R v Messenger HC Auckland CRI 2006 044 005462
[2008] NZHC 2413
•18 July 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006 044 005462
REGINA
v
MICHAEL JOHN MESSENGER
Hearing: 18 July 2008
Counsel: Sue Petricevic for Crown
Paul Borich for Prisoner
Judgment: 18 July 2008
SENTENCE OF WILLIAMS J
Charge: Supplying a Class A drug [x2] (methamphetamine)
Conspiracy to supply a Class B drug [x1] (ecstasy)
Plea: Guilty
Sentence: Community Work – 200 hours
Community Detention – 6 months - with curfews as per the Probation Service report.
Solicitors/Counsel:
Crown Solicitor (Sue Petricevic) PO Box 2213 Auckland 1140
Rice Craig (Paul Borich) PO Box 72 440 Papakura, Auckland 1703
Copy for:
Odila Fanene-Schmidt, Case Officer, Auckland High Court Criminal Registry
R V MESSENGER HC AK CRI 2006 044 005462 18 July 2008
Mr Messenger: In days gone by we used to ask people to stand throughout sentencing but nowadays there are so many bases we have to cover that sentencing addresses have become noticeably longer. You may remain seated until I ask you to stand as there are a number of matters which need to be dealt with. In your case, the
technical matters bulk larger than in most instances.
[1] On 6 May this year you pleaded guilty to two counts in the amended indictment against you, one that on 16 April 2006 you conspired with a Mr Good to supply a Class B drug, Ecstasy, to Mr Paterson. The maximum sentence on that is
10 years’ imprisonment. Secondly, on the same day you supplied a Class A drug, methamphetamine. The maximum sentence on that is life imprisonment. Those maxima are, of course, far too high to apply in your case.
[2] You initially faced a number of other charges but with Mr Borich’s skilful help the true extent of your criminality was ultimately reduced to the two charges that you faced and to which you have pleaded guilty.
[3] It must be accepted that the pleas were a couple of years after the event and about a year after depositions but I am prepared to give you the usual credit for a plea of guilty given that there were a number of other issues that had to be cleared away and Mr Borich had to discuss and negotiate with the Crown before as I said the real measure of your criminality appeared and you pleaded guilty at an early stage after that.
[4] The agreed summary of the facts relating to your sentencing is that you are one of about 58 people ultimately charged as a result of the Police interception warrant operation in Operation Harbour. Mr Paterson, the main offender, asked you to uplift some methamphetamine from another offender and some pills from a third and you agreed to do that. You did uplift the methamphetamine but you did not uplift the ecstasy - although it had been put out for Mr Paterson to collect - and Mr Paterson uplifted the methamphetamine from you and he got the ecstasy via you. The extent of your intercepted conversations were also put in. It is clear that you
were a knowing participant but as both the Crown and Mr Borich urge, very much at the lower end of the scale of offending in Operation Harbour.
[5] I have had the assistance of helpful reports from the Probation Service, particularly the latter report dealing with the various community based sentences which might be open. The Probation Service makes clear that you are living in a house owned by your father with your brother and another. You have been employed by Telecom for some six years in a full-time job. Obviously you must be good at that job to retain the position as long as you have. Your financial circumstances are not too strong and you have significant debts.
[6] The description that you gave the Probation Service is that you are what is rather misleadingly described as a “recreational” drug user. You have tried illicit drugs on a number of occasions over a period. The Probation Service suggests - and the material I have seems to concur - that you are at a low risk of re-offending, particularly one imagines after what you and your family have gone through over the past couple of years. As a result of that, the Probation Service suggests the appropriate sentence for you is a combined sentence of community detention and community work.
[7] Ms Petricevic for the Crown suggests that the supply charge should be the lead offence with the second count being an aggravating factor but very responsibly accepts that home detention might well be an appropriate sentence for you rather than imprisonment. She points to the fact that your trafficking in methamphetamine assists in this scourge of our society being made available by you though in the sense you were much as a courier. As a result, she submits your culpability must be high; this she says was conscious and deliberate dealing.
[8] Ms Petricevic has given me a list of the sentences imposed on others who were arrested as a result of Operation Harbour. She suggests, and Mr Borich will have no doubt discussed with you, a case called R v Fatu [2006] 2 NZLR 72 which is the leading case for sentencing for methamphetamine offending. You are probably in the lowest category of Fatu, low level supply which indicates, according to the Court of Appeal, a starting point of somewhere between two and four years’
imprisonment, although you are pretty much towards the lower end and she draws my attention to a further recent decision of the Court of Appeal in R v Hill [2000]
2 NZLR 381 which makes clear that you may well be eligible for home detention.
[9] Mr Borich makes the points on your behalf that you offended only at Mr Paterson’s request and he was somebody you have known from college. You made nothing out of it in financial terms. Your only return was a little bit of methamphetamine for your own use. Thus, he stresses your limited involvement and your pleas of guilty as soon as the final form of the indictment was filed. He makes the point you have no relevant previous convictions - and I accept that - and that you are remorseful and regretful for what you have done. I am sure that is correct and I am sure that your parents feel the same way. He submits that a community based sentence should be imposed.
[10] As you are aware from the sentencing which had to be adjourned a fortnight ago, there are some quite complicated jurisdictional questions which need to be navigated in order to decide whether a community-based sentence is open, whether it can be imposed and then of course whether it should. I am appreciative of the memoranda I have received from both counsel on the jurisdictional question and I have had assistance from the Judge’s clerks here. As a result of that, I have concluded that a community-based sentence can be imposed, but for the purpose of these remarks, I need to navigate my way through the labyrinth to get to that point.
[11] It is now clear in terms of the new s 44 of the Sentencing Act 2002 - which sets out the hierarchy of possible sentences from the most lenient to the most serious
- that Parliament regards sentences such as community work and community detention as serious matters and not as “soft” sentences. In order to open up the possibility of those sentences for somebody such as you who offended before the amendments to the statute came into force on 1 October last year, there has to be compliance with s 56 of the Sentencing Act 2002. That gives power to sentence somebody to community detention if, first, the Court would had have the power to sentence the offender to a community-based sentence if it were dealing with the offence immediately before that date. The Court had power to sentence people who were convicted of the matters to which you pleaded guilty to a community-based
sentence before 1 October last year. That would have been a very unlikely outcome, but there would have been the power. So that is satisfied. Secondly you must consent to the imposition of a community-based sentence. You have obviously complied with that. Thirdly, ss 69B and 69C must be satisfied.
[12] Section 69B gives power to sentence somebody to community detention if they have been convicted of an offence punishable by imprisonment - as of course you have - and certain other provisions in the section which are satisfied including specifying curfews and addresses.
[13] Section 69C also gives power to impose community detention if that would reduce the likelihood of further offending by restricting the offender’s movements during the specified periods. Of course, you have been assessed as being at the low risk of re-offending and the whole purpose of community detention is to impose a punishment which will, amongst other things, restrict your movements.
[14] The sentence also has to be designed to achieve one or more of the purposes set out in s 7 of the Sentencing Act 2002. Those are the principles and purposes of sentencing which are set out in the Act. They include trying to instil a sense of accountability in you for the harm done to the community by disseminating methamphetamine, trying to promote a sense of responsibility in you - and that underpins any sentence I impose - denouncing the conduct in which you were involved of course, and trying to deter you and others similarly minded from offending in this way plus protecting the community. So those provisions are built into the sentence of community detention and they are all purposes which are relevant to the sentence to be imposed today.
[15] Amongst other things, I must be satisfied that the curfew address is suitable
- I have received a report on that - and that the occupants there were also aware of their obligations if a community-based sentence is imposed. A perusal of s 69E, the section which sets out the conditions of community detention and the booklet on community detention which the Probation Service has helpfully provided, makes very clear, as I said to Mr Borich, that these are not “soft” sentences.
[16] I do not know if you are aware of the story in Greek mythology of Tantalus? Probably not. Tantalus, for his crimes, was sentenced to be immersed in chin-high water with ripe grapes growing over his head. Every time he was thirsty and bent down to drink the water, it moved away from him. Every time he was hungry and reached up to pick the grapes, they moved out of his reach. Hence, this gave rise to our word “tantalise”.
[17] Home detention, community detention, and community work are really very much like that. You are living in your own environment but much of the pleasures of life are debarred from you and in my view, complying with the terms of a community-based sentence - not just for you, but for most people - is by no means a soft option. There must be continuing tantalisation to do the things that you would like to do – go to the pub, go out socially, those sorts of things. So they are not “soft” sentences.
[18] Against that, as Ms Petricevic rightly points out, the Misuse of Drugs Act
1975 against which you offended, says in s 6(4) that imprisonment should be the sentence for those who breach that Act. But the Act was passed in 1975 and we now have a much wider range of sentencing options than were available then. Thus there could well be a contradiction between that presumption and the obligation on sentencing Judges under the Sentencing Act 2002 to impose the least restrictive outcome for offenders.
[19] So all of that Mr Messenger leads me to the conclusion that I have power to impose a community-based sentence on you. The question really is whether that is that appropriate outcome. In that regard, I take into account first that this offending involves, as I said, the making available to the community of a drug which has become a scourge in our community – methamphetamine. It is because that is so serious that the Court of Appeal has said the starting point for somebody who offends that you did is somewhere between two and four years’ imprisonment and not a community-based sentence at all.
[20] Against that, your role was limited. You were obliging a school friend. You were foolish to get involved - and I am sure you now accept that – and, as I said,
I am obliged to impose the least restrictive outcome. You pleaded early, so you are entitled to a reduction in sentence for that. You have no previous convictions that are relevant to this matter at all. You are still a young man. You have been in steady employment for a long time. The references and testimonials show that you are highly regarded by your friends, family and others.
[21] Obviously there is need for there to be some consistency in the sentence to be imposed on you by contrast with those imposed on some of the others who were arrested as a result of Operation Harbour. The seriousness of the offending is measured by the fact that Mr Paterson, the major offender, is now serving a sentence of four years and three months’ imprisonment and a number of others have been sentenced to terms of imprisonment as well, not community-based sentences.
[22] The Probation Officer’s supplementary report is illuminating in advising on what is really involved in home detention, community detention and community work. I am assisted in reaching the view I do by the decision of my colleague, Harrison J in a case called R v Radick (HC HAM CRI.2007-075-295,6 May 2008)
[23] In the event - and I need to ask you to stand now, Mr Messenger, if you would - I have reached the view that the appropriate sentence would be to adopt the Probation Service’s recommendation. You are accordingly sentenced to 200 hours community work. With the suggested times that you will be required to be involved that is about six months’ worth, every Saturday. And you are also sentenced to community detention with the curfews as set out in the Probation Service report –
7.00pm to 6.00am, Sunday to Monday, Monday to Tuesday, Tuesday to Wednesday, Wednesday to Thursday and Thursday to Friday. I accept the Probation Service’s response that - apart from your obligation to community work - there will be no confinement over the weekend. That will give you some time at least for a little leisure and perhaps to reflect on what has happened.
[24] Please stand down.
[25] Perhaps I can also remark that Mr Messenger is fortunate to have his parental support.
Additional comments
[26] Sorry to bring you back so quickly, Mr Messenger, but amongst all those complexities and charting my way through the sentence I intended to impose, I overlooked two of the statutory requirements.
[27] The first is that the curfew address is to be 54 The Avenue, Albany. I observed after you left before that you had been fortunate to have the support of your parents right through this. You are also fortunate to have the support of your brother and your flatmate, because in a sense they are being sentenced as well. So that is the curfew address. The length of the sentence is to be 6 months’ which will roughly equate with the duration of the community work.
…………………………………
WILLIAMS J.
18 July 2008
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