R v Alcock
[2015] NZHC 984
•6 May 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2013-088-001724 [2015] NZHC 984
THE QUEEN
v
MATHEW RAYMOND ELLIS ALCOCK
Hearing: 6 May 2015 Counsel:
N J Dore for Crown
M Pecotic for DefendantJudgment:
6 May 2015
SENTENCING NOTES OF ASHER J
Solicitors/Counsel:
Crown Solicitor, Whangarei.
M Pecotic, Auckland.
R v ALCOCK [2015] NZHC 984 [6 May 2015]
Introduction
[1] Mr Alcock, you appear today for sentence having pleaded guilty to seven charges. The charges which I will discuss in detail shortly are possession of a precursor substance, possession of materials, possession of equipment, theft, receiving and two charges of unlawful possession of a firearm.
Background
[2] The charges have arisen from an investigation by the Police which has been code named “Operation Firebird”. It was intended to investigate your activities and some others. There was covert surveillance of your rural property at Maromaku where you lived, and there was call data obtained relating to the use of your telephone. Ultimately your property and that of your neighbour, William Croft, was searched.
[3] Various items were found in your property, and it is these discoveries which had led to the laying of the charges. I will now summarise the charges and what was found. I use the numbers from the amended indictment that was filed. The Crown has not proceeded with the other counts not listed.
[4] In relation to this and other drugs counts there was to be expert evidence and a disputed fact hearing. However, the issues between the Crown and the defence were resolved 6 May 2015 when that disputed facts hearing was due to take place and I now proceed on an agreed basis in relation to these facts.
Count 3: possession of a precursor substance
[5] On this charge the amount discovered was 47 litres of toluene contained in four 20 litre containers. The toluene containers were found in bush areas and not in the house. The toluene, had it been used with the other necessary substances, could have resulted in the manufacture of 600 to 1200 grams of methamphetamine.
[6] Also discovered was a bucket container two plastic bags. Inside those plastic bags was a pseudoephedrine paste weighing approximately 28 grams (the exact
amount is not known as the solids were not quantified). The pseudoephedrine, if it was pure pseudoephedrine and if used with the appropriate materials, could have given rise to 17 grams of methamphetamine. Given that it is not shown that this was all pure pseudoephedrine the yield may have been less.
[7] I am not asked by the defence to put to one side the finding of the pseudoephedrine for this reason, but Ms Pecotic does submit that it should not be assumed that 17 grams of methamphetamine would have been the necessary consequence of the pseudoephedrine having been used for manufacture.
Count 4: possession of materials
[8] A container with 17 grams of iodine was found. If iodine was used with other necessary materials to manufacture methamphetamine, the amount was sufficient to give rise to 10 grams of methamphetamine.
Count 5: possession of equipment
[9] The following used equipment was found on Mr Alcock’s property: a glass condenser; glass beakers; hotplate; PH tester; PH strip; and a three-necked reaction flask (with a part broken). They were found in various locations on the property. There was also found inside a backpack a separation funnel, a volumetric flask, PH test strips and a digital PH metre.
Count 7: theft
[10] The Police had placed a camera and surveillance equipment in the bushes beside Mr Alcock’s home on land that was part of the property that he occupied. They were being used by the Police as part of the surveillance operation of his property and him. The value was $8,084.80. Mr Alcock found the camera and equipment and together with an associate, Mr Lum, threw it into a nearby swamp.
Count 8: receiving
[11] A 1300 litre fuel tanker was found on a trailer. It had been stolen from a company Allied Petroleum Ltd. It was valued at approximately $6,000. It was in a bush area and not being used at the time.
Count 9: unlawful possession of a firearm
[12] In a container in the area outside the house a World War II model Husqvarna bolt action rifle was found.
Count 10: unlawful possession of a firearm
[13] There was also found in a container a Saiga NHM-90 assault rifle. Mr Alcock had been observed firing 26 shots from the rifle while standing inside an implement shed on his property. There was a gun target elsewhere on the property. He had been observed by the Police cleaning the rifle and loading a magazine into it. The rifle was a military-style semi-automatic weapon derived from the Russian AK47, could fire 40 rounds per minute in semi-automatic state, and 100 rounds per minute in fully automatic state. It was unloaded, although there was ammunition nearby.
Submissions
[14] I have the benefit of detailed submissions from both Ms Dore for the Crown and Ms Pecotic for Mr Alcock.
[15] This sentencing exercise is a little out of the ordinary in that there are three different types of offending. The first is the drug offending, the second the dishonesty offending, and the third the firearms offending.
[16] In relation to count three, the possession of a precursor substance offending, Ms Dore submitted that the right starting point was two to two and a half years’ imprisonment. Ms Pecotic submitted that the starting point should be 18 months.
[17] In relation to count four, Ms Dore submitted a 12 to 15 month starting point was appropriate, whereas Ms Pecotic characterised the iodine offending as minor and suggested a one to three month starting point.
[18] In relation to count five, the possession of equipment charges, Ms Dore submitted two years was the right starting point, whereas Ms Pecotic submitted that six months was sufficient.
[19] Looking at the drug offending overall, Ms Dore submitted that despite the sentences arithmetically coming to approximately five years’ imprisonment, a deduction for totality in relation to the drug offending was appropriate. She accepted that the sentences for the drug offending should be concurrent. The end starting point overall taking into account totality for the three drug charges should be, she submitted, three years’ imprisonment.
[20] Ms Pecotic adopted the same approach, but taking into account the lower individual starting points that she submitted were appropriate, she submitted that the right starting point for the drug offending overall, taking into account totality, was two years’ imprisonment.
[21] On the dishonesty offences, Ms Dore submitted that a sentence of three months on the surveillance equipment and six months on the tanker were appropriate, a total of nine months. She did not propose any particular totality discount.
[22] Ms Pecotic characterised the theft of the surveillance equipment as approaching de minimis and proposed that one month imprisonment was appropriate on that. In relation to the receiving of the tanker, she submitted that again about a month would be the maximum. She said that the Court should consider a discharge on both the dishonesty offences.
[23] Finally in relation to the two firearms charges, counts nine and 10, Ms Dore characterised these as serious and suggested a starting point of 18 months.
Ms Pecotic on the other hand submitted that an uplift of no more than six months would be appropriate for those.
[24] Thus, the end starting point proposed by Ms Dore was around five years and three months’ imprisonment. She accepted that there might be some very modest deduction for totality, but pointed out that there had already been a deduction for totality in relation to the lead count, the drugs charges, when they were considered in combination. Ms Pecotic on the other hand submitted that the starting point of between two years and nine months and three years’ imprisonment was appropriate.
[25] I will deal with the submissions in relation to personal factors when I
consider that issue later in this sentencing.
Starting points
Approach
[26] In relation to the precursor substance charges it is necessary to acknowledge at the outset that Mr Alcock has not been convicted of manufacturing methamphetamine, and I put to one side any residual statements left in the edited summary of facts that he may be guilty of that charge.
[27] His culpability in relation to the drug offending must be assessed on the basis that he is charged with possession only with the intention that the items be used in or for the commission of the offence of producing or manufacturing methamphetamine, but not that he had any role in its manufacture. I also note that he is charged under s 12A(2) of the Misuse of Drugs Act 1975, where a general intention is the requirement, and the maximum sentence is five years’ imprisonment, and not s 12A(1) which is the more serious charge involving actual knowledge that the equipment, material or substance is to be used for the commission of an offence and which carries a higher seven year maximum term.
[28] There was no tariff case relating to this type of charge. It has been said that s 12A charges generally merit a custodial sentence.1 I have been referred to a considerable number of comparable cases. I refer to the sentences imposed on Mr Alcock’s co-offenders.
[29] Mr Lum and Mr Ngawati were charged with him. They were sentenced by Woodhouse J on 31 March 2015.2 Ms Pecotic understandably placed considerable weight on this judgment, as the end sentences of those two defendants were for community detention and supervision. There is no exact overlap in the two sentencing exercises. Messrs Lum and Ngawati were charged with the supply of toluene and the Judge fixed the quantity at 60 litres. The charge there was under
s 12A(2) so it was a more serious charge than the type of charge Mr Alcock faces (although there was only one charge). On the charge of supplying toluene Woodhouse J considered a number of cases and determined that the right starting point was 18 months’ imprisonment.
[30] I also had to consider the sentencing of a co-offender Mr Croft. That charge was different again and involved possession of three items of equipment, one of which contained traces of methamphetamine. The starting point in that case was fixed at 15 months’ imprisonment, although the end sentence was five months’ home detention.
[31] Other relevant cases include Police v Harvey,3 where a two year starting point was fixed for a carry bag containing items of glassware including a flat- bottomed flask and condenser, as well as in a separate place some hypophosphorous acid was found. There was an uplift for firearms charges which I refer to later. In R v Johnston,4 a starting point of two and a half to three years’ imprisonment was accepted on facts where a cooler bag containing six bottles of chemicals including hydrochloric acid and toluene, as well as a separate bag containing two plastic soft drink bottles containing two-layered liquids that were believed to be the product of
extraction from pseudoephedrine were found.
1 R v Anderson [2007] NZCA 146 at [39].
2 R v Lum [2015] NZHC 629.
3 Police v Harvey HC Tauranga CRI-2009-070-008644, 18 March 2010.
4 R v Johnston CA448/05, 16 May 2006.
Count 3 – pseudoephedrine and toluene
[32] In relation to count three, while recognising that the amount of toluene was a third less than that in R v Lum and the charge more serious, the distinguishing factor is that there was a significant quantity of pseudoephedrine as well as toluene found on Mr Alcock’s premises. While the strength of that pseudoephedrine and the ultimate methamphetamine to be derived cannot be ascertained with certainty, the fact is that 28 grams of this substance was found and that if it were pure, 17 grams of methamphetamine could have been obtained.
[33] I work on the basis that this amount would not have been obtained, and that it would have in fact have been a lesser amount because of impurities in the pseudoephedrine. But it does add, in my view, a significant character of extra seriousness taking the starting point beyond that which was imposed in relation to Messrs Lum and Ngawati.
[34] I consider that the appropriate starting point for that count alone would be
two years’ imprisonment.
Count 4 – possession of iodine
[35] In relation to the possession of iodine, I accept Ms Pecotic’s submission that
this is in a much less serious category. It could have been used in the manufacture of
10 grams of methamphetamine, but as with toluene and unlike processed pseudoephedrine it is a substance that can be purchased over the counter and is not particularly expensive.
[36] The appropriate starting point on that count would have been six months’
imprisonment.
Count 5 – possession of the items of equipment
[37] In relation to count five, possession of items of equipment, I note that this was second-hand equipment in not particularly good order, and it was not all found in the same place. However, a quantity was found in a bag and there were at least
six different items that could have been used to manufacture considerable quantities of methamphetamine.
[38] I consider that a starting point of 18 months’ imprisonment on that count
alone would be warranted.
Totality on the drugs charges
[39] It is appropriate that I now consider totality in relation to the drugs charges. Obviously the sentence for each particular drug count should be concurrent, as the charges are the same in kind and could be seen as connected.5 However, I must ensure in relation to the drug offending that the starting point is not wholly out of proportion to the gravity of the overall offending.
[40] While if added together the sentences on the three counts would come to four years’ imprisonment, taking into account totality, I fix a starting point for the three drug offences of two years and nine months’ imprisonment.
[41] I turn to the starting point for the dishonesty offences.
Counts 7 and 8 – theft and receiving of the fuel tank and trailer
[42] The taking and attempted destruction of the camera and video equipment does feature a mitigating factor: the presence of those items on the property Mr Alcock occupied without his permission. Ms Pecotic said his reaction was understandable and I can see why she would make that submission. However, an honest and law abiding person would have immediately contacted the Police. The fact that the surveillance was of Mr Alcock does not excuse what he did. I note there was an uplift to Mr Lum’s notional sentence of three months by Woodhouse J, and I fix a starting point of three months for this offending.
[43] In relation to the receiving of the fuel tank and trailer, I note Ms Pecotic’s
submission that there had been no efforts by the owner to recover this fuel tank, and
5 Sentencing Act 2002, s 84(2).
I note that it was not in use. Nevertheless this is a significant item and Mr Alcock by his plea of guilty has accepted that he dishonestly received it. In my view a starting point of nine months’ imprisonment is appropriate in respect of that item.
[44] If these were totalled together there would be a sentence of 12 months on the dishonesty counts. I consider that would be excessive taking into account the totality principle. The charges on each must be concurrent and the total starting point which can be seen as an uplift to the sentence of two years and nine months’ imprisonment, is six months’ imprisonment.
Counts 9 and 10 – unlawful possession of firearms
[45] I turn to the firearms charges. In relation to the Husqvarna bolt action rifle, I note that was an old gun. Also notable is that Mr Alcock has previously had a firearms licence which he allowed to lapse. Further, in about 2002 when he allowed it to lapse he was a person who was regarded as suitable to own firearms. However, that does not greatly reduce his culpability given that he has been since convicted of a number of counts including unlawfully possessing a firearm in 2011, and there is nothing to suggest that he would have been able to have got a firearms licence at the time of this offending had he sought one.
[46] Before I fix the starting point on that particular count I turn to the other unlawful possession of a firearm count relating to the Saiga NHM-90 assault rifle. This was a particularly lethal weapon capable of firing very rapidly with a range of
350 metres.
[47] I recognise that there are no aggravating culpability factors such as it being loaded or in a house, or near the presence of children, or next to drugs. However, in terms of the type of weapon involved it was at the most serious level of culpability. I note and accept Ms Pecotic’s submission that Mr Alcock is a pig hunter and used the gun for that purpose, and there is clear evidence he used it recreationally from the target on the site.
[48] The maximum sentence for this charge is four years’ imprisonment. I note that for a sawn-off 0.22 gun in Police v Harvey (a less lethal weapon) a one year uplift was imposed, but there were other aggravating factors. I consider that a one year uplift would be appropriate for the assault rifle. Returning to the Husqvarna bolt action rifle, a three month uplift would be appropriate for that.
[49] The two sentences for these firearms charges must be concurrent, and I turn to consider the issue of totality in relation to the two together. My assessment in the end will be a lenient one given the mitigating factors relating to culpability mentioned by Ms Pecotic and I fix an overall starting point or uplift to the other starting points of nine months’ imprisonment on account of the firearms offences.
Conclusion on starting point
[50] Adding these three starting points together the total is four years. I have already addressed totality in relation to the three different types of offending recognising that within those three groups the sentencing must be concurrent, and that each sentencing exercise must be looked at in the round.
[51] I must ask whether any further deduction for totality is required. In doing so I observe that there was a serious aspect to your offending, Mr Alcock. The combination of the presence of the precursor items and equipment, the stolen material, your reaction when you found the cameras and the presence of powerful firearms indicates a willingness on your part to ignore the laws of our land. You were operating outside the norms of our society.
[52] Given that I have already made what I assess to be deductions for totality on the three individual groups of charges which approached the generous, I do not think any significant further deduction for totality is required. However, recognising the principle I make a further deduction of three months so that the end starting point is three years and nine months’ imprisonment.
Personal factors
[53] I now turn to mitigating factors relating to you personally. You will of course at the end of this exercise get a discount for the guilty plea, which Ms Dore submits should not be more than 20 per cent, and Ms Pecotic does not quarrel with that. So it will be 20 per cent.
[54] The first personal mitigating factor in addition to the guilty plea is the fact that you have spent three months on a 24 hours curfew, followed by electronic bail with a 12 hour curfew for nine months, and then a 10 hour electronic bail curfew for a further five months. I put to one side the time you spent on remand in prison of six and a half months because if the end sentence is a sentence of imprisonment you will get a credit for that. You have therefore spent 17 months on curfew. I note that you did not breach your bail through that period.
[55] In the case of sentencing Messrs Lum and Ngawati, Woodhouse J was prepared to make a very significant discount under this heading, but his consideration included the fact that both those defendants were facing a sentence of home detention and therefore were entitled to a credit for the time they had spent in custody. They were entitled to a deduction then for the four months and five months respectively that they each spent in custody. That situation will not arise here if you are sentenced to imprisonment. You are in a different situation.
[56] Ms Pecotic suggested a discount of four months. In the end I am prepared to give you some credit for the time you spent on restrictive bail terms and I fix that as a three month deduction.
[57] I turn now to the related issues of character, remorse and rehabilitation. I have before me a number of testimonials. It is clear that you are respected and well liked in many parts of our community. I was particularly impressed by the testimonial from Lisa Flower as to the personal good deeds you have rendered to her and her family. Defendants are entitled to a credit for good character.
[58] I have also noted what you have said in your affidavit about your attempts to rehabilitate yourself and your remorse. You show a real wish to turn your life
around. You are clearly capable of leading a useful and successful life in our community.
[59] However, I have to balance this against your record. While the record is not that of a hardened criminal, it remains a bad record. You have been convicted of 15 different charges since 1996; although not of the most serious type, they are serious enough. They include cultivating cannabis, for which you were sentenced to imprisonment; receiving property, for which you received a concurrent prison sentence; possession of cannabis for supply; theft of an animal; receiving property; and there have indeed been two separate occasions of unlawful possession of a firearm, one in 2009 and one in 2011. These were not taken lightly by the Court. On the initial 2009 offending, in respect of which there were two separate charges, you were sentenced to 175 hours community work, and in relation to the second conviction in 2011 you were sentenced to 40 hours community work.
[60] The fact is Mr Alcock, you have been given a number of shocks through the criminal processes and you have not learned your lesson. You are not of course to be sentenced again for that earlier offending. The significant factor about it is that you continue to carry out these lawless activities despite going through sentencing processes just like this. In this regard I note the comment of the probation officer in the pre-sentence report to the Court where it is observed:
While Mr Alcock’s conviction history to date has been moderate, the serious nature of his current offending and past drug and firearms offences indicate he has not made the required changes to remain offence free. A long term of imprisonment is recommended to hold him accountable to act as a deterrent to others.
[61] I do not place any particular weight on the last sentence, as it is for me to determine the appropriate penalty. But I must say I do agree with the comment that you have not, despite having had previous opportunities to do so, made the required changes.
[62] If you did not have the factors that I have been referred to of remorse and good character, I would have been inclined to have uplifted your sentence for your bad past record. I do not propose doing that, but I am afraid to say that I have
reached the view that despite the fact that you clearly are capable of having a good future, and my wish that you will have that good future, there cannot be a discount for character or remorse.
[63] So could you stand up please Mr Alcock.
Result
[64] I have said to you that the starting point I have fixed, taking into account totality, is three years and nine months’ imprisonment. I have stated that I will deduct three months from that sentence to take into account the time you have spent on restrictive bail, which means that the end sentence is reduced to three years and six months’ imprisonment. From that I will deduct 20 per cent for the guilty plea that you have entered. When I deduct 20 per cent from three years and six months’ imprisonment, or 42 months’ imprisonment, the end sentence is two years and
10 months’ imprisonment on a rounded basis.
[65] So that is the end sentence that I am going to impose on you. The way I
impose it is as follows:
· On count 3 – you are sentenced to two years and nine months’
imprisonment.
· On count 4 – you are sentenced to six months’ imprisonment, that to
be concurrent.
·On count 5 – you are sentenced to 15 months’ imprisonment, that sentence being concurrent.
· On count 7 – you are sentenced to three months’ imprisonment, that
sentence being concurrent.
· On count 8 – you are sentenced to six months’ imprisonment, that
sentence being concurrent.
·On count 9 – you are sentenced to one month imprisonment, that sentence being cumulative.
On count 10 – you are sentenced to nine months’ imprisonment, that
sentence being concurrent.
[66] So in the end the two operating sentences are the two years and nine months’
imprisonment on count 3, and the one month imprisonment on count 9.
[67] Mr Alcock, a concluding word – this sentence will be a disappointment to you. Your counsel has said everything possible to support a submission that you should get home detention. I have not considered that to be the appropriate sentence. However, I do recognise that you have the prospects of an excellent future and I very much hope you never appear in Court again.
[68] Please stand down.
……………………………..
Asher J