R v Purchase HC Auckland CRI 2008-004-13858

[2010] NZHC 1670

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-004-13858

THE QUEEN

v

ELLIOTT PURCHASE

Hearing:         17 September 2010

Appearances: Ms K Lummis for Crown

Mr J Haigh QC for Prisoner

Sentence:       17 September 2010

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland

Mr J Haigh QC, Auckland

R V PURCHASE HC AK CRI-2008-004-13858  17 September 2010

[1]      Mr Purchase, you pleaded guilty in this Court to one representative charge of supplying the Class B controlled drug MDMA, also known as ecstasy.  As you now know, that charge carries a maximum sentence of 14 years imprisonment.

The facts

[2]      The charge against you is the result of a police operation in which the police initially targeted known drug dealers in the Auckland and Christchurch districts. They did this by covert surveillance of these people and also by intercepting their telephone conversations and text messages.  This led the police to conclude that two men by the name of Mr Frewer and Mr Voerman were involved in drug distribution. From tapping the telephones of those people and intercepting their text messages, they discovered that Mr Voerman was supplying ecstasy to you.  You were then, in turn, supplying it to another person, Mr Whitehead.  By and large, it appears that you were acquiring ecstasy in lots of 1000 or maybe more.

[3]      There was initially a dispute as to how much you personally were involved in the supply to Mr Whitehead.  It has now been agreed between your counsel and the Crown that you were involved in the supply of approximately 5000 tabs of ecstasy in this way.  What would happen is that you would contact Mr Voerman.  You would arrange to meet with him and you would then pass the drugs on a short time later to Mr Whitehead.  You made a profit out of the transactions in the form of money and also in the form of another drug to which you say you were addicted at the time.

[4]      The supply situation ended, so far as you were concerned, in early June 2008. At about that time, Mr Whitehead worked out that he could probably get a better deal by dealing directly with Mr Voerman.   He then cut you out of the loop and dealt directly with Mr Voerman from that time on.  That was probably to your benefit, Mr Purchase, otherwise you would be facing a much greater sentence here today.

[5]      You have acknowledged from  a relatively early time that  you  would be pleading guilty.   The main issue has been establishing the quantity of drug with which you were involved.   That is not necessarily an easy task in this situation because drug dealers generally use codes when talking about their transactions and

the actual transactions are hardly ever observed.  For this reason there is a degree of estimation and speculation regarding the amount that is supplied.  It is never possible to be exact.

Sentencing Act 2002

[6]      As I am sure you appreciate, drug dealing at this level in New Zealand is viewed very seriously.  It is met virtually universally by sentences of imprisonment because our courts and Parliament have determined that that is the only way in which the courts can make a mark in relation to dealing in drugs which has become so prevalent now.   So you are very much a victim in a sense not only of your own conduct, but also of our laws, which mean that drug dealers, without exception, go to jail.  That is the only way in which deterrence, denunciation and the need to hold people like you accountable, can be put into practice.

[7]      The real issue here is in sorting out the level of sentence that is to be imposed upon you, because it is important also that the sentence is consistent with other cases.  Consistency is an important part of any criminal justice system.

Starting point

[8]      I need first to select a starting point.   That means the sentence that would have been passed on you if you had defended the charge and gone to trial.   That sentence does not take into account any factors that are personal to you, whether by way of mitigation or aggravation.  It relates purely to the offending itself.

[9]      The leading authority in setting a guideline for Class B drug offending is a decision of our Court of Appeal called R v Wallace [1999] 3 NZLR 159. In that decision the Court of Appeal points out various different categories of drug offending that will attract different starting points. Your counsel submits that you fall within a category that would permit the Court to start within a starting point of four years imprisonment. The Crown says that you fall within a category that requires within a starting point of five to six years imprisonment.

[10]     For myself, I find the greatest assistance in this area coming from sentences that have been passed upon other people in the same drug ring as you.  That, firstly, gives an indication of where previous Judges have seen the gravity of offending.  It also means that I can approach proportionality in a proper manner so that you receive a sentence that is in line with those imposed on other people in your drug ring so that injustice does not occur.

[11]     Two of the people much further up in the chain than you, Mr Voerman and Mr Keown have been sentenced by different Judges:   R v Voerman HC Auckland CRI 2008-004-16711, 4 September 2009; R v Keown HC Christchurch CRI-2010-

409-000056, 20 May 2010.  Mr Voerman was higher in the chain than you because he was the one who was obtaining drugs for supply to you, presumably for his own profit, and he was involved to a much greater degree than you.  Mr Keown falls into the same category.  In each of those cases the sentencing Judge adopted a starting point of seven years imprisonment.  The issue really is how far below seven years I come in fixing the starting point for you.

[12]     This  morning,  I  sentenced  another  participant  in  the  drug  ring,  Mr Whitehead.  I selected a starting point in relation to him of six years imprisonment. In his case, however, the quantity of drugs involved was greater.  It was agreed that he had dealt in between 7,000 and 10,000 tabs of ecstasy.  Now that is considerably more than you.

[13]     I have to say that, even viewing your conduct in the most favourable light, the text messages make it clear that you were involved in a moderately serious way. You  were  dealing  in  large  quantities  and  in  drugs  that  had  a  very  substantial monetary value.  From that you derived both monetary gain for yourself and drugs for your own habit.  On any view of the matter, I consider that a starting point of five years would normally be justified.   That is the figure that I had in mind before coming down to Court this afternoon.

[14]     On reflection, and after listening to your counsel, I think that I need to pay some regard to the fact that the only person to whom you were supplying drugs was Mr  Whitehead.     You  were  not  disseminating  drugs  directly  to  users  in  the

community.   That does not mean that your behavior is greatly less reprehensible, because ultimately you must have known that the drugs you were supplying Mr Whitehead would end up in the hands of users.  But, nevertheless, you were simply a conduit between Mr Voerman and Mr Whitehead for what I take to be reasonably modest monetary gain.  I cannot reduce the starting point greatly but I have decided to reduce it to four years nine months.

Aggravating factors

[15]     I now need to take into account whether there are any aggravating factors. That means factors that operate to increase the starting point that I have selected.  I have to say that there are none.   You have no relevant previous convictions so, unlike Mr Whitehead, there is no need to increase the starting point that I have selected.

Mitigating factors

[16]     I now need to have regard to mitigating factors that operate to reduce the starting point that I have already selected.   The principal one, of course, is your guilty plea.  Although this was entered after you were committed to this Court for trial, I accept, as does the Crown, that your counsel was discussing the prospect of a guilty plea with the Crown before committal.

[17]     As you probably know, discounts for guilty pleas are governed in our country by a case called R v Hessell [2009] NZCA 450. That case determines the level of discount that can be given at each stage of the judicial process. Sentencing judges are discouraged from departing very far from that. The reason for that is simple. It means that offenders are treated consistently. It is unfair, as you will appreciate, if a person who pleads guilty on the day of trial receives a 33 per cent discount in the same way that a person who pleads guilty at the very first opportunity does. There must be a distinction to give people an incentive to plead guilty early if they accept that they are guilty.

[18]     Ordinarily, Hessell would restrain me to restrict the discount given to you to

20 per cent, but I accept that the Crown was always aware that it was never going to need to go to trial in respect of the charge against you.  The real issue, as I have said, is in determining the quantity of drugs that you had dealt in.  I accept that that issue was one that was not easy to resolve and, in fact, a fixture was allocated in this Court to determine it at a defended hearing.  I propose to deal with the issue of the discount on the basis that you were entitled to the full discount that would have been available prior to committal.  I therefore select a discount of 33 per cent for that factor.  That operates to reduce the sentence by 19 months.

[19]     Your counsel urges me to apply further discounts.   That is not easy for a sentencing Judge to do in this area because the Court of Appeal has made it clear time and again that, when it comes to dealing in drugs, very little regard can be paid to personal circumstances.  The courts have been encouraged by the Court of Appeal and, in fact, directed to restrict the level of discount that they can give to take into account other matters.  Nevertheless, I am prepared to make some allowance for you because of three particular factors that I consider should be given recognition.

[20]     The first of these is your age and lack of previous convictions.  You are 28 years of age now.   In your young life you have not come to the notice of the authorities before.  You are entitled to some credit for that.   You are entitled to pray in aid your previous good character.

[21]     Secondly, I accept you have many worthwhile qualities and that you have used your talents to fullest effect whilst you have been in New Zealand.  You were born in London and have been here now for some years.   You, initially, I think, thought that you were going to come here for two or three years.  You have ended up staying longer.   I have read the letter that you wrote to me with interest and it explains to me just how you came to be in this terrible predicament.  I am sure that when you arrived in New Zealand you never thought that this would be the end result.  The end result, of course, will be that after serving your sentence you will be deported.

[22]     Thirdly, I accept that you have done everything that you can to rid yourself of your involvement with drugs.  You have remained drug free for the last 16 months. You say that you have cut your connections with the criminal associates who were leading you into that lifestyle and you are determined that that will be the way in which you operate in the future.  Well, I sincerely hope, Mr Purchase, that is correct because as you will now appreciate, a person with talent should not be sitting in a prison cell waiting for the day when he will be deported.

[23]     I take those three matters into account.  I propose to reduce your sentence by five months to reflect that fact.

Sentence

[24]     On the charge to which you have pleaded guilty you are sentenced to two years nine months imprisonment.

Lang J