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POSIMANI v R [2005] NZCA 55 (21 March 2005)

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POSIMANI v R [2005] NZCA 55 (21 March 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA369/04

THE QUEEN

v

SOLOMON BARTHOLOMEW POSIMANI

Hearing: 14 February 2005

Court: Chambers, Goddard and Salmon JJ

Counsel: S Tait and I Jayanandan for Appellant
K J Glubb for Crown

Judgment: 21 March 2005 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by Goddard J)

Introduction

[1] The appellant pleaded guilty at callover, four days prior to his trial, on charges of theft as a servant (ss 220 and 227(b)(ii) Crimes Act 1961) and possession of a precursor substance with the intention that it be used for the purpose of manufacturing methamphetamine (s 12A(2)(b) Misuse of Drugs Act 1975). The maximum penalties for those offences are seven years imprisonment and five years imprisonment respectively. Judge Blackie imposed a total effective sentence of three years and nine months imprisonment on the charge of possession of the precursor substance and a concurrent sentence of one year imprisonment on the charge of theft as a servant. The appellant has appealed against the total sentence on the ground that it is manifestly excessive and specifically that the starting point adopted of 41/2 years imprisonment for possession of the precursor substance was too high and allowed insufficient credit for the mitigating factors. Those mitigating factors were said to be his guilty pleas and the remorse he expressed to the probation officer, his relative youthfulness (21 years of age), his lack of relevant history and the favourable reports furnished by his current employer and by the probation officer.

Brief facts

[2] At the time of his offending the appellant was employed as a forklift operator working in the inward goods area of a warehouse utilised by a number of companies, one of which stored a pseudoephedrine based product, Robitussin, in the warehouse. The appellant had access to the area where the Robitussin was stored and between 1 April and 30 April 2003 contracted with unidentified associates for the purchase of any Robitussin he was able to steal. He then used a forklift to uplift a pallet of Robitussin, which he loaded into his van and delivered to the associates at a prearranged location. The quantity of Robitussin stolen was 1,925 200ml bottles, for which the appellant was paid approximately $4,500. Based on the potential yield of 1.2g of pure methamphetamine from the pseudoephedrine in each bottle, the total methamphetamine that it is estimated could be manufactured from the stolen Robitussin is around 2.3kg. That quantity of pure methamphetamine has a street value of over $2,000,000.

The sentencing judgment

[3] Judge Blackie approached the sentencing task on the basis that the appellant’s offending was premeditated and planned, and denunciation and deterrence were the overriding factors. He said:

... I am required to denounce your conduct and to impose a sentence which not only will be a deterrent to you so that you do not ever do this again, but will deter other people who might think that they can make a quick dollar by helping themselves to large quantities of these precursor substances. Selling them off to the gangs so they get converted to methamphetamines and then circulated into our community. The Court has got to see and the community expects that this sort of crime will not be seen to pay because if it does then the amount of methamphetamine in our community will increase. It will get worse.

[4] Judge Blackie also placed particular emphasis on the aggravating factor of breach of trust implicit in the act of stealing from an employer. Also, on the value and vast quantity of the precursor substance stolen, as well as its potential for harm in the community. He noted that the appellant’s guilty pleas had been entered very late and observed that the amount of any discount would have to reflect that.
[5] In considering the appropriate starting point for sentence, Judge Blackie referred to the requirement under the Sentencing Act 2002 for the Court to consider imposing the maximum penalty if an offence is the most serious of its type. On this aspect he accepted the Crown’s submission that a starting point of between 4-41/2 years imprisonment for possession of the Robitussin was appropriate, recording that Mr Tait also considered a starting point in the vicinity of four years appropriate. On the facts of the offending he found the appellant’s case to be "almost as serious as it could be", thus meriting the higher starting point of 41/2 years imprisonment. In determining the ultimate penalty he adopted a totality approach and after weighing all relevant factors and giving the appellant some credit for his late guilty pleas and otherwise good character, settled on an effective end sentence of three years nine months imprisonment as appropriate for the charge of possession of the Robitussin. A concurrent sentence of one year imprisonment was imposed for theft of the Robitussin.

The appeal

[6] Mr Tait’s initial approach was to argue that the starting point of 41/2 years adopted by Judge Blackie for the lead sentence was too high. During the course of submissions, however, his focus shifted to the amount of discount that had been allowed for the guilty pleas and the remorse expressed by the appellant. Also, Mr Tait emphasised that only one pallet of Robitussin, on which he placed a value of $300, had been stolen.
[7] Mr Tait referred to the absence of any set tariff for this type of offending and to the multitude of variations in fact and motivation for such offending. He pointed to the sentencing decision of Venning J in R v Te Hei HC ROT CRI-2004-087-265 20 May 2004 as somewhat comparable to the appellant’s situation. Te Hei involved charges of possession of a precursor substance (iodine), possession of a metal par bomb and one charge of manufacturing methamphetamine. Mr Te Hei pleaded guilty on arraignment. No methamphetamine had been found but there was a strong inference that a recent manufacture had been carried out. Mr Te Hei had gang associations and prior convictions for drug-related offending. He was assessed as having a high risk of reoffending and low motivation to change. Venning J adopted four years as the relevant starting point for the totality of his offending and reduced that to three years imprisonment to reflect his early guilty pleas, which were the only mitigating factor. The sentence of three years imprisonment was imposed on the charge of manufacturing methamphetamine, with concurrent sentences of 15 months imprisonment imposed for possession of the iodine and the par bomb. Mr Tait submitted that a similar sentence of 15 months imprisonment for the charge of possession of the Robitussin would have been appropriate in the appellant’s case.
[8] Mr Tait’s essential argument was that the sentence was manifestly excessive because it was crushing and left little room for any rehabilitative outcome and failed to give the credit usually recognised for guilty pleas and genuine remorse.

Discussion

[9] It is convenient to commence with a consideration of the seriousness of the facts supporting the charge of possession of a precursor substance in this case. On any analysis the offence committed by the appellant must be categorised as very serious and at the top end of the scale for that offence. The value of the Robitussin he stole was not to be calculated simply by reference to the retail price for which each bottle would sell in pharmacies: rather, its value is to be calculated by reference to the potential yield of pure methamphetamine from the pseudoephedrine in each bottle, the total amount of which is estimated at around 2.3kg. That quantity of pure methamphetamine would command a street value of over $2 million. Those figures provide the true measure of the appellant’s criminality, along with the fact that he obtained possession of the Robitussin by abusing his position of trust as an employee and the fact that he committed theft to order for associates, said to be gang members. All of those factors place his offending in the most serious category.
[10] The situation in Te Hei was quite dissimilar and the case can be distinguished on that basis. The precursor substance there involved was iodine for use in the conversion process, whereas the precursor substance involved in the appellant’s case was a large amount of pseudoephedrine for extraction and conversion into methamphetamine.
[11] Insofar as the mitigating factors are concerned, the allowance made by Judge Blackie for those was appropriate in the circumstances. The appellant’s guilty pleas were entered at the final callover, only four days before his trial was due to commence. On that basis they cannot possibly be described as early pleas and cannot hope to attract the type of significant reduction referred to by Venning J in Mr Te Hei’s case. The appellant’s expressions of remorse to the probation officer, who wrote his pre-sentence report, were very late sentiments and are to be viewed in the context of his refusal to identify the associates to whose order he stole the Robitussin and his failure to co-operate with the police in any meaningful way.
[12] The most comparable sentencing decision is that of R v Albert HC AK CRI 2004-004-1493 29 June 2004, which concerned the importation of 4.7kg of pseudoephedrine powder into New Zealand, with a potential yield of 2.35kg of methamphetamine and a street value of between $1.4-2.35 million. Nicholson J considered that the facts in Albert brought it near to the most serious of cases and adopted a starting point of 41/2 years. An end sentence of three years imprisonment was deemed appropriate after allowing a reduction for the early guilty plea (prior to depositions) and the prisoner’s previous good character.
[13] Given the circumstances, we are satisfied that the appellant was appropriately sentenced for the totality of his offending and that the few mitigating factors were adequately taken into account.

Conclusion

[14] The appeal is dismissed.

Solicitors:
Crown Solicitors, Auckland

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[6]	Mr Tait’s initial approach was to argue that the starting point of 41/2 years adopted by Judge Blackie for the lead sentence was too high. During the course of submissions, however, his focus shifted to the amount of discount that had been allowed for the guilty pleas and the remorse expressed by the appellant. Also, Mr Tait emphasised that only one pallet of Robitussin, on which he placed a value of $300, had been stolen.
[7]	Mr Tait referred to the absence of any set tariff for this type of offending and to the multitude of variations in fact and motivation for such offending. He pointed to the sentencing decision of Venning J in R v Te Hei HC ROT CRI-2004-087-265 20 May 2004 as somewhat comparable to the appellant’s situation. Te Hei involved charges of possession of a precursor substance (iodine), possession of a metal par bomb and one charge of manufacturing methamphetamine. Mr Te Hei pleaded guilty on arraignment. No methamphetamine had been found but there was a strong inference that a recent manufacture had been carried out. Mr Te Hei had gang associations and prior convictions for drug-related offending. He was assessed as having a high risk of reoffending and low motivation to change. Venning J adopted four years as the relevant starting point for the totality of his offending and reduced that to three years imprisonment to reflect his early guilty pleas, which were the only mitigating factor. The sentence of three years imprisonment was imposed on the charge of manufacturing methamphetamine, with concurrent sentences of 15 months imprisonment imposed for possession of the iodine and the par bomb. Mr Tait submitted that a similar sentence of 15 months imprisonment for the charge of possession of the Robitussin would have been appropriate in the appellant’s case.
[8]	Mr Tait’s essential argument was that the sentence was manifestly excessive because it was crushing and left little room for any rehabilitative outcome and failed to give the credit usually recognised for guilty pleas and genuine remorse.

[9]	It is convenient to commence with a consideration of the seriousness of the facts supporting the charge of possession of a precursor substance in this case. On any analysis the offence committed by the appellant must be categorised as very serious and at the top end of the scale for that offence. The value of the Robitussin he stole was not to be calculated simply by reference to the retail price for which each bottle would sell in pharmacies: rather, its value is to be calculated by reference to the potential yield of pure methamphetamine from the pseudoephedrine in each bottle, the total amount of which is estimated at around 2.3kg. That quantity of pure methamphetamine would command a street value of over $2 million. Those figures provide the true measure of the appellant’s criminality, along with the fact that he obtained possession of the Robitussin by abusing his position of trust as an employee and the fact that he committed theft to order for associates, said to be gang members. All of those factors place his offending in the most serious category.
[10]	The situation in Te Hei was quite dissimilar and the case can be distinguished on that basis. The precursor substance there involved was iodine for use in the conversion process, whereas the precursor substance involved in the appellant’s case was a large amount of pseudoephedrine for extraction and conversion into methamphetamine.
[11]	Insofar as the mitigating factors are concerned, the allowance made by Judge Blackie for those was appropriate in the circumstances. The appellant’s guilty pleas were entered at the final callover, only four days before his trial was due to commence. On that basis they cannot possibly be described as early pleas and cannot hope to attract the type of significant reduction referred to by Venning J in Mr Te Hei’s case. The appellant’s expressions of remorse to the probation officer, who wrote his pre-sentence report, were very late sentiments and are to be viewed in the context of his refusal to identify the associates to whose order he stole the Robitussin and his failure to co-operate with the police in any meaningful way.
[12]	The most comparable sentencing decision is that of R v Albert HC AK CRI 2004-004-1493 29 June 2004, which concerned the importation of 4.7kg of pseudoephedrine powder into New Zealand, with a potential yield of 2.35kg of methamphetamine and a street value of between $1.4-2.35 million. Nicholson J considered that the facts in Albert brought it near to the most serious of cases and adopted a starting point of 41/2 years. An end sentence of three years imprisonment was deemed appropriate after allowing a reduction for the early guilty plea (prior to depositions) and the prisoner’s previous good character.
[13]	Given the circumstances, we are satisfied that the appellant was appropriately sentenced for the totality of his offending and that the few mitigating factors were adequately taken into account.