R v Harris HC Palmerston North CRI-2006-054-1008

[2007] NZHC 1668

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2006-054-1008

THE QUEEN

v

HONE HENRY HARRIS

ERROL MARTINUS MAIOTAKI DANKLOF

Charge:          Harris/Danklof: Intentional damage; Selling methamphetamine; Possession of methamphetamine for supply;

Unlawful possession of an airgun
Danklof: Receiving

Plea:               Guilty

Appearances: Christopher Shannon and Evan McCaughan for Crown

Christopher Comeskey for Harris
Peter Coles for Danklof

Sentenced:     26 February 2007

Selling/possession methamphetamine: 5 years imprisonment

Intentional damage: 2 months imprisonment Possession of an airgun: 1 year imprisonment Danklof: receiving: six months imprisonment (all terms concurrent)

SENTENCING NOTES OF HARRISON J

SOLICITORS

Ben Vanderkolk & Associates (Palmerston North) for Crown

Christopher Comeskey (Auckland) for Harris

Peter S Coles (Palmerston North) for Danklof

R V HARRIS AND ANOR HC PMN CRI-2006-054-1008  26 February 2007

Introduction

[1]      Mr Harris and Mr Danklof, both of you were committed for trial in this Court commencing this morning on joint charges of supplying methamphetamine, possession of that drug for supply, possession of an airgun and intentional damage. As Mr Coles has remarked, reality set in at a very late stage.  It was generated by Mr Harris’ instructions to Mr Comeskey that he wished to enter a plea of guilty.  It was promoted, I accept, by the wise advice given by your whanau, Mr Danklof – in particular, your mother and father and your grandmother.   Both of you have now pleaded guilty to all charges.  All of you deserve credit for assisting in that result.

[2]    As you know, the most serious offences are those of supplying methamphetamine and possession of the drug for supply.  Each carries a maximum term of imprisonment for life.  That is a recognition of Parliament’s view about the dreadful effect of methamphetamine.

[3]      I  record  that  I  am  sentencing  you  both  without  calling  for  up-to-date probation reports with the consent of all counsel.   I am taking that step for two reasons.   First and foremost, sentencing in this area depends very largely on the facts.  The Court of Appeal has frequently said that personal circumstances do not count for much.   Second, I am also conscious in your case Mr Danklof that your parents, your grandmother and your wider whanau and friends have travelled some distance  to  be  with  you  today.    I  do  not  want  to  have  to  put  them  to  the inconvenience and cost of returning to this Court at a later date.  Additionally, I am aware that for each of you having entered your pleas you seek some closure.

Facts

[4]      I must deal first with the facts.  On 2 March 2006 both of you booked into the Motel Tokyo in Fitzherbert Avenue, Palmerston North.  It is common ground that, Mr Danklof, you used an alias for that purpose.   However, it is significant that Mr Harris knew of your intention to use a false name.  Within a day of you booking in, other guests noticed a lot of activity in the unit occupied by you.  There was a

great deal of human traffic.  Both of you assured the moteliers that the visitors were not staying at the motel.

[5]      You were due to check out at 10 am on 4 March 2006.  Shortly after that time one of the moteliers went to the unit for the purpose of finding out why you had not left.  There was no response to their knocking on the door.  Eventually they had to force entry.  Within the room the motelier noticed a considerable amount of damage to  the  room and  its  chattels.    The  total  cost  of  repairing  it  was  nearly $6000. Remarkably, and perhaps as a reflection of your consumption of drugs, you slept through the motelier’s arrival.

[6]      The moteliers tried to rouse  you but without success.   As a result, they contacted the police.   They sought the police assistance in removing you.   Two constables arrived.  One of them noticed a point bag on the floor.  The police officers invoked their powers of search.  They were able finally to awaken you.  Mr Harris, you were lying on a mattress on the floor covered with a blanket.  The officers asked you to leave the bed.  But you refused.  You were seen to be secreting a package in your buttocks area.  The officers were unable to prevent you from inserting it into your rectum.

[7]      The police then searched the room.  It is common ground that a plastic bag was found containing just under 28 grams of crystal methamphetamine.  These drugs had a street value when packaged into point bags of approximately $28,000.  Also found was a cellphone box containing cash of $19,000 grouped in various denominations.  Another $1800 was found on you, Mr Danklof, during the search. Additionally there were two sets of electronic scales, a large number of new empty point bags, six cellular telephones, a radio frequency scanner, documents identifying police radio frequencies and codes, and utensils used for consuming methamphetamine.   Later the police  found  on  a  cabinet  a  .177  calibre  Walther CP99BB handgun.   Its appearance is very similar to a real pistol.   However, I understand that it was not operational at the time.

[8]      Both of you were placed under arrest and remanded in custody.  Mr Harris, you were taken to Manawatu Prison.  A week later you became unwell.  The reason

was that the methamphetamine you had inserted in your rectum was now in your bloodstream.  It was having an adverse effect.  You fell into a coma.  I am satisfied that if the doctor, acting for operational reasons, had not removed the drugs you would have died.  You are very fortunate to be alive today.

[9]      Against those facts, Mr Harris,  you seek to minimise your  culpability or wrongdoing.   Through Mr Comeskey you say that Mr Danklof was the principal party and he should obviously bear the brunt of a sentence.  Mr Comeskey says that your part in the events is restricted to possession of the methamphetamine removed from your rectum which was about 2.5 grams in weight.  You will not be surprised to hear that I do not accept that.   Each of you has pleaded guilty to supply and possession for the purposes of sale.  There is no basis whatsoever on which I could treat Mr Danklof as more culpable or blameworthy than you.   I do not draw any distinction.

Starting Point

[10]     Against those facts I come to the starting point for your sentences.   The starting  point  is  the  term  of  imprisonment  which  would  be  appropriate  for  the features of your crimes before I take into account any aggravating or bad circumstances which adjust the starting point upwards, or any good or mitigating factors.  Both of you will be aware of the meaning of aggravation and mitigation.

[11]     Also both of you know that methamphetamine is a dreadful drug.  It wrecks families and relationships.  You were prepared to deal in it; that is, to make a profit out of human misery.  Normally the Court takes a very dim or adverse view of such behaviour.

[12]     Recently the Court of Appeal has set sentencing bands or tariffs for those found guilty of dealing in methamphetamine.   They are based principally on the weight of the drug and to a lesser extent its value: R v Fatu [2006] 2 NZLR 72 (CA). Relevantly you fall into the second band which prescribes sentences between three and nine years where the drugs total between five and 250 grams. Here the total

weight yielded from both incidents – that is, in the motel room and at the prison –

was about 30 grams.

[13]     What are aggravating, as you have heard, are the amounts of cash found – about $20,000 – and the fact that the drugs had a value of about $28,000.  Also of aggravation is the possession of the airgun.   Also all the paraphernalia in  your possession displays a reasonably sophisticated and commercial operation.

[14]     I  have  had  regard  to  other  sentences  imposed  in  this  Court  for  those apprehended in possession of methamphetamine for sale, weighing in the range of

25-40 grams.  As a result, as you heard me say to Mr Coles before, I am satisfied that Mr Shannon’s assessment of a starting point of five years is fair.  It could have been more.

[15]     However,  that  starting  point  must  be  adjusted  upwards.    In  your  case, Mr Harris,  your  offending  is  aggravated  by  your  previous  convictions  for  drug possession and drug manufacturing.   They started in March 1997 when you were charged with possession for supply of cannabis.  Subsequently you have convictions in 2001 for manufacturing a Class B drug; in 2002 for cultivating cannabis; and in

2005 for possessing equipment for manufacturing methamphetamine.  In your case, Mr Danklof, as you know, you committed these offences while there was a warrant in existence for breach of the terms of parole.  Also, while you do not have a history of drug dealing offences, you have a sad history of dishonesty offending.   Taking those factors into account the starting point must be adjusted upwards to six years for each of you.

Mitigation

[16]     Finally I come to the question of mitigation.   Both of you have pleaded guilty, as I said, at the last moment.  But also, and perhaps contrary to some other Judges, I am prepared to make a reasonable allowance and give you credit for the fact that you have pleaded guilty.  From my perspective pleas of guilty reflect your admission of your offending, your remorse, and are the first step along the road to rehabilitation.  I want to encourage that.  I intend to allow you a credit accordingly.

[17]     Also I take into account personal circumstances.  Mr Harris, you are 26 years of age.  Mr Comeskey tells me that you have suffered from the burden of dyslexia. You have had whanau support to date.  You are a father of two young children aged between two and four years.   While in prison you have taken steps to rehabilitate yourself.   You have come to terms with the realisation that your life will not be bettered by drug addiction and the inevitability of future terms of imprisonment. You want to reconnect with your children; you want to return to the north and to a career in logging.

[18]     In your case, Mr Danklof, you are 26 years of age.  You, to your credit, have taken an active role in raising your children.  You have, as I have observed, whanau support.  It is something I do not see very often.  It weighs with me.  It has a real effect in your favour.  You will have to decide whether you want to make a break with the cycle of criminality or you want to continue on as you have in the past, again knowing you will be back for increasingly lengthy terms of imprisonment.

[19]     Accordingly, I am prepared to allow you both a discount of one year against the adjusted starting point.   As a result I sentence each of you to five years imprisonment on the charges of possession of methamphetamine for supply and for sale.  Each of you is sentenced to two months imprisonment for intention damage and one year for possession of an airgun.  Mr Danklof, I could have added to your sentence for the crime of receiving.  If I had, it would have been an additional six months on your term.  However, I agree with Mr Coles; I am prepared to treat your crime within the overall totality of your offending and to impose a concurrent term of six months.   That means on all charges you are each sentenced to concurrent terms.  I repeat that the lead or index charge is five years.

[20]     Before each of you stand down I want to add something.   You are at the crossroads.  Both of you are young men.  Both can make a positive contribution to society.  You have young children.  You love them.  It is critical for them that you are positive role models; not somebody whom they see occasionally between terms of imprisonment.  Each of you has the ability to rehabilitate yourself.  Use your time in prison to your best advantage.  If you do, I wish each of you well.  Please stand

down.

Rhys Harrison J