R v Nicholl HC Auckland CRI-2005-069-2184
[2007] NZHC 1841
•14 June 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2005-069-2184
THE QUEEN
v
MALCOLM CHRISTOPHER NICOLL
Charge: Manufacturing Class A controlled drug (methamphetamine); Possession of precursor substances;
Possession of cannabis; Possession of syringe;
Possession of pipe for methamphetamine; Using methamphetamine (2)
Plea: Guilty
Appearances: Lisa Davis for Crown
Harry Edward for Prisoner
Sentenced: 14 June 2007
Manufacturing – 2 years and 9 months imprisonment
Possession of precursors – 1 year imprisonment Possession of cannabis, Possession of syringe/pipe, Using methamphetamine – 3 months imprisonment on each
(all terms concurrent)
SENTENCINGNOTESOF HARRISON J
SOLICITORS
Gordon Pilditch (Rotorua) for Crown
HS Edward (Rotorua) for Prisoner
R V NICOLL HC AK CRI-2005-069-2184 14 June 2007
[1] Mr Nicoll, you have pleaded guilty to four charges. The most serious is manufacturing a Class A controlled drug, namely methamphetamine. The maximum penalty, as Mr Edward acknowledges, is life imprisonment. The other serious charge is being in possession of precursor substances, namely toluene, hydrochloric acid and pseudoephedrine, with the intention that they would be used in committing an offence under the Misuse of Drugs Act. On that charge the maximum penalty is five years imprisonment. You have also pleaded guilty to being in possession of a syringe and pipe for the purpose of committing an offence, using methamphetamine, and possession of cannabis.
[2] Before I deal with the formal parts of the sentencing, Mr Nicoll, I acknowledge today the support of your mother and father. I have been moved by your mother’s address to me today. She has spoken with a parent’s love and affection and offers hope for you. As you heard me say, it is most unusual for whanau to be at Court when somebody I sentenced; I take that into account as a sign of the support available to you on release. Also I acknowledge the helpful submissions I have received from Ms Davis for the Crown and Mr Edward on your behalf. He and your parents will make a difference to the end sentence that I impose on you.
Facts
[3] I must deal first with the facts. On 29 September 2005 the police executed a search warrant at your address. The house backed on to Mount View Primary School. You were living with your mother and father and your 12 year old nephew. When the police arrived they saw you attempt to throw a bag out of the bedroom window. They retrieved the bag. They found that it contained various chemical substances commonly used in manufacturing methamphetamine. There was hydrochloric acid and iodine. The police also located several items of Pyrex glassware. Again you know they are used in manufacturing methamphetamine.
[4] In a white van at the back of the section the police found empty pseudoephedrine capsules, flu tablet boxes, filters and glassware. The ESR and specialised police clandestine laboratory staff analysed the scene. As a result they concluded that all the ingredients necessary to manufacture methamphetamine were present at the address. Also they found methamphetamine and the by-products of the manufacturing process on some of the equipment.
[5] You admitted possession of the chemicals and equipment. You told the officers you were intending to have a go at manufacturing methamphetamine.
Starting Point
[6] Against this background I must fix what is called the starting point for your prison sentence. The starting point is the term of imprisonment that is appropriate for just the circumstances of the offending before I take account of your personal features which are positive.
[7] I do not need to spend much time on the starting point. It is common ground between counsel that four years is appropriate. That is the length of imprisonment necessary to express society’s denunciation for what you have done, to deter you and others, and to hold you accountable or to punish you. Additionally there is the aggravating factor here that you were manufacturing methamphetamine in a residential neighbourhood.
[8] Mr Edward has talked about the drug’s vicious effect; so have you in your letter that you have kindly written me. I do not need to emphasise to you just how destructive methamphetamine is for users. It destroys families, relationships and friendships. It is truly an evil drug. It gives me no pleasure sitting here as a Judge having to sentence a whole range of people on serious charges relating to the manufacture, supply and distribution of methamphetamine. I must mention these things even though I am satisfied that you understand them fully.
[9] Accordingly, I apply a starting point of four years imprisonment on the lead offence of manufacturing.
[10] I now come to your personal circumstances. First and foremost, you have pleaded guilty. Ms Davis says that the plea was entered late. Mr Edward has explained it followed negotiations with the Crown. Whenever it was entered is irrelevant to me, Mr Nicoll. What is important is that it is a sign of your acknowledgement of guilt, of your remorse and your sorrow. To me it represents the first stage on the path to rehabilitation. I am prepared to give you a proper discount.
[11] Second, there are your personal circumstances. You have a reasonably substantial list of previous convictions. They are mainly, however, of a nuisance nature. They are relatively minor. These present offences fall into a new category of seriousness. Ms Davis for the Crown accepts there is nothing in your background to aggravate your personal circumstances.
[12] Third, Mr Nicoll, there is your current position. You are 40 years of age. You are a man with many skills. You have the love and support, the Aroha, of your family. I have been moved by your letter. I have been influenced by what your mother has said and by the letters filed in support. I am satisfied that you have an offer of permanent employment.
[13] Also the probation officer who tendered the report for the Court has emphasised that there is a low risk of reoffending. For what it is worth from reading the material, Mr Nicoll, I think you have come to a point in your life where you understand that there is no profit in committing further crimes. You do not want to spend more time in prison. For you it has been particularly hard in recent times following the death of your only daughter and the refusal of the prison authorities to allow you to attend the tangi at the marae.
[14] You have been in prison for 18 months. Initially I had in mind allowing a discount from the starting point of four years of between nine months and a year. Having heard from Mr Edward and your mother and read your letter, I am going to allow you a substantial discount of 15 months. That may seem to some slightly merciful, but I have in mind particularly the need to encourage your rehabilitation
and your reintegration into the community; and that you will provide particular support for your parents in their time of need.
[15] Accordingly, on the lead charge of manufacturing methamphetamine, you are sentenced to two years and nine months imprisonment. On the charge of possessing precursor substances, you are sentenced to one year imprisonment. On the charges of possessing a syringe and a pipe, possession of cannabis and using a controlled drug, you are sentenced to three months imprisonment on each. All of these terms are concurrent; that is, they run together – they are not cumulative; that is, they are not added on top of each other. So the ultimate sentence that is imposed is one of two years and nine months. You are now eligible to apply for parole.
[16] Before you stand down, I acknowledge as a parent the hardship you have suffered in recent times. I am moved by what you have written. I think, for what it is worth, that you can re-establish yourself as a meaningful member of society. I wish you well. Please stand down.
Rhys Harrison J
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