R v M HC Palmerston North CRI 2007-054-2084

[2009] NZHC 1482

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2007-054-2084

THE QUEEN

v

M

Charge:          Possession of methamphetamine for supply

Plea:               Not Guilty

Counsel:         E J McCaughan for Crown

F D Steedman for accused

Sentence:        4 February 2009

Home Detention – 9 months

SENTENCING NOTES OF MACKENZIE J

[1]      M    you  appear  for  sentence  on  one  count  of possession of methamphetamine for supply.   You were found guilty at trial.   You were acquitted on a number of other counts which you also faced.

[2]      I propose to deal only briefly with the facts relating to the offending.   The brief  facts  are  that  on  30  January  2006  the  principal  offenders  in  this  matter, Mr Byford  and  Ms Ngataki,  travelled  from  Auckland  to  Palmerston  North  and

checked in to the Pavilion Motel.  They took three units, one of which they occupied,

R V M HC PMN CRI 2007-054-2084  4 February

and the others for a number of associates who included yourself, and you were one of the occupants of one of the units.   Police had been alerted to their arrival and surveillance of the motel was conducted.  In the early hours of the morning a search was conducted, both of the motel and of a vehicle which Mr Byford had left the motel in.  There were three quantities of methamphetamine found.  A small quantity of 270 milligrams was found on Mr Byford.  Another quantity totalling some three and a half grams was found in a back pack which Ms Ngataki was carrying when apprehended, and after the police search had been concluded a further quantity of

89.2 grams of methamphetamine was located in the unit which had been occupied by Mr Byford and Ms Ngataki.  You had been observed during the night, in the course of the surveillance, on or adjacent to the property on some occasions.   You were found guilty.  The basis on which you were charged was that you were a party by aiding and abetting the offending by Mr Byford and Ms Ngataki.

[3]      The task of sentencing you is a difficult one, to which I have given very anxious and careful consideration, because of the state of your health.  The position can only be described as grim.   As the pre-sentence report indicates, your life is currently dominated by your very poor health.   You suffer from end stage renal failure secondary to diabetic nephropathy.  Your additional diagnoses are primarily line sepsis and long term Hypertension, DM Type II, Hypercholesteroaemia and Asthma.   You require 11 medications daily and dialysis every second day.   Your medical condition renders you barely mobile and your ability to undergo a prison sentence must be affected by that and indeed your ability to undertake any electronically monitored sentence is restricted by the fact that you cannot wear an anklet due to the swelling of your legs and the leg ulcers.   Your current general practitioner expresses the opinion that you would be too ill with very high medical needs to be able to undertake a sentence of imprisonment unless admitted and kept in hospital while doing your sentence.

[4]      For  the  offending  of  which  you  have  been  convicted  a  sentence  of imprisonment would ordinarily be inevitable.  It is mandated by s 6(4) of the Misuse of Drugs Act.   It would be required in the ordinary course, having regard to the relativity of your offending with the co-offenders, and it would be inevitable. However,  in  your case,  I have reached  the  conclusion  that  the  imposition  of  a

sentence of imprisonment would be inhumane and indeed it would be impractical.  In the relatively recent case of R v Riri [2008] NZCA 441, the Court of Appeal dealt with the situation of a prisoner who had been sentenced to a term of imprisonment although he was paralysed from the waist down. His imprisonment became impractical and the Court of Appeal allowed the appeal and substituted a sentence of home detention for that reason. The circumstances there are similar to those here. The Court of Appeal there recognised that prison was inappropriate and the sentence accordingly was an unduly severe one. Because of those circumstances I have reached a view that a similar situation applies here. Accordingly, while I would ordinarily regard imprisonment as inevitable that is not a sentence which I consider is a viable option here.

[5]      That it makes it unnecessary for me to consider the term of imprisonment which I would otherwise impose and unnecessary to cover in detail the relativity of your offending with that of Mr Byford and Ms Ngataki.   Counsel for the Crown submits that your degree of culpability is similar.  As I have presided at both trials, I would indicate that I consider that your culpability is at a considerable lower level than that of those principal offenders and that would affect the length of the sentence which I might otherwise have imposed.  It is unnecessary for me to consider whether that would be at a level where home detention would, on ordinary principles, be an option because as the Court of Appeal recognised in Riri, the circumstances are similar to those in R v Hill [2008] 2 NZLR 381 where the limit on the imposition of a sentence of home detention does not apply.

[6]      Accordingly, I exclude imprisonment as an option when sentencing you.   I have also considered, but excluded, the possibility of a sentence of supervision or intensive supervision.  However, those sentences are specific sentences designed to address specific circumstances relating to the reduction of the likelihood of further offending through rehabilitation and reintegration, and frankly do not fit readily with the situation here.  I consider that the appropriate course is to impose a sentence of home detention.

[7]      There are two issues which I need to address in relation to that.  The first is that there has been no specific report directed to the suitability of the premises and

the matters normally dealt with.   In the quite exceptional circumstances here,  I propose to dispense with the obtaining of such a report.   You have been on bail throughout and  I consider that the address to which  you have been bailed is a suitable address for home detention in the particular circumstances here.

[8]      The  second  matter  is  the  question  of  electronic  monitoring.    As  I  have indicated,  the  view  has  been  expressed  that  your  medical  condition  makes  you unable to wear an electronic monitoring anklet.  Under s 80C of the Sentencing Act it is a standard condition of a sentence of home detention that the offender must, when required by a probation officer, submit to the electronic monitoring of compliance with his or her conditions.   There may be some room for doubt as to whether it is open to me at this stage to vary that condition by imposing a restriction on the imposition of electronic monitoring.  I therefore do not go so far as that, but I express the strong view that a condition as to electronic monitoring would not be appropriate given the lack of mobility which your physical condition and state of health necessarily imposes, and the difficulty which the wearing of an anklet would impose.   Accordingly, I indicate as strongly as I can that any requirement as to electronic monitoring should take these remarks and your condition into account. Electronic monitoring ought not to be imposed simply on the basis of any standard procedure or practice in that regard.  I would expect that the requirement would not be found necessary.

[9]      It will be clear from my remarks that your case is to be regarded as an exceptional one and it contains no indication that anything other than a sentence of imprisonment would ordinarily be appropriate for offending of this sort.

[10]     The sentence is:

(a)       That you are sentenced to home detention for a period of nine months. (b)     The address is that of 376 Kahikatea Drive, Dinsdale, Hamilton.

(c)      The standard conditions will apply with the caveat that my remarks are to be taken into account in the application of the condition in s 80C(1)(d).

“A D MacKenzie J”