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Court of Appeal of New Zealand |
Last Updated: 11 November 2019
FOR A COURT READY (FEE REQUIRED) VERSION PLEASE FOLLOW THIS LINK
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CA715/2015
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BETWEEN |
STEPHEN MACRIS Appellant |
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AND |
THE QUEEN Respondent |
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Hearing: |
22 February 2018 |
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Court: |
Winkelmann, Asher and Williams JJ |
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Counsel: |
I R Murray and S L Graham for the Crown E A Hall for Mr Ingram K R Smith for Mr Macris |
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Judgment: |
13 July 2018 at 3.00 pm |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams
J)
Table of Contents
[1] These are sentence appeals.[1] Messrs Ingram and Macris were convicted for their part in the manufacture of 289 grams of MDA, a class A analogue of the class B drug MDMA. Both MDA and MDMA can be referred to as ecstasy. At sentencing their respective sentencing Judges adopted sharply different starting points. The difference is primarily attributable to their disagreement on the question of whether the guideline judgment in R v Fatu, in relation to the importation, manufacture and supply of methamphetamine, also controls starting points for other class A drugs — in this case, MDA.[2] Judge Ongley said it did and set Mr Macris’ starting point at 11 years’ imprisonment. Judge Barry said it did not and set Mr Ingram’s starting point at eight years’ imprisonment. The Solicitor-General seeks leave to appeal against Mr Ingram’s sentence and Mr Macris appeals against his.[3] Though we are also required to address other challenges by the Crown to the way Judge Barry constructed Mr Ingram’s sentence, the essential issue is which Judge was right on the starting point.
[2] The Solicitor-General requires leave to appeal. The matters raised in this appeal are important issues of principle and we consider it entirely appropriate to grant leave in this case.
[3] Mr Ingram and Mr Macris rented two industrial premises in Wellington. At one of them they purported to establish a legitimate cover business manufacturing hangover-cure supplements. At the other they commenced manufacturing
2-amino-1-(3,4‑methylenedioxyphenyl) propane which is an amphetamine derivative otherwise known as MDA. MDA is chemically closely related to the amphetamine family to which methamphetamine belongs. It is a member of the empathogen group of compounds generally known as ecstasy. It is the class A analogue of the more widely available 2-methylamino-1‑(3,4‑methylenedioxyphenyl) propane, or MDMA. The latter is a class B empathogen.
[4] Mr Ingram had studied chemistry and pharmacology. He planned the manufacturing process and sourced the pre-cursor substances, equipment and materials necessary to execute it. Mr Macris studied accounting. He was responsible for finance, “risk mitigation” and providing general assistance with the “details” of this joint undertaking.
[5] After completing a manufacture at the second rented premises, Mr Macris took a sealed plastic bag to Mr Ingram. It contained 124 grams of MDA. The manufacture site was then cleaned, the disposable items were taken to a landfill and any reusable equipment was stored elsewhere including at the legitimate manufacturing cover site. Following a search of that site, a further 166 grams of powder containing MDA was found on the floor around a broken glass baking dish. The combined weight of the substance containing MDA — that is of the substance in the plastic bag and that found around the glass dish — was 289 grams or, what was suggested by Detective Sergeant Campbell to be, approximately 3600 doses of MDA on an 80 milligram dosage basis. Subsequent testing demonstrated it contained 41 per cent MDA.
[6] Mr Macris was charged with manufacturing and possessing MDA for supply. He was also charged with conspiring to manufacture and supply MDA. He pleaded guilty to all charges.
[7] Mr Ingram faced eight charges, they comprised the four faced by Mr Macris and four additional charges of possession of precursors, equipment, material for the manufacture and a further manufacturing charge in relation to the first rented premises. These reflected his separate role as the chemist. He was found guilty of all charges by a jury following trial.
[8] Judge Ongley applied Fatu.[4] He located the offending at the upper end of band two (manufacturing up to 250 grams — starting points of four to 11 years’ imprisonment) and the lower end of band three (manufacturing 250–500 grams — starting point of ten to 15 years’ imprisonment).[5] The Judge considered it was not appropriate to draw any distinction between class A drugs. The Judge acknowledged that there was no scientific evidence of purity (at that stage) but accepted that in the absence of contrary evidence it could be assumed that purity was comparable to the benchmark 60 per cent adopted in relation to methamphetamine in Fatu.[6]
[9] The Judge therefore adopted a starting point of 11 years’ imprisonment.[7] He allowed discounts of 40 per cent for significant assistance to the police, five per cent for remorse, five per cent for previous good character and 10 per cent for guilty plea.[8] This resulted in a final sentence of four years and 11 months’ imprisonment for the lead offence of manufacturing and concurrent sentences of four years’ imprisonment on the other three charges. An order was also made for forfeiture of $1,910 found in Mr Macris’ possession at the time of arrest.
[10] Judge Barry sentenced Mr Ingram after the sentencing of Mr Macris because Mr Ingram took the matter to trial. Judge Barry considered that Judge Ongley’s approach to assessing the starting point in relation to the sentencing of Mr Macris was incorrect.[9] Judge Barry took the view that Fatu did not apply, relying in that regard primarily on the comment in Fatu that the guidelines were intended only to apply to methamphetamine offending and that earlier appellate authorities would continue to guide sentencing for other class A offending.[10] The Judge acknowledged that he had no evidence of MDA’s relative potential to cause harm compared to that of methamphetamine or MDMA.[11] But he noted the summary of facts which distinguished between MDA as a euphoric drug and methamphetamine which was referred to as a pure stimulant.[12] The Judge concluded that “on balance MDA must fall somewhere between the methamphetamine and the MDMA type of ecstasy”.[13] In addition the Judge noted that laboratory results (which had only become available since the time of Mr Macris’ sentencing) demonstrated a purity of 41 per cent.[14] This provided a further basis for “diminution of culpability” in light of the Fatu banding presumptions of 60–80 per cent purity.[15]
[11] On considering all of these factors, Judge Barry contended that MDA should not be treated on the same basis as methamphetamine.[16] Instead he considered R v Martin, a pre-Fatu case involving the manufacture of MDA, MDMA and trimethoxyamphetamine in particularly large quantities and the guideline judgment of this Court in R v Wallace in relation to class B manufacture and supply.[17] The Judge identified the three bands set out in Wallace and the characteristics of offending that correlated with each band.[18] The Judge then noted that Martin provided an upper-level guide.[19] In that case a starting point of 11–12 years’ imprisonment was adopted for large scale sophisticated ongoing manufacture in which a minimum of 1.5 kilograms of MDA and MDMA was capable of being manufactured. The present case, the Judge considered, was less serious than Martin and the product was at a low level of purity.[20] The Judge concluded:[21]
On what must to some extent be an intuitive basis and steering between R v Martin and R v Wallace and Christie, I pitch its seriousness as warranting a starting point of eight years’ imprisonment.
[12] The Judge then allowed a 10 per cent discount for lack of prior offending, and for the effect of the offending on Mr Ingram’s overall circumstances and his medical condition.[22] This led to an end sentence of seven years and two months’ imprisonment.
[13] The Crown submitted in support of its appeal that, in sentencing Mr Ingram, Judge Barry was required to adopt a starting point broadly consistent with that set out in Fatu. That is, given Mr Ingram’s greater role as the “chemist” a starting point one year higher than that applied to Mr Macris, at 12 years’ imprisonment, could have been justified. In any event, it should not have been lower than that applied to Mr Macris by Judge Ongley.
[14] The Crown’s primary argument was classification of MDA as a class A drug conclusively resolved the question of the risk that drug posed to “individuals and society”. Parliament, by this means, had declared the relevant risk to be “very high”. This prevented sentencing courts from undertaking their own assessment of the relative risk of harm associated with different drugs within that class. Further, the Crown submitted, since the enactment of the Misuse of Drugs Act 1975 (MODA) and similar measures in other jurisdictions, the courts in Canada, the United Kingdom and, since Fatu, New Zealand, have eschewed delving into intra-class harm comparisons.
[15] Secondly, the Crown argued that the Judge erred in adopting a starting point that was expressly anchored to class B penalty levels established by this Court in R v Wallace. The practical effect of this was said to create a sub-class of drug located somewhere between class A and class B. This, it was submitted, was inconsistent with binding authority, wrong in law, and in any event was a course unavailable on the evidence.
[16] Taking these points together the Crown submitted these errors produced a manifestly inadequate sentence. The eight-year starting point adopted for Mr Ingram set the offending in the middle of band 2 of Fatu (25–250 grams) or about 140 grams.[23] Even acknowledging the lower level of purity found in this case (41 per cent) compared to the Fatu standard of at least 60 per cent, the Crown argued that the sentence was unrealistically low. The Crown developed that argument in two ways: first, unlike methamphetamine which is sold “pure” following manufacture, MDA (and MDMA) is routinely combined with other ingredients and pressed into 80 milligram tablets. Purity is therefore not such an important factor in the way the drug is retailed. Second, on a dosage basis, Detective Sergeant Campbell suggested that the MDA was to be sold as 80 milligram capsules. 289 grams would produce about 3,613 capsules. The same quantity of methamphetamine would produce 2,890 point bags (each a tenth of a gram). On a dosage basis, there was therefore a rough equivalence with, if anything, the MDA quantum being slightly higher.
[17] Finally, the Crown argued a 10 per cent discount for good character, family support, remorse and health issues (chronic back pain and addiction) was too high. There was no justification for a remorse discount in light of the not guilty plea and the appeal which originally challenged his conviction; there is no basis in principle for the proposition that family support should give rise to a discount; and chronic back pain and addiction are not factors that would make imprisonment more difficult than the ordinary run of cases. The only principled basis for a discount in Mr Ingram’s case was his previous unblemished record and in that regard a maximum five per cent discount is all that could be justified.
[18] Ms Hall for Mr Ingram submitted that the sentence imposed by Judge Barry was appropriate in the circumstances and the Judge was correct to decline to apply Fatu. Ms Hall submitted that Fatu is limited to methamphetamine offending and that other appellate authorities continue to guide sentencing for offending involving non‑methamphetamine class A drugs. These authorities, albeit with some exceptions, overall suggest that it is appropriate to distinguish between class A drugs depending on their relative perniciousness. Expert evidence tendered by Ms Hall suggested that there are “important differences” between methamphetamine and MDA that could justify lesser sentences for MDA offending.
[19] Mr Smith for Mr Macris submitted that the starting point adopted by Judge Ongley should have been lower both for the reasons articulated by Ms Hall and the requirement of parity in sentencing co-offenders.
Differentiation between drugs in the same class: a summary of our view
[20] We are unable to agree with the Crown’s primary submission that sentencing courts may not make individualised assessments of the comparative harm caused by drugs within the same class. First, as a matter of statutory interpretation the Sentencing Act 2002 is not displaced by MODA’s classification and sentencing courts must, where the evidence justifies it, make comparative harm assessments. Second, the extensive case law in New Zealand touching on this question does not support the proposition that sentencing courts may not differentiate between drugs in the same class. Third, the evidence provided by the parties on the question of relative harm demonstrates that MDA is less harmful than methamphetamine but more harmful than MDMA. Finally, we conclude the Sentencing Act provides that this evidence may not be ignored, although its impact on starting points is necessarily constrained by the MODA classification.
[21] We turn now to why we have reached these conclusions.
[22] MODA controls importation, manufacture, supply and/or sale of controlled drugs.[24] These drugs are “specified or described” in one or other of the three schedules to MODA although a controlled drug is also any analogue of a drug so specified or described.[25] Section 3A provides for the classification of controlled drugs into one of three classes based essentially on the danger the drug is thought to pose:
3A Classification of drugs
The classification of a drug under this Act is based on the risk of harm the drug poses to individuals, or to society, by its misuse; and accordingly—
(a) drugs that pose a very high risk of harm are classified as Class A drugs; and
(b) drugs that pose a high risk of harm are classified as Class B drugs; and
(c) drugs that pose a moderate risk of harm are classified as Class C drugs.
[23] Schedule 1 contains the list of class A controlled drugs of which there are 36. Schedule 2 contains class B controlled drugs and sch 3 contains class C controlled drugs.
[24] By the terms of s 6(1), the importation or manufacture of any controlled drug, the supply of any class A or B controlled drug and the supply or sale of any class C drug, is unlawful.[26] Possession for any of the foregoing purposes is also unlawful.[27] The potential penalties are harsh: life imprisonment in the case of class A offending with a presumption in favour of imprisonment; 14 years’ imprisonment for class B;[28] and eight years’ imprisonment in any other case.[29] In addition, conspiracy to commit the foregoing offences renders the conspirator liable to sentences of 14 years’ imprisonment for class A, 10 years’ imprisonment for class B and seven years’ imprisonment in any other case.[30]
[25] MDA is contained in cl 1 of sch 1 as 2-amino-1‑(3,4‑methylenedioxyphenyl) propane. It is therefore a class A drug. It has been a class A drug since the enactment of MODA. Methamphetamine is also referred to in sch 1 by its chemical descriptor: 2-methylamino-1-phenylpropane. It was added to sch 1 in 2003 by order in council pursuant to ss 4(1)(a) and 4A MODA.[31]
[26] Since 2000 the Minister of Health (the Minister) has been required to appoint and maintain an Expert Advisory Committee on Drugs (EACD) to advise him or her on drug classification matters.[32] The Committee’s functions are as follows:
5AA Expert Advisory Committee on Drugs
...
(2) The functions of the Committee are—
(a) to carry out medical and scientific evaluations of controlled drugs, and any other narcotic or psychotropic substances, preparations, mixtures, or articles; and
(b) to make recommendations to the Minister about—
(i) whether and how controlled drugs or other substances, preparations, mixtures, or articles should be classified; and
(ii) the amount, level, or quantity at and over which any substance, preparation, mixture, or article that is a controlled drug (or is proposed to be classified as a controlled drug), and that is to be specified or described in clause 1 of Schedule 5, is to be presumed to be for supply; and
(iii) the level at and over which controlled drugs to which clause 2 of Schedule 5 applies are presumed to be for supply; and
(c) to increase public awareness of the Committee’s work, by (for instance) the timely release of papers, reports, and recommendations.
...
[27] To carry out these functions, s 5AA(3) directs that the Minister must appoint a multi-disciplinary committee comprising scientists, clinicians, police, public health and criminal justice officials as well as a representative of “the consumers of drug treatment services”.
[28] The EACD recommended in 2003 that methamphetamine be moved from sch 2 to sch 1. It has not assessed or classified MDA because, as we have said, MDA was classified as a class A drug from the outset.[33]
[29] Subject to s 5, the Sentencing Act applies to penalties for all offending including drug offending. It represented a major overhaul of the former sentencing regime. Unlike its predecessor, the Criminal Justice Act 1985, the Sentencing Act sets out the purposes of sentencing and the general principles to be applied by the courts in imposing a sentence including what matters are to be treated as aggravating or mitigating in relation to the gravity of the offence and the circumstances of the offender. The Sentencing Act contains the analytical framework with which courts are to decide how the penalties set out in s 6 of MODA are to be applied to the individual circumstances of particular offenders and specific offending.
[30] It is useful in the context of the issues arising in this case to identify those provisions that are particularly relevant.
[31] In relation to purposes, s 7(1)(a) provides that one of the purposes of sentencing is to hold the offender accountable for the harm done to the victim and the community by the offending. Section 7(1)(b) then provides that a further purpose is to promote in offenders a sense of responsibility for, and acknowledgement of, that harm. These matters are in addition to the purposes of denunciation, deterrence and community protection referred to elsewhere in s 7.[34]
[32] As to relevant principles, in s 8(a) it is said to be a principle of sentencing that courts must take account of the gravity of the offending in the particular case. Section 8(b) requires the court also to keep in mind the comparative seriousness of the offence category as reflected in relevant prescribed maximum penalties. Section 8(e) meanwhile requires that the court keep in mind the “general desirability of consistency” in the treatment of “similar offenders committing similar offences in similar circumstances”. In addition s 8(f), where relevant, requires the court to consider any information provided to it concerning the effect of the offending on “the victim”. Paragraph (ii) of the definition of victim in s 4 is relevant:[35] a person who suffers loss of property through drug related acquisitive crime or physical harm as a result of drug related violence is at least arguably a victim of the manufacture and/or importation at the beginning of the supply chain. Co-residents at a site of manufacture, particularly children, would also meet this description if the process of manufacture is dangerous or involves environmental health risks.
[33] Finally, s 9 refers specifically to mandatory relevant aggravating and mitigating factors in sentencing. Aggravating factors are set out in s 9(1). They include at s 9(1)(d), the extent of loss, damage or harm resulting from the offence.
[34] Both MODA and the Sentencing Act refer to harm as a core factor in the exercise of the respective discretions provided for in each statute. In MODA it is the risk of harm, whereas in the Sentencing Act, the focus is actual harm. When MDA was placed in class A, that represented a Parliamentary judgment about the level of risk of harm that drug poses to individuals or to society more generally. The same is true when, in 2003, an order in council was promulgated, commenced and affirmed by formal resolution of the House in accordance with the procedure set out in MODA,[36] moving methamphetamine from class B to class A. Meanwhile, at each level of the analytical framework set out in the Sentencing Act, harm is a prominent factor to be considered in the particular circumstances of individual sentencings. Harm assessment is an explicit purpose of sentencing,[37] and a matter which must be taken into account as an aspect of the principle of considering the gravity of the offending as well as the effect of the offending on victims.[38] It is also a standalone aggravating factor if quantifiable.[39]
[35] The essence of the Crown case is that Parliament has already made the necessary harm assessment by putting MDA in class A and it is not open to sentencing courts to embellish that judgment with their own assessment of comparative harm between drugs within that class.
[36] We do not agree that as a matter of statutory interpretation, MODA fulfils, through classification, the harm assessment requirements of the Sentencing Act in drug offending. It is true that MODA is specific to drug offending and the Sentencing Act is general in its application. But the Sentencing Act is a newer measure whose key innovation was to establish, for the first time in legislative form, a coherent analytical framework for sentencing. The harm assessment aspects of that framework are fundamental to the balance both conceptual and practical that ss 7, 8 and 9 provides. If the harm related provisions in the Sentencing Act were to have no application to drug offending, we would have expected the legislature to have said so explicitly either as an addendum to the framework itself or by amendment to MODA.
[37] Parliament was certainly aware of the relationship between the two Acts when the Sentencing Act was enacted 27 years after MODA. Sections 6(4) and 6(4A) of MODA demonstrate this. Section 6(4) provides a presumption of imprisonment for class A offending. It is expressly stated to apply “[n]otwithstanding anything in Part 1 or section 39 or section 81 of the Sentencing Act 2002.” Section 6(4A) requires the court to consider imposing a fine in addition to imprisonment in class A or class B offending. This requirement is said to apply “[w]ithout limiting anything in” the same sections of the Sentencing Act. In light of this, the fact that the two statutes occasionally cover the same ground, does not support an inference that Parliament intended the earlier specific to override the later general.
[38] That said, MODA does of course have a powerful effect on the discretion available to sentencing courts. Classification sets the sentence’s upper limit and, in doing so, signals the broad range within which sentences in that class should fall. Differentiation between drugs in the same class based on harm assessment is necessary where the evidence requires it, but the range is limited. This is confirmed by the direction in s 8(b) of the Sentencing Act that the court must keep in mind the seriousness signal inherent in the offence category itself. Similarly, s 8(e) requires the court to take account of the desirability of consistency in sentencing. In this way the MODA harm-based classification system and the case specific harm assessment provisions of the Sentencing Act may be readily reconciled.
[39] The approach of sentencing courts to the manufacture, importation and supply of controlled drugs should be no different to other offending categories which are graded by Parliament according to comparative seriousness. The various grades of assault in the Crimes Act 1961 is but one of many such categories. An assault charge may take the form of common assault (maximum one year imprisonment);[40] male assaults female or assault on a child (maximum two years’ imprisonment);[41] aggravated assault, or assault with intent to injure (maximum three years’ imprisonment);[42] and assault with a weapon (maximum five years’ imprisonment).[43] By varying available penalties, Parliament signals to sentencing courts that some forms of assault are more serious than others. An assault with a weapon carries the greatest penalty because it is seen most likely to risk significant harm, and most in need of a deterrence signal. But that does not mean that the starting point for assault with a weapon will not differentiate between attacking a victim with an axe handle and throwing a tennis ball at a victim.
[40] While the differences between the harm associated with class A drugs is unlikely to be as significant as the difference between an assault with an axe handle and a tennis ball, there is no reason in principle that sentencing courts should be alive to one set of differences but blind to the other.
Twenty-five years of jurisprudence
[41] We turn now to summarise the (primarily appellate) authorities that have touched on the issue of whether intra-class differentiation based on harm is appropriate as a matter of sentencing principle.
[42] Up until the end of 2005 when Fatu was decided in relation to methamphetamine sentencing, the orthodox approach in New Zealand, with at least one notable exception,[44] was to accept a measure of differentiation in sentencing for different drug offending within the same class. This was, and remains, different to the approach of the courts in England and Wales. After Fatu there has been some inconsistency. We conclude however, that viewed overall the cases have not rejected intra-class differentiation in New Zealand. And, since the enactment of the Sentencing Act, no court has addressed the impact of the relationship between that Act and MODA on this question.
[43] It is necessary to traverse the authorities in more detail than would generally be considered necessary in order to draw out the way in which judicial attitudes to this question have developed over time.
[44] The issue first arose in R v Harper.[45] The appellants had been found guilty of supplying DMA, a class A hallucinogen related to lysergide (LSD) though with much lower potency.[46] In that decision this Court cited but expressly departed from the English appellate authority in R v Kemp in rejecting a uniform intra-class sentencing approach. [47] The Court said:[48]
It was held [in Kemp] to be no part of the duty of a trial judge or the Court of Appeal to grade category A drugs in two different classes. But the judgment recognises that if necessary, evidence of the qualities of drugs may be given to assist the Judge in sentencing; and for ourselves we respectfully see no reason why the comparative potency and effects of drugs in the same Class may not be taken into account in appropriate cases in exercising the Court’s discretion within the limits specified by Parliament.
(emphasis added.)
[45] Then in R v Shewan this Court noted the “very important difference” between hallucinogens such as bromo-DMA and LSD on the one hand and heroin on the other.[49] The former drugs were not considered likely to induce physical dependence. This Court considered the difference should be relevant for sentencing judges. Expressly following Harper, the Court in Shewan said:[50]
The inclusion of both ... [hallucinogens and addictive drugs] in Class A, with its accompanying sanction of life imprisonment for misuse, plainly invests misuse of any of them with a seriousness to which the courts must give full recognition. But given that recognition, and leaving aside any other considerations relevant to a particular case, it would be wrong to disregard their differing perniciousness.
(emphasis added.)
[46] Twelve years later, this Court in R v O’Donnell considered sentencing for supply of MDA and LSD.[51] That Court too accepted differentiation between drugs in the same class could be justified on bases such as comparative potency and effects.[52] But, “[t]he difference in sentences between these two categories should not be large.”[53] The Court expressed concern that differentiation may in the past have resulted in overly lenient sentences for importing or dealing in hallucinogens.[54]
[47] In light of the cautionary note so recently struck in O’Donnell, the next year in R v Stanaway — a heroin-supply case — further developments in the English and Australian courts were noted.[55] Reference was made to the English Court of Appeal decision in R v Martinez — a cocaine-importation case where Lord Chief Justice Lane rejected the suggestion that cocaine offending should be treated more leniently than heroin or LSD offending.[56] His Lordship said:[57]
First of all it should be made clear that there is no distinction to be drawn between the various types of Class A drug. The fact that in the decision to which I have referred, namely Aramah, particular mention was made of heroin was because at that time, in terms of availability, heroin presented the greatest threat to the community. The same considerations as applied to heroin apply equally to other Class A drugs. Any idea that those who import or deal in cocaine or L.S.D, as it is known, should be treated more leniently is entirely wrong.
[48] The Court in Stanaway then noted Martinez had been approved and applied in R v Aroyewumi in 1995, the English tariff case for all class A drug offending.[58] This was contrasted on the other hand with the approach of the South Australian Court of Criminal Appeals in R v Mangelsdorf which was more consistent with the New Zealand approach seen in Shewan and O’Donnell.[59]
[49] The Court in Stanaway then turned to a survey provided by the Crown of 71 New Zealand class A offending sentencing decisions spanning the previous 17 years. These suggested, the Court said, that the acceptance of differentiation between class A hallucinogens and addictive drugs such as heroin “may in some cases have resulted in unduly lenient sentences” for the former.[60] The Court concluded that an evidence based inquiry into relative harm may be justified in a future case:[61]
It may be that in a suitable case the Court will need to consider whether any significantly lower level of sentences for offences involving the Class A hallucinogens still is justified in light of current knowledge of physical and psychological effects and other social considerations. It may be that potential addiction no longer is to be regarded as the predominant measure of perniciousness. This is an exercise to be embarked upon only on the basis of relevant evidence.
(emphasis added.)
[50] Following Stanaway, in 1999 this Court then delivered its class B tariff decision in Wallace.[62] Wallace involved the manufacture and supply of large quantities of methamphetamine which at that stage was still a class B drug with a maximum sentence for manufacture and supply of 14 years’ imprisonment. This Court referred to Stanaway and the English appellate decisions but noted that even if a uniform approach was adopted it could not absolve the sentencing court from addressing issues of relative potency and harm:[63]
But even if that [English] view were to be embraced fully as following logically from the same maximum sentences, the comparison of sentences involving different drugs in the same class still has difficulties. Equivalent quantities do not necessarily have the same effect, value or danger. As was pointed out in Wijs, dealing in the same quantity of cannabis resin or oil represents trafficking of an entirely different order from dealing in a pure amphetamine.
(emphasis added.)
[51] For that and other reasons, the Court accepted the preservation of flexibility in drug sentencing was important.[64] But the Court then set out a series of generally applicable propositions in relation to “trafficking offences” involving class B drugs. The first of them was:[65]
That there is no justification for differentiation between drugs in the same class, but any comparison of offending in relation to different drugs must take into account such matters as potency, purity, formulation, manner of sale and use ...
As to methamphetamine (the drug in issue in the case), the Court referred briefly to evidence of its risk of harm.[66] Citing an earlier decision, R v Thompson, and drug offending texts, the court described methamphetamine as a powerful form of amphetamine with a high risk of inducing psychological dependency.[67] It was, the Court considered, one of the more “insidiously dangerous, of the class B drugs”.[68] The Court concluded that “[p]lainly its perniciousness is not to be distinguished from other amphetamines, MDMA (ecstasy) and morphine”. [69]
[52] Thus Wallace was the first New Zealand case to come down relatively firmly on the side of uniformity of treatment within drug class. But it needs to be read in its proper context. It was a case about methamphetamine sentencing at a stage when that drug was displacing non-addictive hallucinogens and heroin as the New Zealand market’s “hard drug” of choice. As the 12 non-methamphetamine class B cases surveyed by that Court showed, sentencings for other class B drugs such as MDMA, morphine and cannabis oil, were already relatively stern by reference to the 14 year maximum sentence. The Court was really signalling that methamphetamine sentencing could not on any proper basis be set lower than prevailing levels for those other class B drugs. The real problem was that methamphetamine was in the wrong class in 1999. As noted this problem was fixed in 2003.
[53] R v Arthur was a decision of a Divisional Court of this Court heard two months before Fatu.[70] Chambers J was a member of both panels. Arthur related to low-level supply of methamphetamine, two years after the reclassification of that drug. The Court noted that since methamphetamine’s reclassification there was no applicable tariff judgment.[71] The Court set out to provide interim guidance pending a Permanent Court addressing the matter.[72] It set out the EACD’s summary of reasons for recommending in 2002 that the Minister move to reclassify methamphetamine. The summary was as follows:[73]
- The use and manufacture of methamphetamine in New Zealand is growing, seizures are increasing, and it has potential appeal to vulnerable populations.
- There are pronounced long-term physical and psychological adverse effects associated with methamphetamine abuse.
- There are significant risks to public health from intravenous use of methamphetamine, as well as the dangers posed by illicit clandestine laboratories.
- There are few, if any, therapeutic applications for methamphetamine.
- Methamphetamine has been linked to deaths both in New Zealand and overseas.
- There is a high physical and psychological dependence potential.
[54] The Court took the time to rehearse the essential principles in the setting of starting points for the supply of class A drugs. It was noted that this Court in Stanaway had left open the question of whether the English approach should replace that which applied in New Zealand up to that point.[74] The Court certainly did not consider that Wallace had resolved that issue as a matter of principle. Instead it concluded that “[i]n light of this uncertainty”, the focus of the judgment would be methamphetamine and non-hallucinogen class A sentencing.[75]
[55] It is therefore accurate to conclude that by the time Fatu was decided, the New Zealand courts were aware of the approach adopted by the United Kingdom courts but no New Zealand court had committed to a uniformity approach in respect of class A offending. To the extent that Wallace had signalled a uniform approach to class B offending, that seemed to be designed to head off any suggestion that methamphetamine offending should be treated more leniently than other class B offending.
[56] Fatu dealt with the manufacture, importation and supply of methamphetamine. To the extent it addressed sentencing for supply, the Fatu court recorded that with “minor adjustment, we are content to adopt the general approach taken in Arthur”.[76]
[57] The Court appeared also to accept the Crown’s submissions of the harm methamphetamine brought to the community. The drug was described as a particularly destructive drug — highly addictive with profound mental and physical side effects and generative of irrational and aggressive behaviour including violent offending.[77] There had also developed, the Crown submitted, a thriving methamphetamine industry in which there was heavy involvement of organised crime.[78] The manufacturing process was particularly dangerous both to those involved in it, and to innocent third parties.[79] The Crown concluded in submissions cited with approval by the Court:[80]
It is submitted, with respect, that if it is appropriate to draw any distinction between Class A drugs, methamphetamine can fairly lay claim to a place in the most serious category.
[58] The Court separated manufacturing out as the most serious of the three offence categories because of the risk it posed for law enforcement officers, emergency services personnel and the public generally.[81] In a departure from the previous New Zealand approach, the Court opted for quantity and purity as a starting measure of seriousness in preference to value and commerciality.[82] This aligned with the English approach.[83] Separate guidelines were then set out for each of supply, importation and manufacture.[84] The Court added an important limitation on the intended applicability of these guidelines:
[46] We also stress that these guidelines are applicable only to offending involving methamphetamine. Other appellate authorities should continue to guide sentencing for other class A dealing, including other class A manufacturing. At some convenient time, we may review those authorities to see whether a quantity banding approach might be appropriate there as well. Further, Wallace should continue to be regarded as the guideline judgment for class B drug offending. At an appropriate time, however, we will review Wallace with a view to determining whether to bring class B sentencing on to a quantity‑band approach.
[59] This rider is unsurprising given the comment of the Court in Arthur about the “uncertainty” around differentiation, and in light of the shift to quantity and purity measures.[85] The latter was likely to lead to “exchange rate” issues where the courts would be required to set starting points for drugs with different methods of manufacture, modes of retail supply, and market expectations as to dosage and purity.
[60] Since Fatu the differentiation versus uniformity debate has been engaged briefly and inconsistently by New Zealand courts. We need refer only to two decisions to illustrate this.
[61] In R v Cartwright this Court addressed charges of conspiracy to manufacture heroin and conspiracy to supply morphine sulphate (a class B drug). [86] Robertson J writing for the Court noted:[87]
This approach [the application of Arthur and Fatu] is understandable because the other co-accused caught by the operation were convicted on methamphetamine charges. Mr Cartwright was not and so the Arthur/Fatu guideline judgments are not relevant.
[62] Instead the Court applied the 20-year-old guideline judgment for the manufacture of morphine and heroin, R v Latta.[88]
[63] The most recent treatment of this issue by this Court was in the 2011 decision of Close v R, in relation to the importation of gamma butyrolactone (GBL), a class B drug.[89] The appellant argued that Wallace should be read in its context — as a guideline judgment for methamphetamine when it was a class B drug so it should not be applied with full force because GBL is a far less dangerous drug than methamphetamine.[90] The Court responded in these terms:[91]
While we
accept that methamphetamine is a particularly pernicious drug, as this Court
acknowledged in R v Fatu, we do not have anything before us which would
allow us to make any meaningful comparative analysis of different class B drugs.
There
are sufficient authorities dealing with GBL importations for some guidance
to be obtained about sentencing levels for GBL offending.
We doubt the utility
in trying to produce a graduation of seriousness in relation
to class B drug
offending, when Parliament has placed all of the relevant drugs within the same
statutory classification.
(footnotes omitted.)
[64] This Court came down firmly in the 1980s in favour of intra-class differentiation. By the 1990s, concerns were being expressed by appellate judges over whether differentiation was leading to overly lenient sentences for hallucinogen offending. Suggestions that the matter might be revisited were always qualified by an acceptance that any change would be evidence-based. That is why Arthur and Fatu were careful to restrict their reach to methamphetamine only in the absence of more broadly applicable evidence. They did not adopt the approach advocated in Wallace which must, in our view, be understood in light of its particular circumstances: the need to set a tariff for a drug that had been under‑classified. Close, which is the most recent decision of this Court, did suggest that uniformity was preferred, but the Court was not making a carefully reasoned point. The two initial reasons for rejecting differentiation for GBL in class B were, in our view, more cogent. First, there was no evidence before the Court on relative harm and therefore no basis upon which a differentiation could be made; and second, there were ample examples of GBL sentencing against which that Court could cross-check the sentences imposed in that case.[92]
[65] Finally, and most importantly of all, none of the authorities after 2002 engage with the requirements of ss 7, 8 and 9 of the Sentencing Act on this question or with the relationship between these provisions and MODA.
[66] We conclude that, viewed in the round, 25 years of New Zealand jurisprudence on the effect of MODA classification on sentencing suggests that, if the evidence justifies intra-class differentiation, that is an appropriate approach. This, as we have said, is consistent with the statutory regime.
MDA, MDMA and methamphetamine: the evidence on relative harm
[67] Once it became clear that the focus of these appeals would be whether judges can differentiate between class A drugs for sentencing purposes, evidence was required on the relative perniciousness of methamphetamine and MDA. A direction was given accordingly in a minute of Miller J dated 28 September 2017. The Crown filed a brief of evidence by toxicologist Dr L J Schep of the National Poisons Centre at the University of Otago. He has written several academic articles and given conference papers and lectures on the subject of the toxicology with emphasis on recreational drugs.
[68] Mr Ingram filed briefs from J P B Williamson and Dr Paul Quigley. Mr Williamson is a self-employed research consultant specialising in the chemistry, pharmacology, structure-activity relationships and legal status of designer drugs and new psychoactive substances. He has tertiary qualifications in chemistry, pharmacology and law. Dr Quigley is a medical practitioner and vocational specialist in emergency medicine with particular expertise in drug and alcohol-based presentations. He is based at Wellington Regional Hospital in Wellington.
[69] These experts assessed from their respective areas of expertise, the nature and relative harmful effects of methamphetamine, MDA and MDMA. The evidence related to both forms of ecstasy because, it seems, most independent studies have addressed both. MDMA therefore became the de facto low-end baseline in the evidence we received.
[70] Dr Schep summarised the results of international scientific studies of the effects of these drugs on humans and animals. He concluded that at subjectively reported recreational levels, methamphetamine is the most potent of the three drugs while MDMA is the least potent. He located MDA somewhere between the two. He advised that case reports of acute human toxicity and death also suggest that methamphetamine is the most toxic of the drugs but, he noted, some case reports suggested that MDA at similar doses also produced acute toxicity while others suggested MDA toxicity was comparatively lower. Dr Schep also noted that subjectively reported dosages were not always accurate and did not always correlate with detected blood concentration levels. Dr Schep suggested that the most accurate assessments of toxicity and potential for harm on the user were made in laboratory controlled animal testing in which doses necessary to achieve 50 per cent lethality were derived. According to his evidence, all but one of the six test series carried out on different small animals with different modes of administration showed methamphetamine to be the most lethal, MDMA the least lethal, and MDA somewhere between. One of the test series however showed MDA to be more lethal than methamphetamine.
[71] Finally, neurotoxicity testing suggested that although methamphetamine affected different aspects of the brain (nerve terminals containing dopamine) to those affected by MDA (serotonin nerve terminals), the neurotoxicity rankings placed methamphetamine at the highest level followed by MDA and then MDMA.
[72] Mr Williamson described MDA and MDMA as empathogens or entactogens. These drugs are distinctive because they correlate with the release of serotonin and produce disinhibition, euphoria, reduced aggression and increased feelings of empathy and intimacy with others. Empathogens, Mr Williamson said, must be distinguished from stimulants such as methamphetamine. Stimulants he said are generally associated with patterns of addiction, escalating use leading to paranoia and psychosis and resulting in acquisitive crime such as burglary and robbery to acquire more of the drug. In addition, because it is a stimulant that affects dopamine neurons, its long‑term use is associated with violence, aggression and psychosis. Methamphetamine, he said, is capable of producing extreme and unpredictable violent behaviour. Mr Williamson suggested that these characteristics often meant that people other than drug users were also hurt by methamphetamine use.
[73] Mr Williamson suggested that the empathogens are not associated with these characteristics because increased frequency of use and/or dosage leads to a rapid and sharp falloff in efficacy of the drug’s psychedelic and euphoric effects. Thus MDA and MDMA tend to be used episodically. They are weekend drugs. Further, the effects of long-term use — memory deficit, depression and anxiety — are to a greater extent (although not exclusively) restricted to the drug user him or herself. Broader social impacts are not a noted feature of MDA use.
[74] Mr Williamson finally noted that MDA was placed in class A when MODA was first enacted 30 years before methamphetamine was included in that class and before the EACD was created to advise the Minister on appropriate drug classification. Mr Williamson suggested that in 1975 legislators had little understanding of the distinction in effects between empathogens and other psychedelic drugs such as LSD and the like, all of which were placed in class A at the same time.
[75] Dr Quigley’s evidence summarised his experience of the comparative harmful effects of MDMA, MDA and methamphetamine as an emergency medicine clinician. His conclusions were that methamphetamine is by far the most harmful of the three. According to his evidence methamphetamine-related presentations can involve:
- (a) hypertension and tachycardia;
- (b) explosive outbursts of violent behaviour sometimes involving feats of unnatural strength;
- (c) severe insomnia creating risks of psychotic hallucination;
- (d) permanent mental illness;
- (e) long-term end-use withdrawal effects including significant depression and suicide; and
- (f) presentation involving addiction related acquisitive crime.
[76] He too considered that the victims of these symptoms are not restricted to drug users themselves. They also include those harmed by methamphetamine driven violence and by addiction driven acquisitive crime. Dr Quigley endorsed the conclusions of the Ministry of Health’s New Zealand Drug Harm Index that methamphetamine is “the most serious and harmful [illicit] substance within the New Zealand context”.[93] Dr Quigley noted that both MDA and MDMA are subject to widespread dilution and adulteration making objective assessment of their contribution to harm in actual hospital presentations more difficult both generally and comparatively as between the two drugs. A further complication is that MDA is a metabolite of MDMA. Nonetheless, Dr Quigley considered, MDMA and MDA presentations were clinically “indistinguishable in the real world and in clinical practice”, and so should be treated “as in the same framework”. He noted that their respective harmful effects could only be divided by “advanced laboratory evidence”.
[77] Dr Quigley considered that MDA and MDMA were “orders of magnitude” less addictive than methamphetamine. He considered they generated less dependent behaviour because of their lower potency and lower ability to trigger the brain’s reward system. He noted for example that Capital Coast District Health Board had no patients registered at its addiction service for the treatment of MDA and MDMA addiction, though it did have such patients for methamphetamine addiction. He acknowledged however that MDA and MDMA did have harmful effects. The most significant harm is persistent serotonin receptor damage in the brain leading to loss of emotional variability, lethargy and depression, as well as memory problems in long-term users. He noted that in the 1990s MDA and MDMA were linked to deaths due to hyponatraemia or low blood sodium levels due to drinking too much water in the hot nightclub environments with which these drugs are most often closely associated. Dr Quigley advised that this issue had been addressed by nightclubs and is no longer the issue it was.
[78] While the witnesses were not unanimous on the question of relative harm, their areas of disagreement were relatively narrow and had little impact on the overall picture. The evidence was clear that MDA is less potent, probably less toxic (though the evidence is not consistent on this) and, with the exception of one study, less lethal than methamphetamine. The evidence was also clear that methamphetamine causes significantly more collateral damage to non-users and places much greater cost overall on the community than MDA. This conclusion is consistent with the advice of the EACD in 2002. Methamphetamine also causes significantly more harm to users than MDA.
[79] Whether that difference is “orders of magnitude” is less clear and in any event, we are not called upon to make that assessment. It is sufficient for our purposes that we are satisfied the difference is significant and therefore material for sentencing purposes. We conclude that the case for differentiation between empathogens and stimulants in class A sentencing is established.
[80] That said, we would note that it is not our intention to suggest the factors we have considered in this judgment are intended to be exhaustive of those relevant to the assessment of a drug’s harm. Our decision has been reached by reference to the evidence before us. As the authorities have repeatedly reiterated, harm in the area of controlled drugs is an evidential inquiry.
[81] For the following reasons, we are not satisfied that the eight-year starting point adopted in this case was too low.
[82] First, we see no difficulty with Judge Barry looking to MDMA sentencing as a bottom end guide rail in the absence of an MDA tariff decision. It made sense to consider the sentencing treatment of MDA’s closely related class B analogue. The expert evidence filed in this appeal all did the same thing when assessing the relative harm of empathogens in comparison to stimulants.
[83] As counsel for Mr Ingram submitted, if the Judge had used MDMA as his “anchor”, though we do not think that is the right way to frame the Judge’s approach, this offending would have fitted the lowest of the Wallace bands — that is up to five years’ imprisonment. The middle band — five to eight years’ imprisonment — was designed for offending on a “substantial scale reflecting sophistication and organisation with operations extending over a period of time”.[94] The cases in that band generally involved multiple offending events over time.[95] Mr Ingram’s offending was not of that order.
[84] The lowest Wallace band applied to smaller operations that were still commercial. They tended to attract starting points between three and a half and five years’ imprisonment. We would have expected the offending in this case, had it been MDMA rather than MDA, to have attracted a starting point between four and a half and five years’ imprisonment.
[85] Second, we do not consider that Judge Barry impermissibly created an intermediate classification somewhere between class A and class B controlled drugs, usurping MODA in the process. Rather, as we have said, he used MDMA sentencing as a bottom end guide rail to ensure that the starting point he did adopt was not out of kilter with sentencing in relation to MDA’s class B analogue. We see no problem in principle with that in the absence of an MDA guideline decision.
[86] Third, by cross-checking Mr Ingram’s starting point against past MDA sentencings — the approach described in Fatu for non-methamphetamine sentencing — a clear pattern emerges.[96] MDA starting points in the 11-year range are reserved for cases involving multiple aggravating factors. For example, more than one drug,[97] multiple identified offending events,[98] or evidence of long-term sophisticated manufacturing operations.[99]
[87] Fourth, although we have no evidence of market expectations of dosage purity in relation to MDA, the Judge cannot be criticised for noting that at 41 per cent purity, the product obtained on arrest in this case was significantly less pure than the minimum 60 per cent market standard Fatu applied for methamphetamine. In the absence of any other indicator to assist in assessing the significance of the evidence of purity in this case, a reference to methamphetamine standards was all the Judge had.
[88] Viewed overall, we consider a starting point between eight and nine years’ imprisonment in the case of Mr Ingram’s offending was justifiable. We note the Crown’s submission that Mr Ingram’s special role as “the chemist” should have led to him receiving a slightly higher starting point than that for Mr Macris. While that approach might be appropriate in some cases, the evidence is clear that the two offenders were equal partners in this venture. Mr Ingram brought his chemistry know‑how, but it seems that Mr Macris was very much the business end of the venture. We do not see in this case any justification for differentiating between the two.
[89] The eight-year starting point adopted in Mr Ingram’s case was well within the available range and this was so with or without the Judge’s suggestion that low purity as against the Fatu standard was a further mitigating factor.
[90] The Crown accepted that it was appropriate for Mr Ingram to receive a discount for previous good character. This should, the Crown said, have been no higher than five per cent. We agree.
[91] We agree also that it is difficult to see, in hindsight, why a remorse discount should have been applicable when Mr Ingram initially appealed his conviction. Of course, Mr Ingram’s intention with respect to appeal would not have been readily apparent to the Judge at sentencing and, in any event, the appeal against conviction was not pursued.
[92] Overall however, we do not consider the Judge was wrong in the exercise of his discretion to grant Mr Ingram a cumulative discount of 10 per cent. The Judge plainly considered that Mr Ingram had good prospects for rehabilitation. In addition to the punitive and deterrent effect of his prison sentence, family support would be crucial to the success of that rehabilitation. Framed in that way, we see no difficulty in principle with recognising the role family plays in ensuring prisoners do not reoffend. There can be no doubt that the Judge’s perception of Mr Ingram’s remorse was coloured by his assessment of the man’s future prospects.
[93] We rather think the Judge’s reference to Mr Ingram’s chronic back pain as a discounting factor went a little too far, but on the other hand we doubt whether this was a significant element in the discount assessment. Overall, we consider the 10 per cent discount to have been generous but not manifestly excessive. We decline to interfere in it.
[94] Mr Macris’ appeal must be allowed. The starting point on the lead charge in his case of manufacturing should have been eight years instead of the 11 years adopted. As the Crown offered no criticism of the discounts granted to Mr Macris for assistance to the police, remorse, previous good character and guilty plea, they will remain. From a 96-month starting point a 40 per cent discount for assistance to the police leaves 58 months. Ten per cent for remorse and good character leaves 52 months. A further 10 per cent for guilty plea leaves 47 months or three years and 11 months’ imprisonment.
[95] On the remaining three charges of conspiracy to supply and manufacture and possession of a class A controlled drug the concurrent sentences of four years are also reduced to concurrent sentences of three years and 11 months’ imprisonment.
[96] The Solicitor-General’s application for leave to appeal in CA678/2015 is granted.
[97] For the foregoing reasons, the Solicitor-General’s appeal in CA678/2015 is dismissed.
[98] Mr Macris’ appeal in CA715/2015 is allowed. His sentence is quashed and concurrent sentences of three years and 11 months’ imprisonment are substituted on all charges.
Solicitors:
Crown Law Office, Wellington for the Crown
[1] Mr Ingram originally appealed against conviction but abandoned this appeal.
[2] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
[3] Mr Ingram has since been released from prison but on the view we take in relation to the Solicitor‑General’s appeal, nothing turns on that.
[4] R v Macris DC Wellington CRI-2013-085-5620, 30 July 2014 at [11].
[5] At [13].
[6] At [15].
[7] At [16].
[8] See addendum to Macris, above n 4, at [6].
[9] R v Ingram [2015] NZDC 21721 at [21].
[10] At [19], citing R v Fatu, above n 2, at [46].
[11] At [21].
[12] At [21].
[13] At [21].
[14] At [23].
[15] At [23].
[16] At [21].
[17] R v Martin HC Napier CRI-2003-441-795925, 22 August 2003; and R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159 (CA).
[18] At [25].
[19] At [26].
[20] At [26].
[21] At [27].
[22] At [34].
[23] The midpoint between 25 grams and 250 grams is 137.5 grams and the midpoint between four and 11 years is 7.5 years.
[24] Misuse of Drugs Act 1975, s 6(1).
[25] Section 2(1). “Controlled drug” is defined as “any substance, preparation, mixture, or article specified in Schedule 1, Schedule 2 or Schedule 3; and includes any controlled drug analogue”.
[26] Sections 6(1)(a)–(e).
[27] Section 6(f).
[28] Sections 6(2)(a)–(c) and s 6(4).
[29] Section 6(2)(c).
[30] Section 6(2A).
[31] Misuse of Drugs (Changes to Controlled Drugs) Order 2003.
[32] Section 5AA(1).
[33] According to s 4(1A), in any event there is no power to promulgate an order in council downgrading any classification.
[34] Sections 7(1)(e)–(g).
[35] Section 4(a)(ii) includes in the definition of victim “a person who, through, or by means of, an offence committed by another person, suffers physical injury or loss of, or damage to, property”.
[36] See ss 4 and 4A.
[37] Sentencing Act, s 7(1)(d).
[38] Sections 8(a) and (f).
[39] Section 9(1)(d).
[40] Crimes Act 1961, s 196.
[41] Section 194.
[42] Sections 192 and 193.
[43] Section 202C.
[44] See R v Wallace, above n 17.
[45] R v Harper CA226/81, 16 February 1982.
[46] At 5. The evidence was between 2.5 per cent and 10 per cent the strength of LSD.
[47] R v Kemp (1979) 69 Cr App R 330 (CA).
[48] At 7.
[49] R v Shewan [1984] NZCA 6; [1984] 2 NZLR 362 (CA).
[50] At 366.
[51] R v O’Donnell CA101/96, 1 August 1996.
[52] At 6.
[53] At 6.
[54] At 6.
[55] R v Stanaway [1997] 3 NZLR 129 (CA).
[56] R v Martinez (1984) 6 Cr App R (S) 364 at 365 (CA).
[57] At 365.
[58] R v Aroyewumi (1995) 16 Cr App R (S) 211 (CA). Although not mentioned Martinez was also followed in R v Hurley [1997] EWHC Admin 715; (1998) 1 Cr App R (S) 299 (CA), in which Lord Chief Justice Bingham considered any differentiation within drug class was “a political not a legal argument” (at 302); and R v Wijs (1998) 2 Cr App R 436 (CA) the tariff decision for class B drug offending.
[59] R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60 (SASC) at 67–68.
[60] At 135.
[61] At 142.
[63] At [23].
[64] At [25].
[65] At [25].
[66] At [28].
[67] At [28], citing R v Thompson CA374/93, 14 October 1993; Ian Freckleton and Hugh Selby Expert Evidence (Law Book Co, Sydney, 1993) at ch 70; and TC Cox Drugs and drug abuse: a reference text (Addiction Research Foundation, Toronto, 1983) at 165.
[68] At [28].
[69] At [28].
[70] R v Arthur [2005] 3 NZLR 739 (CA). The panel consisted of Chambers, Goddard and Salmon JJ.
[71] At [7].
[72] At [7].
[73] At [2], citing Expert Advisory Committee on Drugs (EACD) advice to the Minister on Methamphetamine (2002) at 3.
[74] At [13].
[75] At [13].
[76] Fatu, above n 2, at [10].
[77] At [11].
[78] At [11].
[79] At [11].
[80] At [11].
[81] At [23]–[25].
[82] At [26]–[27].
[83] See R v Aroyewumi, above n 58, at 215.
[84] Fatu, above n 2, at [34], [36] and [43].
[85] R v Arthur, above n 70, at [13].
[86] R v Cartwright CA462/05, 10 August 2006.
[87] At [13].
[88] R v Latta [1985] 2 NZLR 504 (CA).
[89] Close v R [2011] NZCA 434.
[90] At [10].
[91] At [11].
[92] At [11].
[93] The Drug Harm Index Report concludes that the social cost of methamphetamine measured in dollars is the greatest of all illicit drugs on a per kilo and per user basis and significantly greater than the hallucinogenic and psychedelic groups of drugs to which MDA and MDMA belong. Note however, as Dr Schep noted in reply to Dr Quigley, the category of hallucinogenic and psychedelic drugs in the study was stated to include “ecstasy” but not MDA. See McFadden Consultancy Research Report: The New Zealand Drug Harm Index 2016 (2nd ed, Ministry of Health, July 2016).
[94] R v Wallace, above n 17, at [31].
[95] See R v Kavaleros HC Auckland CRI-2009-404-384, 21 December 2010; and R v Voerman HC Auckland CRI-2008-004-16711, 4 September 2009.
[96] See Fatu, above n 2, at [46].
[97] O’Donnell, above n 51 — importing MDA and LSD; and R v Y (CA414/00) CA414/00, 5 February 2001 — importation and supply of MDA and cocaine.
[98] O’Donnell, above n 51 — MDA imported on three occasions.
[99] Martin, above n 17 — laboratory contained chemicals capable of producing 1.5 kilograms of MDA situated in a property opposite a school.
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