R v Wright HC Auckland CRI-2008-092-002364

[2008] NZHC 2601

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-092-002364

QUEEN

v

DAVID STEPHEN WRIGHT

Hearing:         30 September 2008

Appearances: BR Northwood for Crown

CP Comeskey for Offender

Judgment:      30 September 2008

SENTENCING NOTES OF JOHN HANSEN J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

CP Comeskey, Barrister, PO Box 4304, Auckland

R V WRIGHT HC AK CRI-2008-092-002364  30 September 2008

[1]      Mr Wright  you  pleaded  guilty  to  three  charges  of  supplying  a  Class A controlled drug methamphetamine.   A total of 12.6 grams was supplied to three individuals on different occasions with the knowledge that the drugs were destined for a prisoner at Mt Eden Prison.

[2]      The first count relates to offending on 11 June 2007.  You arranged to supply

7.8 grams to a prisoner.  It appears that in the end only 1 gram of that reached the prison, with others along the route taking a cut.

[3]      Between 1 March and 30 April 2007 relating to count 38, during a police interview after an arrest on 28 June 2007 you said you gave a package containing

1 gram of methamphetamine to a woman at a meeting at a park in Mt Eden.  You understood that that was to be handed over by someone who would be visiting the prison.

[4]      The  final  count  relates  to  18 June  2007.    You  had  arranged  to  deliver methamphetamine to a prisoner at Mt Eden through a telephone conversation with the prisoner.  On 21 June 2007 you met with a Ms Haumaha and supplied her with

3.8 grams of methamphetamine to be delivered to that prisoner.  She delivered the drugs to the prison but staff intercepted them.  She pleaded guilty and was sentenced on 1 April this year to 12 months home detention.

[5]      It is apparent from the factual background that you received no return for your actions.  Because of a methamphetamine addiction your life had spiralled out of control.  You owed money to this prisoner and he persuaded you to act in the way you did.   You are aged 43.   You live in a house that you own with a long-term partner.  You have been in a business relationship with your brother but recently that deteriorated and it is currently in receivership.  You are in good health but it is noted that you have a harmful addiction that you have struggled to deal with.  You reported to smoking up to 2 points of methamphetamine at the height of that addiction.  That was no doubt a contributing factor to the offending and perhaps it also contributed to the strained relationship with your brother and business difficulties.  Because of that you borrowed money, which undoubtedly led to this offending.

[6]      It is accepted by the report writer that you have a high level of motivation to address the factors contributing to this offending.   You have apparently distanced yourself from former associates.  You have been assessed by Community Alcohol and Drug Services at a low risk of offending, where there is a letter which at the very least indicates some hope for you to turn your life around.   Your only previous convictions are traffic related and for present purposes I set them completely to one side.

[7]      In   this   case   the   relevant   purposes   of   sentencing   are   accountability, responsibility, denunciation of your conduct and deterrence of the offending, but one must  also  consider  rehabilitation  and  reintegration.     As  to  the  principles  of sentencing the Court takes into account the gravity of the offending and your degree of culpability.   In this case Class A drug offending is serious as a significant aggravating feature, which I will return to.  The Court must also take into account the seriousness of the type of offence in comparison with others, consistency of approach and imposing the least restrictive outcome.

[8]      There is a very serious aggravating feature in this case.   While, as  your counsel has properly put forward, there was no commerciality in your dealings, the drugs were for supply to prisoners.  You were aware of the ultimate destination of these drugs.  The mitigating factor is that you pleaded guilty.  That apparently was not until callover in the High Court, which reduces the discount that can be given.  I am told by your counsel that in fact you wished to plead guilty earlier but your then counsel refused to allow that to happen.  If such a matter was to be before the Court it needed to be before the Court in some proper form.

[9]      The Crown accepts that your case falls within the lower range of Band 2 in R v Fatu [2006] 2 NZLR 72. They say a starting point in the vicinity of three to three- and-a-half years is appropriate. Band 2 of Fatu  is  the  supply  in  commercial quantities of between 5 - 250 grams.   The starting point is three years up to nine years.  The Crown also acknowledges you are entitled to a reduction for your guilty plea, for co-operation with the police and, to a limited extent, the fact that you are motivated to change.  However, the Crown submits that the need here in cases of this

sort, particularly given the aggravating feature, is to hold you accountable, to denounce your conduct and to deter other offenders.

[10]     On the other hand, your counsel submits that this is right at the lower end of Band 2 of Fatu, which should be a starting point of three years’ imprisonment.  It is submitted that a substantial discount should be allowed for your guilty plea, your extensive co-operation with the police, and your willingness to address your drug addiction.     Mr Comeskey  has  pointed  to  the  probation  report  which  in  the circumstances of a case such as this unusually recommends the imposition of a sentence of home detention.

[11]     There are a number of comparable cases I bear in mind, such as R v Dunn HC AK CRI-2008-404-000076 21 August 2008, Andrews J; R v Wallis HC HAM CRI-

2006-019-10117 29 August 2007, Allan J; R v Hollingsworth HC AK CRI-2006-

055-310   26 April 2007,   Harrison J;   R   v   Lin   HC   AK   CRI-2006-004-25948

30 March 2007,    Asher J    and   R    v    Ropiha    HC    HAM    CRI-2005-091-715

6 December 2005, Frater J.

[12]     I also take into account the sentencing of Ms Haumaha the courier in the second of the counts to which you have pleaded guilty.   She was sentenced to

12 months home detention.  The Crown submits that that case can be distinguished as much less serious.  The amount was smaller.  It was one unsuccessful attempt at importation.  The cases that I have referred to show that a starting point of around four years’ imprisonment could be justified for the amount of offending involved. But I take into account the commerciality here is considerably lower than in those cases, there being no significant sums of cash, tick lists, ziplock bags, surveillance equipment or weapons.   In the circumstances, given the amount involved, I am satisfied a starting point as contended for by the Crown of three-and-a-half years is appropriate.

[13]     In setting that I take into account the serious aggravating feature that these controlled drugs were to be imported into a prison.  You were aware of that and you facilitated that.  It has been suggested in submissions that you were merely carrying out directions of a person to whom you owed money in prison, and that you did not

turn your mind to refusing to act in this way.  That may have had something to do with your drug addiction, but the reality is you had a choice and you chose to act in the way in which you have done.  In the normal course of events, given when you pleaded guilty an allowance of some 25 percent would be appropriate because it is not the earliest possible plea of guilty that would normally attract an allowance of one-third, I think it is appropriate that some further allowance be made to acknowledge  the  efforts  you  have  made  at  rehabilitation,  and  also  to  take  into account the level of co-operation with the police.  Accordingly I am satisfied that in the end a sentence of two-and-a-half years on each of these charges is appropriate.

[14] I now turn to the submission that you be sentenced to home detention. It is recommended in the probation report. You fall into the transitional provisions of s 57 of the Sentencing Amendment Act 2007. That means the current restriction on home detention, being limited to sentences of two years or less, does not apply. The Court of Appeal considered the matter in R v Hill CA559/07 29 February 2008. Under s 80C the Court has requirement to impose standard conditions, and under s 80D  special  conditions.    R  v  Hill  decided  that  in  that  small  window  of  the transitional period, home detention was available notwithstanding the fact that a sentence was longer than two years’ imprisonment.   Some guidance was given in that case as to the imposition of the new sentence in the methamphetamine context. At [33] the Court stated:

The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment.  The explanatory note [to the Criminal Justice Reform Bill] identifies the ‘acknowledged advantages’ of home detention as including ‘low rates of re-conviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation’.

At [37] the Court considered as important rehabilitative considerations.

[15]     The  home  detention  report  says  the  proposed  address  is  suitable.    The difficulty I have in this case is that there was some 12.6 grams of methamphetamine involved.  The situation is, in my view as the Crown submitted, different from your co-offender Ms Haumaha who was involved only once.  While she had considerably more convictions than you did, she faced one unsuccessful attempt of getting this

drug into the prison.   But for you, methamphetamine would not have got into the prison on two occasions.   The amount involved is significant and in my view the purposes of accountability, of denunciation and deterrence in this case outweigh the factors pointing to the grant of home detention.   Because of the amount of drug involved and the serious aggravating feature that these were going to a prison, I decline to sentence you to home detention.

[16]     Accordingly you are sentenced to a sentence of imprisonment of two-and-a- half years on each charge, to be served concurrently.

………………………… John Hansen J