R v Moore [2013] NZHC 1972 (6 August 2013)

Last Updated: 14 August 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-092-005862 [2013] NZHC 1972

THE QUEEN

v

_{JOSEPH WILLIAM MOORE}

Hearing:	6 August 2013
Appearances:	B R Northwood for the Crown J D Munro for the Defendant
Date:	6 August 2013

_{SENTENCING NOTES OF WYLIE J}

R v MOORE [2013] NZHC 1972 [6 August 2013 ]

[1] Mr Moore, you appear for sentence today, having pleaded guilty to four charges under the Misuse of Drugs Act 1975:

(a) There is one representative charge of manufacturing the Class A controlled drug methamphetamine. That is an offence pursuant to s 6(1)(b) of the Act, and it carries a maximum penalty of life imprisonment.

(b) There are two charges of possession of methamphetamine for supply.

That is an offence pursuant to s 6(1)(f) of the Act. Again, the maximum penalty is one of life imprisonment.

(c) There is a final charge of possession of the precursor substance, pseudoephedrine. This is an offence pursuant to s 12A(2)(b) of the Act, and it carries a maximum penalty of five years’ imprisonment.

[2] You were first charged, along with a number of other defendants, in June 2012. You were admitted to EM bail by Toogood J on 31 July 2012, and you have been undertaking a drug rehabilitation programme at Odyssey House since that time.

[3] You entered your guilty pleas, and convictions were entered against you, on Friday, 5 April 2013. When you entered the guilty pleas, Peters J recorded that you were to be sentenced in the week of 13 May 2013. You applied for bail afresh, to enable you to complete your rehabilitation course at Odyssey House. The Crown took a neutral stance.

[4] Initially, your application for bail was adjourned pending sentence until

9.00 am on 11 April 2013. However, on that day, Peters J granted you bail pending sentence. She was also asked to delay sentencing you until 29 July 2013, to enable you to complete the programme. Not without reservation, Peters J acceded to that course. She did record her concern at the delay in sentencing.

[5] Your sentencing has since been adjourned to today.

[6] There has been a further application for an adjournment by Mr Munro on your behalf. He sought that sentencing should be adjourned for a further period of four to six months, to enable you to complete the programme at Odyssey House. That application was opposed by Mr Northwood for the Crown.

[7] I am not prepared to adjourn the sentencing on the basis proposed by Mr Munro. The delay is simply too long. The rehabilitation you are currently receiving at Odyssey House consists of attending group therapy sessions once a week, and also participating in one-on-one therapy. The course is not as intense as it was initially. Further, as I understand it, rehabilitation courses will be available to you when you are serving a custodial sentence. I see no reason to delay sentencing any longer.

Relevant Facts

[8] On 6 June 2011, you were driving a vehicle that crashed head on with another motor vehicle. When police attended the scene, they discovered a snaplock bag containing white crystals on the front seat of your vehicle. The vehicle was searched. The police found four snaplock bags containing a total of 4.8 grams of methamphetamine, digital scales, several cellphones, a Taser, two ecstasy-like pills, stolen property and a baseball bat.

[9] In July 2011, you began manufacturing methamphetamine. You initially produced approximately 1.5 ounces of methamphetamine. A few days later, you had discussions with a female associate who was offering to supply you with pseudoephedrine. You then contacted another associate to say that you had manufactured a further two ounces of methamphetamine. Towards the end of July 2011, you enlisted the help of another person, to assist you to obtain the appropriate equipment to enable you to manufacture yet more methamphetamine. This included acquiring and obtaining the delivery of ingredients for the manufacturing process. Two other co-defendants helped supply various substances to you to assist in the manufacturing process. Another of the defendants was involved in distributing the methamphetamine manufactured. The offending occurred through August and September 2011.

[10] In late September 2011, the police executed search warrants at a number of addresses in the Counties-Manukau area. All had been used by you for the manufacture of methamphetamine.

[11] There is evidence suggesting that you obtained at least six yields, including those which I have already mentioned before you were arrested. The charge to which you have pleaded guilty is based on a representative count. The summary of facts on which you entered your pleas recorded that you were involved in manufacturing 200 grams of methamphetamine.

[12] The police also found sufficient pseudoephedrine at a property used by you to manufacture approximately 29.7 to 44.6 grams of methamphetamine.1

Presentence Report

[13] I have received a full and helpful presentence report. You are 41 years’ old. You do not have a partner. Nor do you have any children. You have held employment, working for an engineering company. Your father and sister are supportive of you.

[14] Since August 2012, you have been resident in Odyssey House participating in their adult drug and alcohol residential programme. When you are eventually released, you propose to return to your father’s address. You have indicated that you would like to become a therapist specialising in alcohol and drug therapy.

[15] You told the probation officer that you have been a long-term user of drugs, and that you were introduced to methamphetamine through friends and associates, and that you once were addicted to it. You have taken full responsibility for your role in the offending, and you accept that you may be facing a significant term of imprisonment.

[16] You self-referred to Odyssey House. You have been an active participant in their adult programme. A report has been made available outlining your progress. It

_{has clearly been satisfactory, and I accept that you have made a very real effort to}

1 The police found approximately 40 grams of pseudoephedrine.

turn your life around. The probation officer spoke to staff at Odyssey House. She stated that you are very motivated, and that not only have you been actively involved in your own recovery, but that you have also aided others on their initial entry into Odyssey House as part of your house duties.

[17] Your likelihood of reoffending was assessed as low. So was your likelihood of causing further intentional harm. The assessments were based in part on your rehabilitative progress.

[18] You have stated that you wish to spend your time in prison productively, and that you want to continue towards your goal of becoming a therapist, maintaining your long-term sobriety, and remaining free from drug abuse.

Prior Convictions

[19] In 2003, you were charged with conspiring to deal in methamphetamine. You were convicted in 2005, and you were sentenced to five years and three months’ imprisonment. In 2004, you were convicted of being in possession of methamphetamine. In 2002, you were charged with possessing paraphernalia for consuming drugs, and between 1994–2001, you received six cannabis-related convictions. The most serious conviction was for possessing a plant for supply. That eventually resulted in a term of imprisonment for one year.

Submissions

[20] Mr Munro on your behalf submitted that a starting point of eight years’ imprisonment is appropriate. He accepted that an uplift of six months is also appropriate to reflect your previous convictions. However, he argued that discounts should be available to you for your early guilty pleas, remorse, and your efforts at rehabilitation. He sought a discount of 15–20 percent for your guilty pleas, and a further discount of eight percent to reflect your remorse. He argued that you have accepted full responsibility, and sought an additional discount of 25 percent in recognition of your progress at Odyssey House. He submitted that an end sentence of between four years eight months, and five years’ imprisonment would be appropriate.

[21] Mr Northwood on behalf of the Crown, in succinct submissions, agreed that the appropriate starting point for the offending is in the region of eight years’ imprisonment, and that an uplift of six months is appropriate to take account of your previous convictions. He also accepted that you initiated negotiations with a view to pleading guilty. He submitted that a reduction of 15 percent is warranted for the pleas, given their timing. He submitted that no additional discount for remorse is warranted, and that the provisions you have made to changing your life is better dealt with under a discount for rehabilitative prospects. In this regard, he submitted that a discount for rehabilitation should be in the region of 10 percent.

Principles of Sentencing

[22] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act 2002. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved. I am also mindful of the need to deter others from committing the same or similar offences. This is a primary factor in drug- related offending. I have taken into account the gravity of the offending with which you were involved, including your degree of culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences. I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and that I need to consider your rehabilitation in the circumstances which have arisen.

Analysis

[23] The lead charge is the charge of manufacturing methamphetamine.

[24] The tariff case in relation to methamphetamine-related offending is the decision of the Court of Appeal in R v Fatu.2 You were charged on the basis that you manufactured 200 grams of methamphetamine. That quantity of methamphetamine

_{falls within what is known as Band 2 in Fatu. Band 2 offending involves the}

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

manufacture of between five and 250 grams of methamphetamine. It attracts a

starting point of between four and 11 years’ imprisonment.

[25] You were the primary offender in the present case. Although other co-offenders obtained precursor substances and on sold the methamphetamine, you were the person involved in its manufacture. You were not manufacturing to satisfy your own habit. The quantities involved were significant, and there was clearly a not insignificant commercial element to your offending. While I suspect that you were involved in manufacturing more than 200 grams of methamphetamine, you are entitled to be sentenced by reference to the summary of facts to which you have entered a plea of guilty.

[26] I have considered various similar cases,3 and the submissions made by both

Mr Northwood for the Crown, and Mr Munro on your behalf. [27] I adopt a starting point of eight years’ imprisonment.

[28] I uplift that starting point by 12 months, to recognise the totality of your offending, particularly the possession of methamphetamine for supply. The items found in your motor vehicle when you crashed it clearly suggest your culpability in this regard. I do note your involvement in the possession of pseudoephedrine. You could only have been in possession of pseudoephedrine for one purpose, and that was to manufacture more methamphetamine.

[29] It follows that my initial starting point is one of nine years’ imprisonment.

Personal Aggravating and Mitigating Features

_{[30] I now turn to consider aggravating and mitigating factors personal to you.}

3. R v Harpur [2012] NZHC 1748 – 220 grams – starting point of eight years; R v Smith [2008] NZCA 175– conservative estimate of 174 grams, persistent offending – starting point of nine years; R v Johnstone HC Rotorua CRI 2006-063-4598, 5 February 2009 – 118 grams – starting point of seven years’ imprisonment; R v Vitali HC Auckland CRI 2005-004-020376, 29 August

2006 – 170 grams, but evidence of more – starting point of 10 years’ imprisonment.

[31] First, there is your criminal record. As I have already noted, you have a number of convictions going back to 1994 and running through to 2001 for the possession of cannabis. You have a conviction in 2003 for the possession of a needle and/or syringe, for use with drugs. More significantly, you have a conviction in

2004 for being in possession of methamphetamine, and a conviction in 2005 for conspiring to deal with a Class A drug — I assume methamphetamine.

[32] I uplift your sentence by a further six months, given these serious and relevant previous convictions.

[33] I accept that there are mitigating features.

[34] First, there is your success at rehabilitation, and the very significant progress you have made in that regard. You referred yourself to Odyssey House. You have made significant efforts to achieve rehabilitation. I accept that the attempts you have made are genuine. I also accept that you have been on EM bail while at Odyssey House. That is a restrictive form of bail.4 You have abided by the terms of your bail and you have been a positive influence at Odyssey House. I accept that

your motivation is sincere. I am prepared to allow you a discount of two years — or just over 20 percent — to recognise the attempts you have made in this regard.

[35] Secondly, there are your guilty pleas. You first initiated inquiries regarding a possible resolution of this matter in November 2012. Following a review of the evidence, the issue was raised again in February 2013. In the event, you were arraigned on 5 April 2013, and pleaded guilty to the amended indictment at that stage. The plea was relatively late in the day, but I accept that you initiated the discussions at an earlier point of time. In the circumstances, I am prepared to allow you a further discount of 18 months, or 20 percent, to recognise the guilty pleas.

[36] Thirdly, there is your additional remorse. Normally, remorse is recognised by a guilty plea. In the present case, there are, however, some additional factors. There is the probation officer’s review, the reports I have received from Odyssey House,

_{and a letter I have received and read from you. Moreover, the genuineness of your}

4 R v Benson CA 86/90, 11 July 1990.

remorse is borne out by your efforts at Odyssey House, and the assistance you have given to others entering the Odyssey House programme. I am prepared to allow you an additional discount of three months to recognise this remorse.

[37] Mr Moore, will you please stand.

[38] In respect of the charge of manufacturing methamphetamine, I sentence you to a term of imprisonment of five years and nine months.

[39] In respect of both of the charges of possession of methamphetamine for supply, I sentence you to a term of imprisonment of two years and six months.

[40] In respect of the charge of possession of the precursor substance pseudoephedrine, I sentence you to a term of imprisonment of 18 months.

[41] The sentences are to be served concurrently. It follows that the total finite sentence I have imposed on you is one of five years and nine months’ imprisonment.

[42] I make an order under s 32 of the Misuse of Drugs Act for the destruction of the drug-related paraphernalia seized at the various properties.

[43] Mr Moore, you have made very real progress over the last year while you have been at Odyssey House. I hope that you will continue your rehabilitation while you are serving your custodial sentence, and that you will make good on your desire to become a therapist, assisting in the rehabilitation of others with addictions to drugs and alcohol.

_{[44] You may stand down.}

Wylie J