R v Neho HC Whangarei CRI 2007-029-428
[2007] NZHC 1892
•21 June 2007
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2007-029-428
CRI 2007-029-130
THE QUEEN
v
CHARLIE JOHN NEHO JANINE ANNE HERBERT
Hearing: 21 June 2007
Counsel: A M Dooney for Crown
G Anson for Mr Neho
R S Garbett for Ms Herbert
Judgment: 21 June 2007
SENTENCING NOTES OF RANDERSON J
Solicitors: Crown Solicitors, PO Box 146, Whangarei
Counsel: R S Garbett, PO Box 5006, Whangarei
G Anson, PO Box 248, Kerikeri
R V NEHO AND ANOR HC WHA CRI 2007-029-428 21 June 2007
[1] Mr Neho, you appear for sentence today on a series of drug related charges. I
will set out each charge and the maximum penalty in each case:
a) One count of manufacturing the class A controlled drug methamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act
1975 (the Act) for which the maximum penalty is life imprisonment.
b)One representative count of manufacturing the class A controlled drug heroin, contrary to s 6(1)(b) of the Act, for which the maximum penalty is life imprisonment.
c) One count of cultivating the class C controlled drug cannabis, contrary to s 9(1) of the Act, for which the maximum penalty on summary conviction is 2 years imprisonment and/or a fine not exceeding $2,000.
d)Two counts of possession of cannabis, contrary to s 7(1)(a) of the Act for which the maximum penalty is 3 months imprisonment and/or a fine not exceeding $500.
[2] You pleaded guilty to all of these charges in the District Court on 19 April
2007 and were remanded in custody to this Court for sentence.
[3] Ms Herbert, you appear for sentence today having pleaded guilty on 15
February 2007 to one representative count of manufacturing the class A controlled drug heroin. The maximum penalty for that offence is life imprisonment.
The facts
[4] The Police summary of facts (which is not in dispute) shows that the Police executed a search warrant at your address on 8 February 2007. Both of you were present along with your then five month old son.
[5] The search of the house revealed two healthy cannabis plants of approximately two feet in height, 50 cannabis seeds and a small number of cannabis leaves. Also found were two one-kilogram containers of caustic soda, some unused pH test strips, a small bottle of hydrochloric acid, an electrical hotplate, and a bottle containing iodine flakes. These items are said to relate to manufacturing of methamphetamine. As well a small bottle containing acetic anhydride (a precursor to heroin), a number of syringes both new and used, a 150 gram container of citric acid and a dessertspoon bearing heat damage and scrape marks was found. These items are said to relate to the making of heroin.
[6] When spoken to by the Police, you Mr Neho accepted that all the items located in the house were yours. You admitted you had manufactured heroin for approximately a year on a daily basis and methamphetamine within the last three months. Ms Herbert, you also admitted to having manufactured heroin on a daily basis over a two year period.
Pre-sentence report
[7] Mr Neho, the pre-sentence report shows that you are 37 years of age and unemployed. At the time of your offending you were living with Ms Herbert, your partner of six years and your baby son. Since your arrest, you, Ms Herbert and your son have been evicted from the home and at least at times you have been residing with your mother.
[8] Mr Neho, you have a longstanding drug problem. In 1986 you were dealt with by the Youth Court for possession of cannabis. In both 1988 and 1998 you were convicted of cultivation of cannabis and possession of cannabis for supply. Finally in 1995 you were convicted of manufacturing cannabis oil. You have not previously been sentence to imprisonment except on one occasion when the term was suspended. You have admitted to using cannabis for most of your life and more recently, heroin, having been introduced to it you say, by Ms Herbert who was an intravenous drug user when you met.
[9] To your credit, you have recognised that you have a drug addiction that requires intervention. Since being in custody you have withdrawn from opiates and are confident of not returning to hard drugs. You have indicated your willingness to undertake a residential treatment programme and stop using drugs, primarily for the sake of your son.
[10] You are assessed by the probation officer as having moderate insight into your offending but a term of imprisonment is considered appropriate given the serious nature of the offending.
[11] In respect of your admission of manufacturing methamphetamine, you told the probation officer you tried to manufacture methamphetamine on one occasion but it was unsuccessful.
[12] Ms Herbert, the probation service advises you failed to appear for a scheduled interview for the purposes of preparing a pre-sentence report. But, I have gleaned some information about you from Mr Neho’s pre-sentence report and a letter from Kaitaia Community Addiction Services. Your counsel has on your behalf waived the need for a pre-sentence report in relation to your sentencing today.
[13] You are 33 years of age. You have an opiate dependency. This is the first time you have been before the Court on a drug-related matter, your only previous conviction being burglary, for which you were dealt with in the District Court in
2003. I also acknowledge your voluntary attempts to seek assistance with your drug problem. I understand you have been receiving drug counselling and are seeking admission into a rehabilitation centre.
Crown submissions
[14] Mr Dooney for the Crown has adopted the manufacture of methamphetamine as the lead charge in your case Mr Neho. He submits, your offending falls within the second sentencing band of R v Fatu [2006] 2 NZLR 72 which attracts a starting point of between 4 and 11 years imprisonment. He has suggested that the starting point should be increased to take into account the totality of the offending including the
range of the drugs involved and the frequency with which heroin was manufactured. Mr Dooney submitted that your previous convictions were a further aggravating factor. He has accepted that a discount should be given for your guilty pleas. He also accepts that the making of heroin was solely for personal use in the case of each of you. Mr Dooney submitted in response to questions from the Court, that in your case a starting point in the range of 4-6 years should be adopted by the Court, from which there should be a reduction of 25% for a guilty plea.
[15] In your case Ms Herbert, Mr Dooney has accepted that you are effectively a first time offender and that you were manufacturing small quantities of heroin solely for personal use. By reference to High Court and Court of Appeal authorities, he has submitted that a starting point in your case should be nine months imprisonment from which there should be a 25% reduction for your guilty plea. He resisted any suggestion that a non-custodial sentence was appropriate in your case.
Defence submissions
[16] Mr Anson on your behalf Mr Neho has accepted that imprisonment is the only appropriate sentence in the circumstances but he submitted (in contrast to the Crown) that the manufacturing of heroin should be treated as the lead sentence. He has referred me to the authorities, notably R v Latta [1985] 2 NZLR 504, R v Taylor [1990] 1 NZLR 385 and R v Richards (1992) 9 CRNZ 580. He submits that your case is broadly comparable to Taylor where a sentence of two years imprisonment was imposed. However, he highlights the lack of any commerciality to your offending, the fact that both you and your partner were addicts and your early guilty pleas as worthy of mitigation.
[17] Your sister has provided a very supportive letter to the Court which I have read and considered. This indicates that you are fortunate to have the support of your family and rehabilitation programme facilitators who are all committed to assisting you in making positive changes in your life. This support will stand you in good stead during the time you will spend in custody and in the period after your release.
[18] For Ms Herbert, Mr Garbett has urged me to impose a non-custodial sentence. He has submitted that the small quantity of heroin involved combined with your drug dependency, lack of previous record and early guilty plea constitute special circumstances that justify the imposition of a community based sentence. Central to Mr Garbett’s submission was the fact that you have sole care of your infant son.
[19] Mr Garbett also drew to my attention the report submitted to the Court from the Northland District Health Board dated 30 April 2007. In that report certain treatment options were discussed including the possibility of some sort of residential rehabilitation programme. The report also commends you for your courage and your desire to become drug free and that is a factor to your credit.
[20] Mr Garbett submitted that if a non-custodial sentence were to be considered, then you could live with your mother and father at Ahipara and that a term of supervision with appropriate conditions with regard to drug rehabilitation could be imposed.
[21] If a term of imprisonment were imposed however, he seeks leave to apply for home detention and deferral of sentence.
Discussion
[22] In terms of sentencing, I am obliged to have regard to the purposes of sentencing under s 7 of the Sentencing Act 2002. These include, in the present case, accountability and responsibility for the offending, denunciation and deterrence, the protection of the community and your rehabilitation. I am also obliged to consider the principles of sentencing under s 8 of the Act. Relevant to both of you, is the gravity of the offending, the seriousness of the offences and consistency of sentencing. I am also obliged to take into account that the least restrictive outcome appropriate in the circumstances is to be imposed and, of course, I am to have regard to your particular circumstances and family situation.
[23] For you Mr Neho, the aggravating factors in terms of s 9 of the Act are the length of time over which this offending occurred, the diversity of drugs involved and your previous drug-related convictions. There are relatively few mitigating factors, but you are entitled to credit for your early guilty pleas.
[24] Mr Neho, sentencing in your case presents the Court with some difficulty. Ordinarily, the charge of manufacturing methamphetamine would be regarded as the more serious offence because of its strongly addictive quantities, the prevalence in the community of methamphetamine and the likelihood in many cases that some element of commercial dealing is involved. But in your case there is very little material available to enable the Court to assess the extent and duration of production of methamphetamine or whether there was any commercial element to it. No usable quantity of methamphetamine was found and no evidence has been placed before the Court as to the potential quantity or value of methamphetamine which could be made from the materials found. Indeed, there is no evidence that all the ingredients and equipment necessary to make methamphetamine were present or available to you. All there is, is your admission that you had made methamphetamine on one occasion within three months of the search and the fact that some materials and equipment were found at your address. There is nothing to suggest there was in this case a commercial element.
[25] On the other hand, you frankly admitted that you were addicted to heroin and had been manufacturing it for your own use on a daily basis over a 12 month period. In the very unusual circumstances of this case, I proposed to take the heroin charge as the lead offence since the methamphetamine charge seems to me to be appropriately treated as an incidental fact by comparison. It is properly seen as an aggravating factor in respect of the heroin charge and to be taken into account in the totality of the offending along with the cannabis offending.
[26] On the basis of the authorities identified by Mr Anson, I adopt a starting point of 18 months imprisonment in respect of the heroin charge to reflect the frequency and duration of the offending and add six months for your past drug-related offending. I add 12 months to that for the methamphetamine charge on the basis that a Fatu Band 2 approach is wholly inappropriate for the reasons already given in the
exceptional circumstances of this case. I add a further 6 months for the cannabis charges to arrive at a total of 3 ½ years before a discount of 25% for the only mitigating factor which is your guilty plea.
[27] The result is that you will be sentenced to two years and eight months imprisonment on the count of manufacturing heroin; 12 months on the count of manufacturing methamphetamine; six months on the charge of cultivating cannabis and one month on each of the two charges of possession of cannabis and cannabis seeds. All those sentences are to be served concurrently.
[28] I urge you to take advantage of any programmes for drug dependency which may be available to you while you are in prison or upon your release.
Ms Herbert
[29] I can take a much more lenient approach with you. You are facing a single charge of manufacturing heroin. You have no previous drug-related convictions and you have responsibilities towards a very young child. The key factor for you is to rid yourself of the addiction which is having such a corrosive effect on your life. I note too that Mr Anson in his submissions, has submitted that consistency of sentencing between your case and that of Mr Neho is not of great significance to Mr Neho given his acknowledgement that your responsibilities towards the child require a more lenient approach.
[30] I have considered carefully whether this is a case where the Court could in the special circumstances of it, impose a non-custodial sentence. I am not prepared to take that course in this case. There is a lack of material before the Court which would enable me to do so. In particular your parents are not here today and there is very limited material before the Court in relation to your suitability for a residential programme or whether any such programme is available to you.
[31] I also take into account that the offending is serious and that deterrence must be a predominant factor when sentencing in drug related cases. Despite the Crown’s submission I do not consider I could properly adopt a starting point which is as low
as that suggested by the Crown. I adopt a starting point in your case of 12 months imprisonment and I allow a discount of three months or around 25% for your guilty plea. The result is a sentence of nine months imprisonment.
[32] Mr Garbett submitted on your behalf this was a case where the Court should grant leave to apply for home detention and it was a case where the Court should defer commencement of your sentence. I am not persuaded that it would be appropriate to grant leave to apply for home detention given the uncertainties over the place where you might be detained on that basis and given the need in any event, to recognise the seriousness of your offending.
[33] I therefore decline leave to apply for home detention. The result is in your case that you will receive a sentence of nine months imprisonment on the charge of manufacturing heroin.
[34] Stand down please.
A P Randerson, J Chief High Court Judge
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