On 19 April 2011 the appellant Glen Alexander Fleming was sentenced in the Rotorua High Court by Woolford J on one charge of manufacturing methamphetamine, one charge of possession of methamphetamine for supply, seven charges of possession of equipment or precursor substances with intent to manufacture methamphetamine and three charges of unlawful possession of a firearm.[1] The lead charge was manufacturing methamphetamine. It was charged that he had done so over a period of almost nine months.
[1] R v Glen Alexander Fleming HC Rotorua CRI-2010-63-5079, 19 April 2011.
Woolford J reached a final starting point for the totality of the offending of 12 years imprisonment. He deducted 25 per cent for Mr Fleming’s guilty pleas. He applied a further deduction for Mr Fleming’s remorse, which the Judge believed was genuine, his offer of assistance to the Police and his commitment to obtain treatment, the total discount applied being one-third. He sentenced him to eight years imprisonment. He also determined that a minimum term of imprisonment was necessary and imposed a minimum term of 50 per cent, or four years imprisonment.

Background

Mr Fleming was almost 33 years old. He was a long term methamphetamine addict. When, on 20 September 2010, Police executed a search warrant at his home, they found equipment used in the manufacture of methamphetamine. This included beakers and flasks, measuring equipment, gas stoves, other heating devices, a pH meter and funnels. They also located three Parr bombs, which are high pressure reaction vessels. These provide a dangerous but quick method of manufacturing large quantities of methamphetamine. Also located were a number of precursor substances including iodine, caustic soda, acetone and various acids. In total 61.9 grams of methamphetamine in several containers was recovered, $180,640 in cash, two rifles, a pistol and ammunition. Later in the day Police executed a second search warrant at a storage facility rented by Mr Fleming and found more equipment used in the manufacture of methamphetamine.
The Judge accepted that up to 375 grams of methamphetamine could have been manufactured during the relevant period. When spoken to, Mr Fleming admitted to manufacturing methamphetamine at the address on a regular basis for about seven years. He was charged with one representative count alleging the manufacture of methamphetamine between 1 January 2010 and 20 September 2010.
On sentencing the Court received both a pre-sentence report and a psychiatric report. The pre-sentence report was not particularly positive, although the Community Probation Service assessment tool calculated Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Fleming v R [2011] NZCA 646
Case: [2011] NZCA 646
Decision Date: 15 December 2011

CaseChat Overview and Summary

The appeal against sentence was allowed and the minimum term of four years imprisonment imposed was quashed. The sentence of eight years imprisonment was confirmed. The appellant, Glen Alexander Fleming, was sentenced on various charges related to the manufacture and possession of methamphetamine and firearms. The court examined the appropriateness of the discount applied for the appellant's guilty plea and remorse, concluding that the total discount of one-third was within the permissible range. The court found that the imposition of a minimum term of imprisonment was unwarranted given the circumstances of the case, particularly the lesser seriousness of the drug-related offending compared to other cases where a minimum term was imposed. The court considered factors such as the appellant's personal use of the manufactured methamphetamine, his genuine remorse, and the prospect of rehabilitation. The court directed the Department of Corrections to consider the timing of rehabilitation programs for drug offenders in light of the appellant's case.

Orders