R v Davies
[2015] NZHC 598
•27 March 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-13289 [2015] NZHC 598
THE QUEEN
v
JOEL AARON DAVIES
Hearing: 27 March 2015 Appearances:
S L McColgan for Crown
M A Edgar for DefendantSentence:
27 March 2015
SENTENCE OF M PETERS J
Solicitors: Meredith Connell, Auckland
Counsel: M A Edgar, Auckland
R v DAVIES [2015] NZHC 598 [27 March 2015]
[1] Mr Davies, you are for sentence on:
(a) eight charges of supplying methamphetamine, which is a Class A
controlled drug; and
(b) five charges of supplying pseudoephedrine, which is a Class B
controlled drug.1
[2] The maximum penalty for supplying methamphetamine is life imprisonment. I do not say that to scare you. I say that to tell you and your family how seriously this type of offending is viewed. The maximum penalty for supplying pseudoephedrine is 14 years’ imprisonment. It is generally a pre-cursor to the manufacture of methamphetamine and again attracts very stiff penalties.
[3] You pleaded guilty to these charges in February 2015.
[4] I have read the summary of facts, the pre-sentence report of 25 February
2015, the letters which I have been given this morning, thank you, and of course I have had the written submissions from Mr McColgan and your lawyer, Mr Edgar and I have had the benefit of hearing from them this morning.
[5] There is a large measure of agreement between them and me on the matters that are relevant for today’s purposes.
[6] To recap, your offending took place between July and December 2013, which is when you were arrested. It is not in dispute that over this period you supplied 700 grams of methamphetamine and a little less than two kilograms of ContacNT which contained 810 grams of pseudoephedrine.
[7] Everyone in this Courtroom will wish you had stayed right away from methamphetamine. You have School Certificate, a supportive family – evidenced by the number of them here today – a good work record and, until these offences, you had appeared before the Court only for some relatively trivial charges committed
some time ago. It is unfortunate to say the least that you should find yourself in this position.
[8] Now, your lawyer may have explained to you there are two parts to the sentencing process.
[9] First, I am required to determine what we call the starting point for your offending, and we do that having regard to the purposes and principles of sentencing, and having regard to any aggravating or mitigating factors relating to the offending.
[10] The next part of it is to adjust that starting point upwards, downwards, to take account of any factors relating to you personally.
[11] So it is a two stage process to arrive at a final sentence and I will make it clear to you when I have reached the end.
[12] Turning to the first part of the exercise, when sentencing for this type of offending primarily the Court seeks to deter – that is to discourage you and others from offending of this kind. The Court is seeking to send a message to the community that offending of this nature is treated with the utmost seriousness because of the widespread and long lasting harm it causes.
[13] Counsel agree that the lead or most serious of your offences are those for the supply of methamphetamine, and that I should determine the starting point for that offending and then increase it to reflect the charges relating to the pseudoephedrine.
[14] In determining the appropriate starting point for the supply of methamphetamine I am assisted by the Court of Appeal’s judgment in R v Fatu.2
Your offending falls within what is referred to as Band 4 – which is the supply of very large commercial quantities of 500 grams or more. The minimum starting point for Band 4 is 10 years’ imprisonment.
[15] I have also had the benefit of hearing this morning about the roles played by Mr Tarm, your supplier, and Mr Collier, next on in the chain from you and particularly the starting points adopted for Mr Tarm on a sentencing indication – I do not know if he has accepted it – and your associate, Mr Collier, when he was sentenced. For Mr Tarm, at 25 ounces it was 12 years, for Mr Collier at 21 ounces, it was 10 years.
[16] It is important that I am consistent in setting the starting point so that all of you are treated fairly and equally.
[17] There is some disagreement between counsel but I am satisfied the Crown is correct in proposing a starting point of 11 years’ imprisonment on the methamphetamine charges. That is because the amount you supplied is well over the quantity for Band 4 and for the reasons I have just mentioned of consistency and parity.
[18] As for the pseudoephedrine offending, Mr Edgar suggests that an appropriate uplift would be one to two years. Mr Tarm supplied a lot more pseudoephedrine than you and I understand in his sentencing indication a five year uplift was adopted. For you the Crown proposes something in the region of 18 months to two years. In my view, 18 months is the appropriate figure. That brings the starting point to
12 years six months’ imprisonment.
[19] Now let’s come to the second stage which is to consider whether there are any matters relating to you personally which aggravate or mitigate the offending so as to require me to adjust the sentence upwards or downwards from the starting point.
[20] There are no aggravating features so it is not going up.
[21] On the mitigation side, there is your guilty plea which I will come to. Your counsel also refers me to your many personal qualities – and by that I mean your clear ability to make your way in life, the support you have from your family, your clear wish to put this offending in your past and your pretty good record to date.
[22] There is limited, if any, scope to reduce the length of a sentence for the supply of methamphetamine or pseudoephedrine because of personal qualities. That is because of the point I made earlier, namely that the Court is sending a message to the community that the offending will not be tolerated and the qualities of the people in the chain do not matter greatly.
[23] That said, I am required to impose the least restrictive sentence open in the circumstances and I am satisfied you should be encouraged in your efforts to put this behind you. There is cause for optimism because the pre-sentence report says that you have the support of your family as I have said and more importantly it assesses your likelihood of re-offending as low, says you pose a low risk of harm and that you have a high motivation not to re-offend. So I think in the circumstances, and having heard from the Crown, a discount of between five to 10 per cent for those qualities.
[24] Counsel are agreed that a substantial discount is required for your guilty plea. Although the pleas were entered relatively late in the piece, Crown counsel accepts that you started trying to resolve matters in August 2014 and that it was not your fault that there was a delay until February 2015.
[25] I would allow a discount of 20 per cent for your guilty plea.
[26] Allowing for that discount of five to 10 per cent for personal factors and 20 per cent for the guilty plea, your final sentence on all charges is going to be nine years, three months’ imprisonment.
[27] Counsel and I agree that there is no need for a minimum period of imprisonment.
[28] Please stand.
(a) On CRN 13092016134, that is the first charge for supplying methamphetamine, I sentence you to nine years, three months’ imprisonment.
(b)On each of the remaining seven charges of supplying methamphetamine I sentence you to nine years, three months’ imprisonment, each to be served concurrently, that means at the same time, as the first offence.
(c) I sentence you to 18 months’ imprisonment on each of the five charges for supply of pseudoephedrine, again each to be served concurrently, that is at the same time, with that first sentence.
[29] Stand down.
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M Peters J
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