R v Hart [2012] NZHC 2137 (22 August 2012)

Last Updated: 7 September 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-088-003872 [2012] NZHC 2137

THE QUEEN

v

PATRICK JOSEPH HART

Hearing: 22 August 2012

Counsel: B O'Connor for the Crown

A Fairley for Mr Hart

Judgment: 22 August 2012

_{SENTENCE OF WOODHOUSE J}

Solicitors:

Ms B O’Connor, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Whangarei

Mr A Fairley, Thomson Wilson, Solicitors, Whangarei

R V HART HC WHA CRI-2010-088-003872 [22 August 2012]

[1] Mr Hart, you may remain seated until I come to impose the sentence.

[2] As you will understand, I need to outline the circumstances of the offence and your personal circumstances in order to explain, not just to you but to many others including the wider community, why I am imposing the particular sentence I will impose.

[3] As you will understand from the discussions I have had with Mr Fairley and Ms O’Connor, I am in this case going to impose a sentence of home detention. I do want to make clear at the very beginning that this is a sentence being imposed entirely because of your particular personal circumstances, which I will come to. Were it not for these it would be a sentence of imprisonment.

Facts

[4] You are to be sentenced for two offences of conspiring to supply pseudoephedrine. This is a precursor substance used for the manufacture of methamphetamine. The maximum penalty is seven years imprisonment. Technically that is the maximum penalty on each of these offences.

[5] A short summary of the facts is as follows. Over two periods between 27

December 2008 and 13 January 2009 you conspired with others to supply ContacNT tablets. These contain pseudoephedrine. The first occasion involved four sets of ContacNT to be supplied for $10,000. On the second occasion there were nine sets to be supplied for $90,000.

[6] The estimated yield of methamphetamine from the 13 sets is 585 to 877 grams of methamphetamine. That is a lot of methamphetamine. Your role was to procure the ContacNT for on-supply by Kelly Dodd, one of your co-conspirators. The Crown acknowledges that the conspiracy was, in effect, driven by Mr Clarke – another co-conspirator – and he actually was in prison at the time.

Personal circumstances

[7] I will outline some of the relevant personal matters and develop this later.

[8] You are aged 41. You have some previous convictions; all of them are fairly low level. There has been only one prior conviction for a drug offence – this was cultivation of cannabis in 1998 when you were fined $500.

[9] You are in bad health. Medical certificates have been supplied. One of these refers to – and I quote – “multiple co-morbidities”. I will not read out the details. It is clear that you have significant problems. In addition, you require personal assistance from your partner for various things on a daily basis.

[10] I have taken account of the other matters noted in the pre-sentence report, as clarified by Mr Fairley’s submissions, and the letters provided by others who know you and which are very supportive.

Starting point

[11] I need to fix a starting point for the sentence.

[12] In this case it is the appropriate length of a prison sentence having regard to the seriousness of your offending. At this stage no account is taken of personal factors.

[13] The Crown submits the starting point should be four to four-and-a-half years imprisonment.

[14] Mr Fairley submits it should be between three to four years.

[15] I have been referred to other cases. I will simply note the names. It is unnecessary to go into the detail of those other cases. They are: Williams,[1] Wang and

Gao,[2] Posimani,[3] Albert,[4] Styles[5] and Hsu.[6] In addition, Mr Fairley summarised a number of further cases that are referred to in the Hsu case.

[16] Caution is needed in comparing starting points because there can be significant differences for similar quantities depending on, amongst other things, the role played by the offender and the specific offence that is charged.

[17] There is no Court of Appeal guideline for the starting point for offences involving precursor substances. However, the Court of Appeal guidelines in Fatu[7] for methamphetamine offences provide some assistance, as was noted in the Williams case. The seriousness of the offending can also be considered in relation to the quantity of methamphetamine that could be produced. The figures here – between 585 and 877 grams – puts your offending at what would be the equivalent of band 4 of Fatu – the most serious level of offending. That is for a completed offence. Here it is conspiracy to commit the offence, although the evidence establishes that in fact the on-supply was effected, and on one occasion you were in

fact present.

[18] I am satisfied that you had an important role in the conspiracy. However, I

am also satisfied that you were not a principal.

[19] You were not leading this conspiracy. Mr Fairley referred to the fact that the offending was over a short period. I do not consider that this reduces the seriousness of the offending, indicated by the other factors. But, of course, it is less serious than someone involved in more than two conspiracies and over a longer period or at different times.

[20] Taking these matters into account, and having regard to the maximum penalty of seven years imprisonment, I assess the starting point at around four years

imprisonment. I am not being more precise for reasons I now come to, and these are personal matters.

Personal factors

[21] There are no personal factors justifying an increase.

[22] There are a number of factors that require a decrease, or otherwise affect the sentence. The first is your health. In some cases health problems have meant that a prison sentence otherwise justified has not been imposed – or certainly the length of the sentence has been significantly reduced. In your case I am satisfied that a prison sentence would be significantly more harsh for you than it would be for a person who does not have your significant health problems. Again, it is unnecessary for me to spell out the nature of the health problems and the types of assistance you require in order to explain the point. I am satisfied the point is well established.

[23] The second matter is the conditions of bail that have applied since your arrest. You spent 27 days in custody following arrest in 2009. From 25 November

2009, and down to the present time, you have been on bail. You have been subject to a 24 hour curfew electronically monitored. You have been subject to other conditions, including a condition that you not have access to a telephone. There has been only one breach – and this was minor – a failure to come to the door during a Police check.

[24] Mr Fairley has advised that his instructions are that there were very regular Police checks over the period and to the extent that this led to you and your partner talking about it to one of his staff solicitors. As a consequence of that a diary was kept and there were apparently 131 Police visits over the period from 26 March 2012 to 20 August 2012. I wish to make clear that this is not recorded by way of criticism of Police; it is recorded to indicate one of the ways in which the bail conditions have been severe.

[25] I am satisfied that these bail conditions, over such a long period, should be taken into account to reduce, and in fact alter, the sentence that would otherwise

have been imposed. And it is clear from other cases that this is a course that may be taken. The essence of it is that for around two years nine months you have been subject to restrictions which in large measure have been the same as those that apply to a person sentenced to home detention. And, of course, the maximum period of home detention that may be imposed is 12 months.

[26] There are some further matters. In considerable measure, based on your history and your age, these particular offences are out of character. I am satisfied that you truly recognise the gravity of your offending and genuinely regret the way in which you got involved. And I am satisfied that you have taken steps to try to remove yourself from the influences which led to that offending.

[27] It is clear that you have substantial support. It is also clear that you in turn provide substantial support to your wider whanau. As Mr Fairley said – and this is borne out by material provided to me – you are a person with a generous heart. I do accept that you recognise that you have, in a very significant way, let yourself down in getting involved in these offences.

[28] The final matter is that you did plead guilty to these offences. The Crown acknowledges that you might be entitled to a reduction in the overall sentence of around 5%. Mr Fairley submits that it should be around 10%. The plea did come very late. It was actually on the sixth day of the scheduled start of the trial. The trial never got underway because other accused pleaded guilty over the preceding week. You and the remaining accused pleaded guilty to these charges on the sixth day after the jury had been empanelled. Mr Fairley has referred to some matters explaining the delay, and I accept that there is some basis for this. In this case, because there are far more significant considerations going to a reduction and alteration of sentence, I find it unnecessary to put a percentage on this.

[29] Having regard to the matters that I have now outlined at some length, although without going into all of the relevant detail, I am satisfied that if a prison sentence were to be imposed it would be a sentence of no more than two years imprisonment. There is ample justification for that having regard to the matters I have referred to.

[30] Given that the sentence would be no more than two years imprisonment I can, as a matter of law, impose a sentence of home detention. There is a favourable home detention report so that such a sentence is also possible for that reason. For all of these reasons I will impose that sentence.

Final sentence

[31] Mr Hart, you should now stand.

[32] Mr Hart, for the two offences of conspiring to supply precursor substances you are sentenced to home detention for a period of 12 months. This sentence is imposed in accordance with Appendix 1 to the pre-sentence report and it will be subject to the particular conditions recorded in that report.

[33] In addition, I discharge you in respect of the other counts that you were facing. This is done because the Crown offers no evidence on those charges.

[34] Mr Hart, you have been – if I may say – extended a fair degree of mercy and some of this is based on what is indicated directly by you or on your behalf. I really do hope you are able now to make the most of the chance you have been given.

[35] There is an application by the Crown for forfeiture of cash in the sum of

$669.40. There is no opposition. Accordingly, there is an order for forfeiture of that sum.

_{[36] You may stand down.}

Woodhouse J

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[1] R v Williams HC Rotorua CRI-2009-063-005871, 22 July 2011, Woolford J.
[2] _{R v Wang and Gao HC Auckland CRI-2004-092-0088789, 22 February 2005, Harrison J.}
[3] _{R v Posimani CA369/04, 21 March 2005.}
[4] _{R v Albert HC Auckland CRI2004-004-1493, 29 June 2004, Nicholson J.}
[5] _{R v Styles HC Auckland CRI-2006-004-001208, 12 February 2008, Winkelmann J.}
[6] _{R v Hsu HC Auckland CRI-2010-092-012758, 8 March 2011, Woolford J.}
[7] R v Fatu [2006] 2 NZLR 72 (CA).