R v Wilson HC Auckland CRI 2008-004-014013

[2008] NZHC 2585

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-004-014013

QUEEN

v

JAMES DEAN HEMI WILSON

Hearing:         19 September 2008

Appearances: N Webby for Crown

S Ellis for Prisoner

Judgment:      19 September 2008

SENTENCING NOTES OF JOHN HANSEN J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

S Ellis, Barrister, 14 Knox Street, Hamilton

R V WILSON HC AK CRI 2008-004-014013  19 September 2008

[1]      In May of this year prison officers searched the accused’s cell at Mt Eden Prison pursuant to the Corrections Act 2004.  They also had with them a drug dog. There was found in that cell a small plastic snap-lock bag containing remnants of a white crystal substance and a prohibited cellphone.   A thorough search of the cell found hidden in an internal cavity behind the cistern  white canisters containing approximately 13 grams of methamphetamine, with a street value of $13,000.  There was a single tab of LSD in a snap-lock bag, digital scales, ten small plastic strips fashioned into home-made snap-lock bags, a tick list recording debts and sales, and

12 Telecom phone cards valued at $175.  The summary of facts, which in this regard is not challenged, states that phone cards such as this are a trading commodity within the prison.

[2]      The position of Mr Wilson is that he was holding the items on behalf of others.  He was able to do this because of his role as a cleaner, but he maintains he only did it under pressure.   He apparently has given other names to the prison authorities.  The matter has gone no further because, of course, those other persons make a full denial of this.

[3]      Mr Wilson you are aged 43.  You left home at 15 and early in life became a patched member of a gang.  When your first child was born you ended your former relationship with the gang but it is clear you continued to associate with them and involved in criminal activity.  You have three children with your wife.  You own a home and your wife works in an important and responsible position.  She describes you as a great father but says since your release from prison some years ago you have got a significant issue with drugs.  You admit to being a daily user of cannabis and methamphetamine in the past but on occasions you have also used cocaine and ecstasy.  You may well be a great father but that is an appalling example to set for your children, as you now seem to recognise.

[4]      As I say, you contend you were holding these items on behalf of several others.  You were threatened by others to look after this contraband.  You accept the police summary of facts, but you think the value of drugs was overstated and claim you knew nothing about the tick list.

[5]      In relation to the pre-sentence report it is said that your continued drug abuse and your continued association with your criminal friends contributes to your offending.  That, of course, is self-evident.  You have spent time in Odyssey House in the past but continue to battle with illegal substances.  It is apparent you normally comply with Court orders and the probation officer describes you as a well spoken agreeable guy that does not carry through with much action for change.   In other words, despite saying things you do not walk the walk and you have not been able to break your cycle of offending and drug abuse.   The report writer accepts that imprisonment is the only realistic recommendation in your case.

[6]      Based on the dicta in R v Taueki [2005] 3 NZLR 372 (CA) and by reference to R v Fatu [2006] 2 NZLR 72, the Crown argue that your offending falls within Band 2, which is supplying commercial quantities between 5 and 250 grams. That is a wide band with terms of imprisonment from three to nine years. The Crown points to the aggravating features that this offending occurred in prison and that you have previous relevant convictions. They accept your very early guilty plea as a significant mitigating factor.

[7]      Your counsel stresses that you have assisted the authorities, that you were not the importer into the prison and that you should be placed right at the bottom end of R v Fatu.  He submits the starting point of three years is an appropriate one.  You have a wide range of previous convictions covering property and drug offences, along with a number of driving offences.  In terms of s 7 of the Sentencing Act 2002, the relevant purposes in your case are to hold you accountable for the harm, to promote responsibility and an acknowledgement of that, to denounce the conduct, to deter others and to protect the community.  Under s 8 I must take into account under the seriousness of the offending, consistency in sentencing and the least restrictive outcome.

[8]      In this case there are aggravating features.   The fact that it occurred in a prison, and I refer there to the decisions of R v Jacomb HC AK CRI-2002-004-

206137 11 March 2005, Priestley J and R v Sinclair HC AK CRI-2007-004-024323

30 June 2008, Harrison J, although I accept that they were cases of importation and you are not charged with importation into the prison.  The most serious offence, of

course, is supply of a Class A drug.  There is a level of premeditation involved, and there were also other drugs present: the LSD and cannabis plant, although you face no charges in relation to the latter.

[9]      I consider that it is proper you receive an allowance for your very early guilty plea, indeed a full allowance for that.  But the fact that this occurred within prison and the fact that you have suffered internal disciplinary measures does not in my view warrant, as your counsel suggested, some additional allowance.   I also think that although the follow up by the prison authorities has not led to any other charges being laid, you have given names which is an unusual feature, and in that regard I think some small additional allowance should be made.

[10]     Without detailing the circumstances of comparable cases I bear in mind the cases of R v I’U HC AK CRI-2007-004-9815 4 March 2008 Allan J, R v Wallis HC HAM CRI-2006-019-10117  29 August 2009  Allan J,  R  v  Hollingsworth  HC  AK CRI-2006-055-310 26 April 2007 Harrison J, and R v Cox HC HAM CRI-2006-019-

000265 4 May 2006 Baragwanath J, as giving some guidance.

[11]     In this case I am satisfied that you fall towards the lower end of Band 2 of R v Fatu, but it is not right at the bottom end.  In my view, on the most serious charge of supplying methamphetamine an appropriate starting point is one of four years’ imprisonment.  From that I do not consider any uplift is appropriate but significant allowance should be made.  Firstly, an allowance of one-third for your early guilty plea, which would take the matter to two years and eight months’ imprisonment. From  that  I  propose  to  make  an  allowance  for  your  assistance  to  the  prison authorities of another four months, leaving an end sentence of two years and four months’ imprisonment.

[12]     It follows that on the possession of methamphetamine for supply, you are sentenced to two years and four months’ imprisonment.  On the possession of LSD, you are sentenced to one month’s imprisonment concurrent

[13]     There will be an order for forfeiture of the drug paraphernalia and the phone cards.   In the circumstances that you are in prison there will be an order that the outstanding fines be remitted.

…………………………….

John Hansen J