R v Ward
[2015] NZHC 505
•16 March 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-009711 [2015] NZHC 505
THE QUEEN
v
MICHAEL DAVID WARD
Hearing: 16 March 2015 Counsel:
D Dufty for the Crown
H E Juran for the DefendantJudgment:
16 March 2015
SENTENCING NOTES OF ASHER J
Solicitors/Counsel: H Juran, Auckland.
Crown Solicitor, Auckland.
R v WARD [2015] NZHC 505 [16 March 2015]
[1] Mr Ward, you appear for sentence today having pleaded guilty to the following charges:
(a) one charge of permitting premises to be used for the supply of methamphetamine, an offence under s 12(1) and (2)(a) of the Misuse of Drugs Act 1975, carrying a maximum penalty of 10 years’ imprisonment;
(b)one charge of making a document with intent to deceive, an offence under s 258(1)(b) of the Crimes Act 1961, carrying a maximum penalty of 10 years’ imprisonment; and
(c) one charge of supplying the Class A controlled drug methamphetamine, an offence under s 6(1)(c) of the Misuse of Drugs Act 1975, carrying a maximum penalty of life imprisonment.
[2] The lead charge is the charge of permitting the premises to be used. The circumstances were that you leased a property in Onehunga for your signwriting business. For a period of just over a month, between 22 July 2013 and 28 August
2013 you allowed members and associates of the Black Power gang to visit your premises and on occasions supply methamphetamine. You were not involved in organising these occasions. In supplementary submissions I was informed that there were approximately six instances.
[3] The Crown accepts that the amounts involved were small, although the exact amounts are not known.
[4] In relation to the other counts, the possession of methamphetamine for supply related to 0.75 grams. There does not appear to have been any profit motive.
[5] As to the forging documents count, a Holden Commodore had been stolen by an associate of yours. It was arranged that you would make fake numberplates for the Holden Commodore, which you proceeded to do. They were a good replica and they were placed on the vehicle. The vehicle was then sold.
[6] The Crown submits that the appropriate starting point for the permitting premises count is approximately 18 months’ imprisonment. It submits that there should be an uplift of 12 months for the other two charges.
[7] Mr Juran for you in his submissions has pointed out that there is no tariff decision for the offence of permitting the use of premises, and that a starting point of less than 18 months is appropriate. He submits that there should be a modest increase in relation to the further counts, reflecting the lack of commerciality.
Starting point
[8] Mr Ward, I have to fix a starting point for your offending which reflects the culpability of your offending and is to be fixed without considering matters that might either aggravate or mitigate the sentence from your personal point of view. So I look just at the culpability of the offending without considering your personal circumstances.
[9] As to the culpability of the offending, I accept that in relation to the permitting the premises count, your offending was far from the most serious type of this offending. There is no decision which sets a scale or tariff for your sort of offending, although the maximum term at 10 years indicates how serious the offending can be.
[10] I have been referred to or considered a considerable number of High Court decisions where there have been sentences imposed, including R v Bate,1 where a starting point of two years and six months was fixed. The premises there had been used for manufacturing methamphetamine and the defendant was to be paid $500 up front and $4,500 after the completion of manufacture. There were also further sums to be paid. That starting point being two years and six months can be seen as appropriate where the culpability is at the higher end, although obviously there can
be far more serious cases than that.
1 R v Bate [2014] NZHC 237.
[11] I have also considered a number of other sentences where a starting point of two years’ imprisonment was fixed where the premises were used for the manufacture of methamphetamine.2 At the lower end of the scale was R v Levet,3 where a wife allowed her husband to supply methamphetamine from the premises. Lang J observed that a starting point of around 18 to 20 months could have been appropriate, although there were other aggravating factors in that case.
[12] I do think that reflecting the difference between supply and manufacture acknowledged in R v Fatu,4 that permitting premises to be used for supply is less serious than permitting premises to be used for manufacture. The amount of methamphetamine supplied is relevant, and the number of occasions. Here the supply amounts were small, but there were a number of occasions. The duration of the overall period can be a relevant factor, and here I note it was a bit more than a month.
[13] The duration of the offending and the number of occasions puts your case above the very bottom of the scale. Nevertheless, I do see it as low in terms of culpability and I fix a starting point of 18 months.
[14] I must consider then the other offending. The supply, given the small amount and non-commerciality, would definitely come within band one of R v Fatu. The fraudulent manufacture of the numberplate is a more serious count. However, taking into account the totality principle and the fairly low order of culpability on your part in relation to all offending, I consider an uplift of nine months to be fair.
[15] That means that your sentence starting point is 18 months, plus nine months,
a total of two years and three months’ imprisonment.
[16] I now turn to what uplifts or discounts are appropriate because of your personal circumstances.
2 R v Homburg HC Auckland CRI-2007-092-6572, 22 April 2009; and R v Langi HC Auckland
CRI-2006-092-9147, 4 November 2008.
3 R v Levet HC Hamilton CRI-2007-019-10276, 15 October 2009.
4 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410 (CA).
[17] The surprising and if I may say so sad feature of your personal circumstances is that you have no previous convictions prior to this. You are entitled to a meaningful credit for the good character that you have shown in your life to-date. I propose deducting a little more than 10 per cent of your sentence on account of that, which brings your sentence down to 24 months.
[18] There is a second factor. I will be saying more about the time you have spent with Wise Guys the Men’s Group (Wise Guys) shortly when I consider home detention, but you have been at Wise Guys as a resident on 24 hour curfew since pleading guilty approximately six months ago. You have thus been in a monitored environment in a situation where your personal liberty was restricted. You were effectively held in an institution for that period of time.
[19] I consider the appropriate deduction that should be made for this is a further three months, which reduces your sentence to 21 months. From that 21 months I propose giving you a full credit for the guilty plea you have entered of 25 per cent. Applying that discount your sentence should be just under 16 months’ imprisonment and I propose, given all the factors I have referred to, to fix a final sentence of one year and three months’ imprisonment. This is a lenient sentence and reflects the various factors I have referred to.
Home detention
[20] Mr Ward, I hardly need to say that you would be a prime candidate for home detention. Your offending appears to have been one-off. You have shown good character in the past and you have the support of those people who run Wise Guys who support your application for home detention.
[21] Under s 7(h) of the Sentencing Act 2002 I must assist your rehabilitation and reintegration, and under s 8(g) I must impose the least restrictive outcome that is appropriate. These point to home detention.
[22] However, s 80A of the Sentencing Act, when creating the sentence of home detention, provides at s 80A(2) that the Court must be satisfied that the proposed home detention residence is suitable. When this matter was first called in December
2014 I received helpful submissions not only from your counsel, but from a representative of Wise Guys who explained how Wise Guys works and why it considered you would be suitable as a home detention resident.
[23] The Crown, however, has not felt able to support a sentence of home detention for you. I have a number of reports or provisions of advice from probation officers. In particular I have heard from a senior probation officer (referred to as a senior practitioner) Mr Moin Shariff. They are supportive of Wise Guys and respect the work done by it, but they do not consider Wise Guys an appropriate residence for home detention.
[24] Wise Guys is a private organisation which occupies a significant building at the premises previously known as Kingseat Hospital. It provides an educational and therapeutic retreat for men and provides accommodation and rehabilitation support. There are approximately 50 residents. I have a detailed letter regarding Mr Ward from Stephan John, who spoke to me at the last call of this matter about Mr Ward and I am impressed by the scale of its work, its goals and the energy it clearly puts into trying to assist men in need. Wise Guys has in fact gone to the trouble (and I am grateful to them for this) of obtaining written consents from the current residents for Mr Ward’s detention there. In this respect they have sought to comply with s 80A(2) of the Act.
[25] The probation officers did not in any way criticise the way in which Wise Guys is run. However, they point to difficulties that would arise should Mr Ward be sentenced there on home detention. The 50 residents include persons from all walks of life, but they do include persons on bail who are not being subjected to any particular monitoring or rehabilitation (save those that are part of conditions of bail). They can include former or even current gang members or associates.
[26] Mr Shariff has also referred to a difficulty in interviewing Mr Ward. Traditionally probation officers visit a detainee on home detention every two days. While Mr Ward does have his own private room, the very public nature of the institution and the fact that there are many other persons who may know particular
probation officers or have particular inquiries or concerns, can pose a challenge for officers when they visit.
[27] If I compare what is proposed by Mr Juran in terms of home detention at Wise Guys with ordinary home detention, the obvious difference is that rather than just reside with a limited number of approved occupants (more often than not family or friends of the detainee), Mr Ward will reside with a constantly changing large group of men, many of whom themselves will have issues and troubles from which he will not be able to be completely insulated. Given that a reason for his offending was that he was put under pressure by gang members, he may again find himself in a position where he is placed under pressure.
[28] Mr Juran has submitted to me that this is unlikely, and I must say I am impressed by Mr Ward’s commitment to never re-offend. Nevertheless I have to say looking at the matter objectively that there are significant risks if I order home detention. I summarise these as follows:
(a) The risk of him being influenced by other residents in a way which could lead him towards criminal behaviour. It seems to me a basic proposition that home detention detainees should not live with people who can impose pressure on them to offend again. This cannot be guaranteed in the environment presently proposed.
(b)There is the risk that just by being in such an environment Mr Ward could find himself involved in incidents or occasions where his own safety or future could be placed at risk. I emphasise that this is a much lesser danger than the first, but it remains a possibility that would not arise in a normal home detention environment.
(c) There are added logistical difficulties such as monitoring (with such a large group of people), access (the premises are relatively isolated and a distance away from the nearest Police Station), and the ability to organise quick and efficient visits by probation officers.
[29] I regret to say that a combination of all these factors mean that the proposed home detention residence at Wise Guys is not suitable in my judgment. In those circumstances I will not order home detention as an alternative to imprisonment.
[30] There is no other sentence that is appropriate. The next sentence in the hierarchy of a community-based sentence is intensive supervision and community detention. This would not be an appropriate response to this type of methamphetamine offending. Indeed Mr Juran has not pressed that option on me.
[31] The fact that Mr Ward might be entirely suited to home detention at a suitable address does not mean that because there is no suitable address he should get a lesser sentence. It just means that the alternative to imprisonment, which was home detention, is not available.
[32] I record that this has been a long sentencing process and I express my gratitude to the Crown and Mr Juran as counsel for Mr Ward. I also express my gratitude to the representatives of Wise Guys who have taken the time and effort to come to Court now on two occasions to speak to me. I also express my gratitude to Mr Shariff for coming today.
[33] So stand up please Mr Ward.
[34] Mr Ward, I sentence you to a term of imprisonment of one year and three months on the permitting premises to be used for the supply of a drug charge. I sentence you to a term of imprisonment of one year imprisonment on the altering a document with intent to defraud, that to be a concurrent sentence. I sentence you to a term of imprisonment of six months for the possession for supply count, that term also to be concurrent.
[35] The total sentence therefore is a sentence of one year and three months’
imprisonment.
……………………………..
Asher J