R v Brausch DC Hamilton CRI-2009-019-10517 [2011] NZDC 117 (3 February 2011)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT HAMILTON

_{CRI-2009-019-010517}

THE QUEEN

v

STEPHEN DAVID BRAUSCH

Hearing: 3 February 2011

Appearances: M Sturm for the Crown

K Burroughs for the Accused

Judgment: 3 February 2011

_{NOTES OF JUDGE A I M TOMPKINS ON SENTENCING}

[1] Stephen David Brausch appears for sentence today having pleaded guilty upon arraignment this morning to count 15 in an indictment faced by him and a number of co-accused, being a count of manufacture of methamphetamine, a Class A controlled drug. In relation to the balance of the counts in the indictment faced by Mr Brausch no evidence is offered and there is a discharge pursuant to s 347 from count 17 to 20 inclusive, as they relate to Mr Brausch.

[2] Mr Burroughs, appearing for Mr Brausch, is content for sentencing to proceed today in the absence of a pre-sentence report, both Mr Burroughs and Mr Sturm appearing for the Crown being close in their respective views as to the term of imprisonment, which both accept is the inevitable outcome of today’s

_{sentencing hearing.}

R V BRAUSCH DC HAM CRI-2009-019-010517 3 February 2011

[3] Both Mr Sturm and Mr Burroughs have prepared written sentencing submissions and both have addressed oral submissions to the Court. The offending arose when Mr Brausch went to stay at a rural property, where as it turned out a number of other persons were involved in a reasonably significant methamphetamine manufacture operation. Mr Sturm for the Crown accepted that the principal offender and the main target of police attention was not Mr Brausch, but as often happens in offending such as this Mr Brausch was, “scooped up” when police intervened and apprehended a number of persons. The Crown accept that Mr Brausch was of those persons who faced counts in the indictment the least involved and was at the periphery of the offending.

[4] Mr Brausch’s fingerprints were located on some items, and by his own admission he was aware of what was happening over a period of time, and on at least one occasion helped to load a transportable clandestine methamphetamine laboratory into a vehicle, so that that vehicle containing that equipment and material could be driven elsewhere. Mr Sturm noted that although police located a large quantity of methamphetamine related equipment, no actual methamphetamine was located at the address where Mr Brausch was arrested, apart from residual traces. Significant quantities of precursors were present however, and based on the equipment that was found and though the quantity of precursors, the Crown submit that the ongoing manufacturing operation was reasonably substantial.

[5] Applying the Court of Appeal’s tariff decision in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 the Crown submits that Mr Brausch falls within the second band in Fatu, providing a starting point range of between four to 11 years’ imprisonment. Mr Sturm submitted that a starting point of seven years was in all the circumstances appropriate, with a small uplift of six months to take account of Mr Brausch’s extensive criminal history, which prior to 2005 contains a number of convictions for drug manufacture and possession.

[6] Allowing for a late guilty plea and a two year deduction in recognition of Mr Brausch’s peripheral role in the offending, the Crown advocate for a four and a half year end sentence. Mr Burroughs submitted that a starting point within the Fatu range of four years’ imprisonment would be appropriate with a

similar uplift for previous convictions, and then a discount to take account of the late guilty plea and potential assistance to the police and to the Crown, at the forthcoming trial of the other accused. Mr Burroughs then ending up with an end sentence of three years’ imprisonment. In respect to that latter factor, Mr Burroughs provided a recent signed statement Mr Brausch has given to police whilst on remand, and Mr Burroughs advises that Mr Brausch is available to give evidence in accordance with that statement. Mr Sturm counters that at least in part, by pointing out that the statement is in part vague, and does not materially advance the Crown case against the other accused to the extent that as things stand at the moment the Crown does not intend to call Mr Brausch at the forthcoming trial.

[7] In light of those submissions and the circumstances of Mr Brausch’s involvement at the property and subsequent arrest, in my view applying the Fatu criteria a starting point of five years’ imprisonment is appropriate. A six month uplift for previous convictions is applied to that to take the modified starting point to five and a half years’ imprisonment. Allowance for a late guilty plea of nine months is allowed, and a further reduction of 18 months in recognition of Mr Brausch’s peripheral and lesser role in the offending, leading to a total discount of 27 months, which results when applied to the modified starting point in an end sentence of three years’ nine months’ imprisonment.

[8] Mr Burroughs advises that Mr Brausch has been making enquiries in relation to treatment for his ongoing and obviously longstanding drug abuse addiction, but the issue of whether that addiction is best treated whilst Mr Brausch is incarcerated or in the community is a matter which the parole board will in due course be required to consider. I express no view on that issue today.

A I M Tompkins

District Court Judge