R v Meldon HC Auckland CRI 2005-404-109

[2005] NZHC 1729

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-000109

QUEEN

v

PETER ANDREW MELDON

Hearing:         22 April 2005 Appearances: E Priest for Crown

D Niven for Prisoner Judgment:  22 April 2005

SENTENCE OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

Copy to: D Niven, PO Box 109227, Newmarket, Auckland

R V MELDON HC AK CRI 2005-404-000109 [22 April 2005]

[1]    Mr Meldon, you appear today for sentence on a charge of possession of a Class A drug, namely methamphetamine for supply, contrary to s 6(1)(f) of the Misuse of Drugs Act 1975. The maximum penalty that might be imposed on that charge is one of life imprisonment. It reflects the seriousness with which Parliament and the Courts regard the supply of what is generally acknowledged to be one of the most dangerous addictive drugs circulating in New Zealand.

[2]    You were apprehended in respect of another offence, and in the course of a search, the police discovered eight point bags of methamphetamine in your possession. You admitted that that drug was in your possession and you initially advised the police that you were on your way to deliver the product to  another person in Auckland. There was, however, later a dispute as to what it was you were in fact intending to do and at one stage the police asserted that you were simply on your way to sell the drug in Karangahape Road.

[3]    The matter has proceeded before me on the basis that there is a dispute as to what exactly you were doing, but Mr Niven has invited me to proceed without that issue being determined in a hearing held for that purpose under s 23 of the Sentencing Act 2002.

[4]    As I indicated to counsel, in a case such as this, involving a comparatively small quantity of the drug, I do not regard it as of much significance for sentencing purposes as to whether you were simply in the role of a courier or whether you intended to sell the drug in the street. Either way, this was possession for supply and whether your reward was going to come from somebody to whom you would sell the drug, or whether it was going to come by way of a kind of wage, whether in money or in retained drugs for your personal use, it was still a commercial transaction in which you were engaged.

[5]    I have regard to the pre-sentence report which was prepared for the purposes of today’s hearing. I have to say it shows you had a most unfortunate start in life and in particular, appeared to have suffered as a result of the early death of your father,

your mother’s reaction and your difficult relationship with your step-father after that. You have also had, through your life, the difficulty of a physical deformation, which no doubt, would have caused you various problems along the way. You admitted to the author of that report, that from an early age you have had contact with gangs, drugs and crime. You have moved from city to city, finding accommodation  in shared flats and boarding houses, and you are single with no dependants and appear generally to lack the support of friends and family.

[6]    You first used methamphetamine in 1996 and you admit over the past 18 months or so, to have been using half a gram to one gram of that drug on a daily basis. That is coupled with smoking a couple of joints of cannabis every day.

[7]    There is no suggestion of violence or anything of that nature in your personal relationships, but there is a substantial list of previous convictions, including  offences involving possession and use of cannabis. There is, however, in that criminal record nothing akin to the offence of which you have now been found guilty and indeed, Ms Priest, on behalf of the Crown, has said that there is little  of relevance in that past criminal history.

[8]    The pre-sentence report records that you have expressed a desire to change and that you have some definite ideas of what is required but, on the basis of past behaviour it assesses your motivation and readiness to change as low. Consequently, the risk of re-offending on your part has been assessed as high.

[9]    This morning as a result of an exchange with counsel, you have indicated through Mr Niven, that you did actually apply to be assessed for suitability for a course of treatment at Odyssey House and although assessed as suitable for such treatment, were not able to avail yourself of that opportunity because of the length of the waiting list that now applies in respect of that institution.

[10]   However, Mr Niven has also pointed out that you have undertaken an alcohol and drug rehabilitation course whilst you have been on remand and that stands to your credit.

[11]   It is apparent from what I have seen in the pre-sentence report that your early life and really your life since, has not been a happy one. I think it is important for  you to realise that on-going use of drugs will not improve your life, it will simply help to make it continue along the path that you have followed to this point.

[12]   Since methamphetamine was reclassified into Class A, the High Court has had to consider what the appropriate sentencing response should be in the absence of little guidance of a directly relevant kind from the Court of Appeal. Recently, however, such guidance has been provided in that Court’s decision in R v Arthur CA 382/04 17 March 2005. In accordance with that decision it is possible to  approach the sentencing task on the basis that in cases of low-level supply of methamphetamine and equally possession for such supply in amounts less than five grams, a starting point for sentencing purposes of between two and four years will generally be appropriate.

[13]   In arriving at the three Bands, as they describe them in paragraph [18] of that decision, the Court was anxious to stress that the quantity of the drug supplied was, of course, not the only factor to be taken into account. Nevertheless it pointed out that the quantity of the drug being supplied has always been considered of prime importance in fixing starting points. In the course of the discussion in that decision the Court referred to and provided a schedule of the High Court decisions which had been referred to in argument before it, involving cases in which sentences had been imposed since the reclassification of the drug. Although the Court set  out in Arthur to provide guidance in a structured way, it referred to those High Court decisions as being generally in accordance with the approach set out by the Court of  Appeal itself, and referred to the importance of the experience of sentencing of Trial Judges in this area.

[14]   Consequently, I think there is merit in the submission that Mr Niven made, that the High Court decisions should not be regarded as of no on-going relevance since the decision in Arthur was made. He referred in particular to the approach of Randerson J in R v Stewart HC HAM CRI 2003-019-19303 10 February 2004, as effectively being in accordance with what the Court of Appeal held was appropriate in R v Arthur.

[15]   For the Crown, Ms Priest has rightly stressed the seriousness of any offending involving the supply or possession for supply of methamphetamine. She reminded me of the fact that albeit at a small scale, this was a commercial activity, and she reminded me also of the pernicious nature of the drug and its huge impact on the community by referring to statements to that effect by the Court of Appeal in R v Andrell CA 69/02 29 August 2002. Having referred to R v Arthur, R v Oveinikovas HC AK CRI 2003-044-006545 17 February 2004 and other authorities she submitted that a starting point of around four years imprisonment should be adopted for sentencing purposes unless I found that there was no commercial element involved, in which case a starting point of around three to three and a half years imprisonment would be appropriate. She accepted that you were entitled to a discount for your early guilty plea.

[16]   As I have indicated, Mr Niven urged on me the approach reflected not only in R v Arthur but also in the cases of Stewart and Oveinikovas. He submitted that on  the approach of those cases a starting point between three and four years should be adopted for sentencing purposes.

[17]   The lower Band category identified by the Court of Appeal in R v Arthur was for supplies of less than five grams of methamphetamine. In this case the amount in your possession was significantly below that – at .8 grams. I have already said that I do not regard it as particularly significant as to whether or not you were proposing to sell it on the market, or simply to convey it to an identified person for reward.

[18]   However, having regard to the cases to which counsel have referred, I think a starting point for sentencing purposes of three and a half years would be appropriate in this case.

[19]   I then have regard to the fact that, albeit, not at the earliest possible stage, you nevertheless did plead guilty following depositions. I take into account a degree of co-operation with the police, accepting that there was a legitimate dispute nevertheless as to the summary of facts upon which the Crown wished to proceed.

[20]   I bear in mind that one of the purposes of sentencing is rehabilitation and I think there is force in what Mr Niven has said this morning about the fact that you have not previously offended in this way, and it is often what he described as the crisis induced by the presentation of a serious charge such as this, which serves as the motivation for taking positive steps to try to bring about a change in the lives of persons such as you.

[21]   Bearing all of these factors in mind I think the appropriate sentence to impose in your case is one of two years and six months imprisonment.

[22]   I urge you to take what opportunities may be available whilst you are in prison to correct your habit with respect to drugs, with the prospect that you might find life more liveable if you succeed in that endeavour.