The Queen v Murray Christopher Orchard
[2001] NZCA 237
•28 August 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 162/01 |
THE QUEEN
V
MURRAY CHRISTOPHER ORCHARD
| Hearing: | 28 August 2001 |
| Coram: | Richardson P Heron J Chambers J |
| Appearances: | T Fournier for Appellant J C Pike for Crown |
| Judgment: | 28 August 2001 |
| JUDGMENT OF THE COURT DELIVERED BY HERON J |
Following a verdict of guilty by a Christchurch jury, this is an appeal against a resulting sentence of two years three months on a charge that on 20 June 2000, in Christchurch, the appellant had in his possession a class B controlled drug namely morphine for the purposes of supply. A second count of possession of a pre-cursor substance namely acetic anhydride with intent to use it for the commission of an offence of producing or manufacturing controlled drugs, to which he pleaded guilty earned him a concurrent sentence of four months. A cannabis possession charge of one month cumulative brought the combined sentence up to one of two years four months.
At the trial on 11 May 2001 he was charged that he was in possession of nine morphine sulphate tablets, five 30 milligrams and four 60 milligrams. The jury rejected a defence that the morphine sulphate tablets found in his motor vehicle were for his own use. The Judge considered that the combined worth of both grades of tablet was $650. The Judge referred to the significant problem in Christchurch in relation to the illicit sale and distribution of morphine sulphate tablets.
The appellant is a 37 year old man who had been on a sickness benefit for the last six years. He has complained to his doctor that codeine phosphate was not sufficient to offset his arthritic pain and resorting to morphine claimed that his daily rate was approximately 15-20 mls of morphine sulphate each day for six months in 2000. He had however not referred this matter to his doctor or the rheumatologist assigned to him. He apparently is receiving codeine phosphate at a higher level than previously as a result of representations made.
He has convictions for drug offending, cultivating cannabis and possession of cannabis and other minor convictions.
The appellant complains of a relatively severe degree of rheumatoid arthritis and difficulties with other pain killing drugs. He has difficulty in relaxing or undergoing any form of work or sport. When searched he was found to have $785 in his possession and the Judge was satisfied that the money was related to drug dealing activities. He thought that he was a dealer at a much lower level than some offenders that he had dealt with. The Judge said:
The Court of Appeal said in Wallace that in relation to smaller operations there must necessarily be a broad category so as to enable sentencing Judges to reflect the many varied circumstances which can arise.
You are aged thirty-seven. You have not before been sentenced to imprisonment despite the fact that you have appeared on four occasions in relation to cannabis offences.
I take into account the submissions made on your behalf by Mr Fournier. He has emphasised that you have now completed eight counselling sessions at the Bridge Programme. I note, however, that you commenced your involvement in the Bridge Programme at the end of January this year. You were, of course, arrested on 20 June last year and you were subsequently on bail in respect of the charges. There is more than a suspicion in my mind that as the date for your trial grew closer you thought that it might be appropriate to engage in this particular programme. However, you are entitled to some credit for the fact that you completed the eight counselling sessions which meant that you were then discharged from the programme.
I have, of course, read and considered the pre-sentence report. There is reference in that report to your rheumatoid condition. Also in the quite lengthy letter which you have written, which was handed to me literally a minute or two before I came into Court, you have dwelt at some length on this particular condition and the medication that you have been prescribed. Your specialist, Dr Chapman, gave evidence on your behalf during the course of the trial. It became clear from his evidence that he had prescribed, amongst other medication, Codeine Phosphate tablets for pain management. There is reference in your letter to anti-inflammatory tablets as well. What emerged from the doctor’s evidence was that you had not disclosed to him that you had allegedly begun taking Morphine Sulphate tablets for pain management. He was not made aware of the fact that you had gone outside the regime of medication that he was prescribing and had started to self-medicate with Morphine Sulphate.
Quite frankly, Orchard, I have some difficulty in accepting that any of these nine tablets or other tablets, ie, Morphine Sulphate tablets, that you claimed you had been using for the period of four to five months prior to your arrest were for your own use over and above the medication that you were prescribed. However, the Court must proceed with sentencing only on the basis of the proved offending. That is confined to the tablets found in your possession on 20 June.
At the heart of this appeal is the Judge’s conclusion that he found difficult in accepting that any of the nine tablets were for his own use. The jury were correctly told that if he had even one tablet for supply, he would be guilty of the charge as laid. The appellant says that in view of the arthritis and in view of the pain experienced by the appellant, the starting point of two years for such a small number of tablets would have been appropriate, with some reduction further for the rehabilitation efforts that he had made. Counsel at sentencing had referred to a Bridge Programme report but did not have it in his possession at the time.
The prognosis by way of a conclusion to the report suggested it was abuse and not dependence that was the nature of the appellant’s drug problem, and that he should be referred to a pain management clinic to address other options rather than using illicit drugs to address the pain that he suffered. It was suggested that a failure to follow through his drug abuse at the present time could progress into drug dependency.
The Judge chose a starting point of two years and three months imprisonment and noted that there of course could be no credit for a plea of guilty. In essence, Mr Fournier says that a lower starting point, say two years, should have been given, and further reduction for some effort made for what he had done at the Bridge programme. We do not see a great deal of positive material in the Bridge programme report, but to his credit he has attended that. In a discharge summary however, his attitude to the program was described as “very good, willing to work and help himself, excellent”. The Judge thought that some of that may well have been with one eye on sentencing as mentioned above.
We think the sentence was obviously in the range available in terms of R v Wallace [1999] 3 NZLR 159, and that it cannot be shown that it was manifestly excessive. We do not consider the Judge was in any way distracted by the reference he made to more serious cases as claimed by the appellant. His starting point clearly indicated that those cases played no part in his reasoning. A difference of three months argued for as a starting point is largely inconsequential. In sentencing, the Judge had to reflect the offending in relation to the presence of a precursor substance. This substance, carrying as it does, the ability to convert morphine into heroin adds a further serious element to the offending.
The appeal is accordingly dismissed.
Solicitors
Crown Law Office, Wellington
0
0
0