R v Dryden DC Manukau CRI-2009-092-14989 [2012] NZDC 477 (28 March 2012)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT MANUKAU

_{CRI-2009-092-014989}

THE QUEEN

v

JOHN WILLIAM DRYDEN

Hearing: 28 March 2012

Appearances: J Jelas for the Crown

M-A Lowe for the Prisoner

Judgment: 28 March 2012

_{NOTES OF JUDGE GA ANDRÉE WILTENS ON SENTENCING}

[1] Mr Dryden, you are for sentence having been convicted by the jury of one representative charge of supplying methamphetamine to others. It is a particularly serious offence and the legislators of New Zealand have decided it is appropriate that the maximum penalty for someone convicted of that type of offending is life imprisonment. That is how serious this offending is.

[2] Both counsel have already referred to the fact that there are two others at least involved in this offending: Ms Hunt who was your partner at the time, and Mr Topia. They have been dealt with in relation to different offending and were not involved in the trial in any way, other than the fact that their participation in the offending was mentioned at times. They were certainly not co-accused, nor charged

_{with the same sorts of charges as you have been.}

R V DRYDEN DC MAN CRI-2009-092-014989 [28 March 2012]

[3] Ms Hunt was ultimately sentenced to home detention, Mr Topia to a lengthy term of imprisonment of fours years, seven months. I am invited to have regard to those sentences by way of parity with what I have to do in your particular case in the sentence that I need to impose for you.

[4] The sentence that I need to impose for you relates to a situation where over a relatively short period of time, some 12 or 13 days, a number of text messages, which can be linked back to you, indicated that you were supplying methamphetamine to others. Before I get to that however, there are some background facts which are also relevant, and that is that, a search warrant was executed at the address of Mr Topia and Ms Hunt, 8 Zurich Place in Manurewa and you were in the vicinity at that time, and you have connections with that address. When that search warrant was executed four and a half grams of methamphetamine, almost 80 grams of cannabis and 23,600 odd dollars of cash were located by the police. When you were apprehended nearby a methamphetamine pipe was found on you.

[5] The mobile phones of Mr Topia and Ms Hunt were seized, and it is from the communications on their phones that the telephone that was ultimately attributed to you by the jury was identified and then found, and the messages were able to be traced back to you because of a number of factors which I need not go into at this time, but there is ample evidence for the jury to be satisfied that you used that telephone.

[6] Ms Lowe on your behalf has pressed upon the jury initially and me now, that not all those messages can be attributed to you. I disagree with that. It seems to me that these messages all can be very clearly linked to your using that telephone, and I am dealing in particular with the messages that deal with the amounts of methamphetamine that were supplied to others.

[7] I accept what the prosecution say, that you have supplied at least 78.4 grams of methamphetamine on occasions within this short period of time. That can be arrived at by the message on 1 August arranging to drop off some methamphetamine to Mr Topia, that is about 28 grams of methamphetamine. On 3 August there was a

seven gram supply to Mr Topia and Ms Hunt, and there is a further reference to

28 grams of methamphetamine somewhere between 1 and 3 August, and 14 grams of methamphetamine on 4 August. On 7 August there is a small amount of almost

1.5 grams of methamphetamine, but those are the ones that can be identified, and the reality is they are a very small sample with what must have occurred. I need to sentence you on the basis of what was established and that is at least 78.4 grams of methamphetamine. So I am not going to sentence you on the basis that there is more, even though you and I and the jury, everybody else knows there must have been more. I will sentence you on the basis of 78.4 grams.

[8] When I come to sentencing I have to have regard to the Sentencing Act 2002. The principles and purposes of sentencing are set out there. I need to hold you accountable for the harm that you have done to our community because this is a scourge within our society. I need to denounce your conduct, and I need to deter you and others from dealing with substances of this kind in future. I need to have regard to the gravity of the offending. I need to have regard to a consistency of sentencing for offending of this type, and last but not least, I need to impose the least restrictive outcome that is available in all the circumstances.

[9] The prosecution suggests that the aggravating features of the offending involve the commerciality involved. I think it is inevitable that there is an element of commerciality when this much methamphetamine is supplied to others. The prosecution also say there is a degree of sophistication because of the manner in which you supplied the drug, namely by going from motel to motel arranging to meet people in motels. I see that as surreptitious and designed to conceal your activities from the authorities, as opposed to an element of sophistication. I do not see that that is an aggravating feature, I see it simply as part and parcel of the offending.

[10] The prosecution also point to the fact that you must have been an established dealer with an established network. I dare say that is also part and parcel of the situation, but I do not see that as necessarily being an aggravating feature of the offending.

[11] Because I have placed the level of methamphetamine that you have supplied at 78.4 grams you fit fairly and squarely within band 2 of R v Fatu [2006] 2 NZLR

72, where the Court has been provided with a tariff sentence. Band 2 involves the supply of methamphetamine between a range of five grams and 250 grams, and the range spans from three years’ imprisonment for the lower end obviously, up to nine years’ imprisonment at the top end. The mid-point of that range would be 127 and a half grams, which would equate to six years’ imprisonment. 78 grams is somewhere near the top end of that mid-point of the range. So on a purely mathematical basis I would adopt a starting point in terms of the offending of five years.

[12] The prosecution have also pointed out some authorities where cases of a similar kind have been dealt with:

(1) R v R High Court Auckland CRI-2008-092-000029 8 July 2009, where 61.9 grams of methamphetamine, plus 2.4 grams of methamphetamine and some cash meant that the Court adopted a starting point of six years’ imprisonment. That is somewhat less in terms of the quantity of drugs, but higher in terms of the mathematical evaluation of R v Fatu decision.

(2) R v Coker HC Wellington CRI-2007-091-001213 1 June 2007, almost

60 grams of methamphetamine, some electronic scales and $41,000 of cash were found. There the starting point also was adopted of six years’ imprisonment, and that is quite a bit lower than the amount of methamphetamine that you are involved with.

(3) Thirdly, R v Goldsbury HC Tauranga CRI-2006-470-007328, 13 July

2006, where there were three bags of methamphetamine 71.5 grams, some scales and 2700 odd dollars, and again the starting point adopted there was six years’ imprisonment.

[13] So the mathematical evaluation of the R v Fatu band 2 would fit you at

around five years’ imprisonment. These other cases where the Courts have looked at

similar, slightly lessor amounts of methamphetamine, appear to indicate that a higher starting point ought to be adopted.

[14] I think in the circumstances the only fair way of treating this matter is to look at R v Fatu which is the ultimate decision in terms of the tariff. So I adopt a starting point of five years’ imprisonment for the offending. I do not add to that the fact that this is sophisticated, or the fact that there is commerciality involved. I think five years is the appropriate starting point for the offending per se.

[15] Now your personal circumstances. First of all the pre-sentence report, while Ms Lowe categorises it as positive, indicates that there is no insight to this offending by you and no remorse by you. Of course there was no plea. The matter had to be heard and dealt with by the jury. So there can be no deduction for any of those factors.

[16] The prosecution point out that you have a number of previous convictions which are drug related.

[17] Ms Lowe points out that none of them involve methamphetamine. The drugs convictions that you do have date back to 1984 for possession of cannabis seeds,

1987 selling cannabis on four occasions, 1995 possessing of cannabis plant, possession of utensils, possession of cannabis for supply and possession of cannabis seeds, then in 2007 possession of cannabis plant, and in 2009 cultivating cannabis. The net affect of all of those convictions are that you are clearly far too involved with the drug scene than you ought to be, but I do not think that warrants an uplift in terms of sentence.

[18] It appears to me that the least restrictive outcome in all the circumstances is a term of five years’ imprisonment, which is the starting point that I adopted for the offending. There is no uplift, there are no mitigating factors that enable me to reduce down from that either.

[19] That is a significant sentence, but it sits relatively closely to the sentence imposed on Mr Topia who had the advantage of a significant discount for a plea,

although he was facing different charges. It also sits well beyond the position where home detention might be available for you, because to be eligible for home detention the ultimate sentence needs to be two years or less and this is significantly higher.

[20] I am also satisfied that those involved in the supply of this amount of methamphetamine ought to be imprisoned, removed from our society for a lengthy period of time. That is the inevitable consequence that happens when you deal in this fashion, and that is the outcome that is arrived at for you. Five years’ imprisonment.

GA Andrée Wiltens

District Court Judge