R v Osborne HC Auckland CRI 2007-090-2

[2010] NZHC 1641

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-090-000002

THE QUEEN

v

JUSTIN JAMES OSBORNE

Appearances: N R Webby for Crown

G J S R Foley for Prisoner

Judgment:      26 August 2010 at 3:45 pm

SENTENCING NOTES OF COURTNEY J

Solicitors:           Meredith Connell, P O Box 2213, Shortland Street, Auckland 1140

Fax: [phone] – G Foley

Counsel:             G Foley, P O Box 105267, Auckland 1143

Fax: [phone]

R V OSBORNE HC AK CRI-2007-090-000002  26 August 2010

[1]      Justin James Osborne, you appear for sentence today having been found guilty on one count of possession of the Class A drug methamphetamine for supply, the maximum penalty for which is life imprisonment.  I acknowledge before I start my sentencing today the letter that I have received from you today and the letter from your mother, and I acknowledge the presence of your family in court today.  It is good to see that you have support which I believe will be important for you in future.

[2]      This offending that  I am sentencing  you in  respect of occurred on New Year’s Eve in 2006.  You attracted the attention of a police patrol car while driving erratically on West Coast Road, Glen Eden.  When stopped by the police you were found to be in possession of 6.5 grams of powder that contained methamphetamine, electronic scales, $3901 in cash and two butane burners.   You maintained to the police, and still do, that the contents of the bag containing the methamphetamine was not yours.  That explanation was plainly rejected by the jury.

[3]      In sentencing in cases such as this the main objective is denunciation and deterrence and holding the offender accountable for the harm done to the community through the offending.[1]    In achieving these objectives I am required to follow the principles set out in the Sentencing Act 2002.  In particular the type of offence and the need for consistency between this and other cases.

[1] s 7(1)(a), (e) and (f) Sentencing Act 2002

[4]      Cases involving methamphetamine for supply are regarded very seriously by this Court because of the distressing extent and nature of the harm done in our community through the supply of this drug.   Those who offend in this way can expect a strong response from the Court.

[5]      This is a case in which you had possession of 6.5 grams of powder containing pure methamphetamine.  The Crown put the value at $6,500.  Your lawyer puts it at somewhere between $3,900 and $6,500.  On either view it was a substantial amount of methamphetamine.  In fixing a starting point for sentencing in this case I am able to refer to guidelines given by the Court of Appeal for sentencing in cases involving

the  manufacture,  importation  and  supply  of  methamphetamine.[2]      The  Court  of Appeal has indicated that for cases involving commercial quantities of methamphetamine being between five and 250 grams a starting point between three and nine years imprisonment is appropriate.  The guidelines proceed on the basis that the purity of methamphetamine sold as “P” is almost always over 60%.  There is no challenge by you today to the purity of the methamphetamine in your possession.

[2] R v Fatu [2006] 2 NZLR 72

[6]      I intend to proceed on the basis that your offending falls within the lower range of band 2 of the Court of Appeal decision to which I have just referred.  I note that following a previous conviction on this same charge which was quashed on appeal you were sentenced to three years imprisonment by Hansen J.[3]    This is, as your lawyer acknowledges, an appropriate starting point and I see no reason to differ from it.  However, there are two issues that I do need to consider further.

[3] HC Auckland CRI-2007-004-023328, 7 August 2008

[7]      The first is your previous history.  As at the date of your offending you had already a conviction for possession of methamphetamine and a conviction for possession of utensils and methamphetamine.   You were imprisoned on that latter charge.  In addition, you had more than 20 other convictions.  These were generally of a minor kind involving driving related offences, theft and receiving.   You have been undeterred by being disqualified from driving, by being fined, by being sentenced to terms intensive supervision and community work and even by being imprisoned.

[8]      When you were last sentenced on this charge by Hansen J the starting point for your offending was not increased to recognise  these previous convictions as it normally would be because of his acceptance that you had really made an effort to change your life.   I note to your credit that in the intervening time you have not acquired any further drug-related offences but you have continued to offend in other ways.   I would have to say you are just about at the point of being described as incorrigible in terms of this kind of offending.   However, I, like Hansen J, accept what you have said in your letter and what your mother has said in terms of your

genuineness in trying to leave drugs behind and your devotion to your son.  I do not intend to increase the three-year starting point to reflect your previous convictions.

[9]      You are now aged 32 years and although not currently in a relationship have four children aged between 2 and 11 years.  You have had a reasonable upbringing, you have had employment in the past, more recently you have had sole care of your young son and your mother’s letter speaks of your relationship and your care of him, very much to your credit.  I accept that you have made attempts and hopefully will continue to make further efforts to get away from the drug scene.  I accept that even though the Probation Service assess you as being at a high risk of re-offending.  But I genuinely hope and think that when you look at your children and you see the mess that drugs make of peoples’ lives you will be motivated for that reason to steer clear of drugs and keep your children safe in that respect.

[10]     Mr Foley has also submitted on your behalf that from the three-year period I should make a reduction to reflect the delay between your conviction in 2008 and your conviction in 2010, it having taken some two years to have this matter reheard. The reasons for the delay are nobody’s fault.  You did go to trial again last year and that was abandoned through unfortunate circumstances.

[11]     Mr Foley has referred me to two previous New Zealand cases[4]  in which reductions or changes to the sentences that would otherwise have been imposed were made to reflect delay.  However, I see significant differences between those cases. The delays were much longer and in one of them the curtailment on the offender’s liberty was much greater involving curfews and an electronic bracelet and much longer sentences were ultimately imposed.  So your case does not really come near the cases that Mr Foley has referred to me.

[4] R v Cornelius CA298/94, 9 February 1995; R v Williams HC Auckland CRI-2007-404-000006, 6

December 2007

[12]     Further, the terms of your bail imposed little limitation on your freedom and, in any event, you were on bail or under intensive supervision or even in prison for some of the last two years.  So it is impossible really to suggest that there was any practical effect on you of the delay in having this matter resolved.  Having said that I

accept that the delay is relatively long and probably deserves some kind of recognition but only at a very minor level.   I intend to make a deduction of two months to recognise the delay and therefore impose a final sentence of two years and ten months.

[13]     Mr Osborne, I implore you to serve your sentence and come out and live a law-abiding life for the sake of your children.  Stand down.

P Courtney J