R v Merson HC Wellington CRI-2005-091-3849
[2007] NZHC 1806
•7 June 2007
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2005-091-3849
THE QUEEN
v
JOHN DAVID THOMAS MERSON
Appearances: R C Laurenson for Crown
P V Paino for Prisoner
Sentence: 7 June 2007
SENTENCE OF GENDALL J
[1] John David Thomas Merson, you appear for sentence in respect of three matters. You pleaded guilty on arraignment to the crimes of supplying the class A controlled drug methamphetamine between 23 August 2005 and 23 November 2005 and further, having in your possession a firearm, namely a pump-action shotgun, on
23 November 2005 except for some lawful, proper and sufficient purpose.
[2] In addition, you are to be sentenced on charges which were the subject of indictment in the District Court and to which you have pleaded guilty, namely attempting to pervert the course of justice in breach of s117 of the Crimes Act 1961 and common assault. They were matters originally before the Porirua District Court but were then the subject of indictment in the Wellington District Court and you
pleaded guilty on 14 May 2007 and were awaiting sentence. In order that all matters
R V MERSON HC WN CRI-2005-091-3849 7 June 2007
could be finally disposed of today, I directed those informations or indictment be transferred to this Court so that you could be sentenced on those matters also.
[3] In order to understand the narrative of developing events it is necessary for me to set out the chronology of the various offences committed by you since August
2004.
The facts
[4] On 17 August 2004 you were apprehended and charged with cultivating cannabis. It was a substantial and significant operation and you pleaded not guilty and were granted bail. Your trial was to take place in the Wellington District Court in June 2006. In the meantime, and whilst on bail, you committed the crime of selling the class A drug methamphetamine, over the three month period between August and November 2005. The police stopped you in a motor vehicle in Raumati South, executed a search warrant in respect of that vehicle and your home under the Misuse of Drugs Act 1975. You had on your possession $851 cash and a further
$39,431 was found hidden in the motor vehicle. A search of your home revealed cash totalling $64,530, together with a large number of plastic snap-lock bags, a laptop computer, masking tape, rubber bands, a sophisticated weighing machine, cellphones, two police scanners, a money counting machine, electronic scales, and property surveillance equipment. Another vehicle was searched and a further $4,400 cash, said to belong to you was found hidden under a driver’s mat. So something in excess of $109,000 was located. That plus all the paraphernalia were factors which indicated that you were a significant drug dealer, they being trappings consistent with someone engaged in a commercial enterprise. You pleaded not guilty, and elected trial, as you were entitled to do.
[5] In the meantime, you still awaited trial on the cultivation cannabis charge in the District Court. So, in order to escape conviction in respect of that charge, you then committed the crimes of attempting to pervert the course of justice and assault shortly before that trial. On 23 May 2006 you approached a person who you knew on the Kapiti Coast and demanded that he make a statement to the effect that the cannabis located in the cultivation exercise was his and not yours. The victim
refused and you struck him with a fist in the face. Undeterred, you visited the victim again the next day, and you coerced him to the extent that he began to write a statement in his own handwriting, the contents of which were dictated by you and which exculpated you. You took him to a Justice of the Peace, threatening harm if he did not do as he was told and the statement was witnessed by the Justice of the Peace. The victim was then taken to a police station but an officer there wisely said the victim needed legal advice. The problem with that is that the lawyer to whom you took him was your own lawyer. Several days later, on 30 May 2006, a statement was typed in the presence of your then lawyer (who I make absolutely clear was not Mr Paino) and the statement was handed to the victim and then given to you. For some reason your trial on the cultivation of cannabis charge was declared a mistrial on 8 June 2006. I suspect it may well have been because of the manner in which the victim’s statement had been obtained. Anyway, eventually you were convicted by a jury in December 2006 on the charge of cultivating cannabis.
[6] In the meantime, however, you had pleaded not guilty to the charges of attempting to pervert the course of justice and common assault. So the Judge who sentenced you on the charge of cultivating cannabis in the District Court at Wellington could make no reference to those because you had pleaded not guilty. Nor could any reference be made of your having been apprehended and charged, but had pleaded not guilty to selling methamphetamine. So as a consequence the Judge made no reference to any of these factors when sentencing you on the charge of cultivating cannabis. You received a very lenient sentence given the matters I have outlined, with the two years’ imprisonment with leave to apply for home detention.
[7] The next step in the chronology is that in March 2007 you participated in a lengthy preliminary hearing and a hearing of a s344A application in an endeavour to have your statement to the police (when apprehended for selling methamphetamine), in which you had admitted to such, excluded. That attempt failed. As a consequence you entered your guilty plea in respect of the selling methamphetamine and the possession of the firearm charge on 16 April 2007.
[8] What all this means is that I propose to approach your sentencing today on the accepted basis that the Court must notionally look at what you would have
received on a totality basis when sentenced in December 2006, if at that time the crimes you had committed and whilst on bail, had been before sentencing before the Court. Now obviously, if that had been the case there is no possibility at all that the District Court Judge would have been sentenced you to only two years’ imprisonment.
[9] Returning to the charge of selling methamphetamine. You claimed to the police that you were selling methamphetamine on a regular basis over a period of time, saying it was only 1-2 grams per week, and that you charged your customers
$450 per gram. The Crown amended its indictment to allege selling over a three month period between August and September 2005 and you pleaded guilty on that basis. If it is accepted as true that all you sold was between 13-26 grams of methamphetamine, then it would represent a cash return to you of something between $5,800 or $11,700, given the usual going rate for dealing in methamphetamine on the street is $1,000 per gram. That is, of course, if it is being sold in point bag lots, and not gram lots. But all the evidence satisfies me beyond any reasonable doubt that you were engaged in a significant commercial enterprise in selling methamphetamine. I have seen the photographs and all the exhibits, and the quantity of money that you had hidden in various places or in your possession, lead me to draw the inevitable inference that you were making substantial profits in a much greater way than you claimed. Even if it be that you were selling methamphetamine for $450 per gram, that may be consistent with a wholesale rate in which case you were not selling on the street as you claimed, but were dealing in significant quantities to others who on-sold it for profit.
[10] Counsel accepts that for this crime you fall within category 2 of the sentencing band of R v Fatu [2006] 2 NZLR 72 (CA). He says that it is at the lower end of category 2 being low level supply. I cannot accept that submission. Band 2 of Fatu applies to the supply of commercial quantities between 5-250 grams and the sentencing band is as wide as 3-9 years’ imprisonment. You fall within that band. But in fixing the level of your commercial activities however is not simply a mathematical exercise of fixing a starting point or notional term of imprisonment as against the amount of methamphetamine fixed in terms of its weight. It has to be remembered that Fatu was concerned with establishing sentencing bands. Once an
offender has shown to have supplied a quantity of drugs, in your case in the range of that specified, such a person as you can legitimately be considered to be a commercial dealer. In your case there is a wealth of other evidence which establishes beyond any doubt that you were involved in a commercial enterprise when I consider the paraphernalia and cash discovered.
[11] As was emphasised by the Court of Appeal in R v Faifua CA287/05
27 March 2006 at [31]:
“Once the band has been determined (on the basis of quantity of methamphetamine involved), the sentencing Judge is then required to consider a myriad of factors in determining where within the band the starting point in that particular case should be fixed. In that assessment, the precise quantity of drugs is but one factor among many.”
[12] Matters such as the quantity of drugs, its purity, the fact that there was possession for supply rather than actual supply may all be features and:
“…other features of the overall offending (the scanner, the scales, the pipe, the large sum of cash, and the possession of a firearm) would suggest that this was a serious dealer [that’s in Faifuas case], for whom deterrence must be a primary focus of the sentencing. Those other factors would clearly justify a movement of the starting point towards the middle or upper end of the band.”
[13] Those comments are made in the context of an appeal against a sentence of seven years’ imprisonment, held not to be excessive after an appellant was convicted by a jury for possession of methamphetamine (and cannabis) for the purpose of supply, the weight of methamphetamine being 21.58 grams – although of course there were other aggravating features. Given the authorities and the facts in your case a starting point of at least six years’ imprisonment was in my view appropriate. That is before looking at the aggravating and mitigating features.
Aggravating features
[14] The aggravating features are significant. You dealt in methamphetamine in a brazen way as a drug dealer whilst on bail awaiting trial for cultivation of cannabis. That hardly suggests remorse or contrition. It is said that you are now remorseful and I hope that does not relate largely to your concern for your predicament. The
unlawful possession of a firearm is also an aggravating feature, but it is said that it had seized and could not be used. Nevertheless, weapons such as these, a cut-down sawn-off shotgun, which are held by drug dealers in association with serious drug offending, are well known to be aggravating and are of serious concern to the Courts.
[15] It is further aggravating that whilst on bail and awaiting trial you committed the crime of possession of methamphetamine in September 2006 and that is no doubt because you had been a user and an addict. That is not especially unusual when the Courts are confronted by drug dealers, who often are their own best or worst customers.
[16] Of course your offending in May 2006 to attempting to pervert the course of justice and assault so as avoid conviction on the cultivation charges are aggravating. You have a total of 65 previous convictions, which likewise, are aggravating.
Mitigating factors
[17] The only real mitigating aspect is your eventual guilty pleas. None could have been said to come at an early time but you have had the benefit of wise counsel and have taken that. You should be grateful for that. You have been well served by your present counsel, Mr Paino. On the sale of methamphetamine charges you were initially before the Court in November 2005 and it was not until April 2007 that guilty pleas were entered. In the intervening period a number of further crimes were committed. The attempting to pervert the course of justice and common assault offences were committed in May 2006 and you did not enter pleas of guilty for one year until 14 May 2007. But it is proper that a discrete allowance is to be given to you for the guilty pleas, measured against their lateness and also the fact that a successful defence really was futile. But, as I have said, you have been well served by your present counsel Mr Paino and you will be receiving a real discount for your guilty pleas.
[18] Other mitigating factors are contained in your probation report. You are aged
43, you have an appetite for methamphetamine and suffer health issues as a result of this. The officer says that you attempted to supplement your income by selling
methamphetamine, but obviously the money that you had secreted away in my view anyway arose rather more than from simply supplementing your habit. It is said that you have a level of motivation to address your offending, and although your record might suggest otherwise, there is a suggestion of some hope for the future, despite what has happened. You are currently a sentenced inmate in respect of the cultivation charges and you certainly could have faced cumulative sentences when appearing for sentence on that charge in December 2006. Insofar as the possession of the firearm and the sale of the metahmphetamine counts I propose to impose concurrent sentences which reflects their aggravating features, so that they will run concurrent with any sentence you are currently serving now. You must however receive a cumulative sentence for attempting to pervert the course of justice and common assault given that those were serious attempts to avoid the conviction on the cultivation charge. Criminals cannot expect discounts or concessions for multiple offending such as that.
[19] The Crown had originally submitted in its written submissions that a sentence of not less than four years’ imprisonment for selling methamphetamine was required. I regarded that, and I still do, as too low. The proper approach is for the Court to proceed on the notional basis of what would have been the outcome had you been sentenced on all matters in December 2006 and by me. If the District Court Judge had been sentencing you on all matters she would not have granted you leave to apply for home detention. But even taking as a starting point a sentence of two years’ imprisonment on the cultivation charge you would have received a cumulative sentence of nine months’ imprisonment on the charges of attempting to pervert the course of justice and assault. So, on those matters your effective sentence could not have been less than two years nine months’ imprisonment.
[20] To that, however, would have been added the selling of methamphetamine count. In my view you could have received a sentence of five years six months’ imprisonment representing a starting point of six years six months’ imprisonment but a notional 12 months allowance for your guilty plea. Now, if those were cumulative, you would have received an effective sentence of eight years three months’ imprisonment. If they had been cumulative, in my view that would have offended the totality principle, and been simply too high.
[21] So, I am of the view that your lead sentence would have been five years five months’ imprisonment on the charge of selling methamphetamine. That would be concurrent with the other terms, although the sentence of attempting to pervert the course of justice and assault would remain cumulative with the cultivation charge sentence. But realistically, as your counsel will explain to you, they would ultimately merge with the lead sentence.
[22] So, at the very least a sentence of five years five months’ imprisonment on the lead charge (that is selling methamphetamine) is required. But, if I were to impose that today it would overlook the fact that you already have served effectively six months’ imprisonment.
[23] Accordingly, I adjust downwards your lead sentence to five years’ imprisonment. It is to be concurrent with the present term of two years’ imprisonment that you are now serving. That five years recognises the guilty pleas and the total culpability of your offending. You will be sentenced to five years’ imprisonment on the charge of selling methamphetamine, 12 months’ imprisonment, which is concurrent, on the charge of possession of a firearm. In respect of the charges of attempting to pervert the course of justice and assault you are sentenced to nine months’ imprisonment, to be concurrent within themselves (and the lead sentence of five years) but cumulative upon the sentence of two years’ imprisonment imposed on the cultivation charge. As I have said, the effect of all that is that all sentences run concurrent with the five year term on the lead sentence and that is the effective term of your imprisonment.
[24] There will be an order for destruction of the shotgun.
[25] I conclude simply by saying that the cash found in your possession is the subject of an application by the Crown pursuant to the Proceeds of Crime Act 1991, which are essentially civil proceedings. I have regarded the presence of, and possession of the large quantity of cash, together with all the other drug dealing paraphernalia, as “aggravating facts” in the sentencing exercise. That is why it is five years. But I record that you, through your counsel, whilst not requiring a “disputed facts” hearing, do not acknowledge the Crown’s entitlement to forfeiture.
The fact that this Court has taken, only to a small extent the presence of such money into account in the sentencing exercise, is in no way to be determinative of the outcome of the Crown’s application under the Proceeds of Crime Act. That is a matter that requires to be determined independently.
[26] As I have said, twice, you owe considerable gratitude to Mr Paino and thanks for his efforts on your behalf, and I hope that you recognise that the ultimate sentence that has been imposed is lenient.
…………………………….
Solicitors:
Crown Solicitor, WellingtonPaino & Robinson, Upper Hutt for Prisoner
J W Gendall J
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