R v Van Der Merwe HC Ham CRI-2008-019-1198

[2008] NZHC 2376

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2008-019-1198

THE QUEEN

v

ERNST ADRIAAN LODEWYK VAN DER MERWE

Hearing:         24 June 2008

Appearances: Ms A M Beveridge for Crown

Mr R Laybourn for Prisoner

Judgment:      24 June 2008

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Hamilton, Counsel:

Mr R Laybourn, Hamilton

R V VAN DER MERWE HC HAM CRI-2008-019-1198  24 June 2008

[1]      Mr Van Der Merwe, you appear for sentence at the age of 34 years having pleaded guilty to charges of importing methamphetamine and being in possession of methamphetamine for the purposes of supply.   The maximum sentence in respect of both of those offences is one of life imprisonment.

Factual background

[2]      There is no dispute about the facts and they can be stated shortly.     You arrived in New Zealand from South Africa in February 2007 on a visitor’s permit. Approximately two months later you obtained a work visa and began working and living here on a semi-permanent basis.

[3]      In October 2007 you applied to New Zealand Post to obtain a post office box at the Frankton Post Office in Hamilton.   You used your own name when applying for the post office box and you used your South African driver’s licence as a form of identification in support of the application.    At that stage you gave an address in Auckland.    New Zealand Post duly gave you right to use a post office box, and thereafter you used it for your own purposes.

[4]      Approximately five months later, on 5  February 2008,  the  New  Zealand Customs Service intercepted and examined a parcel that had arrived in New Zealand from South Africa.   That parcel was addressed to a person called “Mr E Van Der” at “P O Box 5319, Frankton”.   That was the post office box that you had rented.

[5]      When the New Zealand Customs Service opened the parcel they found that it contained two video cassette tapes.     Customs officers opened the video cassette tapes and each was found to contain a small plastic bag with white crystals inside. These were subsequently analysed and found to be methamphetamine crystals.   One of the bags of methamphetamine weighed approximately 30 grams whilst the other weighed 22 grams.    In total, therefore, the two packages weighed 52 grams.    The summary of facts records that the street value of that methamphetamine amounted to approximately $52,000.00.

[6]      The  New  Zealand  Customs  Service  and  the  police  then  undertook  a controlled delivery of the methamphetamine on 8 February 2008.   Before doing so, however, they removed all but a small amount of the methamphetamine and replaced it with a placebo substance.     They placed the parcel in your post office box at approximately 9 am on that day.

[7]      Approximately one and a half hours later you arrived and opened the post office box.   You removed the parcel and were observed driving away.   The officers who observed you were able to take a note of your licence plate, and they traced this back to you.

[8]      At approximately 8.50 am on 12 February 2008 officers of both the New Zealand Customs Service and the police executed a search warrant at the address you were living at in Springdale, near Morrinsville.    You were found in a bedroom of the address and you were the only person home at that time.    When the officers searched the address, they located the two video cassettes and also one of the packaging covers.   The video cassettes had been broken up, and the two packages of crystals had been removed.    The broken cassette tapes had then been discarded in the firebox at the property.   The officers also located the items of clothing that they had seen you wearing on the day that you called at the post office to uplift the parcel.

[9]      When the officers searched your vehicle, they found $2,130.00 in cash within a central compartment.     They also found a number of money transfer receipts. These recorded the fact that you had sent money to an address in South Africa.   The total value of the transfers was NZ$19,050.00.    Quite clearly that was money that you had sent to South Africa to purchase the methamphetamine.   The fifth transfer related to the receipt of money by you from your family in South Africa.

[10]     When the police spoke to you about the importation, you denied importing the methamphetamine.      You said that you had ordered the video cassettes approximately two weeks before they were delivered from a person called Geoff.

Sentencing Act 2002

[11]     In sentencing you I need to bear in mind the principles and purposes set out in the Sentencing Act 2002.      In reality, however, the importation of methamphetamine is such a serious offence that a lengthy sentence of imprisonment is inevitable.   Such a sentence is the only way in which the Court can properly mark their denunciation of offending such as this and deter others from being tempted to engage in similar conduct.

[12]     The real issue is to ascertain where your offending falls when compared with sentences imposed for similar offending.   This enables the Court to impose the least restrictive outcome having regard to the circumstances of your case.

Starting point

[13]   I take as the lead, or most serious offence, that of importing the methamphetamine.    That offence includes within it the factor that you intended to distribute at least some of the methamphetamine to your associates in New Zealand. For that reason I need to select a starting point in relation to that offence that covers the culpability inherent in both charges.

[14]     Counsel agree that the starting point in your case is determined by the Court of Appeal decision in R v Fatu [2006] 2 NZLR 72 . You fall squarely within the second band identified in that case. People supplying methamphetamine in this category of offending are involved in the supply of methamphetamine of between five and 250 grams. The starting point in such cases is a sentence of between three and nine years imprisonment. The Court of Appeal in the same case indicated that for the same band importation is likely to include a starting point of between three and a half and ten years imprisonment.

[15]     The Crown submits that the starting point in relation to your offending is one of six to seven years imprisonment.   Your counsel does not take issue with that and I agree.   I therefore propose to take a starting point of seven years imprisonment in relation to the lead charge of importing methamphetamine.    I will then impose a

concurrent sentence in relation to the charge of being possession of the methamphetamine for supply.

Aggravating factors

[16]     There  are  no  aggravating  features  relating  to  you  personally  that  would operate the increase the starting point that I have selected.

Mitigating factors

[17]     I now need to consider the extent to which the starting point should be reduced to reflect mitigating factors that relate to you personally.

[18]     First, you appear for sentence not having been previously convicted of any other offending.   You are entitled to credit for your previous good record.

[19]     You are also entitled to significant credit for the fact that you pleaded guilty at a very early stage.   You pleaded guilty in the District Court and were committed by that Court for sentence in this Court.    This alone entitles you to a substantial discount.

[20]     I have also had the benefit in preparing for sentencing of reading two reports. The first is a pre-sentence report that was prepared by a Probation Officer.    This provides some insight into your personal circumstances and the reasons underlying your offending.

[21]   I have, however, derived much more information from a very detailed psychiatric report that your counsel has provided.     This indicates that you have always had some issues in your life.   It is possible that you suffered from an early age from some form of attention disorder.   Notwithstanding that factor, you appear to have been able to hold down jobs, both in South Africa and here in New Zealand.

[22]     It is clear, however, that you began abusing substances at an early age.   You began drinking heavily in your teenage years and you then graduated to the use of

cannabis.   You used cannabis on a virtually daily basis for a very long time in South

Africa before coming to New Zealand.

[23]     When you came to New Zealand you obtained work initially as an electrician. You had difficulties with that, however, and then obtained a job as a roofer.    By December 2007, however, you had lost that job and it is clear you had begun using methamphetamine.    I accept that you had not used methamphetamine before you arrived in New Zealand and it is likely that your use of cannabis here introduced you to associates who were also using that drug.    You have been subject to bouts of depression and I suspect that you have used both cannabis and methamphetamine as a form of self-medication in relation to your depressed moods.

[24]     It is clear that the present importation of methamphetamine may not have been the only occasion on which you had imported methamphetamine from South Africa.     You told the psychiatrist that the quality of methamphetamine in New Zealand was not good, and that you had arranged to obtain shipments of methamphetamine from South Africa.   You found that the quality of these was not as good as you had expected and you came to believe that some of your associates may have been intercepting the shipments and removing some of the methamphetamine and replacing it with a substance of lesser quality.

[25]     You also came under great pressure from your associates, who no doubt wished to maximise the extent to which they could use you to obtain methamphetamine for themselves.    This pressure led you, in December 2006, to undertake a serious attempt at suicide.   This was unsuccessful and you were treated, albeit briefly at the time, for the underlying causes of your depression.

[26]     The incident that occurred in February 2007 shows, however, that you were still prepared to import methamphetamine notwithstanding the trouble it was obviously causing you.

[27]     You are very fortunate that you have strong support from your family.   You have a sister who has given you great support in the past and your parents have indicated that  they are prepared to  come  to  New  Zealand  once  you  have  been

sentenced.   It is likely that you will be deported on the completion of your sentence. You  told  your  psychiatrist  that  you  hold  more  fear  about  going  back  to  South African than you do about the prospect of spending time in a New Zealand prison.

[28]     All of these factors indicate to me that you have deep-seated issues that have probably led to your becoming involved with methamphetamine.   The situation was exacerbated by the associates with whom you have mixed in New Zealand.   In the end, however, you made the choice to import the methamphetamine, both for your own use and to provide you with a means of living.

[29]     I am satisfied, however, that there are significant mitigating factors here, over and above the guilty pleas and the lack of previous convictions.    The Crown also accepts that this is the case.   For this reason I propose to give you a discount of three years six months.

Sentence

[30]     Mr Van Der Merwe, on the lead charge of importing methamphetamine you are sentenced to three years six months imprisonment.

[31]     On the charge of being in possession of methamphetamine for supply you are sentenced to 18 months imprisonment.

[32]     Those sentences are to be served concurrently with each other.

[33]     In addition, I make an order that the sum of $2,130 that was found in your car is forfeit.   I also make an order for the destruction of the methamphetamine that the New Zealand Customs Service seized from within the video cassettes.

Lang J