R v Kitson

[2013] NZHC 2616

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-15061 [2013] NZHC 2616

THE QUEEN

v

JAMES DALE KITSON

Hearing:                   9 October 2013

Appearances:           I Brookie for the Crown

M Dyhrberg and R Brown for Mr Kitson

Sentencing:              9 October 2013

SENTENCE OF WOODHOUSE J

Counsel:

Mr I Brookie, Barrister, Auckland

Ms M Dyhrberg, Barrister, Auckland

Ms R Brown, Public Defence Service, Manukau City

R v KITSON [2013] NZHC 2616 [9 October 2013]

[1]      Mr Kitson, you may remain seated while I explain this sentence. [2]  You appear for sentence for three sets of offences as follows:

(a)      15 offences of supplying methamphetamine.  The maximum penalty for that offending is life imprisonment.  And that is something I think you should reflect on – long and hard.   And that really does mean something, that penalty.

(b)There  is  one  offence  of  cultivation  of  cannabis  with  a  maximum penalty of 7 years imprisonment.  And that in itself is a long time in jail.

(c)      And there is one offence of possession of cannabis for supply with a maximum penalty of 8 years imprisonment.

[3]      I do want to tell you at the outset that the sentence I intend to impose is 3 years imprisonment.   That, in broad terms, is consistent with the submissions that have been made on your behalf – in broad terms.  But I need to explain this.

Facts: Methamphetamine supply

[4]      Firstly, an outline of the facts relating to methamphetamine supply.

[5]      You pleaded guilty to 15 charges of supplying methamphetamine on various dates between 2 August and 4 September 2012.   The amounts involved ranged between 0.01 grams and 0.5 grams.  The total was 2.4 grams.  You pleaded guilty to these charges at the conclusion of the Crown evidence.   At that stage of the trial another charge against you and your uncle of conspiracy to manufacture methamphetamine was dismissed under s 347 of the Crimes Act.  I have mentioned that at this point because it is relevant to the guilty pleas.

Facts: cannabis

[6]      The facts relating to the cannabis charges.   A house you were renting was searched by Police on 20 September 2012.   There was a reasonably sophisticated

system for cultivating cannabis in an upstairs room with a plant incubator in another room.    There  were  20  mature  cannabis  plants  and  30  cannabis  seedlings  with evidence of already cultivated plants and material ready for sale.  There were 27 one ounce bags of cannabis ready for sale and large amounts of cannabis head.   Text messages established that you and Edward Price, who was living with you, had been cultivating cannabis since at least June 2012.  The Police summary of facts records an  estimate  of  the  potential  return  from  the  plants  of  between,  approximately,

$50,000 and $150,000 per annum.  It is appropriate, as Ms Brown submitted, to take the lower estimate.

Counsel

[7]      I note that the cannabis offences were moved from the District Court into this Court for sentence.  As a result I have received submissions on your behalf from Ms Dyhrberg on the methamphetamine offences and from Ms Brown on the cannabis offences.

Personal circumstances

[8]      Your personal circumstances.   You were aged 21 – just turned 21 – when these offences occurred.  There is not a great deal in the pre-sentence report about your background.  However, it does appear from this, and from evidence I heard at the trial, that at a relatively young age you have been adversely influenced in relation to drug activities by your own father and by your uncle.   And that is significant influence, in my judgment, on a young person.  It does not excuse you in any way, but it is relevant.

[9]      At the time of this offending you had no previous convictions but you were on remand on a charge of possession of cannabis for supply in 2010.   You were sentenced for that offence in April 2013.  The sentence was imprisonment for 1 year

5 months with leave to apply for home detention.   You have in fact remained in prison because you had been remanded in custody on these charges.

[10]     While you have been in prison you have studied calculus, chemistry and physics at NCEA level 3.  In that regard you have been pursuing abilities which you

displayed at school but you did not follow up at school.  You have written to me about this.  You have also said you regret what you have done and that you want to change.  It is easy to express remorse – and I have discussed that with your counsel – but I am prepared to accept Mr Kitson that you are genuine in what you say and I sincerely hope that I am right about that.  It is in your hands to make these changes, no one else’s.

Starting point

[11]     I need to fix a starting point for the methamphetamine offences.   Counsel accept that these are the lead offences and that an overall starting point for the 15 offences should be fixed in accordance with the Sentencing Act and the guidelines provided in a Court of Appeal case called Fatu.1

[12]     The starting point based on Fatu is 2 to 4 years imprisonment.  Ms Dyhrberg submitted that the starting point should be 2 years imprisonment.  For the Crown, Mr Brookie submitted that the starting point should be 2 ½ to 3 years imprisonment.  I have been referred to sentences in some other cases involving broadly similar quantities of methamphetamine.  I will not go into the details of those cases and just

note the names: Cane,2  Matthews,3  McGee,4  Tohu,5  and Pohe.6    I will provide the

citations in the transcript of these comments.

[13]     Having regard to  the relevant  principles  and  purposes  of sentencing,  the guidelines in Fatu, the submissions of both counsel, and those other cases, I am satisfied that the starting point should be 2 ½ years imprisonment.  That is a starting point related in particular to the quantity that you have admitted.  And it is plain that the offences involved commercial drug dealing.  The Crown submitted that I should have regard to evidence at the trial that you were involved in importing precursor substances.    This  evidence  related  to  the  charge  of  conspiracy  to  manufacture

methamphetamine.  Because you were not convicted for any charge relating to those

1      R v Fatu [2006] 2 NZLR 72 (CA)

2      Cane v Police [2012] NZHC 209.

3      R v Matthews HC Whangarei CRI-2010-088-2612, 13 April 2011 (per Venning J).

4      R v McGee HC Whangarei CRI-2010-088-2612, 6 July 2011 (per Asher J).

5      R v Tohu HC Whangarei CRI-2010-088-2691, 7 October 2010.

6      R v Pohe HC Auckland CRI-2006-404-294, 7 November 2006.

matters I have decided that the appropriate thing is to leave that evidence to one side in assessing the starting point.

Uplift for cannabis offences

[14]     I intend to impose a concurrent sentence for the cannabis offences.  This, Mr Kitson, involves increasing the starting point for the methamphetamine offences rather than imposing a separate sentence to be added to the sentence for methamphetamine offences.   If the two cannabis offences were being dealt with separately the starting point could be 2 ½ to 3 years, perhaps even more.   The starting point for your co-offender, Edward Price, who the sentencing Judge considered had a secondary role, was 2 years 6 months imprisonment.  All counsel submitted that the increase to the starting point for the methamphetamine offences, to take account of the cannabis offences, should be 1 year.  I agree with that.  This increases the sentence to 3 years 6 months.

Personal aggravating and mitigating factors

[15]     I now turn to personal factors which might justify an increase or a decrease. There is a question whether the sentence should be increased because these offences occurred while you were on bail for the 2010 offence.  The Crown submitted that there should be an increase of 6 months.  Ms Brown submitted that this is excessive and that an uplift of 2 to 3 months would be appropriate.  Ms Dyhrberg submitted that no uplift is necessary for offending on bail because, as she put it, you lost your liberty because of the offending on bail.  She has explained to me that this was not a submission that you have already been penalised for offending on bail, and it is acknowledged that there must be some allowance for this.   It is actually a serious indication, Mr Kitson, of your determination at that time to carry on offending.  It makes it all the more important that you now really do pursue this other course that you say that you have embarked on.

[16]     There does need to be an increase for the offending on bail.  But there are matters in your favour that must be weighed against that.  One is that you had just turned 21 when these offences were committed and, as I indicated earlier, I infer there were negative influences on you from older people with influential positions in

your  life.    There  are  also  the  courses  you  have  taken,  the  remorse  you  have expressed, and your advice to me that you want to change.   I accept Ms Brown’s submission  that  you  have  taken  these  courses  to  get  better  skills  in  order  to contribute to society in constructive ways.  This in turn lends support to the things you have said to me in your letter about remorse and a determination to change for the better.   There are cases which say that these personal factors cannot be given significant weight in cases of this sort, but they can be given weight.  And I do wish to give you as much credit as I can in accordance with the law.  That, Mr Kitson, is to encourage you as much as I can within the limits of the law.

[17]     Weighing the positive against the negative I am satisfied that there should be an overall reduction of 3 months from the uplifted starting point of 3 years 6 months. An overall reduction of 3 months means that the credit for the positive things is substantially more than 3 months because, included in the overall calculation, is an increase of around 3 months for the offending on bail, being the increase that Ms Brown submitted was appropriate but less than the increase Mr Brookie submitted. The assessment at this point therefore is 3 years 3 months imprisonment.

Reduction for guilty pleas

[18]     You are then entitled to reduction for guilty pleas if appropriate.

[19]     Ms Dyhrberg submitted that an appropriate reduction for the guilty pleas on the methamphetamine charges is 15%.   Mr Brookie submitted there should be no reduction because they were very late pleas and in the face of very strong evidence. As I have indicated in my discussions with Ms Dyhrberg, I agree with Mr Brookie’s submission.   I also note Ms Dyhrberg’s acknowledgement that the evidence was strong, although she submitted that this was not sufficient to rule out a reduction.

[20]     You pleaded guilty to the cannabis charges following the High Court trial on the methamphetamine charges.  This occurred before a trial date had been set for the cannabis charges.  Ms Brown submitted there should be a reduction of 15% for those guilty pleas.  Mr Brookie submitted there should be a reduction of no more than 10% because the cannabis guilty pleas were entered 7 months after the first callover and the evidence for those charges was also strong.

[21]     A reduction of 10-15% for the cannabis guilty pleas needs to be applied only to that part of the sentence which relates to cannabis, which, in the way I have done it, is an increase of 1 year.  That would result in a reduction of just 1 to 2 months in the total sentence.  However, when Mr Brookie expressed the reduction in terms of months rather than a percentage he accepted that an overall reduction of up to 3 months would be appropriate and I accept that that is a proper way of dealing with this.

[22]     The end result is that the lead sentence for the methamphetamine offences is

3 years imprisonment.  There will be a shorter sentence for the cannabis offences to be served concurrently, so there is no increase in the total sentence.

Formal sentence

[23]     Mr Kitson, you should now stand.

[24]     For   each   of   the   methamphetamine   offences   you   are   sentenced   to imprisonment for 3 years.

[25]     For each of the cannabis offences you are sentenced to imprisonment for 1 year 9 months.

[26]     There is an order for forfeiture of the seized drugs, equipment and cash totalling $2,800.

[27]     Mr Kitson, I do not want to lecture you, but I do want to repeat my hope that you really are determined in what you said you plan now to do, so I hope you do.

You should now stand down.

Woodhouse J