R v K HC Auckland CRI 2007-004-23338 [2009] NZHC 1625 (2 April 2009)

Last Updated: 1 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2007-004-23338}

THE QUEEN

v

K

Hearing: 2 April 2009

Appearances: S Symon for Crown

R M Mansfield for K

Judgment: 2 April 2009

_{SENTENCING REMARKS OF ALLAN J}

Solicitors:

Crown Solicitor, Auckland

_{R M Mansfield, Auckland} [e-mail]

R V K HC AK CRI 2007-004-23338 2 April 2009

[1] Mr K , you appear for sentence this morning on five charges relating to the class A controlled drug methamphetamine, having pleaded guilty in this Court on 8 December 2008, on the morning of your trial. The charges are of manufacturing methamphetamine, for which the maximum penalty is life imprisonment, separate charges of possession of equipment, precursor substances and materials, all for the purpose of manufacturing methamphetamine, the maximum sentence in each case being five years imprisonment, and a final charge of possession of pipes for the consumption of methamphetamine. The maximum penalty for that is one years imprisonment.

Factual background

[2] On 30 July 2007 the police executed a search warrant at your home at Papatoetoe. You lived there with your wife, your mother in law and three young children. The police located a number of items habitually used in the manufacture of methamphetamine which included Parr bombs, pressure cookers, reaction vessels, hotplates, an HCL generator, a condenser, assorted glassware, plastic containers and tubing, toluene, acetone, acetic acid, methylethylketone, caustic soda, spirit of salts and sodium hydroxide.

[3] Many of these items were found in the area of the laundry. Swabs taken from the laundry wall tested positive for methamphetamine. The police also found surveillance cameras at the address. One was located in a tree, pointing down the driveway towards the road. This camera was connected to a television monitor in the rumpus room. A second camera was placed in the front door.

[4] This morning Mr Mansfield has advised the Court the surveillance equipment had been in place for about a year and had been installed in consequence of a home invasion which had occurred at an earlier time. His instructions are the surveillance equipment is unrelated to the present offending, and I accept that for present purposes.

[5] When spoken to by the police you admitted knowledge of the equipment, materials and precursor substances, but you explained that an associate who had since died, was responsible for all the materials and for the limited and partial manufacturing processes carried on at your house. You say you never actively participated in what was going on, but that you simply observed what he was doing and permitted him both to do that and to store his materials on your property. You have pleaded guilty on the footing that you sufficiently encouraged what was happening to become a party to the offending.

[6] The ESR evidence indicates that there was a sufficient quantity of pseudoephedrine hydrochloride and of hypophosphorus acid on your property to manufacture between 600 and 900 grams of methamphetamine, assuming all the other necessary ingredients could have been obtained. But there is no evidence of actual quantities manufactured, nor of any sales. Your position is that at worst, partial steps only towards the manufacturing process were undertaken and that this was not a commercial enterprise. You accept however that at the time of the offending and for a period prior to that, you had been smoking methamphetamine recreationally.

Personal circumstances

[7] You are 32 years of age. Although born in Australia you came to New Zealand some years ago along with your wife. There are three young children aged three, seven and eight years. Your early upbringing in Australia was somewhat unconventional. You were raised by your grandmother until you were three, and then returned to live with your parents, both of whom were members of the medical profession. By the age of 11 your relationship with your father had broken down, and you effectively left home for a period, although you returned at the age of 13. After completing high school you worked in a number of jobs including various management positions in the retail industry. You came to New Zealand in 1998, and for a time operated a café in Newmarket, along with your wife and her parents. Since then you have had a number of jobs, but more recently you have been unemployed. I infer that your drug related lifestyle has something to do with the fact

you have not been working recently. You accept that drug related issues have placed a great strain on your relationship with your wife.

[8] The probation officer assesses you as presenting a low risk of re-offending and as having a high level of motivation to change your offending behaviour. Behind your appearance today lies your habit of recreational drug use and your involvement with a number of associates whose lifestyle includes drugs and drug offending.

[9] Although you have some very recent convictions for receiving, they are effectively part and parcel of this present offending. I propose to treat you as a first offender.

[10] You have indicated to the pre-sentence report writer in no uncertain terms that you accept that you have made some foolish mistakes, that you no longer use methamphetamine, and that you are determined to put this offending behind you.

Crown submissions

[11] The Crown says this offending falls within band 2 of the well-known guidelines laid down in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72. That band applies to quantities up to 250 grams and mandates a starting point between four and 11 years imprisonment.

Defence submissions

[12] Mr Mansfield says that this case falls within band 1 of Fatu which covers offending at the lowest end of the spectrum and ordinarily is concerned with cases involving no commercial element. For band 1 the starting point will generally be up to four years imprisonment. Mr Mansfield also argues that a sentence of home detention is warranted rather than a term of imprisonment.

Purposes and principles of sentencing

[13] I am required to take into account the purposes and principles set out in the Sentencing Act. Of particular relevance here are the need to hold you accountable for the harm done to the community by reason of this class A drug offending, and your involvement in the manufacture of methamphetamine which at least potentially, may have become available to vulnerable members of the community. I am bound also to promote in you a sense of responsibility for, and an acknowledgement of the harm you have done. There must be an element of denunciation and deterrence aimed not only at you, but at any other person who may be contemplating the commission of a similar offence.

[14] There is a need also for an element of consistency in the imposition of sentences in like cases, and I must bear in mind the need to promote so far as is possible your rehabilitation, and to that end to impose the minimum sentence properly available in the circumstances. Having said that, s 6(4) of the Misuse of Drugs Act directs the Court to impose a sentence of imprisonment for an offence of this kind, where there is an element of commerciality about the offending, unless there are special circumstances.

Discussion

[15] I intend to consider first the appropriate term of imprisonment, and then in the light of that assessment, the question of whether home detention is warranted instead. Counsel are at odds over whether this case falls into band 1 or band 2 of Fatu. Mr Symon contends that this is a band 2 case which would attract a starting point of five to 5½ years imprisonment, reduced perhaps to 4½ years in your case to take account of the fact that you were a secondary offender who has pleaded guilty, simply by reason of your association with the principal offender, and because you effectively encouraged him in what he was doing.

[16] Mr Mansfield argues that this is a band 1 case, because there is no evidence of quantities, or that the offending was commercial in nature. He argues that the starting point ought to be no higher than three years.

[17] I do not accept that there was no commercial aspect to this offending. The quantities of certain precursor substances found at your home were such, in the opinion of the ESR expert witness, as to facilitate the ultimate manufacture of 600-

900 grams of methamphetamine. The evidence does not disclose that all the other substances necessary to manufacture methamphetamine were present, and it would be a mistake simply to assume that the deceased offender intended to manufacture quantities of that order. While it would not be right simply to assume actual manufacturing of that order has taken place, or was necessarily even intended, the presence of materials in that quantity suggest that this was not simply an operation intended to feed the personal habit of the principal offender, or of the two of you together.

[18] You filed a detailed affidavit in which you set out the background to this offending. It appears that your associate, who was in poor health, sought and obtained your permission to store equipment and substances at your home. Over time it appears that he undertook aspects of the manufacturing process there, and you simply permitted that to occur.

[19] However, as was said in Fatu, there is a commercial aspect to the majority of methamphetamine manufacturing undertakings because the process is simply too complex and expensive to establish in the absence of a commercial return.

[20] In my view this case falls within the lower end of band 2. It will attract a starting point of five years imprisonment for the principal offender, but those who play a lesser role necessarily attract a lower starting point: Fatu at [19]. I have considered R v Johnston and Stott HC AK CRI 2005-044-5100 11 April 2006; R v Andersen HC AK CRI 2007-057-753 30 September 2008; R v Owens HC HAM CRI 2008-019-3077 5 June 2008; R v Grove HC AK CRI 2007-057-2094 20 May

2008 and R v Allan HC AK CRI 2004-004-1074 16 May 2006.

[21] The appropriate starting point is in my view four years imprisonment. That takes into account the degree of commerciality which I am satisfied existed here, and also the fact that this offending occurred in the family home where your family, including three small children, lived. You are entitled to a discount for your guilty plea which came very late – on the morning of your trial. I accept that your guilty pleas were proffered following discussions with the Crown that led to an adjustment to the indictment, and in particular to the dropping of certain charges against your wife. I accept also that, inherent in your guilty plea is an acknowledgement of wrongdoing, and of course you avoided at least part of the expense of a lengthy trial.

[22] I take into account your remorse and your expressed determination to return to your former life as a useful member of society and a good husband and father. I also take into account the fact that prior to this offending, you had a completely clean record. That is a matter of some significance. You say you no longer take drugs and have been able without assistance to abstain since the time of your arrest.

[23] I allow 25% or one year for your guilty plea, and a further and generous six months for the other mitigating factors identified by Mr Mansfield. That produces a sentence of two years six months imprisonment, which I am satisfied is appropriate in this case.

Home detention

[24] I turn now to consider the home detention issue. Ordinarily, a sentence of home detention may be considered only where the term of imprisonment otherwise appropriate is two years or less, but in R v Hill [2008] NZCA 41; [2008] 2 NZLR 381, the Court of Appeal pointed out that the transitional provisions covering offending prior to

1 October 2007 involve no such restriction. These offences are alleged to have been committed in July 2007 so that the transitional provisions are engaged.

[25] In Hill the Court of Appeal referred to a number of factors which it is proper for a sentencing Court to take into account in assessing whether or not a sentence of home detention might be appropriate. Those factors include:

a) The plain purpose of the home detention regime, which is to reduce the number of people sentenced to imprisonment. A sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention, rather than through imprisonment.

b) The need to impose any sentence of home detention in a way that is consistent with the purposes and principles of sentencing as set out in the Sentencing Act.

c) The need to bear in mind the presumption of imprisonment created by s 6(4) of the Misuse of Drugs Act. That presumption reflects the seriousness with which Parliament views drug offending, and the weight it gives to factors such as denunciation, accountability and deterrence. That is a factor of particular importance where methamphetamine offending is concerned.

[26] The Court of Appeal observed that sentences of home detention are likely to be imposed in cases of class A drug offending, only at the lower end of the spectrum. Hill was a successful appeal against a sentence of two years three months imprisonment for possession of methamphetamine for supply. The Court substituted for the sentence of two years three months imprisonment imposed in this Court, a sentence of 12 months home detention together with 200 hours community work.

[27] Importantly for present purposes, the Court noted that in cases of this type, the prospect of rehabilitation will be significant and even decisive. That will be particularly so, the Court said, if the assessment that there are good prospects of rehabilitation is based not simply on conjecture or expressions of intent or hope, but on hard evidence that demonstrates that the offender has made a real commitment to change and is working towards that in specific and realistic ways.

[28] In Hill the Court considered there was evidence of such a commitment.

[29] There are some similarities between this case and Hill. Although I have held that an element of commerciality arose here, there is no evidence of actual sales, nor of any manufacture in commercial quantities. Moreover, your role was limited to making your premises available and to providing passive encouragement.

[30] Next you have, you say, abstained from the use of illicit drugs since the time of your arrest which is now more than 18 months ago, and there is no evidence to suggest that that information is not correct. As in Hill you have the prospect of support from your family network, in particular your partner, her mother, and three small children. So there is a stable family background not always encountered in cases of this sort.

[31] This sentencing was adjourned from an earlier date because for administrative reasons no home detention report had been made available in respect of suitability of a particular residence. That has now been attended to. In the meantime however, you have been remanded in custody for a period of some two months.

[32] A factor sometimes taken into account in home detention assessments is that the offending for which you appear for sentence, occurred in or around the family home. That may give a sentencing Judge cause for concern, and may be decisive. In this case I am satisfied it is not an obstacle. You were not the instigator of this offending. It would not have occurred had you not permitted your friend to store equipment and substances at your property. The principal offender is now unfortunately deceased but that removes any prospect of re-offending of this sort at his behest. The home detention address happens to be a different address from that at which at which the offending occurred.

[33] In my view the risk of re-offending is low, I would not consider a sentence of home detention otherwise. But as it is, I have concluded that this is one of those relatively rare cases in which it is proper to impose a sentence of home detention rather than a term of imprisonment, but it must be the maximum term of 12 months, anything less would fall short of what is required. In addition I intend to impose a sentence of 100 hours community work. There must be a punitive element in the

ultimate sentence in order to reflect the interest of society in ensuring that offenders in cases involving class A drugs are appropriately denounced and deterred from future like offending.

Sentence

[34] On each of the five charges you are sentenced to 12 months home detention. I impose the following conditions:

a) Upon release from the Court today you are to travel directly to

42 Aspiring Avenue, Chapel Park, Manukau, Auckland and to remain there until the probation officer and a security officer arrive.

b) You are to reside at 42 Aspiring Avenue, Chapel Park, Manukau, Auckland and not to move from that address without the prior approval of the probation officer under the terms of the requirements of the home detention regime.

c) You are to abstain from the consumption of alcohol, and/or illicit drugs for the duration of the sentence of home detention.

d) You are to attend an assessment for a medium intensity rehabilitation programme and if deemed suitable you are to attend and complete that programme to the satisfaction of the probation officer and the programme facilitator.

[35] You are further sentenced to 100 hours community work which is cumulative on the hours of 150 hours community work which you are presently serving in respect of the receiving charge. So you are now subject to a total sentence of 250 hours community work.

[36] Mr K , can I conclude by saying you owe a great deal to Mr Mansfield who has done a very good job on your behalf on sentencing, and has placed before the Court everything that could possibly be said on your behalf. You have this once

only opportunity to turn your life around. Don’t mess it up. If you appear again in this Court on criminal charges you cannot expect the same leniency you have received this morning.

C J Allan J