R v Wilesmith HC Auckland CRI 2006-044-7541
[2008] NZHC 2281
•29 April 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-044-7541
QUEEN
v
GREGORY WILESMITH
Hearing: 29 April 2008
Appearances: K Glubb for Crown
R Mansfield for Prisoner
Judgment: 29 April 2008
Sentence imposed: Manufacturing methamphetamine
12 months’ home detention
Possession of equipment for the manufacture of methamphetamine (x 2)
9 months’ home detention (concurrent)
Possession of material for the manufacture of methamphetamine (x 2)
9 months’ home detention (concurrent)
Possession of precursor substances for the manufacture of methamphetamine (x 2)
9 months’ home detention (concurrent)
SENTENCING NOTES OF ASHER J
Solicitors:
R V WILESMITH HC AK CRI 2006-044-7541 29 April 2008
Meredith Connell, PO Box 2213 Auckland
R Mansfield, Barrister, PO Box 2674, Shortland Street, Auckland
[1] Gregory John Wilesmith, you pleaded guilty to seven counts of drug offending as follows:
a) Manufacture of the Class A drug, methamphetamine, carrying a maximum penalty of life imprisonment;
b) Possession of equipment for the manufacture of methamphetamine
(x 2), carrying a maximum penalty of five years’ imprisonment;
c) Possession of material for the manufacture of methamphetamine (x 2), carrying a maximum penalty of five years’ imprisonment;
d)Possession of precursor substances for the manufacture of methamphetamine (x 2), carrying a maximum penalty of five years’ imprisonment.
[2] On 16 October 2006 the police executed a search warrant at unit 3 of the
Edgewater Motel at Orewa. You occupied that motel unit between 9 and
16 October 2006. Located in the unit were precursor chemicals, materials and equipment capable of being used in the manufacture of methamphetamine. The ESR analysis determined that the equipment and materials had been used to manufacture methamphetamine based on traces of methamphetamine detected.
[3] On 31 October 2006 the police located you at your residence at
252 Sandringham Road, Sandringham. When the police arrived there was a strong chemical aroma and on investigation precursor chemicals, materials and equipment used in the manufacture of methamphetamine were located. When the police spoke to you, you admitted that the equipment and materials belonged to you. You further stated that you had been manufacturing methamphetamine for around 15 years, advising that you manufactured it for your personal use and would administer it intravenously. You stated that you did not sell methamphetamine.
Approach to sentencing
[4] There are a number of unusual features relating to your circumstances, to which I will refer shortly. The starting point in methamphetamine sentencing is always R v Fatu [2006] 2 NZLR 72 and the various bands set out therein applicable to the manufacturing of methamphetamine. The manufacturing of methamphetamine charge is of course the lead charge for sentencing purposes. Your counsel, Mr Mansfield, seeks a sentence of home detention and, unusually given the gravity of the charges, this is not opposed by the Crown.
The offending
[5] The offending to which you pleaded guilty relates only to the period between
9 and 16 October 2006. Given that limitation in the indictment it would be wrong to sentence on the basis of your admission of manufacture over a much longer period, although that admission is relevant for the purposes of assessing the culpability of the offending to which you pleaded guilty.
[6] The Crown does not contest Mr Mansfield’s submission that there was no commerciality in the manufacture. This is a highly relevant factor in assessing culpability. It was observed at [33] in R v Fatu in relation to importation and supply cases involving small quantities of the drug for personal consumption only, that the appropriate sentence may lie beneath the bands postulated. There is undoubtedly a difference in culpability between those who manufacture for commercial gain and those who manufacture for their personal consumption, or possibly to occasionally share with friends. The remarks in R v Fatu were directed to cases involving importation and supply, but I see no reason why they should not also apply to the manufacture of methamphetamine, although it must be acknowledged that manufacture involves more premeditation and continuity of effort than instances of simply supply. I do not overlook the presumption of commerciality in relation to manufacturing referred to in [42] of R v Fatu, but here I have the unusual circumstance of the Crown accepting that there was no commercial purpose, a conclusion which I accept.
[7] Mr Glubb for the Crown submitted that for sentencing purposes a starting point at the lower end of band two would be appropriate. The range for band two is four to eleven years’ imprisonment. Reference was made to a number of cases including R v May HC AK CRI-2004-004-001367 27 November 2007 Cooper J; R v Ranford & Cuneen HC NP CRI-2005-043-2237/2238 7 February 2006 Potter J, where starting points in the area of three years and nine months’ imprisonment were adopted on manufacturing counts where there was no evidence of commercial enterprise. While there is no doubt that if there was commerciality involved, you would face a starting point for sentence well within band two of R v Fatu, on the particular facts of this offending I consider that the appropriate starting point is in the vicinity of three years and nine months’ imprisonment.
Matters relating to Mr Wilesmith personally
[8] It must first be said, Mr Wilesmith, that you immediately admitted your offending and are entitled to a full discount for a guilty plea. There are two other very unusual features that arise. First, I note your particular co-operation with the authorities and in this regard there is a sealed envelope on the file, which is not to be opened without the leave of the Court. The second matter relates to your remorse and rehabilitation, and has taken most of the time of this Court and occupied most of Mr Mansfield’s powerful submissions in your support.
[9] You have had the most dismal life history as an adult. The probation report records that despite having completed a building apprenticeship and being a capable builder, you have spent much of your adult life reliant on drugs. As a consequence you have a long record of minor offending, although I note that you have no convictions for serious drug offending. You have served sentences of imprisonment and have been denied home detention. Until you were arrested on this occasion you had never undertaken an intensive rehabilitation programme. The material on the file shows that Mr Mansfield did not exaggerate when he said that if you had not been arrested and stopped from using drugs you were going to die within the next few years from your drug addiction.
[10] What is remarkable is the dramatic turnaround, for the first time in your life, which has resulted from this most recent arrest. You have had the good fortune to receive the services and help of the Salvation Army. You have attended the Army’s Bridge programme, which treats drug addiction, and you have successfully completed various other programmes. I will say more about the Salvation Army and your relationship with it shortly, but I record that I am entirely satisfied that you have faced your addiction and endeavoured to defeat it.
[11] The probation report assesses you as a medium risk of re-offending, and it is clear that since you have been arrested you have not taken drugs. Thus although personal circumstances are only a limited mitigating factor in relation to serious drug offending, you are entitled to a discount on top of your guilty plea for your efforts to rehabilitate yourself.
[12] I take the guilty plea, the co-operation and the efforts at rehabilitation in deciding on the appropriate discount for your personal circumstances. I consider that the appropriate discount would be in the order of 50 percent. For reasons that I will shortly outline it is not necessary to be more precise than that.
Home detention
[13] Your offending took place before the coming into force of the new provisions relating to home detention. Your position is the same as that of the offender in R v Hill [2008] NZCA 41, so the transitional provisions of the Sentencing Act 2002 make you eligible for home detention whether or not you would have otherwise been sentenced to a short-term sentence of imprisonment. However, I can record that because of the unusual factors that I have mentioned, you would have been sentenced to a short-term sentence of imprisonment of two years or less in any event. There is also no doubt that in terms of s 15A of the Sentencing Act 2002 the purposes for which this sentence is imposed cannot be achieved by any less restrictive sentence than imprisonment or home detention.
[14] The question then is whether home detention is appropriate in your case. I
am mindful of the comments in R v Hill as to the purpose of the 2007 amendment
making home detention an alternative sentence that can be imposed by a Court. One purpose is to reduce the number of people held in our prisons by providing an alternative sanction, which in terms of s 10A of the Sentencing Act 2002 is ranked directly behind a sentence of imprisonment in terms of seriousness.
[15] Ordinarily, as Mr Mansfield has observed, a person with a history such as yours would not be considered suitable for home detention. A long-term addiction to drugs and repeated offending over the years would be disqualifying factors. What puts you in a different category is the amazing turnaround that you have achieved in your life since your arrest. You have so impressed the Salvation Army that three very senior members have come to Court today to express their support for you. Two of them have spoken on your behalf. They have told me of the genuineness and success of your rehabilitation efforts.
[16] As Mr Mansfield submitted, it is not often that this Court sees cases of genuine rehabilitation at the time of sentence. However, what I have been told satisfies me that that is what has happened here. You have obviously achieved physical success in controlling your addiction with the help of the Salvation Army, but also you have been able to start work again. You began by doing some work for the Salvation Army on a voluntary basis, but you are now out in the workforce working as a builder on your own account with considerable success. You clearly have skills and ability.
[17] Most persuasive of all is the fact that the Salvation Army has taken the most unusual step of stating that you may carry out your sentence of home detention at its lodge, Epsom Lodge, at 18 Margot Street, Epsom. This lodge has 90 residents. The Salvation Army has never before accepted a person as appropriate for home detention at that address. It is an extraordinary step and I note that the probation officer has reservations because you will be coming into contact with other persons who have used drugs. However, the Salvation Army is undoubtedly in a position to continue to help you with your recovery and to monitor you. You have signed a home detention release agreement indicating your understanding of a need to comply with the requirements of home detention, and you are assessed by the probation officer as suitable for home detention.
[18] Home detention is a stand-alone sentence. The appropriate period is not necessarily to be determined by the mechanical process of halving the prison sentence to which an offender would otherwise be sentenced. The default prison sentence is obviously relevant but in the end an appropriate period must be calculated on the basis of the nature of the home detention sentence itself. In your case I consider that a period of 12 months is appropriate on the conditions set out in the pre-sentence report.
[19] Mr Wilesmith, on the count of manufacturing the Class A controlled drug methamphetamine, you are sentenced to 12 months’ home detention.
[20] On each of the other six counts relating to possession of precursor substances, equipment and materials, you are sentenced to nine months’ home detention. Those sentences are to be concurrent.
[21] The specific conditions of home detention are as follows:
a) You are to travel today directly to 18 Margot Street, Epsom, Auckland, to await the arrival of the supervising probation officer and monitoring security officer.
b)You are to reside at 18 Margot Street, Epsom, Auckland, for the duration of the home detention.
c) You are to attend any counselling and/or programme including alcohol and drug treatment as may be directed by the probation officer.
d)You are to abstain from the use of and not be in possession of alcohol or illicit drugs for the duration of the home detention.
e) You are to undertake any such employment/training as approved by the supervising probation officer.
[22] Mr Wilesmith I want to conclude by first thanking counsel for both the Crown and the defence for their excellent submissions. I also wish to thank the three senior members of the Salvation Army who have taken time out of their busy day to come here today.
[23] You have been pulled back from the abyss, but it is still before you. I have no doubt that you are fully aware that you could easily fall again, and this time if you fall there will probably be no return. However, from what I have heard there is every chance that you will not fall and that you will continue to lead the fulfilling and useful life that you are now leading in our community. So I congratulate you on what you have achieved so far and I wish you all the best.
………………………….
Asher J
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