R v Crompton (aka Ethelstone) [2014] NZHC 1563 (4 July 2014)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of New Zealand Decisions

JAYNE CROMPTON (aka ETHELSTONE) MARC HENRY ETHELSTONE DEAN FREDRICK THEOBALD

Hearing:	4 July 2014
Appearances:	M Jarman-Taylor for the Crown P J Kaye for the Defendant, Jayne Crompton C Muston for Defendant, Marc Ethelstone M J Dyhrberg for Defendant, Dean Theobald
_Sentencing:	_{4 July 2014}

[2] Ms Crompton, you were found guilty of four counts of manufacturing the class A drug methamphetamine,¹one count of attempted manufacture of methamphetamine,²two counts of possession of methamphetamine for supply,³four counts of supplying methamphetamine,⁴thirteen counts of offering to supply methamphetamine,⁵one count of conspiring to manufacture methamphetamine,⁶three counts of possession of a precursor substance,⁷five counts of possession of equipment,⁸five counts of possession of materials,⁹three counts of possession of a firearm,¹⁰one count of possession of an airgun,¹¹and two counts of possession of ammunition.¹²

[3] Mr Theobald, you were found guilty of four counts of manufacturing methamphetamine, two counts of possession of methamphetamine for supply, one count of supplying methamphetamine, one count of conspiracy to manufacture methamphetamine, three counts of possession of a precursor substance, five counts of possession of equipment, four counts of possession of materials, three counts of possession of a firearm, one count of possession of an airgun, two counts of possession of ammunition, and one count of aggravated assault against a police

²_{Misuse of Drugs Act 1975 ss 6(1)(b) and 6(2)(a) and Crimes
Act 1961 ss 72 and 311.}

[4] Mr Ethelstone, you were found guilty of two counts of manufacturing methamphetamine, one count of attempting to manufacture methamphetamine, one count of possession of methamphetamine for supply, one count of possession of a precursor substance, three counts of possession of equipment, three counts of possession of materials, one count of possession of ammunition, two counts of

possession of a firearm, one count of possession of a restricted weapon,¹⁴and one

[5] Mr Theobald, you were found not guilty of two further counts, and Ms Crompton, you were found not guilty of an additional six counts. Despite those findings, clearly the collective 87 counts to which you two and Mr Ethelstone were found guilty disclose significant and serious drug related offending. Imprisonment is the inevitable end sentence, the only question is how long that term of imprisonment should be. I now turn to address the factual background.

[6] The charges you all faced follow extensive operations by the Northland Police into the manufacture and supply of methamphetamine in the Northland area. Given the number of charges on which you will be sentenced today I will summarise the facts to which they relate chronologically.

[7] Ms Crompton, in the period between 22 February and 11 April 2010 you offered to supply methamphetamine by text message on at least four occasions. Those text messages were analysed by Police following a police operation known as Operation Arabia targeting the Headhunters motorcycle gang. During this time Ms Alison Clunie would text you asking whether you had methamphetamine to supply or you would text her asking her whether she wanted to buy. Ms Clunie would then on-sell the drug in smaller quantities at street level. Ms Clunie has been

_{sentenced to a total of six and a half years imprisonment for her
offending.}¹⁷

¹⁷R v Clunie HC Whangarei CRI-2012-088-2612, 10 July 2012; R v Clunie [2013] NZHC 2689.

[8] You offered to supply Ms Clunie in the vicinity of 34 g of methamphetamine on these four occasions. That total consisted of:

[9] You also in fact supplied methamphetamine to Ms Clunie on at least two occasions in this period. On 20 March 2010 you supplied $2,800 worth of methamphetamine to her at around $600 per gram. Two days later, on 22 March

2010, you supplied 10 grams of methamphetamine also at $600 per gram. I take that to be around 14.7 g that you supplied to Ms Clunie.

[10] The next series of charges relate to both of you, Ms Crompton and Mr Theobald. On 2 March 2011 Police executed a search warrant at an address in Silverstream Road, Whangarei, as part of Operation Linda. At that time the address was occupied by you, Ms Crompton, your de facto partner, Mr Theobald, and your daughter. Neither of you were present at the time of the raid.

[11] During the search of your property, Police located at least 0.5 g of methamphetamine in your possession at the bottom of a tin, methamphetamine precursor substances (namely hydrochloric acid), equipment (being a reaction flask, pressure sprayer, and digital scales) and materials (being iodine, hydrogen peroxide, calcium chloride, and sodium hydroxide) associated with the manufacture of methamphetamine, a 12 gauge pump action shotgun, an air rifle, and six cartridges

[12] Swabs taken from the walls of the garage, the ceiling in the kitchen and two KlipIt containers contained residual methamphetamine and other by-products of the methamphetamine manufacturing process, consistent with those areas being used by you for the manufacture of methamphetamine prior to the Police raid. The amount of methamphetamine you manufactured at this address is unknown.

[13] Ms Crompton, between 2 and 7 June 2011 you went on to attempt to manufacture methamphetamine again, but the iodine precursor you possessed was not of good quality. You elicited the assistance of your brother, Mr Ethelstone. It appears that you, Mr Ethelstone, attempted to source iodine for that manufacture, but failed in that regard. In any event it appears that you, Ms Crompton, found an alternative source of iodine.

[14] Ms Crompton, you went on without Mr Ethelstone to once again offer to supply methamphetamine by text message to Ms Clunie on at least two occasions in June 2011. On 14 June 2011 you offered to supply 5 g and on 27 June 2011 you offered to supply “a few” grams for $600 a gram.

[15] Ms Crompton, you then went on with Mr Theobald to manufacture methamphetamine at Waipu Cove between 23 June and 3 July 2011. By text message you made clear that you and Mr Theobald had manufactured four “snapper” as well as “3 an a cple little fish”. The Crown submits that these were references to the manufacture of approximately seven ounces (or 198 g) of methamphetamine. Both of you then went on to supply four ounces (approximately 113 g) of that methamphetamine to an unknown associate. I note that your counsel, Ms Crompton, disputes the inference that seven ounces was manufactured by you at Waipu Cove.

[17] Ms Crompton, you also offered to supply methamphetamine to Ms Clunie on at least seven further occasions in July to September 2011, and did in fact supply an unknown amount of methamphetamine to Ms Clunie on 17 September 2011.

(a) an unknown quantity of methamphetamine sometime between 30 June and 3 July 2011 and $6,000.00 worth of methamphetamine to an associate of Ms Clunie;

(b) an unknown quantity of methamphetamine on 5 July 2011 (though I note that Ms Clunie had advised you that she had “heaps of work lined up”);

Ashton Road, Matakana and Rodney Road, Leigh – Ms Crompton, Mr Ethelstone, and Mr Theobald²²

[19] All three of you, Ms Crompton, Mr Ethelstone, and Mr Theobald, manufactured methamphetamine in the period between 10 to 20 September 2011 at two high-end holiday homes. The first home was located on Ashton Road, Makatana, where you manufactured methamphetamine between 12 and 16

September 2011. Swabs taken from the kitchen and laundry were analysed and methamphetamine was detected. On 16 September 2011 you moved to the second holiday home, located on Rodney Road, again renting the place for a period of a week. In order to avoid detection you installed an early warning sensor to a fence post some distance down the road from the address.

[20] On 20 September 2011 Police executed a search warrant on the Rodney Road house as part of Operation Beema. None of you were present at the house at the time of the Police raid. During their search Police found substantial equipment associated with the manufacture of methamphetamine, namely unused pH paper; coffee filters; measuring jugs; plastic funnels; kitchen scales; an electric hot plate, and a large reaction and distillation unit constructed from a 50 litre aluminium beer keg fitted with a large stainless steel condenser. That unit was tested and traces of pseudoephedrine extraction, methamphetamine manufacture and related by-products were found. Police also found assorted materials related to the manufacture of methamphetamine including iodine and caustic soda. In addition, a .22 semiautomatic rifle, 12 gauge pump action shotgun and 21 shotgun cartridges were found in the master bedroom.

[21] The total methamphetamine you manufactured at the two addresses is unknown, but 44.6 g was found in the vacuum cleaner at the house on Rodney Road.

_{shipping container online. That container was delivered to an
associate’s address in}

Whitford, Auckland. It was also searched on 20 September 2011. You used the shipping container to store equipment associated with the manufacture of methamphetamine, including a digital pH meter; measuring jug, steam distiller, steel baking tray, electric urn, stock pot and plastic funnel. Also located in your possession in the container was the precursor substance sulphuric acid. Iodine was also found inside the house, but the jury found that only you, Ms Crompton, was in possession of that material, and found you, Mr Theobald, not guilty on that charge.

[23] All three of you also had access to two self storage units on Rewarewa Road, Whangarei. Police searched these units on 20 September 2011 and found a reaction flask, electric water bath, and a plastic container containing phosphorous acid.

[24] All three of you manufactured more methamphetamine at an address in Kaiaua. Ms Crompton, you organised to rent a holiday home on Pukekereru Lane in February 2012. I infer that you, Ms Crompton, and you, Mr Theobald, probably manufactured methamphetamine there on or about 13 February 2012. The owner noticed a chemical smell after you vacated the property. However, you did not face any charges in relation to your occupation of Pukekereru Lane in February 2012 and, therefore, I do not take this initial rental into account in any way. The two of you then rented the same property between 21 – 28 March 2012 and, certainly this time, manufactured methamphetamine with assistance from Mr Ethelstone.

[25] On 28 March 2012 Police executed a search warrant on the property. You three were not present at the time of the search. The search found a large amount of equipment and materials associated with methamphetamine manufacture, including a steam distiller, electric hot plate, digital pH meter, and quantities of sodium hydroxide and hydrogen peroxide. They also found 469.2 g of the precursor substance pseudoephedrine hydrochloride. It is unknown how much

[26] Later that day, Mr Theobald, you and an unknown associate arrived at the Pukekereru Lane address. You were confronted by armed Police members and elected to flee. While driving away you rammed a Police dog wagon occupied by a constable before making your escape. After your car got stuck in soft ground and an attempted flight you were apprehended by Police.

8 May 2012 in a motel room in East Tamaki. Inside the unit a hand held high voltage taser was found. In the boot of the Holden Commodore used by you 604 g of cannabis packaged in ½ pound bags were found, and so too was $36,000 in cash hidden in two lots in the glove box and the battery pack in the boot.

[28] Ms Crompton, you were also apprehended three days later in the Howick area.

[29] In sentencing you today an important consideration is the quantum of methamphetamine you manufactured. The Crown has estimated the quantities of methamphetamine that each of you relevantly manufactured, attempted/conspired to manufacture, supplied, offered to supply, or possessed. Except for the quantity manufactured at Waipu Cove these quantities are not in dispute, although there is some dispute as to the inferences to be drawn when the quantity in question is unknown.

[30] Ms Crompton, you manufactured an unknown quantity of methamphetamine at Silverstream Road, Ashton Road, Rodney Road and Pukekereru Lane, though at least 44.6 g was manufactured at Rodney Road. In respect to Waipu Cove, the

_{Crown submits that you manufactured just over seven ounces (198 g),
while your}

counsel submits the references to snapper and fish in the text messages are ambiguous and should be treated as references to seven grams.

[31] However, I accept the Crown’s submission that it is implausible that you would set up to manufacture methamphetamine in order to manufacture only seven grams. That is not, in reality, a commercial quantity and it does not make sense that you would put so much time and effort into an enterprise that would net you only

$4000 for your trouble.²⁷I infer as a matter of fact that the text messages you sent

referring to four “snapper” and “3 an a cple little fish” are references to ounces, not grams. From there I find that you manufactured just over seven ounces (198 g) at Waipu Cove.

[32] I now turn to the rest of your offending. The amount you attempted to manufacture between 2 – 7 June 2011 is unknown. You possessed approximately

0.5 g at Silverstream Road, and 44.6 g at Rodney Road, although I note that the latter figure has already been counted as part of the manufacture charge.

27 June – 3 July 2011, although I once again note that the latter figure has already been counted as what you manufactured at Waipu Cove. That is a total just under

[34] You offered to supply at least 62.5 g of methamphetamine, although that does not count the unknown quantities you offered on 5 July 2011 and 13 September

2011, the “few” grams offered on 27 June 2011, the $6000 worth on 30 June 2011, and the $2000 worth on 24 July 2011. A conservative estimate in my opinion would place the amount you offered at around 75 g plus the unknown quantities. Similarly, it is unknown how much you conspired to manufacture at Glenmohr Road, Waipu

²⁷R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72, (2005) 22 CRNZ 410 (CA) at [42].

[35] Mr Theobald, the same quantities apply to you as they do for Ms Crompton for the manufacturing, conspiracy to manufacture and possession for supply charges. In respect to supply you supplied only 4 ounces of methamphetamine. As your counsel points out the same qualifications in respect to double counting quantities (mentioned in [32] and [33] above) apply.

[36] Mr Ethelstone, the amount of methamphetamine you helped manufacture at Ashton Road and Rodney Road is unknown, but is at least 44.6 g. That amount is also that which you possessed for supply. The amount you manufactured at Pukekereru Lane is unknown, and so is the amount you attempted to manufacture on

[37] I have received helpful submissions from Ms O’Connor on behalf of the Crown, from your respective lawyers and I have also heard from counsel today in relation to those submissions. Counsel have referred me to the principles and purposes of sentencing in the Sentencing Act 2002 and have cited the relevant guideline judgment of the Court of Appeal in R v Fatu.²⁸Counsel agree that the convictions for methamphetamine manufacture (four for you Ms Crompton, and you, Mr Theobald, and two for you, Mr Ethelstone) are best treated as the lead offences.²⁹

[38] The Court in R v Fatu provided starting point bands for the manufacture of methamphetamine:³⁰

(d) Band four – manufacturing very large commercial quantities (500 gms or more) – 13 years to life imprisonment.

[39] The Court also noted that the sentence imposed must reflect “not only the quantity of drug involved, but the role of the particular offender in the manufacturing ring in question.”³¹Findings of fact must be made in accordance with s 24(2)(c) of

the Sentencing Act 2002 (i.e. on the basis of the criminal standard of proof).³²

Despite that, having presided at the trial I am not necessarily bound to adopt a view of the facts most favourable to you, and I am entitled to reach my own view of the facts so long as that view is supported by evidence and is not inconsistent with the jury’s verdict.³³

[40] The Crown submits that your offending falls within three distinct episodes. The first episode is the offending at Silverstream Road in early 2011. After the Police raid of that property it is submitted that you realised you needed to change your method of operation, prompting the second episode offending at the holiday homes on Ashton and Rodney Roads and at Waipu Cove in mid 2011. The third episode covers manufacturing after the Police raid on 20 September 2011, namely the manufacture at Pukekereru Lane in the first half of 2012. I am content to adopt that three-episode approach to the extent that it is a convenient summary of the scope of the manufacture of methamphetamine undertaken by you three.

[41] Pursuant to this the Crown asks that cumulative (rather than concurrent) sentences for each of the three episodes be imposed. That approach in my opinion is inappropriate given the level of similarity (indeed, repetitiveness) in kind between each manufacturing event you each engaged in and does not appropriately reflect the

nature and quality of your conduct.³⁴While this case shares many similarities with

the facts in R v Collins, I consider that the Court of Appeal’s comment that cumulative sentences were appropriate for the four quite distinct episodes of offending in that case should not apply here.³⁵The offending in that case spanned

_{over a three year period between 8 June 2004 and 8 May 2007. Here the
bulk of the}

³³_{R v Heti (1992) 8 CRNZ 554 (CA); R v Accused
[1988] 1 NZLR 422, (1988) 3 CRNZ 331 (CA).}

offending was concentrated in a one year period with a small majority of the charges in a four month window between June and September 2011.³⁶In any event, the approach taken should not affect the end sentence that I impose on each on you.

[42] I will take a concurrent approach in respect of the manufacturing offences, resulting in a representative start point for those offences. I will then uplift that start point to adjust for totality to reflect the various related offending and the aggravating features of that offending. From there I will consider personal factors that apply to each of you individually.

[43] A summary of the Crown’s submissions as to sentence is in order. Ms Crompton, the Crown submits that a starting point of 16 to 18 years imprisonment should apply to you. They also seek an uplift to reflect your additional charges for supplying and offering to supply methamphetamine to Ms Clunie in the February – March 2010 period.

[44] Mr Theobald, the Crown submits that a starting point of 14 to 16 years imprisonment is appropriate for you. They also seek an uplift for your additional charge of aggravated assault against a police constable.

[45] Mr Ethelstone, the Crown requests a start point of 10 to 11 years imprisonment for you. The disparity between you and your co-offenders reflects that you were only involved in the manufacture at Ashton Road, Rodney Road, and Pukekereru Lane, and not at Silverstream Road and Waipu Cove. A cumulative sentence of somewhere in the vicinity of 18 months for the charge of possessing

604 g of cannabis for supply as well as possession of a restricted weapon is also requested. So is an uplift for your significant previous conviction history and because a portion of the current offending also occurred while you were either on bail or subject to a sentence. I note that you dispute (or cannot recall) that you were serving a sentence at the time of the offending. That is an issue I will return to later

[46] The Crown also submits that a minimum period of imprisonment should be imposed on each of your respective sentences in order to denounce your conduct and deter you from committing such offences again. That is an issue I will consider at the end.

[47] In sentencing each of you today it is necessary for me to take account of the purposes and principles of the Sentencing Act 2002. In relation to the purposes the sentence must hold each of you accountable for the harm that you have done to the community by your offending. Your manufacture and supply has brought substantial amounts of methamphetamine into the Northland and Auckland area and has done untold harm to those from whom you have profited and to the wider community. Ms Crompton and Mr Theobald, you manufactured methamphetamine at, at least, six properties over a year, and Mr Ethelstone at three. The owner of the property on Rodney Road gave evidence in this trial as to the damage that your offending caused to her. There are also two victim impact statements from the owner of the Kaiaua and Waipu properties, which detail the huge financial and emotional impact on them. You were also convicted with the possession of various firearms and ammunition, bringing the risk of violence into our communities.

[48] The sentence I impose on you today should promote in you a sense of responsibility for and, acknowledgment of that harm. In addition, it should denounce your conduct and act as a deterrent for you and others from committing similar offending. However, it should also take into account the possibility of rehabilitation for each of you and your future re-integration into the community.

[49] In relation to the principles of the Sentencing Act regard must be made to the seriousness of offending for which you are sentenced, which is reflected in the maximum sentence of life imprisonment that Parliament has prescribed, and the high degree of culpability each of you possess given your extended and recidivist manufacturing of methamphetamine over a substantial period.

[50] I have reviewed your respective pre-sentence reports and conviction history.

[51] Ms Crompton, your report discloses that you are 47 years old and are both a mother and a grandmother. You met Mr Theobald, who is now your de facto partner, at school. The pre-sentence report suggests that you deny being a methamphetamine user, but your counsel has today acknowledged that you have indeed been using methamphetamine for a long time. You also acknowledge using cannabis. You have eight previous convictions, all of which are relatively minor compared to your present offending, but include three charges of possession of utensils for the use of methamphetamine. I also record that during the course of the trial your partner, Mr Theobald, attempted to supply you with methamphetamine concealed inside an asthma inhaler. It is my view that you have been living a lie for many years.

[52] The report suggests that you have a sense of entitlement and lists your drug use and your association with your co-offenders as factors that have contributed to your offending. The report writer notes that you express no remorse for your offending and assesses your motivation to change as low.

[53] The probation report considers your likelihood of re-offending as low. However, I do have some doubt as to the validity of that assessment given the recidivist nature of the offending for which you are being sentenced today. However, I also take into account the letter you have written to me today, which I accept, in which you do express real remorse. And I do accept that you are now remorseful.

[54] In addition, you have informed the probation officer that prior to incarceration you were on a sickness benefit for your depression and for which you were receiving counselling.

[55] Mr Theobald, you are 42 years old. You grew up in Auckland and are a qualified mechanic. You were married for 10 years and helped raise your former wife’s children. You have been in a relationship with Ms Crompton since 2007 and have no children of your own.

[56] You told the probation officer that you were a long term user of methamphetamine, having used the drug for 14 years, and you sold drugs in order to fund your use, reported as being one or two points (a tenth or a fifth of a gram) a day at the time of your offending for which you are to be sentenced today.

[57] You have six previous convictions. Like Ms Crompton these are relatively minor compared to those you face today. They include possession of cannabis, unlawful possession of a pistol, reckless discharge of a firearm, offensive behaviour, obstructing Police, and excess breath alcohol.

[58] You acknowledge that you face a long term of imprisonment. You state that you do not want to use methamphetamine again, and expressed motivation to stop using drugs and to attend a substance abuse programme while you serve your sentence.

[59] Mr Ethelstone, you are 35 years old. You have a three year old son with your ex-partner. You were in full time employment working as a drain-layer until

2010, when you began to get involved in the offending for which you will be sentenced today.

at an early stage. You first came to the Court’s attention in 1999 when you were

21 years of age. Since then you have amassed a significant conviction history, totalling 44 convictions. Relevantly you have previous convictions for manufacturing methamphetamine (April 2008), possession of methamphetamine (August 2007 and December 2006) and possession of equipment/materials (x 2)

(August 2007). A portion of the current offending also occurred while you were either on bail or subject to a sentence, according to the Crown.

[61] You continue to deny any involvement in the manufacture of methamphetamine, although you specifically acknowledge your guilt for five of the lesser charges you face.³⁷The probation officer considered that you had no remorse for your offending. However, you do acknowledge that alcohol and drug use are significant contributing factors to your offending, and express willingness to undertake appropriate rehabilitation. To your credit you also express interest in further education and training while serving your sentence in order to enhance your ability to return to legitimate fulltime employment when you are released. I also

[62] The starting point for your respective offences of manufacturing methamphetamine should accord with the sentencing bands set out in R v Fatu and reflect the scale of your offending and your culpability therein. It should also be in line with sentences imposed on others whose offending was of a similar kind. I have

had particular regard to the decisions of the Court of Appeal in R v Collins,³⁸Van de

Ven v R,³⁹and R v Baird & Ors.⁴⁰As noted earlier, I consider that the facts in R v Collins are somewhat similar to your offending and in that sense the sentence imposed in the High Court and upheld on appeal in that case is of some relevance in sentencing you today.

[63] Ms Crompton, in respect to the Silversteam Road offending, the amount of methamphetamine manufactured is unknown. I accept, however, that the quantity manufactured would have been a commercial quantity and in that respect falls within

_{Band 2 as provided by in R v Fatu. This inference is supported
by the finding of}

MSM, a cutting agent used to dilute the methamphetamine and increase the bulk for sale. The offending is aggravated by the finding of firearms and the fact that the offending occurred in a home also occupied by young children.

[64] In respect to your offending at Ashton Road, Rodney Road, and Waipu Cove, it is known that at least 44.6 g was manufactured at Rodney Road and 7 ounces (196 g) at Waipu Cove. At the very least, therefore, 240.6 g was manufactured by you. The amount manufactured was in all likelihood materially more than that. The homemade condensation unit / distiller found at Ashton Road was among the biggest ever seen by the ESR scientist.

[65] The Crown realistically submits that this offending by itself sits at the very top of Band 2 or the bottom of Band 3. The offending is aggravated by the use of other peoples’ holiday homes to manufacture methamphetamine and by the finding of firearms at Ashton Road.

[66] In respect of your offending at Pukekereru Lane, the amount is again unknown, but given the length of time you were at the address and the quantities of materials, equipment and precursors found it clearly was a substantial commercial quantity. That offending is also within Band 2.

[67] I accept that you should only be sentenced in relation to the offending which the Crown can prove, and that it is not right in principle for you to be sentenced on the basis of offending that you would or could have committed had the Police not intervened.⁴¹However, I must take a realistic view of the dynamics of this particular

form of offending.⁴²Having heard the evidence against you and your co-offenders

over a nine week trial, I am entitled to come to a view of the facts that is consistent with the evidence and is not necessarily most beneficial to you. In doing so the starting point “reflects more than a straight arithmetical assessment” and should take

[68] Ms Crompton, in light of the evidence at trial and taking a realistic approach I consider that the appropriate sentence for the collective quantities you manufactured is towards the middle or just below the middle of Band 3 and yields a start point in vicinity of 12 years imprisonment. In setting that starting point I have had regard to your additional firearms and ammunition charges that reflect in my view the commerciality of your offending being such that you felt the need to protect your investment with weaponry. The recidivist nature of your offending, having occurred at six different properties over a substantial period, is also consistent with commercial manufacture on a large scale. I also note that you, Ms Crompton, were a

primary offender in each of the manufacturing events.⁴⁴You clearly were deeply

involved in the methamphetamine industry as the supplier to Ms Clunie and other associates and were not a subsidiary actor or playing second fiddle to Mr Theobald or Mr Ethelstone in doing so.

[69] From that starting point I consider a significant uplift for the additional charges of possession of materials, equipment and precursors is appropriate. In coming to that decision I have in mind the comments of the Court of Appeal in R v Fatu in considering the problems associated with setting a sentence for manufacturing methamphetamine when the quantities manufactured are unknown. In that case the Court said that:

[37] Cases involving the manufacture of methamphetamine can be problematical. Whether the scale of the offending can be assessed depends very much on chance, the evidence of manufacture on hand at the time of police intervention, volumes of precursor materials located and the availability of extrinsic evidence.

[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.

[70] In my opinion the additional charges of possession of precursors, equipment, and materials is not absorbed in the culpability of the primary offending, but rather is indicative of the scale and magnitude of your manufacturing operation, which is clearly well beyond that reflected in the specific quantities proven to have been manufactured by the Crown. As noted already the distiller unit found at Ashton Road was one of the biggest ever seen by the ESR scientist. At Rodney Road a two layered liquid of about 2.4 litres was found. Analysis of that liquid was consistent with the liquid produced during the manufacture of methamphetamine from unwanted reaction mixture. In respect to the Pukekereru Lane manufacture a receipt for the purchase of 5 litres of iodine was found. Hydrogen peroxide and hydrochloric acid found at the address is consistent with the extraction of solid iodine from liquid iodine on a large scale.

[71] Most significantly, almost 470 g of pseudoephedrine hydrochloride (likely extracted from ContacNT) was found at Pukekereru Lane. The Crown submits that such a quantity has the potential yield of 225 to 337.5 g of methamphetamine. The submitted value of that quantity is anything between $80,000 and $337,500. The value of that pseudoephedrine recovered by the Police is consistent with the text message that you, Mr Ethelstone, sent on 29 March 2012 stating that you lost a “coupld hunrd k”. As recognised in R v Fatu there are difficulties in sentencing for potential yields, but I also note the Court of Appeal’s comments in Baird & Ors v R that many convictions for methamphetamine manufacture are based on circumstantial evidence and that often it will be impossible to be sure of an exact

possession is reflective of the scale of your manufacture operation at Pukekereru Lane. Similar inferences can be made in respect to your earlier manufactures in the Northland area given the substantial quantities of materials, equipment and precursors found at those addresses.

[72] I also accept the Crown submission that the premeditated and persistent nature of your offending is a significant aggravating factor. Although premeditation

is to an extent inherent in the charges you face,⁴⁶your actions after the Police raid on Silverstream Road indicate a marked degree of persistence and determination to continue offending. Each time you lost material, equipment and precursors, and each time you had to gear up to manufacture again. That persistence would be commendable if applied to a legitimate venture, but in the context of the great harm methamphetamine does to our communities it can only be seen in a most negative light. The Court of Appeal has stated that there is an enhanced pubic interest in incapacitating recidivist offenders such as you, Ms Crompton, and that public interest is accentuated by the presence of firearms and ammunition in this case.⁴⁷

[73] In addition, I am satisfied that the use of other peoples’ homes for manufacturing methamphetamine is a significant aggravating factor. There are inherent dangers in the clandestine manufacture of methamphetamine. The explosion that occurred in the case of R v Collins is a good example.⁴⁸Those dangers are only exacerbated by the presence of firearms and ammunition acquired in order to protect your investment.⁴⁹It can be fairly said that the predominant motivation for putting so much at risk was personal gain.

[74] The extent of your manufacturing operation is also seen in your charge of supplying an unknown amount of methamphetamine on 17 September 2011 and your

9 charges of offering to supply methamphetamine in mid-2011 totalling approximately 41.5 g on a conservative estimate (being 30.5 g plus $6000 worth) plus unknown amounts. In considering that as indicative of the scope of your operation, I specifically do not take into account the four ounces you supplied as that quantum has already been addressed in setting the initial starting point for the manufacturing charges. I also leave for now your additional offending in the February – April 2010 period.

Court of Appeal in Baird & Ors v R I consider an uplift of two and a half years imprisonment is appropriate to take into account the totality of your offending as

⁴⁹R v Faifua CA 287/05, 27 March 2006 at [26] (in respect of possession of firearms).

reflected by your possession of materials, equipment and precursor charges and also in consideration of your additional charges of attempting to manufacture methamphetamine, conspiring to do so, possession for supply of approximately

0.5 grams at Silverstream Road, charge of supplying on 17 September 2011 and the

[76] An uplift of two and a half years imprisonment brings the starting point near to that in R v Collins. I note counsel for Mr Theobald’s submission that the offending in R v Collins might be viewed as more serious given it occurred over three years, involved more firearms and a explosive device, an explosion actually occurred and there were additional charges of escaping custody and cultivating cannabis. Against that, your manufacture-related offending is fundamentally similar to R v Collins in the sense that it involved recidivist manufacture of commercial quantities over a extended period of time, and your situation has its own aggravating factors (such as additional charges for attempting to manufacture methamphetamine, conspiring to do so, and one each for possessing materials, equipment and precursors for methamphetamine manufacture). I also have regard for the Court of Appeal’s comment on appeal in R v Collins, that the end sentence of 15 years six months imprisonment was distinctly light and comments to the effect that there is an

enhanced public interest in incapacitating recidivist offenders such as yourself.⁵⁰

[77] Applying that uplift leaves an adjusted starting point of 14 and a half years imprisonment for you, Ms Crompton. That starting point is slightly less than than that imposed by this Court in R v Van de Ven⁵¹and also less than that in R v

Beckham.⁵²I note that the quantities proven to have been manufactured in those

cases were higher, but in my opinion the significant evidence of further manufacture, the possession of firearms, materials, equipment, and precursors, and the serious aggravating factors of your offending particularly it occurring over an extended period in a recidivist manner justify a starting point that is near that imposed in those

[78] Mr Theobald, most of the comments I have made in respect to Ms Crompton apply equally to you. All of your offending except the aggravated assault occurred in conjunction with Ms Crompton. I note, however, that you were not involved in Ms Crompton and Mr Ethelstone’s attempt to manufacture methamphetamine in early June. I also note that you were found not guilty for the charge of possession of iodine at 525 Whitford Road. Furthermore you were not involved with Ms Crompton’s supply on 17 September 2011 and her various offers to supply in mid-2011.

[79] I take from this and from the evidence offered at trial that you were somewhat not as involved as Ms Crompton in the wider methamphetamine operation. However, it is clear that both of you were equally involved in the manufacturing operation itself and Ms Crompton’s role in this respect, I do not think, was markedly greater than yours. Your counsel accepts that your offending for the manufacturing charges sits within Band 3 and I have no compelling reason to distinguish you from Ms Crompton in setting your start point towards the middle of that band.

[80] I do, however, consider that the uplift for totality should be less given the nature of your role and the smaller number of additional charges that you face. In doing so I am aware of the issue of disparity in the end sentence between you two and the need to achieve fairness between each of you in the term of imprisonment that you will serve.⁵³

[81] I consider that the difference between you and Ms Crompton is somewhat similar to that between Mr Tang and Mr Sims in R v Tang.⁵⁴On appeal the Court of Appeal considered that both Mr Tang and Mr Sims were both directly involved in the manufacture process, but Mr Tang had a wider role as organiser and co-ordinator of the manufacturing and supply chain.⁵⁵In that case the Court noted that

_{manufacturing and supply (even for commercial purposes) are treated
separately}

under Fatu and attract different levels of culpability. On this basis “[a] manufacturer who is not involved in supplying the methamphetamine produced would not be subject to the uplift for the activities of those distributing it.”⁵⁶

[82] Having regard to the significant aggravating factors that are engaged in this offending and the totality of your offending (detailed in [68] to [71] above), but with regard to Ms Crompton’s greater involvement in supplying and offering to supply methamphetamine and her additional charge of attempting to manufacture methamphetamine, I consider that an uplift of 18 months imprisonment is appropriate to recognise the whole of your offending. That leaves an end start point in the vicinity of 13 years six months imprisonment for you, Mr Theobald. Standing back I consider the disparity between your sentences as justifiable in terms of the respective roles that each of you undertook and the charges for which each of you have been found guilty.

[83] Mr Ethelstone, your position is different from your co-offenders. You were not involved with the manufacture of methamphetamine undertaken at Silverstream Road and Waipu Cove. In particular, you were not party to the approximately 198 g manufactured at the latter of those addresses. The only amount that you manufactured that can be proven on the criminal standard is the 44.6 g found at Rodney Road.

[84] As stated previously, the Crown submits that your offending falls at the top end of Band 2 and attracts a start point of 10 to 11 years imprisonment. Your counsel accepts that your offending falls within Band 2, but argues for a start point of between five and a half and 7 years imprisonment. I take from that that he considers your conduct falls at the lower to middle end of Band 2. He relies on a statement in R v Fatu that you are only to be sentenced for the offending that the Crown can

_prove,⁵⁷_{and cites a number of cases he considers
as analogous to your situation.}⁵⁸

⁵⁸R v Sawtell HC Wellington CRI 2008-078-000910, 24 July 2009; R v Golding HC Auckland CRI

2007-057-000715, 28 November 2008; R v Hawkins HC Rotorua CRI 2006-063-1080, 28

[85] The issue is predominantly one of evidence. The Crown are unable to conclusively prove that you manufactured more than 44.6 g of methamphetamine. As a general principle it is not correct to sentence you to offending which the Crown cannot prove. However, as noted previously I am not required to necessarily adopt a view of the facts that is most favourable to you. I also take note of the comments in R v Fatu regarding the difficulties in sentencing for this type of offending when the quantity of methamphetamine manufactured is unknown. I am also cognisant to the danger of imposing an overly disparate sentence on you compared to your co- offenders, Ms Crompton and Mr Theobald, who happened to have the misfortune of being found guilty of manufacturing a substantial amount of methamphetamine at Waipu Cove.

[86] I accept as a matter of fact that the quantity of methamphetamine manufactured by you was a substantial commercial quantity. It was certainly less than that manufactured by your co-offenders, but it was substantial nevertheless. I have regard to the evidence in respect to the scale of the manufacturing operation at Ashton and Rodney Road. I also note the evidence of large scale manufacture at Pukekereru Lane and the 470 g of pseudoephedrine hydrochloride found at that address. The amount you manufactured was at least 44.6 g and in all likelihood materially more. In this respect I consider your situation distinguishable from that in R v Hawkins, where a starting point of five and a half years was imposed for manufacturing a quantity of methamphetamine that was likely to have been less than

[87] Given the evidence before me, I consider that a start point for the manufacturing in the middle of Band 2 and in the vicinity of seven years six months imprisonment is realistic for you, Mr Ethelstone. However, like your co-offenders I consider that an uplift is applicable to you. Your attempt to manufacture methamphetamine on 2 – 7 June 2011 discloses significant criminality in of itself and the possession of equipment and material at Rodney Road, at the storage sheds and at Pukekereru Lane is particularly revealing as to the extent of your involvement

_{in the manufacturing enterprise. The aggravating factors in terms of
the use of}

holiday homes, the recidivist manufacture of methamphetamine (albeit on a lesser scale than your co-offenders), and the use of weapons all apply to you.

[88] Having regard to those aggravating factors and the way they equally apply to you as they did to Mr Theobald, but with regard to the need to consider totality, I consider an uplift of 18 months imprisonment is appropriate for you also. That leaves a start point of nine years imprisonment for you, Mr Ethelstone.

[89] I now turn to the issue of whether a further uplift is necessary to take into account the additional charges each of you face.

[90] Ms Crompton, in addition to the charges already considered there are the two charges of supplying methamphetamine to Ms Clunie and another associate and the four charges of offering to supply that occurred in February, March and April 2010. This offending occurred a year prior to the raid on your Silverstream Road address.

[91] As noted already, you supplied approximately 14.7 g of methamphetamine and offered to supply 34 g in this period. Looking at that offending in isolation it evidences significant criminality in of itself an appropriate sentence for that offending would be at the very least three years imprisonment, if not more.⁶⁰

[92] It is important that you are held accountable for all of your offending. However, I am distinctively aware of the long sentence that you already face for offences that are similar in type if not in time and place. Having regard to the need to impose a sentence that is in proportion to the gravity of your offending I consider that an uplift of six months imprisonment is appropriate recognition of your offending in the February – April 2010 period. That yields you an adjusted starting

[93] Mr Theobald, you are also for sentence of one charge of aggravated assault on a police officer. Your counsel, Ms Dyhrberg, submits that an uplift should not be imposed as the starting point is sufficient to encompass all offending on a totality basis. In the alternative it is submitted that the uplift should be small because you do not have a history of violent offending and because the pre-sentence report considers you to be of low risk of harm to others.

[94] I accept that the assault is somewhat related and derivative from your drug offending. However, considering you rammed a police dog wagon with little regard for the safety of the occupant in your eagerness to flee, I am unwilling to absorb that offending within the start point. I consider that an uplift is appropriate in recognition of this additional violent offending. I am, however, aware of the issue of totality and the very long sentence for which you face. With that in mind I consider that the uplift of three months is appropriate, resulting in an adjusted start point of 13 years nine months imprisonment.

[95] Mr Ethelstone, you are also for sentence on charges of possession of 604 g of cannabis for supply and possession of a taser at the motel at which you were apprehended. Also found in the Holden Commodore in which the cannabis was found was $36,000 in cash. The Crown submits that on a standalone basis this offending would attract a starting point of around three years imprisonment. Having regard to the Court of Appeal’s guideline judgment in R v Terewi, I consider that submission as accurate as your conduct would fall well within Band 2 of that

[96] In doing so I take the view that the $36,000 was in the nature of a “float”,

_{derived from the sale of drugs and earmarked for the purposes of further
similar}

offending.⁶²That inference is supported in my view by the fact that the money was well hidden in the car and you have had no legitimate employment since 2010.

[97] This offending is distinct in time and place from your methamphetamine- related offending and is sufficiently different in kind that a cumulative sentence for this offending is called for. Taking into account the issue of totality and the additional charge of possession of a taser, I am satisfied that a cumulative sentence of 15 months imprisonment is appropriate for this offending. That leaves an end starting point of 10 years and three months imprisonment.

[98] I now turn to consider the aggravating and mitigating factors personal to each of you and the end sentence that should ultimately be imposed.

[99] Ms Crompton, having regard to the pre-sentence report there do not seem to me to be any mitigating features that are of relevance. I do, however, note that you are not only a mother but a grandmother too. In serving the full length of your sentence or even a significant portion of it you will not see your family for a very long time.

[100] Turning to aggravating factors, I note that some of your offending occurred while you were subject to a year-long supervision sentence imposed by the Manukau District Court on 22 February 2011 for possession of utensils. I also note that you have 8 previous convictions, some of which are methamphetamine related. The gravity of your present offending, however, marks a significant change in the nature and quality of your offending, and I do not propose to increase your sentence beyond the 15 years imprisonment already considered appropriate.

[101] You were found guilty following a defended hearing and so no discount is available for you in that regard. I do note, however, that you have been on restrictive

_{electronic bail for 18 months. For that I will deduct six months
imprisonment from}

your sentence. I come to an end sentence of 14 years six months imprisonment for you, Ms Crompton.

[102] Mr Theobald, there are no particular aggravating or mitigating factors that apply to you. You have some previous convictions, but these are relatively minor compared to your current offending. I do note that you have been addicted to methamphetamine for approximately 14 years and you express the desire to not use it again. You also express willingness to complete drug counselling to this end. Against that, however, I note that you were on bail for possession of cannabis and unlawful possession of a pistol in the period between 12 November 2010 and

22 February 2011. It is possible that some of your offending at Silverstream Road was committed while on bail, but as I indicated to your counsel, I will not take that into account.

[103] Overall I consider that some adjustment to that starting point is necessary because you also were on restrictive electronic bail for 18 months. From your starting point I will deduct six months imprisonment from your sentence. The end sentence I therefore come to is one of 13 years three months imprisonment.

[104] Mr Ethelstone, unlike your co-offenders you have a long and extensive criminal conviction history. Among the 44 previous convictions you have are convictions for:

(a) Possession of cannabis, cannabis seeds, and utensils, as well as unlawful possession of a firearm;

(d) Possession of cannbis oil, possession of methamphetamine (x 2), possession of cannabis (x 2), and possession of utensils;

[105] In addition, a portion of your offending occurred while you were on bail or subject to sentence. Between April 2010 and June 2011 you were convicted of 9 offences, varying from driving offences, drug-related offending and one charge of unlawful possession of a firearm. The import of that is that you were either on bail or subject to a sentence between February 2010 (the date of the first offence) and

7 June 2011 (the result date of the last). That time period covers the charge of attempting to manufacture methamphetamine with Ms Crompton on 2 – 7 June 2011.

[106] Overall I consider that an uplift is necessary to reflect your previous convictions and to acknowledge that one of the charges relates to offending that occurred while you were on bail.⁶³I note that you dispute (or cannot recall) that you were serving a sentence at the time of the offending. However, in the absence of evidence to the contrary I am to take your previous criminal history record as true.⁶⁴

I consider that an uplift of one year is appropriate in respect of these two aggravating factors. That leaves an end sentence of 10 years three months imprisonment.

[107] There are no mitigating factors, or so it seems to me. Your counsel submits, however, that the Court should take into account that you have been either in custody or on electronic bail conditions since your arrest on 8 May 2012. There seems to be some dispute as to the length of your period on electronic bail, but it seems to be in the vicinity of 21 months. On that basis I deduct seven months from your sentence. That leaves an end sentence of nine years eight months imprisonment.

[108] I now turn to the issue of whether I should impose a minimum period of imprisonment in respect to each of your imprisonment terms in accordance with s 86 of the Sentencing Act, and if so, how long that period should be. Section 86(2) states

86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it satisfied that period is insufficient for all or any of the following purposes: -

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved: (c) deterring the offender or other persons from committing the

[109] The Court of Appeal has held that it is “almost invariable in cases of very serious drug offending that the criteria for a s 86 order are made out”.⁶⁵In R v Collins the imposition of a minimum term was considered “inevitable” by the Court of Appeal.⁶⁶Counsel for Mr Theobold urged me to consider the contrary. She made reference to the decision of this court in R v Tang.⁶⁷In that case out of six offenders receiving sentence for methamphetamine manufacture only one received a minimum period of imprisonment. I note, however, that the other offenders were either minor players in the offending or had very positive pre-sentence reports. Another was diagnosed with cancer and a fair number had shown genuine remorse for their

[110] In all I am not convinced that this is a scenario where a minimum period of imprisonment should not be imposed. I see no compelling reason particular to this case to depart from the general principle that a minimum period of imprisonment will be imposed as a matter of course in the event of serious recidivist methamphetamine manufacture.

[111] Ms Crompton and Mr Theobald, your previous conviction history is not particularly long, but in your offending you have demonstrated recidivist

considerations in s 86(2) of the Sentencing Act. I consider that a minimum period of imprisonment of seven years three months imprisonment should apply to you, Ms Crompton, and six years seven months imprisonment for you, Mr Theobald.

[112] Mr Ethelstone, your offending is not of the same scale as your co-offenders, but your conviction history is long and relevant. I have particular regard to your drug offending, especially the conviction for manufacturing methamphetamine in

[113] The Crown also seeks forfeiture of the $36,000 found in the Holden Commodore located during the arrest of you, Mr Ethelstone. As I have stated previously, I think the Crown is right to say that the cash formed part of a “float” used by you in the facilitation of other drug related offending.⁶⁸In that respect I am more than satisfied that the money came into your possession as a consequence of either your methamphetamine or cannabis-related offending and should be forfeited to the Crown.⁶⁹Similarly, I allow the Crown’s application for forfeiture of the firearms, taser, and ammunition pursuant to s 69 of the Arms Act 1983. Given the lengthy period of imprisonment to which I am sentencing you, Mr Ethelstone, I also remit your outstanding fines and costs as specifically requested by the Department of Corrections in the pre-sentence report.

[114] Ms Crompton, Mr Theobald, and Mr Ethelstone, please stand. Ms Crompton, I sentence you to 14 years and six months imprisonment, with a minimum period of imprisonment of seven years and three months. Mr Theobald, I sentence you to

13 years three months imprisonment, with a minimum period of imprisonment of six years and seven months. Mr Ethelstone, I sentence you to nine years and eight months imprisonment, with a minimum period of imprisonment of four years

⁶⁹Misuse of Drugs Act 1975, s 32(1) and (3); R v Collis [1990] 2 NZLR 287 (CA) at 293 and 300.

(a) Counts 1, 9, 23, and 45 of manufacturing methamphetamine – 14 years imprisonment for each, served concurrently.

(b) Count 40 of attempting to manufacture methamphetamine – a nominal sentence of one year’s imprisonment, served concurrently.

(c) Counts 5 and 10 of possession of methamphetamine for supply – a sentence of three years imprisonment, served concurrently.

(d) Counts 35, 37, 46, and 56 of supplying methamphetamine – a sentence of seven years imprisonment, served concurrently.

(e) Counts 32, 34, 36 and 39 of offering to supply methamphetamine – a sentence of six months imprisonment, to be served cumulatively.

(f) Counts 42, 44, 47, 49, 50, 51, 52, 54 and 55 of offering to supply methamphetamine – a sentence of three years imprisonment, served concurrently.

(g) Count 48 of conspiring to manufacture methamphetamine – a nominal sentence of one year’s imprisonment, served concurrently.

(h) Counts 2, 20 and 26 of possession of a precursor substance – a sentence of two years imprisonment, served concurrently.

(i) Counts 3, 11, 18, 21 and 24 of possession of equipment – a sentence of three years imprisonment, served concurrently.

(j) Counts 4, 12, 19, 22 and 25 of possession of materials – a sentence of three years imprisonment, served concurrently.

(k) Counts 6, 7, 13 and 14 of possession of firearms – a nominal sentence of one year’s imprisonment, served concurrently.

(l) Counts 8 and 15 of possession of ammunition – a nominal sentence of three months imprisonment, served concurrently.

11, 18, 21, 24, 4, 12, 22, 25, 6, 7, 13, 14, 8 and 15 for Ms Crompton apply to you.

(a) Counts 9 and 23 of manufacturing methamphetamine – eight years and five months imprisonment for each, served concurrently.

(d) Count 29 for possession of a restricted weapon – a nominal sentence of three months imprisonment, served concurrently.

High Court of New Zealand Decisions

R v Crompton (aka Ethelstone) [2014] NZHC 1563 (4 July 2014)