THE QUEEN v KARL WILLIAM ANDRELL [2002] NZCA 214 (29 August 2002)

IN THE court of appeal of new zealand

ca 69/02

THE QUEEN

V

KARL WILLIAM ANDRELL

Hearing:	26 August 2002
Coram:	Anderson J Williams J Salmon J
Appearances:	L J Postlewaight for Appellant
	A E Kiernan for Crown
Judgment:	29 August 2002

judgment of the court DELIVERED BY WILLIAMS J

Issues

[1] The appellant, Mr Andrell, pleaded guilty on arraignment on 18 January 2002 to one count of manufacturing methamphetamine, a Class B controlled drug, at Waipu on 31 January 2001.In addition, on the same date he pleaded guilty pursuant to the Summary Proceedings Act 1957 s 153A to a count of manufacturing methamphetamine at Remuera, Auckland between 20 and 24 May 2001.On 26 February 2002 a District Court Judge sentenced Mr Andrell to cumulative terms of three years' imprisonment on each of those counts.Mr Andrell now appeals to this Court on the grounds that the sentences were manifestly excessive, gave insufficient weight to his guilty pleas, and that the offending did not warrant the imposition of cumulative sentences.

Facts

[2] Northland Police were concerned at the increasing availability of illicit drugs, particularly methamphetamine, in that area of New Zealand.They concluded that there was a drug syndicate operating out of Whangarei which was responsible for the manufacture of methamphetamine and the distribution of that and other drugs.They obtained an interception warrant in relation to another person and intercepted a discussion between Mr Andrell and the other person on 28 November 2000 in which methods of "cooking" methamphetamine were discussed together with other matters such as yield, possible profits and manufacturing difficulties.

[3] On 31 January 2001 Police executed a search warrant on Mr Andrell's home in Waipu.They said they found him manufacturing methamphetamine on their arrival.He decamped into the bush and was not located.At the address the Police located not only methamphetamine but a number of items of chemicals, glassware and other paraphernalia used in its manufacture.All the chemicals necessary to manufacture methamphetamine were present.Tests of the premises disclosed presence of methamphetamine.Over $5600 in cash was found at the address.

[4] Mr Andrell was finally located in Auckland on 30 May 2001 and, though initially denying involvement in the matter, as noted, pleaded guilty on arraignment some nine months later.

[5] The later offence occurred when Mr Andrell booked into an Auckland motel for four days from 21 May 2001, using an alias, and accompanied by his three children.He refused to allow access to cleaners whilst there and after his departure the room was found to smell strongly of chemicals.Methamphetamine was located at a number of sites in the motel.

[6] Mr Andrell then booked into a Takapuna motel on 30 May and it was there he was arrested on the earlier count.Methamphetamine of a value exceeding $1600 was found on his person together with utensils for using methamphetamine. Sufficient chemicals, glassware and precursor substances to make up a complete methamphetamine manufacturing "kit" were also located.Nearly 800 pseudoephedrine-based pills and 28 bottles of cough syrup were found from which some 60 grams of methamphetamine could, according to Police estimates, have been manufactured.At a modest rate of 50% extraction from the raw materials, that may have been worth $48,000-$60,000.Mr Andrell admitted possession of the methamphetamine on his person but denied knowing anything about the chemicals or glassware located at the motel.He maintained that denial until his s 153A admission.

Sentencing

[7] In his sentencing notes, the Judge recounted the Crown's submission that the aggravating features included Mr Andrell's role as the principal offender, the amount of chemicals, the mobile and continuing operation which was transportable and difficult to detect, the potential returns, the fact that he had his children living with him at the two motels and Mr Andrell's previous convictions.Those convictions, as noted by the Judge, included a sentence of two years imprisonment suspended for two years, two years supervision and nine months periodic detention imposed in February 1996 on two counts of selling Class A drugs, three counts of selling Class B drugs and one count each of possession of a Class B drug for supply and manufacturing a Class B drug.Mr Andrell also had convictions and fines for possession or using cannabis in 1985, 1986, 1987 and 1990.The Judge also noted the Crown submission that Mr Andrell's offending fell into the third category in R v Wallace [1999] 3 NZLR 159 and the fact that manufacturing methamphetamine required :

... the conscious assembling of a variety ofchemicals, including dangerous chemicals, and the conducting of a relatively sophisticated chemical procedure... .

[8] The Judge then noted Ms Postlewaight's submissions on behalf of Mr Andrell which drew attention to some success in his drug treatment and his personal circumstances.It was submitted that the Waipu offence was for Mr Andrell's own use.Counsel stressed the fact that Mr Andrell faced only one charge in relation to the Auckland offending despite methamphetamine being found in both locations.She sought discount for the early guilty pleas and pressed for Mr Andrell to be placed in the third category in Wallace, namely a smaller operation with some commercial dealings.

[9] The Judge then expressed the view that:

...it is necessary to take account of the fact that there were two quite separate and deliberate manufacturing operations.

He said Mr Andrell had been "on the run" from the Police after discovery of the methamphetamine and chemicals in the first Auckland motel but had assembled the hardware and chemicals required for a renewed operation only six days later and that the operation was accordingly highly mobile and designed to avoid detection.He rejected the submission that most of the methamphetamine found in Mr Andrell's possession was for his own use.

[10] The Judge took four years imprisonment as the starting point for each offence, allowed one year for the guilty pleas and personal circumstances, directed his attention to the totality principle and the continuation of manufacturing after the Police executed the search warrant at Waipu and decided that the sentences should be cumulative.

Submissions

[11] In relation to the Waipu offence, Ms Postlewaight submitted that as no methamphetamine was located manufacturing had not commenced.She submitted the cash came from the sale of a car and that the offence should be placed within the third category in Wallace.

[12] In relation to the Auckland motel matter, she submitted that the lack of glassware, other implements or chemicals in the motel also suggested the offence was within the third category in Wallace.

[13] She submitted that the Auckland offences occurred because Mr Andrell had separated from his wife and thus had to live in motels, that he was drug dependent and had discussed handing himself in with a Police officer but wanted to spend time with his children.She submitted that the Judge effectively sentenced Mr Andrell on the basis of the implements, paraphernalia, chemicals and other substances located at the second motel though that was not the subject of a charge.She again submitted there was no evidence of manufacturing at that location.She suggested that the fact of there being two manufacturing operations arises in every case where more than one count of manufacturing is preferred and that these were two relatively small operations with the increase in scale only being suggested by what was found at the second motel.She urged us to balance the previous convictions against his efforts at rehabilitation disclosed in the probation report. She submitted there was no evidence that the children were with Mr Andrell when he was manufacturing and she referred to what she submitted was the history of the Waipu offending which preceded the guilty plea which should have led to greater credit being allowed.

[14] The Crown submitted that the Judge's starting point was appropriate and in accordance with the third category in Wallace and that the Judge's identification of the aggravating features was appropriate.The guilty pleas were not entered at the earliest opportunity but several months after commencement of the cases and the cumulative sentences were appropriate for offending separated in time, place and not forming part of the same transaction.The result, Mrs Kiernan submitted, appropriately reflected the totality of Mr Andrell's offending.

Discussion

[15] In our view, Mr Andrell's case has features of both the third and the second category in Wallace (para [31] p 172).This was clearly persistent commercial manufacture over a period of at least four months.The quantity of chemicals discovered in the second Auckland motel within a few days of the offending at the former and the number of traces of methamphetamine strongly suggest more than a modest scale of operation.Further, throughout the time of this offending, it appears Mr Andrell was unemployed from which it may be inferred that he was manufacturing sufficient methamphetamine not just to feed his own addiction but to support himself and to purchase the necessary chemicals to continue the manufacturing process.His manufacturing equipment was seized at Waipu but he had obviously been able to obtain another "kit" and the necessary chemicals by the time of the earlier Auckland offending, that being the equipment seized at Takapuna a few days later.That indicates a degree of sophistication, organisation and determination to continue with his illicit manufacturing process.That said, whilst it may have been open for the Judge to regard Mr Andrell's offending as two separate operations, having regard to his acknowledged drug addiction and the circumstances of his offending, we prefer to regard it as continuing offending persisted in over at least a four month period and displaying a determination to continue.Seen in that light, the aggravating features pressed by the Crown in the District Court fall more properly into place as factors inevitably involved in persistent offending of this kind.

[16] However, aggravating features do include Mr Andrell's involvement of his children in the Auckland offence and at the Takapuna motel.Issues of deterrence, in light of his history of previous convictions, justified a higher starting point in assessing sentence.

[17] As to the pleas of guilty, it is to be noted that the plea to the Waipu offence took place nearly a year after the offence occurred and on arraignment in the District Court.Further, the information relating to the Auckland offence was laid on 11 October 2001 but the guilty plea was not entered until over three months later.

[18] It may be pertinent for us to observe that although this Court's decision in Wallace was delivered only a little over three years ago, the experience of trial Judges in relation to methamphetamine over that period has shown two things.The first is that methamphetamine is a pernicious and highly dangerous drug both in its manufacture and in its effect on those who take it. Even if it is not an offence faced by an accused, it features as a factor in a growing number of serious and violent crimes.The second is that from being a drug only infrequently encountered in the criminal work of the Courts, it is now commonplace and ubiquitous.Police caption summaries regularly inveigh against its prevalence.Counsel suggested that in Northland it may now be supplanting the manufacture of cannabis oil and is involving all levels of the Northland community.Such may also be the case in other parts of the country.

[19] Returning to Mr Andrell's case, because, on the view we take of the facts, the offending should perhaps be seen as continuous rather than two separate operations, we take the view, with respect to the Judge, that the sentences should not have been imposed cumulatively.That said, however, we also take the view that the circumstances of this matter suggest that the starting point for sentencing Mr Andrell on each of these offences should have been approximately at the mid-range of the second category in Wallace or the maximum for the offences, that is to say 6½-7 years, and that the discount for the pleas of guilty to reflect the totality of Mr Andrell's offending should have been 18 months-2 years.

[20] In the result, we are satisfied that the total sentence of 6 years' imprisonment was excessive, and should have been a year shorter.The mechanism to give effect to our view is to quash the sentences on each count and substitute sentences of 5 year's imprisonment in each case but order they be served concurrently.The appeal is allowed to that extent.

[21] There will be orders accordingly.

Solicitors:

Lucy Postlewaight, Whangarei

Crown Solicitor, Auckland