R v Ewen HC Wellington CRI 2010-035-521

[2010] NZHC 1669

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-035-521

THE QUEEN

v

DANIEL GEORGE EWEN

Hearing:         17 September 2010

Counsel:         J M Webber for Crown

K M Daniels for Accused

Sentence:       17 September 2010

SENTENCE OF RONALD YOUNG J

[1]      Mr Ewen  you  have pleaded  guilty to one charge of supplying a Class B

controlled drug methadone and it is now my task to sentence you.

[2]      The facts here illustrate the tragic dangers of drugs.   You were part of the methadone programme the purpose of which was to help you manage your addiction. You were allowed to obtain methadone to take with you for consumption on days when it was not suitable to travel to the pharmacy.  That arrangement is commonly

known as “takeaways”.

R V DANIEL GEORGE EWEN HC WN CRI 2010-035-521  17 September 2010

[3]      On 17 October 2009 you were at your home address when your teenage son together with a small group of friends arrived.   All of you were drinking alcohol during the evening.  During that evening your son and the young man who later died went into your bedroom.   You opened a small bottle containing methadone and withdrew a portion of it into a syringe.  You then gave the syringe to the young man. He squirted the syringe into his mouth and drank the contents.  Not long afterwards the young man who subsequently died left your house.  The following morning he was tragically found dead.  As a result of a post mortem it was shown that there was sufficient methadone in his blood to be fatal.   However there were further other drugs in his system.  There is no doubt that is the combination of all of the drugs and alcohol that he took that night that resulted in his death.

[4]      Your initial reaction was to lie about your supply of the methadone to the young man.  I note that you did however admit previously providing other drugs to this young man.

[5]      You have  a long history of criminal offending beginning in 1990, some

20 years ago.   Now you are 38 years of age.   There are at least eight previous convictions for drugs although I accept none are serious and indeed although you have regularly offended none of the offending is in the serious category and you have not previously been to prison that I could see.

[6]      As to the pre-sentence report it informs me you have three teenage children and although separated from their mother you do have regular contact with them.  It seems that three years ago you gave up work and you have not worked since.  You have a long history of drug use starting at the age of 16 and as well as is clear you have a harmful pattern of alcohol use.

[7]      I note that in the probation report it says that as a result of these events your methadone has been reduced and that you are now totally off the methadone programme.  When discussing the facts with the probation officer you said that you were hounded into agreeing to the supply the methadone to this young man.   Of course you are an adult, the methadone was yours, it is simply nonsense to suggest

that you were in any way forced to supply this methadone.   You did so entirely voluntarily.

[8]      As you noted in the report you had no idea what kind of drugs or alcohol this young man had consumed before you gave him the methadone.  Your actions frankly were beyond irresponsible.  They were exactly the kind of action that could and in this case did together with the other drugs and alcohol he had consumed, result in death.

[9]      The Crown say that there are a number of seriously aggravating features here but the  most  serious  is  the  fact  that  a  person  died  after  consuming  methadone supplied by you.  They accept that while you must be sentenced on the basis that you did not cause the death of the deceased in a legal sense, they say your responsibility is increased because you did supply drugs together with other drugs which caused his death.

[10]     Secondly, they mention what they call is an element of abuse of trust.  This was a 17 year old boy, a friend of your son’s and someone known to you and whom given you were the adult that night you should accept some responsibility for.

[11]     Thirdly they say that you were aware that liquid methadone is a strong drug and this young man would hardly be able to tolerate such a drug.  The Crown accept there was no commerciality involved and there was only one supply.

[12]     They accept your plea of guilty, noting it was entered two weeks after the first callover and they say a discount of no more than 20 percent is appropriate.

[13]     The Crown say that a starting point of two to three years’ imprisonment is appropriate with a discount for that guilty plea they submit this is not an appropriate case for home detention.

[14]     I have read Mr Daniels written submissions and I take those and his oral submissions into account.  He stresses that this is a case where there was a voluntary consumption of large amounts of alcohol and other drugs by the victim which caused

his  death  and  that  it  was  certainly not  suggested  he  died  solely  as  a  result  of ingesting the methadone which you supplied.

[15]     He says that you deny that you were in any position of authority at all over the victim and that the deceased was not a naive person without previous drug use. He suggests that given the efforts you have made to rid yourself of the addiction that this would be supported by a sentence of home detention but accepts that a modest period of imprisonment could also be imposed.

[16]     I acknowledge and have read the victim impact reports from this  young man’s parents, and his girlfriend.  They are of course understandably devastated by the death of their friend, and son.  They have lost a much loved young man and I acknowledge today their grief.  They will understand, however, that Mr Marsh is not charged with causing Aaron’s death.  And so I can only reach a sentence based on the charge that he has pleaded guilty to.

[17]     This was as I have said to you an appalling act of irresponsibility.  While you may not be legally responsible for this young man’s death there is no doubt what you did played a part in causing his death and accordingly you should feel responsible for his death.  You were the adult at 38 years of age.  To supply a 17 year old boy who you knew and who was a friend of your sons with liquid methadone was, without question, to risk his life.   On your own acknowledgement you did not know what drugs or alcohol he had consumed.  On your own admission, as I have said, liquid methadone is strong and intolerant users can be at risk from small amounts.  And so it proved here.  These are seriously aggravating features.  The only mitigating feature was your late plea of guilty.

[18]     What must be stressed, however, is that I am not sentencing you for causing this young man’s death.  If I was a much longer sentence would be imposed.

[19]     I think the appropriate starting point is two and a half years’ imprisonment, to take account the aggravating features.  I deduct six months for your plea of guilty reducing the sentence to two years’ imprisonment.

[20]     I am not prepared to impose home detention.   I agree with the Crown that deterrence  and  denunciation  is  required.    A  sentence  of  home  detention  would simply not reflect the serious aggravating features of your supply of this drug to this young man.  It would undermine the idea of deterrence and denunciation for me to allow you to serve your sentence in the very house where you committed the crime.

[21]     Your  sentence  therefore  is  two  years’  imprisonment  with  the  release conditions that you attend and complete any programme for treatment, counselling or residential alcohol and drug addiction as may be directed by the probation officer and complete this to the satisfaction of the programme provider and the probation officer  and  that  you  comply  with  the  rules  and  regulations  of  any  residential

programme involved.

Ronald Young J

Solicitors:

J M Webber, Luke Cunningham & Clere, PO Box 10 357, Wellington, email:  [email protected]

K M Daniels, Principal, Masterton, email:  [email protected]