R v Sherriff HC NAP CRI 2008-020-002368
[2008] NZHC 2462
•31 July 2008
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2008-020-002368
THE QUEEN
v
PAUL WILLIAM SHERRIFF
Hearing: 31 July 2008
Appearances: J E Rielly for the Crown
A J Snell for the Prisoner
Judgment: 31 July 2008
SENTENCING NOTES OF ANDREWS J
Solicitors:
Elvidge & Partners, P O Box 609, Napier
Counsel:
A J S Snell, P O Box 101, Hastings 4201
R V SHERRIFF HC NAP CRI 2008-020-002368 31 July 2008
[1] Paul William Sheriff, you appear for sentencing today having pleaded guilty to charges under the Misuse of Drugs Act 1975. You are for sentencing on one charge of conspiring to supply methamphetamine and a representative charge of offering to supply methamphetamine. You will know that in each case the maximum penalty is 14 years imprisonment.
Relevant facts
[2] Your offending was disclosed to a Police surveillance operation known as “Operation Castaway” undertaken between 1 September and the 20 December 2007. As disclosed in the summary of facts, you conspired with Mr Wayne Hart to source methamphetamine with the intention of supplying it to others. It is recorded that at on at least one occasion you purchased a quarter ounce of methamphetamine on behalf of Mr Hart for on-supply, and intercepted communications reveal offers to supply methamphetamine to Mr Hart, one of 1 gram and one of 20 grams. I note that Mrs Rielly has confirmed this morning that the Police evidence goes only so far as to support a charge of offering to supply, not actual supply.
Sentencing process
[3] In the sentencing process I will first talk to you about the general law relating to sentencing and the principles that I have to apply. Then I decide what sentence is appropriate. That is a two step process.
[4] The first is to establish the starting point which is what would be the sentence imposed for the charges if you had gone through a trial in this Court and then been convicted. The second step is to take that starting point and determine the appropriate sentence for your offending, and for you. I have to consider whether there are any features of your offending that make it more (or less) serious – that is aggravating or mitigating factors – that would lead me to impose a sentence that is greater (or less) than the starting point. I also consider matters that relate to you
personally because they would also lead me to adjust your sentence either upwards or downwards.
[5] I have to take into account what the law sets out as the purposes of sentencing. I have to hold you accountable, to make you responsible for what you have done. I have to consider deterrence and protection of the community. I have to denounce your offending - which means to tell you, in as clear terms as I can, that your offending is not acceptable in New Zealand society. At the same time the purpose of sentencing is to help you with getting back into the community as a useful member of it.
[6] In any case involving methamphetamine there is also a need a protect the community from methamphetamine. The social cost to families and to the community that follows from the use of methamphetamine is destructive. It is devastating, and its effects are seen in the Courts every single day. You will have heard me say this earlier and no matter how many times I have to repeat it, it still remains true: methamphetamine is an appalling drug.
[7] There are also some general principles of sentencing that must be considered. I consider the gravity of your offending, including your own responsibility for it and the seriousness of your offending in comparison with other types of offences.
[8] It is generally desirable to maintain consistency in appropriate sentencing levels and I am directed to impose the least restrictive outcome that is appropriate in the circumstances.
[9] It is desirable to keep offenders in the community as far as that is practicable having regard to the safety of the community. However, the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing if that is appropriate in your case. For the offences to which you have pleaded guilty, the Misuse of Drugs Act provides a presumption that a sentence of imprisonment will be imposed.
Starting point
[10] As I turn to the starting point. In sentencing on methamphetamine charges, this Court is guided by the Court of Appeal’s decision in Fatu1. In that decision, the Court of Appeal set four levels (or bands) for sentencing on charges of supply and manufacture of methamphetamine. The bands depend on how much methamphetamine is involved. The lowest band applies where there is less than 5 grams involved, and the highest is 500 grams or more. The decision in Fatu
provides guidance for the starting points for sentencing for charges for conspiring to supply and offering to supply, although it has to be remembered that in Fatu the Court was dealing with a maximum penalty available of life imprisonment, which does not apply in your case.
[11] Mrs Rielly, on behalf of the Crown, and Mr Snell, on your behalf, are agreed that the first (or lowest) band applies and, as the Court of Appeal has said in Fatu, the appropriate starting point will be imprisonment for between two and four years.
[12] I have considered, to the extent that they are similar, sentences imposed in cases of similar circumstances. For offering to supply, it is the case of Edwards2 and Joseph3. There, the offers involved similar amounts of methamphetamine and the starting points were two and 2¼ years respectively.
[13] In relation to conspiracy, the starting points have ranged from two to three years. There is the case of Johnson4 where the starting point was two years in respect of eight sales of methamphetamine each of around 1 to 2 grams. The starting point was three years in the case of Lockhart-Blowdell5 where there were on-sales of a total of 5 grams of methamphetamine over a three month period. A starting point of between 2½ to three years was adopted in Brown6 in Auckland in 2007, for a low end participant in a continuing course of supply.
1 R v Fatu [2006] 2 NZLR 72
2 R v Edwards HC WHA CRI 2005-029-1304 13 June 2006, Potter J
3 R v Joseph HC GIS CRI 2005-016-145 1 March 2006, Potter J
4 R v Johnson HC WHA CRI 2006-088-1233 29 September 2006, Asher J
5 R v Lockart-Blundell HC ROT CI 2006-063-4690 11 March 2008, Cooper J
6 R v Brown HC AK CRI 2005-004-14291 21 March 2007, Stevens J
[14] In your case, I have concluded that the appropriate starting point is 2½ years imprisonment, which is in accordance with what has been submitted to me by Mrs Rielly and by Mr Snell.
Pre-sentence report
[15] I turn now to matters that relate more to you personally. You are now 30. You have a supportive relationship with your family but you had behavioural issues at school. Notwithstanding that, you stayed at school until 6th form. You have worked in a variety of areas: labouring, engineering, horticulture and agriculture, but none of them have appeared to be long-term positions. I understand that recently you have been on a sickness benefit because of back problems and you also have
problems with depression.
[16] It is recorded that you first experimented with cannabis at 14 and up until about 18 months ago you described your drug use as “occasionally smoking pot”.
[17] However, about then you found yourself mixed up with a group of friends and associates for whom methamphetamine, unfortunately, was the drug of choice. Your own use became almost daily and it is recorded you started borrowing money from the family to meet your bills. Your addiction and the need to fund it is said to have led to your involvement in the present offending. The drug screening assessment made by the Probation Service shows that you do indeed have a drug problem.
[18] You told the Probation Officer that your offending arose out of financial desperation and the need to feed your drug habit. You have acknowledged that your actions were stupid but you said that the consequences of getting caught were of little concern to you because everyone you were involved with was so blasé about methamphetamine. You now accept the consequences of your involvement but say you were not the big player.
[19] You told the Probation Officer that you have managed to stay drug free since your arrest last December and you are open to receiving professional help and
treatment for your addiction. You told the Probation Officer that you are motivated to make positive changes but the report does note that you have shown in previous community sentences that your level of motivation diminishes as time goes on. For that reason, you are assessed as being at a low to moderate risk of re-offending and that risk will increase unless you successfully address the factors that have contributed to your offending.
[20] Your list of previous convictions must be taken into account because you have previously been sentenced for drug offending. Against that are mitigating factors, including your early guilty plea and your full co-operation with the Police. You are entitled to credit for that.
Counsel’s submissions
[21] Mr Snell has provided me with a number of reference letters in which you are described as a likeable young man, reliable, and good hearted. You are fortunate that there are so many people who have such faith in you.
[22] Mr Snell also noted your medical difficulty. In your own letter that I was given this morning, you expressed the view that you felt that you were taken advantage of, you were given free drugs, and then told you had to pay for the drugs, essentially by dealing. To your credit you accept now that you made the wrong choice.
[23] I have taken all of these matters into account in considering what sentence to impose. As you will have heard from the discussions in Court this morning, home detention was considered as a possibility for you and you were assessed as being a suitable candidate for home detention. Unfortunately, at least as at the time the assessment was prepared, a suitable residence for you for a sentence of home detention had not been found.
[24] On that basis, the Probation Officer’s recommendation was for a sentence of a term of imprisonment. Under s 80I of the Sentencing Act 2002, if you are sentenced to what is described as a short term sentence of imprisonment, that is one
less than two years, and if it is the case that you would have been sentenced to home detention had a suitable address been available, the Court may make an order granting you leave to apply to this Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence is found at a later date. In sentencing you, Mr Sherriff, I propose to take that course.
Sentence
[25] Will you please stand.
[26] On each of the charges of conspiring to supply methamphetamine and offering to supply methamphetamine, you are sentenced to 15 months imprisonment.
[27] In the event that you complete the sentence of imprisonment, I impose conditions on release, as follows:
a) That you attend a drug and alcohol assessment;
b)That you attend and complete appropriate treatment in counselling if, and as recommended by the assessment to the satisfaction of your Probation Officer and treatment and/or counselling provider. Details of the appropriate treatment and/or counselling are to be determined by your Probation Officer.
[28] I record that had a suitable address for a sentence of home detention been available, I would have imposed a sentence of home detention for 12 months. I would also have imposed any conditions on home detention that were recommended by the Probation Officer.
[29] I grant you leave to apply to this Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention in the event that a suitable residence is found for a sentence of home detention at a later date.
[30] Would you please stand down.
Andrews J
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