R v Albert - [2016] NZHC 241

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-057-001428 [2016] NZHC 241

THE QUEEN

v

ARNOLD ALBERT

Hearing: 23 February 2016

Appearances:

J Pridgeon for the Crown
PHH Tomlinson for the Defendant

Sentencing:

23 February 2016

SENTENCING NOTES OF WOOLFORD J

Solicitors: Crown Solicitor, Manukau

Counsel: PHH Tomlinson, Auckland

R v ALBERT [2016] NZHC 241 [23 February 2016]

Introduction

[1] Mr Albert, you have pleaded guilty to one charge of supplying the class A controlled drug methamphetamine.1 The charge is representative and encompasses numerous instances of supply. The maximum penalty for this offence is life imprisonment.2

Facts

[2] There is no dispute about the facts on which I am to sentence you.

[3] Your offending came to light as a result of a police operation code named “Operation Cesium”. The operation began in 2013 and targeted the sale and supply of methamphetamine in Wiauku, Pukekohe and other South Auckland communities.

[4] The principal target of the operation was an associate of yours, Ms Catherine Norton. In the period between 13 November 2013 and 8 May 2014 Ms Norton acquired large quantities of methamphetamine. Your role involved making regular, often daily, purchases of one or two grams of methamphetamine from Ms Norton. You then divided these into smaller dealing amounts before on-selling them to other persons including your family, associates, and on a number occasions an undercover police officer.

[5] Mobile phone records obtained by the police demonstrate that you purchased about 98 grams of methamphetamine from Ms Norton during the period of your offending. The quantity that you re-sold or supplied to others is agreed to be about
80 grams.

[6] In general, you supplied the methamphetamine in tenths of a gram or points, or on occasion, in half gram quantities. The biggest supply that you made was a one- off supply of seven grams to an undercover police officer. I accept, however, that in
general, you were dealing in small amounts as a low level supplier or street dealer.

1 Misuse of Drugs Act 1975, s 6(1)(c).
2 Misuse of Drugs Act 1975, s 6(2)(a)

Such dealing is by definition, commercial, but you yourself were not making any significant profit. I will assess your culpability on that basis.

Personal circumstances

[7] I will also consider your personal circumstances.

[8] You are 51 years old. You have 12 previous convictions dating back to1979. The most relevant of these are your convictions for possessing methamphetamine in
2013 and possessing cannabis and stimulants in 2012. However, all of your previous offending has been at a low level and you have never before served a term of imprisonment.

[9] You used to be a member of the Black Power gang, but informed the Department of Corrections in your interview for this sentencing that you had handed in your patch about 10 years ago.

[10] It is clear that you have struggled with addiction to methamphetamine and other drugs. This has been identified by the Department of Corrections as contributing to your offending.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Albert

Details

AGLC: R v Albert [2016] NZHC 241
Case: [2016] NZHC 241
Decision Date: 23 February 2016

CaseChat Overview and Summary

In the case of R v Albert, the defendant pleaded guilty to supplying the class A controlled drug methamphetamine. The facts of the case, as outlined by the court, were not in dispute. The defendant's role involved purchasing methamphetamine from an associate and then reselling it to others, including family members, associates, and an undercover police officer. The court determined that the defendant's supply of methamphetamine fell within the middle to lower range of the guideline judgement for such offences. The legal issues in this case included determining an appropriate starting point for sentencing, adjusting the starting point based on personal circumstances, and deciding the discount for the defendant's guilty plea. The court adopted a three-stage approach to sentencing, taking into account the purposes and principles of sentencing set out in the Sentencing Act 2002. The starting point was set at four and a half years imprisonment, reduced by 15 per cent for the defendant's efforts at rehabilitation and by a further 4 months for time spent on restrictive bail. The final issue was the discount for the defendant's guilty plea, which resulted in a sentence of two years and nine months imprisonment.

The court sentenced Arnold Albert to two years and nine months imprisonment for supplying the class A controlled drug methamphetamine. The sentence was based on a starting point of four and a half years imprisonment, reduced by 15 per cent for the defendant's efforts at rehabilitation and by a further 4 months for time spent on restrictive bail. The court also allowed a 20 per cent discount for the defendant's guilty plea. The defendant will be eligible for parole after serving a third of his sentence, and the Parole Board will consider his efforts at rehabilitation when making its decision.

Orders