R v Lucinsky [2017] NZDC 17999 (11 August 2017)

Last Updated: 9 March 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-090-001229

[2017] NZDC 17999

THE QUEEN

v

GLENN KARL LUCINSKY

Hearing:	11 August 2017
Appearances:	E Woolley for the Crown M English for the Defendant
Judgment:	11 August 2017

NOTES OF JUDGE D M WILSON QC ON SENTENCING

[1] Mr Lucinsky, you are aged 41 years and you appear for sentence on a charge that you were in possession of methamphetamine for supply on Thursday 3 March 2016. The police noted some hairy driving of a BMW, it turned out to be driven by you. Although they activated lights and sirens you carried on and drove to your home address and then you beeped the horn to alert residents. The police recovered in an Eclipse mint tin found in the car, four zip locked bags containing 10.59 grams of methamphetamine and there was $2120 in cash in the wallet in your back pocket. When they searched the house they found 41.25 grams of crystal methamphetamine beside the bath tub of your home in two plastic zip locked bags and $6000 in cash in a black belt bag in drawers in your bedroom. The maximum penalty for this offence is life imprisonment. While you were awaiting hearing on those charges you twice breached your prison release conditions by failing to report to a probation officer and

R v GLENN KARL LUCINSKY [2017] NZDC 17999 [11 August 2017]

failing to advise change of address. These were your fourth and fifth breaches of release conditions.

[2] As far as the drug offending is concerned, you have previous convictions for cannabis in 1993; methamphetamine in 2002, you got three years’ jail and; possessing a Class A drug in 2005 when you got three months’ jail. I accept the proposition that those are now so long ago that they should not receive an independent uplift when I come to deal with the sentence.

[3] While you were on bail you were seated at the rear of a red Mazda van on 8 December last year in the Lincoln Green carpark in Henderson. You grabbed the bag and in the course of that you violently resisted [Constable 1] who sustained bruising and grazing to his right elbow and slight swelling to his left cheek and temple in the course of your assault on him while he was endeavouring to grab the bag. He was acting in execution of his duty. This is an aggravating feature. The bag contained 250 grams of GBL and a sawn-off shotgun which you admitted was yours. This offending occurred while on bail. The combination of the possession of GBL, a shotgun and shotgun ammunition is a particularly dangerous one. I accept your counsel’s submission that it was not in association with what could be proved to be drug dealing but the association with drugs in your company while you were awaiting trial or disposal on the methamphetamine dealing charge is a concerning feature.

[4] Since you have a previous charge for unlawful possession of a firearm which you got 12 months’ jail with leave to apply for home detention on. The probation officers report is set as your risk of re-offending and your risk of harm as high and points to your poor response to community-based sentences. You declined consent from electronically monitored sentence but that is probably not material given the starting point that even your counsel acknowledges.

[5] You have said that you, for the first time, are motivated to address your addictions and experience shows that escaping addiction to drugs which have been used for a long time is a difficult process. You express an interest in going to Odyssey House and you hope you will be accepted. It appears that the letter that I have been handed from you today might be premature in saying you have been accepted into

Odyssey House because your counsel says that you have applied and you do not have a place yet. I wonder then why you wrote it with the intentions that have been handed to me as the sentencing Judge.

[6] The Crown submits that the set-up and cash in association with the drugs show the commercial nature of it and submit that your offending falls within band 2 of a case called R v Fatu1 which covers a range between five and 250 grams and where sentences between three and nine years can be expected. I have mentioned your previous conviction for drugs.

[7] The trial was vacated when you pleaded guilty, abandoning a previous request for a sentence indication and the Crown submits that the appropriate credit for your plea of guilty is 15 percent. The Crown submits that in light of the authority, four and a half to five years should be imposed. There is 15 percent for plea.

[8] On behalf of the police, Ms Blackmore submits that the offending in association with the red Mazda car should lead to an uplift of 12 months above the sentence for the methamphetamine charges and the probation officer in Court said that there ought to be a jail term for the repeated breaches of your prison release conditions.

[9] Mr English, on your behalf, has submitted that a starting point should be four years’ imprisonment and he draws a comparison with a case called R v Yuen2 where 50 grams was involved. There are other cases in or about that level showing a range of between four and five years. He acknowledges that there should be an uplift for other offending and submitted to me that the firearm was not related to drug dealing offending, that is literally correct but it was certainly related to possession. He submits that the uplift should be six months. He asks for a 20 percent discount for guilty plea, submitting that you were the subject of an unlawful search, that the admissibility of that evidence was challenged but the Judge held that excluding the evidence would be disproportionate to the breach which was slight and did not involve impropriety. He also asks for a deduction for that breach from your overall sentence and I will speak about that again shortly.

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

2 R v Yuen [2010] NZCA 521

[10] I take into account the need to hold you accountable for harm and to denounce the dealing in drugs and deter you and others from being involved in it. The community is entitled to protection from the insidious danger of methamphetamine and fantasy-style drugs. This is serious offending as indicated by the maximum of life imprisonment. I acknowledge that I need to impose the least restrictive outcome and to look at ways in which your own rehabilitation can be approached. Aggravating are the number, seriousness and relevance of previous convictions but as I say in this case, in my judgement they do not justify an uplift. As I say, a specific aggravating factor that the victim of your assault was a constable acting in the course of his duty. In terms of mitigation you are entitled to a credit for your guilty plea.

[11] As I say, the Crown suggested a starting point of four and a half to five years and the police have asked for an additional 12 months’ which would also, I think it best encompass the breaches of release conditions. Your own counsel submits that the starting point should be four years for the methamphetamine and six months for the rest. He says that the global starting point for that other offending would be higher but when looked at from the principle of totality adding six months is appropriate.

[12] In my assessment the starting point for the methamphetamine offending is a sentence of four years. In my view the matters that I have mentioned in relation to the offending on bail involving drugs and firearms call for an uplift of eight months. It does not seem to me that any further remedy for the impropriety alleged against the police over the unlawful search is required beyond the consideration of whether that evidence should be excluded and I do not propose a specific deduction in respect to that. As for the deduction for guilty plea, balancing as best I can the competing arguments, I think the appropriate deduction is one of 15 percent. As a result of that the sentence is one of three years and 11 months. That is a sentence which does not allow, of course, me to impose release conditions but I direct the attention of the prison authorities to the possibility of including assistance for you over your addiction to drugs while in custody and the appropriateness of you being subject to parole conditions. The probation officer’s report says that you said you would rather serve a prison sentence than do a community-based sentence and you want to address your additions while in prison. I commend that to you. It is what you should do.

[13] As far as the sentencing is concerned, the sentence of three years and 11 months will be imposed on the methamphetamine offending and on each of the other charges a concurrent sentence of two months’ imprisonment.

[14] There will be an order for destruction of the shotgun and ammunition and the methamphetamine and GBL.

[15] I note that there was an application to deal with outstanding fines but there is no report in front of me which would enable me to attend to that. If I receive an appropriate certificate I will deal with it in chambers.

D M Wilson QC District Court Judge