Judges advised to follow Australia's drug sentencing guidelines

High Court judges are being told to adopt an Australian system for calculating sentences for supplying Class A drugs such as methamphetamine because Parliament has provided no guidelines.

The instruction came yesterday from the Court of Appeal in Auckland as it delivered its judgment in the appeal of former teacher David Norman Arthur.

Arthur was jailed for two years for low-level supply of between four and seven points of methamphetamine to four teenagers at a party while videotaping them. His appeal was dismissed.

Justice Robert Chambers, delivering the judgment, said the Arthur case was the first to come before the appeal court since methamphetamine was reclassified as a Class A drug in 2003.

Several High Court judges, he said, had expressed regret that they had no "tariff case" or guideline judgment, as the Australians called them.

Although the Arthur judgment did not purport to be a guideline judgment, it would nevertheless guide judges until the Court of Appeal delivered such a judgment.

"It is a matter of some regret that Parliament has not given greater guidance as to the level of penalty appropriate for Class A offending.

"There is a huge difference in culpability between the case of a man who gives a point of methamphetamine to his wife and the case of Mr Big heading a mammoth heroin importation or supervising a meth lab with a million-dollar annual turnover. Yet each in theory is liable to imprisonment for life."

Justice Chambers said the Sentencing Act 2002 did contain helpful purposes and principles, but they were "relatively open textured".

He said several Australian state Parliaments provided guidance, specifying different maximum penalties, depending on the circumstances of the supply.

"That is helpful information for judges, as it focuses on what Parliament considers important features of the offending."

The Court of Appeal is advising High Court judges to adopt the New South Wales starting tariff of two to four years for low-level supply of less than 5g; three to nine years for commercial quantities of between 5g and 250g; and eight years or more for large commercial quantities of over 250g.

It also recommends adopting Queensland's "aggravated supply" to minors, intellectually handicapped, or where the supply was within an educational facility or correctional institution, or if the person supplied did not know he or she had been supplied.

"Even though our statute does not contain this level of detail, we think that the Australian statutes nonetheless provide useful guidance for the administration of penalties under our act," Justice Chambers said.

He said that since the New Zealand Parliament had not legislated for such bands, "clearly the judiciary will have to fill the void" as there was no logical way to approach a sentencing for drug supply other than by fitting the drug within a band of similar quantities.

"Until such time as this court may decide otherwise in a guideline judgment, there may be some advantage if sentencing judges in this country were to adopt the New South Wales bands ... "

Justice Chambers also lamented that because the Misuse of Drugs Act did not distinguish between high- and low-level supply, all offenders were theoretically liable for life imprisonment and therefore had to be tried in the High Court.

"A large number of them fall into the low-level supply category, like Mr Arthur's case.

"It must be queried whether this is a sensible use of High Court judicial firepower," he said.

If, as was the reality, only large commercial quantities could potentially attract a life sentence, other Class A offenders could go to the district court.

Justice Chambers stressed that in fixing the starting ranges, the Court of Appeal was talking about supply cases. Importers or manufacturers might well incur much higher sentences.

LIKELY SENTENCES

Low-level supply (less than 5g): Two to four years.

Commercial quantities (5g-250g): Three to nine years.

Large commercial quantities (more than 250g): Eight years or more.

(Court of Appeal advice to High Court judges, based on New South Wales guidelines).