R v Anderson HC Dunedin CRI-2007-059-000679

[2007] NZHC 1804

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2007-059-000679

REGINA

v

DAVID WILLIAM ANDERSON

Hearing:         7 June 2007

Appearances: J Young for Crown

J H M Eaton for Prisoner

Judgment:      7 June 2007

SENTENCE OF PANCKHURST J

Mr Anderson:

[1]      As  you well know  you  are  for  sentence  this  morning  upon  a  charge  of manufacturing a class A drug, methamphetamine.  That charge was laid against you on 12 March.  You entered a prompt plea of guilty on 30 April and you, of course, appear this morning for sentencing.

[2]      At about 7.00 am on 12 December last a search warrant was executed at premises near Queenstown.  The police found some light bulbs adapted for smoking methamphetamine.  In the course of the search they also uncovered equipment used in  the  manufacture  of  that  drug.    It  included  the  normal  array  of  glassware, chemicals, a hot plate and various residues containing pseudo ephedrine and also

traces of  methamphetamine  itself.    Indeed,  there  were three  small  quantities  of

R V D W ANDERSON HC DUN CRI-2007-059-000679  7 June 2007

methamphetamine found in separate containers.    The total weight of that methamphetamine was 317 milligrams, put another way about .3 of a gram.

[3]      Thankfully,   from   your   perspective,   there   is   simply   no   evidence   of commerciality in relation to this manufacture.  By that I mean there are none of the usual indicia of manufacturing this drug for the purpose of sale.  Rather, all of the indications point in the direction that this was a manufacture for personal use.

[4]      Your  personal  situation,  Mr  Anderson,  is  an  unusual,  perhaps  almost  a unique, one in my experience.   You are 32 years of age.   You obviously have the support  of  a  very  well-meaning  family.     You  have  an  exemplary  sporting background including participation in a sport at Olympic level.  I note, as well, you have  been  involved  in  various  forms  of  employment  where  you  seem  to  have enjoyed a measure of success.

[5]      I  have  read,  before  coming  onto  the  bench  this  morning,  a  number  of references about you from friends and sporting associates and also letters written on a very personal basis by both your father and your sister.  I have read as well a letter that you have written to me as the Judge to impose sentence in your case.  If that is not  enough  there  are  also  reports  from a  number  of  doctors,  including  general practitioners and specialists who have been involved in your healthcare in recent times.

[6]      Why, then, given this background, are you before the Court this morning for sentence in relation to manufacturing an insidious class A drug which is what methamphetamine is?  The short answer to that question is that you are an addict. You are a user, or have been a user, of methamphetamine.   You were unable to secure a ready supply in Queenstown and you fell into the practice of manufacturing the drug for your own consumption.

[7]      Fortunately, and I see it as a significant dimension of this case, it is a fact that you were apprehended in December of 2006, yet the medical evidence to which I have already referred, commences a story which began as early as November of

2005.  At that stage you saw a general practitioner who treated you for depression

but whose notes relevant to that date indicate that you acknowledged to him at that stage a problem with amphetamine use.   There then followed further consultations with various medical people culminating in a referral to Ashburn Clinic in about November of last year.  By that stage members of your family had been made aware of your addiction problem.

[8]      On two occasions  you  were seen at  Ashburn Clinic  in November  and  a further two in December, one before and one after the date of your apprehension.  I note, also, that since your apprehension, you have been involved in Narcotics Anonymous and you have been taking treatment from a psycho-therapist.

[9]      Perhaps the most important of the material before me for present purposes are some reports from Doctor Doshi of Ashburn Clinic.  She confirms the obvious, that you are drug dependent.   Indeed that your problem was a severe one; that it is a problem  which  has  existed  for  a  period  of  years;  that  you  may  have  been  in remission for a time but that you certainly relapsed towards the end of 2006, the period when you fell into the practice of manufacturing for your own use.   Doctor Doshi considers that you are in need of long-term residential treatment.   That, I think, was explained to you even before you were arrested.  But at that stage your preference was for an out-patient approach so that you could continue living and working in the Queenstown area.

[10]     On the basis of the material that I have read I am in no doubt that you need more help than that and, as Doctor Doshi said, a residential course of treatment is the proper answer in your case.

[11]     The problem from my perspective, Mr Anderson, is that the sentencing policy in relation to class A drugs is that a sentence of imprisonment is almost inevitable. Methamphetamine  or  P  as  it  is  often  referred  to  is  a  pernicious  drug.    The manufacture of the drug is dangerous as incidents in the news in recent times so well demonstrate. The statute, the Misuse of Drugs Act itself, prescribes that sentences of imprisonment are to be imposed for those who become involved in class A drugs unless there are particular circumstances which enable a Judge to depart from the normal sentencing course.

[12]     I am also very conscious, informed in part by what Mr Young has said this morning, that no-one can buy a sentencing outcome and therefore of the need for consistency between your case and others of a like kind.  With that in mind I have looked at the leading decision in R v Fatu [2006] 2 NZLR 72. However I tend to agree with Mr Eaton that it is of lesser assistance when one is dealing with a case such as this, where there is not a commercial element to the offending. Even accepting that, however, all of the cases to which I have been referred by counsel demonstrate that a sentence of imprisonment must be imposed. I can see no basis to depart from that approach.

[13]     I adopt as a starting-point a sentence of two and a half years imprisonment. You are eligible, in my view, for a maximum discount from that starting-point to recognise both your plea of guilty and the efforts, the first steps at least, which you took towards rehabilitation before you were arrested and the steps you have taken since.   With a reduction of one-third, the effective sentence becomes one of 20 months imprisonment.

[14]     Is leave  to  apply  for  home  detention  appropriate?    Section  97(3)  of the Sentencing Act provides that one must have regard to the nature and seriousness of the offence and the personal circumstances of the offender in determining whether leave should be granted.  I hope I have already impressed upon you the seriousness with which class A drug offending is regarded.  The nature of your offending is the thing which saves you in that, as I have already said, this was manufacture for personal use, without any degree of commerciality.

[15]     As to your personal circumstances, I think they all point in one direction. That is that leave is appropriate; that rehabilitation of you is really the paramount consideration, alongside deterrence.  I am therefore satisfied that it is appropriate to grant leave in your case.

[16]     Mr Eaton also seeks, on your behalf, a deferral of the commencement of imprisonment so that you may be admitted to a course of residential treatment rather than into a prison awaiting a decision of the Parole Board.  Where leave to apply for home  detention  is  granted,  deferral  may  also  be  appropriate  in  exceptional

circumstances.   It does seem to me that your psychological health at the moment, coupled with the availability of a bed at either Ashburn Clinic or with the Salvation Army, indicates that deferral is the sensible course.  More than that, I think it would probably be destructive if you were remanded in custody for a period awaiting a decision of the Parole Board.

[17]     I note that in at  least one other case, somewhat  similar to yours, a case determined by Winkelmann J (R v Allen 24 June 2005, Auckland HC),  deferral was ordered in relation to the manufacture of a class A drug.   I therefore defer the commencement of the period of imprisonment for a period of two months or until there is a determination in relation to your case made by the Parole Board, whichever is the earlier.

[18]     The submissions that were filed in anticipation of this morning included an application for suppression of your name on a permanent basis.  I will not rehearse the argument that was advanced in support of that aspect.  It is sufficient to say I am unpersuaded that permanent name suppression is appropriate and accordingly the interim order which has existed until now is lifted.

[19]     Mr Anderson, you have got to recognise you are being given a real chance. What you make of it in the next several months is entirely up to you.