The Queen v Smith [2008] NZCA 175 (20 June 2008)

Last Updated: 26 June 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA639/07CA640/07

[2008] NZCA 175

THE QUEEN

v

SCOTT JASON SMITHLEE-ELLA PAULINE SMITH

Hearing: 26 May 2008

Court: William Young P, Randerson and Harrison JJ

Counsel: G A Hay for Appellants
S B Edwards for Crown

Judgment: 20 June 2008 at 9 am

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The sentences for both Scott Jason Smith and Lee-Ella Pauline Smith on the counts of manufacturing methamphetamine are quashed and sentences of six and three years respectively are substituted.

100. The concurrent sentences on the remaining charges are undisturbed.
     

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The Solicitor-General appeals against sentences of imprisonment imposed on the respondents by Panckhurst J for drug related offending to which they had pleaded guilty.
[2] Scott Jason Smith was sentenced to four years and eight months imprisonment on the following charges:

• (a) Two counts of manufacturing the Class A controlled drug methamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1975;
• (b) Two counts of possession of equipment for the manufacture of methamphetamine contrary to s 12A(2)(a) of the Misuse of Drugs Acts 1975;
• (c) Two counts of possession of precursor substances for the manufacture of methamphetamine contrary to s 12A(2)(b) of the Misuse of Drugs Act 1975; and
• (d) One count of failing to answer bail in the District Court contrary to s 37(a) of the Bail Act 2000.

[3] Mr Smith’s wife, the respondent Lee-Ella Pauline Smith, was sentenced to two years and four months imprisonment on charges which were the same save that she faced only one count each of possession of equipment and precursor substances.
[4] The Judge adopted a starting point of seven years imprisonment for Mr Smith but allowed a one-third credit of two years and four months for an early guilty plea to arrive at a sentence of four years and eight months on the manufacturing charges. Concurrent sentences were imposed on the other charges.
[5] The Judge assessed Mrs Smith’s culpability as about half that of her husband. After allowing a one-third credit for her guilty plea, the Judge arrived at the sentence of two years and four months imprisonment on the manufacturing charges. Concurrent sentences were imposed on the other charges.
[6] For the purposes of this appeal, the Solicitor-General does not challenge:

• (a) The discounts for the pleas of guilty.
• (b) The Judge’s assessment of the relative culpability of Mr and Mrs Smith.
• (c) The Judge’s decision not to impose minimum periods of imprisonment.
• (d) The concurrent sentences on the other charges.

[7] The essence of the Solicitor-General’s appeal is a submission that the sentence was manifestly inadequate because the Judge adopted a starting point which was too low.

The Facts

[8] The charges followed the discovery of four separate clandestine methamphetamine laboratories on property associated with the respondents between 16 August 2007 and 1 October 2007.

16 August – Hutcheson Street

[9] On 16 August, the police executed a search warrant at an address on Hutcheson Street in the suburb of Sydenham, Christchurch. The respondents had been tenants at the property for about six weeks. A clandestine P lab was located in the bedroom. Empty blister packs were found for 456 pseudoephedrine tablets. The premises were heavily contaminated or “stained”, which indicated that manufacturing had taken place there over a long period. The final estimate of the costs of relining the bedroom and decontamination was $45,000. The respondents were arrested, charged with manufacturing methamphetamine, and granted bail.

23 August – Jaguar Car

[10] On 23 August, the respondents were found with a third person on Bower Avenue in the early hours of the morning. They told the police that their Jaguar car had run out of petrol and that they were going to a service station. When the police located the car and looked through the windows they could see packets of pseudoephedrine-based products. They conducted a search and found a plastic crate containing between 15-20 items (chemicals and equipment) typical of a mobile P laboratory. This incident eventually resulted in the charges of possession of equipment and precursor substances, although the respondents were not arrested that night as they left the scene.

10 September – Halswell Road

[11] When the respondents failed to appear in the District Court on 30 August in relation to the Hutcheson Street offences, warrants were issued for their arrest. They were found on 10 September at an address on Halswell Road where the police went to execute the arrest warrants.
[12] Mrs Smith was found outside the house with all of the couple’s possessions, including a bag and crates containing items required for the manufacture of methamphetamine. Mr Smith had recently left the address with his nephew, who was located an hour and a half later. The nephew told police that Mr Smith was teaching him to manufacture methamphetamine and had done seven “cooks” over the previous three days at the Halswell Road address. These cooks were estimated to have yielded half to a gram of methamphetamine each. Mrs Smith was arrested and remanded in custody at this time, but Mr Smith could not be located. All three were charged with manufacturing methamphetamine.

1 October – Charnwood Crescent

[13] Three weeks later, on 1 October, Mr Smith was located at a Charnwood Crescent address by police seeking to execute the arrest warrant. Mr Smith had been living in the garage at the address, which was found to contain another clandestine laboratory. He was charged with further counts of possession of equipment and precursor substances. Mrs Smith was not involved with this clandestine laboratory, having been remanded in custody following her arrest in September.
[14] Between 11 and 31 October 2007, the respondents entered guilty pleas to all the charges.

Sentencing approach

[15] The Judge accepted that both Mr and Mrs Smith were P addicts and that, in Mr Smith’s case, the level of addiction was severe. The Judge accepted the probation officer’s assessment that Mr Smith was an accomplished P manufacturer. He did not accept Mr Smith’s statement to the report writer that he did not profit financially from his activities. Panckhurst J’s view was:

...that the only possible construction to be placed on these events must be that you were sought out by others on account of your skills as a cook and provided with the raw materials and equipment to manufacture this drug. If you were not dealing directly yourself, you were certainly receiving a cut of the end product, which you obviously needed because of your raging addiction.

[16] The Judge considered this assessment to be “the most benign interpretation” that could be adopted and went on to discuss the difficult issue of assessing the amount of methamphetamine Mr Smith had been responsible for producing. The Judge said:

It can only be at the end of the day a matter of speculation, or inference, what the total amount may be. What is obvious is your application to the task. Having been apprehended once you were undeterred. You were in possession of gear again and you manufactured again. You fall therefore to be sentenced on that basis.

[17] And at a later point:

Whilst there is only hard evidence of the manufacture of perhaps 13 grams I can only infer that the actual yield was much greater than that. You have said that your daily use approached two grams. If you were receiving that by way of a cut for what you were actually manufacturing, then the quantity that was handed to others must have been a significant amount.

[18] Addressing Mr Smith’s personal circumstances, the Judge noted that he was 35 years of age with a “fairly modest” list of previous convictions, none of which had resulted in a term of imprisonment. Throughout the period covered by the charges, Mr Smith was in receipt of an invalid’s benefit. He had two relatively minor convictions for possession of a class B drug and cannabis in 1997.
[19] Mrs Smith had only seven previous convictions, the most recent of which was in 2001. Her convictions had mainly been for cultivation of cannabis. The Judge accepted that Mrs Smith had a particularly tragic upbringing and that a chronicle of tragic events had plagued her life including the loss of a child in 2003. The Judge considered the dominant feature of Mrs Smith’s pre-sentence report was the closeness of her relationship to her husband, the report writer noting that she was well-motivated to change her ways. Panckhurst J said the report did not give him much insight into the nature and extent of Mrs Smith’s contribution to the manufacture of methamphetamine. He treated Mrs Smith as an assistant who lent encouragement to Mr Smith, purchased pseudoephedrine and assisted in other unspecified ways.
[20] The Judge found the aggravating features were the determination to reoffend while on bail and the damage caused to the properties. The only mitigating feature was the guilty pleas at the first possible opportunity.
[21] He accepted a submission on behalf of the Crown that the case fell within band 2 of R v Fatu [2006] 2 NZLR 72. This band covers the manufacture of methamphetamine up to an amount of 250 grams with an indicated starting point for sentencing in the range of four to 11 years. The Judge considered the sentencing should be approached on the basis that the offending amounted to a single course of conduct over a period of three months. The starting points adopted and the final sentences are as stated in [4] and [5] above.

Submissions by the Solicitor-General

[22] Ms Edwards submitted that where an offender fits within any particular band will depend not merely on the quantity and purity of the drugs involved but also the role played by the offender: Fatu at [31]. She also drew our attention to the need for a sentencing Judge to evaluate the wider circumstances citing the following passage from the decision of this Court in R v Rogers & O’Hara [2007] NZCA 286 at [32]:

While this Court in Fatu opted for sentencing bands based on an objective criteria, being the quantity of the drug involved in the offending, this does not mean that the amount of methamphetamine actually seized is automatically determinative of the appropriate starting-point. Of course, the amount of the drug seized is an important consideration. But, the quantity of the drug which a manufacturer is holding at the time of a police search represents but a snapshot at a moment in time. It remains for the sentencing Judge to also evaluate the wider circumstances.

[23] In assessing culpability, Ms Edwards submitted there was undisputed evidence from which it could be concluded that the quantity of methamphetamine manufactured was substantially greater than the 13 grams based on the calculated yields of methamphetamine from the precursor substances found at the various addresses. She submitted that Mr Smith’s admitted consumption of 2 grams of methamphetamine a day over the three month period from 5 July (when Mr and Mrs Smith moved into the Hutcheson Street address) until 1 October amounted to 174 grams. These figures do not take into account Mrs Smith’s acknowledged “almost daily use” until the time of her remand in prison nor the likely need to manufacture some additional quantity in order to acquire raw materials.
[24] Ms Edwards also pointed to the evidence of extensive staining at the Hutcheson Street address which she submitted was indicative of intensive and repeated manufacturing over the six week period the house was occupied by the respondents and to the undisputed evidence of a police officer that the quantity of iodine present at the Hutcheson Street address was sufficient to produce between 250-375 grams of methamphetamine. As well, Ms Edwards drew attention to the evidence of Mr Smith’s nephew about the frequency of manufacturing at the Halswell Road address.
[25] Ms Edwards emphasised the persistence of the respondents, noting that the clandestine laboratories were restocked from scratch three times, including chemicals, specialist equipment and precursor substances. She added that the risks of explosion and fire, particularly from the Hutcheson Street address, were significant in view of its location near premises frequented by the public. She submitted that the carriage of volatile chemicals in the Jaguar vehicle also presented its own particular dangers.
[26] Ms Edwards submitted that a starting point of between nine and eleven years was warranted. Taking the lower end of this range, she submitted that a minimum starting point of nine years should have been adopted which would have resulted in a sentence of six years after the one-third discount for the guilty pleas.
[27] Some support for the Solicitor-General’s case may be derived from the decision of this Court in R v Townsend CA141/05 30 March 2006 where there was persistent drug offending at three different locations. This Court characterised the offending as on a relatively moderate scale. Direct comparisons are difficult since some of the convictions were for attempted manufacturing of methamphetamine. As well, some came after trial while, on the last occasion, the appellant pleaded guilty to manufacturing. The sentencing notes in the High Court indicate some difficulty in quantifying the amount manufactured. The total effective sentence in the High Court on all charges was 11 years, reduced to 9 years on appeal.
[28] Mr Hay’s submissions emphasised the difficult personal circumstances of both respondents. He submitted that it was open for the Judge to adopt a merciful approach to sentencing in those circumstances. He accepted that Mr Smith’s statement to the probation officer that he personally consumed 2 grams a day was not disputed at the time of sentencing and did not seek to dispute it before us.

Conclusions

[29] We accept that the sentencing Judge was faced with the difficult task of assessing culpability without a great deal of hard evidence as to the quantities manufactured. Nevertheless, we are driven to the conclusion that a starting point of seven years was too low. Based on Mr Smith’s own admissions it could reasonably be inferred methamphetamine in excess of at least 174 grams was manufactured during the relevant period. Indeed, the likelihood is that the amount manufactured exceeded 200 grams when allowing for the quantity consumed by Mrs Smith and the need to manufacture a sufficient quantity to support the purchase of raw materials. When quantities at this level are assessed, a starting point towards the upper end of band 2 was clearly justified.
[30] As the Judge accepted, Mr Smith was an accomplished methamphetamine cook whose services were sought after by others. This was a case of persistent offending over a period of three months and included offending while on bail. Deterrence had to be the predominant factor in sentencing notwithstanding the sad personal circumstances of Mr and Mrs Smith.
[31] We accept the starting point of seven years (which is slightly below the middle of the four to eleven year range) was too low and resulted in a manifestly inadequate sentence . We accept the Solicitor-General’s submission that the starting point should have been a minimum of nine years. Applying the unchallenged discount of one-third, and the accepted relative culpability of the respondents, Mr Smith’s sentence should have been not less than six years and Mrs Smith’s not less than three years.

Result

[32] The appeal is allowed. The sentences for both Mr and Mrs Smith on the counts of manufacturing methamphetamine are quashed and sentences of six and three years respectively are substituted. The concurrent sentences on the remaining charges are undisturbed.

Solicitors:
Crown Law Office, Wellington