Police v O'Connell [2017] NZDC 15514 (14 July 2017)

Last Updated: 22 November 2017

_{EDITORIAL NOTE: NO SUPRESSION APPLIED}

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2017-054-000220 [2017] NZDC 15514

NEW ZEALAND POLICE THE QUEEN

v

SAMUEL REGAN O'CONNELL Defendant

Hearing:	14 July 2017
Appearances:	B Vanderkolk for the Police T Tran for the Crown P Coles for the Defendant
Judgment:	14 July 2017

_{NOTES OF JUDGE S B EDWARDS ON SENTENCING}

[1] Samuel Regan O’Connell appears for sentence on a number of charges arising from 20 January this year. They are charges of possession of methamphetamine for the purpose of supply, possession of utensils, driving while disqualified third or subsequent, failing to stop for the police and possession of offensive weapons. He is also for sentence on a charge of intentionally obstructing police; the date of that offending is 26 January after he had been remanded in custody.

[2] Just after 1 am on Friday 20 January the defendant was seen driving a Nissan in Upham Terrace in Palmerston North. The police attempted to stop him but he accelerated away travelling at approximately 80 kilometres towards Main Street. He

_{was pulled over near the intersection with upper Main Street. The police found two}

NEW ZEALAND POLICE v SAMUEL REGAN O'CONNELL [2017] NZDC 15514 [14 July 2017]

machetes within easy reach in the car and invoked their search powers. In the back seat foot well there was a satchel containing a snap lock plastic container. In it were two snap lock bags which contained a total of 7.27 grams of a white crystalline powder which the police believed to be methamphetamine. I will refer to it as methamphetamine from now on but note that it’s purity or its status as pure methamphetamine as that term is used in the judgment of R v Fatu,1 (i.e 60% or above) is in dispute. Also found in the bag were digital scales and 24 unused point bags. In the centre console of the car police found $675 in cash and a list of names with monetary amounts next to it, commonly referred to as a tick list. A pipe used to smoke methamphetamine was also found in the car.

[3] The intentional obstruction arose after the defendant was remanded in custody. The defendant’s brother had been charged with aggravated robbery together with a co- defendant in May 2016. The agreed summary of facts records that there were discussions between the defendant and his brother Mr Marshall about what occurred after the aggravated robbery. Mr Marshall the defendant to speak with police. Although the defendant’s recollection of events differed from Mr Marshall’s he told his brother he would go along with his account and on 26 January police took a formal written statement from the defendant which was consistent with what Mr Marshall said had happened.

[4] The principles and purposes of sentencing I must take into account today are the need to hold the defendant accountable for this offending and to deter him and others from this type of offending in the future. In terms of the drug dealing offending there is a need to protect the community. I must take into account any rehabilitative needs the defendant has, impose the least restrictive outcome appropriate in all circumstances and, importantly, I must sentence him in a way which is consistent with the sentences imposed on other offenders for similar offending.

[5] This matter was scheduled to proceed today as a disputed facts hearing on the issue of the purity of the methamphetamine found in the defendant’s car. I set it down for a disputed facts hearing on 31 May on the basis that the defendant indicated when he entered his guilty plea and was remanded for sentence that he did not accept the

_{methamphetamine was of 60 percent or above purity. A direction was made by the}

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

Judge who set this matter down for sentencing that weight and purity were to be determined.

[6] The prosecution elected not to have the methamphetamine analysed for purity but invited me to conclude that purity at 60 percent or above was proved to the required standard for a disputed fact of beyond reasonable doubt on the basis of inferences which could be drawn from the contents of the summary of facts and from photographs of what was found in the defendant’s car. I found the prosecution had not proved the disputed fact of purity to the standard of beyond reasonable doubt.

[7] The issue then becomes how to establish the appropriate starting point for the possession of methamphetamine charge, which is clearly the lead offence for the purpose of sentencing.

[8] I note at this point that the police and Mr Coles agree that the Court of Appeal’s decision in Fatu, at [30], makes it clear that the starting point bands cannot be strictly applied in the absence of purity being established.

[9] The bands the Court of Appeal proposed apply were by reference to the weight of what the market regarded as P; that is a form of the drug in which purity is in the order of, or exceeds, 60 percent. By weight alone, the amount in this case, 7.27 grams, would fall just within band 2 of Fatu. This band covers amounts between five to 250 grams with a starting point range of three to nine years’ imprisonment. Band 1 provides for a starting point range of between two to four years imprisonment for amounts of less than five grams.

[10] The police in their original written submissions proposed a starting point of three years and one month; this was on a mathematical application of band 2. Mr Coles submitted that in the absence of purity being proven the appropriate course would be to adopt a starting point of two years’ imprisonment.

[11] I am not prepared to accept Mr Coles’ submission that in the absence of purity being established a starting point of not more than two years’ imprisonment is appropriate. Rather, I take the view that the evidence shows the methamphetamine was of a marketable quality, although the prosecution have not proved it was 60 percent or above purity. I propose to take the approach of making a percentage

discount from the otherwise appropriate starting point to reflect the fact purity has not been established. I am aided in that decision by a number of related High Court sentencing decisions from 2012, where the prosecutions arose from the same police operation in the Manawatu.2 The purity of the methamphetamine involved was established to be 55 percent. As the discounts given included other factors, the percentage discount afforded for the fact purity was below 60 percent is difficult to discern with certainty, but appears to range from three to seven percent.

[12] On a weight basis, I would place this offending at the bottom of band 2 and adopt a starting point of three years’ imprisonment. As the Fatu guidance makes clear, amount is not the only factor which determines placement within a starting point range. While this amount was close to the bottom of the band there were indications of dealing including the scales, the point bags and the tick list which would warrant a higher starting point. However, given the issue of purity I am going to take what I consider to be the lowest available starting point of three years imprisonment.

[13] I am then going to apply a 10 percent deduction to that starting point to reflect the fact that purity at or above 60 percent has not been established. I do not consider it appropriate to afford any greater discount than that because while the methamphetamine may not have been 60 percent or more pure, there is every indication it was of marketable purity because of the indicia of commercial dealing found in the car. A 10 percent discount equates to around four months, which reduces the sentence to two years and eight months imprisonment.

[14] The other offending that day warrants an uplift of four months’ imprisonment. It was Mr O’Connell’s third conviction for driving while disqualified and the nature of his driving must also be taken into account.

[15] Mr O’Connell, you tried to evade the police at speed in the middle of town and, of course, you had two machetes in the car. That uplift takes the sentence back up to three years’ imprisonment. I consider a further small uplift is appropriate to reflect both your relevant previous convictions and the fact this offending was

_{committed while you were subject to a sentence of community work and on bail on}

2 R v Carroll [2012] NZHC 1837; R v Whakatihi HC PMN CRI 2011-054-463 [12 October 2012]; R v

Matthews [2012] NZHC 3545; R v Van Niekerken [2012] NZHC 3546.

charges of wilful damage and breach of community work.ing that sentence. In terms of relevant previous convictions I am referring to your previous drug convictions as well as your previous conviction for possession of offensive weapon. An uplift of three months takes the sentence up to three years and three months imprisonment.

[16] I turn now to mitigating features. Mr Coles points in particular to the good use you have made of what has been a lengthy period on remand while these matters have been sorted out. You have completed two stages of a three stage alcohol and drug programme. Given the strength and length of your addiction to methamphetamine and the attitude towards it you displayed early on in the remand period, it appears you have made some significant changes. You are the father of a young child and that is all to the good for your future as a father and a role model for your child that you have come to the realisation you need to resist the temptation to use or deal in methamphetamine again. When I mention your attitude, I am referring in particular to comments that you made back in February to Probation which suggested that at that time you had little concern about methamphetamine or its devastating effects. It appears your views are now different. I am going to allow you a four month discount for the rehabilitative efforts you have made, which reduces the sentence down to two years and 11 months’ imprisonment.

[17] You are, in my view, entitled to the full available discount for your guilty pleas. They were entered at a reasonably early opportunity. You clearly signalled that the issue of purity was in dispute and it is through no fault of yours that it has taken some time to resolve this issue. The finding I made at the disputed facts hearing today that the prosecution has not proved purity of 60 percent or above beyond reasonable doubt was in your favour. By my calculations, allowing the maximum available credit results in an end sentence for the offending in January of two years and two months’ imprisonment.

[18] However, there is still the issue of the intentional obstruction charge. It is separate and unrelated offending and warrants a cumulative sentence. There is a provision in s 8 (c) and (d) Sentencing Act 2002 which states that where offending is within the most serious of cases or near to the most serious of cases for which the maximum penalty is prescribed, then the maximum penalty or a penalty near to that maximum should be imposed. You were originally charged with attempting to pervert

the course of justice. You have heard the concerns I have expressed to the Crown prosecutor today about another offender I dealt with recently in relation to your brother. She was charged with attempting to pervert the course of justice and was sentenced to home detention. The starting point I took in her case was two years’ imprisonment. The Crown elected to amend the charge in your case to a charge of intentional obstruction which carries a maximum penalty of three months’ imprisonment. However, I consider your actions in signing a formal written statement for the police in an attempt to assist your brother in relation to the aggravated robbery charge he faced is an example of offending at, or near to, the most serious example of that offence. I take into account that you had been remanded in custody shortly beforehand and that it was your brother you were seeking to assist and take a starting point of 10 weeks or two and a half months imprisonment.

[19] Then there is the question of what discount should apply for your guilty plea. The plea was entered very early to the amended charge but the Court of Appeal has said that the stage at which a plea is entered, in particular to an amended charge, is not always indicative of the discount that should be allowed.3 This is because the fact there has been a plea negotiation process and a defendant has benefited from a lesser charge already amounts to a discount and to then give the full available allowance for a guilty plea would amount to a double benefit. I consider in the circumstances that a

10 percent discount is all that is warranted. This reduces the end sentence on that charge to nine weeks, or two months and one week’s imprisonment.

[20] I must impose sentences on the individual charges. On the charge of possession of methamphetamine for supply, Mr O’Connell, you are sentenced to two years and two months’ imprisonment. On the charge of intentional obstruction you are sentenced to two months and one week’s imprisonment; that is cumulative on the two years and two months, so the total sentence is two years, four months and one week’s imprisonment.

[21] The sentences on the remaining charges of possession of offensive weapons and driving while disqualified are two months’ imprisonment on each, concurrent. The

_{possession of utensils, one month’s imprisonment concurrent. On the failing to stop}

3 R v Hessell [2010] NZSC 135; [2011] 1 NZLR 607, at [62].

charge you are convicted and I will get to the disqualification period shortly. So none of those sentences add to the total.

[22] On the driving while disqualified charge you are disqualified for the minimum period of 12 months that starts from today and on the failing to stop you are disqualified for six months also starting today so that does not add to the total.

[23] I am sure you are aware of this Mr O’Connell but there are no release conditions for me to impose, the length of the sentence means that your release and the conditions of your release will be determined by the Parole Board.

S B Edwards

District Court Judge