R v Paterson [2017] NZDC 1032 (23 January 2017)

Last Updated: 4 April 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED}

IN THE DISTRICT COURT AT HAMILTON

CRI-2016-019-005663

CRI-2016-019-005607 [2017] NZDC 1032

THE QUEEN

NEW ZEALAND POLICE

v

_{BRYCE KARNE PATERSON}

Hearing:	23 January 2017
Appearances:	S Gilbert for the Crown Sergeant L McMaster for the Prosecutor New Zealand Police R Boot for the Defendant
Judgment:	23 January 2017

_{NOTES OF JUDGE P R CONNELL ON SENTENCING}

[1] Mr Paterson, at the age of 24, you appear for sentence on serious charges. You know from your discussions with your own lawyer just how serious they are. You will also know that throughout New Zealand, in order to ensure that people are consistently sentenced with offences like this, there is set by the Court of Appeal and higher Courts than this one, certain patterns of sentencing.

[2] Mr Boot for you asks that I lower the sights a bit. The Crown says on the basis of research of other cases, and considering that need for consistency, that you should have a slightly higher sentence.

[3] Today is the day where I come to a conclusion about what the sentence will be.

THE QUEEN v BRYCE KARNE PATERSON [2017] NZDC 1032 [23 January 2017]

[4] You know why you are being sentenced. You, in fact, were someone who has sold and offered to supply methamphetamine, that you have sold cannabis and offered to supply cannabis to others, and then there was the possession of weapons and so on. Those things all coming to a head once you have pleaded guilty and I acknowledge here that your plea of guilty did come at an early stage.

[5] Just so that you are clear – the charges are offering to supply methamphetamine, selling methamphetamine and selling cannabis. Those three are all representative charges, meaning one charge covers quite a large number of offences and gathered together under the umbrella of one charge. But the number of times you committed these offences is going to be reflected in the sentence itself.

[6] On the unlawful possession of the firearm – there are two counts in relation to that to which you have pleaded guilty, possession of an offensive weapon, possession of utensils, and also possession of cannabis on its own. Then, a charge of unlawful possession of ammunition.

[7] The offending involved supplying 2.5 grams of methamphetamine. Mr Boot on your behalf asked me to take account of that to say it was not a large amount of methamphetamine sold. He is saying that therefore the Crown perhaps should determine that the required sentence is less than what the Crown in fact have submitted. You have offered to supply 28 grams of methamphetamine, you have sold 417 grams of cannabis and you offered to sell 2.962 kilograms of cannabis. Then you were in possession, when the police stopped your vehicle on the day that they did, of a double–barrel shotgun, a .22 calibre rifle, shotgun cartridges, and 22 rounds. There were glass pipes for the consumption of methamphetamine and you also had at the time 18 grams of cannabis.

[8] You are not someone who has a firearms licence. You should not have been in possession of those items. The trouble for you is that when it comes to sentencing anybody who has been dealing drugs, it is always an aggravating feature if they have firearms with them. The idea of the firearms, I always understand, is to ensure protection of yourself but that is not something that is any sort of justification or excuse for having firearms of that nature.

_{[9] I have to be guided by the judgments of higher Courts, as I have said. The}

_{major decision that sets the benchmark for offending of this nature is R v Fatu.}1

_The

Court on that occasion set out a series of categories that can be assessed and sentenced accordingly.

[10] In your case, the Crown and your counsel agree that band 2 or category 2 of that particular case, which involves supply of commercial quantities from five grams up to 250 grams, requires a sentence of three to nine years’ imprisonment. So, for the volume and the quantity there can be an adjustment made anywhere in that range. In this case, your counsel says four years and the Crown say five years for that category 2 offending according to the Fatu decision. There is no argument between

_{them about that.}

_{[11] I have also had regard to the decision of R v Paki–Edwards.}2

_{That was}

submitted to me because of the similarity between the facts of that case and your own case. In Paki–Edwards, the Judge adopted a starting-point of four years’

_{imprisonment and gave a discount for guilty plea and remorse.}

[12] In the submissions of the Crown, the Crown rightly suggest that the lead charges for the purposes of sentencing in all of this are the methamphetamine sale and offering to supply. They say that this was a commercial enterprise, your offending was prolific over a period of time, and the Court has to take account of that. Of course that is right. The five–year starting-point comes from their own

_{conclusions around the factors set out in the Fatu decision.}

[13] In this case, they also seek an uplift of nine months’ imprisonment for the Arms Act 1983 offending and a further 15 to 18 months’ imprisonment for the cannabis offending. What the Crown have said this morning is correct, that standing on its own, if it was just the cannabis offending, you would be looking at a sentence

_{somewhere between two to three years’ imprisonment.}

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

2 R v Paki–Edwards HC Auckland, 4/2/2010, CRI–2008–092–17198, Hansen J.

[14] What the Court always recognises is that when imprisoning people, some account and some allowance should be made for the totality of the offending; in other words it is a reduction for you. The Crown recognise that, suggesting here that there should be something like a 14–month term of imprisonment. Your counsel argues on the basis of totality and the circumstances of the offending itself that it should not be 14 months, but nine months.

[15] The Crown here argue that you should not get the full 25 percent credit for your guilty plea. They do so on the basis that, although it might be said there needed to be a wait before a plea could be entered for text messaging to come to light from the police station and the records relating to that, in this case, the Crown simply argue that you knew what was in the text messages; none of that would have been a surprise. You would not need to have that information from the police to make the decision to plead guilty. Your counsel argues against that, saying that you are entitled to advice once the full extent of the case is known in every detail. That is the purpose of discovery and to some extent I accept that argument.

[16] In this case, your counsel acknowledges this is band 2 of Fatu, that the starting-point should be four years, and that it is accepted there should be a nine–month uplift for the cannabis and a six–month uplift for the firearms offending. Those are things I have to consider because the maximum term of imprisonment on the firearm offending is three years. In this case, you do have a previous conviction.

[17] Then your counsel Mr Boot seeks a one–month uplift for the series of assaults which were carried out by you on 12 September this year, where you quite severely assaulted your father, your grandfather, and headbutted another person. There is a charge in respect of each of those. Mr Boot is saying that only one month should be added to your sentence in respect of that offending to which you have pleaded guilty.

[18] The concurrent approach is appropriate. In terms of the drug matters, I will deal with those first. I have come to a conclusion, when I look at this and the prolific nature of the offending, that a four–year and six–month term of imprisonment is warranted. That will be the sentence starting-point for the

methamphetamine charges. I also consider here that there should be a 10–month uplift for the cannabis offending. I cannot simply sweep aside the notion that on its own it would be between two to three years. It is a considerable reduction to take account of totality, down to 10, especially given the circumstances of the sale and offering to supply cannabis in this case.

[19] On the firearms matter, the arms that you were found with, et cetera, what is always to be borne in mind is that there is a maximum term of imprisonment of three years imposed for possessing firearms without a licence. In this case, the use of the firearms being with you in the course of drug selling is an aggravating feature of it.

[20] I do accept the principle of totality has to be applied and applied in a generous way. In this case, I have come to a conclusion, given the other sentences imposed, that a six–month uplift should be imposed for those firearms.

[21] On the drug matters, the total number of months (as it is easier to calculate) is

70. I reduce it by 17. That is a 53–month term. That is, as you will understand it, four years and five months.

[22] The quite separate, different series of assaults that you have pleaded guilty to do require, in my view, more than simply a month. When you consider the number of them, the fact that a threatening to kill charge, you acknowledge, is one that carries a maximum term of seven years, the circumstances of that, given that it was your family in the main that you were offending against, and given the fact that you were responsible for taking drugs – even though you can say you probably would not normally behave like that and I fully accept that you do not have a record for it – it is still a frightening and terrifying matter for the people that you offended by way of punching them in the head and headbutting. I have to consider the totality principle on the threatening to kill charge. In my view, I would normally have imposed here at least a year’s imprisonment. The principle of totality means that I should reduce that by six, and again impose a discount of two months. So that is a four–month term. That will be cumulative on the four years and five months.

[23] I hope you have had some time when you have not been on drugs, and while you have been in custody, just to reflect on the fact that this drug is something that has wrecked your life. You are very young. You are 24. The reason why the Court punishes you is not simply that you are an addict, or that you are selling because you are meeting the cost of your own addiction. The difficulty is, and why the community frowns on this so seriously and so harshly, is the fact that every time you sell there is a good chance that you are making other people addicted to the same substance. Often, that is very young people like yourself. That addiction, you know from your own experience, is a very strong one and very difficult to get away from. You are now expressing a view that you should and I certainly have given you some credit in respect of that. But that is the worry – that how many times in the course of your selling these drugs that you then get someone else hooked on them? That is the reason why the Court and the law passed by Parliament imposes such hefty sentences on offending of this nature.

[24] You will know from your discussions with Mr Boot that the maximum term of imprisonment that can be imposed in respect of offering to supply and selling methamphetamine is life imprisonment. There have been cases in New Zealand where life imprisonment has been imposed. I simply say all this to you to get on, if you are offered while you are on sentence, any course that may assist you to get away from this addiction. You should grab it with both hands and do it.

[25] There is also an order to destroy drugs and those things seized during the course of the search.

[26] The other charges, less the threatening to kill charges, will all have one month’s imprisonment imposed concurrently.

[27] There is a total of four months’ imprisonment imposed on the threatening to kill.

P R Connell

District Court Judge