R v McDougall HC Christchurch CRI 2007-009-011830

[2008] NZHC 2467

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-009-011830

REGINA

v

HAMISH KEITH MCDOUGALL

Hearing:         31 July 2008

Counsel:         K B Bell for Crown

P J Butler for Prisoner

Sentence:       31 July 2008

SENTENCE OF PANCKHURST J

Mr McDougall:

[1]      You are for sentence this morning upon charges of attempting to manufacture morphine, possession of precursor substances, materials capable of being used and equipment capable of being used in the manufacture of that same drug.  It seems to me that for all intents and purposes you are effectively facing two charges, one of attempted manufacture and one of possession of everything that is required in order to actually manufacture this class B narcotic.

[2]      The charges arise out the execution of a search warrant on 16 August 2007 at your home.  You were also found, I note, in possession of 518 codeine tablets which

had the capacity to produce approaching a couple of grams of morphine.  There were

R V HAMISH KEITH MCDOUGALL HC CHCH CRI 2007-009-011830  31 July 2008

filters that had been used, empty containers which had various residues on them and this combination of factors really leaves little to the imagination, such that it rather seemed to me  you were  pretty fortunate  to  be only charged  with  and  to  plead ultimately to an attempt, rather than a charge of actual manufacture.  In any event that is the charge to which you have pleaded and on which I must sentence you.

[3]      I note you are 54 years of age.  Indeed, that it’s your birthday today.  Your past record discloses that for many years, between the mid-70s and about the end of the 1980s, you committed a number of dishonesty offences.  Interspersed with those, and subsequently, you have been involved with drugs.   LSD in 1979 when you received  a  sentence  of two  years  imprisonment  and  then,  after  your  dishonesty offending had largely fallen away, in the 1990s you were before the court on four occasions in relation to morphine, heroin and methadone.

[4]      The pre-sentence report itself confirms this life pattern, the pattern that is suggested by the convictions to which I have just referred.   In particular, that you have  a  problem  with  drug  addiction  and  I  rather  suppose  that  the  dishonesty offending might in part have been attributable to the need to feed that addiction.

[5]      The positive thing in the pre-sentence report is that there have been periods of years in the recent past when you have been drug free.  For a number of years you have lived at the same address in a rented house.  The report refers to an associate moving in with you and you attribute your return to morphine, its manufacture, to his presence and also the death of your mother last year.

[6]      Following your arrest in August there has been this lengthy period of almost

12 months during which you have been awaiting sentencing on these charges, or at least sentencing since you entered the pleas about a month ago.  Fortunately for you there have been some positive developments during this period.   You have commenced of your own volition and at your own cost a process of counselling which is aimed at addressing a depressive problem that seems to have developed since your mother’s death.  You have been in touch with the Community Alcohol and Drug Service and, quite recently, in about May, according to a letter from your

general   practitioner,   you   have   commenced   involvement   in   the   methadone programme.

[7]      Pleas of guilty were finally entered on 4 July.  This raised the question, well why had there been such a delay and I did not know the answer to that until one was suggested in the pre-sentence report.  What it said is this:

that [you] waited for some time for [your] associate to take responsibility but this never eventuated.

Quite what I should make of that I am unsure.

[8]      In any event after you entered the pleas of guilty at the beginning of the month I indicated to you that you were on the borderline.   That is, the borderline between a sentence of imprisonment or possibly a non-custodial sentence.   I also indicated that the likelihood would be that the content of the reports to be obtained would determine your fate.

[9]      The pre-sentence report contains this at page 3:

Overall Hamish McDougall appears to be very motivated to make change and to move away from the drug orientated lifestyle that has resulted in his previous  court  appearances.    If  he  continues  to  attend  counselling  and remains stable on the Methadone Programme then his risk of offending again in this manner will be greatly reduced.  It seems he is already on this path and will now need to work on keeping away from anti social associates who may influence him.

[10]     There  is  also  a  home  detention  appendix  to  the  pre-sentence  report.    It confirms that you have been in your present home for about eight years;  that it is a suitable property from which to serve a sentence of home detention.  There is also a good deal in the report about your current flatmate (not the associate from 2007).  He had a drug problem for a period of 20 years until 2000.   Since then the report indicates he has been clean and he was obviously frank in discussing his past with the report writer.   The conclusion at the end of the day is that he may well be a support, rather than a hindrance to you in the next wee while.

[11]     I note you are presently on a sickness benefit.   Prior to this offending you were employed in your trade as a baker.   Regrettably, however, you gave up that

honest occupation in favour of home baking, and left your day job.  However, since the search warrant was executed in August, you have obtained casual work with a haulage and contracting company and there is a positive letter from that company indicating the prospect of future employment as well.  However, in discussion today, you have also indicated that you may be better suited to returning to work in your normal trade as a baker.

[12]     What, then, is the appropriate sentence, Mr McDougall, for these offences? First and foremost I accept that this was not commercial activity.  The indications are that you were baking small amounts of morphine for your own personal use and, I infer, for the use of the associate who was living with you at the time.  That’s really the most important factor.   However, it is not determinative of whether you must receive a custodial sentence or be left in the community.  Which side of the line you fall on really, I think, depends on your having demonstrated whether you have the resolve to help yourself and do something about your addiction.

[13]     Previously my hands would probably have been tied and the only course would probably have been a sentence of imprisonment.  Today, however, there are other options and the obvious one is home detention.  I have reached the view that you should be given a shot at that form of sentence.  It does involve your return to the home where this offending occurred but I don’t regard that as a determining factor.  What to me is much more important is your present inclination and whether there are signs that you will not reoffend.  The reports are generally positive and I think that the risk of leaving you in the community is a proper one to take.  I just hope you are not going to let me down.

[14]     I take account of your somewhat belated pleas of guilty in fixing the term of home detention at six months.  That sentence you are to serve from your home at

55C Golf Links Road.  During the term of the sentence you will be subject to the standard statutory conditions and the special conditions which are recommended in the home detention appendix.

[15]     I express the hope, Mr McDougall, that you can find employment of a kind which will be able to be monitored under home detention, because it seems to me

that if you are in work that will be a positive feature which will help you through this time.

You may stand down.