Police v Callagher [2017] NZDC 12022 (7 June 2017)

Last Updated: 25 October 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT HAMILTON

CRI-2017-019-000272 [2017] NZDC 12022

NEW ZEALAND POLICE

Prosecutor

v

PAUL RAYMOND CALLAGHER

_Defendant

Hearing:	7 June 2017
Appearances:	Sergeant J Broom for the Prosecution T Sutcliffe for the Defendant
Judgment:	7 June 2017

_{NOTES OF JUDGE A S MENZIES ON SENTENCING}

[1] Mr Callagher you are appearing for sentence in relation to a total of three charges today. Those charges are possession of methamphetamine for supply which carries a maximum penalty of life imprisonment, carrying an imitation firearm with a maximum penalty of two years’ imprisonment and a charge of breach of community work which carries a maximum penalty of three months’ imprisonment.

[2] I am going to deal with some ancillary matters that arise in respect of the various charges before going through the actual sentencing. I want to make sure those issues are covered. Firstly in relation to the charge of breach of community work in the light of the penalties that will be imposed on the more serious matters you are convicted and discharged in respect of that matter and the community work

_{outstanding is cancelled.}

NEW ZEALAND POLICE v PAUL RAYMOND CALLAGHER [2017] NZDC 12022 [7 June 2017]

[3] In relation to the charge of carrying a firearm, there is an order for destruction of that firearm.

[4] In relation to the charge of possession of methamphetamine for supply there is an order for destruction of the drugs and the utensils.

[5] There is a further matter I have been asked to consider in relation to outstanding fines. Counsel advises me that a request was made earlier for a s 88 report to be prepared to enable consideration of the fines being remitted so that upon the completion of the sentences for which you appear today you will have a clean slate in terms of outstanding liabilities. That strikes me as an appropriate course to take. Unfortunately I do not have the s 88 report. I do however have information from counsel which indicates the level of outstanding fines of which the total is $5086 plus various costs. There is no reparation outstanding so I am going to deal with matters now so that there is no further delay on the basis that those fines are remitted. That order is subject to the necessary s 88 report being made available to me as soon as possible subsequent to the sentencing. If there are any issues arising from that report that require revisiting of the order that I have made then arrangements will be made to have you re-called to deal with that issue.

[6] Turning then to the broader matters that you face, I have outlined the charges themselves. Pleas of guilty were entered at the case review stage, there having been pleas of not guilty entered at the earlier time. You have an extensive previous history. The total number of convictions exceeds 30 and they span a period from

1988 through to the present time. There are numerous convictions for similar types of offending, particularly drug-related and weapons-related.

[7] You were charged with possession of an offensive weapon last year and convicted in July for possession of an offensive weapon. That was the penalty of community work which has not been completed and I have just cancelled. You have previous penalties of imprisonment for possession for supply of methamphetamine. You were imprisoned in respect of that matter in 2010 and at the same time there was a charge of unlawfully possessing a firearm. Imprisonment imposed on that occasion was two years and nine months.

[8] The background circumstances are not complex. On 12 January you were pulled over by the police while driving a vehicle. You told police that you had about

10 grams of methamphetamine, an air rifle and a blank pistol in the vehicle. The police undertook a search of the vehicle and found approximately 12 grams of methamphetamine packaged in small zip lock bags. A further quantity of a crystalline substance believed to be amphetamine was found. Also were located scales and utensils for the consumption of methamphetamine, a nine millimetre Colt pistol loaded with blanks, the air rifle and $2387 in cash.

[9] In case I did not mention that when dealing with the related matters at the outset of the sentencing there is an order for forfeiture of the cash in respect of the possession for supply charge.

[10] A pre-sentence report has been prepared for today’s sentencing. That report records that you were polite and co-operative through the preparation of the report and took no issue with the summary of facts. The report reflects your concern that you had relapsed into illicit substance abuse after being prescribed opiate pain medication for a broken wrist in January 2016.

[11] There are further circumstances that you disclosed as to how it was you became further involved with methamphetamine. You were provided with methamphetamine by a former acquaintance and began dealing to support yourself, ironically to get free of drugs and not to bludge off your parents. You have expressed regret that you have let yourself down, let your family down and that you feel that you have fallen into the old trap.

[12] Significantly in the pre-sentence report you have made a number of comments about your desire to get off the offending and drug addiction circumstances in which you have found yourself. There have been various different treatments and programmes suggested and counsel has confirmed that you made an attempt to become involved with the Odyssey programme but were not accepted. Your desire is to get the sentence behind you, get the involvement with drug offending and drug addiction behind you and get on with a more positive life. Certainly there is remorse reflected in the comments made in the pre-sentence report.

The recommendation realistically in the pre-sentence report is one of imprisonment together with cancellation of the community work that is outstanding, which I have already addressed.

[13] I have also considered your letter and again that reflects your remorse. You have accepted full responsibility and taken ownership of the offending. You want to complete your sentence and rejoin the community and get on with a better life including potentially completing your studies and you have indicated the various ways in which you would see that being utilised.

[14] I have had detailed submissions provided both by the police and from your counsel, Mr Sutcliffe. Both set out the various purposes and principles contained in the Sentencing Act 2002 which need to be considered. They also set out a number of cases where there is similar offending, the purpose of which is to provide some guidance as to how I should approach sentencing in relation to your case. The most immediately relevant is R v Fatu1 which is the judgment that is well established in terms of setting various guidelines or tariffs as to the appropriate approach to sentencing.

[15] Specifically that decision creates three bands in relation to offences involving sale, supply and possession for supply of methamphetamine. Band 1 is low level, less than five grams, which has a starting point of two to four years’ imprisonment. Band 2 which involves some commercial aspects sets the parameters of between five grams and 250 grams for which the range of starting points is between three and nine years’ imprisonment. Band 3 then is for the more serious matters, 250 grams to

500 grams with the imprisonment range between eight to 11 years’ imprisonment.

Band 4 is for very large commercial quantities, 10 years to life imprisonment.

[16] There is no argument between counsel that your circumstances fall into band 2. That is accepted by the police and by your counsel. The issue is where within band 2 would be the appropriate starting point. The police submissions refer to a number of cases which have similarities but of course no two cases are ever

_{exactly the same. I do not propose to detail all the decisions that have been referred}

1 R v Fatu [2006] NZLR 72

to either in the police submissions or your counsel’s submissions. I have however had regard to them all and have factored them into my assessment of the appropriate starting point.

[17] The police submissions point to your previous record, which I have been through. They point to the drugs that were found in the vehicle, the electronic scales, the cash, firearms and also highlight your past record in terms of relevant convictions. The starting point argued by the police is three years nine months on the most serious charge. It is then argued that there should be an uplift of 12 months for the firearm possession and a further six to eight months for your previous history. The police position is that a discount in the order of 22.5 percent is appropriate for the guilty plea.

[18] Your counsel has approached matters on the basis of again outlining a number of cases as I mentioned. R v Fatu is recognised. Mr Sutcliffe argues that a full 25 percent is justified and argues that from the starting point, which Mr Sutcliffe puts at between three years and three and a half years, an uplift of four months for your previous convictions would be justified but no further uplift for the other offending on the grounds of totality and that the other offending is part and parcel of the drugs-related offending. Mr Sutcliffe’s submissions include a number of cases which in his submission justify that starting point of between three and three and a half years.

[19] In addition to the submissions Mr Sutcliffe has attached a number of references. It is clear from those references that you continue to enjoy support from your family. Mr Sutcliffe has confirmed that your parents are in Court today providing tangible support. I accept that your remorse that has been submitted by Mr Sutcliffe is real. There is confirmation to a degree from the outcome of recent drug tests which I am advised indicate that you are drug free at the moment. That provides some support for the submission that you are remorseful and endeavouring to take steps that will keep you drug free for the future.

[20] Having considered the various cases that have been outlined and your overall circumstances I propose to indicate a starting point, what uplifts I consider

appropriate and what further concessions or deductions are appropriate from there. My assessment of the overall offending is that the authorities that have been referred to would justify a starting point of three years and nine months’ imprisonment. That is the starting point that I take in relation to the most serious charge of possession for supply. In my view an uplift for the other offending is warranted and I set that at two months and a further uplift for your record of four months, which produces a first total of 51 months’ imprisonment.

[21] I accept the remorse that I have indicated and the allowance that I make in respect to that is three months’ imprisonment which produces a total of 48 months. From that total I deduct 10 months in relation to your guilty plea. The end result therefore is an end sentence of 38 months, or three years two months’ imprisonment. That is the sentence that therefore is imposed in relation to the charge of possession for supply.

[22] In terms of the other two matters there is a concurrent sentence of three months. In respect of the charge relating to the weapon that is concurrent and I have already convicted and discharged you in respect of the breach of community work.

[23] The ancillary orders have been made therefore that completes the sentencing process Mr Callagher and the end result is an end sentence of

38 months’ imprisonment.

A S Menzies

District Court Judge