R v Filer [2012] NZHC 149 (3 February 2012)

Last Updated: 20 March 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-47 [2012] NZHC 149

THE QUEEN

v

SCOTT WARREN FILER

Hearing: 3 February 2012

Counsel: B D Tantrum & M Williams for Crown

A C Balme for Prisoner

Judgment: 3 February 2012

_{SENTENCE OF KEANE J}

Solicitors:

Crown Solicitor, Auckland

R V SCOTT WARREN FILER HC AK CRI 2011-404-47 [3 February 2012]

[1] Scott Filer, at your trial you were found guilty of eight offences for which you are now for sentence.

[2] Between 1 October 2009 - 15 February 2010 and 16 February 2010 - 17 May

2010 you, together with Steven Mehrtens, manufactured methamphetamine, in the sense at least that you were indispensable parties to that offence. On 17 May 2010 you conspired with Mr Mehrtens to continue manufacture. On 15 November 2009 you offered methamphetamine to Delia Fonotia, a co-offender. On 23 December

2009 you, together with Mr Mehrtens, possessed methamphetamine for supply. On

19 April 2010 you, together with Mr Mehrtens, supplied methamphetamine. On 17

May 2010 you possessed methamphetamine for supply.

[3] The Crown's case against you at your trial was that you and Mr Mehrtens offended co-extensively. He was tried in his absence. You at trial denied manufacture. At the very most you conceded that you may have been a party to the purchase of pseudoephedrine and to its supply. That was also Mr Mehrtens' case at trial.

[4] Clearly the jury accepted that the Crown had made out its case that you were at least a party in the sense that you purchased pseudoephedrine indispensable to large scale manufacture yourself, and that you were so closely linked to that manufacture that you intended it take place. So, in that sense, the jury appears to have accepted that you were a central player in the manufacture.

Course of offending

[5] The Crown's case against you at trial, which as I have said the jury accepted, was that you and Mr Mehrtens, each of you then living in or near Whangamata, were privy to manufacture in that area.

[6] You were then serving a sentence of home detention but, the Crown's case was, and the jury evidently accepted, while he saw to any transactions beyond

Whangamata, most typically in Auckland, you were certainly active by telephone. You were also active in Whangamata transactions.

[7] The Crown's case is that your first source of pseudoephedrine supply was Delia Fonotia and that she supplied to you on at least seven occasions. If she did so, she would have supplied you in the vicinity of 36 sets. The Crown's case is that, though the recipients in her other supply counts were not identified, you could well have been the recipient. You were her principal market.

[8] Ultimately, the Crown's case is, you could have received from her as much as

67 sets of pseudoephedrine, yielding potentially three kilograms of methamphetamine. At the least, the Crown case was, you would have received half that, if not more.

[9] After Ms Fonotia was arrested, the Crown case was and the jury accepted, and this was the basis for your second manufacture offence, you continued to obtain supplies of pseudoephedrine from Ms Fonotia's own source, your co-offenders Phap Ly and Huang Nguyen. The Crown's case is that they supplied you some 31 sets and that this would have yielded between 1.4 - 2 kilograms of methamphetamine.

[10] The jury also accepted that on termination date, 17 May 2010, you and Mr Mehrtens were continuing to play your part in ongoing manufacture, and that you were frustrated only by your arrest and that the methamphetamine found in your possession on that day, each of you, was indicative. Mr Mehrtens also had a further kilogram of pseudoephedrine. That is the basis for the conspiracy.

[11] Though the jury acquitted you of a number of counts of possession and supply, distinguishing you in this from Mr Mehrtens, it found you both to be in joint possession of methamphetamine for supply on 23 December 2009. In Mr Mehrtens' possession that day in a vehicle in which, on the Crown case you had an interest, was

161.6 grams of methamphetamine. He had as well 17 grams more directly in his possession. The larger quantity certainly, the jury found, was in your joint possession.

[12] You were also found jointly responsible for an actual supply on 19 April 2010 to Mr Sample of 1.7 grams of methamphetamine and, more significantly on termination date, you had in your possession 17 grams of methamphetamine, a quantity well beyond the presumption for supply. That apart, earlier you had offered Ms Fonotia an ounce of methamphetamine that, in the event was not, it seems, delivered.

[13] You put in issue on sentence as a matter of fact whether you can be held accountable for manufacture on the scale the Crown contends for because there was no evidence at trial as to where manufacture took place or what your part in it was precisely. Your position is that you can only be held accountable for a level of manufacture consistent with what was found in your possession, and that of Mr Mehrtens, some 250 grams.

[14] As your counsel says, precisely on what basis the jury held you accountable for manufacture is not clear. He contends that it might well have been that the jury accepted that you merely dealt with the money aspect. But I have to say, as the Judge who must sentence you, that I find that the evidence is consistent with you having been, as the Crown alleged, the source of the pseudoephedrine to the manufacturer, whoever that was and whether or not it was you. I must sentence you as a principal, not peripheral, player. The supplies of pseudoephedrine that you were privy to were so large that no other inference is open.

[15] I do not accept, literally, the Crown's calculation that you received all the supplies notionally possible from Ms Fonotia and Mr Ly and Mr Nguyen. A level of inference is called for because not all the people she supplied are identified. You are to be sentenced on the basis that you received supplies consistent with the manufacture of three - four kilograms of methamphetamine.

Pre-sentence report

[16] As your pre-sentence report says, at age 49, you had until this passage of offending an apparently successful demolition business in Whangamata. You do not, your report says, have any general or mental health issues. You say that alcohol has

never been a source of difficulty for you. Your offending may well have its source, your report suggests, in your increasing use of methamphetamine yourself.

[17] You first began, you say, to use methamphetamine socially about four years ago, but when on 9 September 2008 a close friend of yours accidentally shot himself, as I understand in front of you, you became profoundly depressed. You began to use methamphetamine almost daily. When you were sentenced to seven months home detention and to community work in September 2009 for a related offence, you disclosed that you were then using methamphetamine two or three times a week.

[18] That remained your level of consumption until you were arrested for this present offending. Yet, you told your assessor, you have always used methamphetamine socially, you have never had a problem with withdrawal or an urge to have more, you are not addicted to the drug and are not in need of assistance. In the opinion of your assessor, as long as you take that attitude, your risk of re- offending will remain high.

[19] As your report says, though for your offending before you were sentenced to home detention - you had served a 14 month sentence for selling cannabis in the past and had a 2006 conviction for procuring and possession cannabis - this present offending marked a major escalation. Your report recommends, inevitably, a sentence of imprisonment.

Letters

[20] You have written to me two letters, in the first of which, dated 13 December

2011, you set out in considerable detail your life as it was before your arrest for this offending, and the effect of the confiscation of your property under the Proceeds of Crime Act after your arrest.

[21] You recount your difficulties in preparing for trial, your constant risk of bankruptcy, if that has not yet eventuated, your concern about the scale of the charges laid against you and about the difficulties you faced in the course of your trial. The effect on your life, you say, and I accept, has been catastrophic.

[22] You will understand that I am unable to comment on or to take into account of much of what you say, particularly about the proceeds of crime application still to be heard. I must also, as you will understand, sentence you for the level of your culpability established on the evidence at your trial and I have already told you how I assess that to be. I cannot, in other words, take into account anything inconsistent with the evidence, or the jury's verdict, or my own conclusion.

Sentencing purposes and principles

[23] In sentencing you I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim. This is, I hope you are beginning to understand, far from victimless offending. And I must also, to the extent that I can, assist you in your rehabilitation and reintegration.

[24] I must have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with other cases, the need to impose a sentence near to the maximum, should that be warranted. Equally, I must take into account the contrasting principles: the need to adopt the least restrictive outcome appropriate; the need to take account anything that would make an otherwise proper sentence disproportionately severe; and the need to recognise you in the context of your family and community.

[25] Where drug offending is as significant as yours is, I have to say, personal circumstances and the more positive purposes and principles of sentencing normally have little part to play. Denunciation and deterrence are what is principally called for.

Crown submission

[26] The Crown contends that between October 2009 - May 2010 you and Mr

Mehrtens were principals, or high level parties, to a level of manufacture of

methamphetamine lying within band 4 R v Fatu.[1] You were 'manufacturing very large commercial quantities' (500 grams or more)', or you were privy to that happening. That band attracts starting points in the range 13 years imprisonment to life imprisonment.

[27] The Crown contends for a starting point of 20 years on the basis that you and Mr Mehrtens must have been complicit in the manufacture of in excess of two kilograms of methamphetamine, indeed more probably five, and that you are also for sentence for related aggravated offending for which you will receive a concurrent sentence.

[28] In this the Crown relies on R v Huang & Wei,[2] where the starting point taken for Mr Huang, the manufacturer, who was found guilty of manufacture of just over two kilograms of methamphetamine, was sentenced for that offending alone from a starting point of 17 years.

[29] That starting point, the Crown contends, ought also in your case to be the end point. You are not entitled, the Crown contends, to any discount. The Crown does not contend for any increase in your sentence on account of your previous convictions. Rather, the Crown contends, that a minimum term of imprisonment, of half that proposed sentence, ought to be imposed.

[30] For your related offending, the conspiracy to manufacture, the Crown contends for a concurrent sentence of five years. For your offence of twice possessing methamphetamine, it contends for a concurrent sentence of five years, and for the joint possession offence, and four years for the quantity you possessed on termination date. For the offer of methamphetamine to Ms Fonotia , it contends again for a five year sentence and it contends, finally, for the supply offence for a

_{concurrent term of two years.}

[31] The Crown also seeks forfeiture of the paraphernalia involved in the offending. Any wider forfeiture will be the subject of the proceeds of crime application still to be heard, which you are opposing.

Defence submissions

[32] Your counsel contends that your manufacturing offences place you in band three R v Fatu, which for manufacturing large commercial quantities (250 - 500 grams), attracts starting points in the range 10 - 15 years imprisonment. He contends for a 12 year starting point. The quantity of pseudoephedrine attributed to you by the Crown, he contends, is grossly exaggerated.

[33] Your counsel accepts, as I have to say he must, that no mitigating features relating to you or relating to your offending can be advanced. But he does seek a discount on account of the fact that you spent 16 and a half months on EM bail. He proposes a discount of 25 - 50% of the time you spent on EM bail, in other words four - eight months.

[34] Your counsel contends as well that a minimum term of imprisonment is unnecessary in your case. You have no previous convictions involving class A or B drugs and the sentence to be imposed on you will be severe on any basis. Therefore, he contends, it will meet all the needs served by a minimum term of imprisonment.

[35] Your counsel accepts the concurrent terms proposed by the Crown for your other offending, with the exception of the offer to supply, which he says ought to attract a three year sentence concurrently.

Conclusion

[36] In sentencing for your principal offences, the two manufacturing offences, I sentence you on the basis that in reality you were party to a consistent pattern of manufacture interrupted only and inconsequentially by Ms Fonotia's arrest. I accept also the Crown's contention that you lie, for the purpose of sentence, within band four R v Fatu.

[37] On the evidence before the jury, which I believe it plainly accepted but which I myself find cogent, you obtained pseudoephedrine from your sources of supply on a scale that would have yielded methamphetamine well in excess of two kilograms and more likely three - four kilograms.

[38] I accept also, however, that the Crown's case is one founded on inference and, even though you are to be sentenced for your principal offences, taking into account as an aggravating feature that you will receive concurrent sentences for your other offences, I intend to take an 18 year starting point for the manufacture offences.

[39] That starting point must result in the sentence for those offences that I impose on you because there is no circumstance on which you can rely, despite your extensive letter to me, that either mitigates your offence or makes you less culpable. The only exception is that you spent 16 and a half months on EM bail. On that basis I will allow you a discount of eight months. The result is that for your manufacturing offences, your principal offences, you will be sentenced to imprisonment for 17 years, four months.

[40] For your other offences, I impose on you concurrent sentences of five years imprisonment for the conspiracy, five years for the possession for the joint possession for supply offence, four years for the possession for supply on termination date, three years for the offer to supply and two years for the actual supply.

[41] I have decided not to impose on you a minimum term of imprisonment. Your sentence, I consider, is sufficiently severe to answer all the purposes that a minimum term is imposed to secure. Apart from these present offences, you have not offended seriously in this way before. If you use your time in custody well you have the ability to re-gather your life. The Parole Board, I consider, is well able to assess when you ought to be released.

[42] There will be an order for forfeiture of the paraphernalia.

P.J. Keane J

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[1] _{R v Fatu [2006] 2 NZLR 72.}

[2] R v Huang & Wei HC Aukland CRI 2006-019-8458, 8 May 2009.