Haira v The Queen

[2005] NZCA 224

IN THE COURT OF APPEAL OF NEW ZEALAND

CA168/05

THE QUEEN

v

STUART MARK HAIRA

Hearing:24 August 2005

Court:O'Regan, Potter and Doogue JJ

Counsel:S Tait for Appellant

H D M Lawry for Crown

Judgment:31 August 2005 

JUDGMENT OF THE COURT

Leave to appeal is granted but the appeal is dismissed.

REASONS

(Given by O’Regan J)

Introduction   

[1]       This is an appeal against the sentences imposed on the appellant Mr Haira for drug offending.  The notice of appeal was filed out of time, but an adequate explanation for this was provided and the Crown raised no objection so we grant leave to appeal out of time.

Offences

[2]       All of the offences for which Mr Haira was sentenced related to three separate incidents.  These were:

(a)On 13 December 2002, Mr Haira was charged, along with two others, with manufacturing methamphetamine (then a Class B controlled drug) at Beachlands.

(b)On 24 December 2002 he was charged with manufacturing a precursor substance, namely pseudoephedrine knowing that it was capable of being used for the commission of an offence under s 6(1)(b) of the Misuse of Drugs Act and possessing equipment capable of being used for the commission of such an offence with the intention that it be used for that purpose.  These offences were committed in Mangere.  Mr Haira was on bail for the Beachlands offending at the time that he was charged for these offences.  He suffered burns to his hands in the course of this incident.

(c)On 15 December 2003, Mr Haira was charged with a number of offences relating to a methamphetamine manufacturing incident at Kohimarama.  The operation went badly wrong and there was a large explosion which caused extensive fire damage to the property and led to Mr Haira suffering severe burns covering some 70% of his body.  Charges resulting from this incident were supply of a precursor substance (acetone) knowing it was to be used for the manufacture of a controlled drug  and two charges of arson. 

[3]       The sentencing Judge, Williams J, described the circumstances of the offending in his sentencing notes in the following terms:

[2]       The first charge in time, the manufacturing methamphetamine, occurred when the Armed Offenders Squad was already in surveillance on a property at Beachlands, which was occupied by a co-offender of yours.  The Armed Offender Squad entered the property, and, in the statement of facts which you accepted, they said you and another, a third co-offender, were found standing over a heated element which was being used for manufacture and there was found a sophisticated clandestine drug laboratory on that occasion with equipment and chemicals.

[3]       The offences some eleven days later, at Kirkbride Road in Mangere, occurred when again a clandestine laboratory was set up and you and others were involved in the manufacture of methamphetamine on that occasion.  There was an explosion as a result which you were badly hurt and taken to hospital but discharged yourself before being charged.  On that occasion the unit at the premises was completely destroyed and there was some tens of thousands of dollars of damage caused.  At the time when you were interviewed you denied being involved in the matter but your fingerprints were found on some of the equipment.

[4]       About a year later when, as I said, you were already on bail for those three offences but had absconded, you went to a property in Harvey Place, Kohimarama, owned by an 83-year-old lady who had lent it to her grandson.  Methamphetamine manufacture was commenced and you were in the process of heating acetone, a precursor, and pseudoephedrine.  There was another explosion, you were severely burned as a result and had to be hospitalised.  Again, there were some tens of thousands of dollars worth of damage to the property.

High Court sentence

[4]       Williams J had before him a probation report which indicated that the appellant had been addicted to pure methamphetamine since 2000, and that the offending arose from a desire to feed that habit.  He had had a good work record until the age of 24, was in a stable relationship and had two children.  Williams J noted that the report recited the severe effects of the explosion in the Kohimarama incident.  Not only was the appellant scarred for life, but he had also suffered significant mental trauma.  This was described in some detail in a report from a psychologist which was also before the Court.

[5]       Williams J discounted the appellant’s previous convictions, most of which were for driving offences and the like.  However, he said he was required to take into account the fact that the appellant had absconded when on bail and was out of reach of the authorities for the best part of a year after the Mangere offences and had re-offended during that period.

[6]       Williams J determined that the sentences for the charges resulting from the Beachlands and Mangere incidents should be concurrent, but that the sentences for the charges resulting from the Kohimarama incident should be cumulative.

[7]       Having addressed the relevant provisions of the Sentencing Act, the Judge considered the decision of this Court in R v Wallace and Christie [1999] 3 NZLR 159. He said the methamphetamine manufacturing involved in this case came at the top of the third category in Wallace or the bottom of the second category, suggesting a starting point before aggravating features of four - five years imprisonment.  But he noted there were substantial aggravating features, including the extended time over which the offending occurred, its repetitious nature, the considerable damage to property in both Mangere and Kohimarama and the effect of that on the owners, the premeditation and the fact that offending continued while the appellant was on bail.  He noted the mitigating factors were the fact that the appellant was addicted to methamphetamine and probably consumed much of the methamphetamine produced, and the very severe injuries he had suffered as a result of the burns he received in both the Mangere and the Kohimarama incidents, particularly the latter.  He also noted the fact that the appellant had pleaded guilty was a mitigating fact, but said that the conviction on some of the offences was inevitable and the plea came at a relatively late stage in relation to the earlier offending.

[8]       The Judge then sentenced Mr Haira as follows:

(a)He said the starting point for the Beachlands manufacturing charge was between four and five years imprisonment, but because of aggravating features a sentence of up to six years imprisonment would be warranted.  However having regard to the totality principle and the mitigating features he imposed a sentence of three years and three months imprisonment.

(b)In relation to the Mangere charges, he noted that a starting point in the order of four to four and a half years was appropriate for the charges of manufacturing a precursor substance and possessing equipment.  However, again having regard to the aggravating and mitigating features, he sentenced the appellant to three years and three months imprisonment, this term to run concurrently with the Beachlands sentence.

(c)The Judge accepted that the arson of the Kohimarama property was unintentional, and noted the serious injuries the appellant had suffered as a result.  He determined that the appropriate sentence for all of the Kohimarama offences would normally have been about four years imprisonment, but having regard to the totality principle he reduced this to three years imprisonment.  This sentence was cumulative on the sentences imposed for the earlier offending because the Judge determined that the Kohimarama offending was not part of a connected series of offences in terms of s 84 of the Sentencing Act 2002.

[9]       The overall sentence was, therefore, six years and three months imprisonment.

Grounds of appeal

[10]     The grounds of appeal were:

(a)The sentences imposed were manifestly excessive in the light of the mitigating circumstances;

(b)The sentence was wrong in law and in principle because the starting point was too high in the light of the totality principle;

(c)The Judge gave insufficient credit for the personal injury suffered by the appellant and the psychological effect of the injuries;

(d)The cumulative terms were inappropriate.

[11]     We will deal with these in reverse order.

Cumulative terms

[12]     The Judge decided that cumulative terms were appropriate because the Kohimarama offending was not part of a connected series of offences involving the Beachlands and Mangere offending.  The Judge did apparently accept that the offences were similar in kind, so he was not applying s 84(1), but was rather applying s 84(2) which says that concurrent sentences are appropriate if the offences are of a similar kind and are a connected series of offences.  In essence the Judge determined that although the offences were of a similar kind, they were not a connected series of offences.  Section 84(3) gives guidance on determining whether offences are a connected series of offences.  It says the Court can consider the time in which the offences occurred, the overall nature of the offending and any other relationships between the offences that the Court considers relevant. 

[13]     On behalf of the appellant, Mr Tait argued that the offences were of a similar kind here: he said all involved methamphetamine or precursor substances for the manufacture of methamphetamine, similar equipment, chemicals, and manufacturing methods. 

[14]     However, the similarity of offending is only one aspect of s 84(2); it is also necessary to show that the offences are a connected series of offences.  In this case there was a considerable time gap between the Beachlands and Mangere offending (December 2002) and the Kohimarama offending (December 2003).  Apart from the fact that the Kohimarama offending has had as its dominant feature an attempt to manufacture methamphetamine, there is no temporal or other connection between that offending and the Beachlands/Mangere offending.  In those circumstances we believe it was open to the Judge to conclude that the offending fell outside s 84(2) and that cumulative sentences were therefore appropriate. 

[15]     We add for completeness that we do not think that the decision of the Judge to sentence on a cumulative basis had any significant impact on the sentencing result, because whether he sentenced on a cumulative or concurrent basis, he was required to ensure that the sentence was appropriate for the totality of the offending: s 85 of the Sentencing Act.

Insufficient credit for injuries

[16]     Williams J referred to the injuries suffered by the appellant, but noted that personal circumstances count for little in sentencing for drug offences.

[17]     Mr Tait argued that the severe nature of the burns suffered by the appellant and the serious psychological impact of those burns ought to have been given greater weight.  He referred to the decision of this Court in R v Lomas CA113/03 24 July 2003 in support of that submission. 

[18]     In Lomas, Mr Lomas had pleaded guilty to attempting to manufacture methamphetamine and had been sentenced to 18 months supervision with special conditions requiring him to give lectures on drug addiction and its consequences.  The Solicitor-General appealed to this Court.  Mr Lomas had been severely burned when an explosion occurred during his attempt to manufacture methamphetamine.  The medical evidence before the Court was that Mr Lomas had been “virtually killed” in the explosion and that he would, for the balance of his life, carry extensive, painful scarring and likely need further and ongoing surgery.  The medical evidence was that Mr Lomas’s hygiene requirements could not be achieved in jail and that imprisonment would cause significant deterioration of his medical condition.  In those circumstances, and having regard to the fact that the appeal was a Solicitor-General appeal, this Court did not interfere with the sentence of supervision, though it quashed the special condition requiring the giving of lectures.  The Court did, however, emphasise that the case was extraordinary in nature and that a term of imprisonment would normally be required for offending of that nature.

[19]     Without wishing in any way to minimise the seriousness of the appellant’s injuries and the very severe impact they have had on him, we do not think the Lomas case is comparable to the present case.  The medical evidence before the Court in Lomas was such that imprisonment was inappropriate for medical reasons.  In this case, Mr Tait sought to justify a lesser term of imprisonment, essentially on the basis that the severe injuries suffered by the appellant were punishment in themselves, and therefore diminished the need for deterrence and denunciation.  But as Mr Lawry pointed out, deterrence is directed not only to the offender being sentenced, but also to other potential future offenders. 

[20]     In all the circumstances, we are satisfied that the Judge’s approach to the injuries suffered by Mr Haira was appropriate.

Starting point too high

[21]     We do not think there is anything in this aspect of the appeal.  The starting point selected by the Judge was consistent with the decision of this Court in Wallace and Christie.  The Judge gave appropriate weight to the significant aggravating factors, particularly the fact that there were three separate incidents involving the manufacture of methamphetamine or steps towards such manufacture and the fact that the Kohimarama incident occurred while the offender was on bail.  The Judge took into account the totality principle in the manner contemplated by s 85 of the Sentencing Act.

Manifestly excessive

[22]     We take a similar view in relation to this ground of appeal.  In our view a sentence of six years and three months was well within the range available for offending of this nature, particularly given the aggravating factors already referred to.  The Judge directed himself to the need to ensure that the overall sentence properly reflected the totality of the offending, as required by s 85 of the Sentencing Act, and the resulting sentence achieved that objective.

Result

[23]     Accordingly we dismiss the appeal.

Solicitors:
Crown Law Office, Wellington