R v Oliver [2019] NZDC 5022 (19 March 2019)

Last Updated: 23 August 2019

IN THE DISTRICT COURT AT MANUKAU I TE KŌTI-Ā-ROHE KI MANUKAU

CRI-2018-092-006150

[2019] NZDC 5022

THE QUEEN

v

ANDREW JOHN OLIVER

Hearing:	19 March 2019
Appearances:	R Gibbs for the Crown T Harre on behalf of C Tuck for the Defendant
Judgment:	19 March 2019

NOTES OF JUDGE J BERGSENG ON SENTENCING

[1] Andrew Oliver, you appear for sentence today on charges of manufacturing methamphetamine, possession of materials with intent for using in an offence against the Misuse of Drugs Act 1975, possession of equipment, and possession of precursor substances. There are then charges of possession of methamphetamine for supply and possession of a Class B controlled drug.

[2] I gave a sentence indication on 29 October 2018. You accepted that sentence indication. Accordingly these sentencing remarks should be read in conjunction with the sentence indication notes.

[3] The background to your being here today is the police were investigating you for manufacturing and supplying methamphetamine. As part of that investigation they obtained search warrants in respect of your home and car.

R v ANDREW JOHN OLIVER [2019] NZDC 5022 [19 March 2019]

[4] On 8 June your vehicle was stopped while you were driving it. Located within your vehicle were a number of substances which included 11.7 grams of methamphetamine with a 57 percent purity, and then 235.3 grams of material and that had a methamphetamine purity of less than 1 percent.

[5] Your house was then searched and a clan lab located. It was determined that it had recently been used for the manufacture of methamphetamine. Materials located included hypophosphorous acid and caustic soda. The equipment included pH test strips, two parr bombs, steam distillers, pH meter and probe, electric hotplates. The precursor substances were the hydrochloric acid and ephedrine. In the course of the search 20 mls of Fentanyl was also located. $13,000 in cash was also found.

[6] Dealing with the issue of the cash that was found, that is subject to a forfeiture application which is going to be argued at a later date. It does not impact on the sentence indication that I gave earlier or on today’s sentence.

[7] In the background of all of this is that you are now aged 62 years, you were 61 at the time of this offending and you have a history that clearly shows you have a strong addiction to drugs. In 2006 you were sentenced to four years, nine months, on charges of manufacturing methamphetamine, and three charges of possession of equipment. In 2011 a charge of possession of equipment and in 2012 possession of methamphetamine for supply. Those last two charges resulted in a sentence of five years’ imprisonment in 2012.

[8] This current offending from June of last year therefore occurred while you were still subject to release conditions. On that last set of offending you had one month to go at the time of your release.

[9] There is a Provision of Advice to Courts. I have considered what is set out in that report. You have indicated to the report-writer that this offending arose as a result of running into an old associate and you had a lapse, and that lapse turned into a relapse. What you have said to the report-writer is that you are now of an age where you have had enough, and you have said that you mean it this time. You have said that

you will attend meetings, you will disassociate yourself from antisocial peers, who you say are hard to avoid.

[10] It seems to me that perhaps your biggest regret is the fact that your son, at the age of 20, is now going to have his father back in jail for the third time in his relatively short life. He is at an age where proper support from his father would be important, but the reality is you are simply not in a state or a position to give that type of support.

[11] In addition to the Provision of Advice to Courts report, I have read and considered the letter that you have written. You effectively apologise for your offending on this occasion. You accept full responsibility for your offending. As you say, you have reached an impasse in your life where you must finally address your situation. The reality is, as has been said before, until you address it, there is a very good chance that you will be back here before the Court on similar charges.

[12] There is a letter of support from your sister. It is clear that you do have ongoing family support. While they are naturally disappointed to see that you are back in this situation, they are prepared to provide ongoing support.

[13] The Crown submissions at the time of the sentence indication were that the manufacturing charge was the lead charge, that would attract a starting point in the range of four years, six months. They seek an uplift for the supply charge of three to six months, and an uplift of 12 months for your previous convictions. They seek forfeiture, and a minimum period of imprisonment.

[14] At that time Mr Tuck, in terms of his submissions, submitted that the manufacturing should attract a starting point of four years’ imprisonment, that the supply charge was part and parcel of the manufacturing, but he acknowledged an uplift would be required for your history, of six to 12 months.

[15] What has been updated since then is that there are now reductions sought for remorse and your efforts at rehabilitation. Your remorse I have covered in the letters that I have just referred to. In terms of your rehabilitation, you have presented to the Court a certificate to show that you have completed a course entitled “The Journey

Through Changes” course. Part of that includes dealing with addictions and harmful patterns of behaviour and also goal setting, that is a recent certificate dated 5 September this year.

[16] In terms of sentencing today, I need to take into account both the purposes and principles of sentencing, I will set a starting point based on the features of the offending, I will make reference to the relevant cases, and I will then adjust the starting point based on any aggravating and mitigating features and your personal circumstances. There will finally be consideration for your guilty plea and the further submission that there be a reduction for remorse.

[17] R v Fatu is the leading case when it comes to manufacturing and supply1. The lead charge for sentencing today is the manufacturing. Band 2 of R v Fatu for manufacturing up to 250 grams sets a starting point of between four and 11 years’ imprisonment.

[18] The starting point that I adopted at the time of the sentence indication, and which I confirm now, is one of four years. That also takes into account the charges of possession of materials, equipment, and the precursor substances.

[19] There is an uplift for the supply charge, that is a relatively modest uplift of three months. I have taken into account that there is a slightly lower degree purity in terms of the 11 grams of methamphetamine. In terms of the other larger amount, there is effectively just a trace of methamphetamine in that amount, so that is why there is only an uplift of three months. For your history, there is an uplift of nine months. That gets me to five years’ imprisonment.

[20] I indicated a full reduction for your plea of guilty, one of one year and three months, and that then gets me down to three years and nine months. I am going to make a very modest reduction for your remorse and efforts at rehabilitation, that will be of one month, so that is a sentence of three years and eight months.

1 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

[21] As I indicated, the Crown sought a minimum period of imprisonment. At the time of the sentence indication I indicated that there would not be a minimum period of imprisonment and I explained my reasons why.

[22] I am not going to repeat the comments of Harrison J when you were sentenced by him in 2007. But what he said continues today, that you need to take advantage of the time that you are going to spend in prison, complete the courses, but when you come out if you are to avoid re-offending and re-offending relatively quickly, you need to ensure that you engage fully in the rehabilitative services that will be provided to you on your release. Release conditions will be set by the Parole Board.

[23] In terms of a breakdown of the charges:

1. the sentence is three years, eight months, on the manufacturing and possession for supply;
   
2. 12 months on the possession of materials, equipment, and precursor substances; and
   
3. two months on the possession of the Class B, Fentanyl.
   

[24] All the sentences are concurrent

[25] There will be an order for destruction of any drugs, equipment, materials, and precursor substances, pursuant to s 32 Misuse of Drugs Act.

[26] In terms of the forfeiture application, the Crown are to file a response to your challenge to forfeiture within 28 days.

[27] The matter is then to be referred back to me in Chambers so that we can then determine how it is to proceed and if a hearing will be required.

Judge J Bergseng

District Court Judge

Date of authentication: 06/05/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.