R v Ngamotu HC Napier CRI-2006-020-2694

[2007] NZHC 2066

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2006-020-2694

THE QUEEN

v

UA MATHEW NGAMOTU

Appearances: R J Collins for Crown

A J S Snell for Prisoner

Sentence:       29 August 2007

SENTENCE OF GENDALL J

[1]      Ua Mathew Ngamotu, you have pleaded guilty to one count of supplying the class A drug methamphetamine.   As a consequence your trial does not need to proceed, and with the agreement of counsel for the Crown and your counsel, you are to be sentenced today.  A pre-sentence report from the Department of Corrections is not regarded  as  necessary  by either  the  Crown  or  your  counsel,  and  given  the circumstances of the offence, and your background as I am aware of it, I too, do not think it is necessary to obtain such a report.

[2]      The facts upon which I sentence you can be shortly stated.  In the middle of

2006 there was a police operation taking place in Hawke’s Bay to locate and apprehend those dealing in drugs.   On 26 July 2006 an undercover police officer sought   to   acquire   methamphetamine   from   a   man   named   William Ropitini.

Mr Ropitini, it seems, took the police officer to a place where they both met you.

R V NGAMOTU HC NAP CRI-2006-020-2694  29 August 2007

You gave to Mr Ropitini one point bag (that is one-tenth of a gram) containing a white crystalline substance and you then departed.  Mr Ropitini tried the substance by smoking it.  It is the basis of that observation or evidence of the police constable that led to you being charged with supplying methamphetamine to Mr Ropitini.

[3]      In terms therefore of the culpability and gravity of the crime it falls (at least on those facts) at the very lowest level of supply of the class A drug methamphetamine.   There was no sale, no money passed hands and the amount involved being one-tenth of a gram was very small.   You pleaded not guilty and elected trial but prior to the jury being empanelled you entered the plea of guilty on arraignment today for which  you  are entitled to  credit.    The issue  at  trial  as  I understood it, may well have been whether the Crown had proved through circumstantial evidence the identity of the material that you gave to Mr Ropitini and which he smoked.  But you have responsibly acknowledged your guilt, and as I have said, credit will be given to that.

[4]      Both Crown and defence say a starting point of something like 12 months’ imprisonment is appropriate being at the lowest end of R v Fatu [2006] 2 NZLR 72 (CA).

[5]      I need to tell you in case you should ever be tempted to dabble in class A drugs again Mr Ngamotu, the Court of Appeal in the case of R v Fatu (supra) has set certain sentencing bands for dealing in methamphetamine.  The top level – 10 years to life imprisonment;  250 to 500 grams – 8-11 years’ imprisonment;  5-250 grams –

3-9 years’ imprisonment;  and it says less than 5 grams – 2-4 years’ imprisonment. But that is just a guide.

[6]      You know how much a gram will be, how much it costs, and you only had one-tenth of one gram, so I am not taking a starting point of two years, I agree with the Crown that a starting point of 12 months’ imprisonment is appropriate in your case.  The Court is required then to look at the aggravating features which relate to you personally and the only aggravating feature that I can identify is your past criminal history.  But I note firstly, that you have no convictions for dealing in class A or B drugs.  Your last conviction for an offence was five years ago and by and

large  your  criminal  history is  one  of  a  mixture  of  dishonesty and  irresponsible behaviour, with some involvement in the class C drug cannabis.

[7]      The mitigating circumstances include no money passed hands, the very small amount of drugs.   It seems that you were a fringe player and that you have the support of your wife and family.  I need to tell you that don’t ignore that support and don’t go near class A drugs ever again because imprisonment is inevitable.  It has been said that class A drug dealing is a plight on the community.  Methamphetamine is a pernicious drug.  Many crimes of violence occur by people who have taken it.

[8]      Those who are at the top of the tree, and you probably can understand this, make huge amounts of money but they are protected and sanitised from any apprehension whereas the bit players like you are the ones who are caught.   The justice system is required to stamp out the hard drugs and as you know the maximum penalty for dealing in methamphetamine is life imprisonment.   It is said that a custodial sentence is inevitable and only in the rare of cases where someone not be sent to prison for supply or selling methamphetamine.

[9]      I am prepared to give you significant credit for your guilty plea given that it has saved the community the cost of a trial and it reflects your acknowledgement of what you have done.  I fix that at one-third and accordingly conclude that a sentence of eight months’ imprisonment is justified.  That is benevolent and indeed merciful and some may consider it too low.   But there are examples of class A offending which have in the unique circumstances of their cases have led to merciful sentences, such as R v Rawiri (High Court, Auckland, CRI-2005-92-4573, 2 December 2005, Baragwanath J) for supplying methamphetamine, where a person had a small number of point bags for supply to his friends without financial benefit.  He was sentenced to

300 hours community work.  Another example, R v Johnson (High Court, Napier, CRI-2006-020-2719, 14 November 2006, Allan J) which had some special facts but nevertheless Mr Johnson had pleaded guilty to three charges of offering to supply methamphetamine.  He too was sentenced to 300 hours community work.

[10]     You do not fall into that category at all, but because of the particular facts of this case and your circumstances that I am satisfied that a term of imprisonment of

eight months is more than adequate to punish you, deter others, and to facilitate your rehabilitation.  Because of that I am prepared to grant you leave to apply for home detention and if that is forthcoming by the Parole Board then you are entitled to look towards full rehabilitation.

[11]     Let me repeat to you and in the presence of your family:   Stay away from class A drugs;  stay away from methamphetamine, LSD, or any other drugs in that category.  The bar and the tariff has gone up to such an extent that the hands of High Court Judges are largely tied when it comes to sentencing.

[12]     I hope that you and your family have taken on board what I have had to say. But, in the end, I am well satisfied that eight months’ imprisonment on this one count with leave to apply for home detention is the appropriate outcome.

…………………………………… J W Gendall J

Solicitors:

Crown Solicitor, Wellington

A J S Snell, Hastings for Prisoner