R v Tomlinson [2017] NZDC 25645 (14 November 2017)

Last Updated: 30 August 2018

IN THE DISTRICT COURT AT HAMILTON

CRI-2015-019-005808

[2017] NZDC 25645

THE QUEEN

v

KYLE LEWIS TOMLINSON

Hearing:	14 November 2017
Appearances:	S Gilbert for the Crown R Barnsdale for the Defendant
Judgment:	14 November 2017

NOTES OF JUDGE R G MARSHALL ON SENTENCING

[1] Mr Tomlinson, you are here for sentence today on a number of charges; a charge of possession of methamphetamine for supply, supplying methamphetamine, offering to supply methamphetamine, causing loss by deception. There are also two further charges of failing to answer District Court bail.

[2] On 16 August this year I gave you a sentence indication in relation to those charges and went over the circumstances that led to the charges being laid against you. I also reviewed the appropriate guideline decision of R v Fatu1.

[3] What I determined was that the lower end of band two in Fatu applied, the amount of methamphetamine involved being around the 50 to 60 grams and a starting point for you of three months was reflective of that level. Normally you could expect

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

R v KYLE LEWIS TOMLINSON [2017] NZDC 25645 [14 November 2017]

at that stage an allowance of five to 10 percent on a guilty plea but I allowed you 15 percent because a considerable amount of resources were about to be brought into the preparation of the trial and you were prepared to entertain the sentence indication and plead to it. So on a totality basis on those charges the level is one of four years and three months or 51 months.

[4] I have considered your pre-sentence report and as Mr Barnsdale has indicated there are positives in it. You are seen as medium risk of harm to others and risk of re- offending is now seen as low. You did not make any attempt to minimise your culpability or blame others and it appears that you are motivated to change your lifestyle.

[5] As you aware, you were attacked by your old associates as a result of your involvement in methamphetamine and that has no doubt had a destructive effect both on you and your family. You realise now that you need to sort things out and you do otherwise these sentences are going to get longer and longer.

[6] What I have determined Mr Tomlinson is I will give you an allowance of two months for motivation to make changes in your life. It is not at the highest end of the scale but it is some recognition that you are prepared to make changes and now you need to actually do that, you need to make the changes. On the other hand I have been generous in my allowance of that 15 percent which will be some eight months allowance for that. So from the sentence of 51 months’ imprisonment I will allow you a 10 month allowance for both your guilty plea and your motivation to change.

[7] I do note that you did give evidence you say against one of the others but that was in relation to an incident where they assaulted you, but there would not be any further allowance for that.

[8] I direct that my sentence indication notes of 16 August 2017 be attached and form part of my sentencing notes now so I will not repeat those.

[9] In relation to charge 1, the charge of possession of methamphetamine for supply, you are sentenced to three years and five months’ imprisonment. Charge 2,

supplying methamphetamine, three years and five months’ imprisonment. Charge 3, offering to supply methamphetamine, two years’ imprisonment. Charge 5, offering to supply cannabis, one year’s imprisonment. Charge 6, causing loss by deception, six months’ imprisonment. On the two failing to answer District Court bail, one months’ imprisonment on each. All charges will be concurrent or run at the same time so the end sentence is one of three years five months’ imprisonment. Charge 4 is dismissed pursuant to s 147 Criminal Procedure Act and I do not order any reparation as due to the length of the prison sentence that would be unrealistic.

[10] Order for destruction of the cellphone and drug paraphernalia.

R G Marshall District Court Judge

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE

CHARGE DISMISSED

IN THE DISTRICT COURT CRI-2015-019-005808 AT HAMILTON

THE QUEEN

v

KYLE LEWIS TOMLINSON

Date: 16 August 2017 Appearances: L Dunn for the Crown

R Barnsdale for the Defendant

NOTES OF JUDGE R G MARSHALL ON SENTENCING INDICATION

[1] Mr Tomlinson seeks a sentencing indication. There has been a perhaps slight change since he received a sentence indication some time ago. The Crown would be proposing not to offer any evidence on charge 4 on the Crown charge list which is a charge of conspiracy to supply methamphetamine. That would leave Mr Tomlinson facing possession of methamphetamine for supply, supplying methamphetamine, offering to supply methamphetamine, offering to supply cannabis and causing deception by loss.

[2] I can briefly summarise the relevant facts as follows. That in January of 2015 after having left, as I understand it, a flatting residential situation with other occupants Mr Tomlinson was lured back to that residence. At the time he was a small time dealer in methamphetamine. It appears that not only was he supporting a habit but was engaging to sustain that habit in the sale of methamphetamine at very much a lower

level on the food chain but nevertheless on a small scale commercial basis. Having lured Mr Tomlinson back to the house on the offer that he supply half a gram of cannabis, Mr Tomlinson was seriously assaulted. There is no dispute or issue about that.

[3] However, as a result of that Mr Tomlinson involved the police and subsequently his mobile phone was located amongst other items. A search as a result of a Court order was adopted for a three month window of text data and that showed that there were 378 separate offers to supply methamphetamine and there was what is said to be a quantifiable amount of 53 grams. There was a further 59 occasions of supplying methamphetamine, 43 of which involved a quantifiable amount coming to

7.6 grams which indicates that these individual deals were of relatively small amounts but also quite frequent. There were a further 20 odd occasions of conspiring to supply methamphetamine, 11 involved a quantifiable amount of 6.75 grams. That of course is out of the equation at present.

[4] There were also 12 occasions of supplying cannabis of a low level, 4 grams or so that really falls into insignificance on the more serious charges as does the separate charge of theft or obtaining by deception, selling a chainsaw on TradeMe for $750 although never having or never intending to front the chainsaw.

[5] The Crown in their initial sentence indication indicated a number of cases and ranges. I am clear that this falls within band 2 of R v Fatu2. I also had a look at Mr Bean’s original submissions also. Looking at it afresh as I must do, R v Fatu has a sentencing range of three to nine years’ imprisonment for quantities of five to 250 grams. Ms Dunn correctly identifies this as towards the lower end of R v Fatu band 2, the amount being in my view now falling around the 50 to 60 grams but there being potentially some double up of its full nature.

[6] In my view a starting point of four years, three months’ imprisonment would be more reflective of that adjusted level of dealing. Mr Tomlinson could normally at this stage of proceedings easily expect only a 5 to 10 percent allowance or credit for a guilty plea. However I am going to place it in the range of 10 to 15 percent and be on

2[2005] NZCA 278; [2006] 2 NZLR 72 (CA)

the generous side of 15 percent because I am aware that a considerable amount of resources are now about to be poured into the preparation of this trial by way of numerous exhibits and the like and copies made of them. Obviously there would be a considerable saving in resource if the matter were to resolve. I am uncertain as to whether that would be the position but I could indicate to Mr Tomlinson that any plea of the morning of trial or during the course of trial would attract very little by the way of a guilty plea.

[7] Also I preface this sentence indication on the basis that I have not heard the full facts in relation to this matter and it may well be that the factual position changes as it often does during the course of the trial as opposed to now. On that basis my sentence indication on a totality basis for this offending is four years, three months’ imprisonment less 15 percent allowance for a prompt guilty plea. I am uncertain as to whether there would be further credits available to Mr Tomlinson unless I had a pre- sentence report or further submissions from counsel. It may be that that is unlikely but I do not close the door on that.

R G Marshall District Court Judge