IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-419-000009 [2013] NZHC 1786

THE QUEEN

v

STEPHEN JOHN WALLIS

Hearing:	16 July 2013	

Appearances:	
J Foster for the Crown
K Burroughs for the Defendant	

Judgment:	
16 July 2013	

SENTENCING NOTES OF WYLIE J

Counsel:
J Foster, Hamilton
K Burroughs, Hamilton

R v WALLIS  [2013] NZHC 1786 [16 July 2013]

Introduction

[1]       Mr Wallis, you appear for sentence today, having entered a plea of guilty to one charge of supplying the Class A controlled drug methamphetamine to another person or persons.  This is an offence pursuant to s 6(1)(c) of the Misuse of Drugs Act 1975.  It is subject to a maximum term of imprisonment of 14 years.

[2]       You pleaded guilty to that charge on 8 April 2013, and you were remanded to be sentenced in this Court until Thursday, 16 May 2013.  In the event, you had health difficulties, and the sentencing had to be further adjourned until today.

[3]       There was initially one other count on the indictment presented against you. That was a count of conspiring to supply the precursor substance pseudoephedrine. You were not asked to plead to that charge on 8 April 2013.  The Crown has today advised that it offers no evidence in support of that count.  As a result, I have discharged you under s 347 of the Crimes Act 1961 in relation to that charge.

[4]       There is a lengthy background to this matter.  In July 2012, you were given a sentence indication by Lang J.   That sentence indication remained open for acceptance as a result of a number of extensions until December 2012.  You declined to accept the same, taking the view that you wished to put the Crown to proof. Ultimately, you elected not to do so, and entered the guilty plea.  Priestley J gave an indication of the sentence he thought would be appropriate at that point of time.  I deal with these sentence indications shortly.

Background Facts

[5]       The charge to which you have pleaded guilty arises from an investigation

carried out by the police and known as “Operation Cape”.

[6]       The initial investigation focussed on the activities of various individuals, and their involvement in the manufacture and supply of controlled drugs.  You were not initially part of the investigation, but the police became aware that you were purchasing methamphetamine from some of the people who were the subject of the investigation, to on supply to others.

[7]       For the purposes of the sentence indication, you accepted that your offending involved approximately 70 grams of methamphetamine, with a value of between
$40,000 and $70,000.

Presentence Report

[8]       You come from a good and caring family.  You were married until the year

2000. You were previously in gainful employment, running your own business. [9]	You have not worked since 2002, and you are now living on your own.
[10]     You are now 55 years’ old.   You are a wheelchair-bound paraplegic.  You suffered serious injuries in a car accident in 2003 and have been paralysed from the waist down since that time.   Further, following a drug-related home invasion in
2005, you were shot four times and both your arms were broken.  This has resulted in ongoing health problems.  You have a colostomy bag, a catheter bag, and you are prone  to  ulcers  and  bed  sores.    You  use  special  equipment  to  assist  you  in maintaining a degree of independence. Recently, you broke both your legs when you fell out of your wheelchair.  It is likely that you will require further hospitalisation to treat the various injuries you have suffered.

[11]    You have an extensive history of drug use.   The probation officer who interviewed you for the presentence report noted that your attitude towards methamphetamine is that it is a motivating drug, and further, that marijuana helps you to cope with your situation.  She also noted that you have had some short-term success  at  rehabilitation,  and  that  you   are  willing  to  participate  in  future programmes.  She noted however that your history of rehabilitation in the past has ultimately proved to be unsuccessful.

[12]     The  probation  officer  recommended  a  sentence  of  imprisonment,  and recorded that you have no illusions about the possible outcome of your offending.

Principles of Sentencing

[13]     In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act 2002.   In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for  and  an  acknowledgement of  your  offending, and  the need  to  denounce the conduct in which you were involved.  I am also mindful of the need to deter others from  committing  the  same  or  similar  offences.    This  is  a  primary  factor  in drug-related offending.  I have taken into account the gravity of the offending with which you were involved, including your degree of culpability.  I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences. I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and I need to consider your rehabilitation in the circumstances which have arisen.

Sentence Indications

[14]     Lang J  noted that your offending fell squarely within what is known as

Band 2 in the decision of the Court of Appeal in R v Fatu.1

[15]     Band 2 offending normally attracts a starting point sentence of between three and  nine  years’  imprisonment.    Lang  J  considered  the  situation  of  your  two co-offenders, both of whom have already been sentenced.  They were higher up in the chain of supply than you, although one of them supplied a smaller amount of methamphetamine than you supplied.  Lang J had no hesitation in accepting that you fell below the other co-offender who had supplied a significantly greater quantity of the drug.   He observed that in order to achieve consistency with the sentences imposed on your co-offenders, a starting point of four years should be adopted. You have a significant history of drug offending, which Lang J considered warrants a six-month uplift.   He warned that every subsequent conviction from this point on will attract yet a higher uplift.

[16]     Lang J was prepared to allow you a discount of 20 percent for a guilty plea. He was also prepared to allow you an additional discount because of the fact that you will be required to serve your sentence whilst in a wheelchair.  He did note that you were allowed a 25 percent discount for this factor when you were sentenced for similar offending in 2007.  He observed that you cannot expect to receive the same discount on this occasion.  He indicated that he was prepared to allow you a total discount of 18 months, meaning that he would have imposed an end sentence of three years’ imprisonment.  Generous extensions of time were granted, to enable you to accept that sentence indication. As I have already indicated, you did not do so.

[17]     When you appeared before Priestley J on 8 April 2013, he noted that counsel for the Crown accepted that sentencing should proceed on the same basis as had been indicated by Lang J.  It was however common ground that given the lateness of your guilty plea, the level of discount that Lang J was prepared to allow for that plea should be reduced.  Priestley J observed that a final sentence of three years and three months’ imprisonment would be appropriate.

Analysis

[18]     I see no reason to depart from the sentence indications which have been given to you by Lang and Priestley JJ.

[19]     I accept that your offending falls within Band 2 in the guideline decision of the Court of Appeal in R v Fatu.2    Band 2 offending relates to offending involving between five and 250 grams of methamphetamine.  As I have noted, the starting point for the band is three to nine years’ imprisonment.

[20]     I have considered the sentences imposed on your co-offenders, Ms Burt and Mr Anderson.  I accept that both were higher in the supply chain than you.   In addition,    one    of    your    co-offenders,    Ms    Burt,    supplied    121 grams    of methamphetamine, whereas you have only pleaded guilty to supplying 70 grams of the drug.

[21]     While supplying methamphetamine is a serious offence in itself, there are no other aggravating features of the offending that I am aware of.

[22]     In my view, a starting point of four years’ imprisonment is appropriate.  That

is the same starting point as was indicated by Lang J.

[23]     I now turn to consider your personal circumstances.   I agree with Lang J’s observation that the Court has no alternative but to add an uplift because of your previous convictions.

[24]     You have a significant criminal history.  The most relevant previous offence is for possession of methamphetamine for supply in December 2006.   You were sentenced to two years’ imprisonment for that offence in August 2007.  This term of imprisonment allowed for a two-year discount for your guilty plea and personal circumstances.  You also have other convictions for the possession of cannabis, the possession of utensils used in the manufacture of methamphetamine, procuring methamphetamine, importation of a Class B drug, the possession of cannabis seed, and the like.

[25]     I uplift the sentence which I would otherwise have imposed on you by an additional six months to recognise your criminal offending.

[26]     I now turn to consider mitigating features.  I start with your guilty plea.  It was entered very late in the day, when the trial was about to commence.  Earlier in the process, Lang J was prepared to allow you a 20 percent discount for the guilty plea.    Given  the  lateness  of  the  plea,  that  discount  is  no  longer  appropriate. Priestley J indicated that an eight-month discount should nevertheless be available and notwithstanding the lateness of your plea.  This equates to a discount of about
15 percent.  I am not minded to disagree with this approach, albeit that it is open to me to do so.

[27]     I also accept that it is appropriate to allow you a further discount given your personal circumstances — in particular, the fact that you are in a wheelchair, and will be required to serve your sentence as a wheelchair-bound paraplegic. You also have

a number of other health-related problems.  I have received this morning a signed affidavit from a community nurse, a Ms Hamme Paterson.  She has outlined your medical problems in some detail.  It is clear that imprisonment will not be easy for you.   Lang J was prepared to allow you what he termed a “generous discount” of some seven months to reflect these factors.  Again, I am not minded to depart from that indication.

[28]     I do note that Ms Paterson suggested that it may be appropriate to sentence you to home detention rather than a term of imprisonment.  That has not been advanced by Mr Burroughs on your behalf this morning.  It is not a sentence which is appropriate given the offending with which you were involved.   Nor is it appropriate given the sentence indications which have been given to you, and your guilty plea in light of those sentence indications.

[29]     It is, however, a matter of concern that your present offending has occurred, notwithstanding your disability and your health difficulties.  I reiterate the warning given to you by Lang J.  You cannot simply come back to the Court time and time again and expect to receive the same level of discount each time, because of the fact that you are required to serve a sentence of imprisonment in a wheelchair.  In 2007, the Court allowed you a 25 percent discount, given your health-related problems.  In my view, the discount indicated by Lang J, while generous, is appropriate.

[30]     It follows that I am prepared to allow you a total discount of 15 months from the sentence I would otherwise have imposed.

Sentence

[31]     Mr Wallis, in respect of the charge of supplying the Class A controlled drug methamphetamine, you are sentenced to a term of imprisonment of three years and three months.

[32]     I direct that the witness statement from Ms Hamme Paterson should be made available to the prison authorities and also to the Parole Board.  It is likely to assist them in dealing with you.  I record that you have consented to the statement being

made available to those entities, notwithstanding that it contains medical information personal to you.

[33]	Please take the prisoner down.

Wylie J