R v Jacomb HC Auckland CRI 2002-004-206137

[2005] NZHC 1226

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2002-004-206137

QUEEN

v

TONY MICHAEL JACOMB

Appearances: D Johnstone for the Crown

P Kaye for the defendant Judgment:     11 March 2005

SENTENCE BY PRIESTLEY J

Counsel:

D Johnstone, Meredith Connell, P O Box 2213, Auckland P Kaye, Barrister, P O Box 941, Auckland

R V JACOMB HC AK CRI 2002-004-206137 [11 March 2005]

[1]    My task is to sentence you, this afternoon, on three charges. Two of those charges are manufacturing methamphetamine and supplying  methamphetamine when it was then a Class B drug. The two counts, to which you have pleaded guilty, alleged against you offending spanning a five year period from August 1997 to August 2002. The third count, which as I understand it is the main reason why you are being sentenced today in the High Court, is conspiracy to supply a Class A drug, heroin. That count to which you pleaded guilty alleges that this conspiracy took place between 29 June and 6 August 2002.

[2]    Before discussing the matters relevant to the sentence I shall impose I need to sketch a little of the background. The reason why you are appearing for sentence at this time in this Court results from the fact that the Crown initially laid two indictments against you which were intended to reflect the nature of your offending, and which in the Crown’s view would allow your case to be dealt with efficiently.

[3]    As long ago as 24 September 2003, at a criminal callover before Williams J,  it was agreed that a significant number of those counts should be transferred to the District Court to be dealt with in that jurisdiction. It was fully expected, as I understand it, by both your counsel and the Crown that those charges remaining outstanding against you in the High Court would be dealt with first and that, if you were convicted, any sentence imposed in the High Court would effectively be the dominant or lead sentence for the purpose of sentencing in the District Court.

[4]    Through no fault of yours the High Court trial which involved other accused was delayed and sentencing in the District Court came first. I note that you were sentenced in the District Court on 1 February this year on various methamphetamine related charges and a charge under the Arms Act. The total sentence imposed on you in the District Court was one of six years and three months imprisonment.

[5]    The charges here in this Court resulted in guilty pleas from you. You also pleaded guilty to the charges, to which I have just referred, in the District Court.

[6]    It is accepted by the Crown that I do not have to traverse in any detail the facts relating to your methamphetamine offending. The Crown also accepts that the

sentence I impose on you in respect of those two counts can quite properly match and run concurrent with the six year three month term of imprisonment imposed on you on 1 February.

[7]    The Class A heroin offending, however, does have some relevance. It is apparent from the summary of facts that from intercepted telephone conversations you were in mobile phone contact with a prison inmate. The conspiracy to which  you have pleaded guilty was to provide good quality heroin of approximately

$300,000 value to this person in prison. There is some suggestion  you  progressed the conspiracy to some extent, possibly by locating a source of supply.

[8]    For sentencing purposes I am satisfied that the extent to which this conspiracy had advanced, and certainly it fell well short of an attempt, is a matter of conjecture. I note your counsel’s submission that there was perhaps a degree of what he calls big noting or bravado about the information which you passed during intercepted telephone conversations. Nonetheless the ingredients of a conspiracy were there. You were clearly turning your mind, in conjunction with your co- conspirator, to take some preliminary steps, perhaps in trying to source heroin and take it into a prison. Because heroin was involved, because it was a Class A drug,  and because this was a conspiracy involving an element, I am bound to say, of cheekiness in trying to get a controlled drug into prison, the offending must be regarded as serious.

[9]    All three counts you face today carry, as your counsel would have told you, a maximum possible sentence of 14 years imprisonment.

[10]Now there are a number of positive features about your case. You are aged

39. You clearly had an unstable childhood from approximately your teenage years when you moved from a rural environment to a city environment. You have held, it would seem, various jobs. You have regrettably, however, incurred a number of convictions over the years starting, in February 1983 and concluding with  the District Court charges on which you were sentenced in February this year. Of those 18 convictions 15 are drug related and I note that you were sentenced to a term of

three years and three months imprisonment in August of 1995 on what appear to be six charges of supplying drugs.

[11]   What those drugs were and what the background is I do not know but you are no stranger, clearly, to drug trafficking and you have already been punished for it. It is a matter of alarm that you are re-offending in this area.

[12]   The presentence report that was prepared in October for District Court purposes does not need any update. You were assessed in that report as having a high level of motivation to change. It is noted that whilst on bail you attended, of your own volition, various drug treatment and clinic programmes available to you. You claimed to have abstained from drug use for just over two years. It is very clear from your presentence report that, as a man of 39 years, you realise now the importance of stability. It is hoped that your de facto relationship, now of approximately six years duration, and the arrival of a son now aged four years will give you the motivation to stay away from further offending. Whether your hopes in that regard are justified I do not know. It is easy to make decisions of that type, as  you  will probably realise as a person from your background who has had to deal with drug use and drug addiction, but it is often easy to succumb to temptation and to weakness.  The solution for your own life lies totally in your hands and nobody else’s.

[13]   The difficulty I have in sentencing in this particular case is exactly what weight I should give to the six year three month term of imprisonment already imposed on you and on that issue counsel part company. I see little  purpose  in setting out in these sentencing notes the aggravating and mitigating factors. They are by and large self-evident. Mr Johnstone for the Crown is right, however, when he submits to me that for s 7 purposes the aspects of deterrence and denunciation are relevant particularly when a Class A drug is  involved.  You are in my view entitled to credit for your guilty plea. I also consider it relevant in your case, given the personal factors I have referred to and the contents of the presentence report, that I should give considerable weight to the obligation I have to impose the least restrictive outcome.

[14]   The difficulty with weighing all those things of course is that the sentencing process on which I am embarking today takes on a certain degree of artificiality. Mr Kaye in his very competent and fluent submissions has said to me that there would inevitably be an element of tinkering involved. Your counsel’s submission which  has considerable attraction to me is that I should impose terms of  imprisonment today which are concurrent with the term of six years and three months which you are already serving. Mr Johnstone for the Crown however submits, properly and strongly, that because of the Class A drug factor and the purposes of deterrence and denunciation I should impose on you a term of imprisonment for that Class A offending which is cumulative with the term you are already serving. Mr Johnstone accepts that for the purposes of imposing a cumulative sentence and having regard to the s 85(4) factor of totality any term I would impose would be one of months rather than years. So that is the issue with which I am now grappling.

[15]   Taking a step back I am of the view that if you were being sentenced in this Court for all your offending both on the three charges I am dealing with today and the counts on which you have already been sentenced, you could justifiably expect, even after allowance for mitigating factors, a sentence of somewhere in the order of seven to seven and a half years. Seven years would probably be about as low as you could expect a sentencing judge to go.

[16]   I am also of the view that looking at the conspiracy charge and in particular having regard to the Class A authorities of R v Stanaway [1997] 3 NZLR 129, R v Wrenn, Ross & Thomas (1989) 4 CRNZ 165 and R v Briggs (CA333/92, 26 February 2003) probably a term of imprisonment of approximately two and a half years would be justified. I note that in Stanaway the conspiracy involved the speculative importation into New Zealand from Thailand of heroin with an approximate street value of $500,000 in quite a large volume.

[17]   Exactly what the subject matter of your conspiracy was, beyond the $300,000 figure I have mentioned, is a matter for conjecture and it may well be that the conspiracy which you and your co-accused were dealing with was no more than a mirage but that is not the point. Any conspirator relating to a Class A drug, particularly with what I regard as the aggravating factor of conspiring in respect of

the introduction of a Class A drug into the prison, must expect some form of condign sentence.

[18]   The Crown accepts, and in my judgment properly so, that so far as the two methamphetamine accounts are concerned, because of the close relationship between those counts and the matters on which you have already been sentenced, a sentence of six years and three months imprisonment served concurrently would be appropriate. There is no submission from your counsel to contrary effect.

[19]   I have what I consider are legitimate concerns about imposing a sentence on you relating to your Class A drug which results in adding to your six years and three months sentence. I have already indicated what I would regard an appropriate sentence to be. Nonetheless I believe I am entitled to exhibit leniency to you for a number of reasons.

[20]   The first is this somewhat untidy chronology of sentencing was not one that was envisaged when severance arrangements were first made in September 2003. The second is since then you have taken active steps to try to get your drug problem under control and there are positive factors mentioned in your presentence report which I have mentioned. The third is, given the provisions of the Parole Act your eventual release is not a matter for this Court to dictate but is a matter for the Parole Board to determine and to a large extent whether or not you are eligible for parole after the statutory minimum of one third it is a matter for the Parole Board to decide having regard to your progress, general attitude and personal circumstances at that time.

[21]   I believe that Mr Kaye is correct when he says that there is little to be gained in a practical way from adding a few months to the sentence you are already serving against that back drop.

[22]   Having expressed the firm view that an overall total sentence appropriate for your offending would have been one of seven years I also indicate that a term of imprisonment of two and a half years would be appropriate for the Class A offending.

[23]   At the end of the day, given the mitigating factors I have mentioned, given the positive features referred to in the presentence report, and given the matters canvassed to me by counsel, I am not persuaded that the addition of a few months extra sentence by way of a concurrent or cumulative sentence is justifiable in your particular case.

[24]   There is force in Mr Johnstone’s submission that I should give some weight  to the fact that you were given an extended period to put your affairs in order in the District Court and that, despite being given a sentencing indication, you did not turn up on the day and your sentencing had to be delayed because you absconded. In Mr Johnstone’s submission this is a factor I should weigh as perhaps a counter to the favourable aspects I have mentioned in your case and also to the need to promote your rehabilitation.

[25]   I note those submissions but in my judgment those factors do not justify me imposing a more severe sentence on you or taking steps to thwart in some way the rehabilative aspects to which I have just referred.

[26]   Accordingly the sentence I impose on you is this. On each of the two charges relating to methamphetamine (manufacturing and supply) at a stage when methamphetamine was a Class B drug I sentence you to a term of six years and three months imprisonment. On the charge of conspiracy to supply a Class A  drug, heroin, I sentence you to a term of two and a half years imprisonment. All of those terms of imprisonment are to be served concurrently with the term of six years and three months imprisonment imposed on you in the Auckland District Court on 1 February 2005.

[27]   I also recommend to the prison authorities that you are to be given every opportunity to take part in any available programmes relating to drug and alcohol addiction and also any programmes available to enhance your life skills.  Stand down.

[28]   At the request of the Crown, which is not opposed, I make an order for the destruction of all utensils and other paraphernalia seized in the prisoner’s home in August 2002.

[29]   There is still an outstanding issue relating to $970.00 cash which was also found in the prisoner’s possession when he was arrested in August 2002. The Crown seeks to have that sum confiscated and is alleging that it is the proceeds of crime.  The prisoner contests that sum of money was thus tainted and says that this matter has to be disposed of in the proper way. Certainly it is not  going  to be  disposed of by me today. I direct that any contest over the final destination of the sum of

$970.00 should be dealt with in the District Court.

……………………………………

Priestley J