R v Harding [2007] NZCA 551 (29 November 2007)

Last Updated: 3 January 2015

IN THE COURT OF APPEAL OF NEW ZEALAND

CA374/07 [2007] NZCA 551

THE QUEEN

v

CARL HARDING

Hearing: 22 November 2007

Court: Glazebrook, Williams and MacKenzie JJ Counsel: R G Glover for Appellant

A M Powell and T Singh for Crown

Judgment: 29 November 2007 at 3pm

_{JUDGMENT OF THE COURT}

_{The appeal against conviction and sentence is dismissed.}

REASONS OF THE COURT

_{(Given by Glazebrook J)}

R V HARDING CA CA374/07 29 November 2007

Introduction

[1] On 11 June 2007 Mr Harding was convicted, after a trial before Chisholm J and a jury, of possession of equipment and material with intent that they be used for the manufacture of methamphetamine. On 20 July 2007, Mr Harding was sentenced to three years imprisonment.

[2] Mr Harding appealed against his conviction and sentence. He subsequently indicated in his written submissions that he has accepted counsel’s advice that the jury was not misdirected by the trial Judge and that he abandons his conviction appeal.

Background

[3] On 18 October 2005 the police were called to an address in connection with a dispute. They subsequently located various items of equipment at the premises, including a measuring cylinder, baking dish, pieces of a pyrex dish with brown staining, a 100ml glass measuring cylinder and an electric hot plate, along with an assortment of glass and plastic containers with fluids in them. Some of these items were found in the garage, some hidden outside the garage and some in the house. The police also found a pressure cooker in the boot of a car. These items formed the basis of the possession of equipment charge.

[4] The charge of possession of materials revolved around matchbox striker plates which were found in the garage. Matchbox striker plates are commonly used to obtain red phosphorous which is used in the manufacture of methamphetamine.

[5] Scientific examination of some of the equipment, which was found at the address, revealed the presence of by-products of the process of methamphetamine extraction. In particular, the fluid in the glass and plastic containers was identified as toluene (a chemical that is used in the manufacture of methamphetamine) containing traces of methamphetamine and by-product chemicals. One of the glass jars containing traces of methamphetamine was found in the bedroom.

[6] Detective Sweeney, an experienced drug squad detective, gave evidence that it was unusual for police to locate a fully operational clandestine laboratory. Components were usually stored separately, often in vehicles as they were easily portable, and then brought together for the manufacturing process, which takes between three to eight hours.

[7] There was evidence at trial that some days before the police search, an associate of Mr Harding’s had dropped off three drums labelled toluene and probably some other items in the garage.

[8] At the time of sentencing, Mr Harding was 31 years of age with 17 previous convictions, including a conviction on 8 November 2002 for the manufacture of methamphetamine (which at that time was a Class B controlled drug) and the supply of a Class B drug. Apart from those convictions, Mr Harding has previous convictions for possession of methamphetamine, opium and cannabis.

Sentencing remarks

[9] The Judge recorded that he had been asked by Mr Harding to approach sentencing on the basis that he was not the instigator and that the equipment found at the premises was not such that manufacture could have been carried out. The Judge did not specifically state that he did sentence on that basis but neither did he indicate that he was sentencing on a different basis or that the Crown was contending that he should do so.

[10] The Judge made reference to R v Saundercock HC WN CRI 2005-085-3489

8 February 2007. In that case, the observation was made that a starting point for offending of this nature of between two and three years is common.

[11] Chisholm J accepted that was the position and said that he considered, in Mr Harding’s case, a starting point of somewhere between two and two and a half years imprisonment was appropriate. The Judge was unable to identify any mitigating factors. As to aggravating factors, the Judge took into account Mr Harding’s previous record and the fact that this offending had occurred while he

was subject to an earlier sentence. In the Judge’s view, those serious aggravating features lifted the appropriate sentence to three years imprisonment.

[12] The Judge therefore sentenced Mr Harding on the charge of possession of equipment to three years imprisonment. He was convicted and discharged on the charge of possession of materials. There was also an order for the destruction of the equipment and materials.

Mr Harding’s submissions

[13] Mr Glover, on behalf of Mr Harding, submitted that the Judge erred in his assertion that Mr Harding’s offending occurred while he was subject to an earlier sentence. While it is technically true that the sentence continued to run until its expiry date, the reality was that Mr Harding was no longer subject to recall on the date of the offending for which he was sentenced in this case.

[14] It was further submitted that Chisholm J, while acknowledging in passing the submissions of counsel, failed to attach proper significance to the evidence at trial that the items, which were the subject of the two guilty verdicts, were not present at the address until a matter of days before Mr Harding’s arrest.

[15] In Mr Glover’s submission, the Judge should have sentenced on the basis that, while Mr Harding had possession of the articles and the requisite mens rea as to their purpose and intended use, he was not the instigator of their presence at the address and had no personal intention of using them to manufacture methamphetamine.

[16] It was also submitted to Chisholm J that, in Mr Harding’s case, there was a further distinguishing and mitigating factor which was not present in Saundercock. In that case the only missing item needed for manufacture was pseudoephedrine. In Mr Harding’s case, it was the evidence of both scientific experts that virtually all of the principal items for manufacture were absent and that it would have been impossible to conduct the process with the items that were found.

[17] Mr Glover submitted that a sentence of under two years imprisonment would have adequately reflected Mr Harding’s criminality on the facts as they emerged at trial. If a sentence of less than two years was substituted, Mr Glover submitted that leave to apply for home detention should be granted.

Crown submissions

[18] The Crown submitted that Mr Harding’s sentence was not manifestly excessive. The equipment involved had been used for the manufacture of methamphetamine and, even without some of the necessary components, it was rightly seen as the basis of a clandestine laboratory. In the Crown’s submission, Mr Harding’s connection to the intended further use of the equipment was more than that of a mere custodian. Even accepting that much of the equipment had been delivered a few days before, some items had been moved from the garage (presumably by Mr Harding) and, in some cases, hidden.

[19] The Crown conceded that this was not the complete laboratory found in R v Gaylor HC HAM H25487 14 October 2004 (where a four year starting point was taken), but the materials and equipment were clearly associated with a functional and competent production of methamphetamine, distinguishing it from cases like R v Gibbons HC AK CRI 2005-004-2579 8 February 2006 (where a 15 month starting point was taken).

[20] In the Crown’s submission, for an incomplete laboratory that clearly had been used previously, and where the possessor’s connection to the intended use of the equipment was more than peripheral, a starting point of two years to two and a half years is appropriate to reflect the culpability of the offending. Further, Mr Harding’s involvement with the production of methamphetamine so soon after being released from a sentence of imprisonment that was imposed for the manufacture of that drug, was a significant aggravating feature.

[21] The Crown submitted that the Judge was correct in assessing Mr Harding as, at the time of the offending, being subject to the earlier sentence. In accordance with s 53(1) of the Parole Act 2002, Mr Harding remained liable to be recalled until

28 August 2006 on the grounds set out in s 65 of the Parole Act. The Crown submitted further that any error was not of any moment. In its submission, the significant aggravating feature was that Mr Harding returned to commercial involvement with methamphetamine directly after his release from a sentence imposed for serious offending involving the same drug. We agree.

Discussion

[22] All of the matters alluded to in Mr Harding’s submissions were before the Judge. We accept the Crown submission that there was no error of principle in the Judge’s approach and that the sentence was clearly within the range available to him, particularly in light of Mr Harding’s past history.

Result

[23] The appeal against conviction and sentence is dismissed.

Solicitors:

Crown Law Office, Wellington