R v W HC Auckland CRI 2005-090-6007
[2005] NZHC 62
•23 September 2005
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2005-090-006007
CRI 2005-090-006016
THE QUEEN
v
W
Charges: Supply of class A controlled drug methamphetamine x1
Possession for supply of class A drug methamphetamine x1
Obstruction of a police officer x1
Unlawful possession of a pistol x1
Plea: Guilty
Appearances: Ms Pollett for Crown
Mr R Mansfield for Prisoner
Sentenced: 23 September 2005
Three years four months’ imprisonment on drug charges
One month’s imprisonment concurrent on obstruction and firearms charge
Total: Three years four months’ imprisonment
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
R Mansfield, Auckland
R V W HC AK CRI 2005-090-006007 23 September 2005
[1] W , you have pleaded guilty to and are for sentence on one charge of supply of a class A controlled drug methamphetamine, one charge of possession for supply of a class A drug methamphetamine, one charge of obstruction of a police officer and one charge of unlawful possession of a pistol. The most serious offences for which you are for sentence are the supply of the class A controlled drug and the possession of the class A drug for supply. Each of them carries a maximum term of imprisonment of life imprisonment.
[2] The summary of facts disclose that on 13 November last year an undercover officer went to your home address at Glendale Road. The undercover officer asked you about drugs. You told him you would sell him a point and a half for $150. You went inside the address with the officer and in the kitchen you pulled out several containers, scales, and a plastic fork. You measured out the amount of methamphetamine from a brown bottle and placed it in a snaplock bag and completed the sale to the undercover officer. You then had a general discussion with the undercover officer about drugs and dealing in drugs. The officer asked about returning for more drugs to which you agreed. He also asked if others could come and source drugs from the property and again you agreed.
[3] Shortly afterwards the police executed a search warrant at the address. During the execution of the search warrant you ran away from the property, you were shortly thereafter caught on a neighbouring property. As a result of the search the police found a brown bottle of methamphetamine which was found to contain
6.9 grams. Also in a bag at the property the police found a .22 automatic pistol and ammunition. The police also found a snaplock bag containing a further 379 milligrams of methamphetamine on you. They also found $2,887.90 in cash on the property. The property was equipped with a close-circuit television surveillance system. It was set up as a drug dealing house.
[4] You are 44 years old. The pre-sentence report records that the probation officer formed the view you were articulate and forthcoming and you were willing to discuss your offending in detail. I have read the letter that you have written to the
Court. It is an articulate and thoughtful letter. I have also read the letters of support that have been put before the Court from your daughter and from other people who have known you over the past 20 odd years and I acknowledge today the presence of your family, your son and your daughter and other family and friends to support you.
[5] It seems that your young life was not a happy one Mr W . You left home at the age of 15 and you have effectively been on your own and self dependent since then, responsible for yourself. You have been self-employed, had your own business, an earthmoving business that you ran for 16 years. Although that business was successful, once you became involved in drugs the drugs took precedence and you have subsequently sold the equipment and machinery involved in that business for the purposes of feeding your drug habit.
[6] Counsel has submitted and it seems that you do suffer from depression and that led you at a stage to a different lifestyle to that which you had followed earlier. Through that you were introduced to people who used methamphetamine and drugs and you yourself became a drug user. The use of the drug became habitual as is common.
[7] You have told the probation officer that your remand in custody has been beneficial for you. You have been able to abstain from drug offending whilst in custody despite the fact that drugs are available. You have said you have resolved never to use drugs in the future and you say you don’t require any professional intervention to address your drug use and you are satisfied you have been able to address it and abstain on your own volition. You have said that you don’t want to or don’t intend to associate with drug offenders in the future.
[8] Mr W , like a number of people who come before this Court for sentence in cases of this nature you have effectively lost everything from a material point of view that you had accumulated in your working career. You have lost your business, and you have lost your home. More importantly perhaps you have lost the reputation that you might have otherwise have had and perhaps the respect that other people had for you. You are fortunate that despite all of that you still have the support of
your family and friends. To that extent you are more fortunate than a number who come before this Court.
[9] Mr W as counsel has realistically accepted imprisonment is the only appropriate sentence for your offending. That is particularly bearing in mind the offences for the supply of methamphetamine and possession for supply and s 6 (4) of the Misuse of Drugs Act. I take the two drug charges as the lead offences for sentencing purposes but I am also aware of the need to consider the totality of your offending for the obstruction, which I regard as relatively minor, and for the possession of the firearm, which as counsel has properly acknowledged is a matter of concern for the Court. It is obvious that drugs, loaded weapons and dealing can lead to much more serious offences than you are now before the Court for.
[10] In fixing the sentence for you I am obliged to have regard to the purposes and principles of the Sentencing Act.
[11] The purposes are to:
• hold you accountable for the harm done to the community by your offending for supply and possession for supply of methamphetamine;
• to promote in you a sense of responsibility for and acknowledgement of the harm you have caused by your offending;
• to denounce your conduct;
• to deter you and also others from committing similar offending; and
• also to bear in mind your rehabilitation and reintegration into society at the end of your sentence.
[12] In terms of the principles of the Act I have regard to:
• the seriousness of the offending which is reflected in the maximum penalty and the amount of drugs involved in this case;
• the desirability of consistency amongst sentences, taking account of individual circumstances;
• fixing the least restrictive outcome appropriate and fixing the least restrictive outcome that may be appropriate.
[13] Counsel has submitted on your behalf that there is no reliable evidence of the extent of the supplies that you have made and has emphasised that you were in a house with two other people, you were all users and you were all involved in the operation. He has submitted that the Court should regard your statements to the undercover officer about the extent of the deals that you had completed that day as no more than boast or exaggeration.
[14] Mr W , you were found with a total, including that which you sold to the police officer of 7.4 grams of methamphetamine on the day you were arrested. That at a street level had a value of $7,400. In addition you also had possession of close to $3,000 in cash. Even accepting that you were a serious user of methamphetamine yourself and that you were living with others who were also drug users, the amount of methamphetamine that you were found with and the inference I draw from the money you were found in possession of puts your level of offending at a level of commercial dealing, albeit, I accept, at the lower level of the second category in R v Arthur (CA 382/04, 17 March 2005) but it does put you into the second category in Arthur.
[15] Having regard to the Court of Appeal decision in Arthur and the other authorities that counsel have referred to I take as a starting point for the offending in your case a term of imprisonment of four and a half years. That term is required to take into account of the two drug charges and the other charges that I have referred to.
[16] I then have to consider personal aggravating and mitigating factors. I do not consider there are any personal aggravating factors relevant to your case. Your previous criminal history is not drug related and it is not extensive.
[17] The principal mitigating factor in your case is your plea of guilty to all charges. I accept that in your case the plea of guilty demonstrates your acceptance of responsibility and provides indication of your remorse. The plea is a clear saving to the police and court resources and you are entitled to a proper credit for the guilty pleas you entered at depositions.
[18] I have had regard to your personal circumstances as they have been set out in the pre-sentence report and in counsel’s submissions as much as I can. As counsel will have told you the Court of Appeal has said on a number of occasions that in relation to drug offending the personal circumstances of an offender can count for little.
[19] Mr W would you please stand. After taking account of your guilty pleas and having regard to the totality principle I sentence you to a term of imprisonment for a total term of three years four months on the charges of supply and possession for supply. I sentence you to imprisonment for one month on each of the other two charges. The terms of imprisonment are to be served concurrently, the total sentence is three years four months.
[20] The Crown have raised the issue of a minimum non parole period. I have considered that. In the circumstances of this case I do not consider it is necessary. There will be no minimum term prior to parole.
[21] I waive the outstanding fines that you have and that were referred to by the probation officer. I make an order for the destruction of the drugs and the pistol found by the police. I also direct forfeiture of the $2,887.90 in cash to the Crown.
[22] Mr W , you now have a clear understanding of the consequences of your drug offending. You have to serve the term of imprisonment as part of those consequences. As I said earlier, however, you are much more fortunate than a number of people who stand in the dock for sentence on similar charges. You have had the ability in the past to contribute positively to society through your work. You have brought up children, you have got support of your children and of friends and family. With their support and with your attributes there is absolutely no reason why
you need to be back in this position ever again. It is entirely up to you Mr W , I
wish you well for that.
G J Venning J
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