R v Kitson HC Auckland CRI-2006-004-17600

[2007] NZHC 1966

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-004-17600

THE QUEEN

v

FRANCIS  KITSON

Appearances: A M Wharepouri for the Crown

S Cassidy for the Prisoner

Judgment:      3 August 2007

SENTENCING NOTES OF PRIESTLEY J

Counsel/Solicitors:

A M Wharepouri, Meredith Connell & Co, P O Box 2213, Auckland

S D Cassidy, P O Box 26172, Epsom

R V KITSON HC AK CRI-2006-004-17600  3 August 2007

[1]      You appear for sentence on one count of possessing the Class A controlled drug, methamphetamine, for supply.   That carries a maximum penalty of life imprisonment.  Your offending took place 20 months ago in November 2005.  You were committed for trial in August last year.  On your arraignment in this Court on

11 October 2006 you pleaded not guilty.  You changed your plea to one of guilty on

16 May after an unsuccessful challenge to the relevant police search.  You face other charges relating to cultivation and sale of cannabis in the District Court later this year and those matters are still to be tried.

[2]      I consider for pragmatic reasons and also because of the primacy of the presumption of innocence, that I should take no account of the circumstances of that other alleged offending.   In the event of you being found guilty on those other charges the totality of your offending will have to be considered, which is not a factor I have taken into account today.

The Offending

[3]      In the course of executing a search warrant on factory premises in Onehunga your car was searched.  It was parked outside a building specially modified for illicit drug purposes (which I ignore) and in it were found other controlled drugs (which I similarly ignore).  Relevant to this charge, however, was the discovery of 75.5 grams of methamphetamine.   You evaded capture by the police for the next seven months.

[4]      The street value of this volume of methamphetamine, uncontested by your counsel, is estimated at $90,600.

Personal Circumstances and Pre-sentence Report.

[5]      You are 44 years old and currently unemployed  You did have a successful upholstery business.  You separated from your wife some years ago and have three children ranging from 15 to 5.  You admitted to the probation officer you have been

using cannabis since you were 15 (a 29 year span) and have been using methamphetamine daily for the past five years, with use of cut methamphetamine before that.

[6]    Clearly,  and  you  have  acknowledged  this,  your  addiction  to methamphetamine ruined your family life and changed your personality.   You admitted to the probation officer it was  your drug addiction which  led  to  your criminal lifestyle and was responsible for your marriage breakdown.  On occasions the side effects of your methamphetamine addiction led to gambling, this being a means for you to “chill out”.  You also admitted to the probation officer that whilst you purchased methamphetamine for your own use you also profited from selling it to others to ensure your supply.

[7]      This is commercial dealing on your part on a significant scale and clearly for an extended period of time.   Like so many other methamphetamine addicts you turned to commercial dealing to keep up the cash flow that you required for your own dependence on this drug.

Previous Convictions

[8]      Regrettably you are no stranger to offending under the Misuse of Drugs Act. Although it can be claimed you have kept out of trouble for ten years, unfortunately a significant amount of your offending in the 1980s and 1990s is drug related.  You were convicted of possessing cannabis oil for supply in 1991; for supplying cannabis plant in 1996; and in October 1997 you were sentenced to nine months imprisonment for possessing cannabis plant for supply.  Your counsel informs me that the amount supplied then was approximately half a pound.  So you are no stranger to supplying illicit drugs.   You have not learnt your lesson and instead returned to the market place as a supplier of a Class A drug.

[9]      Acknowledged supply on your part, and possession of a significant quantity of  methamphetamine,  with  a  street  value  of  just  over  $90,000,  are  clearly aggravating factors relating to the offence.   There is both premeditation and a deliberate sustained pattern of dealing by you which you admitted.   An additional aggravating factor relating to you is your previous history of supplying a Class C drug.  I also weigh your evasion of the police.

[10]     Mitigating factors relevant to you include your remorse, which I accept is genuine, the acknowledgement of the damage you have done to yourself and your family, and your guilty plea, although this was certainly not at the earliest possible opportunity you, as you are entitled to do, choosing to challenge the legality of the police search first.  Had you pleaded guilty at the conclusion of depositions or on your arraignment last November, you would have been entitled to a greater discount.

Principles and Purposes

[11]     It is trite to observe that sentencing under the Misuse of Drugs Act cannot bring an offender’s personal circumstances into play in any significant way. Deterrence, denunciation and community protection are important purposes here.  I have also weighed s 8 principles.

Counsel’s Submissions

[12]     The Crown initially suggested an overall start point of eight to nine years and a final sentence of six to seven years.  Mr Wharepouri initially urged me to take into consideration the fact that ephedrine and ecstasy were also discovered in the search of your vehicle.  However, you have not been charged with that, and I decline to take possession of those substances into consideration as an aggravating factor.

[13]     Your  counsel,  Mr  Cassidy,  in  his  written  submissions  and  with  some optimism suggests a start point of four to five years.  There is no dispute that you are

entitled to a discount for your guilty plea although given the procedural history since your arrest I do not agree with the Crown’s suggestion that you are entitled to a one third reduction.

[14]     Mr Cassidy also stressed to me I should only take into consideration as an aggravating factor proven offending against you in this area.

Sentencing

[15]     In terms of R v Fatu [2006] 2 NZLR 72 you clearly fall into Band 2 of supplying commercial quantities (between 5 and 250 grams) where a three to nine year start point is mandated.

[16]     I adopt, with respect, the observation of Fogarty J in  R v Lu (CRI 2006-009-

000782, 9 March 2006) where it is pointed out that within the range of three to nine years the Court of Appeal has in mind a more sophisticated exercise than simply working out the number of grams found in your possession and embarking on a crude apportionment exercise.  Clearly the volumes involved in terms of para [6] of R v Lu must have some significance.  However, it is not the final answer to issues of culpability.

[17]     There was a sustained and prolonged commercial operation by you which must over time have resulted in significant distribution of methamphetamine and produced you significant income.  For sentencing purposes I regard the 75.5 grams and the $90,000 value as being a snapshot of dealing commerciality rather than a one off event.

[18]     I consider the appropriate start point, perhaps lenient for you, in terms of R v Fatu  is  six  years.    Such  a  start  point  is  consistent  with  start  points  involving generally comparable culpability and amounts in R v Sheppard (HC AK CRI 2004-

044-008504, 24 June 2005) and   R v McLeod (HC AK CRI 2003-090-12511, 27

February 2004) which although pre-Fatu decisions, were cases where sentences were imposed under the undisturbed R v Arthur [2005] 3 NZLR 729 band.

[19]     From that six year start point I consider an uplift of one year to seven years is justified to reflect the aggravating feature of your previous drug offending.

[20]     I now turn to an appropriate discount.  A discount of 25% in my judgment is justified to reflect your guilty plea at the stage it was entered and a further reduction of approximately three months to reflect your general remorse.

[21]     This brings me to an end sentence of five years imprisonment.  Standing back and looking at your offending and its culpability in isolation, and ignoring the other alleged offending against you, I consider five years to be a fair and appropriate sentence.

[22]     You are thus sentenced to five years imprisonment. [23]        Thank you.  Take him down.

...........................................… Priestley J