R v Aitken HC Tauranga CRI 2009-070-1366
[2010] NZHC 1770
•8 October 2010
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2009-070-1366
THE QUEEN
v
JOHN AITKEN
CRI 2009-070-1397
THE QUEEN
v
JOHN AITKEN AND DAVID PETER JAMES ANDERSON
Hearing: 8 October 2010 (Heard at Rotorua)
Appearances: S Simmers for the Crown
P G Mabey QC for the Accused
Judgment: 8 October 2010
SENTENCE OF WOODHOUSE J
Solicitors / Counsel:
Ms S Simmers, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga
Mr P G Mabey QC, Barrister, Tauranga
R V AITKEN AND ANDERSON HC TAU CRI 2009-070-1366 8 October 2010
[1] Mr Aitken and Mr Anderson, you may remain seated while I explain the sentence I am going to impose. As you have heard from the discussions, and as you are well aware, there need to be sentences of imprisonment.
[2] You appear for sentencing for the following joint offences, having pleaded guilty:
a) One count of manufacturing methamphetamine with a maximum penalty of life imprisonment.
b)One count of supplying methamphetamine, also with a maximum penalty of life imprisonment.
c) One count of conspiracy to manufacture methamphetamine, with a maximum penalty of 14 years imprisonment.
And that bald recital of the offences and the maximum penalties really does by itself make clear how serious the offences are. And I do not need to add to that; I think both of you can fully understand.
[3] You, Mr Aitken, are also to be sentenced on one count of conspiracy to cause grievous bodily harm and you have pleaded guilty to that charge as well.
Facts
[4] Most of the evidence comes from intercepted communications between 4
March 2008 and 22 April 2008. There is a dispute as to the quantity of methamphetamine manufactured, so I will need to provide some factual details.
[5] The quantities sold have a bearing on determination of the quantities manufactured so I note the quantities sold first. 2 to 3 grams were sold by Mr Anderson on 13 March and 5 grams on 15 April. 3 grams were sold by Mr Aitken
around 5 April and there were two supplies of around 1 gram each on 15 April. These of course are the quantities which have been proved.
[6] The particulars of manufacturing are as follows.
[7] 13 March 2008. The Crown accepts it cannot prove the quantity manufactured, although the evidence of manufacture is clear. There were communications between the two of you in preparation, with Mr Anderson asking Mr Aitken to bring ice, which is used for cooling – and it is assumed that is what it was for, a new battery assumed to be for lighting, and a trailer to remove waste from manufacturing about which there was some further discussion. Following the manufacture Mr Anderson told a third party that he had gram lots available for
$1,000 each. However, by the late afternoon of 14 March Mr Aitken was looking to obtain methamphetamine from third parties. And I would emphasise, as already indicated, that over the whole of this period your communications were being intercepted which bears on this question of proof.
[8] There was further manufacturing between 31 March and 3 April and it is this incident which involves the main area of dispute on the facts. Before this manufacturing occurred a man named Brent Ankins supplied 100 packets of ContacNT to Mr Anderson – or the contact was between Mr Ankins and Mr Anderson. Mr Ankins pleaded guilty to a charge of conspiracy to manufacture methamphetamine, and other charges. On sentencing Heath J said he was satisfied that the ContacNT supplied was enough to manufacture about 50 grams of methamphetamine. On the basis of this, the Crown has submitted that 50 grams of methamphetamine was manufactured by the two of you on this occasion. The Crown further submits that this is supported by some further evidence which is not contested. And I just summarise:
• On 27 March 2008 Mr Anderson sent a message seeking 100 packets of
ContactNT.
•There was a subsequent discussion with Mr Ankins. He said “they should be here this week” and Mr Anderson replied “massive … we’ll end up taking … everything but we’ve got to find the right time”.
• Manufacturing took place between 31 March and 3 April.
•On 3 April Mr Aitkin sent a message saying he had “been up all week” and that he had “paid everyone’s bills”.
• In another message he said he was shattered as he had been up “all week”.
[9] Against this Mr Mabey QC has submitted that a potential yield of 50 grams of methamphetamine from the ContacNT does not mean that 50 grams were in fact manufactured. He points, as contrary evidence, to the fact that the evidence of supply immediately following this manufacture is of a total of 3 grams of methamphetamine and that if 50 grams had been manufactured there would be a good deal more evidence of further and significant supplies. That points to the relevance of my earlier comment about the number of intercepted communications. Mr Mabey submitted that to sentence on the basis that 50 grams of methamphetamine were manufactured would be speculative.
[10] The third manufacture occurred on 10 April. The Crown accepts it is unable to prove the quantity manufactured on this occasion. Significantly, on this occasion there was a Police raid without further evidence of the quantity arising from that.
[11] The fourth occasion of manufacture was between 12 and 14 April 2008. Again, the Crown accepts it is unable to prove the quantity. However, there is uncontested evidence that the following day Mr Anderson was in a position to sell 5 grams of methamphetamine – or supply 5 grams of methamphetamine – to Mr Ankins and Mr Aitken supplied 1 gram to one person and an unknown quantity to another person.
[12] Mr Mabey noted that the direct evidence of quantities is small notwithstanding the number of intercepted communications and, of course, I have
already referred to that. He also noted that there is no evidence of wealth; no quantities of cash were found, and there was no evidence of lavish lifestyles.
[13] Having regard to all of this evidence, and giving the two of you the benefit of the doubt you are entitled to, and notwithstanding suspicions from all of this evidence, I will sentence you on the basis that the amount of methamphetamine produced on each occasion was low level. I use that expression, low level, which is in Mr Mabey’s submissions, rather than an estimate of quantity, because an estimate is not possible and in the end it is not decisive.
Methamphetamine starting point
[14] There is no dispute that the starting point is in band 2 of the Court of Appeal case of Fatu.1 This in general requires a sentence between 4 to 11 years imprisonment for manufacturing up to 250 grams of methamphetamine. That means that with the manufacturing in this case at the bottom of the scale in terms of quantity the starting point will be closer to 4 years imprisonment.
[15] The starting point is to be fixed in relation to manufacturing. For the Crown, Ms Simmers submitted that it should be 6 ½ to 7 ½ years imprisonment, with an increase to reflect the actual supply charges and conspiracy to manufacture. Mr Mabey submitted that the starting point should be around 4 ½ years, with an appropriate uplift for the other offences. I was referred to a number of cases. As with the submissions on all points, I have taken into account the submissions on these cases and the cases themselves. It is unnecessary to discuss the cases but I will
note the names for the record: Tawhiri2, Rizvi3, Puata4, Bowater5 and Ankins6.
1 R v Fatu [2006] 2 NZLR 72 (CA).
2 R v Tawhiri HC Tauranga, CRI-2008-070-1877, 5 February 2010.
3 R v Rizvi HC Rotorua, CRI-2008-070-3002, 7 May 2010.
4 R v Puata HC Tauranga, CRI-2008-070-3002, 9 July 2010
5 R v Bowater HC Tauranga, CRI-2008-070-2683, 8 December 2008.
6 R v Ankins HC Tauranga, CRI-2009-070-1504, 2 December 2009.
[16] I am satisfied that the starting point for manufacturing methamphetamine is
4 ½ years. This is for each of you. There is no relevant distinction between the roles you played. And there has been no submission that there should be a distinction.
[17] There needs to be an increase to take account of the supply of methamphetamine and the conspiracy to manufacture. The conspiracy in considerable measure is contained in the principal offence of manufacture on four occasions. The supply came as an object of the manufacture, but nevertheless is a distinct offence with supply occurring, as I have indicated, on a number of occasions. I consider that the appropriate increase for the other offending is 6 months. That increases the starting point to 5 years imprisonment.
Mr Anderson – personal and end sentence
[18] Mr Anderson, I will now deal with the end sentence for you. And I need to take into account personal considerations. In that regard, as with Mr Aitken, of course I have read the pre-sentence report and I have this morning received two letters written on your behalf. You are fortunate to have this sort of support. If I can say, although I am dealing with you, I hope that similar support is available to Mr Aitken. As I am sure Mr Mabey will have advised both of you, personal considerations of this matter really cannot be given much weight at this point – and that is to say, on sentencing. In the case of both of you previous offences really tend to cancel out any good factors that might warrant a decrease in sentence.
[19] Mr Anderson, you are 43 years old. As Mr Mabey has acknowledged, you have relevant previous convictions, including supply of class B and class C drugs. I do agree with Mr Mabey’s submission that the uplift because of this should be 6 months and no more, taking it to 5 ½ years.
[20] As I have just indicated, there are no personal considerations justifying a decrease other than your guilty pleas. The reduction for the guilty pleas takes account of your remorse for your offending, which you expressed to the probation officer, and your recognition of the fact that you are responsible for the position you are now in. If I may say, that is a significant recognition. You are entitled to a
reduction of 15% for the guilty pleas. This means an end sentence in your case of 4 years 8 months imprisonment.
Mr Aitken - grievous bodily harm and conspiracy and personal factors
[21] Mr Aitken, I have to sentence you for the conspiracy to commit grievous bodily harm as well as the methamphetamine offending. I am satisfied that the grievous bodily harm offence requires a cumulative sentence as I have already discussed – a separate sentence to be added to the end sentence for the drug offending, although the total of the two needs to take account of what is called the totality principle to ensure that the total sentence is not completely out of proportion in relation to the whole of the offending. I will deal firstly with the end sentence for the methamphetamine offences.
[22] You are 35 years old. You have previous convictions for drug offences. All of these relate to cannabis and occurred between 1993 and 1997 apart from one conviction in 2007. The 2007 conviction was for cultivating cannabis resulting in a sentence of 60 hours community work. I do not intend to increase the sentence for these earlier offences. On the other hand, there are no factors justifying a decrease apart from the guilty pleas. You are entitled to 15% off for the guilty pleas. This means an end sentence for the methamphetamine manufacture of 4 years and 3 months.
[23] The conspiracy to commit grievous bodily harm is a serious crime. The evidence again comes from intercepted communications. Between 17 and 22 March you were in contact with a prisoner at Waikeria Prison. I will call him X. In about February 2008 a man named Travis Tait was remanded in custody at Waikeria charged with an assault on Mr Anderson’s son. The communication between you and X concerned arrangements for this prisoner to carry out a serious assault, or organise a serious assault, on Travis Tait. The conspiracy, as you have admitted, was to cause grievous bodily harm to Travis Tait. The talk was not simply bravado. Mr Mabey submitted that there was bravado to impress Mr Anderson. That may be, but of course you were also communicating with this other man in prison and telling him what you wanted him to do. You made an express request in graphic terms for
this man to cause serious harm. Because these communications were intercepted steps were taken to protect Mr Tait.
[24] The maximum sentence for conspiracy to cause grievous bodily harm is 7 years imprisonment, as I have already said. Counsel were not able to find any other cases which might be of direct assistance by way of comparison and neither was I. Some broad assistance is provided by a Court of Appeal case called Taueki7. That case deals with ranges of sentences for the offence of actually causing grievous bodily harm. So it can only be a very broad guide. Mr Mabey submitted that there
should be an additional sentence of 9 months imprisonment for this offending.
[25] There are seriously aggravating features in this conspiracy: the planning and premeditation; taking the law into your own hands; a direct request from you for Travis Tait to be attacked in the head; the fact that Mr Tait was confined. Bearing in mind that the maximum penalty is 7 years imprisonment, if this was the only offence I was dealing with the starting point for this crime could easily be 18 months imprisonment – talking about the starting point. However, having regard to the totality principle I consider that the appropriate sentence is 10 months imprisonment, which includes a reduction of 15% for the guilty plea. If you work that back it works out at about 12 months and then a reduction.
Sentences
[26] You should both now stand and I will impose a formal sentence. [27] Mr Anderson:
a) For manufacturing methamphetamine you are sentenced to 4 years 8 months imprisonment.
b)For supplying methamphetamine you are sentenced to 4 years imprisonment.
7 R v Taueki [2005] 3 NZLR 372 (CA).
c) For conspiracy to manufacture methamphetamine you are sentenced to 2 years imprisonment.
d)The sentences are concurrent so the total is 4 years 8 months imprisonment.
[28] Mr Aitken:
a) For manufacturing methamphetamine you are sentenced to 4 years 3 months imprisonment.
b)For supplying methamphetamine you are sentenced to 4 years imprisonment.
c) For conspiracy to manufacture methamphetamine you are sentenced to 2 years imprisonment.
d) The above sentences – those three – are concurrent.
e) For conspiracy to cause grievous bodily harm you are sentenced to 10 months imprisonment, cumulative on the preceding sentences. The total of your sentences is therefore imprisonment for 5 years and 1.
[29] You should both now stand down.
Peter Woodhouse J
0
0
0