Police v Dwyer [2016] NZDC 25861 (16 December 2016)

Last Updated: 26 February 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT TAURANGA

CRI-2016-079-000375 [2016] NZDC 25861

NEW ZEALAND POLICE

Prosecutor

v

SAMUEL JOHN DWYER

_Defendant

Hearing:	16 December 2016
Appearances:	D Pawson for the Prosecutor M Pecotic for the Defendant
Judgment:	16 December 2016

_{NOTES OF JUDGE P S ROLLO ON SENTENCING}

[1] Samuel John Dwyer, you are 28 years of age. You are for sentence today on a charge of possession of methamphetamine for the purpose of supply, possession of cannabis plant, breach of community work and a further charge of possession of methamphetamine simpliciter, which you pleaded guilty to today through your lawyer Ms Pecotic.

[2] The first two charges, of possession for supply of methamphetamine and possession of cannabis, were the subject of a defended hearing before me. I delivered a reserve decision on 26 August 2016, finding you guilty of those two charges, on the basis that you were in possession of a bag in which the bulk of

_{those drugs were found. Subsequently, you have been remanded for sentence.}

NEW ZEALAND POLICE v SAMUEL JOHN DWYER [2016] NZDC 25861 [16 December 2016]

[3] The further charge of possession of a small quantity of methamphetamine arose on 24 August this year, when you were arrested by police with approximately

1.5 grams of methamphetamine.

[4] The methamphetamine, the subject of the possession for supply charge, is

9.6 grams of methamphetamine which was found in a large screw-top container and then a further 1.1 grams in a small screw-top container. The quantity of cannabis was 2.7 grams located in two separate snap lock bags.

[5] Ms Pecotic has filed sentencing submissions. She submits that the appropriate starting point, and indeed the finish point for the lead offence of possession for supply of methamphetamine, is two and a half years’ imprisonment. That is consistent with authority.

[6] Mr Pawson, the police prosecutor, submits a slightly higher starting point in accordance with band two of the lead offence of Fatu v R1. My view is, that given the scale of the offending and the fact that you are a chronic user of methamphetamine, that some of the methamphetamine recovered it would seem was for your personal use, that an end sentence of two and a half years for the lead offence of possession for supply of methamphetamine is the appropriate outcome. That has regard to the circumstances of the offending, the quantity involved and your personal circumstances as well.

[7] On that lead offence of possession of methamphetamine for supply, you will

be convicted and sentenced to two years and six months’ imprisonment.

[8] There will be a forfeiture order of the money recovered from the bag in which the drugs were contained, in the sum of $2139.50, forfeited to the Crown under the Misuse of Drugs Act 1975.

[9] In respect of the charges of breach of community work and possession of the

_{small quantity of cannabis, you are convicted and sentenced to one month’s}

1 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA)

imprisonment. That will be concurrent in each case with the sentence I

have imposed.

[10] The further charge of possession of methamphetamine arising from

24 August 2016 is separate offending and on that charge, which of course was committed whilst you were on bail on the previous offending which is an aggravating circumstance, you will be convicted and sentenced to two months’ imprisonment cumulative, on the two years and six months imposed for the lead offence of possession of methamphetamine for supply.

[11] That gives a total end sentence of two years and eight months’ imprisonment

for the offending.

[12] One of the issues which arose in the course of Ms Pecotic’s submissions is the fact that after your offending you were recalled. Ms Pecotic has referred me to the provisions of s 91 Parole Act 2002 and the fact that the period after your recall, in effect, is not taken into account as pre-sentence detention for the purpose of calculating your current sentence. In that regard Ms Pecotic has referred me to the

cases of Vernon v R2. I note also the decision of Tukuafu v R3. In that case the

Court of Appeal accepted that failure to take into time spent after a recall application pending further sentence, can lead to double accounting in effect and that it should properly be taken into account in calculation of an end sentence.

[13] Ms Pecotic accepts that in your case, Mr Dwyer, there is the aggravating circumstance of your offending on bail in August 2016. That would justify an increase in the top point of sentencing but allowing for the double accounting aspect, of you having been recalled that effectively would cancel that out. I accept that, following the principles in the case of Tukuafu that I have referred to.

[14] I am going to, in fact, adjust the sentence relating to possession of methamphetamine on 24 August 2016 to give further allowance to that. I reduce that

_{sentence to one month’s imprisonment cumulative.}

2 _{Vernon v R [2010] NZCA 308}

3 Tukuafu v R [2015] NZCA 251

[15] That will be a total end sentence of two years and seven months’ imprisonment for all offending, with the order of forfeiture of the money as I have referred to.

P S Rollo

District Court Judge