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Last Updated: 2 February 2018
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IN
THE COURT OF APPEAL OF NEW ZEALAND
CA374/06
[2007] NZCA 305
THE
QUEEN
v
RONGOMAI
NGAIWI ERU TE RURE
THE
QUEEN
v
ANTHONY
DAVID WATSON
Hearing: 14 March 2007
Court: William Young P, Chambers and Wilson JJ
Counsel: C L Mander for Crown
P H B Hall for Mr Te Rure
J
R Rapley for Mr Watson
Judgment: 20 July 2007 at 4pm
|
JUDGMENT OF THE COURT
|
B The
appeals are allowed.
(1) Conspiracy to manufacture methamphetamine – three years six months’ imprisonment (cumulative on the existing sentence of two years three months’ imprisonment passed on 19 July 2006 in respect of Mr Te Rure’s 2004 offending, namely possession of equipment for the manufacture of methampethamine).
(2) Receiving – six months’ imprisonment (concurrent).
(1) Conspiracy to manufacture methamphetamine – three years six months’ imprisonment;
(2) Cultivation of cannabis – one year’s imprisonment (cumulative).
____________________________________________________________________
REASONS OF THE COURT
Introduction
[1] On 15 September 2006, the appellants were each sentenced by Panckhurst J in the High Court at Christchurch to two and a half years imprisonment. Mr Te Rure was sentenced to two years on one count of conspiracy to manufacture methamphetamine and six months (cumulative) on one charge of receiving. The resulting two and a half year sentence was to be cumulative on a sentence of two years and three months imprisonment that was imposed on 19 July 2006 for unrelated offending in 2004. Mr Watson was also sentenced to two years imprisonment on one count of conspiracy to manufacture methamphetamine, as well as six months (cumulative) on one charge of cultivating cannabis.
[2] The Solicitor-General appeals against the two-year sentences for conspiracy to manufacture methamphetamine, as well as the six-month sentence imposed on Mr Watson for cultivation of cannabis, on the basis that those sentences are manifestly inadequate.
Background
[3] Mr Te Rure, Mr Watson and a female co-offender were charged following a Police operation in 2005 that included surveillance of a property in Port Hills Road, Christchurch and the execution of an interception warrant and two covert search warrants. On 2 July 2005, the Police intercepted sounds consistent with manufacture of methamphetamine. Armed Offenders Squad officers went to the property in the early evening but were unable to gain entry for about 25 minutes. Panckhurst J found that, during that time, Mr Te Rure, Mr Watson and the female co-offender had been destroying glassware and otherwise disposing of evidence as fast as possible. Although no methamphetamine was found at the scene, a subsequent examination by scientists from the Institute of Environmental Science and Research found traces of chemicals and other relevant materials in the toilet system, as well as further evidence consistent with an unknown amount of methamphetamine having been manufactured.
[4] Mr Watson’s charge of cultivating cannabis arose from the execution of a search warrant at his home, also on 2 July. A sophisticated cannabis-growing operation was found in the garage. The set-up was not hydroponic but included lights, fans, pumps and a spray unit for watering. The Police found one mother plant, three mature plants, about 180 seedlings under cultivation, and three bottles of isopropyl acid (a chemical used to extract resin from cannabis leaf).
Sentencing remarks
[5] Panckhurst J treated the conspiracy to manufacture methamphetamine as the lead offence for sentencing purposes. He identified R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) as the guideline judgment for the supply, importation and manufacture of methamphetamine, noting that the sentence ranges identified in that case required a downwards adjustment to reflect the difference in maximum penalty between manufacturing (life imprisonment) and conspiring to manufacture methamphetamine (14 years imprisonment).
[6] His Honour referred to this Court’s comments in Fatu about the difficulties in sentencing on the basis of the actual amount of methamphetamine involved, as the amount found is often a matter of chance. Because no actual quantities of the drug were found in this case, Panckhurst J had to make a realistic assessment of what must have been involved. He found the methamphetamine offending in this case to be determined, serious and commercially motivated. Against that, he acknowledged that the period of offending was short (just over two weeks) and that there was no evidence of actual yields.
[7] His Honour then went on to assess the individual circumstances of the offenders.
Mr Te Rure
[8] Mr Te Rure was 38 years of age when sentenced and has an extensive criminal history, although he had an offence-free period between 1991 and 2001. Most of his prior offending is dishonesty-related. His pre-sentence report conveyed that he had a “raging” drug problem that had contributed to his offending in recent years. He had not been in prison prior to July 2006, when he was sentenced to two years three months imprisonment for the possession of equipment for the manufacture of methamphetamine in 2004. At that time he also received concurrent sentences for the possession of methamphetamine and cannabis, multiple receiving offences and two offences under the Arms Act 1983.
[9] Panckhurst J considered that the two charges faced by Mr Te Rure on this occasion were distinct and both were serious, thus requiring cumulative rather than concurrent sentences. He adopted a starting point for the conspiracy charge of two years six months and allowed a six-month discount for Mr Te Rure’s guilty plea. To the resulting two-year sentence he added a further six months for the receiving charge.
[10] Because Mr Te Rure was already serving a prison sentence, Panckhurst J also considered the totality principle. He found that cumulative sentences would not be inappropriate. Mr Te Rure was thus left with a total sentence of four years nine months imprisonment for the two sets of offending.
Mr Watson
[11] At the time of sentencing, Mr Watson was 42 and married with three children. He had been a shearer for most of his adult life, until forced to give up that occupation in 2002 because of an injury. He had more than 100 previous convictions. His criminal history included both traffic and dishonesty offending, and many convictions for burglary. However, only two of his previous convictions were drug-related, one for possession and one for cultivation of cannabis. Like Mr Te Rure, Mr Watson had also recently had a gap in offending, in his case between 2000 and 2005.
[12] Panckhurst J saw no reason to distinguish between Mr Watson and Mr Te Rure in relation to the conspiracy charge. He took the same starting point of two years six months for Mr Watson and reduced it by six months for the guilty plea.
[13] Panckhurst J considered that the cannabis offending merited a cumulative sentence because it was unrelated to the conspiracy offending. Mr Watson had claimed to need cannabis for pain relief, and the Judge found that this explained his offending to some extent. However, the scale of the operation suggested some commercial involvement, despite the lack of evidence of any actual sales. The fact that the cultivation occurred in Mr Watson’s home, thus exposing his children to that behaviour, was also an aggravating factor. The starting point of nine months was reduced by three months for the guilty plea. The resulting six-month sentence was made cumulative on the two years imprisonment for the conspiracy charge.
Submissions
[14] In relation to the conspiracy charges, the Crown submitted that the sentencing Judge adopted too low a starting point having regard to the nature of the manufacturing operation and the seriousness of the offending. All parties agreed that the applicable sentencing band for this offending was band 2 of Fatu, the lowest available band for charges of manufacturing methamphetamine. Band 2 has a sentencing range of four to 11 years imprisonment.
[15] The Crown suggested that the nature and scale of the offending put it at the “lower middle point of the scale provided within band 2”, particularly as Mr Te Rure and Mr Watson had taken primary organising roles.
[16] Counsel for Mr Te Rure submitted that the bottom of band 2 was appropriate because there was no evidence as to the quantity of methamphetamine actually manufactured and no evidence of sales to any person. In addition, Mr Te Rure’s addiction to methamphetamine meant that the conspiracy must have been at least partly aimed at feeding his own habit.
[17] Counsel for Mr Watson also placed the offending at the bottom of band 2 because of factors such as the relatively short duration of the conspiracy and the lack of evidence of drug yields. He argued that the starting point adopted by Panckhurst J properly reflected the nature and scope of the conspiracy and the extent of Mr Watson’s participation in it. Counsel submitted that the evidence clearly showed Mr Watson to have had a lesser role in the conspiracy than Mr Te Rure, even though the sentencing judge had chosen to treat the co-offenders on a similar footing.
[18] As well as disagreeing as to where this offending fell within band 2, the parties differed as to the discount that should be applied to the band 2 sentencing levels. The Crown argued for a 20 percent discount, citing R v Bryan (CA 239/05 6 July 2006). The respondents cited cases such as R v Savage HC WHA CRI-2005-029-1267 21 July 2006 in support of the proposition that a 30 percent discount may be applied. They pointed out that the maximum penalty for conspiracy is 14 years but the maximum penalty for manufacture is life imprisonment. A strict 30 percent discount shifts the band 2 sentencing range from four to 11 years to 2.8 to 7.7 years imprisonment. The bottom of that adjusted range (two years ten months) is so close to Panckhurst J’s starting point of two years six months that the latter, according to the respondents, cannot be manifestly inadequate.
[19] As to Mr Watson’s cannabis offending, Panckhurst J took a starting point of nine months, without explaining how he arrived at that figure. The Crown submitted that the offending fell within band 2 of R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA). Panckhurst J ascribed to the offending a degree of commerciality, despite there being no evidence of sales. Given the relative sophistication of the growing operation, the Crown submitted that the Judge’s starting point of nine months was therefore manifestly inadequate; the starting point should have been within the range of two to four years.
[20] Counsel for Mr Watson argued that the degree of commerciality was so low that it was open to the Judge to have placed the offending within the top end of band 1, rather than within band 2. A nine-month starting point was therefore properly open to him.
Discussion
[21] The appeal raises the following questions:
- Conspiracy to manufacture:
- (i) How should the Fatu sentence levels be adjusted where the charge is conspiracy to manufacture methamphetamine, rather than manufacture?
- (ii) Following that approach, what sentence range was available to the sentencing Judge for the conspiracy charges?
- (iii) What is the appropriate starting point within that range?
- Cultivating cannabis:
- (i) What sentencing band from Terewi is appropriate for Mr Watson’s cannabis offending?
- (ii) What is the appropriate starting point within that range?
Applying Fatu to conspiracy cases
[22] Fatu was a sentence appeal by an offender who had pleaded guilty to charges of supplying, manufacturing and conspiring to manufacture methamphetamine, along with a number of other offences. During the period of offending, methamphetamine had been reclassified from a Class B to a Class A drug, and this Court took the opportunity to deliver a guideline judgment for methamphetamine offending.
[23] The Court identified four sentencing bands. These were based on the quantity of the drug involved in offending, although the Court noted (at [37]) that:
Cases involving the manufacture of methamphetamine can be problematical. Whether the scale of the offending can be assessed depends very much on chance; the evidence of manufacture on hand at the time of police intervention, volumes of precursor materials located and the availability of extrinsic evidence (for example, in the form of electronic intercepts).
The Court also commented (at [42]) that “[t]he sentence imposed must reflect not only the quantity of the drug involved, but also the role of the particular offender in the manufacturing ring in question.”
[24] Once the bands were defined, the Court set sentence levels for the sale and supply of methamphetamine, then uplifted them by 10 to 20 percent for importation offending and by a further 10 to 20 percent for manufacturing. The resulting bands and sentence levels for primary offenders in methamphetamine manufacturing were (at [43]):
|
Band
|
Description
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Amount
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Sentence levels
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|
Band 1
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Low level offending
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< 5 g
|
Not appropriate for charges of manufacturing, as they will almost always
involve commercial quantities.
|
|
Band 2
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Commercial quantities
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5–250 g
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4–11 years imprisonment
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|
Band 3
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Large commercial quantities
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250–500 g
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10–15 years imprisonment
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Band 4
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Very large commercial quantities
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> 500 g
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13 years to life imprisonment
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[25] It has been accepted by this Court that a reduction of these levels is appropriate where an offender faces a conspiracy charge rather than one of manufacturing methamphetamine (Bryan at [57]). This is consistent with the different maximum penalties for those offences, and with the fact that planning something illegal is logically less serious than actually doing it. However, it is equally logical that, the closer a conspiracy comes to execution, the closer it becomes in seriousness to the actual illegal act being planned.
[26] In Fatu, this Court said that, as a matter of principle, the manufacture of methamphetamine necessarily involved criminality at two levels, the possession of precursor equipment and the use of that equipment to manufacture methamphetamine (at [41]). Where the charge is conspiracy to manufacture methamphetamine, there is a different kind of criminality involved; the making of such an agreement is itself inimical to the public good, whether it goes further or not (R v Henry [1997] 1 NZLR 151 at 152).
[27] Where a conspiracy to manufacture methamphetamine proceeds no further than a theoretical plan, only the third level of criminality requires to be addressed in sentencing. In such cases, offenders should expect a substantial reduction of the Fatu sentencing levels. However, where a plan has been developed to the point of action, the first two levels of criminality must be addressed as well. Where all three levels of criminality are present, offenders should expect a very small discount indeed (see R v Emirali CA 177/06 12 December 2006 at [35]). Sentencing judges should continue to be guided by the proviso that this Court articulated in Fatu (at [40]) that:
As a matter of principle, an offender should only be sentenced in relation to offending which he or she admits or which the Crown can prove. It is not right for an offender to be sentenced on the basis of offending that he or she would or could have committed had the police not intervened. On the other hand, the Courts must take a realistic view of the dynamics of this particular form of offending. Those who gear up to manufacture methamphetamine are not likely to be content with a single "cook". As was recognised in Worth v R [2001] WASCA 303 at para [50], the "practical potential of the operation" must be a relevant consideration.
Available sentencing range
[28] The sentencing judge found that Mr Te Rure and Mr Watson had “geared up in a significant way to manufacture methamphetamine”. They had leased premises specifically for that purpose, and had gone to considerable risk and expense to equip the premises for the production of methamphetamine. Their enterprise clearly had a commercial objective. In addition, the venture had gone beyond the planning stage. Panckhurst J found that an unknown quantity of methamphetamine had been manufactured, and that a “cook” was undoubtedly underway when the Armed Offenders Squad arrived at the property on 2 July. This was “determined, serious and commercially motivated offending”, and scarcely inchoate. Accordingly, we think that the discount applicable to the band 2 range should be very small, no more than five to 10 percent.
[29] A 10 percent discount shifts the sentencing range to one starting at three years seven months and going up to nine years 11 months.
Starting point
[30] In Fatu, this Court noted that “primary offenders can expect starting point sentences towards the higher end of the relevant band, with the converse applying to those whose role is less significant” (at [31]). Mr Te Rure and Mr Watson were undoubtedly the primary offenders here. They formulated a plan to manufacture methamphetamine and set about putting it into action.
[31] Against that, Panckhurst J identified that the period of offending was very short (just over two weeks) and that there was no evidence of actual yields. These features are consequences of the Police stepping in when they did. Had the Police delayed their intervention in order to gather more evidence, the offenders would, in all probability, have faced more serious charges. The fact that the Police forestalled the escalation of this offending does not mitigate what actually occurred. Comments made by this Court in Henry, a case of conspiracy to burgle, illustrate the point (at 153):
There is nothing in the material before the Court to warrant the inference that the conspiracy would have come to an early end without the intervention of the police. Organised criminal activity of this kind calls for a substantial sentence to mark its gravity and as a deterrent to the conspirators and like-minded offenders.
[32] In our opinion, the Crown was generous in seeking to place this offending at the lower middle point of band 2. Mr Te Rure and Mr Watson were key figures in what was potentially very serious offending, and they deserve little credit for the fact that they face charges of conspiracy rather than manufacturing charges.
[33] We consider that four and a half years was the most generous starting point properly open to the sentencing Judge for the conspiracy charges. For each offender, this sentence should be reduced by one year for the guilty pleas. This is consistent with the level of the guilty plea discount applied by Panckhurst J.
Cultivating cannabis
[34] The guideline judgment for the cultivation of cannabis is Terewi, which sets out the following categories of offending (at [4]):
Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a Class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s 6 (1)(e) and (f)).
Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
Category 3 is the most serious class of such offending. It involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.
[35] The line between categories one and two is intended to be the divide between cultivation for personal use and cultivation for commercial purpose (R v Andrews [2000] 2 NZLR 205 at [9] (CA)). In Mr Watson’s case, the scale of cultivation clearly suggested a commercial purpose, albeit small-scale. His offending therefore falls to be sentenced under category two.
[36] The Court in Andrews noted that a lower starting point that the two years may be appropriate where sales are infrequent and of very limited extent. In this case, there was no evidence of actual sales. However, the evident sophistication of the setup works against a discount of the size adopted by Panckhurst J. His starting point of nine months was more than 50 percent below the bottom of the suggested range for category two. The Crown argued that a 25 percent reduction would have been more appropriate, that is a starting point of 18 months. After a six-month deduction for a guilty plea, this would have resulted in a 12-month sentence of imprisonment for Mr Watson on this charge.
[37] We agree that a nine-month starting point is inappropriate in this case given the relative sophistication of Mr Watson’s growing operation. The growing area was well equipped and a not insignificant amount of cannabis was found. We agree with the sentencing Judge that some cultivation may have been explained by the respondent’s personal use for pain relief. But in our opinion this does not justify a starting point 50 percent below the bottom of the category two range. We agree with the Crown’s suggested sentence on this charge.
Adjustment of sentences
[38] For the reasons we have given, we consider the appropriate sentences for the offending in this case to be:
- (a) Conspiracy to manufacture methamphetamine (both offenders): three years six months imprisonment, from a starting point of four years six months imprisonment;
- (b) Cultivation of cannabis (Mr Watson only): 12 months imprisonment, from a starting point of 18 months imprisonment.
[39] Panckhurst J considered each offender’s pair of charges to be sufficiently different in kind as to warrant cumulative, rather than concurrent, sentences (Sentencing Act 2002, s 84(1)). Thus, Mr Te Rure’s sentence for receiving and Mr Watson’s sentence for cultivating cannabis were both cumulative on their lead sentences for conspiracy to manufacture methamphetamine.
[40] Where cumulative sentences are imposed, it is important that the total term is not disproportionate to the gravity of the overall offending (Sentencing Act, s 85(2)). In Mr Watson’s case, we consider that his adjusted sentence for cultivating cannabis should remain cumulative on the adjusted sentence for conspiracy offending. This will result in a total term of imprisonment for Mr Watson of four years six months. We consider this proportionate to the gravity of his offending.
[41] The situation is more complex with Mr Te Rure. If his current offending were the only matter under consideration, we would consider it entirely appropriate to accumulate six months imprisonment for receiving on to the lead sentence for conspiracy. This would result in a total sentence of four years imprisonment. However, Mr Te Rure is already serving a term of imprisonment, having been sentenced in July 2006 for the unrelated offending in 2004. His sentence appeal must therefore be considered in the light of his existing sentence of two years three months imprisonment.
[42] Panckhurst J accumulated the sentences for conspiracy and receiving on to the sentences for Mr Te Rure’s earlier offending, finding that the resulting total sentence of four years nine months was not inappropriate. If we followed the same approach, Mr Te Rure’s effective sentence would be six years three months, namely four years for his current offending (three years six months for conspiracy and a further six months for the receiving charge) and two years three months for his 2004 offending.
[43] We consider however that a total sentence of six years three months would be excessive, having regard to the totality of Mr Watson’s offending.
[44] We therefore direct that the six months sentence for receiving should be served concurrently with the three years six months for conspiracy but cumulatively with the two years three months for the 2004 offending, thus making a total sentence of five years nine months.
[45] In our view, that total sentence appropriately reflects the totality of Mr Te Rure’s offending.
Solicitors:
Crown Law, Wellington
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