R v Nuvel HC Auckland CRI-2004-92-13365

[2005] NZHC 1684

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-92-13365

THE QUEEN

v

NOEL NUVAL

Counsel:         J L S Shaw for Crown

D S Niven for Prisoner

Date:              3 May 2005

SENTENCING NOTES OF BARAGWANATH J

Solicitors:

Crown Solicitor, Auckland

Counsel:
Mr D S Niven, Auckland

R V NUVAL HC AK CRI-2004-92-13365 [3 May 2005]

[1]    Mr Nuval, you are a man of 41 who  was born  in  the  Philippines  and  on  22 November 2004 you returned to New Zealand from a time in the Philippines where you had been working and clearly celebrating, consuming alcohol and drugs including methamphetamine. A quantity of 1.2 grams of methamphetamine was found in your clothing wallet. It is capable of being broken down to 12 consumable points. You told the probation officer that you boarded the plane to Auckland knowing you had the methamphetamine in your possession but did not want to waste it and proposed to use it following your return. The Crown does not challenge your assertion that the drugs were intended for personal use although of course had you succeeded in importing it you could have changed your mind and made part of it at least available to others.

[2]    In R v Arthur CA382/04 17 March 2005 the Court of Appeal endorsed a report to the Minister of Health by the Expert Advisory Committee on Drugs giving the reasons for its recommendation that methamphetamine be reclassified  as  a  Class A controlled drug. The reasons, which were accepted by the Minister, were:

That the use and manufacture of methamphetamine in New Zealand is growing, seizures are increasing, and it has potential appeal  to vulnerable populations.

There are pronounced long-term physical and psychological adverse effects associated with methamphetamine abuse.

There are significant risks to public health from intravenous use of methamphetamine, as well as the dangers posed by illicit clandestine laboratories.

There are few, if any, therapeutic applications for methamphetamine.

Methamphetamine has been linked to deaths both in New Zealand and overseas.

There is high physical and psychological dependence potential.

That is why Parliament has provided there is now a life sentence which is the maximum penalty for dealing methamphetamine. The Court’s primary role in sentencing is deterrence. Denunciation is also important so that the Courts proclaim to the community that this drug is to be deplored. So personal considerations can be given only limited weight.

[3]    Viewed from your standpoint that may well appear stern. You are married, you are self-employed, at the age of 41 you have never previously appeared before the New Zealand courts and you provide for your family who are in court to support you.

[4]    You told the probation officer that you were unaware of the penalty imposed on those who commit such offences and said that you really did not think what you had was a lot and thought that if you got caught it would be a minor offence like getting caught with marijuana. It cannot be over-emphasised how the Courts in various jurisdictions are viewing these drugs and Mr Niven observes astutely it is very fortunate for  you  that  you  were  not  found  in  another  jurisdiction  than New Zealand.

[5]    You told the probation officer that over the months before your offence you had consumed a large amount of alcohol and drugs which reduced your inhibitions and affected your judgment. As a result  you had little or no thought for others or as to the consequences of your actions. You and your family must be regretting that deeply right now. The officer certainly accepts the fact of your remorse which is a factor I may take into account on sentence and the motivation to address the factors that contributed to your offending and your risk of reoffending is considered as low.

[6]    Mr Niven today has emphasised the small amount in relative terms of drugs involved, the absence of a commercial element, your previously good record and in his written submissions invited the Court to consider a community based sentence.

[7]    That is a course that I do not regard as feasible. The Courts must proclaim a clear message so that those who might otherwise share your  misapprehension that the law does not trouble too much about this kind of conduct are under no allusion as to the gravity of importing methamphetamine.

[8]    A prison sentence must be imposed. The question is for  how  long. Parliament    has    decreed    a    maximum    penalty     of     life     imprisonment. As non-commercial offending your conduct falls outside the starting point of two to four years imprisonment proposed by the Court of Appeal for low level supply – less

than five grams referred to at paras [18] and [21] of Arthur. Although as an import it again is something more serious than purely domestic offending without that element.

[9]    I have been very much assisted by the submissions of both counsel in trying to see clearly how the principles should be applied in this case. I have been taken through a number of precedent cases. I accept Mr Niven’s submission that the case most closely in point is the old decision of R v Black CA68/83 17 June 1983 in  which in relation to another Class A controlled drug lysergide the Court of Appeal interfered with a nine month sentence of imprisonment imposed in this Court following a plea of guilty and substituted one of six months  imprisonment.  What  the Court of Appeal said in that case bears repeating here:

Manifestly importing any Class A controlled drug is a serious offence and, on the face of it, it is not at all surprising the Judge felt bound to impose a sentence of imprisonment.

[10]   The Court then turned to the facts and without qualifying what had been said about imprisonment emphasised the fact that it involved importation but was not for the purpose of making pecuniary gain in New Zealand. The Court accepted there  was no intention to supply others in New Zealand. The appellant’s personal circumstance was such that he had received a favourable probation report and there were family circumstances indicating that hardship would be suffered by others through his imprisonment. He had a completely clear record with no previous offences. The Court of Appeal found there to be  force in the submission made by  the appellant’s counsel that this was not a case of supplying or importing for the purpose of supply, a point that Mr Niven emphasises today. The Court of Appeal considered that the object of deterrence could be achieved adequately by a sentence of less than nine months, applying the principles now codified in the Sentencing Act that the Court is to impose a minimum sentence appropriate in the circumstances.

[11]   The  23  trips  of  lysergide  in   that   case   may   be   compared  with  the   12 consumable points in this case. It is however true that we are in the midst of a methamphetamine epidemic and the Court must take care to ensure that the message of deterrence is there for others.

[12]   I am satisfied that you have learned your lesson and deterrence for you is not something that needs be of concern.

[13]   In these circumstances I propose to echo what the Court of Appeal did in Black. The starting point for your sentence is in my view a term of nine months imprisonment. But for the reasons of your prompt plea, your previous  good character, your family responsibilities and because I am quite satisfied that you have learned a bitter lesson there will be a third deduction and your sentence will be  of  six months imprisonment.

[14]   Having heard your counsel’s careful submissions on the point I have decided against giving you leave to apply for home detention because of the overall importance of deterrence in the sentencing process. That application will be  declined.

W D Baragwanath J