Nordstrand v Police HC Whangarei CRI-2011-488-000051

[2011] NZHC 1150

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-488-000051

BETWEEN  NICHOLAS JOSEPH NORDSTRAND Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 September 2011

Appearances: A B Fairley for Appellant for Crown

Judgment:      26 September 2011

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Whangarei

Thomson Wilson, Whangarei

NORDSTRAND V NEW ZEALAND POLICE HC WHA CRI-2011-488-000051 26 September 2011

[1]      On 5 August 2011 Judge McDonald sitting in the District Court at Whangarei sentenced the appellant Mr Nordstrand to four years’ imprisonment.  Mr Nordstrand had previously pleaded guilty to a charge of possession of methamphetamine for supply and three charges of male assaults female.  The end sentence imposed was four years’ imprisonment on the methamphetamine charge and nine months concurrent on the male assaults female charges.   Mr Nordstrand appeals against sentence.

[2]      The background facts to the offending can be stated shortly.

[3]      On 3 June 2011 police executed a search warrant at an address in Herekino Street, Whangarei.  The appellant and two others were located at the premises.  The police located approximately four  grams  of methamphetamine packaged  in  four small snap lock plastic bags spread across the floor of a bedroom.  The police also found a set of electronic scales and a number of $20 notes.  The scales were sensitive and calibrated to measure between 0.01 gram to 100 grams. A more extensive search of the premises located an additional snap lock plastic bag containing approximately

11.7 grams of methamphetamine.  This 11.7 grams had not been cut and was in its pure form.  An additional quantity of methamphetamine was found in the appellant’s underwear.  In total approximately 16.4 grams was found.

[4]      In addition to the $20  notes scattered about the property the police also located a further wad of cash $3,800.   The appellant contests the seizure of that

$3,800.  That is for resolution in the District Court.  The Judge put it to one side for sentencing purposes and I do the same.

[5]      The male assaults female charges arise out of three incidents between the appellant and his then partner, occurring on different days.  The first incident was on

24 April 2011 in the late evening.  There was an argument.  The appellant elbowed the complainant in the face.  Two days later, whilst driving with the complainant and her child, an argument developed.   The appellant pulled  the complainant’s hair, pushed her downwards and punched her approximately six times in the head.  Then on 5 May the appellant and complainant again had an argument.  She tried to leave. The appellant stopped that.   When she took a back pack and sought to leave, the

appellant took it off her and pushed her to the floor, punching her three times in the head and kicking her once in the body.

[6]      As noted that offending occurred between 4 April and 5 May.  The appellant was on bail in relation to that offending when the search and subsequent arrest on the methamphetamine charge followed.  The appellant pleaded guilty at an early stage to all the offending.

[7]      In the District Court the Judge noted the above factors and then referred to the leading Court of Appeal authority in relation to sentencing for methamphetamine of R v Fatu.[1]   He took the possession of methamphetamine for supply charge as the lead charge and applied a start point for sentencing on that of four and a half years.

[1] R v Fatu [2006] 2 NZLR 72 (CA).

[8]      The Judge considered nine months’ imprisonment was appropriate in relation to the three charges of male assaults female.  The assault offending was of a quite different nature so he took a cumulative approach which led to a start point for all of the offending of five years three months.

[9]      The Judge then considered the appellant’s personal circumstances.   He did not apply any uplift to the five years, three months and gave the appellant a full credit in terms of the Supreme Court decision of R v Hessell[2] for the guilty pleas of

25%.   The Judge rejected the submission that the appellant was truly remorseful. That led to the end sentence of four years’ imprisonment. The Judge imposed that on the methamphetamine charge.

[2] R v Hessell [2011] 1 NZLR 607.

[10]     This appeal has been brought against the end sentence.  Mr Fairley has filed full submissions in support of the appeal.  He has correctly focused the appeal on the issue of whether it can be said the end sentence imposed by the Judge was clearly excessive in the circumstances of the offending and the offender in this case.

[11]     The focus of Mr Fairley’s submission was to challenge the start point taken

for the methamphetamine offending of four years six months’ imprisonment.

[12]     The Crown submit that the start point was within range and that the appeal should be dismissed.

[13]     Mr Fairley referred to a number of decisions of the Court of Appeal and this Court involving sentencing for methamphetamine offending.  He submitted that the four years six months was not consistent with those other cases, apart from one case the Crown had referred to the Judge for sentencing in the District Court, namely R v Carrington,[3]  a decision of Heath J where on a charge involving possession of just over 14 grams of methamphetamine for supply, a start point of five and a half years was taken.

[3] R v Carrington HC Whangarei CRI-2007-027-001305, 20 November 2008.

[14]     In  Fatu the Court of Appeal set out  the following sentencing points  for

offending relevant for today’s appeal:

band one – low level supply – less than five grams – two years to four years;

band two – supplying commercial quantities – five to 250 grams – three years

to nine years’ imprisonment.

[15]     The  first  point  that  arises  from  that  is  that  the  Court  of  Appeal  itself recognised an overlap between the bands.  The exercise of sentencing for possession of methamphetamine for supply is not an arithmetical one.  That is apparent from the Court setting the maximum possible sentence for band one for possession of less than five grams at four years, when the start point for band two can be as low as three.

[16]     The Court of Appeal have also made it clear that the issue on a sentence appeal is whether the end sentence can be said to be clearly excessive rather than an analysis of the process by which it is reached.   If a sentence is the product of a starting point which is itself clearly excessive but, in the end result, is ameliorated by other factors or allowances made for mitigating factors then the appellate Court will

be disinclined to intervene through concern over any particular components in the sentence:  R v Peters.[4]

[4] R v Peters CA12/03, 14 May 2001 at [13].

[17]     I accept the general submission made by Mr Fairley that a starting point of four and a half years for possession of 16.4 grams for supply is on the high side.  But balanced against that are the factors in this case that the Judge was entitled to take into account – the commerciality of the set-up shown by the scales, the $20 notes, the packaging of the methamphetamine for supply and the fact that the 11.7 grams was pure and uncut which would have led to a higher amount of the drug being available commercially.

[18]     Next, while other Judges might have adopted a lesser starting point for the methamphetamine offending and placed it closer to four years, the Judge also had to take into account the other offending, male assaults female, which was nasty offending.  The appellant has previous relevant convictions for common assaults in a domestic setting and male assaults female.  The Judge would have been entitled to apply an uplift for that previous offending, but he chose not to even though another Judge might have done so.

[19]     There is another factor which the Judge has not taken into account but which again, another Judge could have done.   The offending in relation to the methamphetamine took place whilst the appellant was on bail in relation to the separate and unrelated assault offending.  Again, that is a factor that, in terms of the Sentencing Act, the Judge could have taken into account and which would have supported an uplift.

[20]     When all of those factors are taken into account I am not able to say that the start point, before the guilty plea allowance of 25% of five years three months was, in this case, not within range.  The discount for guilty plea was the full 25%.  No issue is taken with that.

[21]     It follows that the end  sentence for the totality of this offending,  in the circumstances of this appellant, cannot be said to be clearly excessive.  The appeal

must be and is dismissed.

Venning J