R v Wallis HC Hamilton CRI 2006-019-10117

[2007] NZHC 2067

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-019-10117

THE QUEEN

v

STEPHEN WALLIS

Hearing:         29 August 2007

Appearances: J Foster for Crown

S Ellis for Wallis

Sentence:       29 August 2007

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor, Hamilton

S Ellis, Hamilton

R V WALLIS HC HAM CRI 2006-019-10117  29 August 2007

[1]      Mr  Wallis,  you  were  to  stand  trial  this  week  on  two  charges,  namely possession of methamphetamine for supply, and possession of a restricted weapon, namely a stun gun.  Last week you advised the Court through your counsel that upon arraignment you would plead guilty to count 1, namely possession of methamphetamine for supply.   Accordingly, this morning  upon arraignment  you pleaded guilty to that count.   On count 2, which relates to the stun gun, Mr Ellis applied for discharge under s 347 of the Crimes Act 1961.   Ms Foster offered no evidence on that count and you were therefore discharged on count 2.   You now appear  for  sentence  on  a  single  count  of  methamphetamine  for  supply.    The maximum penalty for that offence is life imprisonment.

Facts

[2]      You  were a  passenger  in a  vehicle  which  was  stopped  by the  police  in Hamilton on 20 December 2006.  The police invoked s 18(2) of the Misuse of Drugs Act and searched the vehicle.   In your possession they found a snaplock bag containing a white substance,  which they recovered  from you after  a  concerted struggle. In your wallet the police found some $1,848 in cash.  The contents of the bag recovered from you was subsequently tested and found to comprise some 13.4 grams of methamphetamine.

[3]      A search warrant was later executed in respect of the hotel room occupied by you.    There the police  found scales  bearing traces of methamphetamine,  empty snaplock bags, three glass pipes, and a gas burner.

Personal circumstances

[4]      There is no pre-sentence report.  Counsel are agreed that it is unnecessary to obtain one.  By reason of the circumstances relating to your late indication of a guilty plea, there has been no time to obtain a pre-sentence report, given that you wish to be sentenced this week even  though  a  pre-sentence  report  would  not  be  available. Although it is generally undesirable for the Court to proceed without a pre-sentence

report, in this instance the Court does have sufficient information to proceed without one, having regard in particular to the fact that the offending to which you have pleaded guilty is the subject of detailed guidelines from the Court of Appeal.

[5]      You are 47 years of age, with something of a criminal history behind you. Importantly for present purposes, you are a paraplegic and confined to a wheelchair following  a  motor  accident  in which  you  were  involved  in 2003.    You  have  a significant list of criminal convictions.   Interestingly, many of the offences were committed after your accident.  Among the offences listed are those for possession of ecstasy, cannabis and methamphetamine, and for possession of firearms, ammunition and explosives.   But there are no convictions for supplying drugs, nor any for possession for supply.

[6]      There  was  a  clear  commercial  element  to  your  offending.    That  is  an inevitable inference from the quantity of drugs and cash found, and the other paraphernalia located.   I accept as Mr Ellis says, that you have developed a methamphetamine habit since your accident, and your drug habit has assisted you in maintaining  your morale to some degree,  but  that  does not  explain  your  earlier convictions for drug related offending, nor justify the scale of what  is plainly a commercial operation.

Sentencing principles

[7]      I take into account the principles set out in ss 7 and 8 of the Sentencing Act. Although in general the Court is required to impose the least restrictive outcome appropriate in the circumstances, s 6(4) of the Misuse of Drugs Act obliges the Court to  impose  a  sentence  of  imprisonment  in  cases  such  as  this.    Imprisonment  is required to reflect the public interest in combating what is simply a scourge on our society.  The consequences of the methamphetamine trade are to be seen every day in our Courts.  Much serious offending, and in particular violent offending, can be traced directly back to offenders who are drug affected.

The tariff case

[8]      Sentencing  for  methamphetamine  offending  is  governed  by  the  leading authority of R v Fatu [2006] 2 NZLR 72 (CA). In that case the Court of Appeal set out four sentencing bands for the guidance of sentencing Judges. The second of those bands relates to quantities of methamphetamine in the 5-250 gram range. For such offending starting points between three and nine years imprisonment are mandated.

[9]      I have considered a number of recent sentencing cases in this court that have comparable features to the present case.  It is necessary to mention only one or two of them as examples.   In R v Hollingsworth HC AK CRI 2006-055-310 26 April

2007, the prisoner had been found guilty by a jury of possession of 13.5 grams of methamphetamine for supply, so the quantity of drugs was almost identical.  There was also evidence of the possession of scales and snaplock bags.  Harrison J took a starting point of three years imprisonment, although indicating that in doing so he was erring on the lenient  side.   He allowed a discount  for remorse and for the prisoner’s personal qualities, and imposed a final sentence of two and a half years imprisonment.  That was of course after a trial so there was no discount for a guilty plea.

[10]     A significantly more stern approach was adopted in R v Holloway HC AK CRI 2005-090-7291 26 May 2006, where the prisoner had been found guilty by a jury on one count of possession of 34.8 grams of methamphetamine for supply and had  pleaded  guilty  at  the  commencement  of  the  trial  to  a  count  of  unlawful possession of a stun gun.   The amount of methamphetamine involved was immeasurably greater than here, and here there is no issue relating to the stun gun. The Judge took a starting point of five to five and a half years imprisonment which was uplifted to six years for the prisoner’s previous convictions, and to take account of totality considerations arising from the charge relating to the stun gun.

[11]     In R v Tarawa HC ROT CRI 2005-087-1265 12 December 2005, Harrison J imposed a sentence of three  years  three  months  imprisonment  in  circumstances somewhat similar to the present case.   There, the lead charge was possession of

methamphetamine for supply, but there were additional charges of possession of cannabis for supply and unlawful possession of a firearm.  The police had executed a search warrant at the prisoner’s house, recovering some 15.4 grams of methamphetamine, $500 in cash, 1.8 kg of cannabis, and two rifles.  The Judge took a starting point of four years three months imprisonment on the lead charge, which he increased to four years nine months for the aggravating features stemming from the other charges, but reduced to three years three months to take account of the prisoner’s guilty plea, remorse and good prior record.   In that case the quantity of methamphetamine  was  very  similar  to  that  recovered  here,  but  there  were  the firearms, and of course in Tarawa there was the cannabis which is not an issue in this case.   On the other hand, you cannot point to a limited record, as could the prisoner in Tarawa.

[12]     Having considered the foregoing cases and others to which it is not necessary to refer specifically, I have reached the conclusion that the appropriate starting point is three years nine months imprisonment on the methamphetamine charge, but this must  be  increased  by three  months to  four years to  take  account  of  your  poor previous record, which includes a great deal of offending over the last five years or so.  So the final starting point is four years imprisonment.

[13]     The question that now arises is what degree of discount should be allowed for your guilty plea, and for the fact that a sentence of imprisonment will be rather more difficult for you to serve than would be the case for an able-bodied offender.

[14]   The guilty plea came relatively late, but Mr Ellis has explained the circumstances in which it was deferred.  Essentially, he says that when you obtained disclosure from the Crown and were able to consider the Crown case, you gave instructions that you wished to plead guilty.  You are entitled to the usual discount for the fact you did not put the Justice system to the cost and trouble of conducting a trial, in a case where the outcome was largely inevitable.   In my view this is a case in which it is appropriate to allow a discount of 25% for the guilty plea.

[15]     The more difficult question is what further discount ought to be allowed on account  of  your  medical  condition.    Section  8(h)  of  the  Sentencing  Act  2002 provides:

The court … must take into account any particular circumstances for the offender, that mean a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe.

[16]     The leading New Zealand case is R v Verschaffelt [2002] 3 NZLR 772, in which the Court of Appeal cited with approval the leading Australian case of R v Smith (1987) 44 SASR 587 at 589, where it was said that:

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender.   The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process.   Ill health cannot be allowed to become a licence to commit  crime,  nor  can offenders  generally  expect  to escape punishment because of the condition  of  their  health.    It  is  the responsibility  of  the Correctional Services authorities to provide appropriate care and treatment for sick prisoners.  Generally speaking ill health will be a factor tending to mitigate  punishment  only  when  it  appears  that  imprisonment  will  be  a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.

[17]     I have read the very detailed medical reports regarding your condition and its management while you are in prison, and have had the benefit of submissions this morning from Mr Ellis.  Of particular importance is the fact you have a colostomy bag and need to manage that, and everything associated with it.   The fact you are confined to a wheelchair gives rise to problems such as chafing and soreness from time to time, and you have medication to attend to.   You have had an ongoing problem with ulcerated areas which have required you to spend time in hospital at certain stages.  Mr Ellis has explained that in detail this morning and there is a great deal of information on the court file about that.   All of that is significantly more difficult to manage in a prison environment, although I note that you appear to be getting, in general, appropriate care from the prison and medical authorities, and to some degree, assistance from other inmates.

[18]     I accept however, as Mr Ellis submits that you are “doing it hard”.   For example, you need the assistance of others for bathing, and you are subject to a 15

hour lock-down regime which has its problems.  Mr Ellis mentions an incident when you slept on the floor of your cell, having fallen and been unable to get back into bed overnight.

[19]    In two recent decisions this Court has taken into account the effect of imprisonment on wheelchair-bound offenders.  In R v Woodgate HC WHA T35464

30  November  2004, the  prisoner  was confined  to  a  wheelchair  as  the  result  of separate motorcycle accidents, which resulted in the loss of parts of both legs.  He had pleaded guilty to seven charges involving cannabis and methamphetamine. Randerson J took a starting point of four years imprisonment, discounted by 12 months  for  the  guilty plea  and  a  further  12  months  for  the  prisoner’s  medical problems, so the final sentence was two years imprisonment.

[20]     In  R  v  Hastie  HC  AK  CRI  2005-054-703,  11  April  2006  the  prisoner appeared for sentence for cultivating cannabis and possession of cannabis for supply. Venning  J took  a  starting  point  of three  years  imprisonment,  increased  to  take account  of  prior  drug  offending  and  then  discounted,  to  take  account  of  the prisoner’s guilty plea and his medical condition.   The final sentence imposed was two years imprisonment.

[21]     As I have indicated, I am prepared to discount from the starting point of four years the overall sentence by 25% to take account of your guilty plea.  I propose to adopt the same approach as taken in Woodgate and in the special circumstances of this case to allow a further discount of 12 months, specifically for the purpose of recognising the additional difficulties you face by reason of your medical condition in serving a term of imprisonment.  Accordingly, the total discount will be two years.

[22]     In the result, on the single charge of possession of methamphetamine for supply you are sentenced to a term of two years imprisonment.

[23]     In the light of that sentence it is necessary for the Court to consider the question of home detention.  Mr Ellis makes no application on your behalf.  That is understandable, having regard to the provisions of the Parole Act and the length of

time you have already spent in custody on remand.   There is therefore no need to give further consideration to the question of home detention.

C J Allan J