R v Black

[2012] NZHC 2902

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-009-008952 [2012] NZHC 2902

REGINA

v

ALEXANDER ROBERT BLACK

Counsel:         B Hawes and N Robson for Crown

AND Garrett for Prisoner

Judgment:      1 November 2012

SENTENCING REMARKS OF WHATA J

[1]      Mr Black, you have pleaded guilty to the following charges:

(a)       Conspiracy to manufacture a Class A controlled drug; and

(b)      Conspiracy to supply a Class A controlled drug.

[2]      The maximum penalty on each charge is 14 years imprisonment.

Facts

[3]      Mr Black, you were engaged in a conspiracy to supply and manufacture methamphetamine with several other persons, including Mr Newton, Mr Box and Mr Manuel (on the supply side), and Mr Newton, Mr McKenzie and Mr Situ (on the manufacture side).   In terms of the police summaries, to which you have pleaded guilty, Mr Newton is a central figure in those conspiracies.   Mr Newton obtained

funds  from  Mr  McKenzie  in  early  2010  for  the  purpose  of  methamphetamine

R V BLACK HC CHCH CRI 2010-009-008952 [1 November 2012]

production and sale.  Mr Newton would then source pseudoephedrine-based products and equipment, for example, from Mr Situ.   Pseudoephedrine was extracted from these products by you, Mr Linton and Mr Box although you are not facing charges in relation to that aspect.  Mr Newton and Mr Box took the precursor substances to the cooks, including Mr Miles and Mr Lee.  Mr Smith and Mr Harris were also cooks. Methamphetamine was then manufactured by them, uplifted by Messrs Newton and Box and sold through a distribution network comprising you, Messrs Manuel, Linton and Box.  You would receive orders via cell phone, deliver the product and uplift the cash.  I also accept the Crown’s view that you assisted Mr Newton on a regular basis, and there are intercepted communications which show that you sold some methamphetamine to third persons.  Overall, however, you were under the control of Mr Newton and virtually his employee.

[4]      As a result of the police investigation into these activities, five clandestine laboratories were located.  A total of 109 gms of methamphetamine was found at four addresses, at a street value of over $100,000.   Various types of substances containing pseudoephedrine were also located at four addresses, at a street value of over $100,000.  Various types of substances containing pseudoephedrine were also located at four addresses, capable of producing methamphetamine worth between

$216,000 and $306,000.  Cash worth $134,855 was also found.

Personal circumstances

[5]      You are 29 years old and married with two sons.  You have worked a number of jobs, including as a labourer and as a DJ, and you are currently employed as a labourer for a fertiliser company.  You separated from your wife for a period due to her methamphetamine addiction but you have since reconciled.  It was through her contacts that you became involved in the drug scene and became addicted yourself.

[6]      The pre-sentencing report describes  your disruptive upbringing, including separation from your mother and father at various points.  The report records that you are now drug-free and that your employer describes you as a delightful person and valued employee.  This is your first drug-related offence.  In terms of the current offending, you stressed that your “minimal” involvement was purely as a source to

supply your own methamphetamine addiction, and that you took no part in the actual manufacture of the drugs.  You have expressed remorse for your offending and that you are disgusted with the way it has impacted on your two young sons.

[7]      The report concludes that your risk of further offending is low, as evidenced by your limited criminal history and no prior drug-related offending.  You presented as having a high level of motivation to manage the issues linked with your offending. You are also assessed as having a high level of motivation to change.   However, imprisonment is recommended.  I also note that you have positively re-engaged with your family, evidenced by your wife’s letter of support and the letter from Highfield School.

Crown submissions

[8]      The  Crown  submits  that  given  the  scale  of  your  involvement  in  the conspiracy, under the beck and call of Mr Newton 24 hours a day, a starting point in the vicinity of seven years imprisonment is appropriate.  The Crown however says that a credit of 15% to reflect your guilty plea is appropriate.

Defence submissions

[9]      Your counsel submits that your offending falls within Band 2 of Fatu.[1]   You are described as a general gofer but without any managerial role or authority.  While the Crown’s position is that the conspiracy was of a commercial nature, there was no financial profit directly to you from this.  Counsel thus suggest a starting point in the range of five to six years imprisonment.

Assessment

[1] R v Fatu [2006] 2 NZLR 72 (CA).

[10]     I turn to my assessment.   I must of course be guided by the purposes and principles of the Sentencing Act 2002.  Particularly relevant to you Mr Black, and

the alleged offending, is the need for accountability, denunciation and deterrence while also taking into account the importance of your rehabilitation.

[11]     I am assisted by the guideline judgment in R v Fatu and the bands stated there in relation to the sale or supply of methamphetamine and in relation to the manufacture of methamphetamine.  I also adopt the guidance in R v Te Rure,[2] noting that conspiracy involves lesser criminality than supply and manufacture.

[2] R v Te Rure [2008] 3 NZLR 627 (CA).

[12]     As both the Crown and your defence counsel place your involvement at Band

2, and having regard to your active role in both conspiracies, a starting point in the range of six to nine years would appear to accord with the guideline judgment and other authorities.  However, having also had the benefit of viewing all the evidence at the substantive trial, I do not think it is appropriate to describe you as anything more than an employee or a workman performing relatively menial tasks on behalf of Mr Newton.  When I look at the roles played by others, I consider that you had a greater  role  than  Mr Situ  in  the  general  day-to-day  handling  of  matters  but  a materially lesser role than Mr Linton.  I have separately described their activities in their respective sentencing notes.   On that basis,  I consider that  your  counsel’s suggestion of a starting point of five to six years to be appropriate and I consider that overall five years better reflects the nature of your offending, both in relation to the conspiracy   to   manufacture   and   in   relation   to   the   conspiracy   to   supply (acknowledging that the latter might normally attract a slightly lesser starting point).

[13]     In   terms   of   mitigating   factors,   I   take   into   account   your   personal circumstances and the assessment in the probation report that you present a low risk of re-offending.   This is particularly relevant to my assessment of your ability to rehabilitate.  I also take into account your remorse and the efforts that you have taken to turn your life around and your apparently high motivation to change.  The latter is also particularly important in terms of my assessment of your own understanding of your accountability to those around you.  For those factors, I am prepared to allow a discount of 10%.  In terms of your guilty plea, I consider that a 15% discount is also appropriate.  While it was relatively late, that can be partially explained by the way

the proceedings have been conducted and the need for clarity in relation to some pre- trial challenges.

[14]     Accordingly, Mr Black, you are sentenced as follows:

(a)       On  the  count  of  conspiring  to  manufacture  methamphetamine  I

sentence you to three years nine months imprisonment.

(b)On the count of conspiracy to supply methamphetamine I sentence you also to three years nine months imprisonment.

[15]     Both sentences are to be served concurrently. [16]      Mr Black please stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

AND Garrett , Christchurch, for Prisoner