R v Nuku HC WN CRI-2006-085-7804

[2008] NZHC 2364

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-085-7804

BETWEEN  THE QUEEN AND AKIMA NUKU

Counsel:         M Anderson for Crown

K Jefferies for Accused

Judgment:      30 May 2008

SENTENCE OF DOBSON J

[1]      Mr  Nuku,  you  appear  this  morning  for  sentencing  on  one  charge  of possession of Methamphetamine for the purposes of supply under ss 6(1)(f) and

6(2)(a) of the Misuse of Drugs Act 1975.   This is a conviction which carries a maximum penalty of life imprisonment.

[2]      As to the circumstances of the offending, in early November 2006 you were in the process of moving out of a residential property in Mount Cook in central Wellington.  Whilst you were not at the address, the Police executed a search warrant and found approximately 1.6 grams of Methamphetamine on your bed.   The Methamphetamine was split into one .5 gram bag, four .25 gram bags and two “point” bags which would typically would have contained about .1 of a gram of Methamphetamine.

[3]      When spoken to by the Police in January 2007, you admitted that the drugs the Police had located were yours.   You explained that you had been addicted to

Methamphetamine and that you had to use about .25 of a gram a day.  You further

R V NUKU HC WN CRI-2006-085-7804  30 May 2008

admitted selling three or four .25 gram bags a week to support your own habit. However, you also told the Police that you had turned your life around and that you were, by then, completely free of Methamphetamine.

[4]      The sentencing options that may be considered in your case have already been discussed when you sought a sentencing indication on 9 April this year.  At that time, having heard from both the Crown and from your own counsel, I gave an indication, which was in very qualified terms, indicating that if you were to plead guilty there were numerous factors, not then available to me, that could influence the outcome.

[5]      You may recall there were two Court of Appeal cases being referred to at that time.  The first, which is the guiding judgment for supply of Methamphetamine, is that in R v Fatu [2006] 2 NZLR 72. That case identified a series of bands of the relative seriousness of cases of supply of Methamphetamine, providing a range of sentences for each band. Your offending in this case would fall under the least serious band 1, for cases involving less than 5 grams of Methamphetamine, and where the starting range is between two and four years’ imprisonment. Within that band, your case is at the relatively less serious end given the small amount of the drug involved, and that the only apparent evidence of supply was your own admission that you dealt in a small way to support your habit. I consider this would lead to a starting point of around two years and six months’ imprisonment.

[6]      An aggravating factor, that is one likely to make the appropriate end sentence higher,  is  the  number  of  your  prior  convictions.     Those  convictions  include possession of Methamphetamine in July and December 2005, as well as July 2004. Your only conviction relating to drug dealing appears to have been as long ago as

1991 when you were convicted of possession of cannabis plant for supply.  Overall, your previous convictions justify an increase in the starting range which I would see taking it to, say, two years, nine months.

[7]      As to the mitigating factors that would reduce that sentence, an obvious one is your guilty plea.  A significant credit can be given for that, particularly where the guilty plea is offered at an early stage, consistently with a recognition of the wrong-

doing involved.   That is hardly your case – the plea came very close to the time allocated for your trial, and only after you had sought a sentencing indication from the Court.  Nonetheless, you are entitled to some reduction for the guilty plea.

[8]      More important is the commitment you have demonstrated to changing your ways, and in particular to rehabilitation getting you away from the addiction to Methamphetamine.  The second Court of Appeal decision that was referred to was the case of R v Hill [2008] NZCA 41. The offender in that case had made significant efforts at rehabilitation, had a high level of motivation to change, and had good prospects for successfully completing rehabilitation. In the particular facts there – and the case involved considerably more Methamphetamine, at 6.3 grams – the positive rehabilitation prospects were seen as justifying a substantial discount from a starting point of three years and six months down to two years and three months.

[9]      The pre-sentence report and submissions by your counsel justify a similar approach to the positive prospects for your rehabilitation.   It does appear that you have been drug free since around the time of your arrest in early 2007.  I am advised that you have been undergoing alcohol and drug counselling with CareNZ and that you have retained contact with the Salvation Army with whom you completed the Bridge  Programme  in  2005.    I  understand  that  you  also  completed  a  medium intensity rehabilitation programme whilst serving a previous prison sentence, and as a condition of your release you are regularly attending fortnightly maintenance sessions.

[10]     Part of the explanation for your being motivated in this regard appears to be a commitment to providing a positive family environment with a partner and a young child.  You are recorded as having made significant steps towards addressing your identified criminogenic behaviours, having the advantage of a strong social support structure, and a commitment to continuing with the improvement of your situation in life.

[11]     In all these circumstances, the positive prospects of rehabilitation clearly justify a reduction in sentence down to two years.  I do not arrive at that final term of imprisonment as what would be the appropriate one, in order to “get you inside the

gate” of qualifying for the alternative sentence of home detention.   I am satisfied, irrespective of home detention considerations, that that would be the appropriate length of a prison term.  In this regard, I am mindful that your offending occurred within the same time period as that in Hill, and in a more recent Court of Appeal decision in Ford [2008] NZCA 64. That latter case recognised that for offences at the time of this one, there was not actually a mandatory requirement that the prison term be two years or less to qualify for home detention, but that consistency should require that benchmark in any event. I respect that approach, which has been urged by the Crown to avoid a sentencing disparity between offences before and after the date of 1 September 2007.

[12]     I also have to acknowledge that s 6(4) of the Misuse of Drugs Act 1975 creates a presumption that a conviction like this one should carry a sentence of imprisonment.   That means that I have to identify factors in the particular circumstances of your offence, or you as an offender, that would justify a different sentence.

[13]     The viable alternative is home detention.  That is not to be seen as “a picnic”, and is not necessarily a soft option.   The attraction is that it affords the greatest opportunity for continuing your rehabilitation, and in the end I am satisfied that it is appropriate for that reason, just as the Court of Appeal confirmed its appropriateness in somewhat similar circumstances in the Hill case.

[14]   The provision in the Misuse of Drugs Act directing that sentences of imprisonment would usually be appropriate is there to reflect the seriousness with which Parliament and society treats all cases of dealing in Class A drugs – Methamphetamine in particular is a serious scourge affecting not only all those who take and become addicted to it, but also wider circles of family and friends harmed by  the  further  crime  and  the  dysfunction  that  it  causes.    Having  chosen  the alternative of home detention which maximises your prospects of rehabilitation, I will also recognise the ongoing requirement that every sentencing for this serious offence should signal the seriousness of it to deter others.  The way of reflecting that is to add a community based sentence of 100 hours community work.

[15]     I am accordingly sentencing you to a term of 12 months of home detention. As has been explained to you, that comes subject to certain specific and important conditions.  They are these:

a)       You are to travel directly from here to your home at 1/40 Quebec Street, Kingston, Wellington and await the arrival of the Probation Officer and the monitoring company;

b)        You are to attend drug and alcohol counselling as directed by the

Probation Officer;

c)       You are to attend criminogenic maintenance sessions as directed by the Probation Officer;

d)You  are  to  abstain  from  alcohol  and  non-prescribed  drugs  whilst subject to home detention; and

e)       You are to attend and complete any other counselling or programmes or treatment as directed by the Probation Officer.

[16]     In addition, you are sentenced to 100 hours of community work.

Dobson J

Solicitors:

Luke Cunningham & Clere, Wellington for Crown
Jefferies Raizis, Wellington for Accused