R v Scott
[2016] NZHC 1151
•31 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-063-3363 [2016] NZHC 1151
THE QUEEN
v
MATHEW SCOTT
Hearing: 31 May 2016 Appearances:
B R Northwood for the Crown
J S Kovacevich for the DefendantSentence:
31 May 2016
SENTENCING NOTES OF MUIR J
Solicitors:
B R Northwood, MC, Auckland
J S Kovacevich, Barrister, Auckland
R v SCOTT [2016] NZHC 1151 [31 May 2016]
[1] Mr Scott, you appear before this Court today for sentencing having pleaded guilty to one charge of conspiracy to supply methamphetamine. That attracts a maximum period of imprisonment of 14 years. That lengthy period of imprisonment is a reflection of society’s condemnation of those who are involved with the methamphetamine trade, the human costs of which you will be all too well aware of yourself.
Facts
[2] You were involved, albeit peripherally, in an organised drug ring that operated between the North Shore of Auckland and Rotorua to supply methamphetamine and cannabis to members of the community. Your involvement was discovered as part of Operation Goa, a police investigation that began in July
2014.
[3] The police obtained surveillance warrants for Messrs Elias and George Gaitau and other associates from July to November 2014. Those warrants led to the discovery of a wide scale operation of methamphetamine production and supply. That operation resulted in 44 charges against eight defendants, including yourself.
[4] You attempted to source methamphetamine off Mr George Gaitau via text. On 5 November 2014, intercepted texts showed you asking for “half a big mac with lemonade” or half an ounce of methamphetamine which is about 14 grams. This was ostensibly for you to on-sell to an associate. Mr Gaitau gave you a price of $5,500 for that half ounce. The police were unable to establish whether the deal in fact took place and I must sentence you accordingly.
Purposes and principles of sentencing
[5] In any case involving serious drug offending the pre-eminent purposes are to hold you accountable, to denounce the conduct and to deter you and others from similar offending in the future. Rehabilitation and reintegration into society are, however, also relevant considerations in this case. In sentencing you today I take into account the gravity of the offending and the degree of your culpability, and that I must impose the least restrictive outcome that is appropriate.
Methodology of sentencing
[6] When deciding on an appropriate sentence I must, as your counsel will be well aware, first consider your offending in isolation, removed from any features which are personal to you. That leads to what we call a starting point for the sentence. Then, I must make any necessary adjustments for features that are personal to you. Finally, I must turn my mind to the appropriate level of discount for your guilty plea.
[7] In the very well known decision of R v Fatu the Court of Appeal established four sentencing bands (ranges of starting points) for methamphetamine supply as follows:1
(a) Band 1 – low level supply (less than five grams) – two to four years’
imprisonment.
(b) Band 2 – supplying commercial quantities (five grams to 250 grams)
– three to nine years’ imprisonment.
(c) Band 3 – supplying large commercial quantities (250 grams to 500 grams) – eight to 11 years’ imprisonment.
(d)Band 4 – supplying very large commercial quantities (500 grams or more) – ten years’ to life imprisonment.
[8] Determining what band your offending falls into requires me to consider any aggravating or mitigating factors, as identified by the Court of Appeal, that are applicable to your particular offending and to assess all the comparable cases. Your
role in the operation is also a relevant factor.2
1 R v Fatu [2006] 2 NZLR 72 (CA).
2 At [31].
Setting the starting point
Crown submissions
[9] The Crown submits that the quantity you conspired to supply was about 14 grams or a low level Band 2 Fatu offence. In its written submissions it submits a starting point of between three and four years of imprisonment. However, in submissions today Mr Northwood responsibly accepts that because the charge you face is a conspiracy one and that the offence committed was not complete in that sense, a discount from those indicated starting points is appropriate. I agree with that submission.
Defence submissions
[10] Your counsel highlights the lower culpability involved in conspiracy to supply, rather than supply. He submits that supply did not in your case take place and he then very comprehensively reviews your personal background and circumstances, your family connections, your remorse, your endeavours to free yourself of methamphetamine addiction and your contributions to the community prior to this offending.
Analysis
[11] I agree with your counsel’s submission that the charges relating to conspiracy to supply do warrant a different approach to that mandated by Fatu. Considered in the abstract, if you had been supplying 14 grams of methamphetamine you would be in Fatu Band 2, albeit very much at the lower end of that band. Had you supplied 14 grams I would have considered a starting point of around three years and three months’ imprisonment to be appropriate.
[12] To what extent the starting point is discounted for the fact that the charge related to a conspiracy, as opposed to supply, frequently depends on the stage to which matters have progressed.
[13] The Crown responsibly acknowledges in that context that there was some distance to go before a completed purchase took place. You made inquiries of Mr Gaitau. There was some discussion in terms of the quantity supplied, both up and down, and you were quoted a price of $5,500 for the half ounce. There were no meetings between yourself and Mr Gaitau.
[14] The Crown summarises the position on the basis that you were “not particularly close to conclusion”. I think that a fair assessment.
[15] I consider a starting point of two years and six months’ imprisonment represents an appropriate discount from what would otherwise be a starting point of three years and three months’ imprisonment to reflect the fact that no transaction in fact took place and the distance from concluded transaction that these facts demonstrate.
Aggravating and mitigating factors personal to the offender
[16] I come now to the aggravating and mitigating factors personal to you. There are no relevant previous convictions. You have, thus far, led a good life. You have held a responsible position in the Corrections Department, indeed you have been awarded for your service to that Department. You are described as an exemplary father.
[17] The pre-sentence report was particularly informative. It recounts that during your employment as a Corrections Officer a very significant event took place in your life, being the death by suicide of a particularly close friend in the Department. You were the last person to have seen her. In the result, you became consumed with feelings of guilt and found yourself unable to cope with life other than with the assistance of drugs. Thereafter started the inevitable spiral into addiction and criminality. The Parole Officer considered you were at medium risk of re-offending, at least until such time as you were able to rid yourself of your addiction but did say that you were highly motivated to comply with a community based sentence and indeed recommended one.
[18] I regard as relevant the fact that you have been in employment since the offending, that you have submitted to a number of random drug tests which show you to be currently clear of drug use, that you have completed a CADS “Getting Started” course, that you have skills as a builder, that you have an established family life and are obviously, from the testimonials I have seen, a loving, kind and competent parent.
[19] Tellingly, in the letter that you have provided to me this morning, you say that you were in fact pleased that you were arrested as it has provided the catalyst to get your life back on track.
[20] I accept the expressions of remorse identified in that letter as genuine.
[21] Cumulatively, your clean record to date, service to the community, prospects of rehabilitation and remorse allow me to make a discount of three months’ imprisonment from the two years and six months’ imprisonment I have indicated.
Guilty plea discount
[22] I come then to the subject of your guilty plea. This was made relatively late in the piece, indeed only a matter of some days before your intended trial.
[23] I agree with the Crown that in those circumstances I cannot allow the maximum discount which the Courts recognise at 25 per cent. One of your co- offenders who pleaded guilty somewhat earlier than you did, in February of this year, recently came before the Courts. That was Mr Young. He was allowed a discount of
15 per cent to reflect his guilty plea and I consider that to be likewise an appropriate discount for you.
Final sentence
[24] That brings your final sentence, before I consider the subject of home detention, to that of 23 months’ imprisonment. Being a sentence of less than two years’ imprisonment I am able to consider whether home detention is an appropriate sentence for you.
Home detention availability
[25] Section 15A of the Sentencing Act 2002 empowers the Court to impose a sentence of home detention where the purpose of the sentence cannot be achieved by any less restrictive sentence and where the sentence would otherwise be a short term of imprisonment – that is under two years. Section 80A confirms that home detention is an available sentence if the Court is satisfied that the proposed residence is suitable, the occupants understand and consent to the sentence of home detention, and that the offender understands and agrees to the conditions of that sentence. The proposed address has been assessed as suitable.
[26] Home detention is recognised as a sentence carrying a very considerable measure of denunciation and deterrence.3 It is to be treated as a real alternative to imprisonment4 as the authorities so establish.
[27] The pre-sentence report identifies you as being of low risk of harm and that you are suitable for a community based sentence. The report writer recommends a sentence of home detention.
[28] Taking into account many of your personal attributes which I have already alluded to in the context of mitigation, I consider that in this case a sentence of home detention is appropriate. I factor particularly in that calculation your rehabilitation prospects and your overall culpability, balancing, as I must, the need for denunciation and deterrence and the principle that I should impose the least restrictive outcome that is appropriate.
[29] The Sentencing Act also provides that I may, in combination with a sentence of home detention, impose a sentence of community work. A period of community work is in my view an appropriate way by which you can make amends to society in respect of your offending.
[30] Please stand Mr Scott.
3 R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R [2013] NZCA 340 at [30].
4 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
[31] On the charge of conspiring to supply methamphetamine I sentence you to eleven months of home detention and 100 hours of community work. You are to comply with the following special conditions:
(a) You are to travel to, and to reside at the agreed home detention address for the duration of the home detention sentence;
(b)You are not to communicate in any way or associate with any defendants named in the Crown Charge Notice who were involved with the current offence, without the prior written approval of a Probation Officer;
(c) You are to abstain from the possession and consumption of alcohol and illicit drugs for the duration of the sentence; and
(d)You are to attend and complete any assessment, programme or counselling if directed and to the satisfaction of the probation officer.
[32] I also impose a post-detention condition to attend and complete any assessment, programme or counselling if directed and to the satisfaction of the probation officer. That condition is in addition to the standard post-detention conditions provided for under the Sentencing Act which your counsel will explain to you.
[33] I add just one final comment Mr Scott. The sentence I have imposed recognises the significance that I place on your rehabilitation and the steps that you have already taken towards that and what I assess as your commitment to learn from this tragic mistake. Please do not squander that opportunity.
[34] Please also be mindful of the fact that anything less than strict adherence to the conditions of your home detention and the requirements of your community work orders can be expected to result in little sympathy from the Court.
[35] In respect of Charge 42 the Crown offers no evidence and I discharge you in relation to that charge under s 147 of the Criminal Procedure Act 2011.
[36] I wish you well in your recovery from your addiction and in your life moving forward.
[37] Please stand down Mr Scott.
Muir J
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