R v Hunt and Fuller HC Ham CRI 2007-019-1317
[2008] NZHC 2239
•19 March 2008
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
CRI 2007-019-1317
THE QUEEN
v
SHONA VALERIE HUNT SHAWN JAMES FULLER Defendants
Hearing: 19 March 2008
Appearances: P Crayton for Crown
R Laybourn for accused Hunt
K Burroughs for accused Fuller
Judgment: 19 March 2008
SENTENCING NOTES OF PRIESTLEY J
Solicitors/Counsel:
P Crayton, P O Box 19173, Hamilton
R Laybourn, P O Box 936, Hamilton
K Burroughs, P O Box 19307, Hamilton
R V HUNT AND ANOR HC HAM CRI 2007-019-1317 19 March 2008
[1] Shawn James Fuller and Shona Valerie Hunt, I am sentencing you today on charges to which you have pleaded guilty under the Misuse of Drugs Act 1975.
[2] You, Mr Fuller, have pleaded guilty to supplying methamphetamine to unknown persons over a period of just over a year, it being a representative charge, and also pleaded guilty to possession of methamphetamine for supply. As you know, these are serious charges and carry, potentially, a maximum penalty of life imprisonment.
[3] You, for your part, Ms Hunt, have pleaded guilty to selling cannabis, a representative charge, for a lesser period of approximately two and a half months, and possession of cannabis for sale. Those charges carry a maximum of eight years imprisonment.
[4] You both pleaded guilty on arraignment on 4 February 2008, and since that date you, Mr Fuller, have been in custody.
[5] Significantly, in imposing any sentence, is s6(4) of the Act, which carries with it a presumption of imprisonment for offending.
[6] I need to say something briefly about your personal circumstances, but before doing that I need to mention the facts on which the Crown relies.
[7] On the morning of 13 February 2007, a search warrant was executed at Ms
Hunt’s address. During the course of that search 10.3 grams of cannabis was found
in a handbag, together with three snaplock bags. There was also a total of .5 grams of methamphetamine discovered in four point bags. Also present were all the indicia of
a drug dealer, being point bags, a few snaplock bags, pipes and a straw, two cell phones, two butane torches, $140 in cash, and, significantly, electronic scales containing traces of both methamphetamine and cannabis.
[8] Later on the same day a search warrant was executed at 9 Haigh Street, which appears to be Mr Fuller’s business premises or home premises. There, too, a set of electronic scales and snaplock bags were found, and various documents. There was a
camera over the side door, capable of relaying pictures to two television sets in the house.
[9] You, Mr Fuller, are aged 31. You have, as I have stated, been in custody for approximately six weeks. You and Ms Hunt were living together at the time of this offending, with her two children from a previous relationship. You have, I am told, subsequently married.
[10] In September last year you began and completed an eight week intensive outpatient rehabilitation programme at the Hamner clinic in Hamilton. I have seen a completion certificate to that effect dated 15 November . You have been candid and frank with the probation officer. You acknowledge your addiction to methamphetamine as a catalyst to your offending. The risk of your re-offending is assessed as low and your level of motivation to change is assessed as high. As sentencing Judge, I regard those as being two important indicators to which I must have regard.
[11] You were, when you were arrested, apparently employed as a machine operator at Carters Manufacturing. You have a position with that company still open
to you, your employer being happy to take you back, provided you are still at liberty.
[12] In respect of you, Mr Fuller, a pre-sentence report recommends home detention.
[13] You, Ms Hunt, are also aged 31. Mr Fuller is now your husband. In addition
to your responsibilities to your two children, being twins aged eight, you currently have a part time job with the Trees Tavern in Tokoroa as their gaming venue manager. This is obviously a position of some trust because you are required to handle daily reconciliations and handle cash generated by the gaming machines at that hotel. Your employer has written a supportive testimonial. The position you occupy at work is one which requires focus, responsibility, personal integrity and cash handling and accounting skills. Your employer refers to you as being both trustworthy and responsible.
[14] In respect of your pre-sentence report too, home detention is recommended.
[15] Both of you have previous convictions. Alarmingly, you Mr Fuller have three previous convictions for cannabis related offences under the Misuse of Drugs Act. These were entered against you in 1996. You also have driving convictions. You, Ms Hunt have a shorter and more minor criminal history. You were sentenced to community work for driving whilst disqualified and, interestingly for someone in your position, were convicted and discharged for fighting in 2005 and for disorderly conduct, for which you were fined in 2006. You seem to have outstanding fines.
[16] I assess that criminal history for both of you as indicating people who, from time to time, spin out of control and let loose with anti-social activity. You are both old enough now to put that behind you and it is to stop. Because of the convictions you now have entered against you, any more encounters with the law are going to be dealt with much more severely than hitherto. So, bear that very much in mind.
[17] There are, for both of you, aggravating factors which the Sentencing Act obliges me to consider. Both of you, with different drugs it would seem, were supplying these to others. There is, for both of you, this aspect of repeat supply which carries with it a degree of premeditation. And for you, Mr Fuller, the fact you have had previous convictions involving drugs, even though eleven years previously, shows, regrettably, you have not yet learnt your lesson.
[18] Mitigating factors for both of you are your guilty pleas, which I accept were appropriately entered and timed, and also the genuine expressions of remorse which appear in your pre-sentence reports. It seems to me that experienced probation officers would not recommend the outcomes they have if they had not been genuinely impressed. I also believe that for you, Mr Fuller, the fact you have been motivated to embark on the Hamner rehabilitation programme, which is an intensive one, is one for which you should receive credit.
[19] The Crown has made realistic submissions to me. So far as Ms Hunt is concerned, Mr Crayton accepts that a sentence of home detention would be an
appropriate outcome. He resists, and in my view rightly so, a suggestion that the lesser sentence of community detention should be imposed.
[20] The Crown, in respect of Mr Fuller, submits that the start point, in terms of R
v Fatu should be between three years three months and three years nine months. Mr Crayton points to the fact that this offending took place in your home, and more importantly perhaps, in your partner’s home, and also your previous convictions as being factors which should tilt me against the sentence of home detention, instead imposing a custodial sentence probably somewhere in the region of three years four months or thereabouts. Mr Crayton also points to the fact that this dealing in methamphetamine seems to have taken place, as is clear from the representative charges, over a period of time and that on occasions quantities got up to two grams.
[21] Dealing first with you Mr Fuller. The starting point with methamphetamine offending is R v Fatu [2006] 2 NZLR 72. In your case there are two factors flowing from the two charges; the first is the discovery of 0.5 grams of methamphetamine in four point bags, coupled with a number of the indicia of a drug dealer, which I have referred to.
[22] The second is the representative count to which you pleaded guilty, of actual supply. Both counsel seem to be of the view your offending lies within band 1 of Fatu, although Mr Burroughs, with some optimism, suggests it should be closer to two years. I agree that band 1 of Fatu is appropriate. The amount of cash found in your possession was not great. However, your phone records suggest you were dealing with methamphetamine in amounts of up to two grams. I think it highly likely, as is the pattern of offending of this type, that your trafficking in methamphetamine was largely motivated by your need to keep up a cashflow to feed your own addiction. That is a very nasty roundabout to get on and you have to hop off it permanently.
[23] I intend to use the supplying of methamphetamine to unknown persons as the lead sentence, adjusting it upwards slightly in terms of Fatu principles to reflect the amount of the drug actually found in your possession. Across the board in sentencing you, I must be aware of the purposes of deterrence and denunciation, but
in your case the principles of imposing the least restrictive outcome and encouraging your rehabilitation are important, particularly in terms of cementing in the benefits which you have derived from the Hamner programme. Supply, although this by no means excusing what you have done, was at a low level relative to some cases which the Courts have to deal with.
[24] Reflecting the totality principle and culpability for both charges, I consider that a start point of three and a half years on each of the two charges is warranted. Aggravating factors of the offending are largely its repetitive and premeditated features. Those I have factored in. For your guilty pleas, and also for the mitigating factors of your work record and remorse, I am prepared to discount that by one-third, which will reduce the end sentence to two years and four months imprisonment. But particularly because I note you are at a low risk of re-offending and that the Hamner programme is in all probability a turning point of your life, I am prepared to discount your sentence by another four months, arriving at an end sentence of two years.
[25] Being mindful of the appropriate comments of the Court of Appeal in R v Hill [2008] NZCA 41, I specifically record that I have not artificially adjusted these figures to bring me into the home detention sentence range. There are occasions when courts are entitled to extend leniency, and in my view your circumstances and the R v Taueki [2005] 3 NZLR 372 approach justify the end sentence of two years I have mentioned.
[26] The real issue in your case is whether I should move from an end sentence of two years via ss15A and 80A to a sentence of home detention. I note that home detention is recommended in the pre-sentence report. Home detention as a sentence, can have attached to it various conditions to allow assistance and monitoring from the start, which are not part and parcel of a custodial sentence. The appendix to your pre-sentence report indicates that home detention is a viable option for you, with an appropriate address. Your parents have told me in Court today that they are prepared to shoulder the burden your presence in their home, on restricted conditions, will undoubtedly impose on them. Furthermore the police have apparently indicated they have no objection to that sentence (although I note constitutionally the police’s
function in processing your prosecution has now been superseded by the Crown Solicitor).
[27] Against the home detention sentence is s 6(4) of the Misuse of Drugs Act, creating a presumption of imprisonment.
[28] I note in R v Hill the Court of Appeal quashed a home detention sentence and substituted, a term of imprisonment of two years and three months imprisonment. The scale of the drug offending there, coupled with a gang association, was a serious consideration and certainly more serious than yours.
[29] I am also mindful of the fact that you have already spent six weeks on remand in custody after your arraignment, when your bail ceased. Your liberty has also been curtailed somewhat as a result of the eight week intensive drug rehabilitation you undertook at Hamner.
[30] In all these circumstances I intend to sentence you on both convictions to a term of twelve months home detention. That is the maximum I am permitted to sentence. Be under no illusions, Mr Fuller, the serving of that sentence will not be
an easy option for you. It will require constant restraint and discipline on your part.
[31] I impose the following conditions:
· You are to travel directly to 2 Strathmore Drive, Tokoroa and await the arrival there of the probation officer and Chubb Security;
· To reside at 2 Strathmore Drive, Tokoroa, and not to move address without prior written approval from a probation officer;
· To abstain from the consumption of alcohol and/or illicit drugs for the duration of home detention;
· On a voluntary basis, to submit to drug testing once a fortnight to ensure you are obeying the previous condition;
· To attend substance abuse maintenance programme with CARE NZ Ltd and ongoing counselling as deemed necessary. The counselling is to be completed to the satisfaction of the Probation Officer and counsellor. The timing and extent of that counselling and substance abuse maintenance programme is to be as directed by your probation officer;
· To undertake employment with Carters Manufacturing, Cambridge as directed by the probation officer; and
· The home detention address will be 2 Strathmore Drive, Tokoroa.
[32] I turn now, Ms Hunt, to you. 10.3 grams of cannabis was found in your handbag. I am sure to some extent your offending was an integral part of the offending of your now husband. In terms of R v Terewi [1999] 3 NZLR 62 (a cultivation rather than a trafficking case but nonetheless used now as a tariff) your offending clearly involved a degree of commerciality. This places you, in my view, in category 2. Given the amounts involved and the flexibility on the edges of the Terewi categories, I consider a start point of two years is warranted in your case. You have displayed remorse and are entitled to a credit for your guilty plea. There are no aggravating factors in your situation other than the continuity of offending through small scale supply. I would allow you, again, a generous one-third reduction for both the mitigating factors which I have identified, which will result in an end sentence of one year four months imprisonment.
[33] Given your domestic responsibilities to your family, the probation officer’s recommendation, the fact that you have satisfactorily completed community based sentences in the past, your employment history, in particular that you have a responsible job part time open to you, and, again, your low risk of re-offending I consider that a sentence of home detention is appropriate. Sections 15A and 80A apply.
[34] On the two charges of which you have been convicted I therefore sentence you to a term of six months home detention. The conditions of that home detention are to be as follows:
· You are to travel directly to 21 Paraaouni Street, Tokoroa and await the arrival of the probation officer and Chubb Security.
· You are to reside at 21 Paraaouni Street, Tokoroa and not move from that address without prior written approval from a probation officer.
· You are to abstain from the consumption of alcohol and/or illicit drugs for the duration of the home detention sentence.
[35] Finally, in the nature of a wrap-up, there is a an order for the forfeiture of the
$146 to the Crown, together with, if necessary, the destruction of all seized paraphernalia.
[36] Mr Fuller is discharged under s347 of the Crimes Act in respect of counts 3-6
inclusive on the indictment he originally faced.
[37] Ms Hunt is discharged, pursuant to s347, on counts 1, 2, 5, and 6 of the indictment.
...........................................… Priestley J
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