R v Alder HC Auckland CRI 2004-004-011051

[2005] NZHC 1221

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI.2004-004-011051

REGINA

v

NEILL JAMIE ALDER

Charges:Possession of Class A controlled drug (Methamphetamine) for supply Possession of Class C controlled drug (Ecstasy) for supply

Plea:               Guilty

Counsel:         Gary Gotlieb for prisoner

David Johnstone for Crown Sentenced:  21 June 2005

SENTENCE OF WILLIAMS J

Possession of methamphetamine for supply: 2½ years Possession of Ecstasy for supply: 2½ years

Solicitors:

Crown Solicitor, Auckland

Copy for:

Gary Gotlieb, P O Box 47-369 Auckland

R V ALDER HC AK CRI.2004-004-011051 [21 June 2005]

Mr Alder: it is customary for people being sentenced to stand during sentencing remarks but there are so many issues that need to be covered by Judges in sentencing these days that I invite you and the escort to remain seated until I do ask you to stand.

[1]    Mr Alder, you appear here for sentence this morning having pleaded guilty on 28 April 2005 to one count of possessing a Class A controlled drug, methamphetamine, for supply between 1 April and 31 May 2004 and one count of possessing a Class B controlled drug, Ecstasy, for supply on 30 May.

[2]    You have heard the discussion I have just had with counsel as to why the informations against you – at least those to which you have pleaded guilty - were not laid until 8 and 9 February this year. I accept what counsel say and I also accept that an indication of your intention to plead guilty to the charges was given at the first available opportunity and was entered at the first available opportunity on the informations actually laid.

[3]    The facts are that you and a Mr Cunningham were involved in organising a surprise party at the Hyatt Hotel on 29 May 2004, at which there were drugs present. There were about twenty people at the party. You were apprehended as a result of the party when the Police went to the room at the hotel. You were found to have 1.3 grams of pure methamphetamine with a street value of about $1,300 in your possession. A search warrant was executed at your home the following day and 44 Ecstasy tablets worth about $2,600 were found there. You acknowledged to the Police that you had been selling methamphetamine, you said, for only about a moth beforehand, and had been selling Ecstasy for about two months beforehand.

[4]    The Probation report and Mr Gotlieb’s helpful submissions on your behalf show that, unfortunately like so many others who come before this Court these days, you began experimenting with methamphetamine in about 2002. You  rapidly became addicted to it. Again like so many who unfortunately appear before us, instead of simply being a buyer and a user, you were persuaded to become a seller

with incentives such as free drugs and, of course, you played your part in disseminating this pernicious drug throughout our community.

[5]    However, the Probation Service and the counsellor whose report I have read, Mr Gotlieb and your parents and brother who are here today all support the fact that as a result of your arrest you have effected a major turnaround in your life.  You  have stopped using drugs and have not used drugs now for about a year. You have very strong family support. You have very strong support from your employer. You are close to completing an apprenticeship in plumbing. You voluntarily undertook drug counselling.

[6]    All those issues are very much to your credit. But, as Mr Gotlieb will have told you, when Judges are sentencing people for drug-dealing offences, personal circumstances have a very small part to play.

[7]    What also sets you apart from many other people who come before the Court for sentencing is that you have essentially no relevant convictions at all, just a minor conviction or two for traffic matters.

[8]    The Crown in its submissions says that amongst the aggravating factors – those which make the offence worse than the simple facts of the charge – are that you were a small scale dealer in methamphetamine in its pure form and in Ecstasy. They accept that your pleas of guilty were entered at the earliest practicable opportunity although the Crown submits that was in face of an overwhelming Crown case backed up by your confessions of dealing.

[9]    The Crown accepts, as does Mr Gotlieb, that in sentencing you I need to take into account the remarks and the result of the sentence imposed by Cooper J some  six months ago on Mr Cunningham, someone who was initially charged jointly with you. The joint charge was withdrawn but he was involved with you  in organising  the party, he was arrested as a result with the same amount of methamphetamine in his possession, he, too, pleaded guilty at an early stage and he is about the same age as you, 24. He, too, had no relevant previous convictions and obviously enough the circumstances of the offending were very similar. What sets Mr Cunningham,

however, aside from you is that there is no suggestion that he was dealing in Ecstasy as well as methamphetamine.

[10]   The Crown, therefore, submit that the starting point for my sentencing you should be three to four years imprisonment with the aggravating and the mitigating features taken into account after that.

[11]   I have carefully read Mr Gotlieb’s comprehensive submissions. He,  of course, stresses your age, your early plea and your regret and remorse for having involved yourself in the selling and trading of this plague drug in our community.  He again draws my attention to your family and friends’ support.  He submits there  is only a small commercial aspect to what you did and it was mainly to finance your own habit. He draws my attention to your employment record, the fact that  you spent a fortnight in custody following your arrest before being bailed, and the fact that you have turned your life around. He submits, in reliance on a Court of Appeal judgment in R v Arthur (CA382/04 17 March 2005) that the starting point should be about three years imprisonment and after relying on R v Atkinson (HC WN T032856 19 March 2004 Ellen France J) and R v Wihapi  (HC Rotorua  CRI.2004-070-7036 11 May 2005 Harrison J) that the final sentence I impose on you should be in the region of eighteen months to two years and, it being two years or less, with leave to apply for home detention.

[12]   I have also read the letter which the Police have provided, which sets out other factors which I need to take into account and which certainly reduce the sentence to be imposed on you.

[13]   In terms of the Sentencing Act 2002, I need to impose a sentence which tries to instil some accountability in you, denounce your conduct and deter others. It seems you have gone a long way on your own to achieving that but there is certainly your drug dealing in two major drugs in our community and those are factors which need to be taken into account. The gravity of your offending is shown by the fact  that Parliament two years ago re-classified methamphetamine so that the maximum sentence you are facing is not one of fourteen years imprisonment but one of life

imprisonment on the methamphetamine charge, and fourteen years on the Ecstasy charge. These are plainly very serious offences.

[14]   Back in 1999 the Court of Appeal issued a  judgment  in R v Wallace  [1999] 3 NZLR 159 which divided up drug offending, drug dealing particularly, into three categories. You are clearly in the third or the bottom of those categories, what the Court of Appeal called “smaller operations representing commercial dealing”. The Court suggested that a starting point for sentencing in that category should be up to five years although the circumstances of offending varied so widely they could not be more specific. Recently, the Court of Appeal in the case I mentioned earlier, Arthur, has endeavoured to re-classify starting points for drug-dealing offending although it has expressly said it is not a guideline judgment.

[15]   In the middle category in Arthur – that which does not apply to you – there are difficulties in the Court of Appeal’s formulation and I will include in these sentencing notes reference to a case called R v Dudley Dudley and Hill (HC Rotorua CRI.2003-063-9651, 12 May 2005) where some observations were made in that regard.

[16]   Careful re-reading of Arthur shows that even in your category there are some difficulties arising out of the judgment. The Court of Appeal in that case said for low-level supply the starting point for dealing should be two to four years imprisonment. That contrasts, with respect to the Court of Appeal, rather strangely with Wallace saying that the starting point should be up to five years in that category despite the fact that that Court has acknowledged several times since Wallace that its starting points need reconsideration. The Wallace starting points are now too low  and that is particularly the case given that the maximum sentence for methamphetamine dealing was increased by 50% only two years ago. So it is difficult to understand what to make of the Arthur suggestion in relation to this category as well.

[17]   In my view, more  helpful guidelines  are  to  be  found  in  the  judgment  in R v Franklin (HC Auckland CRI.2004-004-5016 17 August 2004) confirmed on appeal (CA363/04 15 March 2005), R v Worth (HC Hamilton CRI.2004-019-07297

21 October 2004) and a case called R v Hills (HC New Plymouth CRI.2003-043- 005789 2 July 2004). Those all indicate, as does R v Cunningham (HC Auckland CRI.2004-404-011052 14 December 2004 Cooper J), that the appropriate starting point for the quantity of drugs in your possession should be in the order of three to four years imprisonment before aggravating and mitigating features are taken into account, probably, as in Cunningham, towards the upper end of that band.

[18]   You pleaded guilty to dealing in two drugs for, on your own confession, a month  in  the case of methamphetamine and two  months  in  the  case  of Ecstasy.   I have already mentioned the effect on the community that brings about. You were selling the drug, you were not giving it away, you were not complying with people’s requests, you were selling it out into the community. No doubt your commercial enterprise resulted in other people becoming addicted to this pernicious drug.

[19]   You pleaded guilty at an early stage, as I have noted, and there are the cases I have mentioned which give an indication as to what the starting point should be. As  I said, the starting point, in my view should be in the three to four year range – probably closer to four.

[20]   The aggravating features are the length of the time that you were dealing. It was on a modest scale but, no doubt, yielded financial return. And the fact is that there were two drugs which you were dealing. Indeed, there may have been an argument to have been made, but the Crown did not make it, for cumulative sentencing for the two counts you faced. In my view it is not a case for cumulative sentencing. But the fact that you were dealing over a period of up to two months at least in two different controlled drugs is certainly a significant aggravating feature. Before I take the lessening features into account that factor would suggest the appropriate term of imprisonment to be imposed is of the order of five-and-a-half to six years.

[21]   However, there are substantial mitigating features. There is the  plea  and there are your confessions of dealing, even though the actual confession may have been in the face of an overwhelming Crown case. There is the assistance you have provided and continue to provide. And, although as I have said, personal

circumstances play very little part in dug-dealing sentencing, I certainly commend the efforts you have made to bring about a major change in your life with the assistance of the family, your employer, your counsellor and others.

[22]   However, I regret to say that even giving all those circumstances the maximum effect I can, in my view the mitigating features do not go further than halving the sentence. In my view, and this is after having regard to the sentence imposed in Cunningham, the term of imprisonment to be imposed on you in each of these cases is two-and-a-half years. That means that an application for  leave  to apply for home detention cannot be entertained. That is the sentence of the Court.

[23]    I regret it for you. I regret it for your family and your supporters, but the effect on the community means in my view that the appropriate length of imprisonment to impose is two-and-a-half years on each. Stand down.

………………………………..

WILLIAMS J

21 June 2005