Drummond v Police [2012] NZHC 833 (30 April 2012)

Last Updated: 7 May 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-463-0017 [2012] NZHC 833

BETWEEN MONTOYA ARTHUR RONALD DRUMMOND

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 30 April 2012

Counsel: R O Gowing for Appellant

R Jenson for Respondent

Judgment: 30 April 2012

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Gowing & Co, Whakatane

_{Crown Solicitor, Tauranga}

DRUMMOND V NEW ZEALAND POLICE HC TAU CRI 2012-463-0017 [30 April 2012]

The appeal

[1] Following pleas of guilty, on 9 February 2012 Mr Drummond appeared before the District Court at Opotiki for sentence on one charge of manufacturing the Class A controlled drug, methamphetamine, one of possessing a precursor substance for the purpose of manufacture and one of possession of equipment for its use, namely a pipe.

[2] Concurrent sentences of imprisonment were imposed on the manufacturing and precursor charges. That resulted in an effective term of imprisonment of two years and nine months. On the possession charge, Mr Drummond was convicted and discharged.

[3] Mr Drummond appeals against the effective term of imprisonment imposed by Judge Wolff. He contends that the sentence is manifestly excessive.

Facts

[4] The charges arose from information gathered by Police in the course of executing a search warrant at Mr Drummond’s home, in Brabant Street, Opotiki. The warrant was executed in March 2011. On arrival at the property, police officers located Mr Drummond at the rear of it. He was said to be “in a somewhat flustered state”. When searched, police officers located two quarter gram bags of methamphetamine and four point bags. They were hidden in a sock. A case containing $678 in cash was found up a trouser leg.

[5] A search of the premises ensued. In the laundry and kitchen areas, various items were located which were consistent with the manufacture of methamphetamine. On the laundry shelf was a clear 330ml bottle, about one quarter full, containing a cloudy liquid. There was an angled piece of glass tubing attached to the top of the bottle with white tape. The liquid was found to be a compound commonly used in pharmaceutical products containing pseudoephedrine, an active ingredient in methamphetamine.

[6] On the same shelf, a plastic Powerade bottle was located. It contained a clear liquid, later analysed as acetone, a product used in the process of manufacturing methamphetamine. Acetone is a precursor substance for the purposes of the Misuse of Drugs Act 1975.

[7] In a kitchen cupboard, a clear round baking dish wrapped in plastic wrap containing a clear liquid and a crystalline material was located. The end product was analysed as methamphetamine. The liquid was a chemical.

[8] On 26 October 2011, Police stopped Mr Drummond on an unrelated matter. He was subsequently searched pursuant to powers to do so on arrest. In a small bag he was carrying two plastic snap-lock bags and four smaller bags known as point bags were located. Those bags contained 0.7 of a gram of methamphetamine.

[9] When spoken to by the Police on execution of the search warrant in March

2011, Mr Drummond stated that “the meth” was for his own use. He alluded to the fact that he knew what was in containers of liquid found but said they were an associate’s. He confirmed that the clear liquid and methamphetamine in the baking dish belonged to him. He said he was “just trying to get the best out of a point bag residue” by trying to extract further methamphetamine.

Sentencing in the District Court

[10] At sentencing in the District Court, counsel for the Crown, contended that the manufacturing was being carried out for commercial purposes. That characterisation meant that, on the guideline Court of Appeal judgment in R v Fatu,[1] a starting point of four years imprisonment was required. The reason why a lower starting point for manufacturing is not ordinarily used is set out in Fatu.

[42] Where the Crown can establish that large quantities of methamphetamine have been manufactured, the Court may regard the criminality in gearing up to manufacture as being absorbed by the culpability of the primary offending. In other cases, where the evidence as to how much was manufactured is uncertain, the position is different. Nonetheless it is right to recognise that methamphetamine manufacture is always (or almost always) going to involve significant commerciality. We say this because the

difficulties, expense and risks involved in manufacturing methamphetamine make it inherently unlikely that such an operation would be set up to produce drugs for purely personal consumption. (my emphasis)

[11] For Mr Drummond, it was submitted that all manufacturing was undertaken for personal purposes for his use as a chronic addict. Thus, it was said that a more benevolent approach to sentencing should be taken.

[12] With reference to the suggestion that the methamphetamine was manufactured for personal use alone, Judge Wolff said:

[12] In the present case the continuing process and your explanation, which sounds to me as a rationalisation rather than an explanation, suggests to me that there was a degree of commerciality about this particular offending. The ongoing process suggests to me that the start point in Fatu is the appropriate one.

[13] I am satisfied, however, that in the absence of further compelling evidence as to the extent to which you were involved in a commercial enterprise, that I should start at the lowest point available on band 2. I accept that the band 2, the start point in your case, is a sentence of four years’ imprisonment.

[14] You are entitled to a 25 percent discount for your early plea of guilty. That reduces the sentence to three years’ imprisonment. I allow a further small discount for the apparent remorse that you now have and the efforts that you have taken since that time. The end sentence, therefore, on the two charges for which you now face sentence, is a sentence of two years and nine months’ imprisonment.

Competing submissions

[13] The onus is on the Crown to prove beyond reasonable doubt the existence of any disputed aggravating fact and to negate to the same standard any disputed mitigating fact raised by an accused that is not wholly implausible or manifestly false.[2] In this case, Mr Drummond had a history of methamphetamine use. The evidence demonstrated possession of relatively small quantities of the drug on his person and at his house. In relation to the methamphetamine found hidden in his trouser leg and the money located in a sock, no prosecution was brought for possession for supply. In those circumstances, it would not be inferred that Mr

Drummond had the methamphetamine for some commercial selling purpose. It could not be said that his suggestion of personal use was wholly implausible.

[14] Although the extent of the manufacture was in issue, my view is that the facts actually put before the Court on sentencing were not sufficient to discharge the onus of proving beyond reasonable doubt that the manufacture was for commercial purposes. The extent of the manufacture could still have been significant even though either primarily or solely for personal use.

[15] Since Fatu, the Court of Appeal has acknowledged that there will be cases in which a starting point lower than four years can be taken where manufacturing has been for personal use. In R v Kawerau,[3] Venning J, delivering the judgment of the Court said:

[12] In light of the Judge’s mistaken view as to the length of time that the appellant had been manufacturing methamphetamine we propose to reassess the sentence of the appellant in this case. The starting point must be Fatu. This Court fixed a start point for manufacturing methamphetamine at four years’ imprisonment. Despite that, in a number of cases where there has been no commerciality and the manufacturing has been for personal use, the High Court has adopted a start point under that prescribed level of four years. For example, and restricting consideration to the cases referred to by Gendall J for sentencing the appellant, the following start points were taken: R v Savelio HC AK CRI-2006-092-009147 2 April 2008 Cooper J three years nine months; R v Jones HC WHA CRI-2007-088-2320 16 November 2007

Allan J two years; R v Teague HC AK CRI-2005-004-5436 18 May 2007

Potter J three years nine months; R v Vowell HC WHA CRI-2006-088-3782 4

May 2007 Winkelmann J three years; R v Woodhams HC AK CRI-2005-090-

3399 7 April 2006 Frater J a range of three years to three years three months;

R v Boswell HC ROT CRI-2004-070-6882 30 November 2005 Allan J three years six months. On the basis of those authorities and the circumstances of

the offending in this case, a start point of between three years three months

and three years six months was appropriate. The Judge’s start point of three

years was generous to the appellant.

[16] It can be seen from the range that starting points in the vicinity of three years to four years imprisonment are available. The difficulty in this case, as I discussed with counsel, is that in the absence of some disputed fact hearing, the precise level of manufacture is difficult to assess. Nevertheless, counsel have asked me to do the best I can based on the existing evidence. Neither seeks a disputed fact hearing.

Analysis

[17] Mr Gowing, for Mr Drummond, has referred me to sentencing notes of Allan J, in R v Jones.[4] The Judge, in similar circumstances involving an absence of a disputed fact hearing, was not prepared to infer commercial purpose and instead took a lower starting point than the four years identified in Fatu. It is not easy to discern the precise starting point; although it is referred to as two years in the Court of Appeal decision in Kawerau,[5] it seems more likely to have been three years imprisonment.[6]

[18] In those circumstances, my own view is that the range for a case such as this might be somewhere between three years and three years nine months imprisonment by way of a starting point.

[19] I propose to take a starting point of three years six months imprisonment. From that there will need to be a deduction to take account of the early guilty plea. While the Judge referred to some additional credit for remorse, it is a little difficult from the sentencing notes to determine precisely what credit was given.

[20] If the credit of 25% for the early pleas of guilty were applied, it would result in an end sentence of two years eight months imprisonment, compared with the end sentence actually imposed of two years nine months.

[21] The credit for the “apparent remorse” and the “efforts that [Mr Drummond has] taken since that time” would not require further adjustment. In my view, while Mr Drummond had attended other courses, it seems difficult (from the information in the pre-sentence report) to discern that the efforts that were made had had any real effect upon him. The continued manufacture and use of methamphetamine points

_{against any real remorse.}

[22] The question ultimately is whether a sentence of two years nine months imprisonment was manifestly excessive. Given the approach I have taken, which is the best that could be taken from Mr Drummond’s perspective, I conclude it was not.

Result

_{[23] In those circumstances, the appeal against sentence is dismissed.}

P R Heath J

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[1] R v Fatu [2006] 1 NZLR 72 (CA) at para [43]; band two.

[2] Sentencing Act 2002, s 24(2)(c).

[3] R v Kawerau [2009] NZCA 75.
[4] _{R v Jones HC Whangarei CRI 2007-088-23220, 16 November 2007.}
[5] _{See para [15] above.}
[6] R v Jones HC Whangarei CRI 2007-088-23220, 16 November 2007, at para [36].