R v Hughes HC Napier CRI 2006-020-3903

[2007] NZHC 1745

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2006-020-3903

THE QUEEN

v

SHANE EDWARD HUGHES

Hearing:         22 May 2007

Appearances: S Manning for the Crown

K Guthrie for the prisoner

Sentencing:     22 May 2007

SENTENCING REMARKS OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 609, Napier

K Guthrie, PO Box 101, Hastings

R V HUGHES HC NAP CRI 2006-020-3903  22 May 2007

[1]      Shane Edward Hughes, you have pleaded guilty to a total of ten charges under the Misuse of Drugs Act 1975.  Five of these are for supplying the Class A controlled drug methamphetamine, for which the maximum sentence is life imprisonment.   That is a measure of how seriously the legislators regard this offending.    The  other  five  charges  are  for  selling  the  Class  C  controlled  drug cannabis for which you face a maximum sentence of eight years’ imprisonment.

[2]      The Court has today been assisted in dealing with your sentencing by the following materials:

a)        Helpful  written  submissions  from  both  the  Crown  and  your  own counsel;

b)       The oral submissions which you heard presented today, both from your counsel and the Crown;

c)        The pre-sentence report from the Probation officer; and

d)The letters of support from your partner and  your mother and the letter that you wrote to me, all of which I have read.

[3]      There was also a medical report from the Hawke’s Bay District Health Board addressing the steps which you have taken to ensure that you turn your back on drugs and take steps towards recovery.  I warmly encourage you to keep progressing down that path.

Facts

[4]      In March 2006, the Police on the East Coast and in the Hawke’s Bay region launched Operation Nacre, which was targeting the supply of controlled drugs.  Your offending was uncovered as a result of this operation.

[5]      An undercover officer met you in a carpark in Napier, having arranged with you to purchase methamphetamine.    You produced a 0.25 gram bag of methamphetamine and gave it to the officer in return for $200.   You offered the officer a medium sized bag of cannabis for $50, which he purchased.   Such $50 cannabis bags generally contain cannabis equivalent to two and a half to three tinfoil bullets of cannabis.

[6]      On 28 April 2006, you met the undercover officer on Riverbend Road in

Napier.    You  produced  two  point  bags  of  methamphetamine,  each  containing

0.1 gram, and a $50 bag of cannabis.  You sold these controlled drugs to the officer for $250.

[7]      On 5 May 2006, you met the undercover officer at your home in Napier.  On this occasion you sold him two 0.25 gram bags of methamphetamine and another

$50 bag of cannabis for $450.

[8]      On 12 October 2006, an undercover officer arranged to meet you on Marine Parade in Napier in order to purchase an ounce of cannabis.  You asked him to drive you to another address to get the cannabis and to give you $180 to purchase it with. However, you were unable to purchase the cannabis and you returned the cash.

[9]      On 20 October 2006, the undercover officer with whom you had been dealing brought another officer to meet you at your home in order to purchase cannabis and methamphetamine.  You told them that the cannabis deal had fallen through but that you could still get the methamphetamine.  You took the second undercover officer to another address in Napier, but the associate living at that address said he had to go elsewhere to get the methamphetamine.  You took the officer to a carpark in Napier and waited for the associate.  He eventually arrived and sold the officer one gram of methamphetamine for $900.  The officer gave you $40 for setting up the deal.

[10]     Upon your eventual arrest  you told  the Police that  you had been selling cannabis and methamphetamine from your home address in February, March and April of 2006.  You told the Police that you would sell between five and ten grams

of methamphetamine a week.  The cannabis was generally sold in $50 bags.   You further told the Police that you were hard up and needed the money.

Personal circumstances and pre-sentence report

[11]     You are a 23 year old man.   While you were on bail, you lived with your mother and stepfather.  Prior to that you lived with your partner and three children. You have a brother but have little contact with him or your birth father.  You report that you maintain good, supportive and loving relationships with other members of your family.  It is pleasing to see your mother and sister here in Court to support you today and you should be very grateful for that.

[12]     Your  partner  says  that  there  were  some  relationship  issues  as  you  were working long hours and spending too much time with friends.  Together you moved to Taupo for a time to escape the people with whom you were associating.   This move was cut short by financial difficulties.   However, your partner says that at present you have a good relationship and that you are an excellent father to your children.  I am taking particular note of the supportive letter that she wrote to me and again, you should be very grateful that you continue to have support from her.

[13]     In terms of employment,  you  have worked  in  forestry as  well  as  at  the freezing works, but your work has been cut off as a result of your arrest.   You initially denied having addiction problems with alcohol and drugs.  But you referred yourself  to  drug  and  alcohol  counselling,  fortunately  prior  to  your  remand  in custody.  You say that counselling has been very useful in helping you to manage day to day issues, as well as your addiction.   You further say that you have disassociated yourself from those people that you mixed with at the time of the offending and you are willing to continue with counselling and any further programmes that may be required.

[14]     You explain the offending by saying that it was precipitated by the requests of the undercover officer.  You say it was the easiest way to get him off the doorstep. In addition to obtaining and selling the methamphetamine, you sold him cannabis that you had in your possession to make money for yourself.  The Probation Officer

expressed the opinion that you were downplaying your role in the offending and attributed your offending to addiction issues and immaturity.  I rather tend to agree with the Probation Officer on that point.

[15]     The Probation Officer thought you possess a medium level of motivation to address  your  offending  and  that  you  are  at  medium  risk  of re-offending.    The Probation Officer expressed some concern as to whether you could maintain your resolve if placed back in the community with the normal domestic and financial pressures.  That is something you are going to have to learn to address in the future.

Prior convictions

[16]     You have been offending since 2001 with 22 previous convictions.  Many of these are for traffic and breath alcohol offences, but there are also a number of dishonesty offences as well.  You have breached the terms of your community work sentences on two occasions.   There is no drug related offending in your criminal history and to date you have not  served  a  sentence of imprisonment.    You are currently approximately one-third of the way through serving a sentence of community work and you have outstanding fines and reparation to over $1,200.

Crown submissions

[17]     The Crown submits that the aggravating features of your offending were your willingness to deal in both Class A and Class C drugs.  In this respect, the Crown relied on the number of sales, the duration of the offending and your preparedness both to sell and facilitate sales.   The Crown acknowledges that you are entitled to credit for your early guilty plea.

[18]     The Crown submits that your offending sits within band 2 of the guideline judgment for methamphetamine offending of R v Fatu [2006] 2 NZLR 72, characterising you as a commercial drug dealer and a principal offender. The Crown suggests that the starting point for your offending should be somewhere in the

middle  of the  band,  which  prescribes  a  sentence  range  of  three  to  nine  years’

imprisonment.

[19]     In terms of  your  cannabis  offending,  the  Crown  submits  that  you  sit  in category 2 of the guideline case of R v Terewi [1993] 3 NZLR 62, which prescribes a starting point of between two and four years.

Submissions for the prisoner

[20]   I referred earlier to the submissions from your counsel.   These are comprehensive and deal with the various cases, the principles applicable to your sentencing and in particular stress the mitigating factors.  In your case, these include an early guilty plea prior to depositions, genuine remorse, the family support that you have from your mother and partner, and the fact that this is your first offence for drug related offending.  You heard the exchange in Court today as to the appropriate starting point and that is in band 2 of Fatu, which was referred to earlier.  Once that starting point is fixed, the mitigating factors are then taken into account.

Purposes and principles in sentencing

[21]     In terms of sentencing you today I am required to take into account a number of purposes and principles, including holding you accountable for the harm done to the community, which is a particularly relevant factor here because of the dreadful effects on the community of methamphetamine, which is a pernicious drug and one which you need to turn your back on from today forever.  The promotion of a sense of responsibility for that harm, denouncing your conduct and the need to deter you and others like you from committing the same or similar offences are also relevant purposes of sentencing.

[22]     In terms of the principles, I have to take into  account the gravity of the offending, your degree of culpability, the seriousness of the type of offending, the desirability of consistency and then  impose the  least  restrictive  outcome  that  is appropriate in all the circumstances.

[23]     Section 6(4) of the Misuse of Drugs Act 1975 provides that I must impose a sentence of imprisonment for the offence of supply of methamphetamine unless I am of the opinion that in the particular circumstances that that is not appropriate.  I see nothing in your circumstances that would persuade me not to apply the statutory presumption of imprisonment.

[24]     I  am also  required  under  s  6(4A)  to  consider  whether  a  fine  would  be appropriate, but you have outstanding fines and your current financial position leads me to the conclusion that to impose a fine would be totally inappropriate in this case.

Features of offending

[25]     When sentencing, the orthodox approach requires me to fix a starting point in relation to your offending and then adjust the starting point for any mitigating and aggravating features of the offender:  R v Taueki [2005] 3 NZLR 372 (CA).

[26]     In terms of aggravating features, there is the premeditation element, the fact that you knew how to go about procuring Class A and Class C drugs.   You were ready, willing and able to make drug sales over a period of months.  I appreciate that premeditation is in a sense part of the offences of dealing in controlled substances.

[27]     Your previous convictions are at a relatively low level fortunately.  But you have been willing to flout Court orders, as demonstrated by your convictions for breach of community work.  Then of course there is the fact that you were offending whilst still subject to the sentence of community work for previous offending.

[28]     In terms of mitigating features, in your case I have regard to the following mitigating factors:

a)        Your relative youth and immaturity.  I am hoping that, given you are

23, there is still a chance that you will be rehabilitated;

b)       Your guilty pleas, entered early on.  Even before that, there had been reasonable cooperation with the Police upon your apprehension.

c)       These are your first convictions for drug offending and the fact that you have, as noted in the report from the Hawke’s Bay District Health Board, taken steps to start the road to recovery.

Guideline judgments

[29]     I have already referred to Fatu.  This case clearly falls within band 2, which is for supplying commercial quantities 5 – 250 grams and for which the starting point is between three and nine years.

[30]     In terms of the cannabis offending, if I was considering that separately your case falls within category 2 of R v Terewi which involves small scale cultivation or selling and the starting point there is between two and four years’ imprisonment. The case of R v Keefe CA275/02 28 November 2002 says that Terewi is applicable in terms of possession for supply, so there is an analogy that applies there.

[31]     In terms of applying these factors, the amount of methamphetamine involved by your own admission is greater than five grams and therefore clearly puts you within band 2 of Fatu.  You acted as both a seller and an intermediary and you were prepared to supply two different types of drugs, although I accept that the cannabis was at a relatively low level of offending.

[32]     The difficulty that I have is that the role that you played indicates that you were  prepared  to  engage  in  serious  commercial dealing  in  controlled  drugs  for financial gain.  As one of these was the Class A controlled drug methamphetamine, my options in terms of sentencing are greatly reduced.   This is because I have to have regard to the great harm which that controlled drug is having on our society.

Starting point

[33]     Having regard to all the aggravating factors, I fix a starting point in your case of four and a half years’ imprisonment.  In this context I have, as I am required to do by s 9(1)(c) of the Sentencing Act taken into account that this offending occurred

whilst you were still undergoing another sentence.  I have not decided to make any uplift for this aspect.

[34]     Having regard then to the mitigating factors that I have outlined, I am going to allow a significant deduction of 18 months, so the final sentence of the Court is three years’ imprisonment.  In fixing that sentence, I have to have regard for the fact that there are two types of drugs and had I been imposing cumulative sentences, the one sentence would be on top of the other.   I am not going to impose cumulative sentences, so what I have to do is stand back and look at the sentence based on the totality principle.  So doing that, I have to consider whether the overall criminality of your  offending  justifies  the  sentence  that  I  have  referred  to.    Following  that approach, I consider that a sentence of three years’ imprisonment is appropriate.

[35]   Turning to the charges, on the supply of the Class A controlled drug methamphetamine (five charges), you are sentenced to  imprisonment on each of three years.  All of those terms are concurrent.  For the charges of selling the Class C controlled drug cannabis, the sentence is one year nine months on each and all terms are concurrent.

[36]     I just want to say one last thing to you.  When you complete your sentence, it is absolutely essential that you take advantage of the family support that you have, because family and friends are the best things that you have in the world.  You must turn your back on controlled drugs, and methamphetamine in particular.  If you do not, you will be back here in front of this Court again, and I hope that that will not be the case.

[37]     You may stand down.

Stevens J