R v N HC Wellington CRI 2003 091 6431
[2005] NZHC 29
•9 September 2005
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2003 091 6431
CRI 2003 091 6897
CRI 2004 091 300
THE QUEEN
v
N
Appearances: N L Stone for the Crown
P H Surridge for the Prisoner
Judgment: 9 September 2005
SENTENCE OF WILD J
[1] You appear for sentence on 20 charges. There is one charge of possession of the Class A drug methamphetamine for supply, eight charges of burglary, one charge of attempted burglary, four charges of theft, three charges of receiving (I have already sentenced you on one receiving charge, you will recall), one charge of possession of cannabis and one charge of breach of supervision (arising from your being dismissed from the Kahunui programme at Opotiki on 7 July).
[2] The maximum penalty for the possession for supply charge is life imprisonment, for the burglary charges 10 years imprisonment and for each of the receiving and theft charges 7 years imprisonment. The possession of cannabis
charge carries a three year maximum sentence.
R V N HC WN CRI 2003 091 6431 9 September 2005
[3] You went on two burglary sprees. The first started in about October 2002 and ended around August 2003. It included burglaries from private homes and commercial premises and the possession for supply offence. The Police found you asleep behind the wheel of your car, in possession of the methamphetamine and of glass pipes for smoking it.
[4] The second spate of offences occurred between December 2003 and February
2004. Again, it involved burglaries from private residences, houses as well as garages. There were also burglaries from commercial premises and thefts from building sites and motor vehicles. Most of the receiving charges and possession of cannabis leaf charge were in this second spate.
[5] The several victim impact reports express considerable anger and shock at houses broken into, rooms – particularly bedrooms – trashed and valuable and personal possessions stolen.
[6] It is clear that all this offending was driven by your addiction to methamphetamine, ‘P’ as it is commonly called.
[7] You sold the property you stole or received in order to raise money to buy methamphetamine, or in some instances you gave that property to the person who supplied you with ‘P’ in reduction of what you owed for methamphetamine supplied to you.
[8] By the time of the second spate of offending, you claim to have been “hooked” on ‘P’, and substantially in debt to the “heavies” who were supplying you with P.
[9] Some of the charges were laid in August 2003, and the remainder of them in February 2004. You were granted bail on 2 September 2003, and that bail continued until 10 February 2004.
[10] I turn now to the drug offence. You were found in possession of 13 “point”
bags of methamphetamine, each containing approximately .1 of a gram of ‘P’. That
is a total of about 1.3 gram of ‘P’. Each point bag had a street value of between $80-
$100.
[11] You do not accept that you were dealing in methamphetamine, but you do accept that you were supplying it to your friends and associates in that you shared the methamphetamine you had with them. I am in little doubt that you were dealing in ‘P’ – street dealing.
[12] I need to recount the now quite lengthy history in this Court’s sentencing of you.
[13] You originally appeared for sentence on 29 July 2004. Sentencing was adjourned until 6 August and then to 27 August, while the organisation Challenge
2000 attempted to find you a place in a drug and alcohol rehabilitation programme. Challenge found you a place in the programme run by Moana House in Dunedin. On
27 August, under s25 of the Sentencing Act, I adjourned sentencing you initially for six months and released you on bail on terms permitting you to attend the Moana House programme. Subsequently, it became clear that funding for that programme would not be available unless you were a sentenced prisoner. For that reason, on 1
October, I sentenced you to 18 months supervision on one of the receiving charges so that funding could be secured.
[14] On 17 November 2004 you left the Moana House programme. You felt that you could not continue with it and you surrendered yourself into the custody of your probation officer in Dunedin.
[15] You were held in custody, with various appearances and adjournments, until
8 April this year, when you again appeared before me for sentence. By that date, Challenge 2000 had again managed to arrange a place for you on a drug and rehabilitation programme, this time the one operated by Kahunui Trust in Opotiki. Accordingly, I cancelled the earlier sentence of supervision and substituted a fresh sentence of 2 years supervision on the same receiving charge.
[16] Unfortunately, on 7 July, less than three months after you embarked on the Kahunui programme, you were asked to leave because of your inappropriate behaviour towards females on the programme.
[17] Reporting to me for sentencing purposes in July last year, the probation officer pointed out that every available sentence has been imposed on you. He described your response to all of them as “generally poor” with you re-offending during most of your non-custodial sentences.
[18] Significantly, in the light of subsequent events, the probation officer reported that you had said “enough is enough”, and indicated an intention to seek counselling in order to rehabilitate yourself. The probation officer assessed you as moderately motivated to change, that motivation hampered by your track record of breaking the law and not complying with sentences imposed on you. Imprisonment was recommended.
[19] The up-dated probation report provided to me on 4 April this year, again for sentencing, records that you were very happy to have been given the opportunity to attend Moana House, because a respected Maori facilitator called Mr Pakarangi Matakingi was to be involved. Unfortunately, Mr Matakingi fell ill and died around the time you arrived at Moana House. The probation officer records that you found it difficult to engage in parts of the programme because Mr Matakingi was not involved. You told the probation officer that you took a great deal from the programme and considered “a seed had been planted” whetting your appetite for further rehabilitation.
[20] The probation officer noted that case notes recorded by your supervising probation officer in Dunedin painted a rather different picture. Those notes recorded that the Moana House staff were not impressed with your performance on the programme. They note that you maintained “devious” behaviours throughout the time you were there, and were persistently defensive and argumentative. By 2
November 2004 you were recorded as having made no changes to your behaviour and being “on the verge of being kicked out of the programme”. That up-dating probation report again recommended imprisonment.
[21] The comments in that probation report about the assessment by Moana House of you are accurate, if not charitable. The report I received from Moana House described you as “an extremely negative influence on the programme”. It categorised you as constantly devious and dishonest and as always blaming others. The programme director noted that when he farewelled you from Moana House he suggested to you that you not abuse any tikanga Maori rehabilitation programme that you were able to enter in the future.
[22] Well, Mr N , I gave you an opportunity to complete just such a programme. I will read the concluding remarks of Kahunui’s report to me of 4
August:
As suggested in this report [ ] is very manipulative and certainly in denial of his controlling behaviour towards others who were less capable than he. [ ] was with us for a number of months and in terms of his thinking there was little if any change in spite of the intense counselling he received from all the staff.
[ ] is an intelligent, confident person who always took pride in his appearance. He has excellent work ethics and is a skilful sportsman. He was willing to give anything a go and would never shirk any extra duties.
All of these things combined together are the making of a good role model in the community, but until [ ] takes a good look at some of his core beliefs that he operates under, he will never be able to let this side of him develop any further.
[23] True to the observations in the Moana House report that you consistently blamed others, I note that you have recently, to Dr Hopman, been critical of both the Moana House and Kahunui Trust programmes, describing the latter as “poor”.
[24] In sentencing you this morning, I intend to focus upon the burglaries and the possession of methamphetamine for supply. In respect of both types of offending, deterrence and protection of the public must be my primary sentencing goals. I deal first with the burglaries.
[25] I am prepared to regard you as the sort of “spree burglar” described by the Full High Court in its judgment in Senior v Police (2000) 18 CRNZ 340. The Court described a spree burglar as “one who appears for sentence on a large number of burglaries all committed within a short space of time and who usually will have
admitted at interview a number of burglaries which the Police, without those admissions, would have been unable to solve.”
[26] That description is somewhat generous in your case. Crown counsel, in his original submissions to me, informed me that two detectives were in charge of your case. You were uncooperative with one of those detectives, during the period when you were still affected by P. The burglaries investigated during that period were solved, not with your assistance, but as a result of the Police recovering stolen property from various places they searched. Once the effects of P had worn off, you became cooperative and assisted the Police, this time the second detective who was involved in your case.
[27] In my view Senior itself, and the cases referred to in it, indicate that the appropriate starting point for me in sentencing you on the burglary charges is 7 years imprisonment. Those other cases are R v Grant (1992) 8 CRNZ 483 (CA); R v Wickliffe 20/3/96, CA387/95; Casey v Police 12/2/97, Gallen J, HC Napier AP8/96; Brian v Police 6/8/97, Fraser J, HC Christchurch AP170/97; Roberts v Police
19/1/99, Hammond J, HC Hamilton AP145/98; Marsh v Police 18/8/99, Chisholm J, HC Dunedin AP29/99 and White v Police 9/11/99, Fisher J, HC Auckland A170/99.
[28] I agree with you, Mr Surridge, that R v Andrian (1996) 13 CRNZ 449, referred to by the Crown, is a different and more serious case, because it involved well organised, professionally executed burglaries of some $250,000 worth of property by a man who did not cooperate with the Police in the way described in Senior.
[29] In terms of sentences imposed since Senior, I have looked at those considered by the Court of Appeal in R v Lowe CA62/05 4.7.05 and R v Bolt CA236/04 4.10.04. In both start points of 8 years were considered appropriate and end sentences of 6 years either substituted or upheld. In both the offending was repeat burglaries and other dishonesty comparable to that for which I am sentencing you this morning.
[30] It is appropriate, in sentencing you on the burglary charges, that I select what
I regard as the most serious burglary and impose the burglary sentence on that charge
alone. I select CRN 5383. Briefly, at about 3 a.m. on 1 February last year, you gained entry through a toilet window into the residential home situated at [address] in Tawa. You took jewellery, watches, a cellphone, cash, a digital camera and a wallet which contained miscellaneous personal items. The occupants were at home asleep in a bedroom. You eventually disturbed them and made off.
[31] This was one of the burglaries where the Police were able to recover some of what you took: they found some foreign currency at your home and one of the watches you took was in your vehicle when they arrested you.
[32] I have fixed my 7 year sentencing start point for burglary taking into account the following:
a) The history of your burglaries and other dishonest offending to which
I have referred. You were last convicted in June 2000.
b)The fact that these offences were committed while you were on parole, having been released from prison where you had been serving the sentence of 3½ years imprisonment imposed on you on 2 April
2001 for wounding with intent to cause GBH.
c) The fact that a number of these offences involved breaking into private homes and into the garages attached to them, and that some of the property you took was of sentimental value to its owners. For example you took a Rolex watch which had been a 21st birthday present and had a value of about $10,000. Fortunately, that was another item which was recovered from you. As I have mentioned in the burglary I have selected, the occupants were at home when you broke in.
d)You stole about $80,000 of property, much of which has not been recovered, no doubt because you sold it to buy or pay for methamphetamine.
e) You are not in a position to make anything like full reparation for what you stole.
[33] I turn back now to the drug offence. I regard this as low level street dealing, falling into the lowest of the three categories identified by the Court of Appeal in R v Conway CA275/04 23.3.05, following from its decision a short while earlier in R v Arthur CA382/04 17.3.05.
[34] You heard me this morning say to your counsel that I regard methamphetamine as the current scourge of this country. Early last year Williams J referred to its “deeply pernicious and addictive qualities”. You are another of its statistics. You thought that you were dealing in ‘P’, but as you I hope now realise, it dealt to you. Amongst sentences which I have looked at in terms of the methamphetamine sentence are the following:
ƒ Conway v R CA275/04 23.3.05. Guilty plea to possession of methamphetamine for supply. Three points involved. Previous drug convictions. Three year start point considered appropriate. End sentence of 2½ years upheld.
ƒ R v Skeens HC Auckland, Rodney Hansen J, CRI 2005 090 001929 20.5.05.
Guilty pleas to charges of possession of methamphetamine for supply and supply of methamphetamine. Two point bags sold but S in possession of further methamphetamine – a total of .27 grams. Previous drug conviction. 2½ start point reduced to 1½ years.
ƒ R v Radford HC Whangarei, Harrison J, CRI 2004 088 002629 26.11.04. A plea of guilty to a charge of possession of methamphetamine for supply. Four point bags. Four year start point reduced to 2 years 9 months to reflect guilty plea.
ƒ R v Meldon HC Auckland, Cooper J, CRI 2005 404 000109, 22.4.05. Possession of methamphetamine for supply. Eight point bags, 3½ year start point adopted, reduced to 2½ years to reflect guilty plea following depositions and cooperation with Police.
ƒ R v Gill CRI 2003 069 3880 HC Rotorua, Harrison J, 5.4.04.
ƒ R v Stewart CRI 2003 019 19303 Randerson J, HC Hamilton, 10.2.04.
Both involved small amounts of P, about $200 worth in Stewart and $1,200 worth in Gill. From a starting point of 3-4 years in Stewart, a sentence of 3 years was imposed. In Gill the starting point was 3 years and the sentence 2 years.
[35] I adopt a 3½ year start point on the methamphetamine charge.
[36] I do not accept Mr Surridge’s point – advanced with more force on earlier occasions than this morning - that, because you committed the burglaries to fund your addiction to ‘P’, the offending should be treated as of the same nature. Committing a burglary and possessing a Class A drug for supply are distinctly different types of offences.
[37] I look now to see whether there is anything relating to you as the offender, or anything in your offending, warranting an increase or reduction in those start points. At the outset I should comment that in sentencing you, at least in relation to the methamphetamine charge, your personal circumstances count for little. The Court of Appeal has made that clear on many occasions.
[38] As Mr Surridge pointed out, you will be 36 years old later this month. You have two children aged 11 and 9. According to the Crown, you have 114 previous convictions, the first of them back in the Youth Court in 1984, when you must have been only about 13. The convictions range across dishonesty, firearms, driving offences, violent offending, drug offending and breaches of community service and periodic detention. Amongst them are 22 convictions for burglary (for some of which you were sentenced as long ago as 1988 to 1 year 9 months imprisonment), one for aggravated robbery (for which you were sentenced to 2½ years imprisonment in April 1991) and one for wounding with intent to do grievous bodily harm (a 3½ year sentence of imprisonment imposed for that in April 2001). Your first drugs conviction was in February 1995 for dealing in Class B and C drugs. You were
sentenced to periodic detention. As far as I can see, you have not been imprisoned previously for drugs offending.
[39] I have already referred to your comment in July last year to the probation officer that you had decided that “enough is enough” and wanted to try and get your life back on the rails. I gave you two successive opportunities to do that and we know the outcomes. I reiterate, true to your form, in both cases you blamed your failure to complete the programmes on the programmes themselves, rather than on your own attitude and conduct.
[40] The start points of 7 years imprisonment for the lead burglary and 3½ years imprisonment for the methamphetamine offence add to 10½ years imprisonment.
[41] I consider that the appropriate effective sentence of imprisonment to reflect the totality of all the 20 offences for which I am sentencing you this morning is 5½ years imprisonment. The very substantial reduction from 10½ to 5½ years is explained by four things, which in culmination are peculiar to your case. First and foremost, your guilty pleas to all the charges. The second is that I accept that, as Mr Surridge termed it, you have been “under virtual house arrest” since July last year, while you have undergone the programmes at Moana House and then at Kahunui. The third point is your paying over, or making over, to the Police at the time of your arrest, $2,520 in cash (money which is, I am informed, still sitting in an account), and your red Ford Telstar car registration number XU 1065. I am informed that your intention was that the money and the proceeds of the car would go to charity. And fourthly, the sentence of reparation that I intend imposing on you. Those are the four reasons for the substantial and quite unusual reduction from the 10½ year total start point to the 5½ year total effective sentence of imprisonment I intend imposing.
[42] In order to achieve that total effective sentence, on the burglary charge CRN
5383 I sentence you to 3 years imprisonment. On each of the other eight burglary charges, except CRN 5377, I sentence you to 2 years imprisonment. Those 2 year terms are concurrent with the 3 year term imposed on charge CRN 5383.
[43] On the burglary charge CRN 5377, I sentence you to reparation. You are to make reparation in the lump sum of $5,250 by 16 September 2005, that sum to be paid to the High Court Registry here at Wellington. (As an aside to counsel, I have indicated that in conjunction with counsel I will make an order detailing the sums in which that money is to be paid to the victims of the burglary offences. I am aware also, Mr Stone, that part of that money is in an account somewhere in the Police organisation, so it will have to be got from the Police to the High Court.)
[44] On the possession for supply of methamphetamine CRN 3091017967 I
sentence you to 2½ years imprisonment.
[45] The 3 year term on charge CRN 5383 and the 2½ year term on CRN
3091017967 (the methamphetamine charge) are cumulative, in other words the one is on top of the other. The total effective term of imprisonment is thus 5½ years imprisonment.
[46] On each of the four theft charges, and the remaining receiving charges, on the one possession of cannabis plant charge, and on the breach of supervision charge, you are discharged without further penalty.
[47] Pursuant to s54(3)(c) of the Sentencing Act, I cancel the sentence of 2 years supervision I sentenced you to on 8 April 2005 on that receiving charge. On that charge also, you are discharged without further penalty.
[48] Pursuant to s124 of the Sentencing Act, I disqualify you from holding or obtaining a drivers licence for a period of 2 years commencing on the date on which you are released from prison.
[49] Pursuant to s128 of the Sentencing Act, and without opposition from your counsel, I order that your motor vehicle, a red Ford Telstar Registration XU1065 is forfeit to the Crown.
[50] Mr N , as I have said, I think it is the aspects of your personality highlighted in the Moana House and the Kahunui reports that you now need to focus
on. I am pleased to hear that you appear to have beaten your drug habit, and I wish you well for the future. You can stand down.
Solicitors:
Crown Solicitor, Wellington for the Crown
Surridge & Co., Porirua for the Prisoner
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