R v Lines

[2012] NZHC 3215

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-009-002017 [2012] NZHC 3215

REGINA

v

JAMES RICHARD LINES

Hearing:         29 November 2012

Appearances: K B Bell for Crown

M M Cole for Prisoner

Judgment:      29 November 2012

SENTENCING REMARKS OF FOGARTY J

[1]      Mr Lines, you appear for sentence having pleaded guilty to possession of equipment with intent pursuant to ss 12(2)(a) and 12A(3)(b) of the Misuse of Drugs Act, possession of materials and possession of a precursor material.  Essentially you have pleaded guilty to the possession of materials for making methamphetamine which were found in a search of your home.  The paraphernalia and the size of the chemicals indicate that it was a small scale operation.  You might have been able to pass it off as a manufacture for your own use.   You were, however, honest and admitted you have an addiction to cannabis but say that  you were party to the manufacture of methamphetamine by others in order to pay off some debts.

[2]      The Crown has suggested in this case a starting point for the offending of two and a half years based on the authorities. That is the appropriate starting point on my

own reading of the authorities.

R V JAMES RICHARD LINES HC CHCH CRI-2012-009-002017 [29 November 2012]

[3]      Your counsel, Ms Cole, has argued for a home detention sentence based on the recent decision of the Court of Appeal in R v Rawiri.[1]    Rawiri distinguished an earlier decision of the Court of Appeal in R v Anderson[2] of which I was a member of the Court.  In Anderson we said that essentially if it is methamphetamine production you go to jail.  Rawiwi distinguished Anderson on the basis that in Rawiri there was no  commercial  element  at  all.    Because  in  your  case  there  is  some  degree  of

commercial element I think the Anderson decision applies to you.

[1] R v Rawiri [2011] 25 CRNZ 254

[2] R v Anderson [2007] NZCA 146

[4]      Therefore I do the analysis of what a prison sentence would be for you.  In your particular case I think, I have regard to: the second positive report from the Probation Officer recommending home detention; your frank acknowledgement that you are a member of the Mongrel Mob and you do not intend to walk away from those social relationships; and I do accept that it is simply wrong to assume because a person is a member of the Mongrel Mob they are engaged in criminal activity.  I am impressed by the testimonial from your partner, and also the job offer that I have received this morning.

[5]      Encouraged by those I think that the line of reasoning of Chisholm J in the recent case of R v Gordon[3] in May of this year indicates that I should do two things in calculating a prison sentence.  Firstly, as I must under Hessell v R,[4] reflect a credit for a plea of guilty.   The second is that it is in the circumstances appropriate to reduce  the  starting  point  because   these  other  positive  aspects  encourage  a

rehabilitative sentence.  I would reduce the starting point from 24 months down to

20, which is a little more than what Chisholm J did in the case of Gordon where he took the starting point down to 18 months. There the Crown had suggested a starting point in the region of 18 to 21 months.

[3] R v Gordon [2012] NZHC 1117

[4] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607

[6]      Taking a starting point of two years, with a discount of Hessell I would reach an indicative prison sentence of 20 months.  Because of the positive features in the

report I would anticipate that there is every good reason to believe that you would

not  have  served  more  than  10  months’ imprisonment  on  that  indicative  prison

sentence.

[7]      I then turn to look at what has actually happened.  You were in custody for three months from the time of your arrest on 17 February to your release on EM bail on 24 April.   You have since then been seven months on EM bail, one month of which you have actually been back in custody again.  There have been breaches of EM bail.  The police, however, did not oppose the reinstatement of EM bail and I take that as a signal that the police thought that the month you spent in jail during the EM bail period was the appropriate response to the reintroduction of EM bail.  So for practical purposes I will just take the seven months of EM bail.  Ms Bell is right that it is an over-simplification to treat a month of EM bail as equivalent to two months in jail.  In this case I think, however, it is appropriate.  Again I notice Chisholm J used the same logic in the Gordon case.  That would indicate that that is equivalent to a 14 month prison sentence.   The three months  you have had in custody is equivalent to a six month prison sentence which brings one back to a 20 month prison sentence which is the indicative prison sentence.

[8]      The result is that I think that you have actually spent the equivalent time in custody had you received a 20 month sentence.  The appropriate solution in this case is to recognise that now.

[9]      I am intending to release you shortly but before I do so I want to discuss with counsel some release conditions.  It is very important that you break this cannabis habit.  It has effectively taken you away from family life for a long time.  I am sure you do not want this to happen again.  Also you will appreciate that the Court is - I will say it in plain English – taking a bet on you.  I sense that I am looking at you as a man who is making positive changes in your life and for these reasons I am comforted by the decision I am proposing to make.  But I do think we need some special conditions in the meantime.  I am considering some degree of supervision but I will  just  hear  from  Ms  Cole and  then from  Ms  Bell  (discussion  ensues with counsel).

[10]     The  result  is  that  you  are  released,  but  under  a  term  of  six  months’ supervision during which you are to participate in assessment for alcohol and drug use and thereafter to participate in any recommended intervention to the satisfaction of the Probation Officer.

Solicitors:

Raymond Donnelly & Co, Christchurch – [email protected]

M M Cole Barrister, PO Box 21191, Christchurch.