THE QUEEN v DAVID JOHN BLAIKIE [2001] NZCA 272 (25 October 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 267/01

THE QUEEN

V

DAVID JOHN BLAIKIE

Hearing:	25 October 2001
Coram:	Richardson P John Hansen J Goddard J
Appearances:	C P Comeskey for Appellant F E Guy for Crown
Judgment:	25 October 2001

judgment of the court delivered by RICHARDSON P

[1] David John Blaikie appeals against a sentence of 2 years 10 months imprisonment imposed in the District Court following conviction on a count of possession for supply of methamphetamine, a Class B controlled drug.He stood trial with one, Justin Clifford Higgins, on a number of drug charges. Mr Higgins was discharged under s347 of the Crimes Act 1961 on the charges against him and Mr Blaikie was likewise discharged on one count, acquitted on seven and found guilty on one charge.

[2] The police intercepted telephone conversations by listening devices placed pursuant to warrant in mid 1999, including a number of conversations between Mr Blaikie and one, Rokas Karpavicius, in relation to the obtaining of methamphetamine, culminating in telephone discussions on the evening of 12 August 1999.In the first of those conversations Mr Blaikie received a call from Mr Karpavicius in which Mr Karpavicius asked, "did you get anything?" and Mr Blaikie replied, "yep".The two arranged to meet later that evening.During the second conversation before the meeting took place, Mr Blaikie said to Mr Karpavicius, "I'll give you those forms and things".They had arranged to meet at Point Chevalier and did so outside a cafe there, where they were apprehended by the police and searched.

[3] Mr Karpavicius was holding immigration sponsorship forms and associated material, consistent with what had been said in the second conversation.Mr Blaikie was found to be in possession of two bags of white powder which, on analysis, was methamphetamine and weighed 56.2 grams, which is above the presumption in respect of possession for supply.The drug was parcelled in two one ounce bags.There was evidence at trial that one ounce of methamphetamine would have a street value between $2,000 and $4,000 and so for the quantity found in Mr Blaikie's possession, the value was between $4,000 and $8,000.

[4] Mr Blaikie, aged 38, had a conviction in 1996 for receiving property and earlier dishonesty convictions in 1991.His only prior conviction for a drug related offence was in respect of possession of cannabis plant in 1986. The pre-sentence report recorded Mr Blaikie as stating that he first used methamphetamine about 10 years ago and had not used drugs for the past two years.In her sentencing judgment, the Judge identified two relevant principles as emerging from R v Wallace and Christie (1999) 16 CRNZ 443.The first was that, in principle, circumstances are relegated in importance to the clear need to deter dealing in drugs;and, second, that only in special circumstances would a non-custodial sentence be justifiable, the Judge adding that Mr Blaikie's counsel did not argue for a non-custodial sentence.

[5] The Crown had submitted that for this offending with commercial overtones, a sentence of 3 years imprisonment would be appropriate.The Judge concluded that the case came within the category identified in Wallace and Christie as a smaller operation but representing commercial dealing with a starting point of up to 5 years.The Judge also referred to three other methamphetamine cases in this court:Vitali (CA 212/84, judgment 30 November 1984) - 2 grams - 6 months imprisonment;McLean (CA 283/98, judgment 3 December 1998) - 14 grams - 19 months imprisonment, allowing for guilty plea;Ratana (CA 44/96, judgment 26 August 1996) - 9 months imprisonment for what was described as 7 to 12 grams.The Judge noted that the 56 grams of methamphetamine in the present case was well above the amounts involved in those cases.

[6] We pause to note that Ratana, on which, on the argument of the appeal, Mr Comeskey put some weight, was a very different case from the present.The Judge in that case accepted there was no evidence to show that money had changed hands and was prepared to sentence on the assumption that it did not do so.Mr Ratana, who had a substantial earlier record of drug offending, had taken active steps to put that totally behind him, had generally expressed remorse for his conduct and the disgrace he had brought on himself and his family, and was willing to accept counselling.More importantly, there had been a three year delay between charge and arraignment and Mr Ratana had pleaded guilty on arraignment.He had been on bail virtually throughout the three year period and following the imposition by the sentencing Judge of a sentence of imprisonment he had been on bail under restrictive curfew and reporting terms for 6 months up to the date of hearing of the appeal.It is against that background that the court fixed the appropriate term as 9 months imprisonment.

[7] In the present case, the Judge concluded that 3 years was the appropriate sentence for the offending but was prepared to reduce that sentence slightly, presumably as relating to Mr Blaikie's limited previous offending and its nature, and to Mr Blaikie's personal circumstances.He was in a stable relationship and, aged 38, he had limited assets, not indicative of any drug dealing.

[8] Mr Comeskey submitted that the sentence of 3 years imprisonment was manifestly excessive and drew attention to various observations made by the sentencing Judge which counsel submitted were not justified by the evidence and other matters before the Judge.He submitted that a 2 year sentence would be appropriate.Clearly there are some infelicities and minor errors in the Judge's sentencing notes but, having considered Mr Comeskey's careful submissions, we are satisfied that for this offending with this quantity of this drug that 2 years 10 months was an appropriate sentence meeting the deterrent purposes of offending, which are so important in this class of case.

[9] The appeal is dismissed.

Solicitors

Crown Law Office, Wellington