offending as being low provided you stop using methamphetamine.  You appear to be contrite.  You have expressed appreciation of the effect which your drug habit has had on your partner and your children.  You are also at risk of losing property at mortgagee sale.   In other words this turn for the worse in your life Mr Harris has been catastrophic for you.   You have, however, commonsense and maturity to realise that this will be your last opportunity to turn your life around.

[9]      Looking at your offending and the need I have to pick an appropriate start point.  I note your counsel’s submissions that he considers your offending falls at the top end of Band 1 of R v Fatu.[1]   The Crown for its part recommends a start point of between three and four years.

[1] R v Fatu [2006] 2 NZLR 72

[10]     What I think sets your offending apart is that there is no evidence, and this the Crown accepts, that your manufacture of methamphetamine had a commercial aspect  to  it.    It  was  solely  to  provide  the  drug  for  your  own  personal  use. Nonetheless it must be regarded as serious offending because, without manufacturers like you, this drug cannot get out into the community.  I rather suspect that had your addiction got worse and your need increased you would have started selling methamphetamine to others to fuel your own habit.

[11]     I therefore intend to pick a start point of three years which fairly reflects, in terms of the policy in R v Fatu, the lack of commerciality to which I have referred. There is no dispute from Ms Johnston that you are entitled to the full 33⅓% discount to which R v Hessell[2] entitles you for your early plea.  That brings me down without

difficulty to two years imprisonment and, that being defined in Sentencing Act terms as a short sentence, I turn my mind to home detention.

[2] R v Hessell [2010] 2 NZLR 298

[12]     Home detention is recommended.  The proposed home detention address is your parents’ home.   They are supportive of you and are in court today.   Your partner is also prepared to be supportive of you.  In fixing the length of the home detention  sentence  I  take  into  consideration  the  fact  that  such  a  sentence  is sometimes difficult to perform, and that there is no early release from it as there is in a term of imprisonment.  You will have to serve the full period I am going to impose on you.  I consider, however, some slight modification is justified to reflect the fact that you have already spent three months in custody.

[13]     Stand up please Mr Harris.

[14]     Thus the sentence I impose on you is one of ten months home detention. That sentence is delayed so far as its start is concerned until tomorrow, 1 September

2010.

[15]     You are to travel on your release from Auckland prison directly to your parents’ address at 506 Harrisville Road, RD2, Pukekohe and await the arrival there of a probation officer and a security representative.

[16]     During the course of that home detention you are not to consume either alcohol or illicit drugs.   You are to comply with all the elements of electronic monitoring as directed by your probation officer.

[17]     I recommend strongly that you be given the opportunity, subject to a bed being available to undergo the Odessy House alcohol and drug rehabilitation programme.  With that in mind I also impose the condition that you are to undertake an alcohol and drug rehabilitation programme and any other programmes which your probation officer might direct.

[18]     There is an order under s 32 of the Misuse of Drugs Act that all seized items are to be destroyed.

.......................................… Priestley J