R v Day DC Hamilton CRI-2010-019-10271 [2011] NZDC 930 (23 June 2011)

Last Updated: 3 October 2016

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI 2010-019-010271}

REGINA

v

_{ANDREW PAUL DAY}

Hearing: 23 June 2011

Counsel: J M O'Sullivan for Crown

MBJ Curran for Prisoner

Judgment: 23 June 2011

_{SENTENCING REMARKS OF FOGARTY J}

[1] Andrew Day you are 20 years of age. You are appearing before the Court having pleaded guilty to a number of serious charges: possession of a Class C drug, namely, 4-MEC for supply; selling cannabis; offering to sell a Class B controlled drug, namely ecstasy; possession of cannabis for sale; and while on bail awaiting sentencing, driving a motor vehicle on the road while under the influence of methamphetamine.

[2] The approach to sentencing is to first begin by looking at a prison sentence. Drug dealing usually requires a prison sentence and I had submissions from both counsel as to whether one treats as the lead offending the sale of the Class C drug, in which case one would start with R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62, a Court of Appeal decision, which indicates a starting point of between two and four years, in what is

_{called Band 2, or whether I should treat the culpability of this offending as based on}

R V DAY HC HAM CRI 2010-019-010271 23 June 2011

what your intention was, which was to sell a Class B drug, ecstasy, you not knowing that the drug you were selling was in fact not ecstasy but a Class C controlled drug.

[3] As I have had occasion to say in a number of sentencings, the most recent in a murder sentencing in Timaru about a week ago, I read the scheme of the Sentencing Act 2002 as focussed principally on the consequences of the offending on persons, and, secondly, on culpability of the person, which by and large often tends to load the sentence more according to the damage to the community by the conduct, rather than the question of culpability of the person who did the damage. For that reason, and I think consistent with the scheme of the Act, I should focus this sentence on the damage to the community, and the damage to the community was the sale of Class C drugs. Therefore, for that reason I start with Terewi.

[4] Now this actually was sophisticated offending. You were using three cellphones. You had a tick list. You had quite a lot of cash on hand. You were dealing in large quantities. You were clearly doing it not just to feed a drug habit, although you do have a drug habit, and I see from the driving offence that includes taking methamphetamine. You are clearly within Band 2 of Terewi. I should observe though that the offending appears to have lasted over a period of one month. In some ways, fortunately for you, you were apprehended before you had become a long term drug dealer.

[5] I am satisfied that the starting point should be in the region of two to four years. I had originally indicated that I would take a starting point of three years with an uplift for your culpability in intending to sell Class B drugs. But I have always also been trying to deal with the fact of your youth. In the circumstances, I am going to take a starting point of two and a half years, uplifting it to three years, both in combination for your culpability and trying to sell a Class B drug, ecstasy, and secondly, including, but not as I previously intended, the aggravated feature of you driving a motor vehicle on the road under the influence of methamphetamine.

[6] You are entitled to a 25% discount as a matter of your law because of your early pleas. The question is whether or not you should get any further discount by reason of remorse. The Supreme Court has recently left that matter to the discretion

of the sentencing Judge. I do take into account that Mr Watkins, the probation officer, who I am advised is an experienced probation officer, made his assessment of you without knowing the police summary of facts. But he certainly knew that you had pleaded guilty to charges of possession for supply of ecstasy, supply/administer ecstasy and selling/giving cannabis. In fact, he thought, based on the summary of charges that he was dealing with, both possession for supply and supply of class C drugs.

[7] As the Supreme Court pointed out in R v Hessell [2010] NZSC 135; [2011] 1 NZLR 607, the question of remorse is very subjective and is a matter for the sentencing Judge. I came into Court of a mind to send you to prison. I had been aware that you had gone back to your parents, that you were getting support from your family. I am very pleased to see your family here today. I was impressed by the submissions given by Mr Curran. I am of the view that you are entitled to a generous discount, and I was impressed that you had gone through a drug assessment. Overall, my judgment, supported I think by Mr Watkins, is that you are a youth who is capable of rehabilitation, and embedded in that, that is only possible where there is remorse.

[8] I have also taken into account the Court of Appeal decision of R v Hill [2008]

2 NZLR 381 which indicates that discounts can be given from starting points greater than usual in order to achieve a sentence of two years or less to enable home detention.

[9] I have decided that in this case, if at all possible, I will try to give you a lesson, a punishment, but will also try to fit you back into society. Sir Peter Gluckman, professor and scientific advisor to the Prime Minister, has recently produced a research paper which indicates that potentially 80% of young offenders, handled properly, given appropriate prison sentences, have a good chance of being rehabilitated and leading the rest of their lives as productive citizens. I am taking a chance on you, Andrew. I think you are in that category. This is a one time chance that you will get. You will have no show – you have as good a chance as winning lotto - if you go back to drug dealing and appear in front of the Court again and try to avoid a jail sentence. But I am encouraged by the recent research and the encouragement to the judiciary, also reinforced, as I have indicated in other

judgments in cases of youths 20 years and younger, to try and find a sentence which is a punishment, a signal to the community that the conduct is unacceptable and a deterrent to that behaviour but also with a prospect of rehabilitation.

[10] I am also very well aware that a long term sentence of home detention is actually very hard. It will be hard on you and hard on your family. I am of the view that it should be a long term sentence.

[11] So, for these reasons, having started with a starting point of two and a half years, taking it up to three, I am reducing it down to two years, which would be the indicative sentence if you were go to jail. That then enables me under the law to sentence you to home detention. I am sentencing you to home detention to the residence of your parents.

[12] The term of home detention will be eight months. You will also have to serve community work of 250 hours. You will attend all courses, particularly in relation to your drug dependency, and counselling, and follow recommendations as imposed by the probation officer. I am hopeful that you will be able to gain some employment. The vision I have of you is that for the next eight months you will be working every day of the week if possible. You will be working on the weekends doing community work and you will not be able to fit in drug offending in this environment. Of course, you will not be able to consume any drugs or alcohol and naturally enough you will be under close scrutiny by the probation officer and by your parents.

[13] You will find this hard. I will tell you now that persons after doing this for six months have just about had it, and a number of them after six months give it away and break home detention, and are back in deep trouble. So, be under no illusions that what I am giving you is going to be easy. But the goal is that you will during this period of time: break your drug dependency; give back to the community some of the damage you have done it; break your social connections which got you into all this trouble; and get ready to lead a positive life at the end of your term.

[14] There will be an order for destruction of all drug paraphernalia and an order for forfeiture of the cash and other chattels and materials retained by the police.

[15] The standard conditions for home detention apply and in addition the following:

You are to travel to 29 Madill Road, Hamilton, immediately following sentencing and release from Court, and await the arrival of the supervising probation officer and monitoring company.

You are to reside at 29 Madill Road, Hamilton, and not move address without prior written approval of a probation officer.

You are to attend and complete an appropriate alcohol and drug abuse programme, to the satisfaction of your probation officer and the programme provider. Details of the appropriate programme to be determined by your probation officer.

You are to abstain from the consumption of alcohol for the duration of your sentence of home detention.

Any proposed employment/training is to be approved by the supervising probation officer to ensure monitoring requirements are met.

[16] There will be the mandatory six months disqualification from holding or

obtaining a driver’s licence.

Solicitors:

Crown Solicitor, Hamilton

MBJ Curran, Hamilton, for Prisoner