R v Cornelius HC Whangarei CRI-2010-027-143 [2011] NZHC 1845 (7 November 2011)

Last Updated: 17 January 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2010-027-143}

THE QUEEN

v

JASON EDWARD CORNELIUS

Hearing: 7 November 2011

Appearances: M B Smith for Crown

P J Kaye and R L Smith for Prisoner

Judgment: 7 November 2011

_{SENTENCING NOTES OF PETERS J}

Solicitors: Marsden Woods Inskip & Smith , Crown Solicitor, PO Box 146, Whangarei email: [e-mail]

Counsel: P J Kaye, Barrister, Vulcan Chambers, P O Box 941, Auckland email: [e-mail]

R V CORNELIUS HC WHA CRI-2010-027-143 7 November 2011

Introduction

[1] Mr Cornelius, you appear for sentence today having pleaded guilty to:

(a) possession of the class A controlled drug, being LSD, for supply, the maximum penalty for which is life imprisonment;

(b) receiving stolen property, the maximum penalty for which is seven years’ imprisonment; and

(c) one charge each of possession of equipment capable of being used to manufacture methamphetamine, with the intention the equipment be so used and possession of a precursor substance capable of being used in the production of methamphetamine with the intention it be so used, the maximum penalty on each charge being five years’ imprisonment.

Facts

[2] As part of their investigation into a spate of burglaries, the Police identified you as being part of what they describe as a conspiracy to sell methamphetamine and LSD. They executed search warrants at two properties you occupied or used, namely a house in Goffe Drive and a family farm in Puketotara Road, Kerikeri, part of which you had sectioned off for your own use.

[3] The Police considered the house in Goffe Drive to be well secured, with security cameras in evidence and also they discovered that one of the rooms downstairs had been converted so that it could be used to grow cannabis, although it was not being used for that purpose at the time.

[4] As for the farm, the Police state that on their arrival and in discussions with you, you became abusive and obstructive and refused to comply with their requests so they arrested you.

_{[5] At the farm, the Police found:}

a vial containing hydrochloric acid, a chemical which is commonly used

_{in the manufacture of methamphetamine;}

a black bag which contained a tinfoil package containing 324 tabs of

_LSD;

a modified spray can in which the Police found a further 12 tabs of LSD, an ecstasy pill and a bag containing approximately one gram of methamphetamine powder; a “tick list” recording the numerous clients

_{who owed you money for drug debts;}

a set of sensitive digital scales, cut straw “meth spades” and 65 fresh

_{“point bags” to package drugs for sale;}

a container of pseudoephedrine;

a 20 litre drum of waste product, being chemical run off that remains following the manufacture of methamphetamine.

a number of chemicals and pieces of equipment for manufacturing

_{methamphetamine.}

[6] You also had $1,577 cash and several cellphones in your possession.

[7] In searching the remaining dwellings on the property, Police found a thermal imaging camera worth some $11,500 which had been stolen from offices in Auckland in October 2009. The discovery of that camera led to the receiving charge against you.

Personal circumstances

[8] Mr Cornelius you are 43 years old. I understand that you left school at 14 and have been involved in a number of different jobs over the years. At the time of your arrest you were helping out on your mother’s farm and working as a building labourer.

[9] As you now acknowledge, you have a substance abuse problem. At the time of your arrest you say that you were using methamphetamine and cannabis on a daily basis. As I understand it, your drug use caused problems in your relationship with the mother of your two children, the relationship has ended and at present you have limited contact, if any, with the children although I understand there are some efforts underway to alter that position.

[10] You have a very long list of prior offending. Some of those offences are of marginal relevance but some of the offences are relevant such as for procuring or possessing methamphetamine, LSD, ecstasy and cannabis; possession of or use of utensils for the purposes of manufacturing methamphetamine and amphetamine; possession of cannabis for supply, cultivating cannabis, possession of cannabis leaf and so on.

[11] I have also received your letter which appears to be heartfelt and acknowledges your past transgressions and expresses regret. I have a letter from an alcohol and drug counsellor at Mid North Addiction Services which refers to counselling work that you have undertaken since January 2010 and which says you are extremely recovery focused and have the ability to complete goals that you are set, as well as being motivated to change.

[12] I have also read a letter of support for you from Reverend Kevin Herewini who is a Chaplain at Ngau Whau. Reverend Herewini says that you are a compliant prisoner, which is to your credit, and considered by some as a role model for other prisoners and are mature and stable. The Reverend says he has found you to be honest and respectful.

[13] I have also read a letter from Mr Robinson of the Prison Fellowship at Northland dated 7 October 2011. Mr Robinson says that you are wishing to change your ways, that you have applied to undertake four rehabilitation courses, but that you cannot qualify for these whilst you are in custody. Again, this is indicative on your part of a wish to resolve this problem and to take the opportunities that exist to help you do so.

[14] I have also taken into account the pre-sentence report.

[15] The offences with which we are concerned today occurred while you were subject to sentences of community detention and community work and there remains a balance of 140 hours of community work to complete.

[16] You were also sentenced to supervision and community work in 2008. One of the conditions of supervision included attendance at a “living without violence” programme. You did not complete that programme and your failure to do so constituted a breach of the special conditions of supervision.

[17] You have outstanding fines and court costs totalling $800.

[18] You are fortunate to have the ongoing support of your family. The recommendation of the Probation Officer is a long term of imprisonment with consideration of a condition that you undertake and complete a residential drug treatment programme on your release.

Approach to sentencing

[19] Counsel agree that I must first identify a starting point that reflects the inherent wrongdoing in your offending and that I must then adjust that for matters, favourable and unfavourable, which relate to you personally.

[20] In deciding what that starting point should be I need to take into account the purposes for which I am sentencing you.

[21] There is no dispute that the relevant purposes are to hold you accountable for the harm your offending has caused, to promote in you a sense of responsibility for that harm, to denounce your conduct and to deter you and others from behaving in the same way in the future, to protect the community and to seek to assist in your rehabilitation and reintegration.

[22] It is also agreed that there are certain principles I must take into account which include the gravity of the offending and the seriousness of the type of offence with which you are charged. I must also try and achieve consistency with people who have been sentenced for similar types of offence.

[23] The most important feature of your offending concerns the fact that it is drug related. To some extent that is reflected in the penalty for those sentences which are prescribed but you need to understand, Mr Cornelius, that drugs such as LSD and methamphetamine are responsible for a great deal of trouble in the community and impose huge costs, financial and otherwise, on the everyone who is associated with them. Everyone to whom you have supplied this drug has been affected by it and their families have been affected. No one should delude themselves that this offending is victimless. It is not.

[24] There is also the fact that this offending is clearly pre-meditated. That is clear from the modification of the spray can, the preparation of the tick list and the fact that the black bag was located in overgrown bush.

[25] Counsel also agree that the lead offence is the possession of LSD for supply, the total number of tabs being 336.

[26] The Crown submits that the approach taken by the Court of Appeal in R v Stanaway[1] and by the High Court in R v Faulkner[2] indicate a starting point for that offending of between four years six months’ imprisonment and five years six

_{months’ imprisonment.}

[27] There is then the question of possession of equipment for manufacturing methamphetamine and the precursor substances. The Crown submits that there should be an uplift of one year’s imprisonment for those offences which would give a starting point of six to six years six months’ imprisonment. The Crown submits a further 18 months’ imprisonment should be added for the receiving charge. On the Crown’s approach that would give a starting point of seven years six months to eight years’ imprisonment.

[28] Your counsel takes a different view and suggests that a starting point on the LSD charges would be between four years six months and five years’ imprisonment, and that no uplift is required for the other offending.

[29] Having considered all of the matters to which I have referred, I consider that the appropriate starting point on the LSD charge is five years’ imprisonment. I propose to uplift that by nine months’ imprisonment to take into account the charge for possession of the precursor substance, for possession of equipment and for the charge of receiving. That gives a starting point of five years nine months’ imprisonment.

[30] I then take into account that the offending occurred whilst you were subject to a sentence of community detention and community work and your prior convictions. I propose a total uplift of three months’ imprisonment to reflect these matters which increases the starting point to six years’ imprisonment.

[31] I then take into account the fact that you entered a guilty plea which I understand followed discussions between the Crown and your counsel. There is no dispute that I should reduce the sentence by at least 10 per cent on account of that plea.

[32] I also take into account the matters that appear from the letters to which I have referred. The insight which you now have into your offending is clear. That coupled with the good manner in which you have conducted yourself in prison deserves some credit. So, for the guilty plea and the matters which appear from the letters, I propose to allow a reduction of 15 per cent in total.

[33] By my calculations that takes the end sentence to a little more than five years’

imprisonment.

[34] Mr Cornelius:

(a) On the charge of possession of LSD for supply I sentence you to five years’ imprisonment. I am not able to impose a special release condition given the term of the sentence, but express the hope that on your release you will undertake and complete a residential drug treatment programme.

(b) On each charge of possession of equipment and of a precursor substance capable of being used for the manufacture of methamphetamine with the intention that they be so used, I sentence you to nine months’ imprisonment, to be served concurrently with the sentence for the possession of LSD for supply.

(c) On the charge of receiving stolen property, I sentence you to nine months’ imprisonment, again to be served concurrently with the other sentences.

[35] I make orders for the forfeiture of the $1,577 the Police found in your possession, and for the destruction of all cellphones and other drug related equipment and paraphernalia. I remit all your outstanding fines and Court costs and discharge you in respect of those remaining hours of community work.

..................................................................

PETERS J

---

[1] _{R v Stanaway [1997] 3 NZLR 129 (CA).}

[2] R v Faulkner HC Auckland CRI-2006-004-25880, 15 April 2008.