R v Duncan [2017] NZDC 13620 (23 June 2017)

Last Updated: 17 November 2017

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT WELLINGTON

CRI-2016-085-000836 [2017] NZDC 13620

THE QUEEN

v

_{ANDREW MARK DUNCAN}

Hearing:	23 June 2017
Appearances:	A Garrick for the Crown K Smith and P Knowsley for the Defendant
Judgment:	23 June 2017

_{NOTES OF JUDGE S M HARROP ON SENTENCING}

[1] Andrew Duncan, you are 39 and here for sentence today on one charge of possession of methamphetamine for the purpose of supply on 4 March last year having been found guilty by the jury at the end of the trial on 5 May. There was also a charge lying alongside of breach of release conditions to which you had pleaded not guilty. The breach was being the possession of methamphetamine for supply so it was tied in with the trial and you had pleaded not guilty consistent with your denial of the primary charge. But now in light of the jury’s verdict you have sensibly changed your plea to guilty. I simply convict and discharge you on that charge because it is going to be subsumed in the sentence that I must impose today.

[2] As is well known the maximum penalty for this charge is life imprisonment. That is the highest penalty known to our law. And there is also a presumption in favour

R v ANDREW MARK DUNCAN [2017] NZDC 13620 [23 June 2017]

of a sentence of imprisonment being imposed for that offence regardless of the amount of methamphetamine possessed.

[3] The facts are that you were driving a vehicle and the only occupant of it in Campbell Terrace in Petone which the police stopped and searched it under warrant. They found two plastic zip lock bags containing a total of nine grams of a crystalline substance which was found to contain methamphetamine on analysis along with electronic scales, some pipes. The scales had your DNA on the button area and there was $3000 in cash and the scales bore traces of methamphetamine. There were also

40 brand new smaller snap lock bags.

[4] Your defence at trial was that it simply was not yours and you gave evidence at trial to that effect and said that you had lent your vehicle the previous night to [a young man], who you assumed must have left his methamphetamine there. Not only did you give evidence to that effect at trial but [the young man] was called as a defence witness and he said it was his methamphetamine.

[5] So in convicting you, or finding the charged proved, the jury must have rejected both your evidence of denial and his evidence of admission; they must have been satisfied beyond reasonable doubt, based on all the circumstantial evidence that they accepted, that it was your methamphetamine and that you were in possession of it for supply.

[6] Consistently with your defence at trial there was no issue at all at the trial about the quality or the purity of the methamphetamine found nor that whoever did possess it clearly did so for the purposes of supply. What was found in your car was clearly what might be described as a drug dealer’s kit. But the major issue which has arisen for sentencing purposes is the question of the level purity of the methamphetamine in that substance.

[7] Aside from the usual submissions that have been filed about sentencing generally there have been extensive separate submissions filed on this purity issue and how that should impact on sentencing. It happened that through an administrative error you were not brought to Court when the sentencing was supposed to happen but

it turned out to be a good thing in the sense that it has allowed both counsel, and helpfully I might say, to look at that carefully and to file detailed submissions.

[8] On 14 June, indeed, Mr Smith applied for a disputed facts hearing on the issue of purity but understandably, though reluctantly, he was forced to abandon that when the case was called on 15 June before me (when you were not here) and that was because he had learnt by then that the substance found by the police had been destroyed about three months after the analysis in September 2016, that is standard practice apparently. It simply has not been analysed as to purity. You had asked for that to happen on a number of occasions. It began, I think, with an email that Mr Smith sent to the police on 18 May 2016, the offence having been committed on 4 March and he raised it several times after that with the police, there is no doubt about that; he has supplied me with copies of the emails.

[9] So while you have never asserted even informally, and certainly not at trial, that this was low purity methamphetamine, you certainly have raised the question of analysis of the substance.

[10] Mr Smith in writing and Mr Knowsley orally today have submitted that an important right that you had has been breached and that ought to be reflected in a reduction in sentence, a benefit of the doubt approach should be taken because it cannot be safely assumed, it is submitted, that it was methamphetamine as to at least

60 percent of that substance.

[11] Through counsel, you make that submission notwithstanding that you were adamant, and remain adamant, that it is simply not your drug. You know nothing about it. You know nothing about its purity, therefore, and you have made it clear since the trial by your comments to the probation officer that you are innocent, you should not have been found guilty by the jury and this simply was not your methamphetamine. So you are not in a position yourself to make any comment at all about the purity of it. If you were to do so that would be inconsistent with the evidence you gave on oath.

[12] Mr Smith and Mr Knowsley have referred me to a judgment of Gendall J in the R v Phillips1 case which they say is materially indistinguishable but there the defendant gave evidence at trial saying in effect: “Yes it was mine. It was of lower purity but I didn't have it for supply, it was all for my own use.” So the facts there were very different. Justice Gendall the trial judge did not accept the evidence and obviously the jury did not because they found Mr Phillips guilty. Gendall J said in sentencing that given the absence of analysis the 4.9 grams that he had might possibly have had a purity less than 60 percent but because it was no longer available for testing it should not be something that penalised him. His Honour set a starting point at the bottom of band 1 in the well-known R v Fatu 2 case of two years and three months and Mr Smith and Mr Knowsley essentially contend that I should do the same sort of thing here and that around two or two years and three months, Mr Knowsley suggested, would be a reasonable starting point.

[13] The Crown has submitted that, this purity question notwithstanding, its submission that a starting point of three years and three months is appropriate.

Ms Garrick says that the Court of Appeal in the R v Fatu case recognised that in a pragmatic way that effectively the amount of, or the proportion of the substance of nine grams here, for it to fall into band 1 means it would need to have less than 33 percent purity but there is no evidence at all that it was likely to have been less than

60 percent, nor even any particular claim from you because as I say, your position is well, you just do not know anything about it because it was not yours.

[14] I might just mention at this point there was a submission that an inference should be drawn that this was of low purity because you previously were convicted of having methamphetamine for supply and on that occasion it is said, although I have not seen any direct evidence I have no reason to doubt this submission, that the purity was around 32 percent. It seems to me that that is not of any relevance for present purposes because you there pleaded guilty and accepted it was yours. Here you are denying it. So there is no crossover from one to the other that I can see and no relevant propensity conclusion; having low purity methamphetamine on one occasion several

_{years ago does not say anything about the purity on this occasion.}

1 R v Phillips HC Hamilton CRI-2007-070-001765, 27 November 2008

2 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA)

[15] The Crown also makes the key point that whatever the purity may actually have been, the reality is you were going to be selling this as nine grams of methamphetamine on the market and the purchaser would assume it was at least

60 percent pure because that is the conservative view as reflected in the Court of Appeal decision. So they are saying that even though the analysis has not happened, as you wanted it to, their view of the starting point is unaffected by this.

[16] I begin by acknowledging that evidence about the level of purity at sentencing is a relevant factor, if there was any. Here we do not have any. It is regrettable that the substance was destroyed before it could be analysed because you asked for that to happen and you were certainly entitled to request it. To the extent that that may have been a breach of some right on your part, I do not consider it is appropriate to address that by a reduction in what would otherwise be the appropriate sentence. But certainly I accept, as Mr Knowsley particularly today has been submitting, that it cannot be assumed that the substance was of any particular purity as to methamphetamine content when we do not have any information at all about that. That point is well made.

[17] My starting point in looking at this is to go over the leading case of R v Fatu in paras [27] to [31] particularly. There the Court of Appeal said that ideally there should be, for reasons of objectivity and consistency, weight calculations carried out as to purity. It made the point though that generally speaking in the absence of analysis it is effectively safe to assume that 60 percent would be the minimum because that is what the market usually deals with.

[18] So what the Court of Appeal said was that effectively an assumption would be made that purity would be 60 percent in the absence of any evidence otherwise but that if there was a dispute then that should be signalled and it can be tested. Obviously it was signalled here, although not on the basis that you claimed it was less than 60 percent just that you asked for it to be analysed, and it simply has not happened. So the question is what does the Court do in that situation?

[19] I think it is relevant to mention what is said in para [31] of R v Fatu. “Where an offender fits within any particular band will depend not just on the quantity and

purity of the drugs involved but also on the role played by the offender.” So here while purity is acknowledged as important it is certainly not the only relevant sentencing factor. And I think the relative importance of purity is less in the case of possession for supply, with accompanying evidence of intention to supply as opposed to a charge of mere possession. It is not such an important factor in this case as it might otherwise be.

[20] What happened here was that you were in possession of a substance weighing nine grams, well over the five grams that would take it into band 2 of R v Fatu, well over that, nearly twice what Mr Phillips had for example, and the reason you had it was to sell it to members of the public for profit. A purchaser is not going to be in a position, as indeed Mr Knowsley has acknowledged, to assess the purity, the purchaser is taking some sort of risk and it may well be that dealers would cut or reduce the purity of methamphetamine to maximise profit but in the end what you would be doing is making as much money as you can from this substance. The harm that it causes is going to be substantial even if the purity is not as great as it might otherwise be.

[21] So I come to the view that the level of purity is not as critical as it might first appear here and that also there is no reason to think that a conservative estimate of 60 percent would not be reasonable. Even if one assumes that it was too high you are still going to end up in what is known as band 2 of R v Fatu unless it is quite low purity at 33 percent.

[22] I therefore conclude that the starting point the Crown suggests, which could have been higher, of three years and three months is justified, notwithstanding the absence of analysis here.

[23] I do not consider that in reaching that conclusion the Court is being unfair to you, obviously. I do consider that the R v Phillips case is distinguishable. I think there is a material difference where you, as you did, go into the witness box and you say, “This is not mine. I don’t know anything about it”, in effect you said you can't possibly comment on the purity issue. Whereas Mr Phillips, as I say, also gave evidence, acknowledged it was his, admitted that he had it for his own use but not for supply and said it was of low purity but his assertion as to that was not able to be tested. You have

not made such an assertion at all here and that is entirely consistent with your defence that it was not yours.

[24] So here we have no evidential basis at all for believing that the methamphetamine is of less than 60 percent purity. It might have been more. It is possibly it might have been less but the context in which you were dealing with it is such that the gravity of the offending is not so informed by the purity as it might otherwise be.

[25] So I have come to the view that the starting point the Crown suggests of three years and three months is the least restrictive starting point. It could arguably be more as I have noted and I do not accept the submissions thoroughly and carefully put together by Mr Smith and Mr Knowsley that the starting point should be down in the bottom of band 1. The reality is that even if the purity was quite considerably lower than the pragmatic assessment the Court of Appeal made of 60 percent it would still be a low band 2 case with a starting point of three years.

[26] From the starting point there undoubtedly needs to be a significant uplift to reflect your previous convictions, particularly for methamphetamine dealing which is obviously highly relevant but also very recent given the time you were in orison in the interim. You were sentenced to three years’ imprisonment on 19 August 2013 for that

2011 offending which included possession of methamphetamine for supply and you were still on release conditions with only two weeks to go when you committed this offence and that too is obviously aggravating. It is important though not to double count because it really just reflects timing. The real point here is that quite soon after you were released you have offended in exactly the same way.

[27] I consider an uplift of nine months’ imprisonment is justified to cover both the previous conviction and its recency and the fact that you were still on release conditions if I throw all of those matters together and avoid double counting. So that is an increase to four years imprisonment.

[28] You have spent, before trial, some 13 months on electronically-monitored bail, that was a significant restriction on your liberty at a time when you had the

presumption of innocence. I am not aware of any breaches and you are certainly entitled to credit for that. Judge Mill, I note at the sentence indication, gave you a five-month credit even though I am only dealing with a further month I am going to

make it six months. So that is brings it down to a three and a half year prison sentence.

[29] There are other matters put before me and I have been impressed to read the references and particularly your mother’s comments about the willingness that the family has to do what it can to rehabilitate you when the opportunity arises. To me those references and the other qualities you undoubtedly have just emphasise the sadness of the effects of methamphetamine on young people who otherwise could be making, and sometimes are also making, valuable contributions to the community. At the same time it is an insidious drug and they are causing wide-ranging, adverse consequences as your mother, indeed, acknowledges.

[30] And generally speaking with serious drug offending the extent to which personal qualities can be given effect is limited. I am asked here to give some discount to recognise your personal qualities, particularly the fact that you made efforts when you were released to get up and running a new business which apparently has been reasonably successful and of course it was referred to at trial. But that has to be tempered, and in my view it is cancelled out by, the fact that at the same time you have promptly reverted to offending in this way. So while I do not dispute that you were beginning to do some good things in one corner of your life, at the same time you were reverting to serious drug offending. I am not prepared to give a discount in those circumstances.

[31] I have looked, of course, at the pre-sentence report. I have not said much about it because consistently with your position of denial and innocence there obviously is no remorse, it would be inconsistent if you did have remorse. There there is an observation about your sense of entitlement which is obviously not a positive comment. But I do not see that as aggravating just perhaps the absence of a potentially mitigating factor; if your attitude was one of remorse and desperation in the face of an addiction you could not control. You are not in that category. You are not an addict. You are somebody who was doing this purely for money and regardless of the harm that it would cause to those who acquired the methamphetamine from you.

[32] I come to the conclusion that an end sentence of three and a half years’ imprisonment is the least restrictive I can properly apply and that will be the term of imprisonment. There are some consequential orders as you heard discussed. I make orders for:

(a) Destruction of the pipes, the bag and the scales that were found with the drugs.

(b) Forfeiture of the $3000 cash, of the vehicle, the Nissan Elgrand [number plate deleted] vehicle

[33] Those orders are made respectively under ss 32(3) and (4) of the Misuse of Drugs Act 1975. I am readily satisfied on the evidence the jury and I heard that the vehicle was used in the commission of the offence

S M Harrop

District Court Judge