R v McLaren
[2016] NZHC 1431
•28 June 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-3439 [2016] NZHC 1431
THE QUEEN
v
RYAN MCLAREN
Hearing: 28 June 2016 Counsel:
K C Chang for Crown
R M Mansfield & S T L Teppett for Mr McLarenSentence:
28 June 2016
SENTENCE OF DUFFY J
Solicitors:
Crown Solicitor, Auckland
R v MCLAREN [2016] NZHC 1431 [28 June 2016]
Offences
[1] Mr McLaren, you appear for sentence today having pleaded guilty to one charge of possessing methamphetamine for supply1 and one representative charge of supplying methamphetamine.2 Both charges carry a maximum penalty of life imprisonment.
Factual background
[2] The offending in question took place between 1 August 2014 and 3 April
2015. During that time, the Police intercepted a number of text messages which showed that you were supplying methamphetamine. The Police recorded 29 instances where you supplied methamphetamine to various persons in quantities ranging between 0.25 and 2.5 grams. The total amount of methamphetamine sold during this period of time was 19.15 grams.
[3] On 3 April 2015, you made a series of phone calls to a Mr Lia, seeking to purchase methamphetamine. You met with him and exchanged $9,500 for two parcels of methamphetamine. You were arrested by Police when you returned to your hotel. The Police recovered two packages of methamphetamine weighing a total of 54.20 grams. The total amount of methamphetamine was approximately
73.35 grams.
Personal circumstances
[4] You have a reasonably extensive criminal record, which lists 54 convictions dating back to 1998. Eight of those convictions are for drug-related offending, including one conviction for possession of methamphetamine dating back to 2006. Your most recent conviction was for breach of community work in March 2015 and in January 2015 you were also convicted for shoplifting items valued less than $500. You have been sentenced to imprisonment on two previous occasions and in 2000
you were sentenced to a suspended term of two years’ imprisonment.
1 Misuse of Drugs Act 1975, s 6(1)(f).
2 Misuse of Drugs Act, s 6(1)(c);Mr McLaren was originally charged with 30 separate offences: one charge of possession of methamphetamine with intent to supply and 29 charges of supplying methamphetamine. The 29 charge of supplying methamphetamine were condensed into one representative charge spanning form 25 August 2014 to 31 March 2015. .
[5] You have two daughters and report that you would like to address your addiction so that you can be a good father to them. You have recently re-established a relationship with your parents, who care for one of your children. The pre- sentence report states that you previously had contact with a number of negative associates but have not been in contact with those people since your arrest.
[6] The pre-sentence report assesses you as being at a moderate risk of re- offending due to your previous criminal offending and drug dependency. However, the writer suggests that this level of risk would increase if you fail to address your drug problems and continue to offend in order to obtain methamphetamine. This is a key issue. Since 5 May 2016 you have resided in Odyssey House, which is a rehabilitation centre for drug addiction. The writer notes that you appear to take responsibility for your actions and states that you are eager to change your life so that you do not reoffend in future. On the other hand, you have stated to the pre- sentence report writer that you would not be motivated to change your life if sentenced to imprisonment.
Crown submissions
[7] Initially the Crown submitted that a starting point of six and a half years’ imprisonment was appropriate in this case. This was the Crown’s assessment of where your offending fell within R v Fatu.3 However, today, the Crown drew back from that and suggested a starting point of five years’ imprisonment, which the Crown submitted reflected the extent of your drug addiction, which it recognised was a key driving feature in your offending. The Crown noted your previous
convictions but did not seek any uplift in respect of those.
[8] The Crown recognised that you have been willing to provide assistance in the prosecution of your co-offender. In this regard you have provided a formal written statement and will give evidence for the Crown at the trial of the co-offender. This has led the Crown to submit that a total discount of 50 per cent is warranted to recognise your co-operation with authorities and guilty plea. That would bring the
end sentence down to two and a half years’ imprisonment.
3 R v Fatu [2006] 2 NZLR 72 (CA).
Defence submissions
[9] Your counsel, Mr Mansfield, submits that a starting point of four years’ imprisonment is appropriate. He agrees that there is no basis for uplifting your sentence for previous convictions. He suggests a further discount of six months is appropriate to reflect the rehabilitative efforts you have made since your arrest. He also submits a full guilty plea discount of 25 per cent is appropriate and a further discount of five per cent to reflect your exceptional and genuine remorse.
[10] Mr Mansfield also points to the assistance that you have provided to the Police following your arrest. He submits this warrants an additional reduction of up to 30 per cent. By Mr Mansfield’s calculation the end sentence comes down to well below the two year period which would make you eligible for a sentence of home detention. He seeks a sentence of home detention would be served while you were at Odyssey House. I understand you have a further eight months to complete the programme there and that would best assist your rehabilitation.
Purposes and principles of sentencing
[11] In sentencing you today, Mr McLaren, I bear in mind the purposes and principles of sentencing that are set out in the Sentencing Act 2002. As in any case drug dealing requires the Court to emphasise the purposes of denunciation and deterrence.4 However, it is also necessary, where possible, to impose a sentence that will assist in your rehabilitation and reintegration into the community.5
[12] Final sentences for methamphetamine offending take into account the seriousness of this type of offending.6 Methamphetamine offending is extremely harmful to New Zealand society, not only because of the immediate impact of the drug on its user, but because of the wider effect on families, homes and communities. You should know this because, of course, I have been told today that you have persisted with your low level drug dealing simply to fund your habit. By doing so
you have, of course, exposed other persons to this drug, and they too will now have a
habit which they in turn may seek to fund by engaging in drug dealing. In this way
4 Sentencing Act 2002, ss 7(1)(e) and (f).
5 Section 7(1)(h).
6 Section 8(c).
the perniciousness of methamphetamine offending continually spreads like a cancer through our society.
[13] The seriousness with which Parliament views this type of offending is reflected in the maximum penalty of life imprisonment. Under the Misuse of Drugs Act 1975, there is a presumption that a person who has been convicted of supplying methamphetamine will receive a sentence of imprisonment unless, having regard to the particular circumstances of the offence or the offender, the court is of the opinion
that the person should receive a different sentence.7
Sentencing approach
[14] Ordinarily I would have considered that your offending warranted a starting point of five years’ imprisonment. That was based on my assessment of your offending as commercial dealing in terms of R v Fatu. Today, the Crown pulled back from the starting point it recommended in its written submissions for the reason that it recognised your offending was primarily driven by your drug addiction. This altered assessment caused the Crown to step back from a starting point of six and a half years’ imprisonment to one of five years’ imprisonment. From the material I had read before today, I too had approached the matter in the way the Crown had originally approached the matter. Though I had considered a lower starting point than six and a half years was appropriate. The submissions the Crown made to me this morning caused me to draw back from my intended starting point and to reconsider the full impact of your drug addiction on the offending. This has led me to decide that a starting point of four and a half years imprisonment is warranted.
[15] The Crown has suggested a maximum discount of 50 per cent, taking into account your guilty plea, the assistance you are providing authorities and any personal factors. That would being the sentence down to 27 months’ imprisonment as an end sentence, which of course, leaves it outside the bounds of consideration of home detention. Before you could be eligible for a sentence of home detention I would need to have reached an end point sentence of imprisonment of two years’ or
less.
7 Misuse of Drugs Act, s 6(4).
[16] However, Mr Mansfield has submitted that there are other factors that I can take into account. He has referred me to R v Waddell and R v Wiki.8 He has submitted that the restrictive bail terms that you have been on since being bailed to Odyssey House are another factor that I can take into account. As well as taking into account onerous bail terms there is also the rehabilitation that you have sought, as well as the insight you now have into your drug addiction and your desire to do
something positive about it.
[17] Although the Crown is concerned that for me to take those factors into account may amount to illegitimate tinkering with your sentence in order to reach the magical two year figure I think that in your case they are genuine factors which require separate recognition. I am prepared therefore to give a further three months’ discount for those factors, which brings the sentence down to one of two years imprisonment. This makes you eligible for a sentence of home detention. I consider that I have reached this result through an appropriate way of reasoning based upon legal principle, rather than by simply trying to reach a result which would allow me to impose home detention.
[18] The next question is whether I should go the extra step and impose home detention. I acknowledge that in R v Wiki Lang J set out sound reasons for not doing so.9 But your case is in one respect significantly different from that in Wiki. Ordinarily, the Court does not take into account time served in custody. That is something the Parole Board does. But I think it would be nonsensical for the Court to close its eyes to what will be the practical outcome here if I impose a sentence of imprisonment on you. If I imposed a sentence of 27 months’ imprisonment the likely result, given that you have already served 14 months’ time in custody, is that
you would be immediately eligible for parole. That could result in an outcome where within a month or two of being sentenced you are released back into the community.10 Certainly, you would have been subject to post-release conditions, but
nonetheless the fact of the matter is that in a very short time you would be back in
8 R v Waddell [2013] NZHC 3339; R v Wiki [2013] NZHC 3439.
9 At [18].
10 This would depend on when Mr McLaren’s case went before the Parole Board. However, since time spent in custody exceeds one third of the prison sentence I have arrived at he would have been eligible for release on parole from the start date of the sentence.
the community, you would have lost your bed at Odyssey House, and on your track record I consider that given the state of your addiction you may well have fallen back into the type of behaviour that has resulted in you being in Court today. I think it is very important and relevant that I take all this into account.
[19] If, on the other hand, I were to sentence you to home detention the outcome would be that you could remain at Odyssey House and complete their rehabilitation programme. You would be required to remain at Odyssey House for a number of months and would be more restricted in your movements for a greater period of time than if I were to sentence you to imprisonment, only for you to be released on parole after a few weeks.
[20] The sentence I propose will ensure that all steps are taken to assist in your rehabilitation. It will also denounce and deter others as it will pose a greater restriction on your liberty than would a sentence of imprisonment. The sentence of home detention I am going to impose will have a more stern impact on you than what would have happened if I had imposed a sentence of 27 months imprisonment. I intend to impose a sentence of 11 months’ home detention with the special conditions that are set out in the pre-sentence report both in terms of the conditions on the sentence and the post-detention conditions. I do so in recognition of the unique combination of circumstances that your sentencing presents.
[21] Mr McLaren please stand. On the two charges, one of supply of methamphetamine, the other of possession of methamphetamine for supply, you are sentenced to 11 months’ home detention with the proposed special conditions and proposed special post-detention conditions that are set out in the probation report. I strongly advise you to take the opportunity that has been given to you today. Because if you do not, if you fall by the wayside this time, the next time you appear in Court for sentencing on methamphetamine offences, which if you do not rehabilitate yourself and overcome your problem you will do, the Court will not treat you in the same way as I have done.
[22] You may stand down.