Ashby v The King
[2025] NZHC 2169
•4 August 2025
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2025-463-000014 [2025] NZHC 2169
BETWEEN KEITH TAU ASHBY
Appellant
AND THE KING
Respondent
Hearing: 31 July 2025
Counsel:M J Taylor-Cyphers for Appellant L K McMaster for Respondent
Judgment: 4 August 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 4 August 2025 at 2.30 pm
Registrar/Deputy Registrar
Solicitors/Counsel:
M J Taylor-Cyphers (Auckland) for Appellant Gordon Pilditch (Rotorua) for Respondent
ASHBY v R [2025] NZHC 2169 [4 August 2025]
Introduction
[1] Mr Ashby appeals his sentence of two years and four months’ imprisonment imposed on him by Judge G C Hollister-Jones on 12 December 2024.1 The Judge sentenced Mr Ashby on representative charges of supplying methamphetamine,2 conspiracy to manufacture methamphetamine3 and importing the precursor substance, iodine.4 Mr Ashby pleaded guilty to those charges.
[2] The grounds of Mr Ashby’s appeal are that the Judge adopted a starting point which was too high and did not afford him proper discounts.
[3] Mr Ashby wants me to have regard to an alcohol and drug report which came to hand the day after the sentencing. I will receive it on a de bene esse basis and will have regard to it if, in all the circumstances of the appeal, it is in the interests of justice for me to do so.
Background
[4] Mr Ashby’s offending came to light during the period of a surveillance device warrant granted in February 2023 and renewed in April 2023. His offending is set out in the summary of facts, to which he pleaded guilty. It is lengthy, but I will quote parts in detail because they are relevant to the view I have reached that the Judge erred in adopting the charge of supplying methamphetamine as the lead charge:
INTRODUCTION
In February 2023 Police from the National Organised Crime Group (“NOCG”) launched an investigation codenamed “Operation Posada” into the suspected manufacture and supply of the Class A controlled drug methamphetamine.
…
Intercepted communications, and phone data obtained throughout the investigation phase identified offences committed by the defendant ASHBY, YOUNG and various associates.
1 R v Ashby [2024] NZDC 30703.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2); maximum penalty, life imprisonment.
3 Section 6(1)(b) and (2A); maximum penalty, 14 years’ imprisonment.
4 Section 12AB; maximum penalty, seven years’ imprisonment.
On 24 May 2023, Police completed a partial termination of Operation Posada whereby a search warrant was executed on YOUNG’s Toyota Hilux, registration PSN513 and his property at 75 Braine Road, Oparau. Police stopped vehicle PSN513 in Otorohanga.
YOUNG was the driver and ASHBY the front passenger and only other occupant in the Toyota motor vehicle at the time of the vehicle stop.
Seized from the Toyota motor vehicle were four (4) cell phones belonging to YOUNG and ASHBY and three (3) bags of white crystal-like substance.
One of the bags of crystal like substance was located inside ASHBY’s backpack in the footwell of the front passenger seat. The other two bags of crystal like substance were located in the middle console of the vehicle along with $14 000 cash and a bundle of empty point bags. All items were seized for further analysis.
On 25 May 2023, Environmental Science and Research (ESR) attended the address of 75 Braine Road, Oparau and examined the property taking swabs for laboratory analysis.
The four cell phones were sent to Police Digital Forensic Unit (DFU) for extraction.
DEFENDANTS
The Defendant Keith Tau ASHBY is a 33 year old male, currently unemployed, who resides between 7A Puia Street, Taupo and 118 Napier Road, Taupo.
CIRCUMSTANCES
Charge 1: Conspiracy to Manufacture Methamphetamine representative
Between the dates of 11 August 2022 and 11 April 2023, the defendant ASHBY has conspired to manufacture methamphetamine with multiple unknown persons from companies in China using the encrypted app Whatsapp.
Police enquires with Customs showed that on 11 August, 15 August and 19 September 2022, ASHBY imported 1 kg of Potassium Iodide on each date. The deliveries arrived from China.
Potassium Iodide is used by methamphetamine producers to produce hydrochloric acid being the preferred reagent in the ephedrine/pseudoephedrine reduction method of methamphetamine production. A reagent is a chemical used in reactions to convert a precursor into a finished product.
On 4 July 2023, Senior Constable WESTON conducted an examination of the cell phone data acquired by Police DFU from the cell phone belonging to ASHBY seized during the search warrant on 24 May 2023.
On 4 October 2022 at 3:17am, ASHBY took a screen shot of a completed online order from LJQ Metal, China totalling $2399. The purchase was 10 x
1kg of pure iodine crystals. ASHBY had a shipping address of Keith ASHBY, AG Auto Limited, 7a Puia Street, Taupo.
Iodine crystals are commonly known to be used during the manufacture of methamphetamine.
On 9 December 2022, ASHBY took a screen shot of a requested quote from Shan dong Fan Tai Fine Chemical Biotechnology Co Ltd. The quote was for Iodine at $153 USD per kg with a minimum order of 10kg.
On 2 January 2023 at 9:37am, ASHBY saved into his notes application on his cell phone the bank account details to pay Shan dong Fan Tai Fine Chemical Biotechnology Co Ltd.
On 24 January 2023 at 9:31am, ASHBY sent an encrypted Whatsapp message to Dottzon, believed to be Dottzon.com. Search of Dottzon.com shows them as being ‘the leading supplier of top quality MOMA, Crystal Meth, Cocaine and Ketamine’. The following messages were located.
Keith ASHBY Dottzon Morning what was the total for order #2418 Dottzon Keith ASHBY $2,549. Make the payment in 2 installments Keith ASHBY Dottzon I will pay extra sellers fees for goods and services? Dottzon Keith ASHBY Sending as goods and services means we will have to declare the content of the package. That’s the reason you should send as friends and family.
That’s just the way this works.
Keith ASHBY Dottzon Can stock be picked up? If not I’ll purchase 250gm then if it arrives I’ll buy more Dottzon Keith ASHBY All good. You can pay for 500g. I will ship a kilogram Keith ASHBY Dottzon Okay Dottzon Keith ASHBY Make the payment and forward a screenshot of the transaction
The above conversation shows ASHBY purchasing an unknown substance. The purchase clearly shows it as being unlawful when ‘Dottzon’ states to make payments in two instalments and to label as friends and family to avoid detection.
On 29 January 2023 and 1 February 2023, screenshots were saved on ASHBY’s cell phone showing he made two bitcoin payments of $1,324.00 and $1 324.62. This equates to the $2549 as stated by ‘Dottzon’.
Bitcoin is a commonly known encrypted form of payment used by criminals to avoid detection of illegal purchases.
On 21 January 2023 at 9:16pm, ASHBY sends an encrypted Whatsapp message to ‘Susy’:
Susy Keith ASHBY 20320-59-6. This product I diethyl phenlacetylmalonate. The other is 5449-12-7 2methyl-3-phenyloxiran-2-carboxylic acid 1 kg Keith ASHBY Susy Can you supply Cas 103-79-7. Cas 123-39-7 Susy Keith ASHBY 123-39-7 What form do you need? Keith ASHBY Susy I am trying to create cas 51-57-0
Susy Keith ASHBY It is prohibited in China Keith ASHBY Susy Can you supply the required chemicals to create it? Susy Keith ASHBY Please send me the product name and quantity
you need and I will verify the inventory and give you the best price
Keith ASHBY Susy Do you sell Phenylacetone ? Does your technical team have a process to synthesize Phenylacetone or synthesize methamphetamine from the chemicals you have sent me
The above conversation shows ASHBY talking to ‘Susy’ in China and requesting various chemicals. ASHBY states he is wanting to synthesize methamphetamine.
Diethyl phenylacetylmalonate is used in the manufacture of methamphetamine precursor P2P. Methyl-3-phenyloxiran-2-carboxylic acid is easily converted to methamphetamine precursor P2P and subsequently converted to methamphetamine.
A CAS number is a unique identification number assigned by the Chemical Abstract Service in the United States to every chemical substance.
ASHBY confirms he is trying to create cas 51-57-0 which is methamphetamine hydrochloride.
On 28 January 2023 at 3:39pm, ASHBY sends an encrypted Whatsapp message to Net Chem:
Keith ASHBY Net Chem Hey there can I have a price on 1kg epherdrine HCL including delivery to New Zealand Net Chem Keith ASHBY Yes. 1kg 2200 USD
Ephedrine is a well-known ingredient in the manufacture of methamphetamine.
The conversation continues on 29 January 2023 at 9:03am:
Net Chem Keith Ashby How much you bought it before Keith ASHBY Net Chem I am currently paying $860 USD/CIF per kg Net Chem Keith ASHBY How large quantity? Keith ASHBY Net Chem CIF – cost insurance and freight, 3kg per month
The above conversation shows ASHBY sourcing ephedrine stating he currently orders 3kg of Ephedrine per month.
On 21 January 2023 at 1:18am, ASHBY sends an encrypted Whatsapp message to Mya E:
Keith ASHBY Mya E Hey there I was looking for cas. 1941-17-9 1kg including delivery to New Zealand Mya E Keith ASHBY 1kg 4900USD(including freight)
The above conversation shows ASHBY trying to purchase Ephedrine a commonly known ingredient in the manufacture of methamphetamine.
On 23 January 2023, ASHBY downloaded and saved to his cell phone a PDF document titled ‘Secrets of Methamphetamine Manufacture 8th Edition by Uncle Fester’. This book clearly explains in detail how to manufacture methamphetamine. The book was classed as ‘objectionable’ by the Office of Film & Literature Classification, and it was banned in New Zealand in 2003.
On 28 January 2023 at 3:39pm, ASHBY sends an encrypted Whatsapp message to New Material Technology Co:
Keith ASHBY New Material Hey there you contacted me via echemi I was looking for product 1941-17-9 New Material Keith ASHBY 1941-17-9 is not available in China. Are there any other chemicals you need? Keith ASHBY New Material I’m looking for products I can synthesize Phenylacetone or synthesize methamphetamine from
Cas number 1941-17-9 is Ephedrine, a commonly known ingredient for the manufacture of methamphetamine.
The above conversation shows ASHBY clearly attempting to obtain Ephedrine for the purpose of manufacturing methamphetamine.
On 2 February 2023 at 3:09am, ASHBY saved in his notes application on his cell phone detailed instructions on how to manufacture methamphetamine including steps, weights and temperatures.
The note is saved with the title ‘Produce’. An exert from the instructions is as follows:
‘When the sodium has dissolved the solution is cooled to 60°, and146 g. (1 mole) ofethyl oxalate (Note 2) is added in a rapid stream through the funnel with vigorous stirring. This is washed down with a small quantity of absolute alcohol and is followed immediately by the addition of175 g. (1.06 moles) of ethyl phenylacetate. Stirring is discontinued at once, the reaction flask is lowered from the stirrer, and a2-I. beaker is made ready. Within four to six minutes after the ethyl phenylacetate has been added crystallization sets in. The contents of the flask are transferred immediately to the beaker at the first sign of crystallization, which is nearly instantaneous’.
On 11 April 2023 ASHBY sends encrypted Whatsapp messages to previously contacted Mya E, Susy and Chao Xu:
Keith ASHBY Mya E Could I please have price and availability on
these items. 593-51-1 - 100g. 7723-14-0 -1kg. 7553-56-2 -10kg. 6303-21-5 - 20L. 1941-17-9.
The above CAS numbers relate. 593-51-1 is methylamine hydrochloride. 7723-14-0 is Phosphorus red. 7553-56-2 is Iodine. 6303-21-5 is Hypophosphorous acid and 1941-17-9 is Ephedrine. All these are chemicals are well known products used in the manufacture of methamphetamine.
On 11 April 2023 ASHBY sends another encrypted message to Susy:
Keith ASHBY Susy I am looking for products that can be synthesised into (m)amphetamine, also other products like hypophosphorous, red phosphorous, iodine, Methylamine Susy Keith ASHBY Please tell me the quantity required separately Keith ASHBY Susy 10L Hypophos. 1kg red phosphorus. 10kg iodine pills. 100 methylamine hcl Susy Keith ASHBY Okay. Let me check stock. 10L Hypophos:
$20.9/L Total $418. 1kg red phosphorus $60. 10kg iodine pills $119/kg. 100 methylamine hcl
$8.6/kg Total $860
The above conversation shows ASHBY wanting products to manufacture methamphetamine. ‘Susy’ replies to his request to synthesise methamphetamine by providing costs of the products required by ASHBY to do so.
On 11 April 2023 at 4:42pm, ASHBY also sends an encrypted Whatsapp message to Chao Xu:
Keith ASHBY Chao Xu I am looking for products that can be synthesised into (m)amphetamine, also other products like hypophosphorous, red phosphorous, iodine, Methylamine Chao Xu Keith ASHBY We have these products. Please let me know the CAS number of these products and I will provide
you with a satisfactory price
Keith ASHBY Chao Xu 593-51-1 - 100g. 7723-14-0 -1kg. 7553-56-2 -
10kg. 6303-21-5 -20L
Chao Xu Keith ASHBY 593-51-1 120sud/kg 100g = 80usd. 7723-14-0
ikg=90usd. 7553-56-2 140usd/kg 10kg=1200usd. 6303-21-5 98usd/L 20L=1600usd
The conversation above shows ASHBY requesting products specifically to manufacture methamphetamine. ‘Chao Xu’ states he has those products and is therefore able to provide ASHBY with them.
Charge 2: Import precursor substances for unlawful use
Between the dates of 11 August 2022 and 19 September 2022, the defendant ASHBY has imported precursor substances.
Police enquires with Customs showed that on 11 August, 15 August and 19 September 2022, ASHBY imported 1 kg of Potassium Iodide on each date. The deliveries arrived from China.
Potassium Iodide is used by methamphetamine producers to produce hydrochloric acid being the preferred reagent in the ephedrine/pseudoephedrine reduction method of methamphetamine production. A reagent is a chemical used in reactions to convert a precursor into a finished product.
On 4 July 2023, Senior Constable WESTON conducted an examination of the cell phone data acquired by Police DFU from the cell phone belonging to ASHBY seized during the search warrant on 24 May 2023.
On 4 October 2022 at 3:17am, ASHBY took a screen shot of a completed online order from LJQ Metal, China totalling $2399. The purchase was 10 x 1 kg of pure iodine crystals. ASHBY had a shipping address of Keith ASHBY, AG Auto Limited, 7a Puia Street, Taupo.
[5] The charge of supplying methamphetamine relates to 16 separate occasions from 21 August 2019 through to 24 April 2023. The total amount was approximately
7.25 grams of methamphetamine.
[6] Mr Ashby was 33 years old at the time of his arrest. He had no previous record of drugs offending but between 2009 and 2013 acquired six convictions, including three for burglary.
The sentence
[7] The Judge adopted the representative charge of supplying methamphetamine as the lead charge. He assessed a starting point of two years’ imprisonment. The Judge commented that he “had some difficulty assessing what the uplift for the other two charges should be”.5
[8]The Judge said:
[17] I accept that your communications evidence premeditation, or in ordinary language, you were organising things by making these arrangements with China. The arrangements show that there was some degree of sophistication, although I would not place WhatsApp as a sophisticated form of encrypted communication. Bitcoin is to a degree sophisticated, although I note that some people even in positions of apparent authority or incoming authority see some value in Bitcoin.
[9] The uplift assessed by the Judge was a further two years’ imprisonment, making an overall starting point of four years’ imprisonment.
[10]The Judge then gave a discount of 25 per cent for Mr Ashby’s pleas of guilty.
[11]As to further discounts, the Judge said:
[20] I have read your letter and I accept that you have had a methamphetamine problem. I am lacking an assessment from a qualified
5 R v Ashby, above n 1, at [16].
person. Given that this offending has its origins in a methamphetamine problem, there will be a discount of five per cent for that factor.
[21] With respect to remorse, after reading the pre-sentence report which noted that your remorse appeared to be reserved solely for yourself, and balancing that with the contents of your letter, my view is that you have got some developing remorse. There will be a discount of two per cent to represent that.
[12] The sentence to this point was two years and nine months’ imprisonment. However:
[23] You spent 11 months on a 24-hour curfew. There was one breach earlier in the year related to curfew. There was a second breach relating to the residence where I am told you shifted within the Life Skills facility that you were living at, you did not take appropriate steps to recognise your situation. The effect of both these breaches is that the discount for time on a 24-hour curfew will be at the lower end of the range. I fix that at three months.
[13] This brought the end sentence to two years and four months’ imprisonment.
The appeal
[14] Ms Taylor-Cyphers accepts the starting point of two years’ imprisonment on the charge of supplying methamphetamine. However, Ms Taylor-Cyphers submits there is a number of mitigating factors which should flow through to limit the uplift for the remaining two charges:
30.Mr Ashby presents a number of mitigating factors in this regard:
(a)The quantity of methamphetamine supplied was just over the band 1 threshold (2.25g). Less would see him in band 1, which is a starting point of community-based to 2 years’ imprisonment;
(b)Mr Ashby is a first-time offender with no previous convictions;6
(c)This was addiction driven offending and was not for commercial gain;7
(d)There was no gang or organised criminal group connection. This was low-level street supply;8 and
6 Zhang v R [2019] NZCA 507 at [9].
7 At [15]–[20].
8 At [13].
(e)Mr Ashby demonstrated remorse and was compliant while on bail.9
31.It is for all these reasons that the 2-year starting point applied by the District Court10 was appropriate, but the additional uplift – bearing in mind all of these mitigating factors, particularly his very limited role and personal circumstances – was too high.
[15] Ms Taylor-Cyphers submits that the two years uplift for the charges of conspiracy and importation risks double counting elements already captured in setting the starting point for the supply charge. It is further submitted that the conspiracy and the importation did not lead to actual manufacture. Indeed, no equipment for manufacture had been assembled:
45.His conduct was consistent with early stage preparatory acts including enquiries and research. His conduct was not consistent with steps proximate to execution such as equipment, procurement or precursor importation.
46.The genesis of his conspiracy charge therefore was not operational, rather it remained aspirational and speculative which places it toward the bottom end of the conspiracy spectrum – where lack of means may also be relevant to culpability.
47.The relevance of these points is that the early stage status of Mr Ashby’s offending justifies a material reduction starting point compared to conspiracies with completed or attempted manufacture, with committed funds, with co-conspirators, and with established infrastructure such as labs, transport and distribution network.
[16] Ms Taylor-Cyphers submits that an overall starting point of no more than three years and six months’ imprisonment was appropriate.
[17] As to discounts, Ms Taylor-Cyphers submits that if I take account of the drug and alcohol report, I should accept that Mr Ashby had a causative addiction to methamphetamine, he has high rehabilitative potential and is genuinely remorseful for his offending. It is submitted that a discount in the range of 15 to 20 per cent should be afforded for these factors.
9 Zhang v R, above n 6, at [21]–[23].
10 R v Ashby, above n 1, at [16].
[18] Ms Taylor-Cyphers submits also that the Judge’s discount of three months’ imprisonment for the time Mr Ashby spent on EM bail was insufficient. A discount of five months’ imprisonment is sought.
[19] Overall, Ms Taylor-Cyphers’s submission is that Mr Ashby’s end sentence should be approximately one year and eight months’ imprisonment.
Discussion
[20] I must allow the appeal if I find there has been an error in the sentence such that a different sentence should be imposed.11 If the end sentence of two years and four months’ imprisonment is manifestly excessive then that would be an error I would have to correct.
[21] It is relevant to the assessment of the totality of Mr Ashby’s offending to look at it in the round.
[22] Mr Ashby was a street level methamphetamine dealer. The 16 instances of identified offending demonstrate that. He was unemployed during the period and his dealing in methamphetamine financed his lifestyle, including purchasing drugs for his own consumption.
[23] However, as portions I have quoted of the summary of facts make clear, Mr Ashby had aspirations to increase his participation in the methamphetamine trade. The representative charge of conspiring to manufacture methamphetamine is a significant one. He made determined efforts to obtain the ingredients necessary for the manufacture of methamphetamine. The importation charge, also representative, demonstrates that the conspiracy advanced to the stage of Mr Ashby gaining possession of iodine. Four instances of importation were identified.
[24] There is nothing in the summary of facts which helps identify the potential quantity of methamphetamine which might have been manufactured. Nor is there anything about potential profits. But the messages quoted in the summary of facts,
11 Criminal Procedure Act 2011, s 250(2).
and set out above, plus the quantity of iodine imported demonstrates that Mr Ashby’s intention was not to produce a few grams of methamphetamine. He was more ambitious than that.
[25] In my view, Mr Ashby’s offending by conspiring to manufacture methamphetamine, and furthering the conspiracy by the repeated importation of a precursor substance, was significantly more serious than his street-level dealing. Those charges should have been the lead charges.
[26] The maximum penalty for the conspiracy charge is 14 years’ imprisonment and for the importing charge it is seven years’ imprisonment. There is no tariff case and I accept Ms Taylor-Cyphers’s submission that one measure of the seriousness of such offending is the proximity of offending to actual manufacture. Here, no laboratory for the manufacture had been sourced. Therefore, and treating the two charges as inextricably intertwined, I consider that a starting point somewhat less than the halfway point of the 14-year maximum for the conspiracy is appropriate. In my view a starting point of around four years’ imprisonment is within range.
[27] I accept that the Judge’s starting point of two years for the dealing charge is available. It is discrete offending, separate from the other offending.
[28] Taking totality into account, I find that an overall starting point of around five years’ imprisonment is within range.
[29] As to discounts, I accept that the 25 per cent reduction for guilty pleas was appropriate.
[30] I turn now to the discount appropriate to recognise that Mr Ashby was a user of methamphetamine. It is well established that addiction-driven offending, or offending where addiction is a contributing cause, can lead to a discount because of reduced moral culpability.
[31] The PAC report dated 13 February 2024 records Mr Ashby reporting that he had become a regular weekend user of methamphetamine with that use increasing after
he stopped using alcohol some two years previously. He said that during the COVID-19 lockdowns his work and income dropped off so he saw an opportunity and “decided to take a chance to make money during Covid” through importing the precursor substances and selling methamphetamine.
[32] The authors of the alcohol and drug report obtained by Mr Ashby in December 2024 say that Mr Ashby told them he had not consumed methamphetamine since September 2023. He described using the drug to enable him to work long hours and manage stress levels. His use fluctuated depending on his financial circumstances and he reported his heaviest period of use was towards the end of 2022.
[33] I found Mr Ashby’s drug and alcohol report useful in that it supplements the PAC report. It was not his fault that it was not available until the day after his sentencing. I grant leave to admit it as evidence in this appeal.
[34] I am prepared to accept that Mr Ashby’s dealing in methamphetamine was caused in part by his own drug use. I do not accept that his drug use was causative of the other offending.
[35] I find that the Judge’s allowance of a five per cent discount for this factor was appropriate.
[36] I find the Judge was generous to give even a nominal discount of two per cent for Mr Ashby’s expression of remorse. This was long term offending. Mr Ashby was well aware of the damage methamphetamine does to society and his motivation for conspiring to manufacture methamphetamine and import a precursor substance was purely commercial. I accept the author of the PAC report’s observation that Mr Ashby’s remorse was for his own predicament.
[37] I accept also that the three months reduction for time spent on EM bail was appropriate. I accept the Crown’s submissions as to the nature of Mr Ashby’s breaches of bail:
52.At 8.45 pm on 1 May 2024, the appellant was not present when police conducted a compliance check. His explanation was that he had to go to the cash point. This is not a technical breach of his bail. The
pressing need to obtain cash at that time of night by a self-reported methamphetamine addict on a 24-hour curfew is of concern.
53.On 8 August 2024, the appellant was arrested for not residing at his bail address and advised the arresting officers that he had got his address changed about a month ago. There is no evidence that the appellant applied to vary his bail conditions, and when the address he was staying at was canvassed, it was found to be entirely unsuitable.
54.It would appear from this information that the appellant was in breach of his court-imposed bail conditions for a significant period and moved from his approved bail address without approval. This is a serious breach of bail.
Decision
[38] In my view, an end sentence of around three years and two months’ imprisonment would have been within range.
[39]The appeal is dismissed.
Brewer J
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