R v Stone HC Napier CRI 2007 041 1514

[2007] NZHC 1945

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007 041 1514

REGINA

v

TERRY STONE

Hearing:         9 July 2007

Counsel:         P J Jensen for prisoner

D M Kerr for Crown

Judgment:      9 July 2007

SENTENCING REMARKS OF WILLIAMS J.

Imprisonment 2 years 3  months for possession  of  Class  A  controlled  drug, namely methamphetamine, for supply.

Convicted and discharged for possession of Class C controlled drug, namely cannabis.

Solicitors:

Crown Solicitor, Napier.

Copy for:
P J Jensen, 10 Coronation Street, Ahuriri, Napier.

Email:  [email protected]

Law Commission Sentencing Unit     [email protected]

Brett Mudgway, High Court Napier   Br[email protected]

R V STONE HC NAP CRI 2007 041 1514  9 July 2007

Mr Stone:   It is commonplace for those being sentenced to stand but these days sentencing remarks have to be so comprehensive they take quite a while so you and the escort can remain seated until I get to the main part of the sentencing.

[1]      Mr Stone:   As you know, you appear here for sentence this morning having pleaded guilty on 23 May 2007 in the District Court to one count of possession of a Class A controlled drug, methamphetamine, for supply and one charge of possession of a Class C controlled drug, cannabis.   Both took place on 18 May.   You face a maximum sentence of life imprisonment for possessing methamphetamine for supply and  three  months’  imprisonment  for  possessing  cannabis.    The  District  Court declined jurisdiction to sentence you, hence your appearance here this morning.

[2]      The facts are that the Police located you on another matter.  When you were searched you were in possession of a spectacle case with a straw and three point bags containing methamphetamine.  There were bits of paper which together constituted a tick list.   You said you had the material all for your own use.   You also had a shoulder bag which had a quantity of cannabis in it and some more methamphetamine, a Sim card, some electronic scales and some $2000 in cash plus approximately $200 which were your own savings.  The total of methamphetamine in your possession was 1.98 grams and although you claimed that you had it all for your own use, you pleaded guilty to possessing it for supply.

[3]      Your list of previous convictions is relatively short by comparison with many another who appears in this Court – 11 convictions by my count – but they include some violence including a 13 month gaol sentence imposed on you in December

2001 and eight and six month gaol sentences imposed concurrently four months before that.  You also have a possession of cannabis conviction in December 2004 although you were only fined on that, and possession of utensils at the same time, and you have something like $6500 worth of fines outstanding.

[4]      The Probation report tells me that you are 23 years of age, your previous relationship ended about 12 months ago because of your addiction to drugs, and that you had two children with that partner.  Your background is relatively normal

for this sort of offending – not a great deal of education, a reasonable upbringing, you joined the Mongrel Mob and according to the Probation Service received your patch only two years ago.  That is a major influence on your offending.  You have had a poor employment record, you are a long-term cannabis user, you are addicted to methamphetamine, you claim that you were using up to four grams a day just before this, although how you would finance a habit which would cost you about

$4000 a day could only have been from crime.  The Probation Service assesses you at a high risk of re-offending.  You are the beneficiary of a sympathetic but, I would have to say, entirely unrealistic recommendation from the Probation Service.

[5]      As Mr Kerr for the Crown said, you fall in what is called the first band of R v Fatu [2006] 2 NZLR 72 at 80 para [34] which indicates that the starting point for imprisonment for you – the only realistic outcome – is between two and four years with the Crown accepting that I should start in the lower half of that band. As suggested, your previous record and the fact of having cannabis in your possession are aggravating features (making it worse) than otherwise would have been the case but your very early plea of guilty is a mitigating feature which reduces the amount of the sentence.

[6]      On your behalf Mr Jensen accepts that some of the methamphetamine must have been for what he calls “distribution” – in all probability “sales” – and says that your addiction has led to your involvement in “distribution”.  He notes on your part that you accept that you are addicted and that is one of the things that led to your very early guilty plea although very realistically there was little chance of defending the charges, and you have strong and stable support from members of your family, several of whom are present this morning.

[7]      Your position is, really the archetypal position for people who are coming before  the  Court  charged  and  pleading  guilty  to  these  sorts  of  offences.    So pernicious and widespread is methamphetamine these days that most Judges, when they hear the plea of guilty, could almost recite the family background and history because yours is completely typical.     The probability is that you have become addicted, you buy methamphetamine, you use some of it, you sell the balance in order to fund your next purchase.  It was clearly not all for your own use.  You have

acknowledged as much by pleading guilty to possessing methamphetamine for supply, and the other things that you had in your possession – the scales, the tick list, the Sim card and $2000 in cash show that you were in the business of selling methamphetamine although probably on a relatively modest scale.

[8]      I am asked to remit your fines, but there is a question as to my jurisdiction concerning that and I have insufficient data to know whether that is an appropriate order or not.  There will be an order forfeiting the equipment which was found in your possession, and also forfeiting the $2000 found in  your possession, which Mr Jensen accepts was tainted.

[9]      Being in the bottom band of Fatu means, as I have mentioned, the starting point for sentencing you is between two and four years’ imprisonment.

Mr Stone, I need to ask you to stand at this point.

[10]     At the level of methamphetamine you had in your possession, the appropriate starting point in my view is about two and a half years’ imprisonment or two years nine months.  The aggravating factors include having cannabis in your possession, your previous convictions and the level of commerciality in which you were plainly involved.  That would, before making any allowance for the mitigating factors, take the appropriate sentence up to something like three years or three years three months.

[11]     I certainly give you a reduction for the plea of guilty, despite the inevitability of conviction.   In my view the appropriate end sentence for you is two years and three months imprisonment.  That means there is no question of applying for leave to be granted home detention, but if it is of any assistance to the family, you become eligible for parole after serving a third of that sentence, not a half which would have been the position if you had been sentenced to two years’ imprisonment or less and not being given home detention.   Two  years three months  imprisonment  is  the sentence I impose.  You are convicted and discharged on the cannabis charge.  Stand

down.

………………………………..

WILLIAMS J.