R v McIntosh [2012] NZHC 3110 (21 November 2012)

Last Updated: 13 January 2013

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-042-2035 [2012] NZHC 3110

THE QUEEN

v

GARETH JOHN MCINTOSH

Counsel: E J Riddell for Crown

JCS Sandston for Defendant

Judgment: 21 November 2012

_{SENTENCING REMARKS OF MACKENZIE J}

[1] Mr McIntosh, you appear for sentence having pleaded guilty to one charge of possession of the Class A controlled drug methamphetamine, for the purpose of supply.[1]

[2] The facts are that on 25 July of this year, you checked into a Nelson motel under an assumed name for a one night stay. You left your room the following morning. When the room was being cleaned, cleaners located a package, that had been left behind, that contained two containers with 11 grams of a crystalline substance.

[3] You returned to your room twice on the following day after you had checked out searching it on the pretext that you were looking for some cash you had left

_{behind. You booked into the same room on that night of 26 July and were located}

R V MCINTOSH HC NEL CRI-2012-042-2035 [21 November 2012]

there by the police the next morning, when a search warrant was executed. The police located digital scales, a pipe used for smoking methamphetamine, $490 in cash and two ‘point’ bags believed to contain methamphetamine. During a search of your vehicle, the police also discovered a key to a storage unit.

[4] The storage unit was searched pursuant to a search warrant. The unit contained a vehicle registered in your name. In the spare wheel compartment, police located a bag containing two bundles of cash, which amounted to $15,800. A small box contained snap lock bags, and at least two of those contained a white crystalline powder and were of a similar size to ‘point bags’. Your home was also searched. The police located $690 in cash and a number of cell phones.

[5] You admitted to police that the package found in your motel room was yours and it contained methamphetamine. You said that you thought there was about

10 grams of the drug in the containers. You denied selling the drug and said it was all for your own use. You claimed you had purchased 11 grams of methamphetamine paying $9,000 the previous week. You said that the cash was from your wages as a courier driver.

[6] You are 34 years old. At the time of your offending you were living with your mother in Nelson, and were working as a courier driver in the Nelson area. You were in a relationship. Your partner began to suspect that you had been using drugs. That relationship was affected by that, but has been resumed and in a letter to the court, your partner has said you have her unconditional support and she is willing to help you with your rehabilitation. I have also read the other letters provided to the Court from family and your previous employers and they speak highly of you.

[7] At the time of your offending, you were on parole following imprisonment in

2006 for drug-related offending. You have since been recalled to prison to resume serving that sentence. You told your pre-sentence report writer that you had been making good progress on parole and been employed as a driver. But when you went to Auckland for a funeral you met some old associates whom you had been involved with and you started using again. You bought a gram of methamphetamine and took it back to Nelson, but then people you knew found out about it and you shared it

with them. You then next time bought a half ounce, which was the package that you said was found in your motel. Your pre-sentence report writer says that if you are not actively using addictive drugs, you are assessed as at low risk of reoffending and at low risk of harming others, but if you have contact with prior associates who are involved in the use or supply of methamphetamine, that is likely to change.

[9] You told the report writer that you wish to attend the Drug Treatment Unit while in prison and to complete a Departmental Programme to prevent any future relapse. It is quite clear from your offending and on this occasion following your earlier sentence that your methamphetamine addiction is a source of concern and has been the driver behind your offending and you need to address that as I am sure that you know. Your expressed willingness to attend drug treatment is to be commended and I recommend that such steps as are available to ensure that you receive treatment are made available.

[10] You have family support. You need to address your addiction and to address the matters which have led you to this point, or the future is bleak indeed. If you can do that there is prospects of a promising future for you.

[11] In sentencing you, I am required to take into account the purposes and principles of sentencing as set out in the Sentencing Act 2002. I consider the relevant principles to be holding you accountable for your offending, denunciating your offending, deterring you and others from such offending, and ensuring your rehabilitation. That, as I have said, is an important consideration.

[12] I have first to determine the starting point, having regard to the circumstances of your offending.

[13] In setting the starting point I must be guided by the Court of Appeal decision in R v Fatu.[2]

[14] Counsel for the Crown submits that your offending falls within the lower end of band two of Fatu, and that a starting point in the vicinity of four and a half years

imprisonment is warranted to reflect the amount of methamphetamine and cash in your possession. Counsel on your behalf submits that the offending falls at the lower end of band two.

[15] I have considered a number of cases referred to by counsel for the Crown and your counsel in adopting a starting point. The range of starting point for band two offending is between three and nine years imprisonment. That band covers offences involving supply of between five and 250 grams of methamphetamine, but all of the circumstances must be taken into account in determining the banding.

[16] Taking all matters into account including all of the material that has been made available to me in all of the submissions by counsel, including counsel for the Crown, I have concluded that the appropriate starting point in your case is three years.

[17] As I have already said, you have previous convictions for drug-related offending. The most serious offending was in July 2006, when you were sentenced to seven years and nine months imprisonment. I sentenced you on that occasion. That involved very serious dealing in methamphetamine. You were on parole for that offending when you committed the current offending.

[18] I need to consider an uplift for that previous offending. In all of the circumstances and again taking all of the circumstances into account I have decided that an uplift of three months is appropriate to reflect that previous offending. That gives a total of three years and three months.

[19] I must then make an allowance for your guilty plea. That was entered at an early stage and I allow a discount of nine months.

[20] That leaves an end sentence of two years and six months.

[21] As you have been recalled to serve your earlier sentence, I need to consider whether this sentence should be concurrent with that, or cumulative. Because I have

taken that previous offending into account, and because you have been recalled to serve that sentence, I consider that it should be served concurrently.

[22] So, on the charge of possession of methamphetamine for supply, I sentence you to imprisonment for two years and six months.

[23] The Crown seeks an order for the forfeiture of the cash located during the police search of your motel room, home and the storage unit. Your counsel agrees that this is appropriate and there will be an order forfeiting that cash in the sum of

$16,980.

“A D MacKenzie J”

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[1] _{Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2)(a), with a maximum penalty of life imprisonment.}

[2] R v Fatu [2006] 2 NZLR 72 (CA).