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The Queen v Townsend [2006] NZCA 53 (30 March 2006)

Last Updated: 21 April 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA141/05

THE QUEEN

v

PETER ALLAN TOWNSEND

Hearing: 7 March 2006

Court: Glazebrook, Wild and Venning JJ

Counsel: S J Gill for Appellant
E M Thomas for Crown

Judgment: 30 March 2006

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed

B An extension of time to appeal against the sentence of three years for the Wainuiomata offending is granted.
C The appeal against sentence is allowed in part. The sentence of three years imprisonment in relation to the Wainuiomata charge is quashed and replaced by a sentence of one year imprisonment, to be served cumulatively on the sentences for the Stokes Valley and Waikanae offending.
D The sentence appeal is otherwise dismissed.

____________________________________________________________________

REASONS

(Given by Glazebrook J)

Introduction

[1] Mr Townsend was convicted following trial for the following offences, all alleged to have occurred on or about 19 December 2003 at a Stokes Valley property ("the Stokes Valley charges"): attempting to manufacture methamphetamine, possession of equipment for the purpose of manufacturing methamphetamine and possession of precursor substances for the purpose of manufacturing methamphetamine.
[2] In addition, Mr Townsend later pleaded guilty to one charge of manufacturing methamphetamine, relating to a methamphetamine laboratory that was operating on 9 March 2004 in Waikanae ("the Waikanae charge") and one charge of manufacturing methamphetamine, relating to a methamphetamine laboratory that was operating on 10 August 2004 in Wainuiomata ("the Wainuiomata charge").
[3] Mr Townsend was sentenced by Frater J in the High Court at Wellington on 15 April 2005 in relation to the Stokes Valley and Waikanae charges to four and a half years imprisonment on the attempted manufacturing charge, together with concurrent sentences of two years imprisonment on the possession of equipment and precursor charges and to a further three and a half years imprisonment on the Waikanae manufacturing charge, the latter being a cumulative sentence. A minimum non-parole period of four years was imposed.
[4] On 25 August 2005 Mr Townsend appeared for sentencing on the Wainuiomata charge. He was sentenced by Goddard J to a further three years imprisonment, to be served cumulatively on the eight years previously imposed. Goddard J, in order to give effect to the totality principle and a late guilty plea, imposed a cumulative term of three years imprisonment from a starting point of five and a half to six years.
[5] Mr Townsend appeals against his conviction on the Stokes Valley charges and his sentence on all charges.

Facts

[6] The Stokes Valley charges arose out of a police operation known as "Operation Who". The operation centred on a house in Stokes Valley, which had been under police surveillance for some time as police suspected that it was being used for the manufacture of methamphetamine. At approximately 3am on 19 December 2003, police officers noticed a light on in the house. A search warrant was obtained. Shortly after 5am the officers returned to the house, together with members of the Armed Offenders Squad and dog handlers.
[7] Inside the house, in an upstairs room, a television set was found with a scanner operating on the police channel. A recipe, printed off the Internet, for the production of methamphetamine was located. Scientific evidence established that chemicals consistent with the manufacture of methamphetamine were at the property. Waste material, commonly associated with the manufacture of methamphetamine, was also located in glass jars and drums. There were glass jars on the stove at the time of the search containing toluene, pseudoephedrine, and a caustic solution.
[8] The expert evidence was as follows:

(a) The chemical reaction that was taking place on the stove at the time the search warrant was executed was part of the process used to extract pseudoephedrine from precursor materials;

(b) All of the equipment and material required to manufacture methamphetamine (including for the pseudoephedrine extraction process) was present at the address, with the exception of hypophosphorous or phosphorus;

(c) Hypophosphorous or phosphorus is essential to the process of manufacturing methamphetamine. Methamphetamine cannot be produced without this ingredient;

(d) The flasks and equipment were not connected or set up in any clandestine laboratory configuration; and
(e) The equipment located had previously been used to manufacture methamphetamine, but the date of that manufacture could not be established.
[9] Although Mr Townsend was not identified as being in the area at that time of the search of the Stokes Valley house, an unidentified male person was observed by police. That person was one of four people seen outside the house at a time consistent with having left the house just prior to the arrival of the police.
[10] Mr Townsend was directly linked to the Stokes Valley house by documents bearing his name found in a vehicle parked at the address. His fingerprints were also found on the jars that were involved in the extraction of pseudoephedrine on the stove at the time of the police arrival at the house.

Grounds of appeal

[11] Mr Townsend’s original notice of appeal recorded the following as being the grounds for the appeal against conviction:

(a) The scientific evidence of analysis of material should not have been admitted as the chain of evidence had not been properly established, thus resulting in a miscarriage of justice; and

(b) The verdicts of the jury were unreasonable or cannot be supported having regard to the evidence.

[12] Since a change of counsel, those grounds were abandoned. The appeal proceeded on the following grounds:

(a) As a matter of law, Mr Townsend’s conduct did not constitute an attempt, as no part of his alleged activities had proceeded beyond mere preparation; and

(b) The trial Judge, Frater J, did not properly direct the jury on which acts or omissions were sufficiently proximate to the offence of manufacturing methamphetamine to constitute an attempt to commit that offence, and which other acts or omissions were too remote to constitute an attempt. This failure was exacerbated by her answer to a jury question.

[13] Mr Gill, for Mr Townsend, submitted that those responsible for the Stokes Valley offending were doing no more than extracting pseudoephedrine. The extraction of pseudoephedrine, where not all the equipment is set up and not all the essential chemicals are present for the manufacture of methamphetamine, is, in Mr Gill’s submission, a process complete in itself and one that is merely preparatory to commencing the process of manufacturing methamphetamine. In his submission, the manufacture of methamphetamine was clearly not going to take place at the Stokes Valley address because of the lack of one of the vital ingredients being either hypophosphorous acid or phosphorus. In addition, the equipment had not even been set up in such a way that the manufacturing process could start, even if the vital chemicals had been assembled.
[14] In view of the clear state of the evidence from the Crown expert about the lack of set up of the equipment to make methamphetamine, the lack of necessary ingredients and the lack of even the pseudoephedrine having been extracted yet, Mr Gill submitted that there should have been more assistance given to the jury in relation to what acts could be sufficiently proximate to the charge of manufacturing methamphetamine to amount to an attempt.
[15] As to the jury question, Mr Gill submitted that the first problem with the answer is that the Judge indicated by the use of the phrase "they have actually got to the point of manufacturing methamphetamine" that the accused were involved with the process that was taking place, even though that itself had been denied by all accused. The second problem was that merely referring the jury back to the memorandum did not give sufficient assistance as to what might constitute an attempt.
[16] Mr Townsend also appeals against sentence on the basis that the overall sentence (including the minimum non-parole period) was manifestly excessive.

The Crown’s position

[17] Mr Thomas, for the Crown, submitted that it is plain from the evidence of Dr Hugel that the manufacture of methamphetamine commences with the extraction of pseudoephedrine from precursor substances. That step had already been taken at the Stokes Valley address at the time that the police conducted their search warrant. Accordingly, the acts concerned had gone beyond mere preparation and were a real and practical step towards the manufacture of methamphetamine.
[18] As to the direction to the jury, Mr Thomas accepted that the question of whether or not a particular act is sufficiently proximate to constitute an offence is a question of law. However, he submitted that, in this case, it never formed part of the defence case, on behalf of any of the accused, that the acts done and discovered by the police were not sufficiently proximate to the manufacture of methamphetamine to constitute an attempt. Essentially each of the accused attempted to distance himself from the operation, and to argue that methamphetamine had not been manufactured in any event. In the circumstances, therefore, it was submitted that the trial Judge was not required to provide any further direction to the jury than she did.
[19] Mr Thomas submitted that the position remains unaffected by the answer to the jury question. He submitted that it is plain from the question itself that the jury had properly turned its mind to the question of whether the stage had been reached in the process where it was proven beyond reasonable doubt that methamphetamine had been manufactured. The answer to the question was appropriate, and particularly the Judge’s reference back to the directions on attempts in her memorandum.
[20] Further, Mr Thomas submitted that there is no mischief in the use of the word "they", as it was apparent that the jury considered that a methamphetamine manufacturing operation was underway, for which obviously some person or persons were responsible. The choice of words by the Judge was innocent and cannot be said to have prejudiced Mr Townsend.
[21] As to sentence, Mr Thomas acknowledged that the total overall sentence of 11 years was stern but submitted that it was not manifestly excessive.

Directions to the Jury

[22] In her summing up, Frater J directed in the following manner with regard to attempts:

[33] And under s 72 of the Crimes Act, it is a crime to attempt to commit a crime even if, for whatever reasons, that attempt is unsuccessful. To prove an attempted crime, the Crown must prove two elements:

1. First, that the accused formed an intention to commit that crime, in this case manufacturing the controlled drug, methamphetamine; and

2. Second, that the accused did some act for the purpose of actually carrying that intention into effect.

[34] Both factors are important, but it is the second one that needs particularly careful consideration You must be satisfied that what the accused did was for the purpose of actually beginning to commit the crime. Acts that are part of just thinking about it, or preparation for making the attempt to commit it, are not sufficient.

[23] The Judge also provided a written memorandum to the jury, where the law on attempts was put in substantially the same terms.
[24] The jury question and the Judge’s answer complained of by Mr Townsend were as follows:

[137] Madam Foreman, members of the jury. I have your question. The question that I have received is:

"Can several steps along the chain of manufacturing a Class A drug be deemed to be the manufacture of a Class A drug?"

[138] The short answer to that question is no, if you are not satisfied that they have actually got to the point of manufacturing methamphetamine. But in that case you should look at my memorandum in respect of Count 2 and if you are satisfied that what was going on or what was happening was part of an ongoing process, that could amount to an attempt to manufacture, even though the chain of manufacturing was not complete. But obviously that is a matter for you to determine on the basis of the facts that are before you.
[139] So I leave you to contemplate that. If you have further clarification that you want after you have discussed that answer, come back to me.

Discussion of conviction appeal

[25] Mr Gill accepted that the extraction of pseudoephedrine is capable of being the first step in the process of manufacturing methamphetamine and thus that it can be an act undertaken for the purpose of carrying an intention to manufacture methamphetamine into effect. His argument was that it could not be so in this case because of the missing vital ingredient and the equipment not being set up.
[26] We do not accept this submission. In our view, the jury were entitled to infer that the extraction was an act undertaken for the purpose of manufacturing methamphetamine, given the evidence of Dr Hugel that the extraction of pseudoephedrine is the first stage in the process of manufacturing methamphetamine, the presence at the house of equipment and chemicals used in the manufacture of methamphetamine and the evidence that showed that methamphetamine had, at some stage, been manufactured at the address. Particularly in light of the last factor the jury were, in our view, entitled to come to the conclusion that the extraction was more than preparatory, despite the lack of a vital ingredient and the fact that the equipment was not set up.
[27] As to the directions given, we consider these to have been adequate. We agree with Mr Gill that the Judge could have given the jury more help on the facts but we do not consider the failure to do so caused a miscarriage of justice, particularly as this point did not form a part of Mr Townsend’s case at trial. The extraction of pseudoephedrine is capable, as conceded by Mr Gill, of being an act done for the purpose of manufacturing methamphetamine. We have held that, despite the lack of a set up laboratory and a vital ingredient, it was capable of being so in this case. The jury would have to have been instructed accordingly. Such an instruction would have provided no obvious benefit to Mr Townsend.
[28] As the answer to the jury question in effect mirrored the earlier directions, we accept the Crown’s submission that the answer to the jury question was also adequate. We also accept the Crown submission that the use of the word "they" was generic and not a reference to the accused.
[29] The jury were correctly instructed that they had to be sure that Mr Townsend had the intention to manufacture methamphetamine and also to be sure that he had done some act to carry that intention into effect. They had heard the relevant evidence and there is no reason to suppose that they did not take it into account in coming to their decision. We accept the Crown submission that the jury’s question in fact shows that they were well aware of the importance of the issue as to the particular stage of manufacture that had been reached.

Sentence appeal

Extension of time

[30] Mr Townsend’s original notice of appeal covered only the sentences imposed by Frater J. Mr Townsend now seeks an extension of time to appeal against the three year sentence imposed by Goddard J for the Wainuiomata charge on the grounds that the total sentence of 11 years is manifestly excessive in the circumstances. We grant that application so that the total sentence can be assessed. The extension of time was not opposed by the Crown.

Parties’ submissions

[31] On the sentence appeal, Mr Gill submitted that the offending with regard to all of the sentences imposed by Frater J was connected and arose out of the same course of criminal conduct. In addition, there was nothing about the offending justifying the imposition of a non-parole period. With regard to the Wainuiomata offending (which took place while Mr Townsend was on bail) his submission was that too little regard was had for the totality principle, although it was accepted that a cumulative sentence was inevitable. In Mr Gill’s submission an eleven year sentence was excessive for a 32 year old man who, prior to his methamphetamine addiction, had received community based sentences for offending which was largely at the lower end of the scale and was mostly traffic related.
[32] Mr Thomas, for the Crown, submitted that the repeated, continuous and sophisticated offending showed a blatant disregard for the process of law and must place Mr Townsend at a very high level of culpability. Accordingly, in the Crown’s submission, the totality principle does not warrant any further reduction in sentence than that already provided by Goddard J. The Crown further submitted that the minimum non-parole period, representing half of the sentence imposed by Frater J, was not manifestly excessive given the commercial nature of the Stokes Valley operation, the second manufacturing operation at Waikanae and the overall seriousness of the offending.

Discussion

[33] While we accept the Crown’s submission that this was persistent offending, it was on a relatively moderate scale. The Crown accepts that all of the offending was of a kind to come within band two as set out at [43] of R v Fatu CA415/04 18 November 2005, being four to eleven years imprisonment.
[34] In the circumstances, we accept Mr Gill’s submission that, on a totality basis, the sentence of 11 years (being at the top of the band) was manifestly excessive. We consider a total sentence of nine years to be appropriate. This means that the sentence for the Wainuiomata offending should only have been for an additional one year.
[35] As to the minimum non-parole period, we accept the Crown submission that there was nothing wrong in principle with the imposition of a minimum non-parole period and that its length cannot be said to be manifestly excessive.

Result

[36] The appeal against conviction is dismissed.
[37] The appeal against sentence is allowed in part in that the sentence for the Wainuiomata offending is reduced to one year imprisonment to be served cumulatively on the sentences for the Stokes Valley and Waikanae offending.
[38] The sentences for the Stokes Valley and Waikanae offending, including the minimum non-parole period, are confirmed.

Solicitors:
Gill & McAsey, Lower Hutt for Appellant
Crown Law Office, Wellington

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[1]	Mr Townsend was convicted following trial for the following offences, all alleged to have occurred on or about 19 December 2003 at a Stokes Valley property ("the Stokes Valley charges"): attempting to manufacture methamphetamine, possession of equipment for the purpose of manufacturing methamphetamine and possession of precursor substances for the purpose of manufacturing methamphetamine.
[2]	In addition, Mr Townsend later pleaded guilty to one charge of manufacturing methamphetamine, relating to a methamphetamine laboratory that was operating on 9 March 2004 in Waikanae ("the Waikanae charge") and one charge of manufacturing methamphetamine, relating to a methamphetamine laboratory that was operating on 10 August 2004 in Wainuiomata ("the Wainuiomata charge").
[3]	Mr Townsend was sentenced by Frater J in the High Court at Wellington on 15 April 2005 in relation to the Stokes Valley and Waikanae charges to four and a half years imprisonment on the attempted manufacturing charge, together with concurrent sentences of two years imprisonment on the possession of equipment and precursor charges and to a further three and a half years imprisonment on the Waikanae manufacturing charge, the latter being a cumulative sentence. A minimum non-parole period of four years was imposed.
[4]	On 25 August 2005 Mr Townsend appeared for sentencing on the Wainuiomata charge. He was sentenced by Goddard J to a further three years imprisonment, to be served cumulatively on the eight years previously imposed. Goddard J, in order to give effect to the totality principle and a late guilty plea, imposed a cumulative term of three years imprisonment from a starting point of five and a half to six years.
[5]	Mr Townsend appeals against his conviction on the Stokes Valley charges and his sentence on all charges.

[6]	The Stokes Valley charges arose out of a police operation known as "Operation Who". The operation centred on a house in Stokes Valley, which had been under police surveillance for some time as police suspected that it was being used for the manufacture of methamphetamine. At approximately 3am on 19 December 2003, police officers noticed a light on in the house. A search warrant was obtained. Shortly after 5am the officers returned to the house, together with members of the Armed Offenders Squad and dog handlers.
[7]	Inside the house, in an upstairs room, a television set was found with a scanner operating on the police channel. A recipe, printed off the Internet, for the production of methamphetamine was located. Scientific evidence established that chemicals consistent with the manufacture of methamphetamine were at the property. Waste material, commonly associated with the manufacture of methamphetamine, was also located in glass jars and drums. There were glass jars on the stove at the time of the search containing toluene, pseudoephedrine, and a caustic solution.
[8]	The expert evidence was as follows:

(d)	The flasks and equipment were not connected or set up in any clandestine laboratory configuration; and
(e)	The equipment located had previously been used to manufacture methamphetamine, but the date of that manufacture could not be established.
[9]	Although Mr Townsend was not identified as being in the area at that time of the search of the Stokes Valley house, an unidentified male person was observed by police. That person was one of four people seen outside the house at a time consistent with having left the house just prior to the arrival of the police.
[10]	Mr Townsend was directly linked to the Stokes Valley house by documents bearing his name found in a vehicle parked at the address. His fingerprints were also found on the jars that were involved in the extraction of pseudoephedrine on the stove at the time of the police arrival at the house.

[13]	Mr Gill, for Mr Townsend, submitted that those responsible for the Stokes Valley offending were doing no more than extracting pseudoephedrine. The extraction of pseudoephedrine, where not all the equipment is set up and not all the essential chemicals are present for the manufacture of methamphetamine, is, in Mr Gill’s submission, a process complete in itself and one that is merely preparatory to commencing the process of manufacturing methamphetamine. In his submission, the manufacture of methamphetamine was clearly not going to take place at the Stokes Valley address because of the lack of one of the vital ingredients being either hypophosphorous acid or phosphorus. In addition, the equipment had not even been set up in such a way that the manufacturing process could start, even if the vital chemicals had been assembled.
[14]	In view of the clear state of the evidence from the Crown expert about the lack of set up of the equipment to make methamphetamine, the lack of necessary ingredients and the lack of even the pseudoephedrine having been extracted yet, Mr Gill submitted that there should have been more assistance given to the jury in relation to what acts could be sufficiently proximate to the charge of manufacturing methamphetamine to amount to an attempt.
[15]	As to the jury question, Mr Gill submitted that the first problem with the answer is that the Judge indicated by the use of the phrase "they have actually got to the point of manufacturing methamphetamine" that the accused were involved with the process that was taking place, even though that itself had been denied by all accused. The second problem was that merely referring the jury back to the memorandum did not give sufficient assistance as to what might constitute an attempt.
[16]	Mr Townsend also appeals against sentence on the basis that the overall sentence (including the minimum non-parole period) was manifestly excessive.

[17]	Mr Thomas, for the Crown, submitted that it is plain from the evidence of Dr Hugel that the manufacture of methamphetamine commences with the extraction of pseudoephedrine from precursor substances. That step had already been taken at the Stokes Valley address at the time that the police conducted their search warrant. Accordingly, the acts concerned had gone beyond mere preparation and were a real and practical step towards the manufacture of methamphetamine.
[18]	As to the direction to the jury, Mr Thomas accepted that the question of whether or not a particular act is sufficiently proximate to constitute an offence is a question of law. However, he submitted that, in this case, it never formed part of the defence case, on behalf of any of the accused, that the acts done and discovered by the police were not sufficiently proximate to the manufacture of methamphetamine to constitute an attempt. Essentially each of the accused attempted to distance himself from the operation, and to argue that methamphetamine had not been manufactured in any event. In the circumstances, therefore, it was submitted that the trial Judge was not required to provide any further direction to the jury than she did.
[19]	Mr Thomas submitted that the position remains unaffected by the answer to the jury question. He submitted that it is plain from the question itself that the jury had properly turned its mind to the question of whether the stage had been reached in the process where it was proven beyond reasonable doubt that methamphetamine had been manufactured. The answer to the question was appropriate, and particularly the Judge’s reference back to the directions on attempts in her memorandum.
[20]	Further, Mr Thomas submitted that there is no mischief in the use of the word "they", as it was apparent that the jury considered that a methamphetamine manufacturing operation was underway, for which obviously some person or persons were responsible. The choice of words by the Judge was innocent and cannot be said to have prejudiced Mr Townsend.
[21]	As to sentence, Mr Thomas acknowledged that the total overall sentence of 11 years was stern but submitted that it was not manifestly excessive.

[23]	The Judge also provided a written memorandum to the jury, where the law on attempts was put in substantially the same terms.
[24]	The jury question and the Judge’s answer complained of by Mr Townsend were as follows:

[25]	Mr Gill accepted that the extraction of pseudoephedrine is capable of being the first step in the process of manufacturing methamphetamine and thus that it can be an act undertaken for the purpose of carrying an intention to manufacture methamphetamine into effect. His argument was that it could not be so in this case because of the missing vital ingredient and the equipment not being set up.
[26]	We do not accept this submission. In our view, the jury were entitled to infer that the extraction was an act undertaken for the purpose of manufacturing methamphetamine, given the evidence of Dr Hugel that the extraction of pseudoephedrine is the first stage in the process of manufacturing methamphetamine, the presence at the house of equipment and chemicals used in the manufacture of methamphetamine and the evidence that showed that methamphetamine had, at some stage, been manufactured at the address. Particularly in light of the last factor the jury were, in our view, entitled to come to the conclusion that the extraction was more than preparatory, despite the lack of a vital ingredient and the fact that the equipment was not set up.
[27]	As to the directions given, we consider these to have been adequate. We agree with Mr Gill that the Judge could have given the jury more help on the facts but we do not consider the failure to do so caused a miscarriage of justice, particularly as this point did not form a part of Mr Townsend’s case at trial. The extraction of pseudoephedrine is capable, as conceded by Mr Gill, of being an act done for the purpose of manufacturing methamphetamine. We have held that, despite the lack of a set up laboratory and a vital ingredient, it was capable of being so in this case. The jury would have to have been instructed accordingly. Such an instruction would have provided no obvious benefit to Mr Townsend.
[28]	As the answer to the jury question in effect mirrored the earlier directions, we accept the Crown’s submission that the answer to the jury question was also adequate. We also accept the Crown submission that the use of the word "they" was generic and not a reference to the accused.
[29]	The jury were correctly instructed that they had to be sure that Mr Townsend had the intention to manufacture methamphetamine and also to be sure that he had done some act to carry that intention into effect. They had heard the relevant evidence and there is no reason to suppose that they did not take it into account in coming to their decision. We accept the Crown submission that the jury’s question in fact shows that they were well aware of the importance of the issue as to the particular stage of manufacture that had been reached.

[33]	While we accept the Crown’s submission that this was persistent offending, it was on a relatively moderate scale. The Crown accepts that all of the offending was of a kind to come within band two as set out at [43] of R v Fatu CA415/04 18 November 2005, being four to eleven years imprisonment.
[34]	In the circumstances, we accept Mr Gill’s submission that, on a totality basis, the sentence of 11 years (being at the top of the band) was manifestly excessive. We consider a total sentence of nine years to be appropriate. This means that the sentence for the Wainuiomata offending should only have been for an additional one year.
[35]	As to the minimum non-parole period, we accept the Crown submission that there was nothing wrong in principle with the imposition of a minimum non-parole period and that its length cannot be said to be manifestly excessive.

[36]	The appeal against conviction is dismissed.
[37]	The appeal against sentence is allowed in part in that the sentence for the Wainuiomata offending is reduced to one year imprisonment to be served cumulatively on the sentences for the Stokes Valley and Waikanae offending.
[38]	The sentences for the Stokes Valley and Waikanae offending, including the minimum non-parole period, are confirmed.