R v Bate

[2014] NZHC 237

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000225 [2014] NZHC 237

THE QUEEN

v

NICHOLAS STUART BATE

Charge:  Permitting premises to be used for the manufacture of methamphetamine

Plea: Appearances:

Guilty

D Robinson for Crown

H Leabourn for Prisoner

Sentenced:               21 February 2014

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

H Leabourn, Auckland

R v BATE [2014] NZHC 237 [21 February 2014]

[1]      Nicholas Stuart Bate, having pleaded guilty to one charge of permitting your premises to be used for the manufacture of methamphetamine you are for sentence this morning.

[2]      Between 29 November 2011 and 1 December 2011 a number of offenders were in possession of a factory at Culperry Road, Glendene, Auckland.  That factory was tenanted by you and at the time you lived there with your partner.  At the time your partner was recently pregnant.   You were under financial pressure and you agreed to allow the defendants, one in particular you knew, Mr Kevin Fisiihoi and his associates to manufacture methamphetamine in exchange for the payment of some money.  The agreement was that you would be paid $500 up front and a further

$4,500 after the manufacture was complete.  On the evening of 29 November 2011 the other defendants took possession of the property and you left.

[3]      During the course of their manufacturing operations there was an explosion at the address on 1 December 2011.  As a result of the explosion one of the defendants was seriously burnt and ultimately required admission to Middlemore Hospital.  The police and fire service attended the scene. Two days after the incident you received a text message saying you were to receive $5,000 and would be paid a further $10,000 the following Thursday.  At the earlier hearing Mr Leabourn’s instructions were that those moneys were never paid.   Given the sequence of events I have outlined I accept that as likely to be correct.

[4]      In your case the Crown submit a starting point for sentence of between two and two and a half years is appropriate but that you were entitled to a discount for a guilty plea.   The Crown acknowledges that in the circumstances the Court could consider home detention as an appropriate sentence.   Mr Leabourn at the earlier hearing argued strenuously for such a sentence, which I indicated might be appropriate if you received a positive pre-sentence report.

[5]      However,  in  sentencing  you  the  first  stage  for  the  Court  is  to  fix  an appropriate starting point that reflects the purposes and principles of the Sentencing Act and your culpability in this particular case.   The sentence the Court imposes must hold you responsible for your offending and address your culpability.  It is also

directed at ensuring that you acknowledge your responsibility and to address the issue of drug offending in this community.  Obviously people who make premises available to others to manufacture methamphetamine enable the drug to be produced and distributed through our society.

[6]      There are three cases in particular that have some relevance to the appropriate start point.  In R v Homburg1 Stevens J took the charge of permitting premises as a lead offence and applied a starting point of two years’ imprisonment.  In R v Langi2

Winkelmann J took a starting point of two years’ imprisonment and in R v Kennedy3

Clifford J also took a starting point of two years’ imprisonment.  I have considered all those cases but I consider your circumstances in the present case to be more serious than those cases.  In none of them was a suggestion that the defendant was to receive a payment of the nature that you were to receive in this case.  In R v Langi for instance the defendant was described as being wilfully blind to the fact he was allowing the family home to be used in that way.  In R v Kennedy Clifford J observed that this sort of offending often arises because the offender is under the influence of the principal offender.  In this case, however, as I have said earlier, you went into the agreement and arrangement with full knowledge that your premises were going to be used for the manufacture of methamphetamine.  You went ahead on the basis you had made a commercial arrangement to receive some money in exchange for making your property available.  In the circumstances the starting point for you is two years, six months’ imprisonment.

[7]      I  then  turn  to  whether  there  are  personal  aggravating  or  mitigating circumstances that affect that starting point.   You have a number of previous convictions but none as serious as the offending that you have in 2011 allowed yourself to become involved in.  Although the offending occurred while you were subject to a sentence of supervision I do not for present purposes propose to uplift the start point for that.

[8]      I then  turn  to  personal  mitigating  circumstances.    I  accept  that  the  pre- sentence report which is now before the Court is generally positive.  While you have

1      R v Homburg HC Auckland CRI-2007-092-006572, 22 April 2009.

2      R v Langi HC Auckland RI-2006-092-009147, 4 November 2009.

3      R v Kennedy HC Palmerston North CRI-2007-054-003776, 29 August 2008.

been unemployed since your offending you have changed your living arrangements and ceased your association with the people who got you into this situation in the first place.

[9]      The probation officer considers that at the time of the offending you were overwhelmed by the financial burden of responsibility you were facing and saw the offer of money for the use of your factory as an easy answer to your financial difficulties.   The probation officer notes that you had successfully completed community work and intensive supervision sentences and while you scored in a moderate risk range for cannabis, alcohol, amphetamine and tobacco, your highest risk was in relation to cannabis.  Importantly, however, the probation officer records that to your credit you have made a number of changes to your substance use since this offending and you presented as strongly motivated in part by your new responsibilities as a father to your young son.  You also severed contact with your previous associates.   As a result you were assessed as a low to medium risk of reoffending.

[10]     The probation officer was also satisfied that you had expressed remorse for the offending, acknowledging it was the biggest mistake of your life.

[11]     As discussed with counsel there are aspects of the report which suggest you sought to minimise your responsibility but Mr Leabourn has confirmed your instructions are you accept the summary and accept your role in this matter.

[12]     Importantly during the period that you have been facing these charges you have completed the intensive supervision and have also completed an alcohol and drug offending course.  For those positive features I give you a credit of two months. From the resultant sentence I apply a reduction for guilty plea of 25 per cent which leaves a sentence of 21 months’ imprisonment.

[13]     As I indicated previously at the sentence indication hearing in the case of a positive  pre-sentence  report  the  Court  would  be  prepared  to  consider  home detention.  I consider, given the positive features in the report, the length of time that

has passed since your offending in late 2011, and the positive steps you have taken to turn your life around since then that home detention is appropriate.

[14]     There are three features in particular that the Court relies on Mr Bates.  They are the  acknowledged  change in  your  attitude,  in  part  at  least  because of  your situation as a father now and your understanding of the importance of your role as a father;  secondly, that you have taken positive steps to remove yourself from your previous associates who are involved in drugs;  and finally, you have taken positive steps yourself to address your own reliance on drugs.

[15]     In the circumstances I accept that home detention is the appropriate sentence.

[16]     Mr Bate, would you please stand.  On the charge of allowing your premises for the purpose of being used for the manufacture of methamphetamine you are sentenced  to  10  months  home  detention.    I  am  advised  by  counsel  that  the appropriate documentation has been completed in the District Court and on that basis I also remit your outstanding fines.

[17]     Mr Bate, you have been before the Court on this charge for some time. Today is the day that a line gets drawn under that and you have an opportunity to start your life afresh once you have completed this sentence.

[18]     You should be under no illusion that the only way you will be able to remain in the community and play a positive role as a father for your son is if you cease your own use and dependence on drugs and you remain away from people who use drugs.  If you allow yourself to fall back into that association again you will be back before the Court and you will not receive a sentence such as has been imposed this morning.

[19]     Mr Bate, to give effect to the sentence of home detention I direct:

(a)       You are to serve the sentence of home detention at 5a Union Street, Waihi.

(b)You are to travel there today and are to be at that address by 3.00 pm this afternoon to await the arrival of the probation officer and monitoring company.

(c)      You  are  to  comply  with  the  requirements  of  the  electronically monitored sentence as directed by your probation officer.

(d)You are to abstain from possession and consumption of alcohol and illicit drugs for the duration of the sentence.

(e)      You are to undertake any programme that may be directed by your probation officer

(f)      You are not to associate with any of your previous associates or co- accused.

[20]     Mr Bate you may stand.

Venning J