R v Heron [2017] NZDC 12723 (14 June 2017)

Last Updated: 21 October 2017

_{EDITORIAL NOTE: NO SUPRESSION APPLIED.}

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2016-009-010840 [2017] NZDC 12723

THE QUEEN

v

MICHAEL HERON

Hearing: 14 June 2017

Appearances: S Mallett for the Crown

N Rout for the Defendant

Judgment: 14 June 2017

_{NOTES OF JUDGE B M MACKINTOSH ON SENTENCING}

[1] Michael Heron, you appear for sentence today, aged 45, having pleaded guilty to charges of possession of methamphetamine for supply, unlawful possession of a firearm and possession of a psychoactive substance (synthetic cannabis in other words).

[2] Basically, the facts are these; that on 2 November last year you and two others were in the Riccarton area in Christchurch. Your vehicle was stopped and searched and $3935 was found on you. The police discovered that you had just left a local motel so they went and searched the motel unit and there discovered 336 grams of methamphetamine with an approximate street value of $336,000. It was in a locked metal box together with four ounces (approximately 113 grams) of synthetic cannabis. They also found an intimidation pistol capable of firing blank

_ammunition.

R v MICHAEL HERON [2017] NZDC 12723 [14 June 2017]

[3] In the subsequent search of your address they found a six shot .32 calibre pistol in the garage with four live rounds of ammunition in the chamber. Located in the bedroom of one of your co-offenders was $150,540 in cash which the police maintain is the proceeds of the sale of methamphetamine.

[4] You were spoken to by the police about this. You were very candid with the police. You admitted selling methamphetamine for up to $10,000 to $12,000 an ounce and you said that the pistol was for your own protection and that the synthetic cannabis was for personal use.

[5] I have read the pre-sentence report and counsel’s submissions but effectively the pre-sentence report mirrors really what Mr Rout says in his submissions that you were deported back to New Zealand after serving a lengthy prison sentence in Australia. You struggled. You attempted rehabilitation but your personal circumstance really became fraught. You had been in a relationship in 2015. That came to an end. There was a series of deaths and other stresses in your life that caused you to use alcohol. You did have employment but then became unreliable. You got into debt and started accruing drug debts and then basically you got caught back up in drug dealing and use and consuming methamphetamine. I believe the amount was approximately one gram every two days. You are seen to be at a high risk of re-offending.

[6] As far as Mr Rout is concerned, in his submissions as to your personal circumstances he points to the fact that it was difficult for you being deported back to New Zealand direct from prison in 2014. You had been in high-end custody in Australia, found that socially debilitating and really found life very difficult.

[7] After arriving in New Zealand you were employed for a period of time but of course I have referred now to the relationship that you had which then fell apart. You were exposed apparently to media publicity and I have already mentioned the fact that you did have some other deaths that have affected you seriously. Anyway, you started drinking and, as I have said, got into serious debt and now find yourself in this situation.

[8] As far as sentencing is concerned, I have to bear in mind of course the purposes and principles of the Sentencing Act 2002 which include deterrence, denunciation, protection of the public, but also rehabilitation. I need to bear in mind of course the seriousness of the offending and consistency with other sentences that are imposed for similar kind of offending. It is well known that in sentencing for drug-dealing matters particularly that personal circumstance really ultimately have very little weight.

[9] As far as a starting point is concerned this clearly falls well within band 3 of R v Fatu1 the tariff case. I have been referred to cases by the Crown such as R v Philip2 and R v Nguyen3 and others but basically here we have a situation where there was a large commercial amount of methamphetamine together with large amounts of cash and of course admissions by you.

[10] I assess the starting point, and I do not really think it is disputed by counsel, of nine years. The issue arises as to uplift for the possession of the pistol that was found and the other offending involving the synthetic cannabis. I have been supplied authorities by the Crown in relation to that but it does seem to me on analysis that it would warrant an uplift of some 15 months for the firearm, given there were four live rounds in the chamber and that it was of course at the property where the cash and methamphetamine had been located.

[11] There also needs to be another uplift for the four ounces of synthetic cannabis and I assess that at three months. That is an overall uplift of 18 months. That gets us to 10 and a half years as the ultimate starting point.

[12] Looking at that, I do not believe that there is any necessity to make any adjustment for totality. I am prepared to give you 25 percent credit for your guilty plea. Mr Rout has suggested that I could further make some allowance for the attempts to rehabilitative that really became fraught by your own personal

_{circumstances but I am not of the view that that is appropriate in this case.}

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

2 _{R v Philip [2016] NZDC 15504}

3 R v Nguyen

[13] That gets us to an end sentence of seven years and 10 months’ imprisonment. The issue arises as to whether or not a minimum non-parole period should be imposed. According to R v Anslow4 it is seldom ordered when the finite term is less than nine years.

[14] Here the Crown submit that because of the high risk of re-offending that is referred to in your pre-sentence report, the very serious nature of the offending, the quantity of drugs, the presence of the loaded firearm, all of those matters would render the normal one-third minimum non-parole insufficient. I agree with that. In my view a 50 percent minimum non-parole period is warranted to achieve accountability, denunciation, deterrence and ultimately to protect the community.

[15] As far as the order for forfeiture is concerned there was $3935 on your person. You have said that that was from a win. The Crown submit that given the circumstances of everything it can be fairly associated with the methamphetamine and methamphetamine dealing that was happening at the time. I am satisfied that there is a proper basis for such an order so there will be an order for forfeiture of the

$3935 in cash.

[16] In addition there are additional orders if they are required for destruction of the drugs and the firearms.

[17] The sentence will read, on the possession of methamphetamine for supply, seven years and 10 months.

[18] It will be one year concurrent on the firearms charge and six months’

concurrent on the possession of the synthetic cannabis.

B M Mackintosh

_{District Court Judge}

4 R v Anslow CA182/05, 18 November 2005