R v Gallie HC Auckland CRI-2010-044-514

[2011] NZHC 1252

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-044-514

THE QUEEN

v

ANDREW JOHN SIDNEY GALLIE

Counsel:         R A Burns for Crown

S J Lance for Prisoner

Judgment:      20 September 2011

SENTENCING NOTES OF BREWER J

SOLICITORS/COUNSEL

Meredith Connell (Auckland) for Crown
Simon Lance (Auckland) for Prisoner

Introduction

[1]      Mr Gallie, you have pleaded guilty to, and are due to be sentenced today on, the following counts in the indictments:

(a)       Counts 1, 2 and 3 charge possession of Class A, B and C controlled drugs for supply or sale;

R V GALLIE HC AK CRI-2010-044-514 20 September 2011

(b)Counts 4 and 6 charge possession of Class A and C controlled drugs for sale or supply;

(Counts 1, 2, 3, 4 and 6 are specimen charges; that is to say, they relate to your  business  of  dealing  in  those  drugs  over  a  period  commencing

26 November 2008 and ending on 30 April 2009.)

(c)      Count  7  relates  to  an  offer  to  supply  a  Class  B  controlled  drug (MDMA or ecstasy) on 2 December 2008.  This relates to one of your mail-out texts where you offered MDMA at $40 each for 500 or more and $43 each for 100 or more;

(d)Count 9 charges that you offered to supply the Class A controlled drug, LSD, on 23 December 2008.  The offer was by text message and the offer was to sell 100 for $25 each;

(e)       Count 11 is an offer to supply the Class A controlled drug, LSD, on

10 January 2009.  The particular offer was to sell 100 and 200 LSD

tablets for $25 each;

(f)      Count 13 relates to an offer to supply the Class A controlled drug, cocaine, on 11 February 2009.   The offer was to supply cocaine at

$440 per gram or $240 per half-gram;

(g)Count 16 is an offer to supply seven grams of the Class A controlled drug, methamphetamine, on 12 March 2009.

[2]      There is a second indictment:

(a)      Count 4 in that indictment relates to an offer to supply seven grams of the Class A controlled drug, methamphetamine, on 30 January 2009;

(b)Count 6 in the second indictment is an offer to supply the Class A controlled drug, methamphetamine, on 18 February 2009, the quantity being a gram.

[3]      In summary, you have pleaded guilty to:

(a)       Two counts of possession for supply of a Class A drug; (b)     One count of possession for supply of a Class B drug; (c) Two counts of possession for supply of a Class C drug; (d)    Six counts of offering to supply a Class A drug;

(e)       One count of offering to supply a Class B drug.

Facts

[4]      I will set out the factual background in short compass.

[5]      As the result of an incident which drew you to the attention of the Police, an operation was conducted by them which led to text messages from your telephone being  intercepted.    In  the  end,  the  Crown  exhibited  nearly  300  pages  of  text messages and the charges against you were based on the Police interpretation of the text messages.

[6]      A disputed facts hearing was held before me in June of this year.   Your position was that the Police had misinterpreted the text messages, particularly as related to the actual quantities of drugs which you possessed for supply.  The key point in the disputed facts hearing was the evidence that would establish what you actually supplied because that would inform the assessment of the severity of the other dealing counts.

[7]      In my judgment given on 29 July 2011, I found the following to be facts relevant to your sentencing:1

(a)       Over  the  period  of  the  counts  to  which  you  had  pleaded  guilty

(26 November  2008  to  30 April  2009)  you  were  an  active  and

1      R v Gallie HC Auckland CRI-2010-044-514, 29 July 2011 at [21].

frequent dealer in Class A drugs (principally methamphetamine and LSD, but also on occasions cocaine) and the Class B drug known as ecstasy. You dealt less frequently in the Class C drug, cannabis.

(b)You operated primarily as a retailer but you would act as a wholesaler if given the opportunity.

(c)      You had a significant customer base and you reached out to them actively.  There were 150 contacts on your cellphone and on occasions you would bulk text 44 of them giving details of your current stock in trade.

(d)You were also a consumer of drugs.  The Crown did not prove beyond reasonable doubt that you profited from your drug dealing beyond providing yourself with the funds you needed to finance your own drug habit.  There was no evidence that you possessed cash or other assets which could be attributed to the profits of drug dealing.

(e)      You did minimise your culpability when giving evidence.  However, when deciding what the Crown had proved beyond reasonable doubt I accept:

(i)that the text messages must be interpreted cautiously.  They do not always give the full account of a transaction.  Some might not have proceeded;

(ii)      There is a degree of bravado evident in the text messaging;

that is, at times quantities might be exaggerated.

(f)      Quantities of drugs possessed for supply (based on the evidence of what you actually supplied) over that period of the indictment were at least:

(i)       For methamphetamine: 50 grams; (ii)   For LSD: 500 LSD trips;

(iii)     For cocaine: 10 grams; (iv)       For ecstasy: 500 tablets;

(v)      For cannabis: I found it impossible to be sure.

[8]      Offers to supply these drugs were numerous.   The quantities offered were significantly greater than the quantities I have just read out.

Sentencing stages

[9]      Sentencing you today, Mr Gallie, will be a two-stage process.  The first stage is to assess the seriousness of your offending by itself.  That will result in a starting point of a term of imprisonment.   The second stage will be to consider factors personal to you to see whether the starting point should be adjusted either up or down.

[10]     In deciding what sentence should be imposed on you I have to take into account the established sentencing principles.   In the context of serious drug offending,  there  is  a  strong  public  interest  in  denouncing  your  offending  and imposing a sentence that will deter others.  The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way.  However, I also have to look to ways to assist your rehabilitation and reintegration into the community.

[11]     So far as aggravating factors are concerned, I acknowledge that the loss, damage and harm that results from this type of offending – in particular, the lives that are destroyed by the consumption of serious drugs, and in particular methamphetamine – are taken into account by the levels of sentencings set out in the cases to which the lawyers have referred me and which I have read during my own research.  However, I cannot lose sight of the fact that you were a busy dealer with a significant number of customers or potential customers.

[12]     I must also take into account that you were dealing in a range of drugs.  The Court of Appeal2  has made it clear that offenders who trade in all classes of drugs, with the inherent risk in such trading that their customers will graduate from the less harmful to the more injurious drugs, cannot expect the sympathy of the Court.

[13]     There  are  a  number  of  guideline  cases  that  I  have  to  have  regard  to. R v Fatu3  sets out the sentencing bands for the supply of methamphetamine and R v Stanaway4 includes a schedule of cases to guide LSD sentencing.  R v Wallace5 is the tariff case for Class B drug offending, and in this case I am not going to consider the cannabis offending as adding anything to the overall sentence I must impose.

[14]     I am going to take the charges of possession of methamphetamine for supply as being the lead offences.  You possessed at least 50 grams for supply and that puts you within the lower half of Fatu band two.  The Crown seeks a starting point of five years’ imprisonment and your lawyer has urged on me a starting point of three-and- a-half to four years’ imprisonment.  While possession for supply is generally not as serious as actual supply, I cannot ignore that there are also counts of offering to supply methamphetamine, including specimen charges.

[15]     Accordingly,  I  fix  a  starting  point  on  the  lead  charges  of  five  years’

imprisonment.

[16]     In my view, the LSD offending would by itself attract a similar starting point, the cocaine offending by itself a starting point of three-and-a-half years’ imprisonment, and the possession of ecstasy for supply a starting point of four years’ imprisonment.

[17]     Therefore, what I have to do now is look at the starting point on the lead methamphetamine charges of five years’ imprisonment and see to what extent it should be increased to take into account this other offending.  In other words, I have

to impose an overall starting point to reflect the totality of your offending.

2      R v Edwards [2009] NZCA 269.

3      R v Fatu [2006] 2 NZLR 72 (CA).

4      R v Stanaway [1997] 3 NZLR 129 (CA).

5      R v Wallace [1999] 3 NZLR 159 (CA), approved by R v Adams [2008] NZCA 171.

[18]     In this regard the Crown seeks an uplift of one-and-a-half years and your lawyer, Mr Lance, an uplift of one year.

[19]     In your case, I have found that there was a significant level of commerciality (you were running a business) and you were dealing a variety of drugs to a wide customer base.  However, there is no indication that you were making a commercial profit.  You were a heavy drug user and you consumed a large amount of the drugs which came into your possession.

[20]     Accordingly, I accept Mr Lance’s recommendation and impose an uplift of

one year. This results in a final starting point of six years’ imprisonment.

Personal factors

[21]     I now turn to  your personal factors.   You are 26 years old and  you  are currently employed.  You had a difficult childhood characterised by the effects of ADHD, bullying and social isolation. At a young age you developed a heavy pattern of alcohol and drug abuse and you more or less fell into the option of being a drug dealer.  Being a drug dealer made you feel socially accepted and indeed gave you real status within the milieu in which you circulated.

[22]     I accept that you now feel a depth of remorse for the pain you have caused your family and the negative effects on the lives to whom you supplied drugs.  It is to your credit that you have acknowledged the effects of your own substance abuse and I accept that you have taken significant steps to turn your life around.  You have attended counselling sessions, both privately and through community based programmes.  You no longer consume drugs or alcohol.  You are supported by your mother and your partner.   The latter does not tolerate drug use and has been a positive and stable influence in your life these past nine months or so.

[23]     The pre-sentence report says that the statistical assessment of your risk of further offending is low.   It adds a cautionary note that  your previous criminal history and  the escalating severity of  your offending may act  as  a  flag  to  that assessment.  You are considered by the writer of the report to have a high level of

of the reports adds, however, “this may be viewed with some caution, however, as the changes are recent, with some motivation being drawn from an understandable desire to present well before the Court”.

[24]     You have six previous convictions for relatively minor offending for which you received sentences of fines and community work.  In 2003 you were convicted and fined for possession of cannabis and possession of utensils, and in 2006 you were convicted and fined for shoplifting.   These are relatively minor charges and occurred some  years before  your present offending.   I will not  treat them as a separate aggravating factor, but they do deny you the benefit of a good character.

[25]     So far as rehabilitation is concerned, as Mr Lance realistically recognises, the Courts tend to place less weight on personal factors in the context of serious drug offending.  Deterrence is generally the dominant aim in sentencing.6   However, I am entitled to take into account as a mitigating factor positive prospects or steps towards rehabilitation.7

[26]     I have noted the matters that you set out in your letter and also the contents of the  letters  of  support  from  your  mother,  your  partner,  your  neighbours  and Ms Walker.

[27]     Taking into account your rehabilitative prospects and your remorse, I reduce

the starting point of six years’ imprisonment by 12 months.

[28]     I have considered Mr Lance’s submission that I should take into account your offer to assist the authorities by providing a statement or giving evidence against those who supplied you with drugs.  However, to be effective that would have to be something endorsed by the Crown as an operative factor.   The Crown does not endorse it.  Instead I take it to be a tangible expression of your remorse.

[29]     You are, however, entitled to further discount for your plea of guilty.  It was not made at the earliest opportunity.  However, given the extensive negotiations with

6      R v Terewi [1999] 3 NZLR 62 (CA) at [13].

7      R v Hill [2008] 2 NZLR 381 (CA) at [37].

acknowledged by the Crown as being unprovable) and given the largely favourable outcome of the disputed facts hearing, I am prepared to give you the full discount available of 25%.

[30]     A 25% discount on the discounted starting point of five years’ imprisonment yields a result of three years nine months’ imprisonment.

Home detention

[31]     Given that this end point is higher than the two years maximum which would have needed to have been the result for home detention to be a consideration, I am not in a position to consider home detention.

Sentence

[32]     On  each  of  the  two  counts  of  possession  for  supply of  a  Class A drug (methamphetamine or LSD), you are sentenced to three years nine months’ imprisonment.

[33]     On the count of possession for supply of a Class B drug (ecstasy), you are

sentenced to two years four months’ imprisonment.

[34]     On each of the two counts of possession for supply of a Class C controlled drug (cannabis), you are sentenced to six months’ imprisonment.

[35]     On each of the six counts of offering to supply a Class A controlled drug (methamphetamine,   LSD   or   cocaine),   you   are   sentenced   to   three   years’ imprisonment.

[36]     On the count of offering to supply a Class B controlled drug (ecstasy), you

are sentenced to two years six months’ imprisonment.

[37]     All of the sentences are concurrent with each other.

Brewer J