R v Smith HC Auckland CRI-2011-092-9515

[2011] NZHC 1591

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-9515

THE QUEEN

v

ANDREW MICHAEL SMITH

Hearing:         5 August 2011

Counsel:         C Merrick for the Crown

J Down for the Prisoner

Judgment:      5 August 2011

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, Auckland –  [email protected]

Public Defence Service, Auckland –  [email protected]

R V SMITH HC AK CRI-2011-092-9515 5 August 2011

[1]      Andrew Michael Smith: You are before the Court for sentencing on three charges to which you pleaded guilty on 15 June 2011.  They are:

a)       Supplying methamphetamine which carries a maximum penalty of life imprisonment.  That makes clear how seriously Parliament on behalf of the community regards this type of offending.

b)Possession of a firearm except for a lawful purpose which carries a maximum penalty of four years imprisonment;

c)       Arson (charged under s 267(3) of the Crimes Act) which carries a maximum penalty of five years imprisonment.

[2]      You have elected, Mr Smith, to be sentenced today although an updated pre- sentence report has not been prepared because you have not made yourself available to  the  probation  service  so  the  report  could  be  completed.    However,  there  is available to the Court a pre-sentence report dated 12 May 2011 prepared in relation to previous, but much less serious, offending.

Background facts

[3]      The factual background is contained in a summary of facts which is accepted for sentencing purposes as follows:

On the evening of 16 March 2011, the victim, Rose Kelly, parked her Nissan

Maxima motor vehicle in the carport area of her home address in Great South

Road, Manurewa. The vehicle had an approximate value of $4,000.

Between 5.00 a.m. and 5.30 a.m. on 17 March 2011, Mr Smith and his co- offender Mr O’Keeffe drove to Ms Kelly’s home with the intention of setting her vehicle on fire.   Mr Smith opened the door of the vehicle and poured petrol  and  methylated spirits  throughout  the vehicle,  while Mr O’Keeffe allegedly acted as a lookout.  Mr Smith then set the vehicle alight.  The fire spread quickly causing damage to the vehicle and the carport but fortunately

not to the home where Ms Kelly was asleep.  However, those premises were

approximately two metres away from the carport.

MsKelly and her tenant woke and made an unsuccessful attempt to put out the fire.  The Fire Service attended and extinguished the fire, but the vehicle was  damaged  beyond  repair.    The  fire  also  caused  severe  charring  and

structural damage to the carport.

Prior to leaving, one of the offenders dropped a bottle of methylated spirits.

The police found a fingerprint of Mr O’Keeffe on the bottle.  An analysis of Mr O’Keeffe’s mobile phone showed that Mr Smith was involved in this offending.  As a result, police executed a search warrant in relation to Mr Smith’s mobile phone and messages and text data in the period 10 March

2011 to 29 March 2011 were obtained.   This data confirmed Mr Smith’s

planning and participation in the arson.

Theanalysis conducted by police of Mr Smith’s mobile phone data also established that he was in possession of firearms and supplying people with methamphetamine.  On 21 March 2011 police executed a search warrant at Mr Smith’s address and recovered a sawn-off .22 rifle with a clip containing

10  rounds  of  ammunition,  along  with  an  over–under  double  barrelled shotgun.  Nine text messages indicated that Mr Smith was attempting to sell these firearms and possibly to have them stored by associates.  The analysis also    revealed    that    during    this    period    Mr    Smith    had    supplied

methamphetamine to five associates.

When  spoken  to  by  police  Mr  Smith  confirmed  that  the  mobile  phone numbers searched belonged to him.  He admitted setting fire to Ms Kelly’s vehicle, stating that he had done so because her son, in his view, had “ripped him off”.  In relation to the firearms found, he admitted ownership of them and said they had been left with him by an associate.  He confirmed sending the messages relating to disposal or storage of the firearms and he also said that he had three other shotguns that had not been recovered.   Finally, Mr Smith admitted supplying methamphetamine to five persons, as indicated by

analysis of the text messages.  Mr Smith says that this was low level supply to friends and family.

Victim impact statements

[4]      I have not received any victim impact statements.

Personal circumstances

[5]      I am assisted by the pre-sentence report dated 12 May 2011.  Mr Smith is 26 years old.   He has two young children aged three and two.   He describes his relationship with their mother as “variable”.   He is assessed as having a harmful pattern of drug use although his alcohol use is reported as minimal.  He says he is in good health but smokes a packet of cigarettes a day.  (I observe that is not a habit he will be able to pursue while he serves a sentence of imprisonment).

Prior convictions

[6]      Mr Smith has eleven prior convictions dating back to 2004, the most serious of which is a conviction for burglary in June 2010.     He has previous minor convictions for possessing methamphetamine in February 2009 and possessing cannabis in June 2010.   I do not regard his previous convictions as sufficiently serious or relevant to warrant an uplift in the sentence to be imposed.   I note that counsel for the Crown does not advance an uplift.

Reparation

[7]      The Crown does not seek reparation. I note that the fines summary for Mr

Smith indicates a sum in excess of $28,000 outstanding in fines and reparation.

Purposes and principles of sentencing

[8]      Denunciation  and  deterrence  are  primary purposes  in  sentencing  for  this offending.  The sentences must also seek to hold Mr Smith accountable for the harm he has done to the victim of the arson offending and to the community and to hold

him responsible for that harm.   I observe also in relation, particularly to the methamphetamine offending, the harm, Mr Smith, you have done to yourself.  The Court must seek to achieve consistency in sentencing levels and at the same time to impose the least restrictive outcome that is appropriate in the circumstances.

Aggravating factors

[9]      In relation to the arson offending it involved unlawful entry into residential premises, namely the carport on Ms Kelly’s property.  Her car valued at $4,000 was a complete write-off and structural damage to the carport was also caused.   The evidence of the text data on Mr Smith’s cellphone and evidence of the offending shows that he took to Ms Kelly’s property an accelerant.   This demonstrates premeditation in the arson offending which is an aggravating factor.

[10]     Premeditation is inherent in the methamphetamine and firearms offending.  In relation to the firearms offending I note the number of firearms involved.

[11]     There are no mitigating factors of the offending.

[12]     In relation to Mr Smith personally I note that this offending would have occurred  while  Mr  Smith  was  still  completing  a  sentence  of  community  work. While that is a matter of aggravation it is not to the extent that I consider requires to be recognised by an uplift in sentencing.

Mitigating factors

[13]    Mitigating factors include primarily Mr Smith’s early guilty pleas.   He voluntarily confessed to the methamphetamine and firearms offending once he had been detected as a party to the arson offending. He was full and frank to police in acknowledging  his  offending.    I  consider  a  maximum  discount  of  25  per  cent discount should be accorded on sentencing and note that this is the submission of both counsel.

Submissions

[14]     There is much common ground in the submissions for the Crown and the defence in the approach that should be adopted to sentencing.   I have already commended both counsel on their constructive and focused submissions.

[15]     It is agreed that the lead charge is the methamphetamine offending.   It is accepted that this falls within band 1 in R v Fatu[1] and at the lowest level of that band or slightly below it given that this was low level offending with no evidence of commerciality.

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

[16]     Secondly, it is common ground that the firearms offending can appropriately be reflected by an uplift to the sentence for the lead offending.

[17]     Thirdly, it is accepted that the arson offending is different in kind and under s 84(1) of the Sentencing Act, it is appropriate to impose a cumulative sentence.

[18]     Finally, as I have mentioned, both parties submit that the maximum guilty plea of 25 per cent is appropriate.

Sentencing

[19]     For  the  methamphetamine  offending  I  take  a  starting  point  of  eighteen months imprisonment.   This is six months below the bottom of band 1 in Fatu to reflect that this was low level offending with a complete absence of commerciality or other aggravating factors.  For the firearms offending, I increase the starting point by nine months to reach a revised starting point of 27 months imprisonment.

[20]     For the arson offending, I impose a sentence of 12 months imprisonment to be cumulative on the sentence of 27 months imprisonment.  There is no tariff case for arson because circumstances of particular cases vary greatly.   As I have mentioned,  in  this  case  Mr  Smith’s  actions  with  those  of  his  co-offender  were planned and deliberate, as distinct from reckless.   The fire was lit at a residential

property in a carport close to Ms Kelly’s residence where she was asleep.   This posed a risk not only of damage to property, which actually occurred, but potentially to human life, which, fortunately did not occur.  In reaching this point I have referred to a number of authorities and have found the case of R v Protos of most assistance.[2]

The  total  revised  starting  point  is  therefore  39  months  imprisonment.     The seriousness of this offending I consider calls for a cumulative sentence of 12 months imprisonment.

[2] R v Protos CA259/04, 19 October 2004

[21]     From that starting point I allow a discount of ten months which is slightly more than 25 per cent to take account of Mr Smith’s early guilty plea and  his confessions and co-operation with the Police.

[22]     The end sentence is therefore two years five months imprisonment.

[23]     Standing back and considering the totality of the offending, I consider a starting point of three years three months appropriately reflects the overall offending and that this sentence is not wholly out of proportion to the gravity of the overall offending.  From that starting point, of course, must be allowed the discount for the guilty plea to reach the end sentence of two years five months imprisonment.

[24]     Please stand Mr Smith

[25]     The  sentence  imposed  on  you  Mr  Smith  is  two  years  five  months imprisonment.  I hope what Mr Down has said on your behalf this morning, that you wish to take a different path, is something that you will pursue both in custody and when you are released.  I wish you well.

[26]     Please stand down.