R v J HC Napier CRI 2006-020-2719

[2006] NZHC 1420

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2006-020-2719

THE QUEEN

v

J

Hearing:         14 November 2006

Appearances: R J Collins for Crown

A J S Snell for J 

Judgment:      14 November 2006

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor, Napier

Elvidge & Partners, PO Box 101, Hastings

R V J HC NAP CRI 2006-020-2719 14 November 2006

[1]      Mr J  , you appear for sentence today in respect of a series of charges arising from drug related activities.   You have pleaded guilty to three charges of offering to supply methamphetamine, and one of offering to supply LSD.  They are Class A controlled drugs and the maximum penalty for those offences is life imprisonment.  You have also pleaded guilty to one charge of supplying Ritalin, a Class B drug.  The maximum penalty for that is 14 years imprisonment.  You have further pleaded guilty to one charge of selling cannabis, a Class C controlled drug, for which the maximum penalty is eight years imprisonment.  Finally, there are two charges of obtaining by deception laid in reliance on s 240(1)(a) of the Crimes Act

1961.  The penalty for those offences is three months imprisonment.

Background

[2]      Between about November 2005 and August 2006, a special duties Constable was deployed in the Eastern Police District, where he worked with people involved in drug dealing.  His activities were part of what is known as Operation Oyster.  On

23 March 2006, after meeting the Constable quite by chance, you went to an address at which, at his request, you obtained four tinfoil cannabis bullets.   You paid for them with $80 provided by the Constable, and you handed him the cannabis.  That is the basis of the charge of supplying cannabis.  Mr Snell submits there is no evidence you made any profit from that transaction.  Effectively you were just a go-between.

[3]      The next day, 24 March 2006, saw further communications between you and the Constable.   Following an exchange of text messages about methamphetamine and Ecstasy, you went to an address intending to purchase methamphetamine, but that was unsuccessful.   However, you produced to the Constable a white powder, purportedly containing Ecstasy.  The Constable paid $60 for that.  On analysis the white powder was found to comprise a prescriptive medicine, not methamphetamine. That occasion forms the basis of a charge of offering to supply methamphetamine, and a further charge of obtaining by deception.

[4]      Two days later, on 26 March 2006, you met the Constable after sending him a text message telling him that you had some Ecstasy for him, and methamphetamine would be available the following week.   The Constable paid you $60 for a bag purportedly containing Ecstasy, but on analysis the substance supplied by you was found to be Ibuprofen, not MDMA or Ecstasy.   On that occasion  you told the Constable that during the following week you could supply him with methamphetamine, Ritalin and LSD.

[5]     The events of that day support further charges of offering to supply methamphetamine, and obtaining by deception.  They are the basis also for charges of offering to supply LSD and offering to supply Ritalin.

[6]      Two days later on 28 March 2006, you sent a further text message to the Constable  informing  him  that  you  now  had  available  the  methamphetamine promised the previous week.  When the Constable met you, you introduced him to a woman who handed him a small bag, said to contain methamphetamine, but the Constable declined to purchase the bag  because it was underweight.   The  final charge of offering to supply methamphetamine arises from those events.

[7]      The explanation given by you to the police was that you simply acted as a go- between in sourcing cannabis for the Constable.  As to the remaining offending, you said that the offers to supply methamphetamine, LSD and Ritalin were made to keep the Constable interested, in order that you could continue to sell him bogus Ecstasy. In other words, you had no ability or intention to supply any of these substances.

Sentencing purposes and principles

[8]      In determining an appropriate sentence, the Court must have regard to the need to hold you accountable for the harm you have done by this offending, to promote in you a sense of responsibility for, and acknowledgement of that harm.  It must further denounce  your conduct and deter  you and others from committing similar offences.  Any sentence imposed must be consistent with those imposed in like cases.

[9]      I am required also to do what I can to assist in your rehabilitation.  That is a matter of particular moment in this case.  I am obliged to impose the least restrictive outcome  that  is  appropriate  in  the  circumstances,  but  ordinarily  the  Court’s discretion  is  limited  in  drugs  cases.    Section  6(4)  of  the Misuse  of  Drugs  Act provides, in effect, that any offence involving drug dealing must ordinarily be met by a sentence of imprisonment, and the Court of Appeal has confirmed that the personal circumstances of an offender, however compelling, must ordinarily be relegated in importance to the need to impose truly deterrent sentences on those involved in drug dealing.  That will be so even for young offenders.  These are serious offences, and I have to start from the position that in general there will be limited room for a different approach, simply on account of your youth:  R v Mahoni (1998) 15 CRNZ

428 at 436-7.  As I go through the sentencing process I am going to take your youth into account at every step of the way, and also your personal circumstances.

Personal circumstances

[10]     Tomorrow you turn 18 years of age.  When this offending occurred you were just 17.  I have read with great care a number of references written by members of your family, and by others who know you, including your employer.  In brief terms, your parents separated when you were relatively young, but you are still close to each of them.  After leaving school you had hoped to enter the NZ Army, but that proved not to be possible, and you had some difficulty in obtaining satisfactory alternative employment.  Towards the end of last year, according to your father, you drifted into associations with persons who were of concern to your father.  It seems you became somewhat dislocated and directionless, and this offending followed. But there is evidence to suggest that, of your own initiative, you have turned yourself around.   To a substantial degree that commenced very soon after this offending occurred, but before you were charged with these offences.  In April 2006 you found employment as a builder’s labourer.  Your employer, who has provided a reference, was apparently so impressed with your ability, he has offered you a building apprenticeship.  You have severed your relationship with others involved in the drug world, and recently commenced upon that apprenticeship.

[11]     I accept that your offending ought be put down to simple naivety, as much to anything else.   You are remorseful and determined to put this unhappy episode in your life behind you.  You have just one minor conviction which I put to one side for present purposes.

[12]     I am satisfied these offences are out of keeping with your life to date.

Counsels’ submissions

[13]   Mr Collins, Crown Solicitor, has appeared on sentence for the Crown. Effectively he has asked me to put to one side the written submissions filed earlier by the Crown.  He made some detailed oral submissions to me to the effect that I might feel it appropriate to treat this as a very special case on its particular facts, and not one necessarily to be dealt with in line with the tariff case of R v Fatu [2006] 2

NZLR 72, although appreciating of course that ultimately the sentencing exercise is a matter for this Court.

[14]     On your behalf, Mr Snell picked up the theme addressed by Mr Collins and submitted there is room here for a non-custodial sentence, in the light of your youth and background.     He submitted that if the Court was able to hold there was no commerciality to the cannabis supply charge, then because the methamphetamine charges  can  only be  viewed  as  at  the  very bottom  of  the  scale,  a  sentence  of community work might be appropriate.   Very much as a back up, he made submissions to me about the way in which a sentence of imprisonment might be structured.

Discussion

[15]     Drug dealing, and Class A drug dealing in particular, is quite simply a blight on our community.  It is responsible for much human misery and a direct cause of a great number of the cases involving extreme violence which come before our Courts. Our justice system must do whatever it can to stamp out hard drugs.  That objective lies behind the seriousness with which Class A drug offending is treated in our

crimes legislation.  The maximum penalty for supplying Class A controlled drugs is life imprisonment, the most serious sanction which it is possible to impose.   That same penalty applies to charges of offering to supply Class A controlled drugs.  Four of the charges you face render you liable to imprisonment for life.  Whatever your motives, however naïve you were in getting yourself involved in the drug world, and however peripherally, these were grave offences.

[16]     The lead offending constituted by the offences is that of offering to supply Class  A  drugs,  simply  by  reason  of  the  maximum  penalty  available  for  those offences.  The tariff case for actual supply of methamphetamine is R v Fatu.  There, the Court of Appeal set out four sentencing bands in ascending order of gravity. Band one, which relates to low level supply of amounts of less than five grams, is said in the ordinary case to justify a sentence of between 2-4 years imprisonment, although the Court acknowledged that a supply of a small quantity, where there is no commerciality and no other aggravating feature, may call for a starting point of less than two years.  There is no suggestion that, in cases of actual supply, a sentence other than a custodial sentence, might be appropriate.

[17]     The  Fatu  principles  also  apply in  broad  terms  to  charges  of  offering  to supply, which must be regarded as of the same order of gravity by reason of the identical applicable maximum penalty.

[18]     The question today is whether a custodial sentence must always be imposed, even in a case where the offeror has no actual intention, or ability, to make good the offer.   The distinction between that case and cases of actual supply was noted by Heath J in Wilson v Police HC AK CRI 2003-404-377, 2 March 2004.  The cases demonstrate however, that rarely, if ever, will a non-custodial sentence be imposed even in those circumstances.

[19]     For example, in R v Paul HC AK CRI 2006-057-001 20 June 2006, Frater J dealt with a case in which the prisoner pleaded guilty to one charge of offering to supply methamphetamine.   He offered a female attendant at a petrol station some methamphetamine, and then was overheard offering ‘P’ to some teenage males.  The Judge accepted that he did not have a supply of the drug and had no means of

obtaining it, and that he made the offers to the teenagers in an effort to obtain a ride home.  It was further accepted that little, if any, commercial gain was obtained from the offending.   The prisoner had no previous convictions for similar offences. Nevertheless,  the  Judge  determined  that  imprisonment  was  inevitable.    From  a starting point of 18 months imprisonment an ultimate sentence of 12 months was imposed.

[20]     A similar approach was adopted in R v Edwards HC WHN CRI 2005-088-

4450 13 June 2006.

[21]     I have been unable to find any case involving an offer to supply a Class A drug in which a non-custodial sentence was imposed on the ground that the prisoner had no intention nor ability to make good the offer, but I accept there may well be cases at the extreme lowest end of the range of offending, in which a non-custodial sentence might be appropriate.  An example might be where the offer was born of bluster or bravado, but was never intended to be taken seriously.  I think this case may well be one which fits within that category.  But I must remember that the Class A charges take their place in a context which includes the actual supply of cannabis, and an offer to supply another Class B drug.  These offences were not committed singly– you had contacts in the drug world, or at least on the fringes of it.  There is also the deception, which lies at the heart of much of this offending.

[22]     There is no question you had no ability or intention to make good the offers of supplying Class A drugs that you made to the Constable.  It was largely a matter of bravado, although your primary intention was to try to get some money from the Constable for supplying him with harmless powders. Those charges of deception do not of themselves support a custodial sentence for a virtually first offender.

[23]     Coming back to the cannabis charge, Mr Snell submits that it might be proper to regard that offending as non-commercial and therefore, as falling within that class of case which the tariff decision of R v Terewi [1999] 3 NZLR 62 indicates might merit a non-custodial sentence. I am prepared to accept Mr Snell’s submission, although I must say it was on the very fringe of a commercial transaction. In this case money changed hands, and you were somewhat more than a go-between. It

must have been the case you organised the transaction when you went to the house. However, I am satisfied you obtained no profit from the transaction, and in effect were largely a courier.

[24]     I turn once more to your personal situation.  You are a young man who, on the face of it, seems to have turned his life around.  You appear now to be under the influence of a master craftsman who is obviously a force for considerable good.  You have the support of your family and a number of friends, of whom more than a dozen are in Court today.  Clearly you have impressed the writer of the pre-sentence report, whose report differs markedly from those which normally come before the Court in respect of offending such as this.

[25]     There is a great deal of substance in Mr Snell’s submission to me that if I sentence you to a term of imprisonment I will simply be setting you off on a course which is likely to result in you leading a life without any significant prospects.  If you are kept in the community the likelihood is you will be able to complete your apprenticeship and become a useful member of the community, who leads a positive life.  The question is whether I have the jurisdiction on the facts which have arisen here, to do what Mr Snell urges me to do.

[26]     I am satisfied I can do so, and I am therefore not going to send you to jail. There is very limited authority which justifies the course I intend to take, but I am comforted by a recent decision of John Hansen J in R v Brunt HC CHCH CRI 2005-

009-13777 27 June 2006, in which an offer to supply Ritalin was made by text message and the inference was the deal proposed was that Ritalin was to be swapped for cannabis.   The Judge decided the case did not necessarily attract a term of imprisonment and imposed a sentence of community work, but noted that he was treating the prisoner exceedingly mercifully.  I draw the inference that the facts of that case and the circumstances of the prisoner justified that course in the Judge’s mind.   So there is precedent for giving a good deal of attention to the personal circumstances  of  the  offender  in  very  special  circumstances,  even  where  drug dealing is concerned.

[27]     I have not before sentenced anyone for Class A drug offending to other than a non-custodial sentence.   I need to make it clear the non-custodial sentence I am going to impose must not be taken as a precedent.  The facts of this case are quite extraordinary.   You are a very young man who before this year had no criminal record at all.  You went through a bad patch in your life.  That was something that arose without any real fault of your own.   During that bad patch you came into contact with one or two people who clearly were poor influences on you, and that led to this offending, which lies at the very bottom of the scale so far as the offences themselves are concerned.

[28]     Following the offences, but before you were charged with anything, you took your life into your own hands.   You did something about your plight, obtained employment and impressed your employer to such an extent that you have now commenced upon an apprenticeship.  Your employer is clearly an influence for good. You have the support of your family and friends.  There is nothing to suggest to me that you are likely to re-offend, and I should add because it is important, that you have turned your back on the personal use of cannabis.   The writer of the pre- sentence report has confirmed that.

[29]     These personal factors, coupled with the comparatively limited gravity of the circumstances of the offences themselves, justify me in imposing a non-custodial sentence.  I repeat that this case is not to be treated as a precedent.  The sentence I am about to pronounce arises simply by reason of a combination of unique factors.

[30]     I should mention finally the fact that the pre-sentence report writer takes the view by reason of the steps you have taken in your own life, there is no need for a sentence  of  supervision.    I  am  told  by  Mr  Collins  that  the  probation  officer concerned is very experienced, and I am impressed by her indication to the Court that you seem to be on the verge of becoming self-sufficient.

[31]     On the charges of offering to supply Class A drugs, the four charges to which I have earlier referred, you are sentenced to 300 hours community work.  It seems to me that despite the work programme you have which takes you out of town, it will

be possible for you to undertake community work in the down-time outside ordinary working hours.

[32]     On each of the remaining charges you are sentenced to 150 hours community work, but that sentence is to be served concurrently with the 300 hours, so the effective sentence is 300 hours community work.

[33]     Mr J  , I generally do not say anything much to the offender at the end of sentencing for drug offences, on a one-to-one basis.  But I think it is appropriate here for me to repeat that this is a case involving such a combination of circumstances, including your personal circumstances, that the Court has an opportunity to assist you in turning your life around.  Effectively, by making certain findings, I have put myself in a position where I can impose a sentence other than a prison sentence upon you.  I hope and trust you do not abuse the leniency you have been shown by the Court by coming back here, or to any Court, ever again, as a defendant in a criminal case.  The best wishes of the Court go with you.

C J Allan J