R v Jarden HC Christchurch CRI 2005-009-001376

[2007] NZHC 1859

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2005-009-001376

REGINA

v

JONATHAN NUKI LUMMIS JARDEN

Hearing:         18 June 2007

Appearances: D J Orchard and C E Butchard for Crown

R G Glover for Prisoner

Judgment:      18 June 2007

SENTENCING REMARKS OF FOGARTY J

[1]      Jonathan Jarden,  you  have  been  found  guilty by a  jury of conspiracy to supply methamphetamine.   There was overwhelming evidence before the jury that you were buying methamphetamine from Deborah Gordon-Smith immediately after she was taking a supply from Sui.  As a purchaser of methamphetamine it was either for your own use or for on-supply.  There was also evidence that you were trading to a degree in cannabis with the defendant Smith.  Your counsel says that you may have been dealing in ecstasy.  You were, to a degree, at least, a drug dealer in cannabis and the Crown agrees with that proposition.

[2]      The question that I need to judge is your culpability in respect of the offence of conspiracy to supply methamphetamine.  Your counsel submit that the only thing

as a sentencing Judge I can be sure of is that the jury found that on at least one

R V JARDEN HC CHCH CRI 2005-009-001376  18 June 2007

occasion you had agreed with Gordon-Smith to purchase the methamphetamine for on-supply to a customer.  There are certainly difficulties in trying to work out your degree of dealing.  On the authorities, to some extent I as a Judge can rely on my own judgment of the evidence.

[3]      I am satisfied that the Crown proved that your relationship with Deborah Gordon-Smith, associated with the on-supply of Sui,  was that  you were buying methamphetamine regularly and I am satisfied that the Crown proved beyond reasonable doubt that you were buying methamphetamine more than once and more than just as a user.   However, it is not possible, in my view, to take the evidence confidently much further, as to how much you were buying, and beyond more than at least buying for supply on two occasions.

[4]      There is pretty strong evidence that you bought on three occasions but to a degree I think some caution has to be exercised in your way.   I am also of the view that it is very difficult and dangerous to try and fit this case into the R v Fatu [2006]

2 NZLR 72 bands because of real doubts as to the issues of quantity. But it can be fitted into a commercial drug dealing setting. You were a commercial drug dealer, at the very least in cannabis, and to some degree in respect of methamphetamine. However, it may well be that in respect of methamphetamine it was quite minor inasmuch as a lot of the purchases may be for your use as a user.

[5]      The Crown say I should place weight on the fact that you denied you were a heavy user.  I do not think that the fact that you denied you were a heavy user means the Crown has proved that you were buying it for supply.   I must be very careful about distinguishing what the Crown has proved and what is possible.

[6]      As these remarks indicate, Mr Jarden, it is quite difficult to confidently assess the level of culpability in your case.  While I can understand the Crown submitting a starting point of around four to five years imprisonment, I am persuaded, because of the general difficulties over the extent of the quantity of your dealings, that I should err on the cautious side and settle the level of your offending as warranting a starting point at around three years.  You were effectively right at the bottom of the chain of supply and, as your counsel has pointed out, it is not a case where the Crown can

confidently identity any of your purchasers of methamphetamine.  But I am satisfied that the level of culpability warrants a starting point of around three years.

[7]      You have had previous convictions for cultivating cannabis and procuring cannabis, both in 2006.  That is to a degree an aggravating factor but not in my view sufficient to move up beyond three years.   Your counsel submitted, as mitigating factors, that your long term association with Deborah Gordon-Smith might have led you into this.   I am not persuaded by that  at all.   The intercepts with Deborah Gordon-Smith reveal a relatively confident relationship that you had with Deborah Gordon-Smith.   I am satisfied you are not someone who was under her influence. You are an adult.   You could have chosen to deal with Deborah Gordon-Smith or not.  There does not appear to be any kind of bond.  Indeed, you had a partner and most tragically she died of suicide while pregnant shortly before the trial.  That is a most distressing personal factor but not a mitigating factor.

[8]      For these reasons I do not think there are any significant  aggravating or mitigating factors applying which move you from the starting point of around three years.

[9]      Accordingly you are sentenced to three years imprisonment.

[10]     The question of forfeiture needs some further argument.  It raises an issue as to the correct interpretation of s32(3) of the Misuse of Drugs Act.  The Crown is to file submissions by 5pm tomorrow, Tuesday.  Mr Glover has until 3pm Thursday to file in reply or by that time to apply for leave for an extension of time.  If he does apply for leave for an extension of time I will hear that on a telephone conference on Friday morning at 9 am.  It is possible that I will use that as an occasion to complete argument  on  the  forfeiture  issue  and  make  a  determination  at  the  telephone conference but before I do that I will hear counsel.

[Discussion with counsel]

[11]     If Mr Glover obtains leave for an extension of time then there will need to be further submissions.  That, of course, would be granted.  If I get to the point where I

need to hear further oral argument on the question of forfeiture there will need to be another  hearing  at  which  Mr  Jarden  would  be  present.    In  the  meantime,  the forfeiture issue is adjourned nominally to 9 am on Friday, 22 June, but if written submissions are received the previous day that hearing will not proceed and I will decide the forfeiture point on the basis of the oral argument I have heard today and the written submissions.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

R Glover, Christchurch, for Prisoner