Moore v R HC Auckland CRI-2006-090-007969

[2008] NZHC 2344

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-090-007969

SHAUN MICHAEL MOORE

v

THE QUEEN

Counsel:         A McClintock for Crown

A Speed for Accused

Judgment:      23 May 2008

SENTENCING NOTES OF GENDALL J

[1]      Shaun Michael Moore you appear for sentence having been found guilty by a jury sitting in the High Court at Auckland of four counts in breach of the Misuse of Drugs Act 1975.  You pleaded guilty to one count.

[2]      Those charges were that on or about 17 July 2006 at Auckland you:

a)        Manufactured the Class A control drug methamphetamine;

b)Had in your possession equipment capable of being used in the manufacture of methamphetamine intending that such equipment be used for that purpose.   The equipment comprised baking dishes, a water distiller, an electric hot plate, a gas burner, a condenser, an

extractor fan and assorted glassware;

MOORE V R HC AK CRI-2006-090-007969  23 May 2008

c)       Had in your possession precursor substances namely toluene, acetone and hydrochloric acid with the intention that they be used in or for the manufacture of methamphetamine;

d)Had  in  your  possession  material,  that  is  methanol,  iodine  and phosphorous acid, capable of being used in and intending by you to be used for the manufacture of methamphetamine; and

e)        You pleaded guilty to the count of possession of methamphetamine.

[3]      The  facts  upon  which  I  sentence  you  are  well-known  to  me,  as  I  have presided at your trial and am well able to assess the evidence, and find as proved facts which are expressed or necessarily implied in the jury’s finding of guilt.  I had left open to the jury the option of finding you not guilty of manufacturing, but guilty of attempted manufacture (if no methamphetamine had actually been manufactured), but it is implicit from the jury’s verdict that it found a manufacture had occurred in which you had been involved as a party, and a joint party.  I have concluded that you were not involved or the prime mover, but on the other hand not as a minor party, but rather as a joint party with two, perhaps three, others.  The facts are as follows.

[4]      At some time on Monday 17 July 2006, a clandestine methamphetamine laboratory was set up in a garage on a semi-rural residential property in Hobsonville, Auckland.  Earlier, on Sunday 16 July 2006, some process had occurred, although there was no evidence of a methamphetamine laboratory set up at that time.   But there was some product in a pot in a fridge or freezer, observed by one of the owners of the property.  There was no evidence at all that the laboratory itself was set up then in the garage.  A Crown witness who lived at that address had returned home at about 9 pm on the Sunday to find a liquid-type substance, smelling strongly of chemicals, inside the freezer or refrigerator in the garage.  It was likely to have been a by-product of some part of a first cook or manufacturing process.  But as I have said no laboratory equipment and material were seen to be present.

[5]      The next day, at least you and two other men were present at the property.  It is unclear when you had arrived at the property.  But a teenager who lived there and

who eventually proved your undoing, returned home from school at approximately

5.30-6pm.  At that time you were introduced to him as “Shaun”.   You were there then.    Inside the  garage were  you,  two  other  men,  the  boy’s  mother  who  was methamphetamine user, and some others.  A pot on the stove was in the garage and some  laboratory  equipment  was  seen.    A  cook  was  being  prepared.    The  boy departed to return between 6pm and 6.30pm.   He then could smell chemicals.   A cook was in progress.  He was not permitted into the garage.  Between that time and about 11pm you were there and you did not leave.  You were seen to go to and from the garage with others over the night.

[6]      Over that five to six hours a manufacturing process, or more than one, took place.  You were present throughout and it is implicit from the jury’s verdicts that you played a part and a role in the manufacturing process.  Whilst the evidence was that a cooking process usually, or often, takes up to six hours, the expert evidence was that if someone was really good at it, it could probably be done in two hours. And you are very good at it, having had two previous convictions for manufacturing methamphetamine.   But in any event, one cooking process had reached the stage where methamphetamine was in a bottle and traces were found on the stove, walls, ceiling and extractor ducts.  You had some methamphetamine in your pocket.

[7]      At  about  10.55pm  on  that  evening,  the  teenage  son  of  the  occupants telephoned the police, and you and the others were warned of the possibility that the police might visit, given the boy’s contact with them, although he had not told the police of his suspicions about what was taking place.

[8]      You and others had a window of opportunity of about 20 minutes to remove any manufactured product, incriminating items, dismantle the laboratory, dispose of the methamphetamine and other articles, and to flee.  It seems that one or perhaps two at least, did so and escaped apprehension.   You remained and dismantled the laboratory equipment.

[9]      From the jury’s verdict it is clear they accepted some methamphetamine had been manufactured and that you had possession of the equipment, the precursor substances and material, intending them to be used in the future manufacture.

[10]     When two police officers arrived at the premises around 11pm, they noticed a closed circuit TV video surveillance camera beside the garage directed down the driveway.  It was linked to a monitor inside the garage.  A strong chemical smell was coming from the garage, two hoses were seen under an exterior door and water was heard to be running.  The compelling inference is that chemicals, items or products were being washed down the sink, or cleaned up in some way.

[11]     Upon the police gaining entry to the garage they found a man said to be asleep in the front part.  He was acquitted by the jury on counts similar to yours, and no doubt can count himself fortunate.  You however were found to be hiding in the rear of the garage underneath two mattresses.   Located in the garage was a vast quantity of equipment, materials and chemicals, commonly used in the production of methamphetamine.   You had previously been convicted on several occasions for possession of equipment, precursor substances and the manufacture of methamphetamine,  and  you  will  well  know  what  those  substances  are.    They included the precursor substances of toluene, acetone, hydrochloric acid and other chemicals such as methanol, iodine and phosphorous acid.  Fireworks or flares were present which, as you will know, contain phosphorous.  A large number of baking dishes, a water distiller, electric hot plate and gas burner, a condenser, extractor fan and multiple items of equipment, well-known to be used in the process of manufacturing methamphetamine were present.

[12]     Traces of methamphetamine were later detected on the hot plate and the by- products of the manufacturing methamphetamine process were found on the condenser and in ducts attached to the extractor fan.  This all indicated that it had been used for the purpose of extracting fumes.    There were traces of methamphetamine above and on windows adjacent to the sink and bench in the garage.

[13]     Very  large   quantities   of   chemical   liquid   containing   pseudoephedrine, obviously extracted from source products, were found.  I assess those waste products to be something in the region of 29 [sic 26] litres.   A small amount of crystal methamphetamine, or the finished product, was located on your possession, being approximately 155 milligrams.  Methamphetamine was found in a liquid substance

in a blue drink bottle.   Electronic scales were present in a bag, along with other items.  The scales may not have been yours, but their presence suggests, as you will well know, that they can be used to weigh quantities of methamphetamine into point or gram bags.

[14]     Expert opinion evidence based on the  analysis of all  items,  was  that  all chemicals required to extract pseudoephedrine from a source product were present, as were all chemicals and equipment required to manufacture methamphetamine. The expert witness’s opinion was that pseudoephedrine had in fact been extracted from products and that methamphetamine had been manufactured but naturally he could not say where or when, that was a matter for the jury.  But it clearly accepted the expert evidence and concluded from all the evidence that the cook had produced some methamphetamine.

[15]     The empty toluene containers in my view provided a telling inference that a very substantial quantity of that chemical had been used for the manufacture of methamphetamine.   Four, 4 litre toluene containers were found at the premises. Three of which were virtually empty and one was one-third empty.  Which meant that a total of about 13 litres of toluene had been used in a manufacturing process (but not necessarily on that night), but nevertheless suggesting a significant scale operation, bearing in mind the very substantial quantity of waste products found.

[16]     The expert evidence was to the effect that about 200 millilitres of toluene would be required to extract pseudoephedrine from a 5 packet of cold tablets.  So, for example, 13 litres would be used in processing about 165 packets.   So the quantity of waste products and liquid found, which was over 26 litres, and which had not been washed away suggested a significant operation.

[17]     You did not give any explanation to the police for your presence in the garage.  That was your right.  You did not give evidence before the jury which was also your right.  You now have proffered an exculpatory explanation to the Probation Officer which does not accord with the evidence that I and the jury heard, nor with the jury’s verdicts, nor with the facts and inferences that I draw from the evidence.

[18]     The evidence of the Crown was that, at the very least, you together with two or three men over a six hour period, were going to and from the garage and the homestead during which one, at least, cooking process was taking place.  The Crown submitted that you were intimately involved and I accept that contention namely that you were a participant, with one or more of the men, in the operation, which was a joint endeavour.

[19]     Your  previous  convictions  illustrate  that  you  are  no  stranger  to  drug offending,  and  have  been  involved  in  the  manufacture  of  a  number  of  drugs, including methamphetamine in the past.  However, because of your recent unsworn statement to the Probation Officer, and Crown submissions, I offered to you, and your counsel, the opportunity to request a Disputed Facts Hearing.   It is very rare indeed for that to occur after a jury trial.

[20]     A trial Judge in determining a sentence may accept, as proved, any facts disclosed by the evidence at trial.  A Judge who has heard the evidence at a jury trial is entitled to reach a view of the facts that are supported by that evidence, provided that his or her view is not inconsistent with the verdict of the jury.  It is not the law that the Judge is bound to accept the version most favourable to a prisoner, as was said in the R v Harris (1961) VR 236. If the verdict implies that a jury has adopted a particular view of the facts then the sentencing Judge has to proceed on that basis. In your case the jury clearly adopted the following facts:

a)       That you were present for at least six hours on the Monday, and participated  as  an  active  party  in  the  manufacture  of methamphetamine;

b)Some methamphetamine was actually manufactured and the activity was not simply an attempt;

c)       You  had  possession,  perhaps  jointly  with  others,  of  equipment, material, chemicals and precursor substances intending they be used in the manufacture of methamphetamine.   That is, intending, in the future, such use.

[21]     The version you have advanced to the Probation Officer is inconsistent with the  verdicts  of  guilty  and  neither  plausible  nor  credible.    Nevertheless,  I  was prepared to have a Disputed Facts Hearing if that was what you or counsel wished but that has not been pursued.  The position really is as described in the Court of Appeal in R v Aram [2007] NZCA 328 (at [71]), namely that Sentencing Facts hearings rarely are necessary in cases where there has been a trial and the sentencing Judge was the trial Judge. In those situations it is for the sentencing Judge to make up his or her mind as to the facts on which he or she reconsiders are proved.

[22]     I have been able to make up my mind and the facts and inferences I draw are:

a)       You played a joint role in the manufacturing process with one or two others on Monday, 17 July;

b)You arrived at the premises before 5.30pm or 6pm at which time you were introduced to Samuel Barrett;

c)       You manufactured some methamphetamine over the next five to six hours jointly with others;

d)       Some methamphetamine was in your possession;

e)       You possessed equipment and chemicals intending them to be used in further manufacturing;

f)        The quantity of toluene used, and to be used, and the amount of waste products was consistent with large scale manufacture, possibly more than one cook.   I am well aware that manufacturers do not carry empty  containers  of  toluene  around  with  them,  and  the  strong inference is that most of that which had been in the containers was used at these premises;

g)       The presence and involvement of at least three men at this place, together  with  the  surveillance  set  up,  equipment,  materials  and

chemicals, supports the conclusion of commerciality, despite you also being a user;

h)Whilst one or perhaps two may have escaped, and you did not, that was not because you were left as the innocent dupe, but because you as and experienced drug manufacturer, were left to clean up and repackage the kit.

[23]     The Probation Officer’s report is somewhat brief, but mentions that you are motivated to change.  I am pleased to see from the material that you have submitted today through your counsel that there has been some rehabilitative steps taken whilst on remand.  That is encouraging for the future.  But you are assessed as medium to high risk future offending because your previous convictions illustrate that you are not only no stranger to drug offending, but have been involved in manufacturing on a number of occasions in the past having 36 previous convictions.  Those relevant to drug offending were:

a)       Between 1992 and 1997 you had two convictions for possession of cannabis; one for cultivation of cannabis and one for using morphine;

b)In 2002 you had convictions for possession of a Class B drug for supply, manufacture of methamphetamine and possession of a pistol, all of which suggests serious drug dealing.   You were sentenced to

4 years, 3 months’ imprisonment.

c)       Between June 2001 and October 2001, you committed a raft of drug- related offences and you were finally dealt with on those in March

2003 in the Whangarei District Court.  They included seven separate charges of possessing precursor substances; five separate charges for possession of equipment to be used in the manufacture of drugs; one for possession for supply of cannabis plant; one of manufacturing a Class B drug.  You were sentenced to 1 year, 6 months’ imprisonment on  a  number  of  those  charges  to  be  cumulative  on  the  4 years’,

3 months term imposed in 2002.

[24]     I read the sentencing notes of the District Court Judge in Whangarei on

18 March 2003 and they reveal that you offended on a large scale between June and October 2001 on at least four different occasions from Auckland to Whangarei.   I will append the Judge’s sentencing notes to the sentencing remarks so that the true facts of that serious offending are known.

[25]     I reached the view that beyond doubt you are a recidivist methamphetamine manufacturer, having been involved in some form or another, for the last seven years.  You have not learnt from terms of imprisonment that had been imposed.  I accept the Crown’s contention that you are not simply a person who manufactures small amounts of methamphetamine for your own use.   The events the subject of your convictions clearly involved commercial manufacture as did this.

[26]     In terms of the well-known case of R v Fatu [2006] 2 NZLR 72, you fall within Band 2, that is the manufacturing of up to 250 grams. In my view commerciality clearly existed, which provides a sentencing band of between 4 and

11 years’ imprisonment.

[27]     It is notoriously difficult for the scale of manufacture of methamphetamine to be accurately assessed because, as it was said in Fatu, it depends very much on what finished product is discovered.  But the evidence of manufacturing on hand at the time of the police intervention, volumes of precursor materials located, and the waste products are relevant considerations.  You will well know that getting rid of the final product is important if police intervention is likely, hence your multiple convictions for possession precursor substances, materials or equipment.

[28]     Of course you are to be sentenced only for the offending which you have admitted (which is none), or which the Crown can prove.  It is not right that you be, and you will not be, sentenced on the basis of what you could have committed had the police not intervened.  But a realistic view of the dynamics of manufacturing has to be made.  As Fatu said:

The Courts must take a realistic view of the dynamics because those who gear up to manufacture methamphetamine are not likely to be content with a single “cook”.  …

And:

A principled approach is to recognise that manufacturing methamphetamine necessarily involves criminality at two levels: first, the possession of equipment for the purpose of manufacturing … and secondly, the actual use of that equipment to manufacturing methamphetamine.  When offenders put together the equipment to manufacture methamphetamine, the culpability of their conduct is closely associated with the likelihood that the equipment will be used for that purpose.   This approach can be taken directly (if the prosecution  lays  charges  under  s 12A),  but  can  also  be  implemented indirectly by treating the possession of the equipment as an aggravating feature of the primary manufacturing offending.  …

And:

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,   expenses   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.

[29]     I  am  satisfied  here  that  your  involvement  in  manufacturing  involved significant commerciality, and whilst care is needed to be exercised without clear evidence of yield, there is a strong foundation here that you fall squarely, at least, within Category 2 of R v Fatu.   A sentence must reflect the criminality of your actions and the role you played in the group.   It is said it was minor but I do not accept that.  The evidence does not afford you that liberty.  You were an equal party with one or two of the others.  Your past history speaks volumes of your willingness to be involved as an equal participant with others.

[30]     Initially I have in mind a very significant starting point, from R v Fatu of about six years, with an uplift for your serious aggravating previous convictions. But I am persuaded by the Crown, and by your counsel and by the small mitigating feature contained in material that you have supplied today, that my initial view or approach was too high.   Your prior criminal history, drug offending and Class A manufacturer, despite substantial terms of imprisonment show a determination to continue your criminal ways.  Your counsel submitted that you are remorseful but I note that you do not accept the jury’s verdict according to what you have said to the Probation Officer, and that therefore perhaps speaks against there being any true remorse.

[31]   Your past offending is seriously aggravating.    As to your personal circumstances, you are aged 29, unemployed, and have spent a significant part of the last six years in prison.  The only mitigating personal factors are some encouraging rehabilitative courses and steps you have undertaken whilst on remand.  But despite lengthy prison sentences for drug related crimes (5 years, 9 months was the last sentence), you have continued to offend in a serious way.  And it was implicit in the jury’s findings that the clan lab equipment found in your possession was to be used again, if you could.  That is in fact what the charge says.

[32]     I take as a starting point a term of five years’ imprisonment.   Your past criminal behaviour requires an uplift from that of 12 months.  But I allow you a three months’ concession for the rehabilitative optimism, if I can put it that way, that may exist.  So the lead sentence is 5 years, 9 months’ imprisonment.

[33]    You are sentenced to 5 years, 9 months’ imprisonment on the count of manufacturing methamphetamine.   On each of the three counts of possession of equipment, precursor substance and material, you are sentenced to 3 years’ imprisonment.   On the count of possession of methamphetamine, to which  you pleaded guilty, you are sentenced to 3 months’ imprisonment.   All terms to be concurrent.

“J W Gendall J”

Solicitors:

Meredith Connell, Auckland for Crown

Vulcan Chambers, Auckland for Accused