R v Hutton HC Hamilton Cri-2005-419-379
[2005] NZHC 1223
•20 May 2005
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY CRI 379
THE QUEEN
-v-
MARK HUTTON
COUNSEL: R. Douch for Crown
G. Wilson for accused
SENTENCE: 20 May 2005
SENTENCING NOTES OF NICHOLSON J
Solicitors: Crown Solicitor, Hamilton
G. Wilson, Hamilton
Introduction
Mark Hutton, this sentencing may take some time because there are a considerable number of charges. There is also a background. You are currently serving a sentence for drug offending and so the position is quite complicated. However, I will endeavour to make it as simple as possible so that you can understand it.
Offences
You have pleaded guilty to and been convicted of nine offences for which I now sentence you. The nine offences are:
(a)that on 18 January last year you threatened to kill Renee Pene,
(b)that on that date you were in possession of precursor substances which could be used for the manufacture of methamphetamine,
(c)that on that date you were in possession of the precursor substance Safrole,
(d)that on that date you were in possession of cannabis for the purposes of sale,
(e)that on that date you were in possession of methamphetamine smoking pipes,
(f)that on that date you were in possession of two pipes for consuming cannabis,
(g)that between 1 November 2003 and 18 January 2004 you produced the precursor substance psuedoephedrine,
(h)that in that period you supplied the Class A drug methamphetamine to a person or persons unknown,
[i]that on 18 January 2004 you had possession of equipment capable of manufacturing methamphetamine.
Facts
The basic facts of those nine offences are, first, that you were involved in a relationship with Renee Pene for about a year before January last year. On the afternoon of Sunday 18 January last year Renee Pene was at an address near Kihikihi where she had been living with her father and two pre-school children. At that time she was preparing to shift to a new home which she was arranging in Hamilton. She had spent time with you in your flat at Charlemont Street, Hamilton earlier that day, the Sunday, and had left on good terms.
However, about midday she received a telephone call from you on her mobile phone. After a brief conversation you became abusive and she finished the call. Moments later she received a text message on her mobile phone. The text message was from your mobile and it said “I’m on my way and there’s going to be fun when I get there”. You then telephoned her again on her mobile and said “I’m on my way with an iron bar and I’ll knock out the first person that gets in my way and then everyone after that”. You asked her if she could hear your van running and as a result she assumed you were driving from Hamilton to where she was living at Kihikihi.
She tried to reason with you, even offering to go to Hamilton to see you, but you remained aggressive and irrational. You refused to listen to her and you screamed abuse at her. She was extremely fearful that you were on your way to harm her. She told family members of the calls and arrangements were made for her to leave.
Before leaving her home at Kihikihi she received another phone call from you on her mobile in which you said “I’m on my way with my gun and my axe and I’m going to
kill you”. She had previously seen you with a firearm in your possession and you told her that firearm was yours. She was very concerned for her safety.
The police were called and she left the address in Kihikihi and travelled south towards Putaruru in order to avoid you contacting her. Upon direction by the police, other family members also left the address at Kihikihi.
Throughout her journey towards Putaruru, you telephoned her on her mobile telephone 38 times. She ignored those calls and did not take them. During that period you sent 20 text messages to her mobile phone, directing her to answer and abusing her.
As a result of the continuing attempts by you to contact Ms Pene, she continued to drive south and went to the Police Station at Tokoroa. Whilst she spoke with the police at Tokoroa you telephoned her mobile a further 15 times and sent five more text messages, none of which she replied to. Ms Pene was convinced then that you intended to kill her and arrangements were made for her to live where you would not know where she was.
Eventually the police tracked you down at about 10.30 that Sunday night at your flat at Flat 5, 15 Charlemont Street, Hamilton. You failed to respond to repeated requests by the police to present yourself at the door and you were eventually found hiding inside the flat. The police found 550 rounds of .22 calibre rifle ammunition in your vehicle parked outside the house.
Those are the facts relating to the offence of threatening to kill.
So far as the eight drug related offences are concerned, the facts are that when the police went into your flat that Sunday night, they found a number of chemicals and equipment of the type commonly used in the manufacture and distribution of the Class A controlled drug methamphetamine. They found textbooks dealing with procedures for making methamphetamine, ecstasy and other controlled drugs. In your bedroom they found a satchel and inside the satchel found a small plastic snaplock bag, commonly known as a “point bag”, which contained a small amount of methamphetamine. The
satchel also contained a large number of unused point bags. Also located in the satchel was a set of electronic scales and a plastic bag containing $5950 in bank notes. That money has been the subject of the disputed facts hearing on which I have ruled earlier today.
Also located in your bedroom on the floor was a belt bag, or bum bag, which contained further bank notes totalling $555.00. So you had, in your room, bank notes of
$6505 and as I found earlier today, having had a disputed facts hearing, I am satisfied beyond reasonable doubt that that money was the proceeds of you selling methamphetamine.
Inside the flat the police also found eight methamphetamine smoking pipes and several pipes and utensils for using cannabis.
A search warrant was executed on Flat 3 in the same block. That flat was unoccupied, but it was owned by your parents and you had regular access to it. In that unoccupied flat there were four chilly bins which contained a quantity of chemicals of the type used to manufacture methamphetamine. It also contained equipment of the type used to manufacture methamphetamine.
Those are the base facts relating to the drug offences.
Previous Convictions
You have had many previous convictions. They effectively started in 1986 when you were convicted of possessing cannabis and possession of instruments. In respect of both offences you were fined. There were then, in 1987, dishonesty offences, but also in 1987, in August, a conviction for possession of plant material for which you were sentenced to six months periodic detention. In 1988 you were convicted for possession of cannabis and sentenced to one month periodic detention. There were then dishonesty offences in 1990. In 1991 you were sentenced to three months periodic detention for the offence of possession of cannabis oil. That was in March 1991. In May 1991 you were
sentenced to four months periodic detention for smoking cannabis. In 1992, burglary offending and in February 1994 you were fined for possession of cannabis seeds for supply and possession of cannabis. In 1998 you were sentenced to one year’s imprisonment for three offences of supplying a Class B drug and also sentenced to concurrent terms of imprisonment of three months for offences of possession of amphetamine, possession of cocaine, possession of methamphetamine and possession of LSD. In June 2000 you were fined for possession of cannabis. In December 2001 you were sentenced for offences which included drug offences, namely possession of methamphetamine, possession of cannabis oil, possession of cannabis seeds and possession of cannabis. You were also then sentenced in respect of offences of possession of a pistol, possession of ammunition and unlawfully possessing or carrying a firearm. You received concurrent sentences for the offending of one year, six months imprisonment.
December 2004 sentence
On 10 December last year you were sentenced by Judge Spear to an effective term of three and a half years imprisonment for drug offending. I will deal with that offending and that sentence in detail because I have to take that sentence into account in assessing the appropriate sentence for you today because you are still currently serving that sentence.
In describing that offending and sentence I refer directly to the note of what Judge Spear said when he imposed sentence. He pointed out that you were being sentenced that day for two offences of possession of methamphetamine for supply, one offence of possession of amphetamine for supply, one offence of possession of another Class B controlled drug hashish for supply, one offence of possession of cannabis for sale, and two offences of possession of utensils. He said:
“In relation to this offending, you were arrested on other matters on 27 February 2003 by the police. While being searched, the police found methamphetamine on your person, all packaged ready for sale. If it was broken down for sale by points, it would realise approximately $4300.00. When the police searched your motor
vehicle, they found a further quantity of some 14 grams of methamphetamine, along with small plastic bags of the type used to package points of methamphetamine. They also found some 7 grams of cannabis resin, or hashish, in a film canister, as well as instruments for consuming those drugs.
A sinister aspect of the offending is that they also found in your car a radio receiver tuned to the Hamilton Police radio channel.
A total of 19 grams of methamphetamine was found on that occasion, and that would have had a value of up to $19,000 if packaged and sold as points.
You claimed that the methamphetamine, the hashish, and the cannabis was for your own use. I do not accept that. Indeed, your pleas of guilty require that that explanation simply cannot be accepted.
Having been apprehended on those drug matters, but before you were charged, no doubt while the drugs were away being analysed, you were stopped again by the police and found with a quantity of methamphetamine.”
I interpolate, because Judge Spear did not mention it, that that stopping was apparently in March 2003. Continuing with what Judge Spear said:
This was in five small plastic re-sealable bags – again of the type used to sell that drug at street level. They also found 41 glass pipes, commonly used for smoking methamphetamine. They found some 45 grams of cannabis plant in small resealable bags hidden in a computer laptop case in your car, along with digital scales, documentation describing how to manufacture methamphetamine, and details as to police radio channels. Further pipes were found as well.
You denied that you were dealing. As I have said, your pleas of guilty do not allow that denial to be maintained today. Indeed, given the quantities of the drug found, given the other circumstances surrounding the detention of the drug, it is clear that you were, throughout the first half of 2003, an active drug dealer in the Hamilton community, both of methamphetamine, amphetamine, and cannabis related products.
You escape the increase in the sentence for possession of methamphetamine for supply.”
Judge Spear was referring to the reclassification of methamphetamine as a Class A drug, which happened in May 2003. Your offending, for which he was sentencing you, was before that date. Judge Spear continued:
“It is now a Class A controlled drug and you would have been eligible for a sentence of life imprisonment if found now with that quantity of product. That notwithstanding, it is still serious offending as possession of Class B controlled drugs for supply carries a maximum of 14 years’ imprisonment.
You are, of course, no stranger to the Court. You have some 19 previous convictions for drug related offending, of which four can properly be described as being drug-dealing offences. Those convictions cover a period from 1986 through to 2001. Despite receiving sentences of imprisonment in respect of the latter stages of that drug dealing record, you have not been deterred from continuing to offend in this way.”
Having dealt with aspects of support from your parents, Judge Spear said:
“....You are someone who can be described as a scourge on this community. You are a drug dealer. You profit commercially from the misery of others by pedalling these drugs. Your personal circumstances can count for little.”
He later concluded by stating:
“I consider that this offending, considered in its totality, and bearing in mind your previous convictions, requires a sentence with a starting point of five years’ imprisonment. However, you must be given credit for your pleas of guilty, despite coming, as they did, on your arraignment on 22 October 2004. The pleas of guilty did not come at an early time but they certainly saved the State the cost of a trial. No doubt, there were delays occasioned by the length of time it took for the items seized from you to be analysed.”
Judge Spear then sentenced you on each of the charges of possession for supply of Class B controlled drugs – either methamphetamine, amphetamine, or cannabis resin, to three and a half years’ imprisonment. On the charge of possession of cannabis for sale you were sentenced to two years’ imprisonment. On the charged of possession of utensils you were sentenced to six months’ imprisonment.
I have quoted in detail from that sentencing because it does impact on the final sentence which I am to impose today.
Pre Sentence Report
The only pre-sentence report which I have is that prepared by a probation officer on 23 November 2004 and that was for the sentencing in December by Judge Spear. There is no point in obtaining a further pre-sentence report because you have, since December 2004, been in custody serving the sentence imposed then.
In that pre-sentence report the probation officer described your age of 35 years, described your background of being a qualified motor mechanic, considered by your parents who ran a garage to be a very skilful mechanic. It identified as three factors contributing to your offending that you had offence related emotions, there was alcohol and drugs, and you had criminal associates. It referred to your previous convictions and a lack of positive response to community based sentences. It stated that you were assessed as a high risk offender who appeared to lack the ability to make substantial changes. It concluded by stating that your risk of re-offending depended on your ability to re- establish contact with your family members, gain stable accommodation and avoid the drug culture. It said that although you had some insights into your offending behaviour and the impact it had upon your parents, the other indicators were not positive and you did not inspire confidence that your goals would be achieved of not continuing to offend.
Aggravating Factors
An aggravating factor of the offences for which I sentence you today with relation to the threatening to kill offence, is the fact that there were threats of actual violence. Also, too, that offending was cruel in the effect which it had upon Ms Pene, she fearing for her life.
Another aggravating factor is that your offending was repeated. There was not just one threat, but a series of repeated threats over the afternoon. There was then the effect of Ms Pene being upset greatly, causing her to leave her home to seek refuge.
The aggravating factors for the drug offences are first the harm which results to people to whom drugs are supplied. And you know well the harm that drugs can do to people because drugs have done considerable harm to you in your life.
The next aggravating factor is premeditation. You set about your dealing and your drug activities in a planned and deliberate way.
The third aggravating factor is the number and nature of your previous convictions, particularly for drug offending.
Mitigating Factors
The mitigating factors are your pleas of guilty. They were not entered at the outset. I accept that the last set of pleas of guilty, although being on the morning of the trial, arose from an amended indictment. But, nevertheless, there was from the outset a charge of possession of methamphetamine for supply and you did not plead guilty to that until the morning of the trial.
I take into account your personal circumstances, but as you are aware limited effect is given to that for drug offending. You do have good qualities. You are clearly a qualified and capable mechanic. You have a supportive family who, despite the hurt you have done to them, still support you. I do take into account that you have a drug habit, or had a drug habit. That explains some things but is not an excuse.
Submissions
For the Crown, Mr Douch submitted that for the leading offence of supplying a Class A drug methamphetamine, having regard to the aggravating factors, a starting point in the range of five to six years’ imprisonment was appropriate. In respect of the threatening to kill offence he submitted that there should be a starting point in the range of 12-18 months’ imprisonment and the sentence should be cumulative upon the drug offences.
Your lawyer, Mr Wilson, accepted that there were aggravating factors, stating that you accepted that your threatened violence to Ms Pene was an aggravating factor, that there was an element of premeditation in all the offending, and that you had a list of previous convictions which, in his words, were appropriately stated to be troubling. However, he emphasised on your behalf the mitigating factors and the factor that had you been charged with relation to the February and March 2003 offending earlier, then the subsequent offending may not have occurred. He emphasised your pleas of guilty and he also emphasised the effect that your behaviour has had upon your parents, but their continued support for you despite this. He also pointed out positive factors of your realising where your life is going with drugs and your determination to overcome your drug problem and put all kinds of offending behind you after your release from prison. He emphasised your age of 35 years, stating that you are still a young man, you have your life ahead of you, and that the sentence should be such as not to be crushing so that you do have hope for putting your life together and getting on with a positive life when you are released from prison.
Mr Wilson also drew my attention to the factor that the victim of your threats had earlier sworn in an affidavit that although your relationship with her had ended you will remain friends. She visited you in Waikeria Prison a number of times, you and she had discussed your relationship and what may have gone wrong, and her belief that you have difficulty in expressing your feelings during times of emotional stress and her belief that the threat you made reflected your frustration and emotional upset by not being able to express what you meant and that you had no intention of carrying it out. She said that she did not consider that you meant her any harm and she does not think she will be in any danger in the future. I do take that into account.
Decision
In assessing the appropriate sentence I give appropriate weight to the pertinent principles of sentencing and take into account the pertinent purposes of sentencing. It is clear that there must be a sentence of imprisonment for the drug offending and also, in my view, for the threatening to kill offending by reason of its nature. The Misuse of
Drugs Act specifically requires that there should be a sentence of imprisonment unless there are exceptional circumstances. There is a presumption for imprisonment.
The principal offence for sentencing purposes, because it is the most serious offence, is the offence of supply of the Class A drug methamphetamine. In March of this year the New Zealand Court of Appeal considered appropriate guidelines for sentencing for supplying methamphetamine consequent upon its reclassification as a Class A drug in May 2003. That was in the case of R v Arthur CA 382/04, 17 March 2005. The Court of Appeal said that it decided that until such time as it decided otherwise in a guideline judgment, there would be advantage if sentencing Judges in New Zealand were to adopt the bands of sentencing which were imposed in New South Wales. The Court of Appeal said therefore there should be three bands of sentencing for methamphetamine supply: (i) low level supply, less than 5 grams; (ii) commercial supply, between 5-250 grams; and
(iii) large commercial quantity, 250 grams plus.
At para 19 of its judgment, the Court of Appeal said:
“In fixing those bands we stress that quantity is, of course, not the only factor to be required to take into account.”
In para 21 of its judgment, the Court of Appeal said:
“Assuming the Judge considers imprisonment to be appropriate, we suggest the following start points. Low level supply 2-4 years imprisonment; commercial quantity 3-9 years imprisonment; large commercial quantity 8 years or more.”
I have found that the money found in your flat, the $6505, was the proceeds of your supplying methamphetamine. Based on the evidence of Detective Kirk at the disputed facts hearing, it would appear, and I accept, that the current selling price for a gram of methamphetamine was between $600 and $1000 and if sold in points of a tenth of a gram, that selling price would be about $100 a point, giving a sale of six grams of
$6000. The evidence indicates that you supplied just over six grams of methamphetamine. This places your offending at the low end of the second category as stated by the Court of Appeal in R v Arthur. However, although it is at the low end of that
second category, there are the other factors to be taken into account, particularly your previous history of drug offending.
Accordingly, I consider that in the circumstances of this case, there should be a starting point of six years’ imprisonment for the offence of supplying methamphetamine.
From that there should be a deduction for the mitigating factors, in my view one year, to give an effective term of imprisonment of five years.
The other drug offences were of a similar nature and kind and within a similar time span and accordingly sentences of imprisonment for those should be concurrent with the lead sentence for supplying methamphetamine.
For the threatening to kill offence, although Ms Pene says that she accepts you did not really intend to kill her and that you and she have since, at least, become friends and that you present no further harm to her, I do take into account the nature of that offending and the effect it had upon her on the day. I consider that an appropriate term of imprisonment would be six months for that offence. It was not of a similar kind as the drug offending and in considering the six months’ imprisonment I do so upon the basis that this should be cumulative upon the sentence of five years for the supply of methamphetamine offence. That would make an effective sentence for all the nine offences of five years six months.
However, that sentence cannot stand in isolation, bearing in mind that you are currently serving a term of imprisonment. I must take that factor into account. If I were to make the present sentence of five years six months cumulative on your present sentence that may well result in a period of imprisonment which was not appropriate, given the overall offending.
The relevant provisions of the law are s83(1) of the Sentencing Act which states:
A determinate sentence of imprisonment may be imposed cumulative on any other determinate sentence of imprisonment that the court directs whether then imposed or to which the offender is already subject, including any sentence in respect of which a direction of that kind is what has been given.
So the sentence to which you are already subject is to be taken into account and although I could make the sentence for the January 2004 offending cumulative upon it, there is nevertheless the provisions of the Sentencing Act (s85(2)) which says:
If cumulative sentences of imprisonment are imposed, whether individually or in combination with current concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
I have to consider what total period of imprisonment would be appropriate for the overall offending; that is for the offending for which Judge Spear sentenced you in December last year and the offending for which I now sentence you. This is as if I were to sentence you for all that offending – the February/March 2003 offending, and the January 2004 offending.
That is why I have stated in detail what the circumstances of that earlier offending were. Having taken into account those circumstances, I consider that for all the offending a total effective term of imprisonment, allowing for mitigating factors, would be seven years’ imprisonment.
To achieve this result, that is to take into account that you have already been sentenced to three and a half years’ imprisonment, I consider that it is appropriate to sentence you for the offence of supplying the Class A drug methamphetamine to an effective term of three years’ imprisonment and to sentence you for the offence of threatening to kill to an effective term of six months’ imprisonment.
The six months imprisonment is to be cumulative on the three years term of imprisonment for supplying the Class A drug methamphetamine and those two terms are not only cumulative on each other, but each is cumulative on the three and a half year term imposed in December 2004.
The net effect of that is that you will be sentenced to an effective term of seven years’ imprisonment starting on 10 December last year, the day you were sentenced by Judge Spear.
So in effect, you have got another three and a half years imprisonment today to make, in total, seven years imprisonment.
For each of the remaining seven drug offences, I sentence you to one year’s imprisonment. They are to be concurrent with each other and concurrent with the December 2004 term of imprisonment.
So, as I have said, the result of the sentence today will be an effective term of imprisonment of seven years, starting 10 December 2004.
The Crown do not seek, and in my view it is not appropriate, to impose a minimum term of imprisonment and I do not do so.
I am well aware that your offending arises out of your drug taking habit, possibly addiction. I hope for your sake, your family’s sake, and the community’s sake that you will address your problem, take such assistance as can be given to you while you are in prison by way of any programmes which are available, and that you will earn parole before the end of the seven years. If you do, it is likely that you will be released before you are 40 years of age and maybe sometime before that. If and when you are released upon parole, or indeed at the expiry of your sentence if you are not given parole, it will be over to you to show that you can make the best of your life. Use your talents as a mechanic and with the support of your family, for which you must be greatly appreciative, overcome your past problems so that you can be a positive member of the community, not hurt yourself, not hurt your family and not hurt any other people by further offending. Your future is very much in your hands.
I also order that there be forfeiture of the $6505 found in the flat, pursuant to the provisions of s32(3) of the Misuse of Drugs Act.
C M Nicholson J
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