R v Davey HC Auckland CRI-2010-090-000833 [2011] NZHC 415 (7 April 2011)

Last Updated: 16 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-090-000833}

THE QUEEN

v

ROBERT MICHAEL DAVEY

Prisoner

Hearing: 7 April 2011

Counsel: N Whittington for the Crown

J Corby for the Prisoner

Judgment: 7 April 2011

_{SENTENCING REMARKS OF WOOLFORD J}

Solicitors:

N Whittington, email: [e-mail]

_{J Corby, email: [e-mail]}

R V DAVEY HC AK CRI-2010-090-000833 7 April 2011

Introduction

[1] Robert Michael Davey, you have pleaded guilty to five charges. They are possession of a precursor substance, namely pseudoephedrine, which carries a maximum penalty of five years imprisonment; possession of a Class A controlled drug for supply, namely methamphetamine, for which the maximum penalty is life imprisonment; possession of a Class C controlled drug for supply, namely cannabis, for which the maximum penalty is 8 years imprisonment; possession of a pistol, namely a .38 Smith & Wesson special, for which the maximum penalty is three years imprisonment; and possession of ammunition for which the maximum penalty is four years imprisonment.

Factual background

[2] On Thursday, 17 December 2009, police executed a search warrant at your partner’s address. They uncovered 24.3 grams of methamphetamine in several containers, five plastic bags of ContacNT, which is a pseudoephedrine-based cold and flu remedy, five snap-lock bags containing 51 grams of cannabis, a pistol and ammunition, and $162,035 in cash.

[3] A simultaneous search carried out at your address revealed nine plastic bags of ContacNT, a plastic snap-lock bag containing an unknown quantity of cannabis, a pistol with laser sight attached and ammunition, and $40,200 in cash.

[4] The total weight of ContacNT was approximately 10.3 kilograms containing

4.12 kilograms of pseudoephedrine. If manufactured into methamphetamine this could produce between 2.06 and 3.09 kilograms of methamphetamine.

Personal circumstances

[5] Mr Davey, you are 39 years old. You have two children of your own and are the step-father of your partner’s children.

[6] You have a 23 year history of alcohol and drug abuse. After your arrest you were bailed to the Higher Ground Drug Rehabilitation Centre where you made

considerable progress towards rehabilitation. You graduated from there to a Wings Trust support house where you currently reside. The Director of Higher Ground, and the Manager and General Manager of Wings Trust have written to the Court describing you as a role model for the residents. You have given of your time as a volunteer and have taken on leadership responsibilities as a House Host. Your recovery has been positive and you have encouraged positive changes in other residents.

[7] I have read the letters provided by your many supportive family members and friends. Your children write of the pain your addiction caused the family and how proud they were of you graduating from Higher Ground and turning your life around. Your parents and other family members, friends and neighbours have all noted significant changes in you. They put a lot of faith in you having beaten your addiction for good.

[8] I have also read a letter that you have written to me. You say you are truly remorseful for your current and past offending and the effect that it has had on your family, friends and the wider community. Your volunteer roles at Higher Ground and Wings Trust are a way for you to give back to the community. This experience has changed your lifestyle – you now have leadership responsibilities, a part-time job as a builder, routine, new friends and you no longer associate with your former drug-using friends.

Submissions

[9] In relation to your offending, Mr Whittington for the Crown submits that a starting point of four to five years would be appropriate for the possession of pseudoephedrine and he seeks an uplift on that of three and-a-half to four years in respect of your other offending. The Crown therefore seeks an overall starting point of seven and-a-half to nine years imprisonment.

[10] From that the Court must take into account your relevant previous convictions, your participation in rehabilitative programmes and your guilty pleas.

[11] Your counsel, Mr Corby, emphasises the need to assist in your rehabilitation and re-integration into society and the desirability of keeping you in the community if that is practicable and appropriate. You have taken significant steps towards rehabilitation through your active participation in Higher Ground and the Wings Trust. You have pleaded guilty at an early stage and have demonstrated genuine remorse in seeking to overcome your addictions.

[12] Mr Corby submits that a starting point of six years imprisonment is appropriate for the totality of your offending. He then submits there should be discount for your involvement in rehabilitation (two years), remorse (one year) and guilty pleas (one year), bringing your sentence to a short term of imprisonment, namely, two years imprisonment, so that home detention may become an option.

Purposes and principles of sentencing

[13] In deciding what sentence should be imposed on you, I have to take into account established sentencing principles. There is a need to denounce your offending and to hold you accountable to the community. There must be an element of deterrence against both future offending by you and by others who might be minded to offend similarly.

[14] I must take into account the gravity of the offending and the degree of your culpability. The sentence I impose must be consistent in kind and in length with those imposed on others who have offended in a similar way. Finally, I have to look at ways to assist your rehabilitation and re-integration into the community.

Sentencing approach

[15] Counsel are in agreement that because of the large quantity in your possession the charge of possession of pseudoephedrine should be treated as the lead offence.

[16] Although there is no tariff case for possession of pseudoephedrine, reference to the guideline decision in methamphetamine cases: R v Fatu[1] adjusted to reflect the lesser maximum penalty for Class C offending is of some assistance.[2] A comparison to the value of methamphetamine that might have been manufactured from the pseudoephedrine in your possession can indicate the seriousness of the particular

_offending.[3]

[17] I am of the view that only one case involving possession of pseudoephedrine is relevant here, and that is the case in R v Albert.[4] Ms Albert was charged with possession of pseudoephedrine and possession of a prescription medicine namely, ketamine. A search of her luggage by Customs Officers revealed containers of approximately 4.7 kilograms of pseudoephedrine which could have been used to manufacture 2.35 kilograms of methamphetamine. In her case a starting point of

four years and six months imprisonment was adopted.

[18] The other significant offence to which you have pleaded guilty is possession of methamphetamine for supply. There was a total of 24.3 grams of methamphetamine recovered. This falls within band 2 of R v Fatu – namely, supplying commercial quantities between five grams and 250 grams, which carries a sentencing range of three to nine years imprisonment. The relevant cases (with

_{similar secondary offences) are:}

R v Wharton[5] - possession of methamphetamine for supply, possession of cannabis. A roadside search of Mr Wharton’s car uncovered

22 grams of methamphetamine, 0.7 grams of cannabis, drug paraphernalia, cash, firearms and taser guns. A starting point of four

_{years three months imprisonment was adopted.}

R v Bradley[6] - possession of methamphetamine for supply. A roadside

_{search of Mr Bradley’s car uncovered 28 grams of methamphetamine, a}

knife, a metal object (weapon), rifle bolt, magazine and $2000 cash. A

starting point of four years three months imprisonment was also adopted.

R v Dodgson[7] - dealing in methamphetamine, possession of methamphetamine for supply, unlawful possession of restricted weapon. A police search of two home addresses recovered 20.7 grams of methamphetamine, 290 grams of cannabis, a taser gun, cash and drug paraphernalia. A starting point of five years imprisonment was

_adopted.

R v Harris & Danklof[8] - supplying methamphetamine, possession of methamphetamine, possession of an air gun and intentional damage. A search of Harris & Danklof’s motel unit uncovered 30.5 grams of methamphetamine and significant damage to the motel unit. A starting

_{point of five years imprisonment was adopted.}

Analysis

[19] In terms of aggravating factors, there is the loss, damage and harm that results from this type of offending. As you know, methamphetamine is a drug that destroys lives and harms society and pseudoephedrine is the base ingredient for its manufacture. There is also the element of premeditation, although that is to an extent inherent in the charges.

[20] Mr Davey, your offending was serious. You had in your possession a significant quantity of pseudoephedrine and methamphetamine as well as cannabis and lethal weapons.

[21] I take possession of pseudoephedrine as the lead offence. This carries a maximum penalty of five years imprisonment, which is appropriate to apply when dealing with the most serious offending of its type. In your case, the amount of

ContacNT that you had in your possession was substantial, containing approximately

4.12 kilograms of pseudoephedrine. If manufactured into methamphetamine this could produce between 2.06 and 3.09 kilograms of methamphetamine, a very considerable amount.

[22] Your level of culpability falls just short of that in R v Albert. In that case the amount of pseudoephedrine in the offender’s possession was comparable to yours, but the circumstances were different in that it was discovered in the offender’s luggage at the airport after arriving in New Zealand. Pseudoephedrine was in powder form rather than as ContacNT pills.

[23] I therefore adopt a starting point of four years three months imprisonment in respect of the charge of possession of pseudoephedrine.

[24] That starting point must be increased to reflect your overall offending. When looking at the R v Fatu guideline and comparable cases the amount of methamphetamine in your possession (24.3 grams) itself could attract a starting point of at least four years. There are also the charges of possession of cannabis and the Arms Act offences, which are serious in themselves. Having regard to the two comparable cases, in particular, R v Wharton and R v Bradley, these offences would attract a starting point of four years three months imprisonment.

[25] However, the uplift I give you on your lead offence, that of possession of the pseudoephedrine, must reflect the totality of your offending. The Crown submits that an uplift of three and-a-half to four years is appropriate. Your counsel submits that an uplift of two years is appropriate.

[26] I adopt an uplift of two and three quarter years to bring the starting point to seven years imprisonment. While a substantial uplift is appropriate given the seriousness of the secondary offending, it is my view that the Crown’s recommendation is too high. It is too close to the amount that would be appropriate if it were the lead charge. A starting point of seven years imprisonment falls between the recommendations of the Crown and your counsel and in my opinion appropriately reflects the totality of your offending.

[27] You have a number of relevant previous convictions, including cultivation and possession of cannabis, possession of methamphetamine and unlawful possession of firearms. Many of these are recent. The Crown seeks an uplift of six months imprisonment in respect of this aggravating feature. I agree and adopt an uplift of six months imprisonment for your previous convictions, meaning that the provisional sentence is seven years six months imprisonment.

[28] I now turn to personal mitigating factors. I have already referred to your progress and involvement in Higher Ground and the Wings Trust. You are to be commended for this. You have also been on restrictive bail conditions for over a year and I agree that some credit should be given for this.[9]

[29] I follow the approach in R v Campen,[10] which was a case referred to me by your counsel, by giving you a discount of one year for your progress and rehabilitation and one year in recognition of your restrictive bail conditions. I also adopt a discount of six months imprisonment in respect of your remorse. Finally, you are also entitled to credit for your early plea and although there was a strong police case against you, I adopt the maximum discount allowable in terms of the authorities to 25 percent.

[30] This brings your final sentence to three years nine months imprisonment. This is calculated by:

(a) Starting point on lead offence – four years three months.

(b) Uplift for concurrent offences of two and three quarter years seven years.

(c) Uplift for relevant convictions of six months seven years six months.

_{(d) Discount for rehabilitation of 12 months six years six months.}

(e) Discount for restricted bail of 12 months five years six months. (f) Discount for remorse of six months five years.

(g) Discount for guilty plea of one year three months taking the final sentence down to three years nine months.

[31] A final sentence of three years nine months imprisonment represents a 50 percent discount from the provisional sentence of seven years six months imprisonment, which is consistent with the reduction made in R v He[11] which has been cited by your counsel.

[32] Despite room for generous discounts for mitigating factors I do not consider, given the level of the offending, that your sentence is able to reach a short period of imprisonment qualifying you for home detention. The cases cited by your counsel where home detention is given involved more minor methamphetamine offending and lower starting points. Although it appears that you may have been a suitable candidate for home detention, overall I have taken the view that your offending was too serious.

[33] Accordingly, I sentence you as follows:

(a) Possession of pseudoephedrine – three years nine months imprisonment.

(b) Possession of methamphetamine – three years nine months imprisonment.

(c) Possession of cannabis for supply – six months imprisonment. (d) Possession of a pistol – six months imprisonment.

_{(e) Possession of ammunition – six months imprisonment.}

[34] All sentences are to be served concurrently.

[35] In addition, I order the destruction of the drugs found on execution of the search warrants, namely the 51 grams of cannabis, 24.3 grams of methamphetamine, and the 10.346 kilograms of ContactNT. I also order forfeiture of the Smith & Wesson pistol and the ammunition, in terms of s 69 of the Arms Act.

[36] Finally, I also order the forfeiture of $202,235 found in your possession, in terms of s 32(3) of the Misuse of Drugs Act 1975.

[37] I make no order in respect of the Holden Commodore (FCR686) as I am not satisfied that that vehicle was used in the commission of the offences.

_{[38] You may stand down Mr Davey.}

Woolford J

---

[1] _{R v Fatu [2006] 2 NZLR 76 (CA)}
[2] _{R v Xie [2007] 2 NZLR 240 (CA) at [22] – [23]}
[3] _{R v Xie at [26], referring to R v Posimani CA 369/04, 21 March 2005}
[4] _{R v Albert High Court Auckland CRI 2004-004-1493, 29 June 2004, Nicholson J}
[5] _{R v Wharton HC Auckland CRI 2007-006-1815 9 October 2007 Wild J}
[6] R v Bradley HC Whangarei CRI 2006-088-1619 27 October 2006 Venning J
[7] _{R v Dodgson HC Rotorua CRI 2007-069-968 3 August 2007 Andrews J}
[8] R v Harris & Danklof HC Palmerston North CRI 2006-054-1008 26 February 2007 Harrison J
[9] _{R v Benson CA 86-90 11 July 1990}
[10] R v Campen High Court Auckland CRI 2007-004-018646 27 August 2010 Stevens J at [29]

[11] R v He High Court Auckland CRI 2008-004-025021 11 December 2009 Woodhouse J at [22] –[24]