R v Shaw [2015] NZHC 238 (20 February 2015)

Last Updated: 17 August 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-005509 [2015] NZHC 238

THE QUEEN

v

_{PETER MATTHEW SHAW}

Hearing:	20 February 2015
Appearances:	B D Tantrum for the Crown DGA Reece for the Defendant
Sentencing:	20 February 2015

_{SENTENCING NOTES OF WOOLFORD J}

Counsel/Solicitors:

DGA Reece, Auckland

Crown Solicitor, Auckland

R v PETER MATTHEW SHAW [2015] NZHC 238 [20 February 2015]

Summary

[1] Mr Shaw, you pleaded guilty on 12 December 2014 to a series of charges, primarily revolving around the production and supply of methamphetamine. You appear today for sentencing in respect of the following charges:

(a) One charge of manufacturing the class A controlled drug, methamphetamine.¹ This arises from three separate incidents on

28 February 2014, 12 March 2014 and 9 April 2014. The maximum penalty is life imprisonment.

(b) Two charges of possession of methamphetamine for the purposes of supply² - one on 12 March 2014, and the other between 24 April and

7 May 2014.

(c) One charge of forgery, by creating false drivers licences on 28 March

2014.³

(d) One charge of supplying the class B controlled drug (Ephedrine) on

3 April 2014;⁴ and

(e) One charge of unlawful possession of a firearm.⁵

Facts

[2] The charges you face all follow a New Zealand Police operation entitled

Operation Genoa. The agreed summary of facts lays out the full extent of the drug manufacturing operation you were involved with.

1. This charge arises under s 6(1)(b) and 6(2) of the Misuse of Drugs Act, with a maximum penalty of life imprisonment.
2. These charges arise under s 6(1)(f) and (2) of the Misuse of Drugs Act, with a maximum penalty of life imprisonment.

³ This charge arises under s 256(2) of the Crimes Act 1961 with a maximum sentence of three

_{years imprisonment.}

4. This charges arises under s 6(1)(c) and 6(2) of the Misuse of Drugs Act, with a maximum penalty 14 years imprisonment.
5. This charge arises under s 45(1) Arms Act 1983, with a maximum penalty four years imprisonment or a $5000 fine.

[3] Operation Genoa began in 2013, after suspicion that you and your co- defendants were manufacturing and supplying methamphetamine caused the Police to obtain surveillance devices to monitor your actions.

[4] Mr Shaw, you manufactured methamphetamine on three occasions, although there is just the one charge. The first occasion, on 28 February 2014, produced 830 grams. An unknown amount was yielded in the second manufacture, which took place on 12 March 2014. The Police estimate that on the third occasion, on 9 April

2014, you were part of the manufacture of approximately one kilogram of methamphetamine based on the 1.8 kilograms of ephedrine used in the process. This in total is around 1.83 kilograms of methamphetamine that can be reasonably be verified.

[5] To do so, you purchased key ingredients and tools, including bags of ice to cool the reaction vessel. You transported the drugs to storage locations, and rented many of the storage locations used.

[6] When the Police searched a unit rented by you, they discovered false documents bearing false identities, but with your photograph and that of your co- defendant Ms Stevens. The forgery charge relates to these false documents.

[7] The possession of a firearm, and later possession of a class A drug charge, are based on items the Police found when carrying out searches of a storage unit rented by you in Nelson. The unit contained 100 grams of methamphetamine and a shotgun.

[8] Your co-defendants in this criminal offending are awaiting trial, having pleaded not guilty.

[9] The offending was relatively high level, and was clearly directed at selling these illegal drugs around New Zealand on a somewhat large scale. You were instrumental in facilitating the offending, albeit that you do not appear to have been involved significantly in the planning of it. It cannot be disputed, however, that you

were a key player in the manufacture and intended supply of methamphetamine within this scheme.

Personal circumstances

[10] Mr Shaw, you are 25 years old. Shortly after ending a long-term relationship, you entered into a relationship with Ms Stevens, a co-defendant. That relationship is now over. Around the time you began seeing Ms Stevens, and at the conclusion of your long-term relationship, you began using methamphetamine on a daily basis. You report that Ms Stevens approached you and asked if you wanted to make a lot of money, and that you were stupid and not thinking when you agreed. You do not appear to have profited from your offending, and have stated that apart from two of your co-defendants being known Head Hunter gang members, you had no association with that group.

[11] You have an eight year old son, with whom you have had regular contact, and some care of prior to being incarcerated. You have held down employment as a mechanic for the last eighteen months prior to your arrest.

[12] The pre-sentence report indicates that the key factors contributing to your criminal behaviour were your drug use and your attitude. While on remand, you have already completed short programmes of rehabilitation focusing on self-control. This is positive. The pre-sentence report indicates that you will be eligible for further programmes to assist, both for drugs and for your attitude toward offending.

[13] The pre-sentence report assesses you at a low risk of harm to the community and a medium likelihood of further reoffending. The report states that with self- motivation and rehabilitation programmes your risk factors would further reduce over time.

[14] The report writer, while noting your remorse, strong motivation to rehabilitate and acceptance of responsibility, considered imprisonment appropriate.

[15] Although you have many prior convictions, all are very minor in scale compared to the offending here. The only drugs charges prior to 2014 related to

cannabis. None received terms of imprisonment, although you have clearly struggled to obey Court orders in relation to community work. The Crown does not seek to uplift your sentence in respect of these prior convictions.

[16] A reference has been submitted on your behalf from your previous employer whom you worked for from 2007 to 2009. He states that you were a dedicated and reliable employee, and he recommends you as communicating effectively with others and having great rapport with your co-workers.

[17] This period of work is presumably before you began using methamphetamine heavily. The reference, and the positive and supporting references from your family, provides hope that, with rehabilitation, you may be able to return to being a positive member of the community and thank your father, brother and your maternal grandmother especially for their references on your behalf.

Submissions

[18] The guideline for sentencing for class A drug manufacturing is governed by the Court of Appeal judgment, R v Fatu.⁶ The Crown submits that you fall within Band 4 of this judgment, which states that manufacturers of very large commercial quantities of methamphetamine (over 500 grams) should receive between 13 years and life imprisonment.

[19] The Crown submits that based on this, a 15 – 16 year starting point is appropriate. The Crown points to R v Clifton, in which the Court of Appeal surveyed three cases where the amount manufactured stood in excess of one kilogram.⁷ Those cases reveal starting points of between 14 and 19 years imprisonment.

[20] The Crown submits that you, Mr Shaw, were an important part of an organised, sophisticated and enthusiastic drug syndicate involved in manufacturing on a very large commercial scale. They submit that this is demonstrated through the forged documents discovered in your possession and so they submit that a 15 to

16 year term of imprisonment is the starting point for your offending.

[21] On the other hand, your counsel submits that I should consider your case in a more lenient light, and a starting point of between 13 and 15 years would be appropriate. Your counsel submits that although you were an important part of the operation and not merely a foot soldier, you were not the ringleader of the group.

[22] The Crown and your counsel both submit that a full 25 per cent discount for the early guilty plea is appropriate.

[23] The Crown further submits that a minimum period of imprisonment of 50 per cent of the sentence should be imposed, noting that the criteria for the imposition of a minimum period of imprisonment are readily met in drug offending cases.⁸ Here, counsel for the Crown points primarily to the need to hold you accountable for the harm done to the community, denounce your conduct, and deter you and others from the same offences. Your counsel submits that a minimum period of imprisonment of up to six years may be appropriate.

Sentencing

[24] I have considered the purposes and principles of sentencing set out in the Sentencing Act 2002.⁹ In relation to the purpose, I consider under s 7 that the sentence imposed needs to adequately denounce your behaviour, deter others from similar paths, and hold you accountable for the harm done by your offending.

[25] The production and supply of methamphetamine in the community causes immense harm. This is recognised by the range of sentences which may be imposed today, which are at the highest end of sentences of imprisonment available to the Court. However, your sentence today should also consider the possibility of your rehabilitation and re-integration into the community. This recognises that you have also had your life severely affected by methamphetamine use and that, if you are able to rehabilitate, you may be able to positively contribute to the community.

[26] The principles of sentencing should also be considered. In particular, the gravity of the offending and seriousness of the type of offence needs to be

considered, as well as the Courts’ interest in applying sentencing levels consistent

with similar offending.

[27] The lead offence is clearly the charge of manufacturing methamphetamine, which has a possible maximum sentence of life imprisonment. First, I will set a starting point for the lead offence, before turning to look to the features of your offending and those personal to you which may warrant either an uplift or a reduction in sentence. I will take a concurrent approach to sentencing, reflecting that all the charges stem from the one confined period. Any uplift will therefore also consider the sentence’s appropriateness in relation to the totality of the offending.

[28] The tariff case on methamphetamine manufacturing is R v Fatu, as I have said. Your counsel does not dispute that this offending falls within Band 4 of the guidelines set out in this case. There is no attempt made to dispute your relatively high-level involvement in the manufacturing.¹⁰

[29] Although only 1.8 kilograms can be verified as being manufactured, this is because the Police cannot verify the amount of methamphetamine produced in the second manufacture. I will note that you are likely to have produced close to two kilograms of methamphetamine all included, on a very conservative estimate of the possible yield. This puts you well above the minimum amount recognised by the Court of Appeal as placing offending in Band 4, which is just 500 grams. So even ignoring the second manufacture altogether, 1.83 kilograms is a significant amount.

[30] I agree that the amount of methamphetamine produced here requires looking at comparable cases dealing with Band 4 level offending.

Setting the starting point

[31] The range of cases following categorisation in this band is from 13 years to life imprisonment. To accept the defence submissions that 13 – 15 years

¹⁰ The Court in R v Fatu also noted that the sentence should not simply be a mechanical assessment of the amount of methamphetamine but also take into account the role of the offender in the manufacturing ring in question at [42].

imprisonment would be appropriate, the offending would need to be near the lowest end of the Band 4 scale offending.

[32] Here, no reasons have been put forward by defence counsel to justify why the offending should fall at the lower end of Band 4. Indeed, the concession that he was not merely a foot soldier in the context of the scale of offending is significant in the context of the amount of methamphetamine being produced.

[33] The Crown relies on the authorities set out in R v Clifton to support their case that this offending should be recognised as warranting a 15 – 16 year starting point.¹¹

That case involved an appeal from the imposition of a sentence of life imprisonment for methamphetamine manufacturing. Mr Clifton had manufactured a total of

1.35 kilograms, and was a principal player in the operation, which he ran for financial gain. This warranted assessing the offending as within Band 4 of Fatu.

[34] The Court of Appeal in Clifton drew on three cases relating to appropriate finite sentences for Band 4 sentencing. In R v Webb, offending involving manufacture of over a kilogram led to a 14 year starting point.¹² The offender was found to have equipment and materials necessary to manufacture almost a kilogram more on arrest. In Peters v R, a 15 year starting point was warranted where the offender had a number of manufacturers and was responsible for the manufacture of

2.9 kilograms albeit that the yield on one count of manufacture was only

520 grams.¹³ In Beckham v R, transactions involving 2.36 kilograms of methamphetamine and associated conspiracies to manufacture received a 17 year starting point, uplifted by two years to reflect the other drugs charges and specifically the manufacturing charges.¹⁴

[35] In R v Clifton, Mr Clifton himself received a 16 year starting point for his offending.

¹¹ _{R v Clifton, above n 7.}

¹² _{R v Webb [2008] NZCA 487.}

¹³ _{Peters v R [2012] NZCA 252.}

¹⁴ Beckham v R [2012] NZCA 603.

[36] However, the cases the Crown have pointed to as justifying higher end starting points all involve manufacturers who could be said to be in charge of larger operations. In Peters, the offender was “in overall charge of the clandestine laboratory” and had supervised other cooks at the laboratory.¹⁵ This is significantly different to you, who were part of an organised conspiracy, but you were clearly not the ringleader, and who appear to have been often directed by Mr O’Carroll. In

Beckham v R, the amount of methamphetamine was far more substantial. The manufacturing took place over 18 months, not six – seven months that you were involved in here. Mr Beckham had also significantly profited from the offending, and this was clearly a key factor in his culpability as he also faced money laundering charges involving substantial amounts of money. The Crown’s suggested starting point of 15 – 16 years reflects that the Crown too, see your offending as less culpable than Mr Beckham’s.

[37] The offending in R v Webb and the offending here are more similar. Mr Webb had manufactured one kilogram of methamphetamine, and a search of his properties revealed a methamphetamine laboratory with sufficient raw materials to manufacture another 995 grams of methamphetamine. This is a total of nearly two kilograms of methamphetamine, similar in quantity to the amount manufactured here. This received a 14 year starting point.

[38] Other recent cases involving band four offending are also indicative of the approximate sentences for manufacturing methamphetamine charges. I will mention just two more.

[39] In R v Gollop, the principal manufacturer produced approximately

1.5 kilograms of methamphetamine and was the “prime mover” in the syndicate.¹⁶

Although the overall circumstances of the case led to a sentence of life imprisonment, Winkelmann J stated a starting point of 15 - 16 years imprisonment would have been appropriate on the manufacturing charges alone, followed by an

_{uplift for associated offending.}

¹⁵ _{Above n 13 at [8].}

¹⁶ R v Gollop HC Auckland CRI-2006-092-16424, 13 February 2009.

[40] In Van der Ven v R,¹⁷ a 15 year starting point was held by the Court of Appeal to be appropriate for an offender who had manufactured at least 800 grams of methamphetamine, and who was head of the manufacturing operation. Despite the lower amount of methamphetamine produced compared to this case, Mr Van der Ven was described at sentencing as “the leading figure in a large scale criminal enterprise whose purpose was to manufacture and distribute methamphetamine.”¹⁸

Setting a Starting Point

[41] In your case, Mr Shaw, the starting point must reflect the scale and significance of the operation you were involved in, and the actual, rather than possible, production of at least 1.8 kg of methamphetamine. Although the duration of the offence was limited, there was a significant scale of production in this time period, and you were a key mover in executing elements of the production.

[42] However, you were not the primary instigator or kingpin, as were those being sentenced in many of the cases to which I have referred. I also deal with associated offences separately below.

[43] I therefore adopt a starting point of 14 and a half years imprisonment as appropriate.

Adjusting the Starting Point

[44] Although the Crown and defence have not submitted that any specific aggravating features or mitigating features apply to the offending, these must be considered as part of the sentencing exercise.

[45] It has been recognised by the Court of Appeal that the presence of firearms is one of the most serious aggravating features of drug offending.¹⁹ This has been applied in the context of a weapons found with offenders’ drug stashes.²⁰ Although

_{here, just one shotgun was found at one of your storage locations, the presence of a}

¹⁷ _{Van de Ven v R [2012] NZCA 265.}

¹⁸ _{R v Van de Ven [2013] NZHC 593 at [3]}

¹⁹ _{R v Faifua CA287/05, 27 March 2006 at [26].}

²⁰ R v Collins CRI 2007-090-005304, 3 March 2009 at [76].

weapon is still a serious factor to the offending as it indicates the potential for violence. This is represented in a separate charge for possession of an unlawful firearm, but may be considered as an aggravating factor.²¹

[46] The other charges are also serious. Your forgery of driver’s licenses and other fake identification documents was not insignificant. It shows that this operation was serious and planned with an eye to deceiving authorities. You have also pleaded guilty to possession of methamphetamine for the purpose of supplying it, and with actually supplying the class B controlled drug ephedrine, which was used in the manufacturing.

[47] The Court of Appeal recently addressed uplifting for supply in the context of manufacturing methamphetamine. They said:²²

[30] While this Court recognised in Fatu that the purpose of manufacture is almost invariably commercial, and that is taken into account in the maximum penalty and sentencing bands, as this Court also said in Baird v R, “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” (footnotes omitted).

[48] In that case, the Court upheld the decision in Van de Ven to uplift the offender’s sentence by six months for two firearms offences, and 18 months for supply offences. In that case, however, the offender had historic firearms offending which was considered. The supply charges were also less interrelated to the manufacturing charges – the supply and possession charges here are part and parcel of the production of large scale methamphetamine.

[49] In this case, I propose an uplift of nine months imprisonment in total for the other charges.

[50] This brings me to a total of 15 years three months imprisonment.

[51] Counsel for the defence and Crown agree that the early guilty plea in this case deserves a 25 per cent discount under R v Hessell.²³ I agree that the early plea

²¹ _{R v Maclean [2009] NZCA 465 at [19] – [24].}

²² Van de Ven v R, above n 17.

here is deserving, particularly in light of the complexity of trial, and the fact that none of your co-offender’s have pleaded guilty.

[52] A 25 per cent discount reduces the sentence to 11 years five months imprisonment.

Minimum Period of Imprisonment

[53] I now turn to the issue of imposing a minimum non-parole period under s 86 of the Sentencing Act 2002, and how long that period should be if imposed. This provision provides that if an offender receives a determinate sentence of imprisonment of more than two years, the Court may order that the offender serve a minimum period of imprisonment longer than the one-third of sentence default

minimum.²⁴ A minimum period of imprisonment is imposed to hold the offender

accountable for harm caused, and denounce the conduct they have been involved in. It is also a deterrent factor.

[54] The maximum non-parole period I can impose is two-thirds of the full term of the sentence.²⁵

[55] As Crown submissions noted, the Court of Appeal has stated that in the case of drug offending, the purposes of a minimum non-parole period will almost always be met.²⁶ This has become a general principle of application.

[56] However, in R v Tang,²⁷ it was acknowledged that some circumstances could be so favourable that the imposition of a minimum period of imprisonment was unnecessary. In that case, there was significant evidence that Mr Tang had contributed positively to society, and that his methamphetamine offending had already caused significant harm to his business and relationships. He expressed significant remorse which was considered by the judge to demonstrate imposing a

_{minimum non-parole period was inappropriate.}

²³ _{R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.}

²⁴ _{Sentencing Act, s 86.}

²⁵ _{Sentencing Act, s 86(4)(a).}

²⁶ _{R v Aram [2007] NZCA 328 at [78].}

²⁷ R v Tang HC Auckland CRI 2009-004-13439, 6 October 2011.

[57] Your counsel has not sought to challenge the applicability of a minimum period of imprisonment and acknowledges that a minimum period of imprisonment of up to six years may be appropriate. This is just over 50 per cent of the period of imprisonment.

Analysis

[58] Although you are classified at a low risk of reoffending, and your prompt guilty plea indicates that you have an awareness of the gravity of your offending, I am not convinced that a minimum non-parole period is not appropriate for you. Your circumstances, although showing real remorse and a “strong motivation” to change, are not as favourable as existed in Tang and your counsel has not sought to convince me that this is the case.

[59] However I accept the submissions of both counsel that a low minimum period of imprisonment reflecting these factors should be imposed, rather than the two-thirds of your sentence that is available. I therefore find that a minimum period of 50 per cent or five years nine months imprisonment will adequately reflect the gravity of your offending and sufficiently deter you from future criminal behaviour at this level.

[60] Would you please now stand Mr Shaw.

Recommendation

[61] On the charge of manufacturing methamphetamine, I sentence you to 11 years and five months imprisonment, with a five year nine months minimum period of imprisonment.

[62] I also impose the following sentences in relation to your other charges:

(a) seven years imprisonment for the first possession with intent to supply charge, and three years imprisonment for the second charge,;

(b) one year’s imprisonment for supplying ephedrine;

(c) nine months imprisonment for the forgery charge; and

(d) six months imprisonment for unlawfully possessing a firearm.

[63] All of these are to be served concurrently. The effect of this is that you are sentenced to a total term of 11 years five months imprisonment, with a five year nine month minimum period of imprisonment.

[64] You may stand down.

.....................................

Woolford J