The King v Philip John Polkinghorne
[2024] NZHC 3225
•1 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-004-5457
[2024] NZHC 3225
THE KING v
PHILIP JOHN POLKINGHORNE
Hearing: 1 November 2024 Appearances:
A M McClintock and P J McNabb for Crown
R M Mansfield KC, H R Smith and H Stuart for Defendant
Sentence:
1 November 2024
SENTENCING REMARKS OF LANG J
Solicitors/counsel:
Meredith Connell, Office of the Crown Solicitor, Auckland R M Mansfield KC/H R Smith/H Stuart, Auckland
R v POLKINGHORNE [2024] NZHC 3225 [1 November 2024]
[1] Dr Polkinghorne, you appear for sentence having pleaded guilty to charges of being in possession of methamphetamine1 and being in possession of methamphetamine utensils.2 The maximum penalty on the charge of being in possession of methamphetamine is six months imprisonment and/or a fine not exceeding $1,000,3 whilst the maximum penalty for being in possession of utensils is 12 months imprisonment and/or a fine not exceeding $500.4
[2] The charges were laid as a result of items that the police found when they searched your home address during their investigation into the death of your wife, Ms Pauline Hanna. This occurred in the early hours of 5 April 2021. You were charged with the murder of your wife but the jury acquitted you at the end of a lengthy jury trial. You pleaded guilty to the present charges at the commencement of your trial.
[3]The police found the following items when they searched your house:
(a)A plastic container that contained 18 grams of methamphetamine. This was found in a drawer in the bathroom adjacent to the main bedroom of the address. In the same drawer were toiletries and medication that had been prescribed for you.
(b)A plastic container that contained 2.9 grams of methamphetamine. This was found in a desk drawer in the office area of the residence.
(c)A small plastic specimen jar containing 16.8 grams of methamphetamine. This was found in a bedside drawer in the master bedroom.
(d)A plastic “point” bag containing traces of methamphetamine. This was found in the bathroom adjacent to the master bedroom after the police had permitted you to use the shower in that bathroom on 5 April 2021.
1 Misuse of Drugs Act 1975, s 7(1)(a).
2 Section 13(1)(a).
3 Section 7(2)(a).
4 Section 13(3).
(e)A butane lighter and methamphetamine pipe that was found in a box under the bed in the master bedroom. You told the police you had slept in that bed on the night of 4/5 April 2021.
[4] The methamphetamine was subsequently tested and found to have a purity of 79 to 80 per cent.
Starting point
[5] There is no tariff or guideline judgment to provide assistance in relation to the starting point to be selected for the sentences I am required to impose. This is because offending of this type can occur in many different ways.
[6] The most significant aggravating factor in the present case is the quantity of drugs that was found in your possession. In total, the police found 37.7 grams of methamphetamine at your address. This was sufficient to provide approximately 370 doses of the drug. Ordinarily .1 of a gram of methamphetamine sells at street level for around $100. The evidence at trial suggested, however, that the methamphetamine at the house had been acquired for approximately $13,000. Your counsel submits that this reflects the fact that you had the financial means to purchase the drug in bulk and thereby at a cheaper price.
[7] The pre-sentence report records that you told the writer of the report that you were a recreational user of methamphetamine and that your wife had acquired the methamphetamine found at your address. I do not accept the latter assertion. There was no evidence at trial to suggest your wife ever used methamphetamine or that she had any detailed knowledge of it. Internet searches that she undertook during the period leading up to her death suggested to the contrary. By virtue of your pleas, I am satisfied you were the owner and the purchaser of the methamphetamine the police found at your address, together with the pipe and lighter.
[8] The seriousness of the offending is reflected in the fact that the Misuse of Drugs Act 1975 provides that a person who is found in possession of five grams of methamphetamine or more is presumed to have that drug in their possession for the
purpose of supply until the contrary is proved.5 The police could therefore have charged you with being in possession of the methamphetamine for the purpose of supply. The onus would then have been upon you to prove that the methamphetamine was all for your own use and that none of it was destined to be sold or given to others. However, the police plainly accepted that you had all the methamphetamine for your own use and therefore elected to lay the lesser charge of simple possession.
[9] It is not possible to determine the extent to which you were using methamphetamine as at April 2021 and, indeed, it is not necessary to undertake that exercise for present purposes. However, the amount that you acquired gives some indication that you must have been using it on a reasonably regular basis. I consider it unlikely that, as you told the writer of the pre-sentence report, you had used the drug between five and 10 times in your life.
[10] In this context a telling factor is the evidence given at trial by Dr Susan Ormonde, the Clinical Director of the clinic where you were working at the time of the offending. She gave evidence that she and her husband invited you to have lunch with them on 14 April 2021, the day before your wife’s funeral. During lunch, you disclosed to them that the police investigation was likely to reveal that you had been using methamphetamine. You also asked them whether they had ever used methamphetamine. When they said they had not, you told them that they should. This goes a considerable way towards explaining your attitude towards methamphetamine at this time. I note also that you told the writer of the pre-sentence report that you did not consider your use of the drug to be problematic.
[11] In your favour, however, I accept that there is no evidence to suggest that your consumption of methamphetamine ever affected the intricate work that you carried out as a retinal eye surgeon. All your work colleagues who gave evidence at the trial spoke highly of your professional abilities. None had cause to suspect that you were consuming methamphetamine during the period leading up to April 2021. This supports your explanation that you only consumed methamphetamine during holidays and at weekends when it would not affect your professional life.
5 Misuse of Drugs Act, ss 2(1A) and 6(6).
[12] Your counsel suggests that the matter should be dealt with by way of a fine in the region of $650. As I have already observed, the maximum fine that can be imposed is $1,000. However, I am satisfied that, given your healthy financial situation, a fine would have no deterrent effect at all and would not be sufficient to hold you properly accountable for your offending.
[13] Your counsel has provided me with a sentencing decision of my own in a case called R v Hakaraia.6 In that case the offender had pleaded guilty to being in possession of approximately 45 grams of cocaine. He had originally been charged with being in possession of that drug for the purpose of supply. At the end of the Crown case, however, the Crown amended the charge to one of simple possession and he immediately entered a guilty plea. As your counsel points out, several of the other circumstances in that case are similar to those in your case. In that case, the Crown supported the imposition of a fine and I considered this was the appropriate outcome. I therefore fined the offender the sum of $1,000.
[14] I do not consider that to be an appropriate outcome in your case. First, you did not enter your pleas until the commencement of the trial. Secondly, I consider you have endeavoured to minimise your involvement in the possession of methamphetamine by bringing your wife into the equation.
[15] I note, however, that you have been undergoing drug tests since 2021 and all of these have returned negative results. You also told the writer of the probation report that you had no intention of ever again using the drug methamphetamine.
[16] You are obviously entitled to credit for your guilty pleas, even though they came at a very late stage. I also accept that you are entitled to credit for the services you have provided to your patients in the community over many years in your capacity as an eye surgeon. Evidence at trial confirmed that, on occasions when patients could not afford to pay for your services, you provided them for free.
[17] Taking the amount of methamphetamine found in your possession into consideration, I consider that a sentence of community work is appropriate as
6 R v Hakaraia [2020] NZHC 2577.
submitted by the Crown. It is necessary in this context to impose a sentence that holds you accountable to the community for your offending. A sentence of community work is also appropriate having regard to your character and personal history.7 The pre- sentence report also confirms that you are a suitable candidate for a community-based sentence. It also observes that it is highly unlikely that you will ever come before the Courts again.
[18] Given the aggravating factors of the offending, I consider a starting point of 200 hours community work to be justified. Taking into account the mitigating factors I have identified, I consider that should be reduced by 25 per cent or 50 hours.
Sentence
[19]So, if you would now stand Dr Polkinghorne.
[20] On the charge of being in possession of methamphetamine you are sentenced to 150 hours community work. On the charge of being in possession of utensils you are convicted and discharged.
Lang J
7 Sentencing Act 2002, s 56(1)(a).
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