R v Nielsen HC Auckland CRI-2004-092-11306

[2005] NZHC 1739

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-092-11306

THE QUEEN

v

TIMM GILBERT FREDLUND NIELSEN

Charge:          Importing Class A controlled drug Plea:  Guilty

Appearances:  Anna Pollett for Crown

Peter Kaye for Prisoner

Sentenced:     29 April 2005

8 years imprisonment
Ordered to serve minimum term of 4 years imprisonment

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown Peter Kaye (Auckland) for Prisoner

R V NIELSEN HC AK CRI-2004-092-11306 [29 April 2005]

Introduction

[1]    Mr Nielsen, you have pleaded guilty upon arraignment in this Court to one charge of importing methamphetamine. The maximum term of imprisonment for which you are eligible is life.

[2]    Before dealing with the formal parts of this sentence, I wish to acknowledge the presence in Court today of your parents. They have travelled here from Connecticut. I am grateful for their attendance, as I am sure you are. I wish also to acknowledge the constructive submissions made by both Ms Pollett for the Crown and Mr Kaye on your behalf. Both of them have assisted me considerably.

Facts

[3]    I shall deal first with the facts. They will of necessity dictate the length of your sentence. They fall into a brief, all too familiar and depressing pattern.

[4]    You arrived in New Zealand on 6 October 2004 on a flight from Singapore. You were subject to a routine search by customs authorities. You had a small carry- on bag in your possession. Customs officers searched it. Inside a false bottom they found three plastic bags containing a total of almost two kilograms of methamphetamine. Also on your body in a small plastic bag was another point of a gram of methamphetamine.

[5]    The customs officials report that you were co-operative with them. But, as Ms Pollett has pointed out today, you have chosen not to assist further by participating in a controlled delivery of the drugs which would have revealed the involvement of a number of other individuals. Your election not to participate does not count against you. However, if you had taken a contrary course, then the sentence I would impose upon you would be reduced substantially.

[6]    As I have said, the total amount of the methamphetamine was 1.9 kilograms. Its estimated street value in New Zealand is between $2 million to $3 million. In my

experience it is one of the largest single importations of methamphetamine into this country in the last three years.

Starting Point

[7]    Against that background I must now identify the appropriate starting point for your sentence. It is fixed by reference to the nature of the crime and its particular circumstances. I will then take into account any personal or mitigating factors.

[8]    Mr Nielsen, you will know that trafficking in methamphetamine is regarded as one of the most serious crimes that can be committed against our society. Judges like me frequently see the human wreckage caused by its consumption. Its antisocial effects are too well known for me to repeat or rehearse. It destroys those who use it; it destroys their relationships with family and friends. It features, as Ms Pollett says, as a contributor or driver in many serious crimes. In my assessment there is  no worse drug related crime that could be committed than importing methamphetamine into our country.

[9]    A number of aggravating features are present. First, there is your premeditation and planning. Without doubt you are an intelligent, well educated man. You have been honest enough to say that you undertook a careful risk analysis before agreeing to participate in this crime. You weighed up carefully, and if I may say so cynically, the potential rewards against your exposure to apprehension. Second, and related to the first, is the fact that you acted for profit. You intended to make money out of trafficking in human misery. I have no doubt that you stood to gain finally from your participation in this crime. Third, of course, there is the amount and the value of the drugs. The potential for their widespread distribution in New Zealand is obvious.

[10]   Also in fixing the starting point I must take into account the well known sentencing principles of denunciation, deterrence, and accountability. Additionally I take into account the factor mentioned by Mr Kaye. It weighs in your favour. You face a lengthy term of imprisonment in New Zealand. It will add hardship for you. You will be separated from family, friends and traditional support structures.

[11]   I am spared from any further analysis of the law or the facts in fixing a starting point by the existence of a degree of consensus  between  Ms Pollett and   Mr Kaye. Ms Pollett submits that it should be 12 years; Mr Kaye, on the other hand, acknowledges a range of 10-12 years. In my judgment the appropriate starting point for your crime is 11 years imprisonment.

Mitigation

[12]   I now consider mitigating factors. First and foremost, Mr Nielsen, there is your plea of guilty. I do not count against you that it was entered after some months. What is important about the plea is that, first, it saves the state the cost and commitment of its resources to running a trial and, second, it reflects on your part a degree of acknowledgement and contrition for your crime.

[13]   Additionally I am going to take into favourable account your personal circumstances. You are a man of great intelligence. You have the tertiary degree of Bachelor of Communications. You have a record of distinguished service in the American Marines. You have no previous criminal convictions. I have had the benefit of a plethora of testimonials and references submitted on your behalf. What  is so clear is the absolute inability of those close to you to understand your actions. I share that reaction.

[14]   I cannot understand why somebody with your privileged background would decide to commit such a serious crime against an alien society. Mr Nielsen, it is a measure of the civility of New Zealand society and the value that it places on human life that we do not have the death penalty. But if we did, this offence would rank close to eligibility for it. In the absence of a death penalty, life imprisonment is the highest sanction available. It reflects how our society regards this crime and how  you have offended against our values and our morals.

[15]   I acknowledge that at 29 years of age you have, hopefully, a good future ahead of you after serving a term of imprisonment. I acknowledge that the penalty I impose will inflict real hardship on your mother and father who have paid me the courtesy of their presence in Court today. It is a measure of their love and affection

for  you  also  that  they  are  here.     I can understand, as a parent, their total bewilderment at what you have done.

[16]   In all the circumstances I intend to reduce the starting point of 11 years by three years to a sentence of eight years imprisonment. Accordingly, I impose a term of eight years imprisonment on your conviction on the charge of importing methamphetamine.

Minimum Term

[17]   That is not the end of my duty. I must now consider whether or not to  impose a minimum term of imprisonment.

[18]   Mr Kaye is realistic enough to accept that the circumstances of your offending cross the statutory threshold in terms of s 86 Sentencing Act 2002. I have no doubt that eligibility for parole after one third of your sentence would be insufficient to hold you accountable for the harm that you could have done to our community, to denounce your conduct, and to deter you and others from offending again. I accept that our society does not require any further protection from you. Inevitably upon completion of service of your term of imprisonment you will be removed from New Zealand.

[19]   Taking all factors into account, I agree with Mr Kaye that a minimum term of less than that sought by the Crown is appropriate. I impose a minimum non parole term of four years imprisonment, or 50% of your finite term.

[20]   Before you stand down, Mr Nielsen, I repeat that you have committed a grave crime against a  society  that  does  not  deserve  it.  You  may  have  heard  that  New Zealand is an easy place to import drugs. I cannot comment upon that. But I  can only repeat my own experience of the human devastation caused by the abuse of methamphetamine within our society, particularly the young. I accept that service of a term of imprisonment in New Zealand will be difficult for you. But, as I said before, you are a young man. You have much to offer. I trust that you use your time in a penal institution constructively and that when you return to America you are

able to contribute to life there in a positive way. I wish you well.  Please stand  down.

Rhys Harrison J