Rewita v R [2005] NZCA 284 (23 November 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA276/05

THE QUEEN



v



TAI REWITA

Hearing: 16 November 2005

Court: O'Regan, Baragwanath and Doogue JJ

Counsel: L C Rowe for Appellant
K B F Hastie for Crown

Judgment: 23 November 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1]

The appellant was convicted after a jury trial in the District Court at Tauranga on one count of possession of equipment capable of being used in the manufacture of methamphetamine and two counts of possession of precursor substances (pseudoephedrine and toluene) with the intent that they be used to manufacture methamphetamine. He was sentenced by the trial Judge, Judge Callander, to a term of imprisonment of two and a half years in relation to the three charges. He now appeals to this Court against that sentence.

Sentencing remarks

[2]	The Judge noted that the chemicals and equipment involved in the offending would have been sufficient to produce between 8.6 and 12.9 grams of methamphetamine.
[3]	He referred to the appellant’s previous offending history, particularly a previous offence in 1995 of possession of cannabis plant for the purpose of supply. The Judge noted that there was really nothing that could be said on the appellant’s behalf in terms of mitigating factors.
[4]	The Judge emphasised the need for a deterrent sentence, to make the appellant accountable for his actions, given the serious community problem caused by methamphetamine. He determined that, in all the circumstances, two and a half years’ imprisonment was the appropriate starting point and final sentence for the three methamphetamine charges.
[5]	He also sentenced the appellant for some other minor matters at the same time, but those sentences are not the subject of the appeal.

Submissions

[6]

On behalf of the appellant, Mr Rowe submitted that the sentence was manifestly excessive. He said that the offending occurred when methamphetamine remained a Class B drug. He noted that the estimated amount of methamphetamine which could have been manufactured from the precursor substances (8.6-12.9 grams) would have a potential yield of between $6,000 and $13,000. He accepted that there were no discernible mitigating features and that Mr Rewita had several convictions for possession of cannabis (including one of possession for the purpose of supply), but noted there were no previous convictions relating to Class A or Class B drugs.

[7]

He was critical of the Judge for his apparent reliance on the High Court decision R v Gaylor (HC HAM H25487 14 October 2004 Williams J) in which the offender was sentenced to three years imprisonment. The Judge had adopted a starting point of four years in that case. But Mr Rowe said there were a number of differences between that case and the present case, particularly:

(a) Mr Gaylor was part of a larger operation for which other offenders had received up to nine years imprisonment;
(b) Mr Gaylor offended while subject to a sentence of community work;
(c) The charge was one of possession of laboratory equipment which would have been used to manufacture methamphetamine, and the Judge described the equipment as "an entire complete functioning portable clandestine laboratory";
(d) The equipment was capable of being used to manufacture a class A drug.

[8]

Mr Rowe referred us to a number of other authorities which he said supported his contention that a lower starting point and hence final sentence was justified in this case. He placed particular emphasis on the sentence imposed in R v Shortcliffe HC AK CRI 2004 – 092-9992 15 April 2005 Simon France J. In that case the offender was charged with producing a precursor substance and possession of precursor equipment in relation to methamphetamine, at a time when methamphetamine was classified as a class A drug. The substances had a potential yield of about 3.5 grams of methamphetamine, and Mr Shortcliffe was also found to be in possession of $4,000 in cash. The Court adopted a two year starting point and the final sentence was 19 months, making allowance for mitigating factors including a guilty plea.

[9]

For the Crown, Ms Hastie also referred us to numerous decisions, but placed particular reliance on the decision of this Court in R v McLean CA102/05 18 August 2005. In that case the appellant had pleaded guilty to 12 counts of possession of a precursor substance: she was a "shopper" who purchased these products for methamphetamine manufacturers. The amount purchased by the appellant in that case had a potential to yield 9-14 grams of methamphetamine, valued at $9,000 - $13,000. Methamphetamine was a class A drug at the time of the offending. The sentencing Judge had adopted a starting point of three and half years imprisonment and, after giving credit for the (late) guilty plea and other mitigating factors had imposed an effective sentence of three years imprisonment. On appeal, this Court reduced the starting point to two and a half years and the sentence to 25 months imprisonment.

Discussion

[10]	We accept that offending relating to methamphetamine after its reclassification as a class A drug must be regarded as more serious than similar offending relating to methamphetamine as a class B drug. But we do not accept that the sentence imposed in this case failed to recognise that distinction.
[11]	In our view, there is no inconsistency in approach between the starting point adopted in this case (two and half years), and that adopted in the Gaylor sentence (four years), having regard to the differences between the two cases. And although the starting point adopted in this Court in McLean was two and a half years in a case involving precursor substances having a potential yield of methamphetamine similar in scale to that applying in this case, there are aspects of the present case which make the offending more serious than in McLean. In particular, the offending in McLean (acting as a shopper) involved only the purchase of precursor products for methamphetamine manufacturers, with no involvement in the manufacturing operation. In this case the appellant was found guilty of possession of not only precursor substances, but also of manufacturing equipment, on some of which traces of methamphetamine were found, and chemicals for manufacturing methamphetamine. There was also evidence that a video surveillance camera was in operation on the appellant’s property.
[12]	In the circumstances, we are unable to accept the submission made on behalf of the appellant that the Judge’s starting point in the present case was manifestly excessive. There was no dispute that the Judge was right to make no discount from the starting point, and accordingly we find that the sentence in the present case was within the available sentencing range.

Result

[13]	We dismiss the appeal.

Solicitors:
Armstrong Barton, Wanganui for Appellant
Crown Law Office, Wellington