THE QUEEN v DEEJAY O'DOWD [2002] NZCA 11 (26 February 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca31/02

THE QUEEN

V

DEEJAY O'DOWD

Hearing:	26 February 2002
Coram:	Anderson J
	Baragwanath J Potter J
Appearances:	J W Clearwater for Appellant A J F Perkins for Crown
Judgment:	26 February 2002

judgment of the court DELIVERED BY POTTER J

[1] Deejay O'Dowd appeals against a sentence of 8 months imprisonment imposed on him by the High Court on 5 February 2002.Leave was granted to apply for home detention.

[2] Mr O'Dowd pleaded guilty to two charges of importing a Class A controlled drug and importing a Class B controlled drug.The drugs involved were 6 Ecstasy tablets contained in a parcel intercepted through the postal system on 30 October 2001 and LSD in relation to which the New Zealand Customs Service found email correspondence on his computer after it had been seized from his home address. Mr O'Dowd says the number of LSD tablets imported was ten.

[3] The appellant is aged 29 years.The sentencing Judge acknowledged that Mr O'Dowd was entitled to credit for his early guilty pleas.He noted that the quantities were small and that the principal charge related to the importing of Ecstasy.The details in relation to the importation of the Class A drug LSD were sketchy, although normally a longer sentence for importing a Class A drug such as LSD could be expected.He noted that personal circumstances have a very small part to play in cases of importing Class A or Class B drugs and he was not therefore prepared to consider suspending any term of imprisonment imposed.

[4] Counsel for the appellant focused on a suggestion in the sentencing notes that the appellant may have intended to sell or supply the imported drugs to another person, whereas the appellant contends they were purely for his own use.

[5] Given the appellant's advice to the Probation Officer that he had never used LSD, and his assessment that had he bought the same quantities of these drugs locally it would have cost $880, whereas he paid STG£150 to import them (approximately half as much), it is perhaps not surprising that the Judge suggested the possibility of or potential for sale for profit.But that does not appear to have been any or a significant factor in the Judge's reasoning. Rather he stated at para [7] -

To your credit are the early pleas of guilty, the fact that you say these drugs were for your personal use only and of course the fact that you have no previous convictions.

[6] The Judge referred to R v Jarman (S.428/99, High Court Wanganui, 23 March 1999, Doogue J) and R v Black (CA.68/83, 17 June 1983) cited by counsel for the appellant as instances where a sentence of 7 months was suspended, and a lesser term of imprisonment (6 months), was imposed, for importation offences at the lower end of the scale.

[7] Importing drugs is a serious offence which calls for a deterrent sentence. The prevalence of drugs use in the community, the opportunity to source Class A and Class B drugs from overseas at significantly lower cost than they can be purchased locally, and the availability of E-commerce to facilitate their importation, all confirm the need for deterrence in sentencing.Suspension of a term of imprisonment such as adopted in Jarman in circumstances similar to those in the present case, will rarely be an option when the Courts have clearly recognised that sentences should be deterrent.

[8] Here there were two distinct importations - one involving a Class A drug which the Judge specifically treated leniently because of the sketchy information in relation to the importation and the quantity involved.We consider that the 8 months term of imprisonment imposed was not clearly excessive to the extent it should be disturbed on appeal.

[9] The appeal will accordingly be dismissed.

Solicitors

J W Clearwater, Takapuna for Appellant

Crown Solicitor, Auckland