Johnstone v The Queen
[2011] NZCA 107
•28 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA518/2010 [2011] NZCA 107 |
| BETWEEN RICHARD JAMES JOHNSTONE |
| AND THE QUEEN |
| Hearing: 24 March 2011 |
| Court: Randerson, Simon France and Lang JJ |
| Counsel: W T Nabney for Appellant |
| Judgment: 28 March 2011 at 3 p.m. |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Lang J)
Introduction
Mr Johnstone was found guilty at trial on charges of manufacturing methamphetamine, stealing a Jeep Cherokee and receiving stolen property. On 15 July 2010 Venning J sentenced him to six years imprisonment on the charge of manufacturing methamphetamine.[1] He ordered that that sentence was to be served cumulatively on a sentence of seven years of imprisonment that Mr Johnstone was already serving for further drug-related offending. The Judge imposed concurrent sentences on the remaining charges.
[1] R v Johnstone HC Tauranga CRI-2008-087-2122, 15 July 2010.
Mr Johnstone appeals against the sentence on the basis that it was manifestly excessive.
Facts
The charge of manufacturing methamphetamine followed a covert police surveillance operation targeting a remote rural property in Pikowai. Mr Johnstone was seen at that address between 22 August and 1 September 2008, and communications that the police intercepted during this period showed that he and his co-offender, Mr Marr, were discussing products, chemicals and processes used in the manufacture of methamphetamine. On 9 September 2008 the police executed a covert search warrant at the address, and took swabs that disclosed the presence of methamphetamine consistent with manufacture having occurred. When they searched Mr Johnstone’s home, they located equipment and precursor materials that were obviously for use in manufacturing methamphetamine.
The theft charge resulted from the fact that Mr Johnstone had directed a third party to steal a jeep for him to replace a vehicle that Mr Marr had damaged. The receiving charges related to the receipt of a stolen Tomtom GPS unit and a laptop computer.
The structure of the sentence
The Judge was required to make a factual finding regarding the probable quantity of methamphetamine that Mr Johnstone and Mr Marr had manufactured. Mr Johnstone’s former partner had made a statement to the police in which she described in detail her discovery and subsequent tour of the manufacturing operation at Pikowai. Based on what Mr Johnstone had told her, the operation was capable of producing up to 42 ounces, or 1100 grams, of methamphetamine. She told the police that she had actually seen the manufacture of approximately four ounces, or 113 grams, of methamphetamine. The intercepted communications confirmed that the operation had produced not less than 45 to 67 grams.
Having regard to the totality of the evidence, the Judge concluded that Mr Johnstone and Mr Marr had manufactured not less than 100 grams of methamphetamine at the Pikowai address. On that basis the Judge placed the offending squarely in the middle of the second band in R v Fatu[2] which relates to manufacture of between five and 250 grams of methamphetamine and calls for a starting point of between four and eleven years imprisonment. The Judge therefore took a starting point of seven years imprisonment on the charge of manufacturing methamphetamine.
[2] R v Fatu [2006] 2 NZLR 72 (CA).
The Judge then noted that the offending had occurred whilst Mr Johnstone was on bail for very similar offending. He took the view that that was a serious aggravating factor. He said that it showed contempt for the court process, a complete lack of ability to change and the failure of deterrence. He applied a 12 month uplift to the starting point that he had identified to reflect that factor. He did not, however, apply a further uplift to reflect Mr Johnstone’s previous drug offending.
The Judge considered that a further uplift was required to reflect the dishonesty offending, which was quite different in kind from the drug-related offending. He applied an uplift of one year to reflect all of the dishonesty offences. That produced an end starting point, before taking into account personal mitigating factors and the issue of totality, of nine years imprisonment.
The Judge concluded that there were no personal mitigating factors that he could apply to reduce the starting point that he had selected. He therefore turned to consider the issue of totality. He observed that a nine year cumulative sentence on top of the seven year sentence that Mr Johnstone was already serving would produce a sentence significantly, and disproportionately, longer than the sentence that would have been imposed in the event that Mr Johnstone had been sentenced on all charges at the same time.
The Judge noted that the cumulative quantity of methamphetamine from both sets of offending would place Mr Johnstone’s overall offending just under the top of Band 2 in Fatu. That did not, however, take into account the dishonesty offending which also needed to be factored in. The Judge observed that it was important that, as this Court had observed in R v Clarke,[3] there should not be a discount for bulk offending or any suggestion that offenders have little to lose by continuing to offend after being arrested. These factors led the Judge to conclude that a fair result was a three year reduction in the overall sentence, leading to an end cumulative sentence of six years imprisonment.
Issue on appeal
[3] R v Clarke CA128/06, 6 June 2006.
Counsel for Mr Johnstone did not challenge the Judge’s conclusion that the Pikowai operation resulted in the manufacture of at least 100 grams of methamphetamine. Nor did he take issue with the starting point of seven years imprisonment that the Judge adopted in relation to the lead charge of manufacturing methamphetamine. He contended, however, that the Judge erred when considering the issue of totality.
In order to evaluate this submission, it is necessary to say something more about the earlier offending that led to the sentence of imprisonment that Mr Johnstone was serving at the time that he came to be sentenced by Venning J. That sentence was imposed by Asher J on 5 February 2009,[4] after Mr Johnstone had pleaded guilty at a very late stage to charges of manufacturing methamphetamine, conspiracy to manufacture methamphetamine and possession of methamphetamine for supply.
[4] R v Johnstone HC Tauranga CRI 2006-063-4598, 5 February 2009.
This offending had occurred over a five week period between November and December 2006. It involved the manufacture, or attempted manufacture, of methamphetamine on several occasions at two separate locations. On 20 December 2006 the police searched the second address at which the manufacturing process had been carried out. When they did so, they found a large clandestine laboratory and quantities of pre-cursor materials for the manufacture of methamphetamine. When the police searched Mr Johnstone’s address on the same date, they found approximately 118 grams of methamphetamine under his bed.
Asher J concluded that Mr Johnstone was the cook responsible for carrying out the manufacturing process. He considered that the charge of manufacturing methamphetamine, which related to the 118 grams of methamphetamine found under Mr Johnstone’s bed, fell within Band 2 in Fatu and attracted a starting point of seven years imprisonment. He was not prepared to find that each of the other attempts to manufacture methamphetamine had produced a similar amount of methamphetamine, because the intercepted communications revealed that on at least one occasion the process had been a complete failure. He was satisfied, however, that the conspiracy to manufacture methamphetamine was sufficiently serious that it warranted an uplift of 18 months imprisonment. He then applied what he described as a generous discount of 15 per cent to reflect Mr Johnstone’s late guilty pleas, thereby arriving at the end sentence of seven years imprisonment.
When Mr Johnstone was sentenced for the present offending, his counsel submitted that an uplift of five years imprisonment was appropriate to reflect all aspects of Mr Johnstone’s offending. At the hearing in this Court, his counsel advised us that, in making this submission to Venning J, he had failed to properly consider the effect of totality principles. He submitted that, added together, the quantities of methamphetamine involved in both sets of offending amounted to 218 grams. This was significantly below the top end of Band 2 in Fatu. As a result, he submitted that, viewed in totality, Mr Johnstone’s offending should not have attracted an overall starting point of more than nine to ten years imprisonment.
Counsel accepted that an uplift of around 12 months was appropriate to reflect the fact that the second set of offending had occurred whilst Mr Johnstone was on bail. He submitted that, taken on its own, the dishonesty offending would not have attracted a sentence of imprisonment. Given that a community-based sentence was not an option, counsel submitted that a further uplift of no more than three months was justified to reflect the dishonesty charges. As a result, he contended that a cumulative end sentence of no more than four years three months was justified.
Accepting for present purposes that this submission is correct, we observe that it ignores the criminality involved in the charge of conspiracy to manufacture methamphetamine. That was a serious charge in itself, as is reflected by the fact that Asher J considered that it warranted an uplift of 18 months from the starting point of seven years imprisonment that he had selected on the charge of manufacturing methamphetamine. Once that charge is taken into account, the starting point must be around the top of Band 2 in Fatu. It would warrant a starting point of around 11 years imprisonment before taking into account the aggravating factors relating to the dishonesty charges and the fact that the second set of offending occurred whilst Mr Johnstone was on bail on very serious drug-related charges.
We consider that the latter factor could easily have justified an increase well beyond the one year uplift that Venning J applied. The second set of offending involved the gathering together of equipment and materials to enable a commercial clandestine laboratory to be set up. The laboratory produced at least 100 grams of methamphetamine before the police discovered it. The fact that Mr Johnstone was prepared to become involved in that type of activity whilst on bail in relation to exactly the same type of offending speaks volumes for his determination to involve himself in serious drug-related activity. We consider that it could easily have resulted in an uplift of between 18 months to two years. This means that an end sentence of 13 years imprisonment was well within range. For that reason we do not see how the end sentence that Venning J imposed can be said to be manifestly excessive.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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