Alder v The Queen

[2005] NZCA 253

IN THE COURT OF APPEAL OF NEW ZEALAND

CA205/05

THE QUEEN

v

NEILL JAMIE ALDER

Hearing:17 October 2005

Court:Chambers, Potter and Doogue JJ

Counsel:G C Gotlieb and J R Smith for Appellant

M D Downs for Crown

Judgment:27 October 2005 

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BThe appellant must report to the Auckland Central Police Station by no later than 5 pm tomorrow to commence his sentence of imprisonment.

____________________________________________________________________

REASONS

(Given by Chambers J)

Supply of class A and class B drugs

[1]       On 29 May last year the police went to a party being held in a hotel room in central Auckland.  Among the guests was Neill Alder, the appellant.  The police searched him and found in his trouser pocket a snap-lock bag containing 1.3 grams of the pure version of the class A drug methamphetamine.  The drug had an approximate street value of $1,300. 

[2]       The next day the police executed a search warrant at Mr Alder’s home in Mt Albert.  They found 44 Ecstasy tablets in a snap-lock bag in Mr Alder’s bedroom.  Ecstasy is a class B drug.  Each tablet has an approximate street value of $60.

[3]       When spoken to by the police, Mr Alder admitted that he was selling point bags of methamphetamine for $100 each.  He said that he had done that for about a month.  He also said that he had given up selling methamphetamine and instead had been selling Ecstasy for about two months prior to being apprehended.  He said that he generally sold to associates or people that he knew.

[4]       The police charged Mr Alder with having in his possession a class A drug, namely methamphetamine, for the purpose of supply.  The offending was said to have occurred between 1 April 2004 and 31 May 2004.  Mr Alder was also charged with being in possession of a class B drug, namely Ecstasy, for supply.  He pleaded guilty to both charges.

[5]       Following the entry of the pleas, Judge Lockhart QC remanded Mr Alder for sentence in the High Court.  He ordered a full pre-sentence report.  He also requested a drug and alcohol assessment.

[6]       Mr Alder told Roy Armstrong, the alcohol and drug clinician who interviewed him, that he had been using methamphetamine for about 12 months prior to his apprehension.  He said that over that period his use had escalated and that as a means of ensuring his personal supply, he had commenced trading methamphetamine and Ecstasy.  For the last three months before apprehension, he reported that his life revolved totally around his drugs use.  He estimated peak usage at 0.5 grams weekly.  It was in order to finance that dependence that he had commenced selling drugs on behalf of suppliers.  

[7]       Williams J sentenced Mr Alder in the High Court.  He adopted a starting point in “the order of five and a half to six years”.  He considered that there were significant mitigating factors.  The sentence actually imposed on each charge was two and a half years’ imprisonment. 

[8]       Mr Alder now appeals against his sentence.  He has been on bail pending this appeal. 

Issues on the appeal

[9]       There are two issues on this appeal.  The first is whether the starting point adopted by Williams J was too high.  No criticism is made of the discount awarded for mitigating factors.

[10]     The second issue is whether this sentence is out of line with that imposed on one of Mr Alder’s associates, Kristopher Cunningham.  Mr Cunningham was also sentenced for drug offending – though not by Williams J.  Mr Cunningham received a sentence of two years’ imprisonment and was granted leave to apply for home detention.

The starting point

[11]     Williams J looked first at the methamphetamine dealing.  He adopted a starting point “in the three to four year range – probably closer to four”.  He then turned to consider what to add to that figure for the Ecstasy dealing.  He considered that that should raise the starting point to somewhere between five and half years and six years’ imprisonment.

[12]     Mr Gotlieb, for Mr Alder, approved the judge’s approach, but disagreed with the levels adopted.  He submitted that the starting point for the methamphetamine dealing should have been three and a half years’ imprisonment.  There could then have been a six month increase for the Ecstasy dealing, making an aggregate starting point of four years.

[13]     It will be immediately obvious that there is little difference between Williams J’s starting point for the methamphetamine and Mr Gotlieb’s suggested figure.  We have no doubt that Williams J’s starting point was appropriate.  We think this case fell towards the bottom end of category 2 in R v Arthur (2005) 21 CRNZ 453 (CA).  Mr Alder had clearly been dealing in methamphetamine on a commercial basis.  Although he may have had on him on the day of his arrest only 1.3 grams of methamphetamine, it is a fair inference from the agreed facts and other admissions made that his dealing over the two month period specified in the information would have been well in excess of the 5 gram limit for commercial dealing.  We know that at his peak, by his own admission, he was using 0.5 grams of methamphetamine a week.  We do not know what he paid for this methamphetamine as he may have been buying in bulk from a “wholesaler”.  But we do know that he was selling to fund his drug habit.  A gram of methamphetamine sells for about $1,000 at street level, but the retailer of course has to buy the product before he can on-sell.  We do not know what normal profit margins are, but it is a fair inference that more than 5 grams must have passed through Mr Alder’s hands in that period.  The starting band for category 2 offending is three to nine years’ imprisonment.  Williams J’s starting point could not be sensibly challenged in these circumstances.

[14]     Williams J considered this case on the basis that it was a bad category 1 case: category 1 because at the time of his arrest Mr Alder had on him 1.3 grams of methamphetamine and “bad” because of the admissions of past dealing for profit to fund a very serious drug habit.  While we prefer the view that Mr Alder should be considered a commercial dealer, albeit at the less serious end of that range, we think Williams J’s approach leads to the same answer.  Even if this is seen as a category 1 case, it would clearly have to be at the top end of the range, as His Honour determined.  Categories 1 and 2 overlap for the reasons given in Arthur at [22].

[15]     The real difference between Mr Gotlieb and Williams J came in the increase for Ecstasy dealing.  There is no possible basis on which that could have justified only a six month increase.  Mr Gotlieb cited no authority to support such a view.  Once again, the offending needs to be seen in light of the admissions made as to prior dealing in Ecstasy.  Had the Ecstasy dealing stood alone, the penalty would have been significantly higher than Williams J’s increase of 18 months to 2 years.  Presumably, Williams J reduced the increase to an extent because of the totality principle.

[16]     It follows that we consider Williams J’s starting point to be within the acceptable range.  There was no dispute about the reasonableness of the discount he gave for mitigating factors.  It follows that the final sentence he reached of two and a half years’ imprisonment was not manifestly excessive.  That finding is subject, however, to the parity argument Mr Gotlieb advanced.  To that we now turn. 

Parity with Mr Cunningham’s sentence

[17]     Mr Cunningham was the organiser of the hotel room party.  He too was picked up by the police.  The police searched him and found in his shoulder bag a plastic snap-lock bag containing 1.3 grams of methamphetamine.  He also had more than $3,000 in cash in the bag.  He admitted that he had supplied friends at the party and that the cash was the result of payments which he had received from selling the drug.

[18]     Mr Cunningham, like Mr Alder, pleaded guilty to a charge of possessing methamphetamine for supply.  Mr Cunningham was sentenced by Cooper J in December last year.  Cooper J adopted a starting point of three years, nine months’ imprisonment.  There were important mitigating factors, in respect of which His Honour allowed a one year, nine months’ discount.  The end sentence was two years’ imprisonment.  Because the sentence was two years’ imprisonment or less, the court had a discretion as to whether to allow Mr Cunningham to apply for home detention.  Cooper J determined that Mr Cunningham should be granted leave to apply for home detention. 

[19]     Mr Gotlieb submitted that Mr Alder’s sentence was out of line with Mr Cunningham’s.  But clearly it was not.  Cooper J adopted a starting point in exactly the same range as Williams J’s starting point so far as the methamphetamine was concerned.  If one was trying to achieve parity between Mr Alder and Mr Cunningham, a higher starting point for Mr Alder could have been justified, as Mr Alder admitted that he had been dealing in methamphetamine for quite some time.  No such admission was made by Mr Cunningham.  Although Cooper J’s sentence was pre-Arthur, there could be no doubt that Mr Cunningham, in Arthur terms, was a category 1.  The $3,000 cash indicated that he had sold about 3 grams of methamphetamine, but, even with that assumption, the total amount (including the methamphetamine he still held) was less than 5 grams.  Mr Cunningham was a top end category 1, but there was no evidence that his dealing was of a magnitude to slip him into category 2.  That is a distinction between him and Mr Alder. 

[20]     Unlike Mr Alder, Mr Cunningham was not involved in Ecstasy dealing.  Thus, there was no need for the increase in starting point which was fully justified in Mr Alder’s case.

[21]     Mr Cunningham got a generous discount for personal mitigating factors, but the discount was not nearly as generous as Williams J gave Mr Alder, either in absolute terms (number of months’ discount) or as a percentage of starting point.

[22]     Mr Gotlieb argued that Mr Alder should have been brought down to two years’ imprisonment, like Mr Cunningham.  But, as Mr Downs submitted, that completely ignores the fact that Mr Alder was dealing in Ecstasy as well as methamphetamine.  Had Mr Alder been sentenced to two years’ imprisonment, Mr Cunningham could have felt aggrieved at the level of his sentence!

[23]     We do not consider that Mr Alder’s sentence is in any way out of line with that imposed on Mr Cunningham.

[24]     This case is a long way from the sort of case warranting appellate intervention on the ground of disparity of sentence with that imposed on co‑offenders.  The cases of R v Rameka [1973] 2 NZLR 592 (CA) and R v Lawson [1982] 2 NZLR 219 (CA) show that the disparity must be “unjustifiable” and “gross” to warrant intervention. There is no disparity here, let alone an “unjustifiable” or “gross” disparity.

[25]     Mr Downs also raised the point that Messrs Alder and Cunningham were not, in any event, co-offenders.  They were not jointly charged.  While both were apprehended as the result of the same incident, their criminality was distinct.  As Mr Downs put it, “no true issue of parity or disparity arises, as against the issue of general consistency within sentencing practice”.  There is much to be said for that proposition, but we find it unnecessary to determine whether the principle enunciated in Rameka and Lawson is limited to true co-offenders. 

Result

[26]     It follows that the appeal must be dismissed.  This court has said on many occasions that sentencing must not be manipulated so as to bring the sentence down to two years’ imprisonment or less. To reduce Mr Alder’s sentence to two years’ imprisonment would have involved manipulation by the sentencing judge.  We are quite satisfied that Williams J’s sentence was as low as it could rationally be.

[27]     Like Williams J, we are impressed by the steps Mr Alder has taken to rid himself of his drug dependency and to turn his back on drug dealing associates.  It may well be, as Mr Gotlieb submits, that prison will be a potentially detrimental environment for Mr Alder’s rehabilitation.  But sentencing is not just about what is best for the offender.  There are very important community interests involved, and in particular the need to deter others from dealing in class A and class B drugs.  Mr Alder’s crimes were not victimless crimes.  Some drug dealers in the past – perhaps people very like Mr Alder – induced him to start on the path of drug dependency, which was his undoing.  He in turn has supplied these harmful drugs to others, whose like dependency on methamphetamine and Ecstasy he has helped create or maintain.  The word must go out that convictions for dealing in class A and class B drugs will almost invariably lead to sentences of imprisonment, and in most cases for terms of a length rendering the offenders ineligible for home detention. 

Solicitors:
W J Spring, Auckland, for Appellant
Crown Law Office, Wellington