R v Harpur [2012] NZHC 1748 (17 July 2012)

Last Updated: 24 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-007670 [2012] NZHC 1748

THE QUEEN

v

_{KEVIN ALAN HARPUR}

Hearing: 17 July 2012

Counsel: KA Lummis for Crown

AM Wharepouri for Prisoner

Judgment: 17 July 2012

_{SENTENCING NOTES OF RODNEY HANSEN J}

Solicitors: Meredith Connell, P O Box 2213, Auckland (Email: [e-mail] ) AM Wharepouri, P O Box 2334, Auckland 1140 (Email: [e-mail] )

R V KEVIN ALAN HARPUR HC AK CRI-2009-004-007670 [17 July 2012]

Charges

[1] Mr Harpur, you appear for sentence having pleaded guilty to charges of supplying methamphetamine, manufacturing methamphetamine, and of being in possession of material for the purpose of manufacturing methamphetamine.

Facts

[2] The offending came to light in the course of a police operation that took place between January and September 2009. It emerged that you were a member of a syndicate which manufactured and distributed methamphetamine. The acknowledged ring-leader was Pauline Bishop. She supplied the precursor substance ContacNT to you. The agreement was that you would convert the ContacNT to methamphetamine. You would supply half of the methamphetamine to her and keep one half for yourself.

[3] Others assisted you in the manufacturing process, including a man called Brendon Gear. On the first occasion, in January 2009, that you manufactured together, you supplied the ContacNT, presumably having received it yourself from Ms Bishop, along with other materials. On later occasions you became more involved in the manufacturing process. You and Mr Gear manufactured methamphetamine together on at least five occasions and you yourself manufactured on your own at least once. Over a period of four months approximately half of what was manufactured was supplied by you to Ms Bishop with the remainder being shared equally between you and others who had assisted, including the owner of the address where the cook was carried out.

[4] The precise amount manufactured overall is difficult to ascertain because the yield from each cooking operation varied. However, the summary of facts records that between December 2008 and April 2009 you participated in the manufacture of approximately 220 grams of methamphetamine.

[5] When the police terminated the operation on 1 April 2009, at your address they found a full one litre bottle of acetone, which is one of the substances used in the manufacture of methamphetamine, and two glass flasks containing residues known to result from the manufacture of methamphetamine.

Personal background

[6] You are a 44-year-old man, born in Te Awatmutu and raised in Otorohanga by your adoptive parents. I am told that you had a happy childhood and that you remain close to your mother and your siblings. You left Otorohanga High School at the age of 16 without formal qualifications. You undertook but did not complete an apprenticeship as a mechanic in the 1980s. Since that time you have mainly worked in the air conditioning industry and, as I understand it, at the time of the car accident, which I will refer to later on, you were in fact in business on your own as an air conditioning engineer.

[7] As I understand it, you have two children of your own and have been stepfather of two other children with whom you have lived for some 17 years with the mother of the two children. I am told that relationship has now come to an end and that your contact with your biological children has also been limited.

[8] You have some previous convictions but they are of a relatively minor nature and certainly not drug-related. Alcohol does not seem to have been an issue for you but methamphetamine use certainly has, at least since the car accident you had in

2002 which caused you to lose the sight of your eye and a significant brain injury which has caused some ongoing difficulties for you.

[9] You explained to the probation officer that your offending was motivated by your own methamphetamine addiction. You expressed regret, saying that at the time you were acting like, to use your words, “a fried idiot”. You yourself take the view that you resorted to drugs after your car accident to give you energy when you were faced with fatigue and to deal with your depression. You acknowledge now that those drugs did more harm than good.

[10] You are assessed as being at low risk of offending, although it does appear that you have limited insight into the implications of your offending. You conveyed to the probation officer that you had not brought harm to anyone else from your actions and that simply is not the case, Mr Harpur. Your own experience will tell you that the manufacture of methamphetamine is going to end up inflicting misery on others. That is part of the whole cycle of addiction which (you are conveying to me) you appreciate now.

Sentencing – starting point

[11] It is accepted by both the Crown and your defence counsel that the sentencing for your offending is governed by R v Fatu[1] and that your offending falls within band

2, which is concerned with the supply and manufacture of commercial quantities of methamphetamine between 5 and 250 grams. The supply of methamphetamine of those quantities can attract a sentence to between three and nine years and its manufacture a slightly higher range of between four and 11 years imprisonment.

[12] As you will have gathered from the discussion I have been having with counsel, it is important also to have regard to the sentences that have been imposed on other offenders involved in this operation. Those whose sentences have greatest relevance are the ones whose names I have already mentioned, Ms Bishop and Mr Gear. They both pleaded guilty and were sentenced at a relatively early stage.

[13] Ms Bishop was identified as the ringleader or, as Mr Wharepouri described her, “the architect” of the operation. She was sentenced on the basis that she had supplied a total of 250 grams of methamphetamine and, reflecting a charge of conspiracy, that she was actively involved in organising the manufacture of the methamphetamine. She was referred to by the sentencing Judge, Allan J, as being on

the cusp of supply bands 2 and 3 in Fatu.[2] He identified a starting point for

sentencing purposes of nine years imprisonment.

[14] Mr Gear pleaded guilty to two charges of manufacturing methamphetamine and charges of possession of equipment, precursor substances and materials for the purpose of manufacturing methamphetamine. He was sentenced on the basis that he had been responsible for manufacturing between 100 and 120 grams of methamphetamine. A starting point of seven years imprisonment was used for the

purpose of his sentence.[3] That was uplifted by the sentencing Judge by two years to

take account of possession of the equipment and materials but that aspect of the sentence was quashed by the Court of Appeal.[4] So, in the end, the starting point adopted for Mr Gear for sentencing purposes was seven years.

[15] Ms Lummis, for the Crown, has submitted that the starting point I should use in sentencing you is nine years imprisonment, the same as was used for Ms Bishop. Ms Lummis submits that a higher starting point than nine years could be justified but accepts that considerations of parity indicate that the starting point should not exceed nine years. However, she points out that Ms Bishop’s role was more as a supplier than a manufacturer which, on her argument, would lead to a lower starting point than would apply to you.

[16] Mr Wharepouri submits that parity with your co-offenders requires a starting point of seven years, equivalent to what was used for Mr Gear. The Crown says that Mr Gear was sentenced on the basis of a lower quantity of methamphetamine than you because at the time there was uncertainty as to the quantities involved and those uncertainties were resolved in favour of the accused.

[17] I do not think that the starting point in your case should be as high as the nine years that was adopted for Ms Bishop or as low as the starting point that was used for Mr Gear. Although Ms Bishop was not directly involved in the manufacture of the methamphetamine, she was undoubtedly the kingpin of the operation, ultimately responsible for what was done by those, such as you, to whom she delegated the actual manufacturing. In addition, she was sentenced on the basis of a somewhat higher quantity than is alleged to have been manufactured and supplied by you. I am left in no doubt that, even on the basis of the facts to which she pleaded guilty, she

was more culpable than you and your starting point for sentencing purposes should recognise that.

[18] Mr Gear, on the other hand, was sentenced on the basis of involvement in a much lesser quantity than you. That may well have been his good fortune but it does not warrant my adopting the same starting point. It seems to me that a starting point of eight years appropriately reflects your culpability and also appropriately recognises the principle of parity with the sentencing of your co-offenders.

Aggravating and mitigating factors

[19] There are no particular aggravating factors that have not taken into account by the sentencing bands in Fatu and it remains for me to consider what, if any, deduction I should make to take account of mitigating factors.

[20] The two potential mitigating factors are your guilty plea and the contribution made to your offending, in Mr Wharepouri’s submission, by the brain injury that you suffered as a result of the car accident in 2002.

[21] You initially entered pleas of guilty in December 2010 when your trial was about to commence. That plea was no doubt influenced by the fact that a number of your co-offenders had agreed only just beforehand to give evidence against you. However, you later repented of that decision and applied to vacate your guilty pleas and, in June 2011, that application was granted. Finally, after numerous appearances, you changed your mind back again and, in May 2012, you entered fresh pleas of guilty.

[22] The Crown says that in these circumstances you are entitled to very slight credit for the guilty plea, no more than is necessary to recognise the fact that you have saved the community the cost of a criminal trial.

[23] Mr Wharepouri argues for some more generous allowance to be made for mitigating factors - he suggests of the order of 10-15 per cent – to take account of

both the guilty plea and the role your head injury has played both in the offending itself and in your vacillations over the final entry of a guilty plea.

[24] I have had the benefit of, and have read carefully, the report of a psychologist, Mr James Webb, and also letters from you and your former partner, Ms Vanda Bromwich. They leave me in no doubt at all that this car accident had catastrophic consequences for you. Ms Bromwich put it this way, after describing the time that you spent in intensive care at Auckland Hospital in the Serious Head Injury Unit there (and I quote from her letter):

Life changed from that day on for both of us. Kevin lost himself and I lost the person/man I knew and my best friend.

She went on to say that when you tried to go back to your job, what had previously been easy for you became a struggle and you could not handle a full day because of the fatigue.

[25] Prior to the accident you had always been a hard worker and you were running your own successful business. There does seem to me to be an abundance of anecdotal and expert evidence to support the view that you ended up resorting to drugs in what you acknowledge now to have been a completely misguided attempt to deal with your fatigue and depression.

[26] This led, as it so often does, to addiction and addiction, as it so often does, led you into the squalid criminal underworld which is involved in the manufacture and supply in substantial quantities of methamphetamine.

[27] So, my own assessment is that your car accident is not only an explanation for why you are here in this Court today, but that the brain injury that you suffered is appropriately to be regarded as a mitigating factor. Not, I emphasise, a significant mitigating factor but one which it is appropriate for me to take into account in sentencing you. I consider also that it has obvious relevance to the way in which I should deal with the guilty plea because it does seem that your changes of mind over the last 18 months have been brought about in part by the cognitive difficulties that

you have experienced and the personality changes that have taken place since your car accident.

[28] The Courts have said on numerous occasions that it is appropriate to take into account the disabilities that offenders have which have been shown to have a direct causal effect on their offending. The recent case of Blackwood v R[5] is one such example where a serious injury resulted in a discount being applied on appeal of 40 per cent in total. And in the case of R v McDonald[6] allowance was made and the following comment was made:

A mental disability falling short of exculpating insanity may be capable of mitigating sentence either because if causative of the offending it moderates culpability or because it renders less appropriate or more subjectively punitive a sentence of imprisonment.

In my view, the implications of your head injury does moderate your culpability to a modest extent and it could well, although here I am probably guilty of speculating, render more subjectively punitive a sentence of imprisonment. It certainly causes me to take a more generous view of the discount you should get for your late guilty plea than might otherwise be the case.

[29] Putting all this together, I consider that an overall allowance of one year should be allowed for mitigating factors which would reduce your sentence, Mr Harpur, to one of seven years imprisonment. So if you wouldn’t mind standing up now and I will formally impose sentence.

Sentence

[30] Mr Harpur, on each of counts 10 and 11 – that is, the counts of supplying and manufacturing methamphetamine – you are sentenced to seven years imprisonment.

[31] On count 4 – the charge of possession of material for the purpose of manufacturing methamphetamine – you are sentenced to three years imprisonment.

_{All sentences to be concurrent.}

[32] I strongly recommend that in the course of your prison sentence, you avail yourself of any opportunity to undertake drug, alcohol and psychological counselling and, as part of my sentencing, I record my view that you should be provided at an early opportunity the ability to undertake such counselling.

[33] I make an order for the destruction of the drug-related property seized.

---

[1] R v Fatu [2006] 2 NZLR 72 (CA).

[2] R v Bishop and Hutton HC Auckland CRI-2009-004-7670, 29 June 2010

[3] Police v U DC Auckland CRI-2009-4-26330, 25 March 2010.
[4] U (CA236/2010) v R CA236/2010, 13 October 2010.
[5] _{Blackwood v R [2011] 1 NZCA 143.}
[6] R v McDonald [2011] NZCA 446.