R v Verdonk [2018] NZHC 3251 (11 December 2018)

Last Updated: 8 January 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-092-11344 [2018] NZHC 3251

THE QUEEN

v

CATRINA JOSINA VERDONK

Hearing:	11 December 2018
Appearances:	N Fletcher and K Li for Crown J-A Kincade for Defendant
Judgment:	11 December 2018

SENTENCING REMARKS OF LANG J

R v VERDONK [2018] NZHC 3251 [11 December 2018]

[1] Ms Verdonk, you appear for sentence today on a representative charge of permitting premises to be used for the manufacture of methamphetamine,¹ and a representative charge of supplying methamphetamine.² You entered your guilty pleas after I gave you a sentence indication on 23 October 2018.³ The facts of your offending are set out in my sentence indication and I will not repeat them here. My sentence indication will be attached to these remarks and form part of them.

[2] In short, you and your partner, Mr Moran, allowed your property to be used by a person called Mr Griffiths for the purpose of manufacturing methamphetamine there on no fewer than 13 separate occasions between January and June 2017. In return, you received money or drugs to feed your own addiction.

[3] I selected a starting point of two years nine months imprisonment on the lead charge of permitting premises to be used for the manufacture of methamphetamine. I then added an uplift of six months to reflect the supply charge. This related to occasions on which you supplied methamphetamine to associates in order to obtain money or drugs for your own habit.

[4] This produced a starting point of three years three months imprisonment. I applied a discount of ten months, or 25 per cent, to reflect guilty pleas. This produced a sentence of two years five months imprisonment before taking into account other personal mitigating factors. At the conclusion of the sentence indication I expressed the view that you might find it difficult get yourself below the two year threshold to enable a sentence of home detention to be considered.

[5] I now have the benefit of a comprehensive psychiatric report provided by your counsel. This provides me with a great deal of insight into the circumstances that have led to your offending. I do not propose to traverse the contents of the report in my sentencing remarks because it is not necessary to do so. The report demonstrates, however, that for some considerable period you have suffered from numerous mental

¹ Misuse of Drugs Act, ss 12(1) and 12(2)(a) (maximum penalty ten years imprisonment).

² Misuse of Drugs Act, ss 6(1)(c) and 6(2)(a) (maximum penalty life imprisonment).

³ R v Griffiths, Verdonk & Moran [2018] NZHC 2733.

and physical disabilities. These have a very real impact on your everyday life and will continue to do so for the rest of your life.

[6] I have no doubt that these have an impact, for sentencing purposes, in two ways. First, they explain to a large extent why you have become a drug addict. Secondly, they would inevitably make your life in prison very difficult indeed. I note also that for the last 12 months you and your partner, Mr Moran, have remained drug- free. You are both now in a methadone programme and have supported each other over the last 12 months in ridding yourselves of your dependence on drugs. I propose to make an allowance of three months to reflect the rehabilitative efforts you have made to date. I propose to apply a further discount of four months to reflect the mental and physical issues to which I have referred. I am satisfied, as I have said, that these contributed to your offending and will make any sentence you are required to serve in the future that much more difficult.

[7] This produces an end sentence of one year ten months imprisonment. Ordinarily, this would translate to a sentence of 11 months home detention. I have no doubt that a sentence of home detention is warranted because there is little point in sending you to prison in circumstances where you are now dealing successfully with your drug addiction in the community. It is also important that you have the support of your partner and other social services to enable you to remain drug-free in the future. I would view a sentence of imprisonment as a backward step.

[8] I propose to sentence you to the same sentence as that I have just imposed on your partner. This means that you will both have the same goal together, namely of being released from the sentence of home detention on the same day.

Sentence

[9] On the charge of permitting premises to be used for the manufacture of methamphetamine, you are sentenced to ten months home detention. On the supply charge, you are sentenced to three months home detention. Both sentences are to be served concurrently, meaning you will serve an effective sentence of ten months home detention.
[10] The conditions of your sentence are those set out in the schedule to the pre- sentence report. In short, they require you to go to your nominated address directly from Court. You are there to await the arrival of a monitoring representative, and you are to serve your sentence at that address. You will only be permitted to leave the address for pre-approved appointments.

[11] For the avoidance of doubt to the extent that you may still be facing other charges relating to the incident for which you appear for sentence today, I now discharge you on those charges under s 147 of the Criminal Procedure Act 2011.

[12] Stand down.




Lang J

Solicitors:

Kayes Fletcher Walker, Manukau J-A Kincade, Barrister, Auckland

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-092-11344 [2018] NZHC 2733

THE QUEEN

v

DAVID ROBERT GRIFFITHS CATRINA JOSINA VERDONK DUANNE JAMES MORAN

Hearing: 23 October 2018


Appearances: N Fletcher and K Li for Crown
J S Kovacevich for Mr Griffiths J-A Kincade for Ms Verdonk
N P Chisnall for Mr Moran

Judgment: 23 October 2018

SENTENCE INDICATION OF LANG J

[1] Mr Griffiths faces 19 charges of manufacturing methamphetamine⁴ and one representative charge of supplying methamphetamine.⁵ Ms Verdonk and Mr Moran each face a representative charge of permitting premises to be used for the manufacture of methamphetamine⁶ and a representative charge of supplying methamphetamine.⁷ Each now seeks a sentence indication. This is an indication of the sentence the Court would impose in the event that guilty pleas were entered in the near future. If a defendant elects not to accept the indication and proceed to trial, he or she will be sentenced if convicted on the facts as the trial Judge finds them to be.

The charges

[2] The charges arise out of a lengthy police investigation known as Operation Ardmore. This involved enquiries made by the police over the period between January and September 2017. During this period they discovered Mr Griffiths had been involved in manufacturing methamphetamine on no fewer than 19 separate occasions. He used five addresses in wider Auckland to carry out the manufactures, the first 13 occasions at a rural address in Swanson between January and June 2017. On each occasion, he either manufactured the methamphetamine himself or with the assistance of his partner.

[3] The Swanson property is owned by Mr Moran and Ms Verdonk. They permitted Mr Griffiths to use the property for the manufacture of methamphetamine on 13 occasions. Mr Griffiths ceased using the address in June 2017 after they became displeased with the state the address was left in as a result of Mr Griffiths’ activities. Mr Griffiths then moved to an address in Glenfield, where he manufactured methamphetamine in late July 2017. He then manufactured methamphetamine at addresses in Castor Bay and Sunnyvale in August 2017. Those addresses were inspected by a forensic clandestine laboratory team. It was discovered that swabs taken from the addresses returned high readings consistent with the manufacture of methamphetamine having taken place there.

⁴ Misuse of Drugs Act 1975, ss 6(1)(b) and 6(2)(a) (maximum penalty life imprisonment).

⁵ Misuse of Drugs Act, ss (1)(c) and 6(2)(a) (maximum penalty life imprisonment).

⁶ Misuse of Drugs Act, ss 12(1) and 12(2)(a) (maximum penalty ten years imprisonment).

⁷ Misuse of Drugs Act, ss 6(1)(c) and 6(2)(a) (maximum penalty life imprisonment).

[4] Mr Griffiths then moved to an address in Awhitu, where he manufactured methamphetamine on three occasions during August and September 2017. When the police terminated the operation, they discovered Mr Griffiths present at the address and in the process of manufacturing methamphetamine. The police discovered three pyrex saucepans containing methamphetamine that was in the process of being manufactured. It is agreed for present purposes that the total dry weight of this methamphetamine would be 772.8 grams. In addition, the police found 704.5 grams of crystallised methamphetamine in two containers. This had obviously been manufactured at the address previously. This means the police found a total quantity of 1.4773 kilograms of methamphetamine at the address.

[5] The police are unable, for obvious reasons, to ascertain the quantity of methamphetamine manufactured on the occasions to which the first 18 charges relate. However, the police discovered photographs of laboratory equipment used at the Swanson address. These had apparently been taken by Mr Griffiths. The equipment depicted in the photographs is the same as that located when the police searched the Awhitu address. It included items typically associated with the large-scale manufacture of methamphetamine, including a 25 litre still and a 20 litre three-neck reaction vessel.

[6] In addition, the police found a 25 kilogram drum of iodine inside a caravan at the Awhitu property. Iodine is commonly used to convert pseudoephedrine into methamphetamine. It is a valuable commodity, and sells for around $2,000 per kilogram on the domestic black market. The Crown contends that 25 kilograms of iodine could be used to produce between 10.5 and 15.75 kilograms of methamphetamine.

[7] The police also found 20 litres of hypophosphorous acid at a storage unit rented by Mr Griffiths. This is also a very valuable commodity. The Crown estimates it could have been used to produce approximately 20 kilograms of methamphetamine.

[8] Mr Griffiths generally used web-based applications for communicating with others. These could not be intercepted by recognised means of surveillance. However, other intercepted communications established that he had supplied an unknown
amount of methamphetamine to various associates on at least 25 occasions between 22 July and 21 September 2017.

[9] The police also analysed communications on Mr Moran’s cellphone. These showed that he supplied, or offered to supply, small quantities of methamphetamine to unknown associates on approximately 13 occasions between 9 February and 17 March 2017. The Crown can prove that the amount supplied or offered for supply on four occasions totalled 0.8 of a gram. The police were unable to ascertain from the remaining communications what quantity of drugs was being supplied or offered.

[10] An analysis of Ms Verdonk’s cellphone showed that she supplied or offered to supply methamphetamine to unknown associates on approximately 18 occasions between 8 February 2017 and 1 July 2017. On 11 of these occasions, the Crown can establish that at total of 5.75 grams of methamphetamine was supplied or offered. It is not possible to establish what quantity was being offered or supplied on the remaining eight occasions.

Starting point

Mr Griffiths

[11] There is no real dispute between the Crown and counsel for Mr Griffiths regarding the starting point to be selected in relation to the manufacturing charges. The Crown suggests that a starting point of around 16 years imprisonment would be warranted for the last occasion on which Mr Griffiths was found in possession of 1.4773 kilograms of methamphetamine. It submits an uplift of around two and a half years imprisonment is appropriate to reflect the remaining charges.

[12] I consider the Crown has adopted an extremely conservative approach. The amount manufactured on the last occasion, coupled with the quantities of precursor substances found in Mr Griffiths’ possession at that time, indicate he had built up a substantial manufacturing operation. Even allowing for a period during which Mr Griffiths acquired experience, it is highly likely that very large quantities of methamphetamine were produced on earlier occasions.
[13] Both counsel have referred me to several authorities in which the Court has dealt with offenders who have manufactured methamphetamine in large quantities and on numerous occasions.⁸ In addition, I have considered the sentences imposed on methamphetamine cooks employed by Mr Brownie Harding in a series of cases in Northland recently. These demonstrate that, where offenders have produced large quantities of methamphetamine on numerous occasions, a starting point well in excess of 20 years is appropriate.⁹ Although I am prepared to accept the starting point by the Crown of 18 years six months imprisonment to reflect Mr Griffiths’ culpability on all charges, I consider that to be very much at the lowest end of the available range and should not be taken as a precedent in other cases.

Aggravating factors

[14] In terms of aggravating factors, Mr Griffiths received a sentence of imprisonment for manufacturing methamphetamine in 2013. On that occasion, he was sentenced to five years and five months imprisonment. He was on parole when the present offending began. That is a very significant aggravating factor. It demonstrates that Mr Griffiths is a determined offender, and a substantial sentence of imprisonment has not deterred him from becoming involved again in the manufacture and supply of methamphetamine. The Crown suggests an uplift of 18 months imprisonment to reflect this factor. I am prepared to apply that uplift, but again consider it to be at the lowest end of the available range. This produces an end sentence of 20 years imprisonment before taking into account mitigating factors.

Mr Moran and Ms Verdonk

[15] The Crown suggests an appropriate starting point for Mr Moran and Ms Verdonk of around three years imprisonment. Their counsel suggest the starting point lies between two years six months and three years imprisonment.

[16] In a case where an owner or occupier of premises vacates the premises for a brief period of time to enable a single manufacture of methamphetamine to occur the

⁸ R v Bell [2017] NZHC 2975; R v Allen [2016] NZHC 445; R v Rhodes [2009] NZCA 486.

9. R v Hura [2016] NZHC 777; R v Rodgers [2016] NZHC 1103; R v Mangu [2016] NZHC 1104; R v Keogh [2016] NZHC 508 at [20].

appropriate starting point will be around two years imprisonment. In the present case, however, the starting point must be significantly higher than that. The offending occurred over a period of two to three months, and both Mr Moran and Ms Verdock were fully aware of what was happening. In addition, they supplied methamphetamine that had been manufactured at their premises. In those circumstances, I consider the minimum starting point to be one of two years nine months imprisonment. That reflects only the culpability in relation to the lead charge of permitting premises to be used for the manufacture of methamphetamine.

[17] In the case of Mr Moran, I would apply an uplift of three months to reflect the supply charges, although they would easily attract a starting point of around 12 to 15 months on a standalone basis. In the case of Ms Verdonk, I would apply an uplift of six months to reflect greater quantities she has supplied.

[18] The Crown does not suggest there should be an uplift to reflect previous offending in relation to either Mr Moran or Ms Verdonk. This means the end starting point for Mr Moran is one of three years imprisonment, whilst that in relation to Ms Verdonk is three years three months imprisonment.

Mitigating factors

[19] The Crown agrees that all three defendants indicated a desire to obtain a sentence indication at a very early stage. Their trial is not scheduled to take place until mid-2019. For that reason the Crown accepts a discount of 25 per cent is warranted in each case to reflect guilty pleas. This results in Mr Griffiths receiving a sentence of 15 years imprisonment, whilst that in relation to Mr Moran is two years three months imprisonment. Ms Verdonk would receive an end sentence of two years five months imprisonment.

[20] As I advised counsel during the hearing today, there may be other mitigating factors the Court can take into account. These could only properly be considered at sentencing when supporting material will be available. For that reason, if guilty pleas were entered by Mr Moran and Ms Verdonk, I would direct that home detention appendices should be obtained, although in Ms Verdonk’s case she may not be able to bring herself within the two year threshold for a sentence of home detention.

Minimum term

[21] In the ordinary course of events, Mr Griffiths would be required to serve just five years of his sentence before being eligible to apply for parole. Given his previous convictions and the scale of the present offending, I consider that would be manifestly insufficient to reflect the sentencing principles set out in s 86 of the Sentencing Act 2002. For that reason I would order Mr Griffiths to serve one-half of his sentence before being eligible to apply for parole.




Lang J

Solicitors:

Kayes Fletcher Walker, Manukau