R v Jones HC Auckland CRI-2010-057-1676
[2011] NZHC 1101
•9 September 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-057-1676
THE QUEEN
v
NICHOLAS OWEN JONES
Hearing: 9 September 2011
Appearances: B R Smith for Crown
P H H Tomlinson for Prisoner
Judgment: 9 September 2011
SENTENCING REMARKS OF LANG J
R V NICHOLAS OWEN JONES HC AK CRI-2010-057-1676 9 September 2011
[1] Mr Jones, on 7 September 2011 you pleaded guilty to a representative charge of supplying methamphetamine. As you are no doubt aware, the maximum penalty for that offence is life imprisonment.
The facts
[2] The facts that give rise to your present offending can be stated shortly. They arise as a result of analysis of text messages and other telephone data that the police carried out at the termination of an electronic surveillance operation. This revealed that you had been involved in the supply of methamphetamine on several different occasions.
[3] It is common ground that the amounts that you supplied between 5 March and 6 May 2010 were as follows:
1. 25 grams between 5 and 8 March 2010
2. 3 grams of between 25 and 30 March 2010
3. 28 grams between 28 March and 1 April 2010.
4. 28 grams on or about 15 April 2010.
5. 4 grams on or about 3 May 2010.
6. 28 grams on or about 6 May 2010.
[4] In total, therefore, you supplied 116 grams of methamphetamine to others over seven separate occasions.
[5] This offending cannot, however, be viewed in isolation. It needs to be viewed in light of other offending to which you have pleaded guilty and have already been sentenced.
[6] On 31 May 2011 you were sentenced by Woodhouse J to an effective term of imprisonment of eight years two months on several firearms charges, and further methamphetamine-related charges.[1] This offending arose out of an incident that occurred on 6 May 2010, when you were present at a bar. The police arrived at the bar and carried out some form of liquor licence check. They spoke to you and you conceded that you were currently on parole following a sentence of imprisonment on a charge of aggravated robbery.
[1] R v Jones HC Auckland CRI-2010-057-1676, 31 May 2011.
[7] The police then searched you and your belongings. They found two grams of methamphetamine, together with $10,480 in cash. They asked you to step outside, and there they went to arrest you. At that point a scuffle occurred during which you let the police know that you were in possession of a pistol. They wrestled you to the ground and pepper-sprayed you in order to subdue you. Ultimately, they were able to wrest away from your grip a pistol. This was found to be loaded and to have four bullets in the magazine.
[8] The police searched your address the following day. There they found 179.2 grams of methamphetamine. All of this, other than one bag, was packaged into ounce lots.
[9] Quite clearly, the offending for which you have pleaded guilty and are for sentence today forms the background leading up to the events that occurred on
6 March 2010. The present charge shows that you had been dealing in methamphetamine in a reasonably significant way during the three or four month period leading up to 6 May 2010.
Sentencing Act 2002
[10] As you will be aware, in any form of Class A drug offending a deterrent sentence must be imposed. This is the only way in which the courts can hope to have any impact on the scourge that is methamphetamine. The fact that you are
already serving a significant sentence of imprisonment means that the real issue in
your case is to determine the extent to which your current sentence should be extended in order to reflect the offending for which you appear for sentence today.
Approach
[11] I propose to follow an approach that endeavours to impose the sentence that would have been imposed had you appeared for sentence on all charges at the same time. In other words, I need to place myself in the position of Woodhouse J, and endeavour to fix an overall sentence reflecting your total culpability. Although it would be possible to add a cumulative sentence to your existing sentence, I consider that a greater concurrent sentence is required. This properly reflects the totality of your offending.
[12] I will, therefore, endeavour to fix a sentence that has regard to your overall culpability, and then direct that that be served concurrently on the sentences you are presently serving in relation to your previous methamphetamine-related offending.
Sentence by Woodhouse J
[13] Woodhouse J took a starting point of four years imprisonment on the firearms charges. He added a year to that to reflect a number of aggravating factors, including the fact that this offending occurred whilst you were already on parole. That is obviously, as I am sure you appreciate, a significantly aggravating factor. He then applied a discount of 25 per cent to reflect the fact that you had pleaded guilty to these charges, and thereby saved the state the cost of a trial. This left him with an end sentence of three years nine months imprisonment on the firearms and ammunition charges. I see no need to adopt any different approach in relation to that, and propose to treat that as a standalone sentence.
[14] The Judge then took a starting point of six years six months imprisonment on the two methamphetamine charges. He reduced that by approximately five months to reflect mitigating factors personal to you, including efforts you have made to rehabilitate yourself and expressions of remorse. He then applied a discount of 25 per cent to reflect your guilty pleas. This left him with an end sentence of four years
five months imprisonment on the methamphetamine charges. He directed that that sentence was to be served cumulatively on the sentence imposed in respect of the firearms charges. This produced an effective end sentence of eight years two months imprisonment.
[15] The Judge also directed that you were to serve a minimum term of two years two months imprisonment on the methamphetamine-related charges before being eligible to apply for parole. He did that to reflect the factors set out in s 86 of the Sentencing Act 2002. These are the need to impose a minimum sentence that is of sufficient deterrence, that denounces your offending and holds you accountable for it. In serious drug offending all of those factors are virtually inevitably engaged.
How should the sentence be increased to reflect the present offending?
[16] The issue that I need to determine, as I have said, is the extent to which the sentence previously imposed on the methamphetamine-related charges should be increased to reflect your current offending.
[17] As you will be aware, the sentence to be imposed in any case involving the supply of methamphetamine is determined having regard to the decision of our Court of Appeal in a case called R v Fatu.[2]In that case the Court of Appeal identified bands of offending that will attract differing starting points according to their seriousness. Band 2 identified in Fatu relates to the supply of methamphetamine when between five and 250 grams of methamphetamine is involved. This will call
for a starting point of between three and nine years imprisonment. The Judge considered that your previous offending fell within Band 2 of Fatu because it involved 181.2 grams.
[2] R v Fatu [2006] 2 NZLR 72.
[18] The weight of methamphetamine is not the only factor. The Court must also take into account where in the distribution cycle the offending sits. Woodhouse J took the view that you were effectively a wholesaler dealing in larger amounts, rather than dealing at street level. That was the reason he adopted a starting point of
six years six months imprisonment.
[19] Your present offending involves a total of 116 grams of methamphetamine. When combined with the methamphetamine in relation to your earlier offending, a total of 297.5 grams of methamphetamine is produced. This would place you within Category 3 identified in Fatu, which relates to offending involving between 250 and
500 grams. The starting point for such offending is between eight and 11 years imprisonment. Again, the weight is not the only factor to be taken into account. All circumstances need to be considered.
[20] The current offending reinforces the impression, however, that you are a wholesaler of methamphetamine, who sells in ounce lots. You are well above a dealer at street level. As a result, I consider that the starting point, taking into account your overall culpability, should be nine years imprisonment.
Aggravating factors
[21] There are no aggravating factors that have not already been taken into account that would operate to increase the starting point.
Mitigating factors
[22] Like Woodhouse J, I am prepared to apply a discount to reflect the fact that you have a significant methamphetamine addiction, and you have made attempts to rid yourself of that addiction. You say that you are remorseful and will take even greater steps in the future. Well, Mr Jones, you need to know that you will have to take those steps or you will be back before the courts again before too long. Your problem seems to be that when you are released from prison you associate with people in the methamphetamine scene, and you then become involved in a major way with the drug. The only outcome for you, if you continue in this way, is longer and longer sentences of imprisonment.
[23] I am prepared to make a reduction of six months to reflect the factors that the Judge took into account on the last occasion. This leaves a starting point of eight years six months imprisonment.
[24] The only other mitigating factor that I can take into account are your guilty pleas. The Crown accepts that these should attract a reduction of 25 per cent, or two years two months. This leaves an end sentence on the methamphetamine-related charges of six years four months imprisonment. That represents an increase of one year 11 months on the sentence you are already serving.
[25] Given the fact that that sentence is to be served cumulatively on the sentence imposed in respect of the firearms charges, I need to stand back and consider whether or not the overall end sentence is too great having regard to your overall culpability. When I do that, I do not consider that any further reduction is required. I consider that a cumulative sentence of six years four months imprisonment, even when combined with the sentence imposed on the firearms charges, is commensurate with the culpability of your offending.
Sentence
[26] Your counsel advises me, however, that the sentence that Woodhouse J imposed on 31 May 2011 began on that date, rather than on 6 May 2010 when you were taken into custody. That is apparently due to the fact that you were subject to recall from parole at the time of your arrest. This means that you do not get any credit for the time spent on remand between 6 May 2010 and when you were sentenced on 31 May 2011.
[27] If I impose a concurrent sentence of six years four months imprisonment today, as I would otherwise do, you would again begin serving that sentence today. So the practical effect of the sentence would be to require you to serve a more lengthy period in custody than I consider you should. For that reason I accept your counsel’s submission that the sentence that I impose today should be reduced to produce a result that means that you effectively began serving today’s sentence on 31
May 2011. I therefore propose to reduce the sentence of six years four months imprisonment to six years one month imprisonment.
[28] You are sentenced on the charge to which you have pleaded guilty to six years one month imprisonment. That sentence is to be served concurrently with the
sentences imposed in relation to the methamphetamine-related charges for which you were sentenced on 31 May 2011. It is to be served cumulatively on the sentence imposed in respect of the firearms charges on the same date.
Minimum term of imprisonment
[29] I direct that you are to serve a minimum term of three years imprisonment on the sentence that I have imposed today.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:PHH Tomlinson, Auckland
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