R v Russo HC Wellington CRI 2009-035-632
[2010] NZHC 1406
•11 August 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-035-632
THE QUEEN
v
IVAN LAURENCE RUSSO
Counsel: M S Anderson for Crown
J K W Blathwayt for Prisoner
Sentence: 11 August 2010
SENTENCING NOTES OF DOBSON J
[1] I have to sentence you this morning on the convictions I entered in accordance with the jury’s verdict at the conclusion of your trial on 1 July this year. Those convictions are for possession of a class A drug, namely methamphetamine, for the purposes of supply, and for possession of LSD, which is also a class A controlled drug.
[2] Your conviction for possession of methamphetamine for the purposes of supply is one that carries a maximum penalty under s 6(1)(f) of the Misuse of Drugs Act 1975 of life imprisonment. That maximum term is there because of the seriousness attributed by Parliament to crimes that involve the supply of class A drugs, of which methamphetamine is presently perceived as the most dangerous and
the most harmful. In setting that maximum penalty, Parliament is reflecting the
R V RUSSO HC WN CRI-2009-035-632 11 August 2010
concerns of New Zealand society. The maximum penalty on the lesser conviction for possession of LSD is six months’ imprisonment and a fine.
[3] As to the circumstances of your offending, on 2 April 2009 you had apparently been acting in an agitated or stressed way at the home of Ms Gleeson, your former partner, in Carterton. She had texted her sister without you knowing, and her sister contacted the Police, which resulted in the Police attending at that property. The Police searched you, the house and the car you had arrived in and found drugs and other items leading to the charges you then faced. Because of concerns at how you might react, one of the Police officers had a taser device turned on and trained on you. It was not necessary to activate the device against you, but whilst it was on, it took a video recording of whatever the device was pointed at, which for most of the time was your body. This meant that the jury and I were able to see the way the search of your clothing occurred. That produced some seven grams of methamphetamine, two tabs of LSD and cash. The Police also located what I am satisfied was a tick list recording drugs supplied. In your ex-partner’s bedroom, a backpack was found that contained a smaller pack with scales, $4,000 in cash and other drug paraphernalia. It also contained roughly a pound of cannabis.
[4] At your trial, the jury was unable to agree on a charge in relation to the possession of a quantity of cannabis, and I accordingly disregard that for sentencing purposes. This morning the Crown has made application under s 345 of the Crimes Act that that count, which was count 2 in the indictment, be deleted and at the end of this sentencing I will formally make that order.
[5] Now in sentencing you, I have to have regard to the purposes under s 7 of the
Sentencing Act 2002, and those include:
• holding you accountable for the harm done to the victims of your offending;
• promoting in you a sense of responsibility for what you have done wrong,
• an acknowledgement of the harm that your offending causes, and
• both denounce this criminal conduct and to deter you and others from carrying out similar crimes in the future.
[6] I must sentence you in a way that aids your rehabilitation and reintegration into society, and under the principles of sentencing, I must have regard to the gravity of the offending and your degree of culpability, the seriousness of this type of offending and the desirability for a measure of consistency.
[7] Both Mr Blathwayt, on your behalf, and Mr Anderson for the Crown have referred me to the Court of Appeal judgment in R v Fatu,[1] which provides guidelines for sentencing bands on convictions for the sale or supply of methamphetamine. There are four bands, the least serious involving offending with less than five grams, where starting points of between two and four years’ imprisonment are appropriate, up to band 4 for large-scale dealing where 500 grams or more of methamphetamine are involved and the range of starting points for sentences is between 10 years and life imprisonment.
[1] R v Fatu [2006] 2 NZLR 72.
[8] You should understand, Mr Russo, that an important factor in setting the starting point for a prison sentence is actually the amount of methamphetamine you are caught with. Here, the quantity of approximately seven grams places you at the bottom of band 2 of those defined in Fatu, which extends between five and 250 grams, and in respect of which the Court of Appeal suggested in that case starting points of between three and nine years’ imprisonment. Within that band, the Crown says a starting point of between four to four and a half years’ imprisonment is warranted. On the other hand, Mr Blathwayt urges that some allowance can be made for personal consumption that would reduce the quantity to less than five grams and therefore make a starting point between two and three years appropriate.
[9] Now here there was some evidence to infer that you are indeed are, or were at the time, a user of methamphetamine, and that tends to be confirmed by other information now available to me. However, that is not, of itself, enough, and given the form in which the drug was packaged, your denial at the time that you were associated with that particular methamphetamine, and the other items found, I am not
prepared to discount the quantity to reflect an amount that you may have consumed yourself. Indeed, the Police also found a small quantity of a commonly used cutting agent which suggests that you were in the business of making the product go as far as possible, to maximise its profits on re-sale.
[10] The jury’s failure to agree on the cannabis charge suggests a doubt about your connection with the backpack found in your ex-partner’s bedroom. Of course I put the cannabis to one side, but I am satisfied, having heard all the evidence myself, there was a sufficient link with the other drug paraphernalia found in that backpack to link it to you. The presence of the scales there and the tick list on you are indications of dealing activity, and I am satisfied that your offending is appropriately classified towards the bottom of band 2 of Fatu.
[11] In terms of comparables within band 2, Mr Blathwayt has relied on R v Hill[2] where there were 6.3 grams of methamphetamine in the possession of the convicted man and the Court of Appeal approved a starting point of three years and six months as within the range available to the Judge in terms of Fatu. Of course, Mr Blathwayt has raised Hill because, after deductions for mitigating factors in that case, a final length of sentence of two years and three months was settled upon, and the Court in that case considered it appropriate to substitute home detention. I will come back to that.
[2] R v Hill [2008] NZCA 41 at [18].
[12] Sadly, there is no shortage of comparable sentencing decisions to draw on in setting an appropriate starting point. I have drawn comparisons, for example, with R v Darrach where the convicted person was found with 5.7 grams of methamphetamine, and there were firearms and other weapons present, which were treated as an aggravating feature of the offending. The starting point there was three and a half years’ imprisonment.[3]
[3] R v Darrach HC Auckland CRI-2005-090-7193, 11 August 2006.
[13] In R v Day the amount was 8.4 grams and there was evidence of extensive supply and a relatively sophisticated operation with surveillance equipment and a
Police scanner. A starting point there was fixed at four years’ imprisonment.[4] Then in R v Hollingsworth, the amount was 13.5 grams but there was minimal element of commerciality which led to a starting point of three years.[5]
[4] R v Day HC Hamilton CRI-2005-019-4343, 31 March 2006.
[5] R v Hollingsworth HC Auckland CRI-2006-055-310, 26 April 2007.
[14] I cannot attempt any mathematical equivalence in drawing these comparisons because each case has its own weighting of factors. Here, you had $545 on you in the wallet and there was the $4,000 in the backpack. You claimed in evidence that that money had been paid to you by your family to paint your parents’ house and your mother gave evidence to similar effect. Even the $545 when you had some
$7,000 in outstanding fines and were on a benefit is a likely indication of a level of dealing. I have already noted the tick list. In addition, a scanner, capable of tuning in to Police telecommunications, and a firearm were found in your car. You have provided excuses for non-criminal uses for both the firearm and claimed that the scanner was not working, but in the course of the Crown evidence it was relatively quickly established that the scanner could be made to work and would be effective to monitor Police communications. Having regard to those aspects, I am satisfied that a starting point that reflects all features of the offending of three years and three months’ imprisonment is appropriate.
[15] Before settling on the final sentence for the most serious conviction, I need to consider how you are to be dealt with on the conviction for possession of LSD. The close connection between all the circumstances of those convictions makes a concurrent sentence, that is one you serve at the same time, the appropriate outcome. On that approach, I need to reflect on the totality of your offending as a factor in setting the final sentence on the most serious conviction, that is in relation to the methamphetamine. I am proposing a concurrent sentence of two months’ imprisonment on the LSD conviction, and consider that that ought to be reflected in a minor uplift in the total sentence imposed for the more serious conviction for possession of methamphetamine for supply. The uplift takes the total sentence to three years and four months’ imprisonment.
[16] According to the pre-sentence report, you do not acknowledge dealing activity and have no remorse for the serious offending you have been convicted of. You have a criminal record involving some 17 previous convictions. You have not had a drug conviction since August 2001, and indeed only relatively minor convictions since then. Your history before 2000 is certainly sprinkled with drug offending and it was at a sufficiently serious level for you to have already been sentenced to imprisonment for drug convictions. However, just looking at your record, the pattern since 2000 is more encouraging and I urge you to make sure that this is the only lapse in what appears to be an improving trend since 2001.
[17] On balance, and against the Crown’s urging that it is an appropriate aggravating factor, I consider it unnecessary to treat your previous convictions as requiring an addition to the length of the sentence. Of course, the extent of your previous convictions means that you cannot be given any credit for a good previous record.
[18] I can find no compelling mitigating circumstances that would reduce the sentence. I am mindful that you appear not to have got on well with the Probation Officer who wrote the pre-sentence report. He observes that you have a harmful pattern of drug use, and are at medium risk of further offending. A sentence of imprisonment was recommended.
[19] Accordingly, in the absence of mitigating factors, the starting point will also be the end sentence, namely imprisonment for three years and four months. That length of prison term precludes my considering home detention. I do acknowledge the matters that have been raised about the prospects for home detention, which is the sentence that Mr Blathwayt has argued on your behalf.
[20] In particular, Mr Blathwayt has presented the Court with letters from your ex-partner and from your mother, both of whom I acknowledge are here in Court today and in their letters express their support for you and their willingness to have you reside, in each case, with them. Your ex-partner reports that your four children are doing well, and that you have a strong relationship with them. I have had as
much regard as I can to those comments that she makes, and I hope they are a positive in terms of your rehabilitation.
[21] However, I am bound to say I would have been wary of directing a sentence of home detention to be served at the address where the offending occurred. Mr Blathwayt did cite the Court of Appeal decision in R v Paki as an example of the Court in some cases being prepared to allow home detention back to the site of offending,[6] but I would not have been persuaded that it was appropriate here. Paki involved cannabis dealing, there was a guilty plea and apparently genuine remorse. The circumstances in which the Police were called to your ex-partner’s address, your preparedness to be there when apparently affected by drugs of some sort, your
ex-partner’s concerns about her ability to control you as demonstrated in her texting her sister on that day, and the presence in the house of young children when you are not committed in terms of the pre-sentence report at least to taking any positive rehabilitative steps, would all be factors against granting home detention to that address.
[6] R v Paki CA165/05, 5 September 2005.
[22] I have also considered the matters raised by your mother in her shorter letter. Having observed the tone of her maternal support for you in the witness box, I would, with respect to your mother, also have had real reservations about her ability to exert the control likely to be necessary for an occupant assuming responsibilities for you if you were serving home detention at her address.
[23] Accordingly, yours is not a case in which I would have considered home detention, even had the appropriate length of sentence been a short one qualifying for that consideration.
[24] Mr Russo, that leaves me to consider the financial consequences of your convictions. Under s 6(4A) of the Misuse of Drugs Act, I have to consider whether to impose a fine in relation to the more serious of your convictions. I am satisfied it would not be appropriate to do so. Apart from the amounts found on you and in the backpack at your ex-partner’s address, there is no evidence of your having accumulated funds from which you could pay any significant fine.
[25] The Crown has also sought forfeiture of all the cash found in your possession, and that is to be dealt with under s 32 of the Misuse of Drugs Act. Before a forfeiture order can be made in respect of money found in the possession of a convicted person, the Court has to be satisfied that it was received by you in the course of, or consequent upon, the commission of the offence for which you are being sentenced, or that the cash was in your possession for the purposes of facilitating the commission of an offence against the same section. That requirement is a relatively narrow one. Here, the jury’s inability to agree on the cannabis charge raises a question about whether the backpack in your ex-partner’s bedroom was in your possession, in the sense contemplated by the section. You had an explanation for the cash found in the backpack, which suggested it was yours but paid to you by members of your family for legitimate purposes. Because of that, and because of my view of all of the evidence in the case, I am satisfied that the cash was in your possession.
[26] However, I am not satisfied that the evidence in the case established the next necessary proposition, namely that the $4,000 was in your possession as a consequence of the commission of the offence, or for the purpose of facilitating a similar offence in the future. I have to be satisfied by the Crown of this element on the balance of probabilities. In the absence of other evidence attributing drug dealing activities as the reason for accumulation of that money, and in the presence of your own evidence and that of your mother as to an alternative explanation for the money, I consider the Crown is unable to discharge that civil standard of proof.
[27] I acknowledge that the issue has not been particularly thoroughly argued. There was a one line reference to the application in submissions for the Crown, and Mr Blathwayt had not received those before being required to despatch his own memorandum to the Court. This morning Mr Blathwayt has submitted that if serious consideration was to be given to an order for forfeiture of the $4,000, he would seek an adjournment in an endeavour to provide the Court with further evidence about its non-criminal sources.
[28] But even although the matter has been dealt with relatively cursorily, I am satisfied that it has been sufficiently addressed, and that the Crown cannot make out
the elements required for a forfeiture order in respect of the $4,000. I am influenced in this by the tidy form in which the money was packaged, its regular sorting into relatively new notes in uniform denominations, which even Mr Anderson was inclined to acknowledge is inconsistent with it being the proceeds of previous drug deals, which leaves the prospect that it was a float for the commission of further offences. When viewed in that light against your family’s claim that it was an advance on work to be done for them, the Crown is unable to discharge the onus of establishing a connection with crime.
[29] The $545 found on your person falls on the other side of the line. It was found in close proximity to the methamphetamine packaged for re-sale, and appears to be of an amount that is consistent with small-scale dealing. You did not offer any credible explanation as to the sources of that money, and as I have noted before, given the extent of your indebtedness for fines (apart from any other indebtedness, and the pre-sentence report refers to substantial debts for drugs) and your status as a beneficiary, I am satisfied that the Crown has established that that amount was on your person as a consequence of the offending.
[30] Accordingly, as to the financial consequences, I do not impose a fine, but do impose an order for the forfeiture of the $545.
[31] I also order destruction of the drugs that were found and drug paraphernalia seized in the course of the search of you, your ex-partner’s property and your car, with the exception of the old coins that you referred to as having been your father’s in your evidence at trial.
[32] Mr Russo, in summary, on the more serious conviction of possession of methamphetamine for supply, I now sentence you to a term of imprisonment of three years and four months. On the lesser conviction of possession of LSD, you are sentenced to a concurrent term of two months’ imprisonment.
[33] I grant the Crown application to amend the indictment to delete count 2 under s 345 of the Crimes Act.
[34] You may stand down.
Dobson J
Solicitors:
Crown Solicitor, Wellington for Crown
WCM Legal, Carterton for Prisoner
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