R v Persico
[2016] NZHC 2303
•27 September 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-085-3701 [2016] NZHC 2303
THE QUEEN
v
CLARKE JOHN PERSICO
Hearing: 27 September 2016 Counsel:
M Wong for Crown
S J Gill for DefendantIndication:
27 September 2016
SENTENCING NOTES OF CLIFFORD J
[1] Mr Persico, you appear for sentencing having pleaded guilty to:
(a) two representative charges of being in possession of methamphetamine for supply;1
(b) one representative charge of supplying methamphetamine;2
(c) one charge of conspiring to sell BZP;3 and as I understand it
(d)two charges each of possessing, offering to sell and selling methamphetamine.4
1 Misuse of Drugs Act 1975, s 6(1)(c) and (f).
2 Section 6(1)(c).
3 Section 6(2A)(c).
4 Section 6(1)(e) and (f).
R v CLARKE JOHN PERSICO [2016] NZHC 2303 [27 September 2016]
[2] Your offending came to light as a result of the police’s Operation Nebraska, which targeted methamphetamine, BZP and cannabis offending associated with a Mr Clint Helmbright.
[3] You pleaded guilty on the BZP charges you faced on 29 June 2015, at the commencement of the first Operation Nebraska trial. That trial was subsequently aborted. Along with Mr Helmbright and your other co-defendants, you faced a second trial which began on 20 June 2016. During that trial, you sought a sentencing indication on the methamphetamine charges. I provided that indication to you on
22 July 2016.
[4] I indicated a sentence of 12 months’ home detention. That indication was subject to a satisfactory home detention report, and a drug and rehabilitation assessment which confirmed that you had ceased to use unlawful drugs. You accepted that indication, and entered your guilty pleas to those methamphetamine charges.
[5] The sentencing indication I gave is binding on me unless information has become available to me after the indication was given which I am satisfied materially affects the basis on which that indication was given.
[6] I have been provided with a satisfactory home detention annex as regards the property you share with your partner and your child. I have also been provided with a satisfactory drug and rehabilitation assessment. I have not been provided with any other information that was not previously available to me and that would have been material to my sentencing indication. My sentencing indication is therefore binding on me and, as I have said, I will now sentence you in accordance with that indication.
[7] The factual basis upon which you entered your guilty pleas is as follows:
(a) During Operation Nebraska, the police intercepted and covertly observed text and telephone communications, and meetings, between you and Mr Helmbright. During those conversations, the supply of
methamphetamine and BZP was agreed, using code words. On 5 and
7 July 2013 Mr Helmbright supplied you with three and four grams of methamphetamine respectively. That is the methamphetamine that is subject to the charges of possession for supply. Between 24 July 2013 and 14 September 2013 Mr Helmbright supplied you with an unknown quantity of methamphetamine on four further occasions. Between 4 July 2013 and 24 October 2013 you on-sold methamphetamine you had obtained from Mr Helmbright through your own distribution network.
(b)On 12 September 2013 you met with Mr Helmbright. On that occasion Mr Helmbright supplied you with 100 BZP pills and you paid Mr Helmbright $1100 to service your debt for drugs previously supplied. You then on-sold the BZP pills through your own distribution network.
(c) On a number of subsequent occasions you obtained further BZP pills from Mr Helmbright, paid him money as your supplier and on-sold those pills through your own network.
[8] In order to determine the indicated sentence of 12 months’ home detention I first set what I considered to be the appropriate starting point. I then had regard to personal mitigating factors. Finally, I considered the significance of your guilty pleas.
[9] As regards the starting point, I noted first the presumption of imprisonment found in the Misuse of Drugs Act 1975.
[10] As regards your methamphetamine offending, the tariff case is called R v Fatu.5 A tariff case sets bands within which Judges generally sentence particular types of offending. The specific amount of methamphetamine here, seven grams, placed your methamphetamine offending in band 2 (which covers offending
involving 5 to 250 grams). Such offending attracts starting points of three to nine
5 R v Fatu [2006] 2 NZLR 72.
years’ imprisonment. I accepted that a material part of the methamphetamine you obtained was for your own use: you frankly acknowledged your use of methamphetamine to the police when your flat was searched during Operation Nebraska. I acknowledged the significance of the fact that your offending covered some months. The significance of that factor was, in my view, balanced by what I assessed to be the extent of your use of methamphetamine. I therefore placed your offending at the lower end of band 2, and considered that a starting point of three years’ imprisonment was appropriate.
[11] I set an uplift of six months for the BZP offending.
[12] That resulted in a starting point sentence of three years and six months’
imprisonment.
[13] I then assessed mitigating factors personal to you.
[14] I considered the successful rehabilitation you had achieved at that point to be of particular significance. You have now been on bail for these offences since being arrested in October 2013, some three years ago. You have during that time successfully participated in a rehabilitation programme. I accept that you have done so notwithstanding the one relapse that you honestly admitted to to the assessor. In
R v Hill the Court of Appeal recognised the significance of that factor.6 It
commented:7
In this type of case, we consider that a sentencing judge may properly give significant, even decisive, weight to the prospects for rehabilitation. This will be particularly so if the assessment that there are good prospects for rehabilitation is based not simply on conjecture or expressions of intent or hope, but on evidence which demonstrates that the offender has made a real commitment to change and is working towards that in specific and realistic ways.
[15] Your alcohol and drug assessment report advises that you first used methamphetamine at the age of 17. You used it intermittently thereafter. You were also a user of cannabis and BZP. At the age of 24 you became a heavy user of BZP.
That pattern of behaviour was brought to an end by your arrest.
6 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
7 At [39].
[16] As I have already acknowledged, you have, after testing and interview, received a satisfactory drug and rehabilitation assessment. Your report records that you voluntarily underwent drug screening and biochemical tests, including liver function tests. Those tests returned a negative result for all the types of drugs you were tested for, including cannabinoids, opiates and amphetamine type substances. The report advised that biochemical tests, whilst not definitive, can support a diagnosis of alcohol abuse. Your biochemical tests were, from that perspective, all within range.
[17] The report concluded:
There appear to be numerous risk factors leading to Mr [Persico’s] early involvement with drug use. These include inconsistent parenting, poor experience of schooling, association with peers who use drugs, to name but a few.
Protective factors (that is supportive factors) are [Mr Persico’s] mutually supportive relationship with [his partner] over the last three years. His apprenticeship and fulltime employment in a positive environment has encouraged him to make plans for the future, including saving for a home. He has taken on his new role as a father with enthusiasm and clearly wants to be a positive role model for his son. As well, his voluntary attendance at Narcotics Anonymous has provided him with support and positive reinforcement around his goal of abstinence from all mood altering substances. Mr [Persico] now has a good relationship with his mother and his former stepfather, whom he visits regularly and supports him with his terminal cancer diagnosis.
Providing Mr [Persico] uses the support he now has, his prognosis appears to be positive in terms of his substance use and further offending.
[18] I note that you have not only addressed your drug dependency in the way just described, but you have also successfully entered into an apprenticeship in your trade of plastering. And I note that you continued that employment whilst you were on trial, notwithstanding the fact that it required you to work in the early hours of the morning and you are to be commended for that as well. You have a very favourable reference from your current employer.
[19] You are in a permanent and stable relationship. Your partner has recently given birth to your child.
[20] Your are still helping with the care of your terminally ill step father as I
understand it.
[21] In Hill the Court of Appeal allowed a 35 per cent discount for unusual personal circumstances, including very clear remorse and rehabilitation. I determined that a similar discount was appropriate here, particularly on the very special combination of your personal circumstances.
[22] Finally, I took into account your guilty pleas. They cannot be said to be early, quite obviously. But in these specific circumstances the Crown accepted some discount was appropriate. The Crown’s suggestion was a mid-point discount for the guilty pleas of ten per cent. Mr Gill suggested a full discount for the BZP offending and 20 per cent for the methamphetamine. The Crown’s acceptance of a discount was based on the fact that you had, some time before the first trial, indicated you would plead guilty to the BZP offending. As regards the methamphetamine offending, the Crown acknowledged at the time of the sentencing indication that the case against you had changed recently at that time. A residue found in point bags at your flat had then only recently been tested: that test had confirmed the presence of methamphetamine. Up until that point, no methamphetamine had been found in your possession. There had, therefore, been a strengthening in the factual basis of the Crown’s case, which meant that some credit for the late guilty pleas on the methamphetamine could be given. But I concluded that the credit could not be any more than the 10 per cent the Crown accepted would be appropriate.
[23] On that basis I set an end point sentence of 24 months’ imprisonment.
[24] On that basis, home detention was open for consideration.
[25] As I have said, a home detention annex has been prepared. The proposed address is suitable. That is the address where you and your partner live together with your child.
[26] Your partner is aware of the restrictions of home detention, as you are now well yourself, and consents to your serving a sentence of home detention at your joint address.
[27] The alcohol and drug abuse test has confirmed your successful rehabilitation to date.
[28] On that basis, and as indicated, I sentence you to 12 months’ home detention subject to the usual conditions and to such further drug and alcohol rehabilitation programmes as your probation officer may consider appropriate.
[29] In doing that I commend you and your partner for the efforts you have put into your rehabilitation. I commend your commitment to your work hours during the trial. I congratulate you and your partner on the birth of your child. I wish your terminally ill father well. And I wish you well in what I hope will now be a drug-free and successful life.
[30] You may stand down.
“Clifford J”
Solicitors:
Crown Law, Wellington