R v Hura [2016] NZHC 777 (22 April 2016)

Last Updated: 18 May 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-088-003309 [2016] NZHC 777

THE QUEEN

v

_{JAYDEAN HURA}

Hearing:	22 April 2016
Appearances:	R Annandale for Crown L Cordwell for Defendant
Sentence:	22 April 2016

_{SENTENCING REMARKS OF LANG J}

R v HURA [2016] NZHC 777 [22 April 2016]

[1] Mr Hura, you appear for sentence today having pleaded guilty to five charges of manufacturing methamphetamine and one charge of participating in an organised criminal group. The maximum sentences in respect of the manufacturing charges are life imprisonment, whilst the maximum sentence in respect of the remaining charge is ten years imprisonment.

[2] You also face several other charges, including two charges of manufacturing methamphetamine, two charges of being in possession of a precursor substance, 14 charges of being in possession of equipment and four charges of being in possession of material. The Crown offers no evidence on those charges, and you are now discharged on them pursuant to s 147 of the Criminal Procedure Act 2011.

Background

[3] I take your offending to be accurately described in a summary of facts that the Crown has presented and with which your counsel takes no issue. This reveals that the charges to which you have pleaded guilty were laid at the termination of a large police operation known as Operation Easter. That operation focussed on the manufacturing and distribution of methamphetamine on a large-scale basis in the Northland area.

[4] The aspects of the operation were spearheaded by its acknowledged leader, Mr Brownie Harding. He was responsible for putting together the personnel and equipment necessary to manufacture methamphetamine. He was also responsible for organising the distribution networks.

[5] Your role in the operation was that of a methamphetamine cook. You arrived at the premises where methamphetamine was to be manufactured. You used the precursor substances, materials and equipment that were already there to manufacture methamphetamine.

[6] The police discovered that this was being done from a rural address in Northland. The police placed the address under surveillance, and they were able to see who came and went from it. The period during which you were involved in

manufacturing methamphetamine at the address was between 30 September 2014 and 14 December 2014.

[7] During this ten week period, the total amount of methamphetamine manufactured at the address was at least nine kilograms. This became known in two ways. First, the police, acting under the authority of a warrant issued by this Court, installed an audio device in the property on 17 October 2014. This enabled them to listen to conversations that occurred whilst the manufacturing process was in train. You were there on three of those occasions. From the discussions that took place during this period, the police learned that between 20 and 23 October 2014 a total of

2.545 kilograms of methamphetamine was manufactured. 1.94 kilograms was manufactured during a cook that took place between 28 and 31 October 2014, and

2.8 kilograms was manufactured at a final cook between 6 and 14 November 2014.

[8] The Crown is unable to accurately estimate the amount of methamphetamine produced during the first two cooks, because the audio device had not been installed during that period. These occurred between 30 September and 1 October 2014, and between 8 and 9 October 2014. Your counsel has accepted on your behalf that on each of those two occasions between 750 grams and 1 kilogram of methamphetamine was manufactured. This is likely to be on the generous side to you, because the later manufactures produced much more methamphetamine than this. Nevertheless, your counsel says you have instructed him that the group took some time to be able to render their manufacturing process capable of producing the quantities produced in the last three cooks. As a result, therefore, a total of at least nine kilograms of methamphetamine was manufactured by the group.

[9] Some indication as to the purity of the methamphetamine manufactured is given by the fact that the police stopped a vehicle on 14 November 2014 at a checkpoint. That vehicle was carrying methamphetamine that had just been manufactured at the last cook. This was found to be 73 per cent pure.

[10] Several points can be made about the operation and your role in it. The first is that you must be a skilled cook. To consistently produce very large quantities of methamphetamine such as this means that you have the necessary skills to turn

precursor ingredients into final product of high quality. You told the probation officer who prepared the pre-sentence report that you had “some knowledge” of the art of manufacturing methamphetamine. I take your skill level to be well beyond that.

[11] The second is that you and others associated with the enterprise were dedicated to it. The summary of facts records that you always spent at least two days manufacturing methamphetamine, and on some occasions considerably longer. So this was not a spur of the moment activity, or an activity undertaken by a group of friends on a whim. This was large scale, well planned manufacture of methamphetamine on a commercial basis. It required the acquisition of large quantities of precursor substances, material and equipment. This produced methamphetamine having a huge value that was then distributed through Mr Harding’s networks.

Starting point

[12] The sentence to be imposed in your case must be selected having regard to the purposes and principles of sentencing in the Sentencing Act 2002. In a case of methamphetamine-related offending of this magnitude, issues of deterrence, denunciation and the need to hold the offender accountable are clearly to the forefront. In any case of manufacturing methamphetamine, the starting point must be a sentence of imprisonment and this case is no exception.

[13] The sentences to be imposed in relation to charges of methamphetamine are guided by the judgment of the Court of Appeal in R v Fatu.¹ In that case the Court of Appeal identified bands of offending for the manufacture and supply of methamphetamine. In cases involving more than 500 grams of methamphetamine, the starting point will be 13 years to life imprisonment.

[14] Counsel have referred a large number of cases to me. I do not propose to list them here, but will list them as footnotes in my written sentencing remarks.² It is

¹ _{R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).}

² Clifton v R [2013] NZCA 85, R v Webb [2008] NZCA 487, Peters v R [2012] NZCA 252,

Beckham v R [2012] NZCA 603.

difficult to gain a great deal of assistance from other cases because they involve different circumstances and, in particular, the role of the offender is always different. The weight or quantity of methamphetamine manufactured is just one issue that informs the sentence to be imposed. The courts are required, over and above that factor, to look at the overall role of the offender and where he or she sits within the offending in question.

[15] The cases demonstrate that where manufacturing has occurred in kilogram quantities, starting points well above ten years imprisonment are selected. To put that in perspective, Mr Hura, on each of the five charges to which you pleaded guilty, a discrete starting point of more than ten years imprisonment would have been appropriate if it stood alone. Taken together, that would be more than 50 years imprisonment. The real issue here is to fix a starting point that adequately encapsulates the totality of your offending.

[16] Your counsel submits that a starting point of 17 to 18 years imprisonment would be appropriate. Counsel for the Crown submits that a starting point of between 21 and 24 years imprisonment is appropriate.

[17] I propose to select a starting point at the bottom end of the range identified by the Crown. I do so for these reasons. First, it is clear that you were not involved in the distribution of methamphetamine. Your sole role was to manufacture it. Secondly, you were not the only person manufacturing methamphetamine. Others did that. The Crown advises me that at least one other person was a senior cook like you. Below the two of you were others persons who assisted in the process. Over both of you, however, was Mr Harding, the leader of the operation.

[18] This leads to the second point, which is that I accept you did not receive the overall profits of the offending. Nor did you arrange for the precursor substances, materials and equipment to be assembled to enable the manufacturing to occur. Those responsibilities and entitlements belong to Mr Harding.

[19] The pre-sentence report records that you were approached to become involved in the manufacture of methamphetamine at a time when you were in debt

because of your own addiction to the drug. You were also unemployed at that time. You say that you became involved in order to have your needs met without thought of the legal consequences. I take this comment to mean that for your efforts you received methamphetamine in sufficient quantities to meet your own habit. Whether or not your needs extended to receiving payment to enable you to live is a matter that I cannot speculate upon.

[20] Those factors persuade me that it would not be appropriate to select a starting point at the top end of the range the Crown has identified. I therefore select a starting point of 21 years imprisonment to reflect your culpability on all charges.

Aggravating factors

[21] At 36 years of age you have a number of previous convictions. Most of these are for dishonesty offending such as theft or burglary. Many of these were entered some time ago. This is the first time on which you have appeared before the Court on drug-related charges. The Crown does not suggest that your previous convictions warrant any uplift in the starting point I have identified and I agree.

Mitigating factors

[22] I now need to consider the extent to which I should reduce the starting point I have identified to reflect mitigating factors personal to you. Your counsel urges me to apply a discount to reflect your remorse, and also to reflect the fact that you have many good qualities as demonstrated by the numerous references from your friends, whanau and employers that you have provided today.

[23] The Court has a discretion to apply a discount in respect of such matters, but in the case of very serious drug offending it is circumscribed.³ The pre-sentence report indicates that prior to your arrest you considered the manufacturing of methamphetamine to be a victimless crime. It says you are now “not proud” of what you have done. You have also provided me with certificates indicating steps that you have taken towards rehabilitation in prison. The support here today of so many

_{members of your wider family certainly demonstrates the regard in which you are}

³ Jarden v R [2008] NZSC 69; (2008) 24 CRNZ 46 (SC) at [12].

held by them. The letters from your employer show that you are also a worthwhile, honest and hardworking employee.

[24] I have reached the view, however, that I am not able to provide discrete discounts in respect of these factors. I consider the level of remorse you have displayed and the steps towards rehabilitation not sufficient to warrant a specific discount, particularly given the very serious nature of your offending.

[25] I accept, as does the Crown, that you should receive a discount for your guilty pleas. These did not come at the earliest opportunity. They were entered some five months before your trial and more than a year after your arrest. Your counsel advises me that he began discussions with the Crown in September 2015, and that these became focussed and serious towards the end of last year. For that reason he submits a discount of more than 20 per cent is available. The Crown accepts that a discount of up to 20 per cent is appropriate, but says that the Court should not go beyond that level.

[26] In R v Hessell, the Supreme Court emphasised that the discount to be applied in respect of a guilty plea was to be assessed on a robust basis.⁴ The timing of the plea is but one factor to be taken into account. Other factors that may be material are the strength of the prosecution case and the likelihood of the offender being convicted. The evidence in your case, Mr Hura, was overwhelming. You would not have stood a chance of defending these charges had you gone to trial.

[27] I consider that the greatest discount I can give you is one of 20 per cent. That is also consistent with the discounts given to other offenders from this operation who have been sentenced to date. I propose to apply a discount of four years four months to reflect that fact.

[28] This means that on each of the charges of manufacturing methamphetamine you will be sentenced to 16 years eight months imprisonment.

⁴ R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [74].

Minimum term of imprisonment

[29] The nature of your offending means I am required to consider whether to impose a minimum term of imprisonment. Ordinarily, an offender who serves a term of imprisonment of more than two years must serve one-third of his or her sentence before being eligible to apply for parole. The Court has the power under s 86 of the Sentencing Act 2002 to order that an offender serve a longer term of imprisonment before being eligible to apply for parole. It may do that in any case where it is satisfied that the normal parole provisions are not sufficient to adequately reflect sentencing principles of deterrence, denunciation, accountability and the need to protect the public. In cases of very serious Class A drug offending, the courts have

often imposed minimum terms of imprisonment of around the 50 per cent mark.⁵

They do so because such offending invariably satisfies all four of the criteria to which I have referred.

[30] In your case, you would be eligible to apply for parole after serving just over five years of your sentence. Given the seriousness of your offending, I consider that this would be manifestly inadequate to reflect the sentencing principles referred to in s 86. For that reason, I accept the Crown’s submission that a minimum term of imprisonment of 50 per cent is justified.

Sentence

[31] You are sentenced to 16 years eight months imprisonment on each of the manufacturing charges. Those sentences are to be served concurrently. One each of those charges you are ordered to serve a minimum term of imprisonment of eight years four months. On the charge of being part of an organised criminal group, you are sentenced to four years imprisonment. That sentence is to be served concurrently with the remaining sentences.

_{[32] Stand down}

_{Lang J}

5. A minimum term of imprisonment of 50 per cent of the sentence was imposed in each of the cases set out above at footnote 2.

Solicitors:

Crown Solicitor, Whangarei

Counsel:

L Cordwell, Auckland