R v Ferry HC Auckland CRI-2004-44-6481

[2005] NZHC 1683

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-44-6481

THE QUEEN

v

NICHOLAS HUGH ENG SING FERRY

Counsel:         H Lawry for Crown

P J B Winter for Prisoner

Date:              3 May 2005

SENTENCING NOTES OF BARAGWANATH J

Solicitors:

Crown Solicitor, Auckland

Counsel:
Mr P J B Winter, Auckland

R V FERRY HC AK CRI-2004-44-6481 [3 May 2005]

[1]                 Mr  Ferry,  you  have  pleaded  guilty  to  four  counts  that  between  3   and 6 September 2003 you imported into New Zealand the controlled drug methamphetamine; that between 1 May 2003 and 19 September 2003 you imported the Class B controlled drug MDMA or Ecstasy; and that on 18 September 2003 you had in your possession the Class A drug lysergide or LSD.

[2]                 In August 2003 you went to North America with co-offenders intending to obtain controlled drugs to send back to New Zealand for the supply to others. You and your co-offenders obtained and you arranged to post to New Zealand addresses four packages containing a total of 112 grams of methamphetamine with a street value of some $112,000. In relation to the Ecstasy the Crown accepts that you were not the major party but you were nevertheless party to the importation of 56 grams of Ecstasy powder enough for 280 capsules with a street value of some $16-$22,000. You had sent over $50,000 to persons in Canada; it seems logical to infer that being related to this offending.

[3]                 At your address the police  found self-sealing plastic bags, electronic scales,  a tick list with details of persons to be supplied and a quantity of LSD  plus  $6800  in cash. At the address of co-offenders the police found 286 grams of methamphetamine, more electronic scales, another tick list and details of post boxes together with their keys.

[4]                 Personal circumstances can have only limited relevance in sentencing for serious drug offending. That is because the pernicious effect of such conduct on others and the need for deterrence. You are 26 years of age. You have enjoyed the benefit of membership of a fine and supportive family, your upbringing including time as a child and teenager in a privileged area in the south of France. You are naturally intelligent and have had and have the same opportunities as your younger brother and sister whose good education and achievement are a model.

[5]                 But you developed what has been a 16 year habit of alcohol and drug abuse. You have 13 previous convictions spanning three years including two for possession of a pipe for drug use, all as a result of your drug dependent lifestyle. Your income

at the time of your arrest was from drug dealing. While on remand you were bailed to what has been your third period at Higher Ground. Although you were discharged from that programme for poor behaviour you have managed there  and  at  the  Wings Trust until you returned to custody to achieve what  you  tell  me  today  is 287 days of drug free clean time. The programme director of Higher Ground has recorded that despite your drug dependency you are developing maturity and you have plans to undertake an extramural BA degree in psychology and philosophy.

[6]                 The gravity of your offending in respect of methamphetamine is seen in the maximum sentence of life imprisonment that the law has stipulated. The reason for that is recorded at para [2] of the Court of Appeal’s judgment in R v Arthur CA382/04 17 March 2005 in the advice given to the Minister of Health  by the Expert Advisory Committee on Drugs that led to the reclassification of methamphetamine as a Class A controlled drug. The reasons for the  recommendation were these:

That the use and manufacture of methamphetamine in New Zealand is growing, seizures are increasing, and it has potential appeal  to vulnerable populations.

There are pronounced long-term physical and psychological adverse effects associated with methamphetamine abuse.

There are significant risks to public health from intravenous use of methamphetamine, as well as the dangers posed by illicit clandestine laboratories.

There are few, if any, therapeutic applications for methamphetamine.

Methamphetamine has been linked to deaths both in New Zealand and overseas.

There is high physical and psychological dependence potential.

[7]                 To supply let alone to import large quantities of such drugs for commercial purposes entails a penalty according to Arthur in your case of about six years. To  that must be added the feature that your offending was not confined to supply but extended to importation. A further aggravating feature is that your offending involved as well the importation of Ecstasy as well as the possession of LSD.

[8]                 These  features require an increase of the starting point to well above the    ten years in the judgment of Randerson J in R v Marroquin-Rodriguez HC AKLD CRI-2004-004-6529 9 June 2004. In that case the single importation of a 87.2 grams of methamphetamine by a courier rather than a principal entailed a ten year starting point. Your offending involves a greater quantity of methamphetamine; you performed several importations albeit, and I accept Mr Winter’s submissions, they were part of a single episode in relation to methamphetamine;  you were a principal in a more elaborate operation. At this stage of my analysis I leave out of account the element of addiction because the Courts must fix the starting point which in the present context is the sentence before mitigation without relevance to that feature  and I accept the Crown’s assessment that for such offending a starting point of 11 to 12 years imprisonment is appropriate. Because the Sentencing Act by s 8(g) requires the Court to impose the  least  restrictive outcome appropriate  in the  circumstances  I adopt the lower figure of 11 years.

[9]                 I turn to mitigation which is important in this case. You are entitled to a substantial discount for your prompt plea of guilty which the Crown accepts should be treated as having been made at the time of the first callover in this court. Furthermore, although I have said that personal circumstances are of limited relevance in drug offending, the Court may be prepared to modify that position where an addict has demonstrated real prospect of determination to rehabilitate himself and the likelihood that he will achieve that. The Crown acknowledges your relative youth and the steps that have been taken towards your rehabilitation and the fact that since your arrest you have confronted your addiction.

[10]             In your letter to me today you express your regret and remorse for the occasions that have brought you here today. No one likes appearing  for  sentence and undoubtedly that is a factor in your remorse but you go on to say that in the last twenty months you have had plenty of time to consider your actions and:

I have spent four months in remand and 11 months in drug and alcohol residential treatment centres at Higher Ground and the Wings Trust.

[11]             You record the period you have had drug free and say you have every intention of staying that way. You say you realise that to lapse into active addiction

will lead you not only to reoffend but also to a premature death. You record your understanding that you will be receiving a custodial sentence and have set in place a plan to help you stay clean while you are away from the support of the 12 step community. That is as follows:

I will continue to work through the 12 steps via correspondence with my sponsor and continue to study the N.A. literature

I have support and visits from my family and members of the 12 step fellowship.

I will maintain correspondence with Higher Ground and Wings Trust.

I have and will continue to volunteer for regular drug testing.

I have started the process of enrolling in an extramural B.A. in philosophy and psychology with Massey University.

I will also continue to take part in the programmes offered by the prisons.

[12]             You say “I regret my actions and the shame I have brought on to my family.” The programme provider at the Auckland Central Remand Prison, Mr Waetford, writes to verify that you are attending a life skills options programme on a voluntary basis, the course covering anger management, drug and alcohol awareness, assertive communications,  conflict  resolution,  dependency  and  respectful   relationships. Mr Waetford says that you are open and are participating well, that you are actively involved in the group process and contribute positively. The support you have from your family and friends inside and outside New Zealand is simply formidable and you are deeply fortunate to have both that support and the presence in court today of your family and your father has spoken briefly in addition to what has been said in writing.

[13]             I have emphasised that regard to personal circumstances will ordinarily not  be a significant feature of sentencing and but for your plea and the attack you have made on your addiction with the support you have and can expect to have your term would have been 11 years. As it is I accept your counsel’s submission that that should be reduced by a third which I round down to seven years.

[14]             Because the Parole Act does not permit credit to be given for the time spent  in Higher Ground and at the  Wings  Trust  consideration  needs  to  be  given  to  that question. Mr Winter has cited R v Benson CA86/90 11 July 1990 in which at page 10 the Court of Appeal said this:

We do not go so far to say that time spent on remand in an institution such as Odyssey  House  should  always  be  allowed  as  a  credit  on  sentencing. But where as here the motivation was genuine and there was real commitment and success, the Court should accord recognition to the offender by making an appropriate reduction in the otherwise appropriate sentence.

[15]             In addition to the credit that you have been given for the rehabilitation that you are achieving I propose to deduct day by day the full amount of the time that you have spent at  Higher Ground and the Wings Trust which has been calculated at  325 days. Accordingly your sentence will be of six years and forty days on each of the methamphetamine counts. On the Ecstasy count there will be a concurrent sentence of five years. On the LSD count your sentence will be six months.

[16]             Further, while ordinarily a minimum sentence of non-parole would follow almost as of course offending of the gravity of that which you have committed the Crown recognising the efforts that you have made to does not apply for a minimum sentence of non-parole and you will be eligible for consideration by the Parole Board after a third of your sentence.

[17]             The result for you is a merciful one of which I hope you will take full advantage.

W D Baragwanath J