R v Massey-Hunter

[2013] NZHC 166

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-2338 [2013] NZHC 166

THE QUEEN

v

TAI WILLIAM MASSEY-HUNTER

Hearing:         12 February 2013

Appearances: N L Elliott for Crown

K Pascoe for Massey-Hunter

Judgment:      12 February 2013

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor New Plymouth
Kylie Pascoe, New Plymouth

R V MASSEY-HUNTER HC NWP CRI 2011-043-2338 [12 February 2013]

[1]      Mr Massey-Hunter, you appear for sentence this morning, having pleaded guilty to one charge of conspiring to supply a Class C controlled drug, Ecstasy, for which the maximum penalty is seven years imprisonment.

Factual background

[2]      You were apprehended by the police as part of an extensive investigation into the sale of illegal drugs in the New Plymouth area, and more broadly, the activities of a newly formed Taranaki chapter of the Rebels Gang and their associates.

[3]      Between  22  May  and  18  July 2011,  the  police  obtained  substantial  text message  evidence  that  established  a  relationship  between  you  and  Mr  Nathan Couper, a member of the Rebels Gang.   The various text messages concerned arrangements for the sale and purchase of Ecstasy.

[4]      I summarise the text messages very briefly.  In May there were texts between you, in which you indicated that you had arrived back from Wellington, and wanted to get into the drug business but had no start up capital.  Mr Couper indicated some interest in funding a start up.  You said you could get about 50 pills at $25 each, and that you would provide 12 pills at cost to Mr Couper.

[5]      On 27 May, you texted Mr Couper offering him 10 pills, and some blister packs of Ritalin.  It is uncertain whether that deal took place.

[6]      A month later on 28 June, you told Mr Couper that you knew where you could get Ecstasy for $35 a pill, although there were only 20 pills left.  Again it is uncertain whether that deal took place or not.

[7]      On 6 July, you rang Mr Couper, this time looking for pills, as you had a friend who wanted a bulk deal of 10 or 20 tablets and was willing to pay $60 per tablet.  Mr Couper said he could provide 20 tablets but needed the money deposited into his account.  It appears that you agreed to that.

[8]      Then  on  18  July  you  appear  to  have  been  selling  a  stereo  system  on Mr Couper’s behalf, and there was an agreement about a payment of cash and pills over a period of time.

[9]      You were apprehended on 1 September 2011 and initially denied sending the text messages, but later explained that your offers of pills to Mr Couper were simply a way of gaining his attention because other debts needed to be settled between you. You say that you never actually supplied Mr Couper with any Ecstasy.

Personal circumstances

[10]    You are 23 years old and describe having been raised in a community environment in rural Taranaki where you became involved in cannabis use at an early stage.   For some years until very recently, it appears that your lifestyle has revolved around your cannabis habit.  However, in April 2012 you self-referred to the Taranaki Base Hospital’s Alcohol and Drug Service, where you have successfully completed a programme of counselling and treatment, and have been drug free since that time.

[11]     You have a considerable knowledge of computers and will be enrolled next month to commence an NCEA entry course at the Western Institute of Technology.

[12]     It is necessary to say something briefly about your health.  You suffer from a range of conditions.   It appears you have been diagnosed  with and suffer from Aspergers Syndrome and ADHD which together may be regarded as giving rise to obsessive compulsive behavioural tendencies.  You also have a condition known as Ehlers-Danlos Syndrome as a result of which you suffer from ligament laxity which makes you prone to joint dislocation and has resulted in a chronic back disorder. You take a variety of medication for all of these conditions.

[13]     You have been with a partner since about the middle of last year, and have been occupying a flat with her.  But in the event you are sentenced to home detention it is planned that you would live with her at her parents’ address.  They have been highly supportive of you and I will return to that presently.

[14]     You  say  you  are  shocked  by  what  you  have  done  and  its  possible consequences.   You consider you were intimidated and threatened by Mr Couper who was older and more experienced than you.

[15]     Given what might be called your personality disorders, I accept you were perhaps more likely to be led at a relatively young age into this offending than someone who is rather more sophisticated.

[16]     The report writer considers that you are displaying significant remorse for your offending, and that you have made good progress in the past nine months. Your mother corroborates that.  She says that she has seen positive changes in you since you stopped using cannabis, and changed your circle of associates.  Your partner and her family are also no doubt stabilising influences in your life.

[17]     You have a number of convictions, including for procuring or possessing cannabis, and possession of instruments for using cannabis.  Those offences occurred between 2007 and 2009.  Somewhat earlier than that, there were offences involving disorder and theft.

[18]     You responded well to a number of sentences of community work and the report writer considers that you would comply with a community based sentence on this occasion if it is available.

Sentencing purposes and principles

[19]     I have taken into account the various purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002.  In the usual way I must fix a starting point and then adjust it by reference to aggravating and mitigating factors, first relating to the offending itself and then by reference to personal issues affecting you.

Counsel’s submissions

[20]     Counsel for the Crown submits that if this was a case of substantive dealing in Class C drugs, then a starting point of two years imprisonment would have been

appropriate, reduced by perhaps 20-30% because this is a conspiracy case, and then by 25% in order to take into account your guilty plea.  That would produce an end sentence of between 12½ and 14½ months imprisonment.  The Crown accepts that in those circumstances home detention must be considered.

[21]     Your counsel goes somewhat further and argues that the sentence ought to be one of community detention, coupled if necessary with community work.  She says that there is no evidence that anything was actually supplied, nor that you even had the means to obtain the drugs for Mr Couper.  In any event, the amounts involved were generally small so that there was no commercial element.

Discussion

[22]     You face a charge of conspiracy which will in general attract a somewhat lower penalty than a charge of dealing in the drug concerned.  I consider first what the  appropriate  penalty  would  have  been  for  dealing  in  Ecstasy,  and  will  then discount that in order to accommodate the fact that this is a conspiracy case.

[23]     There is no tariff or guideline case for the supply of Class C Ecstasy.  In R v Day,[1]   as  Ms  Elliott  has  submitted,  Fogarty  J  considered  that  by  analogy,  the guidelines set out in R v Terewi, which relates to cannabis cultivation and sale, were of assistance.[2]   I agree with that approach, which has much to recommend it.

[1] R v Day HC Hamilton CRI-2010-019-10271, 23 June 2011

[2] R v Terewi [1999] 3 NZLR 62.

[24]     I accept, as counsel for the Crown submits, that this is a case which falls within the lower reaches of Band 2 of Terewi, which covers small scale cultivation and sale for commercial ends.   That suggests a starting point of about two years imprisonment, but the Court of Appeal in Terewi said that where sales are infrequent or of very limited extent, then a lower starting point might be appropriate.

[25]     Ms Elliott says that the various text messages refer in total to about 115 tablets, although on my calculation only about 90 were both price and quantity

specified.  Of course there is no evidence that any tablets ever did change hands and that is why a conspiracy charge has been laid.

[26]     But the quantities discussed were sufficient to qualify the case as involving commercial dealings, albeit at the bottom of Terewi Band 2, so a starting point of two years imprisonment is appropriate in my opinion.

[27]     It is then necessary to allow a further discount for the fact that this was a conspiracy, and not a case of established sales.  As the Court of Appeal has pointed out,  it is  necessary to  distinguish  between  two  classes  of conspiracy.    Inchoate conspiracies  are  of  less  gravity  than  those  in  which  the  conspiracy  resulted  in

substantive offending.[3]    In this case there is no evidence of actual sales.   I accept

therefore that a discount of six months or 25% is appropriate.

[3] R v Tamati and Laxon CA270/01, 285/01, 26 February 2002 at [23], and R v Te Rure (2007) 23

CRNZ 967 at [27].

[28]     I am not going to add back anything for your prior offending, although your previous record comes close to requiring something additional.

[29]     A further 25% discount for your guilty plea produces an end sentence of 13½ months imprisonment.  I do not accept that community detention, even coupled with community work, would be appropriate in a case with these features.  But of course, a sentence of 13½ months imprisonment is in legal terms a short term sentence and therefore requires the court to consider the alternative of home detention.

Home detention

[30]     It is well established that rehabilitative considerations will be to the fore when the Court comes to consider a sentence of home detention instead of imprisonment.   The Court of Appeal in R v Hill, explained that there are obvious benefits in a sentence of home detention where an offender is motivated to change,

and where there is a realistic prospect that he or she will be able to change.[4]

[4] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

[31]     The probation officer has been impressed by your recent progress.  You have moved away from your previous acquaintances in the drug world and have stopped taking any drugs yourself.  Your level of overall motivation is assessed as high.  You have  self-referred  to  drug  treatment  and  counselling,  and  have  embarked  upon further study which will be difficult, because of your medical problems, but has the capacity to help you become financially independent.

[32]     I have read the letters from your mother and your partner’s mother.  Each of them is insightful, and together they suggest that you do not lack for strong and stable support, and of course you have your partner as well.

[33]     Your various medical conditions would make life difficult for you in prison, and you would be unable to undertake therapeutic activities to the same extent as if you were serving a sentence of home detention.  Moreover, there is a need for you to be closely monitored because you are liable to suffer sudden injury as a result of what your doctor has described as a connective tissues disease.

[34]     All in all there is a great deal to be said for a sentence of home detention as opposed to a sentence of imprisonment.  As I indicated to Ms Pascoe earlier, I have decided that a sentence of home detention is the appropriate outcome.

[35]     The  court  has  a  report  approving  as  suitable  for  home  detention  your proposed residence which is the home of your partner’s mother.  I am satisfied that it will provide a proper environment for you as you serve your sentence, and you will not lack for strong and stable support there.

[36]     As I often say where home detention is imposed, it must not be regarded as a soft outcome.  The resulting restrictions on your freedom are very real.  If there is a breach then a substituted sentence of imprisonment is likely.

[37]     The term of a sentence of home detention is usually significantly lower than the equivalent term of imprisonment because there is a release entitlement after one half of a sentence of short term imprisonment has been served.  On the other hand, you must serve the whole of the sentence of home detention.

Sentence

[38]     On the charge of conspiracy to  supply a Class C drug Ecstasy,  you  are convicted and sentenced to six months home detention.   I impose the following conditions:

(a)       Immediately  upon  leaving  court  you  are  to  travel  directly  to  54

Wallath  Place,  New  Plymouth,  there  to  await  the  arrival  of  the probation officer and a representative of the monitoring company;

(b)You are to reside at 54 Wallath Place, New Plymouth for the duration of the sentence of home detention;

(c)      You are to attend treatment and counselling for drug abuse, including any Relapse Prevention Programme, as directed by the probation officer;

(d)You are not to consume any alcohol or illicit drugs for the duration of the sentence of home detention.

C J Allan J