Crompton v The Queen
[2015] NZCA 277
•26 June 2015
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA372/2014 [2015] NZCA 277 |
| BETWEEN | JAYNE CROMPTON |
| AND | THE QUEEN |
| CA381/2014 | |
| BETWEEN | DEAN FREDERICK THEOBALD |
| AND | THE QUEEN |
| CA393/2014 | |
| BETWEEN | MARC HENRY ETHELSTONE |
| AND | THE QUEEN |
| Hearing: | 18 June 2015 |
Court: | Stevens, Andrews and Gilbert JJ |
Counsel: | P J Kaye for Appellant Crompton |
Judgment: | 26 June 2015 at 3.00 pm |
JUDGMENT OF THE COURT
The appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Introduction
Following a nine week trial before a Judge and jury in the High Court at Whangarei, the appellants, Ms Crompton, her de facto partner, Mr Theobald and her brother, Mr Ethelstone, were found guilty of various drug related offending over the period from February 2010 to May 2012. Methamphetamine was found to have been manufactured during this period at five separate addresses, including rented holiday homes. Precursor substances, materials and equipment consistent with the manufacture of significant quantities of methamphetamine were stored in a 40 foot shipping container and in two rented storage facilities. Firearms and ammunition were also found in connection with the drug dealing operation. The offending continued even after the police executed search warrants on 28 March and 20 September 2011.
The specific charges in respect of which the appellants were found guilty are as follows:
Ms Crompton
·4 x manufacturing methamphetamine
·1 x attempted manufacture of methamphetamine
·2 x possession of methamphetamine for supply
·4 x supplying methamphetamine
·13 x offering to supply methamphetamine
·1 x conspiring to manufacture methamphetamine
·3 x possession of a precursor substance
·5 x possession of equipment
·5 x possession of materials
·3 x possession of a firearm
·1 x possession of an airgun
·2 x possession of ammunition
Mr Theobald
·4 x manufacturing methamphetamine
·2 x possession of methamphetamine for supply
·1 x supplying methamphetamine
·1 x conspiracy to manufacture methamphetamine
·3 x possession of a precursor substance
·5 x possession of equipment
·4 x possession of materials
·3 x possession of a firearm
·1 x possession of an airgun
·2 x possession of ammunition
·1 x aggravated assault against a police officer
Ms Ethelstone
·2 x manufacturing methamphetamine
·1 x attempting to manufacture methamphetamine
·1 x possession of methamphetamine for supply
·1 x possession of a precursor substance
·3 x possession of equipment
·3 x possession of materials
·2 x possession of a firearm
·1 x possession of a restricted weapon
·1 x possession of ammunition
·1 x possession of cannabis for supply
Woolford J, who had presided over the trial, sentenced Ms Crompton to 14 years and six months’ imprisonment; Mr Theobald to 13 years and three months’ imprisonment; and Mr Ethelstone to nine years and eight months’ imprisonment. The Judge imposed 50 per cent minimum periods of imprisonment of seven years and three months, six years and seven months and four years and 10 months respectively.[1]
[1]R v Crompton, Ethelstone & Theobald [2014] NZHC 1563.
The Judge arrived at these sentences as follows:
Ms Crompton
·Starting point on lead offence of manufacturing methamphetamine – 12 years’ imprisonment (middle of band three of R v Fatu[2]).
[2]R v Fatu [2006] 2 NZLR 72 (CA).
·Uplift for aggravating factors including additional charges – two years and six months’ imprisonment.
·Further uplift for separate offending – six months’ imprisonment.
·Deduction for time spent on electronically monitored bail – six months.
Mr Theobald
·Starting point on lead offence of manufacturing methamphetamine – 12 years’ imprisonment (middle of band three of Fatu).
·Uplift for aggravating factors including additional charges – 18 months’ imprisonment.
·Further uplift for separate offending – three months’ imprisonment.
·Deduction for time spent on electronically monitored bail – six months.
Mr Ethelstone
·Starting point on lead offence of manufacturing methamphetamine – seven years and six months’ imprisonment (middle of band two of Fatu).
·Uplift for aggravating factors including additional charges – 18 months’ imprisonment.
·Cumulative sentence for separate offending – 15 months’ imprisonment.
·Deduction for time spent on electronically monitored bail – seven months.
The appellants appeal on the ground that these sentences are manifestly excessive.
Ms Crompton and Mr Theobald contend that the starting point of 12 years’ imprisonment adopted for them was too high. They argue that the Judge arrived at this starting point by wrongly concluding that seven ounces, not seven grams, of methamphetamine had been manufactured at an address at Waipu Cove. Seven ounces equates to 196 grams of the total of 241 grams that the Judge found proved to have been manufactured at five separate addresses. Ms Crompton and Mr Theobald contend that their offending should have been assessed as being within band two of Fatu because the quantity of methamphetamine proved to have been manufactured was only 52 grams.
Mr Ethelstone was not charged with the manufacture of methamphetamine at Waipu Cove. However, he contends that the starting point adopted in his case will need to be adjusted if Ms Crompton and Mr Theobald succeed in persuading the Court that a lower starting point is required for them. This is because the starting point adopted by the Judge for Mr Ethelstone was partly chosen to ensure appropriate relativity between all three co-offenders:[3]
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.
[3]At [85].
Ms Crompton also contests the uplift of two years and six months’ imprisonment for aggravating factors. She contends that an uplift of 12 months’ imprisonment would have been appropriate for these factors.
Finally, Ms Crompton argues that although the Judge acknowledged her remorse, he failed to make any allowance for this.
The appellants do not challenge the imposition of a 50 per cent minimum period of imprisonment. However, they contend that if their appeals are successful and the end sentence is reduced, so too should the minimum periods of imprisonment.
Was the starting point adopted for Ms Crompton and Mr Theobald too high?
The Crown did not specify in the indictment the amount of methamphetamine alleged to have been manufactured at Waipu Cove. However, the Crown filed a memorandum as to quantities for the purposes of sentencing alleging that just over seven ounces of methamphetamine was manufactured at Waipu Cove. This was based in part on the following text messages sent by Ms Crompton to an associate to whom the methamphetamine was being supplied regarding the amount manufactured:
[Associate]: the cove is that north or south mate, how many snapper do u have for his tank, so I cm put hm to rest
Crompton: 4 m8 x
…
Crompton: Yo yo m8 all ok? Was ur m8 happy .. X
[Associate]:yeah happy he ask if that waz all of it I said u stil working on it ‘waz there mre'
Crompton:no m8 we got 3 an a cple little fish but then expected that coz the tank burst remember x
The Crown submitted that “4” was a reference to 4 ounces, not 4 grams because it is implausible that the appellants would manufacture only 4 grams. The Crown further submitted that the reference to “3” meant 3 ounces and the reference to “little fish” meant grams.
The appellants’ counsel disputed this interpretation at sentencing and submitted that these references were to grams. However, they did not seek a disputed facts hearing under s 24(2) of the Sentencing Act 2002. This is unsurprising, given that the Judge had heard all of the evidence and the jury had clearly rejected Ms Crompton’s evidence that she was not involved in the manufacture of methamphetamine.
The Judge noted that it was for the Crown to prove the disputed fact as to the quantities manufactured beyond reasonable doubt in accordance with s 24(2)(c). The Judge also correctly observed that he was entitled to reach his own view of the facts so long as this was supported by evidence and not inconsistent with the jury’s verdict.[4]
[4]R v Heti (1992) 8 CRNZ 554 (CA) at 555; and R v Accused [1988] 1 NZLR 422 (CA) at 426–427.
The Judge accepted the Crown’s submission on this issue:
[30] … 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. I 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.
Mr Kaye points out that there was no expert evidence that “snapper” was used as a code word for ounces or that “little fish” was a code word for grams. He submits that methamphetamine can be manufactured in any quantity and all other weights referred to in the evidence were accepted as being grams.
Ms Cull supported Mr Kaye’s submissions.
Mr Kaye referred us to the sentencing notes relating to other offenders who were also apprehended as a result of the same police operations. The quantities in these cases were expressed in grams. However, we note that these offenders were sentenced on the basis of agreed summaries of fact following the entry of guilty pleas. Those agreed summaries of fact did not address the quantity of methamphetamine manufactured at Waipu Cove. In any event, Woolford J was entitled to reach his own conclusion about this based on the evidence he heard.
The Judge had the advantage of hearing all of the evidence during the course of the nine week trial and was best placed to assess the scale of the methamphetamine manufacturing operations. The evidence included the quantities of precursor substances found and the capacity of the equipment located by the police. For example, approximately 470 grams of pseudoephedrine hydrochloride with an estimated value of between $80,000 and $337,000 was found at one of the addresses. This could have yielded 225 to 337 grams of methamphetamine. A receipt for the purchase of five litres of iodine was also found at this address. The distiller found at another address was described by the ESR scientist who gave evidence as one of the biggest he had ever seen. A total of 2.4 litres of solution containing methamphetamine was also found at this address. The scale and commerciality of the drug manufacturing and dealing operation was also indicated by the presence of firearms and ammunition and the fact that the appellants rented two storage units and purchased a 40 foot shipping container to store precursor substances and equipment.
There was ample evidence to justify the Judge’s conclusion that the appellants were engaged in the manufacture of large commercial quantities of methamphetamine from at least five locations over an extended period. Viewed in that context, we are not persuaded that the inference the Judge drew from the text messages was unavailable to him. As the Judge said, it is implausible that the appellants would have invested so much time and effort to establish operations at Waipu Cove only to manufacture seven grams of methamphetamine. Plainly, the return would not justify the cost and risk involved.
It is also important to bear in mind that the Judge’s assessment of the seriousness of the offending was not based solely on the quantity of methamphetamine proved to have been manufactured. In respect of a number of the charges, there was no proof of this. While the commercial quantity manufactured at two of the addresses was unknown, the Judge accepted that it would have been a commercial quantity at each address falling within band two of Fatu. This conclusion was supported by the fact that a cutting agent used to dilute methamphetamine and increase its bulk for sale was found at one of these addresses and a substantial quantity of materials, equipment and precursors were found at the other. The Judge considered that the amount manufactured at the other three addresses was, in all likelihood, materially more than the 240.6 grams he found proven.
We see no error in the Judge’s approach or in his overall assessment, which he summarised as follows:
[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. However, I must take a realistic view of the dynamics of this particular form of offending. Having 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 into account your overall role in the offending.
[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 [the] 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. You 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.
(Footnotes omitted.)
This aspect of the challenge to the Judge’s approach fails.
Was the uplift for aggravating factors relating to Ms Crompton too high?
Mr Kaye acknowledges that an uplift was required to reflect the totality of Ms Crompton’s offending. However, he submits that the uplift applied of two and a half years’ imprisonment was disproportionate and should have been no more than 12 months’ imprisonment.
The Judge considered that a significant uplift for the additional charges of possession of materials and precursors was required because the quantities manufactured were unknown. This was an orthodox application of the approach directed in Fatu. The Judge relied in particular on the following passages from that judgment:
[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.
(Emphasis added by Woolford J.)
The Judge considered that the additional charges relating to possession of precursors, equipment and materials were not absorbed in the culpability of the primary offending because it was clearly well beyond the specific quantities proved to have been manufactured. The Judge referred in particular to the large quantity of pseudoephedrine found. The Judge also took into account the persistent nature of the offending which recommenced in new locations after police raids in March and September 2011. Further aggravating factors included the presence of firearms and ammunition and the fact that some of the operations were conducted from rented holiday homes.
In setting the uplift, the Judge paid particular regard to this Court’s decision in R v Collins.[5] He said:
[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[n] 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[n] extended period of time, and your situation has its own aggravating features (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 to 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.
[5]R v Collins [2009] NZCA 338.
We can see no error in this approach and we are not persuaded that the uplift applied in respect of Ms Crompton was outside the range of the Judge’s sentencing discretion.
Should the Judge have applied a discount for Ms Crompton’s remorse?
The Judge said that he accepted that Ms Crompton was “now remorseful”. However, he made no discount for this. Mr Kaye submits that this was an error.
The pre-sentence report records that Ms Crompton continued to deny the offending:
Throughout the interview process, Ms Crompton has vehemently denied the offending and dogmatically expressed her innocence. As such, no insight was detected and her motivation to change is considered low. No remorse was expressed either, as Ms Crompton stated that she “would have made the same choice”, even though she knew her decision would lead her to her current situation again. …
It is difficult to see how a discount for remorse could be justified in these circumstances. We agree with the Judge’s decision not to allow a discount for this.
Was the starting point adopted for Mr Ethelstone too high?
Mr Ethelstone’s appeal was contingent on Ms Crompton and Mr Theobald succeeding in establishing that the starting point adopted for them was too high. We have concluded that this was not the case. It follows that Mr Ethelstone’s appeal must be dismissed.
Conclusion
For the reasons given, none of the grounds of appeal is made out. We are not persuaded that the sentences were manifestly excessive in all of the circumstances. The appeals must accordingly be dismissed.
Result
The appeals are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent