R v Marsden HC Tauranga CRI-2009-070-1557

[2011] NZHC 1154

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2009-070-1557

THE QUEEN

v

WHATA ALBERT MARSDEN

Hearing:         27 September 2011 (Heard at ROTORUA)

Appearances: S Simmers for Crown

C G Tuck for Prisoner

Judgment:      27 September 2011

SENTENCING REMARKS OF LANG J

R V MARSDEN HC TAU CRI-2009-070-1557 27 September 2011

[1]      Mr Marsden, you appear for sentence today having pleaded guilty to a charge of conspiracy to supply methamphetamine.  The maximum sentence for that offence is 14 years imprisonment.

The facts

[2]      Your offending was discovered during the course of an electronic interception operation run by the police that commenced in November 2007. The offending arose as a result of text messages that you sent and received on 9 April 2008.  That text message exchange was between you and one of the major players in the methamphetamine ring that the police uncovered.

[3]      You contacted this person to ask him if he had any “whole grams” available. You said that you had a buyer who wanted to purchase “eight dolas”, or .8 of a gram of methamphetamine for the sum of $800.   The person to whom you sent that message replied that he had that quantity of methamphetamine, and that you should come and see him with the cash so that you could complete the transaction.  You replied that you would meet with him, but that you would bring the buyer with you because he wanted to hand the money directly to the seller in exchange for the methamphetamine.  A short time later you advised the supplier that your buyer only wanted to purchase .4 of a gram, and that he had half the “paperwork”, or the sum of

$400, to enable him to complete that purchase.  Arrangements were then made so that you, the seller and the buyer could meet to complete the transaction.

Sentencing Act 2002

[4]      As you are no doubt aware, cases involving dealing in methamphetamine routinely attract sentences of imprisonment.  That is the only way in which the Court can   properly  bring  home  the  importance  of   principles   such  as   deterrence, denunciation and the need to hold offenders accountable for their actions.  At the same time, however, it is important that a sentence is imposed that is consistent with those imposed in other broadly similar cases.  I say “broadly similar” because no two cases are ever exactly the same.

[5]      Counsel  are  largely  agreed  regarding  the  starting  point  to  be  applied  in respect  of  your  offending.    I  am  also  assisted  by  sentences  imposed  on  other offenders within the same operation in which you were apprehended.  Of particular relevance is the sentence imposed on Mr Tihi.[1]    He pleaded guilty to a charge of conspiring to supply between .8 and 1 gram of methamphetamine.  The sentencing Judge took a starting point of two years imprisonment and then ultimately imposed a

sentence of home detention.

[1] R v Tihi HC Rotorua CRI-2009-070-1557, 3 March 2011

[6]      Counsel agree that your offending is slightly less serious than that in Tihi.

Nevertheless, you were prepared to become involved in transactions involving up to

.8 of a gram of methamphetamine.  Importantly, however, you were not the actual seller.  Rather, you were the intermediary who introduced the buyer to the seller so that the transaction could occur.  Nevertheless, your role facilitated an arrangement leading to the transfer of drugs.

[7]      I propose to adopt a starting point of 18 months imprisonment to reflect your culpability as an intermediary.

Aggravating factors

[8]      You have a lengthy list of previous convictions.  You have some relatively old cannabis convictions, but no other convictions relating to drugs.  For the most part, your convictions relate to traffic offending and some offences of dishonesty.

[9]      For that reason  I put those to one side for present purposes and do not increase the starting point to reflect that factor.

[10]     The only real mitigating factor that you can call in aid is the fact that you pleaded guilty. Your plea came very late, however, and in fact virtually on the eve of your trial.  For that reason the credit that I can give for your guilty plea is limited.

[11]     I propose to reduce the starting point by approximately two months to reflect that factor, leaving an end sentence of 16 months imprisonment.

Home detention

[12]    The real issue today is whether I should sentence you to that term of imprisonment or to a sentence of home detention. You counsel urges me to adopt the latter course, and points out that you successfully completed a sentence of home detention in 2008.  He says that you have matured since your present offending, and that a sentence of home detention is a viable option in your case.  He also points out that you have the assistance of people around you who are determined to ensure that you do not come into contact with drugs again.

[13]     I accept that there are some factors pointing in favour of a sentence of home detention. As against that, however, there are three factors that I need to weigh in the balance.

[14]     The first of these is that you propose to live at an address occupied by two people, a brother and a sister.   They are people who are close to you, and in the ordinary course of events they would be persons who would be appropriate hosts for a sentence of home detention.   There is, however, a difficulty because the male occupant of the address has a reasonably significant list of previous convictions, and concerns are expressed in the pre-sentence report about your ability to remain free of trouble if you are living in the same house as him.  I accept that that factor may be moderated by the observation of a probation officer that the female occupant of the house may well be the person who sets the ground rules.

[15]     The next factor is that you have a very lengthy list of convictions for what could be described as anti-authoritarian offending.  These include a large number of convictions for breaching Court orders and conditions.   This demonstrates, in my view, that there is a real risk if you are sentenced to home detention that you will  not comply with any conditions that might be imposed.

[16]     The third, and perhaps determinative factor in the present case, is that you were due to be sentenced in this Court on 3 March 2011.  You must have known that your appearance on that date was required if you were going to have a hope of being sentenced to home detention.   There is material before me to indicate that you arrived at the courthouse on the day of your sentencing, but that you went to the wrong courtroom.  Even if that is correct, you did not hand yourself in or make any further enquiries.  Rather, you effectively went on the run until July 2011 when you were apprehended and remanded in custody.

[17]     I take the view that this latter factor tips the balance against a sentence of home detention.   In imposing a sentence of home detention the Court must have confidence that there is a reasonable prospect that the offender will abide by the terms of the sentence.  Given the fact that you were not even prepared to turn up on your sentencing date, I have grave concerns that you would abide by any conditions that  I might  impose.    For  that  reason  I have  decided  that  a  sentence  of  home detention would not be appropriate.

Sentence

[18]     On the charge to which you have pleaded guilty you are sentenced to 16 months imprisonment.

[19]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Tauranga

Counsel:

C G Tuck, Tauranga