R v Holmes HC Auckland CRI-2010-057-001938
[2011] NZHC 492
•17 May 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-057-001938
CRI-2010-004-005377
CRI-2011-057-000131
THE QUEEN AND
DEPARTMENT OF CORRECTIONS
v
BRYCE CHARLES HOLMES
Hearing: 17 May 2011
Counsel: R E Savage for the Crown; and (without instructions)
for the Department of Corrections
M M Mason for the Prisoner
Judgment: 17 May 2011
SENTENCE OF DUFFY J
Counsel: M M Mason 3 Russell Avenue Papakura 2110 for the Prisoner
Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140
R and ANOR v HOLMES HC AK CRI-2010-057-001938 17 May 2011
[1] Bryce Charles Holmes, you are appearing for sentence today, having pleaded guilty to and been convicted of the following charges:
a) Manufacturing the class A drug, methamphetamine;
b) Driving while your licence was suspended or revoked;
c) Driving while your licence was suspended or revoked, being a third or subsequent offence; and
d) A breach of Court bail.
Summary of facts – manufacturing methamphetamine
[2] In August 2010, the police began to collate information relating to the drug dealing activities of yourself and your father, Bryce Dudley Holmes, whom I will refer to as Mr Holmes Snr. The drug activity was primarily taking place at an address at Linwood Road, Karaka. You were residing at Lynton Road, Mt Wellington.
[3] On 16 September 2010, the police executed simultaneous warrants at the above properties. During the execution of the warrant, it became apparent that methamphetamine was being manufactured at the Karaka address, where chemicals and other items used in the manufacture of methamphetamine were discovered. The chemicals included 447.2 grams of ContacNT (a precursor chemical), which contains approximately 180 grams of pseudoephedrine, which could yield approximately 115 to 137 grams of methamphetamine. If sold at $800 per gram, this would have a street value of between $92,000 and $109,600. If sold at $100 per point, that is, one-tenth of a gram, this would have a street value of between
$115,000 and $137,000.
[4] At the Mt Wellington address the police found several items that were commonly used to store methamphetamine.
[5] Your father, Mr Holmes Snr, admitted he was manufacturing methamphetamine at the Karaka address. He also said that he was solely responsible for manufacturing the methamphetamine.
[6] When interviewed by the police, you admitted that you knew your father was manufacturing methamphetamine. You also admitted that you were paid between
$200 and $350 by your father for transporting items for the manufacture of methamphetamine on three occasions.
[7] Your father, who was the principal offender, has already been sentenced to five years and seven months’ imprisonment. At the time, you were also due to be sentenced. I postponed the sentencing and called for a report on the suitability of a sentence of home detention. I now have that report.
Summary of facts – driving while disqualified and driving while disqualified, third and subsequent
[8] In terms of the driving offences, on 14 November 2009, you were disqualified from driving for six months, as a result of having excess demerit points. On 18 March 2010, you again were stopped by police while driving. You admitted these facts.
[9] On 5 November 2009 and 19 February 2010, you were convicted of driving while disqualified in the Manukau District Court, and a further period of disqualification was imposed on both occasions. Then, on 16 October 2010, while disqualified from driving, you were stopped by police while driving. You admitted to driving whilst disqualified.
Personal Circumstances
[10] You are 23 years old. You left college in the third form, obtained work at 15, and have been working ever since. That is to your credit. You have no pattern of alcohol abuse, you deny using illicit drugs, and you report to be in good health. However, you have outstanding fines of approximately $7,000, which you will need to address.
[11] You have five previous convictions for violent offending. In 2010, you were sentenced on charges of assault with intent to injure, wilful damage, and domestic assault. For these offences, you were sentenced to supervision for one year, and
150 hours’ community service. You were to undertake and complete a “stopping violence” programme. You subsequently failed to report when directed. You have not undertaken community work, and you have reoffended whilst subject to this sentence. As a result, there is an application for the sentence imposed last year to be varied and substituted with one of imprisonment.
[12] Since your arrest on the present charges, you have been remanded in custody. Before your incarceration, you were living with your partner and your two children. Your partner and children have now been living with your mother for financial reasons. Your partner has since moved, following a suggestion that you might be suitable for a sentence of home detention, but that you could not serve such a sentence from a household where your partner was living.
[13] The probation report shows that you do not have any harmful patterns of substance use; you are assessed as being at a low risk of reoffending; you are described as having remorse and insight into your offending; and you are said to have no particular rehabilitative needs.
[14] The report notes that you have had difficulty co-operating with community sentences in the past. The report writer also expressed concerns due to your partner, towards whom you have previously been violent, living at the proposed home
detention address; though your partner consented to this arrangement. The report writer recommended a sentence of home detention, though he cautioned against you residing with your partner.
[15] For this reason, when you were last before me, I deferred sentencing and sought a report on a sentence of home detention. I have now read that report. The Otara Home Detention Team considers that you do not have a suitable address at which to serve a sentence of home detention, even though your partner has now left that address. The team has identified the following concerns:
i)Though, the proposed address of Tui Road, Papatoetoe, is seen as suitable for electronic monitoring, the team considers the address to be unsuitable because of two of its residents. Those persons are your mother’s partner, Athol Pitman, and your younger brother Tytan Holmes. Both Messrs Pitman and Holmes have driving whilst disqualified convictions. Tytan Holmes is currently the subject of an application to cancel a sentence of community work due to non-compliance. For this reason, he and Mr Pitman are considered to be unable to offer you positive support in serving a sentence of home detention, and their presence at the address is said to render home detention unsuitable.
ii)The team also has reservations about your ability to serve a sentence of home detention. Although you presented as motivated to comply with a sentence of home detention, the team has concerns because you have convictions for violent behaviour and, in the team’s view, you have, to use their words, “not moved on from this sort of behaviour”. There is concern that the potentially violent behaviour could continue. Also, the team records you have six prior convictions for non- compliance with a community based sentence, all within the
last two years. The team sees this as demonstrating poor compliance with Court orders.
[16] The report writer, nonetheless, has sought a further remand to see if an alternative address can be found. However, having read the report prepared by the team, I find that I have less confidence in your ability to comply with a sentence of home detention than I did before. Without support from others around you, I find it hard to see how you would be able to comply with such a sentence. Your eligibility for such a sentence was always borderline. It was only possible to arrive at a sentence end point that allowed a sentence of home detention if I started with the lowest possible starting point and gave no uplift for the driving and other offences. The additional information I have causes me to conclude that you would now fall short of reaching a sentencing point that would permit me to impose a sentence of home detention.
[17] It is to your credit that, on receiving advice from your counsel, you also seem to have realised this, and you have not sought a further adjournment to see if another address for home detention might better meet the requirements of the team. I, therefore, propose to sentence you today.
Crown submissions
[18] The Crown referred me to the tariff case of R v Fatu [2006] 2 NZLR 72. The Crown contends that the expected yield of methamphetamine falls in the middle band of band two of Fatu, which gives a starting point in the range of four to 11 years’ imprisonment.
[19] Now I will just explain, Mr Holmes, as I work through the reasoning for the sentencing, I am obliged by the Sentencing Act 2002 to adopt a starting point, to take into account any aggravating features, and then to discount it by mitigating features. So you will not know the ultimate sentence that is imposed until I get to the end of the reasoning, but it will be one of imprisonment.
[20] In terms of drug offending, there are the aggravating features of an offence of significant harm to the community that drug offending does to the community. The Crown accepts that a 25 per cent discount for guilty pleas is appropriate. And the Crown also accepts that the sentence reflect the respective roles and culpability of each offender, and by this I mean that your father was the principal offender, and your role was simply as someone who aided and abetted him in that offending by the three occasions on which you took items to the address in Karaka.
[21] As a reflection of your lesser role in the manufacture of the methamphetamine, and taking this as the lead offence, the Crown suggests a starting point of three to four years’ imprisonment. That is a lower starting point than that adopted for the principal offender, Mr Holmes Snr, and it is one that is appropriate, given your lesser role.
[22] The Crown has referred me to two decisions which I consider are relevant: R v Kimura HC Palmerston North CRI-2005-031-947, 28 November 2005; and R v Kupkovic CA225/2009 [2009] NZCA 330. Although they are factually different, an analogy may be drawn to the limited involvement of the offenders in those cases.
[23] The Crown also submits that this is a case where concurrent sentences that reflect the totality of the offending are appropriate. This approach would treat manufacturing methamphetamine as the lead offence, with the driving charges classified as aggravating factors relevant to the starting point, though no separate uplift for the driving charges has been sought by the Crown. The Crown then seeks an uplift to reflect the fact that you were subject to a sentence of supervision at the date of the offending, and there is then the discount of 25 per cent for the guilty plea.
[24] Your counsel submits that your offending was motivated by a need to provide for your young family. When your partner found out about the offending, she made you choose between her and your father. As a result, you cut off all communication with your father. It is submitted that you are very remorseful and want to break your cycle of offending.
[25] Having sentenced your father, I am also aware of your family background, including the lack of support you may have had as a result of having a father with a lengthy history of criminal offending. I also am aware that Mr Holmes Snr expressed remorse that he had drawn you into his offending.
[26] Your counsel acknowledges the categorisation of the offending by the Crown, and submits that a starting point of three years’ imprisonment is appropriate. From this starting point, it is submitted that allowances should be made for your age, your rehabilitative prospects and your guilty plea. Your counsel submits that this would lead to home detention being a realistic option and that that would be a better course, given your young age and the negative peer pressure you would be exposed to in prison. Your counsel, having now read the supplementary probation report, and particularly the report from the Otara Home Detention Team, accepts that home detention is no longer an option.
Sentences
[27] In sentencing you, Mr Holmes, I am required under the Sentencing Act to take into account the purposes and principles of sentencing, and any relevant aggravating and mitigating factors.
[28] The purposes of sentencing which are available to me in your case are:
i)The need to hold you accountable for the harm done to the community by your offending, and by that I mean it is well recognised that the drug, methamphetamine, has done serious damage to members of the community. In your own family, in particular, you can see the damage caused by abuse of methamphetamine.
ii)There is a need to denounce your conduct and to deter you and others from offending in this way in the future.
[29] The relevant principles of sentencing include the need to take into account the gravity of your offending, the seriousness of your offending. Here I note the fact that manufacturing methamphetamine has a maximum sentence of life imprisonment, which underscores the serious nature of this offending.
[30] I must also impose a sentence that is consistent with others imposed in similar circumstances, though it should be one that is the least restrictive to you as is appropriate in the circumstances.
[31] Finally, Parliament has made it clear in s (6)(4) of the Misuse of Drugs Act
1975 that when any person is convicted of an offence relating to a class A controlled drug, including methamphetamine, the judge shall impose a sentence of imprisonment unless this is inappropriate, having regard to the particular circumstances of the offence or the offender, including the age if the offender is under 20 years. Under s 6(4) a non-custodial sentence is the exception to the general approach.
[32] I consider that the following cases are relevant to your circumstances: R v Fatu, R v Kimura and R v Kupkovic. R v Fatu sets out the sentencing tariff bands that are applied to the offence of manufacture of methamphetamine; and Kimura and Kupkovic provide guidance as to the appropriate choice of starting point where the prisoner to be sentenced has acted as an accomplice. In Kimura, a starting point of three years’ imprisonment was adopted to reflect Kimura’s lesser role. Following a guilty plea reduction, the final sentence came to two years’ imprisonment, with leave being granted to apply for home detention. In Kupkovic, the prisoner pleaded guilty to assisting in the manufacture of methamphetamine. A starting point of four years’ imprisonment was adopted, which was discounted to reflect the prisoner’s remorse, desire to rehabilitate, and guilty plea. The final sentence was 12 months’ home detention and 100 hours’ community work. It was accepted on appeal that starting point and discount were appropriate.
[33] I accept that the offending falls in the middle of band two of Fatu. However, since your role was to assist your father, it is appropriate to adopt a lesser starting point than I did when I sentenced your father.
[34] The Crown suggested a starting point of three to four years’ imprisonment but, on the Crown’s approach, this lower starting point reflects, not only the more minor part you played in the methamphetamine, but an allowance for the driving charges. The Crown then seeks an uplift for the offending while you were subject to the sentence of supervision.
[35] I propose instead to start with a sentence of three years’ imprisonment for the methamphetamine offence, which I will treat as the lead offence. I then propose to uplift the sentence by six months to take account of the driving offences, the fact that you offended while on supervision, and there is also the breach of bail. This brings the sentence to one of three years and six months’ imprisonment.
[36] I am prepared to accept the suggested discount of 25 per cent for your guilty plea. I am also prepared to increase the discount to one-third to account for your age, your expression of remorse and the fact that, in this case, you were influenced into this offending by your father. The discount of one-third results approximately in a sentence of two years and four months’ imprisonment. The sentence I have arrived at means that you would not have been eligible for a sentence of home detention, as the sentence exceeds the definition of a short term of imprisonment in the Parole Act 2002.
[37] I also propose to allow the application to substitute the community based sentence imposed for the offending in 2010 with one of imprisonment. That sentence will run concurrently with the sentences I am imposing for the offending for which I am sentencing you.
[38] Would you stand please, Mr Holmes.
[39] Mr Holmes, on the charge of manufacturing methamphetamine, you are sentenced to two years and four months’ imprisonment. On the first charge of driving while disqualified, you are sentenced to one month’s imprisonment. On the second charge of driving while disqualified, being your third or greater offence, you are sentenced to six months’ imprisonment. On the charge of breach of Court bail, you are convicted and discharged. The sentence of community work imposed last year is to be varied and is replaced with a sentence of six months’ imprisonment. All sentences are to be served concurrently. That means you will serve no more than two years and four months’ imprisonment, subject to parole.
[40] Mr Holmes, you may stand down.
Duffy J
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