R V ROWE HC DUN T 5691/05

R V ROWE HC DUN T 5691/05 5 May 2006IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY T 5691/05 REGINAvMATTHEW CHARLES ROWEAppearances: R Bates for Crown J Westgate for Prisoner Judgment: 5 May 2006SENTENCE OF HON JUSTICE JOHN HANSEN[1] Matthew Charles Rowe, you have pleaded guilty to one charge of possession for supply of a Class A controlled drug namely lysergic acid. [2] In early October last year the police became aware of drug dealing activities in Dunedin. They carried out a search warrant on your home on 3 November 2005. Located at that address were 35 tabs of lysergic acid, amongst other drug related utensils. These were located in a lounge in a compact disc cover that was hidden between the cushions and the arm rests of the sofa. When the police spoke to you, you accepted ownership of the LSD tablets. You stated you had purchased 40 tabs at a cost of $1,200, that you had taken two for yourself and had given three away to friends. The remaining tabs were to be taken to Nelson over the New Year period where you were hoping to work with friends.[3] I accept at this stage that there was not to be a commercial element of profit in this matter, but, as this Court has noted on a number of occasions, the mere supply of drugs, particularly serious Class A drugs, to friends is as insidious as the sale in many instances. It exposes other people to Class A drugs who may not have otherwise done so. [4] In terms of the statutory requirements, it is necessary for me to take into account the following purposes of sentencing. Firstly, the accountability for harm done to the victim and the community. Secondly, promoting a sense of responsibility or acknowledgement of that harm; and denunciation, deterrence and protection of the community – all three of which are important in cases involving drugs; and, finally, rehabilitation. [5] In terms of the principles of sentencing, I take into account: a) The gravity of the offending and your degree of culpability. In this case I accept that there was not a large amount of drugs involved, that your culpability is one of someone experimenting with drugs amongst your own group of friends and there was no commercial element involved. b) The seriousness of the type of offence in comparison with others. I accept that this is at the lowest end. c) The desirability of consistency. d) That the Court must impose the least restrictive outcome that is appropriate. [6] You are aged 19 years. You have had an excellent background and upbringing. You have let down yourself. You have let down your family. You have let down your friends by actions that can only be described as stupid and idiotic. [7] In some of the references filed on your behalf it is said that you are easily led. I do not accept that you can pass off the blame to others by being easily led. Youimmersed yourself in this particular scene that involved the use of a Class A drug, and you bear full responsibility for that. I accept also, however, that to some extent you may be covering up for others who had some interest in these particular drugs. [8] What is particularly sad is that you are a young man of considerable potential, potential that for some reason to date has not been fulfilled by you. I hope in the future when you can put this behind you, despite the consequences of a conviction and the sentence that I must impose, you will start to fulfil the undoubted potential you have for your own benefit and for the benefit of your friends and family. You have no previous convictions. [9] There are a number of tariff cases that have been referred to by counsel. The leading decision now is R v Fatu CA415/04 18 November 2005, although that dealt with methamphetamine. The Crown relies on that case to say that a starting point of between two and four years is appropriate. Your counsel submits that in the circumstances of this case the culpability is lower and a starting point lower than the three years ultimately contended for by the Crown is appropriate. There are a number of other decisions that are of assistance involving the supply of relatively small amounts of LSD: a) R v Bradley HC ROT CRI2003-063-007235 3 February 2004 is a case involving eight tabs where a six month sentence was imposed. b) R v Lanauze HC CHCH T100-02 8 May 2003 was one where there were 10 trips of LSD but also other drugs involved where a 12 month starting point was taken. c) R v Grant HC CHCH T33-02 16 May 2002 , a case where 60 tabs were involved where two years concurrent was imposed. d) R v Tait HC CHCH T15-02 15 February 2002 involving LSD. e) R v Van Riel HC INV T013938 12 February 2002 which has a number of similarities to your case except the number of tablets was higher,where an effective sentence of 18 months imprisonment was involved and because of the number of tabs of LSD involved home detention was not granted. f) There is also R v Easthope HC WN T1014-00 21 July 2000 and R v Brett HC CHCH T55-00 13 July 2000 which are of assistance. [10] What those cases indicate is that it is appropriate to take a somewhat lower starting point than Mr Bates contended for. The difficulty with those cases is, however, that they have been properly overtaken by Fatu which is now the latest authority of the Court of Appeal that this Court must take into account. [11] In terms of aggravating and mitigating features, there are no previous convictions as I understand it here. Mitigating factors are your age (you are young) and your guilty plea. [12] You determined, for whatever reason, not to plead guilty until after depositions. As this Court has repeatedly said, where persons accept responsibility for their actions by pleading guilty at a very early stage an allowance of up to a third is routinely made. However, where people, for whatever reason, leave it until much later in the piece they cannot expect the same allowance. [13] In this case I have determined against the background of the authorities and the recent authority of Fatu that an appropriate starting point is one of two years and three months imprisonment. From that I will make an allowance of six months imprisonment, giving an effective sentence of one year and nine months imprisonment. If you had pleaded guilty earlier, the allowance that would have been made would have been one of nine months imprisonment, so I trust you and others who come before the Courts see the significance of failing to plead guilty at an early stage. [14] In light of all of your circumstances, particularly the probation report, which is among the most positive I have read from young people involved in drugs, that there is a low risk of re-offending, that this was essentially experimental, and thatyou are motivated and ready to change and start fulfilling your potential, I will grant leave to apply for home detention. [15] Mr Rowe, if you come back before the Courts on drug offences again you will never again be treated this leniently. You must understand that.