R v Penno HC Whangarei CRI 2005-029-1269

[2007] NZHC 2046

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2005-029-001269

THE QUEEN

v

GEOFFREY EDWARD PENNO

Hearing:         24 August 2007

Counsel:         B M O’Connor for Crown

K C Bailey for Prisoner

Sentence imposed:     Offering to supply Methamphetamine (x1) Two years seven months imprisonment Possession of Methamphetamine for supply(x1) Two years seven months imprisonment Selling cannabis (x2)

One year’s imprisonment

All sentences to be served concurrently

Fines remitted of $1446

Judgment:      24 August 2007

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Whangarei
Counsel:

K C Bailey, Whangarei

R V PENNO HC WHA CRI 2005-029-001269  24 August 2007

Introduction

[1]      Geoffrey Edward Penno, you appear for sentence today having pleaded guilty to one charge of offering to supply the Class A controlled drug Methamphetamine, one charge of possession of Methamphetamine for supply and two charges of selling the Class C controlled drug cannabis.

[2]     In my view, the most serious charges are those of offering to supply Methamphetamine and possession of that drug for supply.   I will be using those offences as the lead charges for sentencing purposes.  To emphasise the seriousness of that offending, they both carry a maximum penalty of life imprisonment.

Personal circumstances

[3]      You are 43 years old.  You do have previous drug related convictions.  They are for cannabis related offending.  However, that was some time ago and, while I will need to take them into account, I intend to give those convictions little weight for sentencing purposes.

[4]      You will be entitled to some credit to reflect your acknowledgement of responsibility for this offending by entering guilty pleas on arraignment on the day of your trial, notwithstanding the lateness of the pleas.  Also there is some evidence that you are motivated to change your lifestyle on release from the inevitable prison sentence I will be required to impose today.

Summary of facts

[5]      On 18 November 2005 an undercover police officer visited your home in Kaitaia.   The officer requested an ounce of cannabis and two grams of Methamphetamine.   You indicated that you were able to supply drugs to him and arranged to meet him later in the day.

[6]      When the officer returned, you supplied him with an ounce of high quality seedless female cannabis in exchange for $350.   There was a discussion and you invited him to return the next day to get the Methamphetamine.  The next day you again told the officer that you had no Methamphetamine for supply but sold another ounce of cannabis for $350.

[7]      On 23 November 2005, a search warrant was executed at your home.  You were observed running from the property and attempting to discard what turned out to be 18 snap-lock bags of Methamphetamine.   The bags were analysed for their content .  They contained 0.61gms of Methamphetamine of 77% purity.

Crown submissions

[8]      The Crown  submitted  that  there were  elements  of  premeditation  in  your offending.   They submit too, that prior convictions represent aggravating features. Ms O’Connor, for the Crown, accepts that some, though minimal credit, ought to be given for the late guilty pleas.

[9]      The Crown submits that a sentencing guideline case of the Court of Appeal1, which I am bound to apply, is applicable to this offending, notwithstanding that it deals primarily with supply and these offences are for offer and possession for supply rather than supply itself.  They refer also to an earlier judgment2  I gave in which I characterised the type of circumstances in which an offer for supply can be considered.

[10]     Of the categories  I identified,  the  Crown  says  your offending should  be classified as the making of an offer which did not occur only because of Police intervention.  The Crown suggests that location of Methamphetamine on you when arrested is evidence of that.

1 R v Fatu [2006] 2 NZLR 72 (CA) at [34]

2 Wilson v Police (High Court Auckland, CRI 2003-404-377, 2 March 2004) at [28]

[11]     Ms O’Connor also submitted that parity of treatment with other offenders apprehended during Operation Maverick justifies a starting point of between three and three and a half years.

Submissions for prisoner

[12]     Mr Bailey submits that the starting point should be lower, around two to two and a half years imprisonment before taking account of aggravating and mitigating factors.   He also submits that the totality of the offending, including the cannabis sales, would be reflected by such an approach.

[13]     Mr Bailey accepts  that  there  are  aggravating factors relating to  previous convictions but seeks substantial credit for guilty pleas, noting that discharges on other charges were given at the same time for two serious offences on which the Crown offered no evidence.

Principles and purposes of sentencing

[14]     In sentencing you Mr Penno, I am obliged to hold you accountable for the harm done to the community by offending of this type.  I am required to denounce the  conduct  in  which  you  were  involved  and  to  deter  you  and  others  from committing the same or similar offences.   I have also to assist you in your rehabilitation and reintegration into the community.

[15]     I acknowledge that your pleas of guilty demonstrate an acknowledgement of the offending which you committed and of the harm to the community of it.

[16]     I  am  required  to  take  account  of  the  gravity  of  the  offending  and  the seriousness of the type of offence in issue.  It is very serious, as is indicated by the maximum penalty of life imprisonment for the two lead charges.

[17]     I am required to take account of the general desirability of consistency in sentencing yet must impose the least restrictive outcome appropriate in the circumstances.

Aggravating and mitigating factors

[18]     The only aggravating factor that falls outside those contained in the starting point are the prior convictions.  There are no aggravating circumstances relating to the offence itself.  The aggravating circumstances are personal to you.

[19]     In mitigation, I am satisfied that your guilty pleas should be given credit. There is the issue of remorse and rehabilitation but I am not prepared, given the current state of the information before me, to provide any additional credit for that.

Analysis

[20]     Mr Penno, you present as someone who has had difficulties with drugs for some time.  Even though you underwent a Salvation Army programme in 2005, you have continued to offend.

[21]     Your continued use of illicit substances has undoubtedly contributed to the offending for which you now appear for sentence.  You have been assessed both as a low risk of reoffending and having little motivation to change.   Those risk assessments appear inconsistent to me.  I will be guided primarily by the latter.

[22]  Taking the lead charges as offering to supply and possession of Methamphetamine for supply, I take a starting point for sentence of three years to reflect  the  quantity  offered  for  sale,  the  fact  that  you  had  Methamphetamine available for supply and the fact that it was likely that the offer would be consummated as a sale had there not been Police intervention at the relevant time.

[23]     In relation to the latter point, whether that is characterised as the sale not being completed by Police intervention or prevented through your inability to obtain the relevant product in time is really irrelevant.

[24]     I add a period of three months to reflect prior offending making a total starting point of three years three months.

[25]     From that, I deduct a credit of 20% for the guilty pleas, which I round to eight months.

[26]     That makes the end sentence, on the lead charges, as one of two years seven months imprisonment.

[27]     As it is preferable that you have a fresh start when you are released from prison, in light of your particular indications of attempts at rehabilitation, I make an order remitting your fines, which total $1446.  I do that because I do not want you to have any incentive to commit crimes on your release in order to pay Court ordered fines.

Result

[28]     The structure of the sentence imposed will be as follows:

a)        On  the  charge  of  offering  to  supply  Methamphetamine,  you  are sentenced to a term of two years seven months imprisonment.

b)On the charge of possession of Methamphetamine for supply, you are sentenced to a term of imprisonment of two years seven months.

c)        On each charge of sale of cannabis, you are sentenced to a term of imprisonment of one year.

All of those sentences will be served concurrently, so the effective term of imprisonment is one of two years seven months.

[29]     I am satisfied that the sentence imposed reflects the totality of the offending for which you pleaded guilty and also ensures appropriate parity of treatment with other offenders apprehended during Operation Maverick.

[30]     Mr Penno, your counsel has indicated a desire for you to rehabilitate.  Like many others whom I have seen this week, I hope you can do that, because if you do

not do that you risk being in jail for a good deal of the rest of your life if you continue to offend in this way.

[31]     Stand down.

P R Heath J