R v Holmes HC Auckland CRI-2010-057-002552
[2011] NZHC 986
•8 April 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-057-002552
THE QUEEN
v
BRYCE DUDLEY HOLMES SNR
CRI-2010-057-001938
CRI-2010-004-005377
CRI-2011-057-000131
THE QUEEN
v
BRYCE CHARLES HOLMES JNR
Hearing: 8 April 2011
Counsel: R E Savage for the Crown
I D Tucker for the Prisoner B D Holmes
M M Mason for the Prisoner B C Holmes
Judgment: 8 April 2011
SENTENCE OF DUFFY J
R v HOLMES SNR HC AK CRI-2010-057-002552 8 April 2011
[1] Having heard submissions from Ms Mason (for Mr Holmes Jnr) today, I am prepared to postpone the sentencing of Mr Holmes Jnr to enable a further enquiry to be made into the possibility of him serving a sentence of home detention.
[2] I direct that a report on the suitability of a sentence of home detention is to be obtained. I want the report to cover the circumstances of the Holmes’ whanau and where Mr Holmes Jnr’s partner and their children are likely to reside should he be granted home detention. He has a previous history of assaulting his partner. I have concerns, therefore, about him serving a sentence of home detention in the same residence as his partner and their children. I understand the Holmes’ whanau is able to arrange matters so that Mr Holmes Jnr stays with his mother, and his partner stays with other members of the whanau. The practicality of this proposed arrangement and any other possible arrangement should be thoroughly investigated by the probation officer who prepares the report on home detention.
[3] While the Registry is looking for an available remand date, I will proceed with the sentencing of Mr Holmes Snr.
[4] Bryce Dudley Holmes, you are appearing for sentence today, having pleaded guilty to and been convicted of the charge of manufacturing the class A drug, methamphetamine. You are the father of Bryce Charles Holmes, who also was appearing for sentence today. I will refer to you as Mr Holmes Snr, in order to distinguish you from your son.
Summary of facts – manufacturing methamphetamine
[5] The summary of facts is that in August 2010, the police began to collate information relating to your drug dealing activities.
[6] On 16 September 2010, the police executed simultaneous warrants at your address. During the execution of the warrant, it became apparent that methamphetamine was being manufactured at the house, as chemicals and other items were discovered.
[7] Mr Holmes Snr, you admitted these facts. You told the police that you set up the equipment with the permission of the occupier of the address and you were the person solely responsible for manufacturing the methamphetamine.
[8] 447.2 grams of ContacNT, which is a precursor chemical, was found at the address. This will contain approximately 180 grams of pseudoephedrine, which could yield approximately 115 to 137 grams of methamphetamine.
[9] 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.
Personal circumstances
[10] In terms of your personal circumstances, you are 47 years old. Prior to your remand in custody, you were living with your daughter and her family in Parakai, West Auckland. You have five children ranging in ages from 23 years to six months. Your youngest child was born on the day you were arrested. You say that your children are all supportive of you.
[11] You remain in a relationship with the mother of your youngest child. She has confirmed that both of you are “trying to work things out”, but that the situation is difficult. She was aware of your involvement in the manufacture of methamphetamine and distanced herself from you for the majority of her pregnancy, but you reunited just before she gave birth.
[12] Your main source of income over the past 25 years has come from plastering, but for the past few years you have been unemployed.
[13] During this time, you have manufactured methamphetamine for your drug habit. You state that your manufacturing was strictly for your personal use. However, the quantities that could have been produced contradict that. You say that your biggest regret is involving your son in the offending.
[14] You have acknowledged an addiction to methamphetamine for approximately the past five years, and this is consistent with your first appearance in relation to drugs, which was for possession of methamphetamine in 2005. I note that while you have been on remand in custody, you successfully completed a programme run by Community Alcohol and Drug Services to help you overcome your addiction. I have read the letter that you wrote to me expressing your regret for your offending. The letter and your participation in the drug addiction programme show a degree of insight into the reasons for your offending and remorse. Of course, in this case, there is not only your own offending and the damage that has done to your family, but the fact that you have involved your son in the offending. In doing so, you have placed him at risk of a sentence of imprisonment. Apart from his present remand in custody, his past offending has not led to a sentence of imprisonment. His first experience of being in a prison results from your offending and your involving him in that offending. So you have a lot to be remorseful about.
Previous history
[15] In terms of your previous history, you have 48 previous convictions for a variety of offending. You have consistently appeared before the courts since 1981. That may have something to do with the fact that you are a former member of the Tribesmen Motorcycle Club.
[16] You have the following drug-related convictions:
(a) You were convicted and sentenced for consuming methamphetamine in December 2005;
(b)You were convicted and discharged for possessing utensils on an earlier date in 2005; and
(c) Also in 2005 you were convicted of procuring/possessing methamphetamine.
[17] The most serious of your previous convictions are possession of a weapon, unlawfully carrying or possessing a firearm in 2005, and possessing a knife in a public place. There are also offences of violence which go back further in time.
Motivation to change
[18] Having read your pre-sentence report, it is clear to me that your offending was primarily caused by your methamphetamine addiction and your lifestyle. Your use has progressed considerably over the past three years, to the point where you decided to produce methamphetamine. You state that you were using up to one gram of methamphetamine per day leading up to your arrest and that you were heavily addicted.
[19] The enforced abstinence from methamphetamine while you have been in custody and the programme that you have undertaken has helped you see the value in completing further drug abuse programmes. And I note the indication in your letter that you intend to continue participating in such programmes on release from prison after you have served your sentence.
[20] You present as someone who is now motivated to use the programmes available to you to rehabilitate yourself. Nonetheless, the probation officer has assessed you as posing a medium risk of reoffending. But if you successfully address your drug dependency and remove other risks associated with drug use, the probation officer considers that the overall risk of reoffending will diminish. So really what happens from now on is your hands, Mr Holmes Snr, you are the master of your fate in this respect.
Crown submissions
[21] The Crown has referred me to the tariff cases. The leading case is R v Fatu [2006] 2 NZLR 72 (CA), particularly [37]-[43]. You fall within the middle of band two of Fatu. The appropriate starting range is four to 11 years’ imprisonment.
[22] The Crown accepts that you should be entitled to a 25 per cent discount for your guilty plea.
[23] Here, the Crown has submitted a starting point should be between seven to eight years’ imprisonment, with an uplift to reflect your previous convictions, and then a discount of 25 per cent.
Defence submissions
[24] Your counsel has submitted that the appropriate starting point is seven years. So both counsel are largely agreed on the appropriate starting point.
[25] Your counsel has attempted to persuade me that there should be no uplift for your previous convictions. He also submits that you should receive a 25 per cent discount for your early guiilty plea, and a further discount for your remorse.
Sentence
[26] Mr Holmes Snr, in sentencing you, I am required under the Sentencing Act
2002 to take into account the purposes and principles of sentencing and any relevant aggravating and mitigating factors.
[27] The purposes of sentencing which are available to me in your case are 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 the community. And one needs to look no further than what is currently happening in this courtroom today and to see what has happened to you and your son to see a good example of the damage this drug can do.
[28] There is also a need to denounce your conduct and to deter you and others from offending in this way in the future.
[29] The relevant principles I should take into account include the gravity of your offending, and the seriousness of your offending. The fact that manufacturing
methamphetamine has a maximum sentence of life imprisonment underscores the serious nature of this offending.
[30] I also need to impose a sentence that is consistent with others imposed in similar circumstances; but when looking at the sentence I impose overall, it should be one that is the least restrictive to you as is appropriate in the circumstances.
[31] Now in the course of today’s hearing, I have already referred to the lead judgment of R v Fatu. There are other cases which I also consider to be relevant and which provide helpful guidelines, and I will include the references to those cases in the sentencing notes without going through them in any detail.
Relevant cases
(a) R v Johnstone HC Tauranga CRI 2008-087-2122, 15 July 2010, Venning J. Reasonably similar facts to the present. Manufacture of approximately 100 grams placed Johnstone in the middle of band two, leading to a starting point of seven years imprisonment.
(b)R v Patten HC Auckland CRI 2006-004-3200, Stevens J. Slightly more serious facts than the present case. 168 to 196 grams of methamphetamine manufactured and between 70 to 566 grams of methamphetamine supplied. A nine year starting point was adopted;
[32] Mr Holmes Snr, 115 to 137 grams falls in the middle of band two of Fatu. I consider the appropriate starting point is seven years’ imprisonment. I consider some uplift is warranted for your previous convictions. There are your previous drug convictions, though they are not as serious as the present charge. There is also a need to recognise the other historic offending. I propose to uplift the sentence to eight years. But I also agree that you are entitled to a discount of 25 per cent for your guilty plea, and I also intend giving a further five per cent discount to reflect your remorse. This comes to a discount of approximately two years and five months’ imprisonment, which brings the end sentence to one of five years and seven months’ imprisonment.
[33] Mr Holmes Snr, would you please stand.
[34] On the charge of manufacturing methamphetamine, you are sentenced to five years and seven months’ imprisonment.
[35] Please stand down.
[36] An appropriate date for the sentencing of Mr Holmes Jnr is at 9.00 am on
Tuesday, 17 May 2011.
[37] Mr Holmes Jnr, you are remanded for sentence until 9.00 am on Tuesday,
17 May 2011.
[38] Stand down please.
Duffy J
Counsel: M M Mason 3 Russell Avenue Papakura 2110 for the Prisoner B C Holmes
Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Crown
Tucker and Co Private Bag 93512 (DX BP66038) Takapuna Auckland 0740 for the Prisoner B D Holmes
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