R v Tate HC Auckland CRI 2006-404-294

[2007] NZHC 1907

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-000294

THE QUEEN

v

CHARLES KITCHENER TATE

Hearing:         22 June 2007

Appearances: B R Northwood for Crown

J Faleauto for Prisoner

Judgment:      22 June 2007

SENTENCE OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland. Copy to:

J Faleauto, PO Box 68 043, Newton, Auckland City

R V TATE HC AK CRI 2006-404-000294  22 June 2007

[1]      Charles Kitchener Tate, you appear today for sentence having pleaded guilty to the offence of supplying the Class A controlled drug, methamphetamine to a person whom you knew only as “Nick”.  The seriousness of this offence to which you have pleaded guilty, and of which you have been convicted, is shown by the fact that the maximum penalty prescribed for it is one of life imprisonment.

[2]      The offending took place on 16 December 2005, when an undercover police officer went to an address in Pukekohe.  Once there, he told you that he wanted to buy half a gram of methamphetamine and you undertook to pass that message on to an associate, Mr Pohe.   The next day Mr Pohe sent to the undercover policeman, Nick a text message, instructing him to go to another address in Pukekohe and upon his arrival there, you came out of the address and you took $400 in cash from him. You then went back inside and came back out with this half gram of methamphetamine which you gave to him.

[3]      There  has  been  a  pre-sentence  report  prepared  for  the  purpose  of  your sentencing today.  From it, I understand that you are now 29 years old.  You have a partner of seven years, although you do not live with her any longer, and you have a six year old son.  You were currently residing with your mother, your sister and her partner.   You are one of five children.   You evidently retain the support of your parents.  Your mother told the author of the pre-sentence report that you have had a problem with alcohol, but that you do not use illicit drugs.

[4]      At present you are employed by Works Infrastructure on a full-time basis. You have been described by your employer as a good, hard-working young man. That has been confirmed by the reference dated 18 May, which you handed up to me this morning and that I have read.  You obtained various qualifications as a result of your employment by Works and, in particular, I have been referred to a roller tracks and wheels certificate, a full driver’s licence and a forkhoist licence.  I understand

that  you have also recently achieved further indications of your competence in terms of a truck licence.

[5]      Mr Tate, you have accepted your role in this offending.  You have attributed it in part to the influence of your co-offender, Mr Pohe, who is your sister’s partner. You say that you received no financial reward for your involvement in this matter and you apparently said that you actually felt regretful at the time that you were involved in it.  You have also recognised the influence that alcohol has had to play in respect of your offending.   I understand that you attended a six month residential alcohol and drug programme in Manurewa in 2005.  Your parents have reported a significant reduction in  your alcohol consumption in the months following that. However, you have since resumed, or you had at the time of the report, regular consumption of alcohol.  The report writer thinks that you are a medium risk of re- offending.

[6]      One of the worrying things is that you have some 33 previous convictions and  that  you  have  been  sentenced  to  imprisonment  before  on  three  separate occasions.  Those offences were mainly property offences.  However, in 1994 you were sentenced to three and a half years’ imprisonment for aggravated robbery.  In

2003 you were convicted of assault with a blunt instrument and in 2006 you received a sentence of 100 hours community work for assaulting a police officer.

[7]      Your only drug-related conviction has been for possession of cannabis in

1998.  Consequently, although you have a number of previous convictions I am not going to regard your record as an aggravating circumstance for the purposes of your sentencing today.

[8]      The Crown in its written submissions has accepted that although the charge to which you have pleaded guilty is a serious one, nevertheless, your offending is at the lower end of the scale.  Although the Crown invites me to be sceptical about your assertion  that  you  were  simply  assisting  a  friend  by  delivering  drugs  to  the undercover police officer, it also fairly points out that there is no evidence to suggest that you might have been significantly involved in that activity on other occasions.

[9]      Sentencing in this area is now to be guided by the Court of Appeal’s decision in a case called R v Fatu [2006] 2 NZLR 72. In terms of the bands identified in that case, the Crown submits that your offending falls within Band 1, being a low level of supply of less than five grams of methamphetamine. That gives a possible starting point for sentencing purposes in a range of between two to four years’ imprisonment. The Crown submits that although the offending here should be regarded as at the lower end of the scale, in a small way you were part of a commercial operation. Commercial in the sense that, as Mr Northwood has explained this morning, you were involved in a transaction in which money changed hands. It was not a situation of casual or social supply between friends, but it was something that was done for money.

[10]     Referring to certain other sentences that have been imposed in similar cases, the Crown suggested a starting point of between 18 months and two years, in its written submissions.  Mr Northwood has this morning, emphasised the similarity of this case with another matter, called R v Miringaorangi (unreported HC AK CRI

2006-404-294, 13 February 2007) which arose out of very similar circumstances, and in that case a starting point of 18 months was adopted.

[11]     On  your  behalf  in  written  submission  that  he  filed  before  the  hearing, Mr Faleauto has emphasised that this offending was at the lower level.  However, he has also argued that the offending was not for gain, maintaining that what was occurring was not in fact a money-making operation, arguing that your friend Mr Pohe was in fact simply stringing the undercover police officer along in the hope that he would get money to feed his own habit, and noting the fact that he has not been very successful and ended up in debt.   Mr Faleauto has noted that the Court of Appeal said in R v Fatu, the case I mentioned earlier, that in cases where the supply is of a small quantity and there is no real commerciality and no other aggravating features, starting points less than those indicated in the judgment can be adopted in respect of offending in the first band.

[12]     He points out, also, that you have worked continuously since the offending in a job that requires regular drug testing of employees and that you have not yourself been a drug user.  He contended that only on this one occasion have you assisted

Mr Pohe   as   you   did   by   acting   as   the   go-between   for   this   half   gram   of methamphetamine.  So, Mr Faleauto argued that in all the circumstances a sentence of community work would be the best way of dealing with you and less likely to lead to recidivism than a term of imprisonment.

[13]     While I accept all that has been said about the comparatively low level of this offending,  I  do  not  accept  that  a  sentence  other  than  imprisonment  would  be sufficient to denounce your conduct and to deter both you and others, from involvement in this sort of activity.

[14]  Every one who has a responsible opinion on the matter regards methamphetamine as a very bad thing and it should not be dealt with or supplied to other people.  Although the amount of any monetary gain involved here would have been  small,  I  consider  that  it  is  likely  that  you  gained  something  from  this transaction.  Even if you did not, you knew that you were involved in something in which money was changing hands, the undercover policeman handed to you this sum of $400 in cash and so you knew what was going on.   Ultimately you must be responsible for your behaviour.

[15]     Nick, who was the policeman and undercover officer, was not known to you, so it can’t be said that you were simply handing it over to a friend.

[16]     The facts of this case are essentially the same as those involved in the other case I have referred to, R v Miringaorangi and indeed, the offender in that case was originally proceeded against on the same indictment that was proffered against you. He pleaded guilty to one charge of supplying methamphetamine.   His offending arose   out   of   the   same   undercover   operation.      The   amount   supplied   was approximately the same.  He played the same role as a go-between and the money handed over was the same.  Winkelmann J in that case adopted a starting point of 18 months’ imprisonment which she reduced to a term of 12 months because of his guilty plea, and I can see no reason to adopt a different approach in your case.  In saying that, as I think I have already mentioned, I am not treating as aggravating your list of previous convictions.  It is substantial, but I am not taking it into account

because apart from the very minor conviction for possession of cannabis in 1998, it does not relate to drug offending.

[17]     You are entitled to credit for your guilty plea.  Apart from that, I do not think that there are any other considerations which should lead me to reduce the sentence that would otherwise apply.  Consequently, the sentence will be imprisonment for a period of 12 months.  Given a sentence of that length, I am then obliged to consider whether I should give you leave to apply for home detention.  Leave was granted for Mr Miringaorangi to make such an application.  The Crown has initially opposed it here relying on the nature and seriousness of the offence.  In its written submissions it suggested that you can not rely on the same range of factors that influenced Winkelmann J in that case.   However, I do not consider the differences in your circumstances are of much significance.  Although you do not have three children, you are in full employment and evidently well regarded by your employers.

[18]     I am prepared to defer the start date.  That can only occur on humanitarian grounds or in exceptional circumstances.  I think there are exceptional circumstances here, but only just.   They arise, really from the letter that I have been given this morning, which is dated 8 June 2007.  It is from your existing employer.  It offers the prospect of employment in a new and more important position than the one that you have had up until now.   The letter needs to be signed and returned to your employer and I understand that it was received some days ago, but that you needed somebody to read it to you and you have had some discussions about the rate of pay that you have been offered in this letter.  The letter holds out the possibility of you being employed in an even better job and doing something for yourself and making something of your life.  It seems to me that it would be counter-productive to most relevant considerations if you were not able to respond to that letter and take up the offer it contains and it may very well be an opportunity that would be lost if you were now to go to prison.  So, I am going to defer the start date of your sentence for a period of two months, or until such sooner time as the Parole Board can receive and determine an application for home detention, that I am giving you leave to make.

[19]     Please stand up now.  Mr Tate, I am sentencing you to imprisonment for a term of 12 months.  I am granting you leave to apply for home detention and I am

deferring the start date of your sentence for a period of two months, or until such time  as  the  Parole  Board  can  determine  your  application  for  home  detention. Because I have sentenced you to a term of imprisonment for 12 months, I am entitled then to impose a special condition on your sentence which is, that you are to undertake an assessment for alcohol counselling and if suitable, you are to undertake such counselling as may be directed by a probation officer.