R v Howard HC Invercargill CRI 2010-059-1155

[2010] NZHC 2320

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-059-1155

QUEEN

v

JOHN ROBERT HOWARD

Hearing:         14 December 2010

Counsel:         M Sinclair for Crown

B Kilkelly for Prisoner

Sentencing:     14 December 2010

SENTENCING NOTES OF MILLER J

[1]      Mr  Howard,  you  appear  for  sentence  on  two  charges,  of  possessing  for supply methamphetamine and cannabis.

[2]      You are a painter and decorator by trade.  The police say you work part-time as a security officer and maintenance man at various nightclubs in Queenstown, although you deny that.  One of those places is known to the police as a distribution point for illicit drugs.  Having become aware that there was an increasing presence of methamphetamine in Queenstown, the police made arrangements to execute a

search warrant at your property.  That was done on the 9th of September.

[3]      Forty-two grams of methamphetamine were found, having an approximate street value the police say of $42,000 although that must be a little overstated for

R V JOHN ROBERT HOWARD HC INV CRI 2010-059-1155  14 December 2010

reasons  I will  come to.    In  one bag were found five small  sealed  plastic bags containing methamphetamine ranging in weight from 5.4 to 10.2 grams.  In another location were found four bags containing between .9 to 1.2 grams of methamphetamine.  All this was found inside the house.

[4]      In a shed beside the main entrance were found six separately sealed plastic bags, each containing one ounce of cannabis and having an approximate street value of $1,500.

[5]      Inside a rubbish bin in the pantry was found a handwritten note containing four names and references to weights and values of drugs.  Also found was $1,250 in cash, concealed in the bathroom vanity.

[6]      Your explanation was that the methamphetamine and cannabis were for your own use.   You claimed you had made a bulk purchase to get you through to Christmas.   And you maintained that explanation with the probation officer.   In a detailed letter which you have written me, explaining your life history, you still maintain that this was not commercial.  Counsel has plainly told you, Mr Howard, that the Court must take as proved all those facts that are essential to the charge to which you have pleaded guilty.  That means I must sentence you on the basis that you had both of these drugs for the purpose of supply.  It is in any event quite idle to deny  that,  given  the  presence  of  tick  lists  and  cash.    You  gave  an  innocent explanation for those at interview with the probation officer too, but that is wholly inconsistent with the way in which these items were hidden in your property.  I do accept that you did intend to use some of the methamphetamine.  I accept that you are addicted to drugs.  But you stand here for sentence today as a dealer, and a dealer in Class A drugs.

[7]      You are aged 49.  After a troubled upbringing, you joined a motorcycle gang as a young man, but you left the gang in 1983 and became a commercial fisherman, before moving on to become a decorator.  You admit to drug and alcohol use, saying that you had been using P for about a year.  The probation officer recommends drug and alcohol counselling, and I agree that it seems appropriate.

[8]      As I have just mentioned, you wrote me a letter outlining your life history.  It is a sad story of ill luck at critical periods in your youth, leading to foster homes and poor educational achievement.   After a troubled time which extended into early adulthood you did establish yourself as a commercial fisherman and latterly a painter and decorator.  There are a number of references that speak very highly of you, both as a tradesman and as a friend.   Clearly you do have some outstanding personal qualities.  You feel, not without justification, that you have contributed more to the community than your offending has taken from it.   I understand that you are not justifying your offending by saying that;   you are making the point that you have done some good things in your life.  It is a matter of great regret that at the age of 49, you  have chosen  to  resort  to  drug dealing and  Class  A  at  that.    Your counsel described it as a tragedy and it is, but it is a tragedy of your own making.

[9]      You have a number of convictions relating mostly to alcohol and driving and theft, but the last was in 1991.  It was for cultivating cannabis, and is your only drug conviction to date.   I will not treat these as an aggravating factor.  Nor, given the passage of time, do your previous convictions preclude a claim to previous good character.

[10]     Your case falls into a band requiring a starting point of between three and nine years imprisonment.[1]    That band covers pure methamphetamine of between 5 and 250 grams in weight.  It is not in dispute that the methamphetamine here was pure, but Mr Kilkelly has emphasised that it was wet, meaning that it was equivalent to a smaller quantity of dry crystals.  The weight is normally assessed on a dry basis. I am told that the drug was weighed by ESR in dry condition and came in at 34 grams.

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

[11]     It is necessary to locate your offending within the band I have just mentioned. I have considered a number of cases where the weight ranges between 20 and 79 grams and starting points were between four and six years;  I will mention those in my Sentencing Notes.[2]   The quantity here was towards the lower end of that range.  I

also accept that there is no evidence of this having been a longstanding or durable business on your part.  For instance, your house lacked the quantity of equipment or cash that was present in some of the other cases.  So I am going to sentence you on the basis that I am not dealing with an extended pattern of drug sales.  Against that, the starting point must take into account the cannabis offending; standing alone, that would attract a starting point of two years imprisonment.  So I am going to adopt a starting point of four years imprisonment.

[2] R v Brewis HC Auckland CRI 2009-090-6454, 15 December 2009, R v Golding HC Auckland CRI 2007-057-715, 28 November 2008, R v Coker HC Wellington CRI 2007-091-1213, 1 June 2007, R v Boon HC Auckland CRI 2006-004-21763, 18 October 2007, R v Nguyen, HC Auckland CRI 2007-004-12166, 11 September 2007, R v Shelton HC Wellington CRI 2007-085-7699, 29 February 2008, R v Al Hachache HC Auckland CRI 2003-004-27928, 24 November 2006, R v Irshad HC Auckland CRI 2007-004-13539, 2 December 2008, R v Kake HC Auckland, CRI 2007-004-6217, 12 November 2008, R v O’Connor HC Whangarei CRI 2007-088-4582, 22 October 2008, R v McGrath HC Wellington CRI 2007-078-793, 7 November 2008.

[12]     There are no aggravating factors.   In mitigation, you pleaded guilty on 5

November, a reasonably early stage.   Having been caught red-handed, as it were, conviction was inevitable.  But you pleaded guilty at a time when an early guilty plea would earn you a discount of 30 per cent, and that is the discount that you will receive.

[13]     There is very little room for personal considerations in sentencing of this sort. I have mentioned the references which speak to your personal qualities, but I can give  you very little credit for that.   The law  is quite clear that deterrence and denunciation are the main sentencing considerations in cases of this sort, particularly where methamphetamine is involved.   It follows that I cannot accede to your counsel’s plea that you be sentenced to home detention.  Your sentence must be too long for that and it would be inappropriate in any event.  I do hope that in prison you will get access to treatment for your drug addiction.  If you can deal with that, there is every reason to suppose you can be a constructive member of the community. Clearly you do have support in the community.  I do hope that you retain that so that on your release from prison you are able to return to constructive employment.

[14]     Your sentence on the lead offence, possessing methamphetamine for supply, is two years and six months imprisonment.  You will serve a concurrent sentence of

15  months  imprisonment  on  the  cannabis  charge.    There  will  be  an  order  for forfeiture for cash.

[15]     You may stand down.

Miller J

Solicitors:

Preston Russell Law, Invercargill for Crown