R v Boyden HC Rotorua CRI 2009-063-5871
[2010] NZHC 2204
•8 December 2010
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2009-063-5871
THE QUEEN
v
DEANE GERARD BOYDEN
Hearing: 8 December 2010
Appearances: Ms A Gordon for Crown
Mr M Edgar for Prisoner
Sentence: 8 December 2010
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Rotorua
Mr M A Edgar, Auckland
R V BOYDEN HC ROT CRI-2009-063-5871 8 December 2010
[1] Mr Boyden, you appear for sentence today having pleaded guilty in this Court to two charges of manufacturing methamphetamine. Those charges arise out of events that occurred between 9 and 18 October 2009. You also pleaded guilty in the District Court to another charge of manufacturing methamphetamine. This arises out of events that occurred in April 2006. In the District Court you also pleaded guilty to other charges of being in possession of precursor substances, material and equipment capable of being used for the manufacture of methamphetamine. These charges also arose out of the events that occurred in April 2006.
[2] The charges of manufacturing methamphetamine are obviously the most serious because they carry a maximum sentence of life imprisonment. The other charges carry maximum sentences of five years imprisonment.
Facts
[3] I deal first with the 2006 charges because they, of course, are first in time. These charges arose out of a search by the police of premises in which you were living on a casual basis in Mt Maunganui at that time. When the police searched the address, they found all the trappings of a clandestine methamphetamine laboratory. This included equipment, chemicals and all of the other things that would normally be found in an area where methamphetamine is being manufactured. Your fingerprints were found on several items at the address, including glassware that had clearly been used for the manufacture of methamphetamine. A carry bag was found in the master bedroom of the address containing items such as rubber gloves and balloons similar to a type that had been attached to glass tubing to prevent fumes being released into the atmosphere.
[4] For some unknown reason the police did not lay charges against you immediately. This may be because you were living an itinerant lifestyle at that time, and they may not have been able to find you. You were not ultimately charged with the 2006 offending until June 2010.
[5] The charges that relate to the offending in October 2009 flow from a police investigation named Operation Atlas. That operation targeted persons other than
you. As is not unusual in these cases, you were caught in the net of cellphone text traffic. It became clear from this that you were accepting instructions by an organiser of a drug manufacturing network. He would let you know when he had assembled the necessary premises, equipment and precursor materials to manufacture methamphetamine. You would then travel to the Bay of Plenty and would carry out the manufacturing process for him. The text traffic that the police intercepted between 9 and 11 October 2009 makes it clear, as you recognise by your plea, that you manufactured methamphetamine during that period.
[6] The second charge arises from the events that occurred at the termination of the operation. In the early hours of 18 October 2009 the police surrounded premises in Rotorua where you were involved in the manufacture of methamphetamine. When they made a voice appeal to the occupants of the premises to come out, they could hear scurrying around inside the premises as equipment and drug-related paraphernalia were moved. Eventually, however, you emerged from the premises. You were then arrested and charged with the manufacture of methamphetamine. When the police examined the interior of the premises they again found all the trappings of a reasonably sophisticated clandestine methamphetamine laboratory.
Sentencing Act 2002
[7] In sentencing you, I need to take into account the principles and purposes referred to in the Sentencing Act 2002. Foremost in any case involving the manufacture of methamphetamine is the need to deter both the offender and others from becoming involved in similar activities in the future. Denunciation is also a key element because, as you well know, methamphetamine is now a scourge in our society. The only way in which the courts can contribute to the control of the endemic that is now methamphetamine is by imposing stern sentences when offenders are caught. Those who engage in the manufacture of methamphetamine must understand that, if they are caught, they will receive a lengthy sentence of imprisonment.
[8] The real issue in any case involving this type of offending is to select a sentence that is appropriate given the overall circumstances of the case. Consistency
is obviously important, because the integrity of the criminal justice system depends on people receiving sentences that are not seen as being out of line with those imposed in broadly similar cases. It is impossible, however, to compare other cases accurately because the circumstances of no two cases are ever exactly the same.
The approach to be adopted
[9] In sentencing you, I propose to adopt a lead sentence in respect of the 2009 manufacturing charges. That sentence will reflect the totality of the 2009 offending and also the 2006 offending. Another approach would be to impose a cumulative sentence in respect of the 2006 charges. In the interests of simplicity, it is better to adopt the approach that I have outlined. The end result, however, is the same whatever approach is adopted.
[10] Issues of totality arise, and the Court must ensure that the ultimate sentence that it imposes is appropriate having regard to the totality of the offending and your personal circumstances.
Starting point
[11] Counsel agree that the guiding authority in terms of selecting a starting point is the well-known decision of the Court of Appeal in R v Fatu [2006] 2 NZLR 72. In cases involving the manufacture of methamphetamine, the starting point will be between four and 11 years imprisonment in respect of the manufacture of up to 250 grams of methamphetamine.
[12] As the Court of Appeal noted at [42], people who set up clandestine methamphetamine laboratories undertake a project that involves the investment of considerable time, expertise and expense. For that reason, and as the circumstances of the present case demonstrate, there is virtually always a degree of commerciality involved in the manufacture of methamphetamine. People do not go to that type of trouble and expense unless they are satisfied that there is a commercial reward to be gained out of it.
[13] The difficulty in your case, as is so often the case when the manufacture of methamphetamine is involved, is to assess the gravity of the offending. In cases involving supply, that is made very much easier because persons are often found in possession of discrete amounts of the drug and it is therefore easier to identify the gravity of offending in those cases. Where, as here, there is no accurate means of measuring the amount of methamphetamine that is manufactured, the Court must adopt a cautious approach.
[14] For that reason the Crown accepts that a starting point towards the bottom end of the band identified in R v Fatu is appropriate in your case. That would be a sentence of four years imprisonment. There must, however, be a degree of uplift to recognise the fact that you were involved in not just one, but on two, incidents involving the manufacture of methamphetamine. I consider that the minimum uplift that can be applied is one of six months and I therefore adopt that. The end starting point for the 2009 offending is, therefore, a sentence of four and a half years imprisonment.
[15] I now need to factor in the 2006 offending. On its own it would attract a sentence of around four years imprisonment, even taking the bottom end of the lowest band identified in Fatu. Having regards to the interests of totality, I propose to increase the starting point by one and a half years to reflect that offending. This means that the end starting point in respect of both sets of offending is one of six years imprisonment.
[16] I do not propose to add any uplift in relation to the other charges relating to the 2006 offending, because they are part and parcel of the criminality inherent in the charge of manufacturing methamphetamine. I will therefore impose concurrent sentences on those charges.
Aggravating factors
[17] I now need to consider whether the starting point that I have identified should be increased to reflect aggravating factors that are personal to you.
[18] There is one factor in your case that must be given attention. This is the fact that you have been involved on several occasions in the past with drug-related offending, and with methamphetamine at that. The most significant offending of this type occurred in 1999. You stood trial in or about November 2001 on charges of manufacturing methamphetamine and conspiring to supply methamphetamine. You were acquitted on the charge of manufacturing methamphetamine, but convicted on the charge of conspiring to supply that drug. On that occasion you received a sentence of four years imprisonment. This means that it was reasonably serious offending. Thereafter, in 2006, you were again involved in methamphetamine- related offending.
[19] That stands against a background of other drug offending including conspiring to deal in Class A and Class B drugs in 1996, for which you received a sentence of two years imprisonment in October 1997.
[20] All of this means, Mr Boyden, that you are to be treated by the courts as a recidivist drug offender who has not learned from past experience that involvement in drugs does not pay. I accept that you have made efforts in the past to rehabilitate yourself. You attended the Higher Ground programme, and you say that you then remained drug-free for a period of three years after you completed the sentence that was imposed on you in 2001. You say that relationship difficulties and stress associated with that drove you back to methamphetamine use.
[21] The Court must view continued drug offending as made worse by the fact that you have previous convictions for similar offending. This is not to punish you twice for your earlier offending. Rather, it means that the current offending is made that much more serious by virtue of the fact that you understand the consequences of being caught in drug-related activities, and yet you have made a conscious decision to become involved in them again.
[22] I take into account the fact that you have a severe addiction to methamphetamine. I also take into account the fact that you are likely to have offended in relation to the current charges by the need to obtain methamphetamine for your own consumption, rather than for material gain. It seems that you have
nothing to show for the fact that you have been involved on several occasions in manufacturing methamphetamine.
[23] These factors operate to reduce the uplift that I propose to apply in relation to your earlier offending. It could easily attract an uplift of one year to 18 months imprisonment. I propose to apply an uplift of nine months imprisonment to recognise that fact.
[24] This means that I am left with an end sentence of six years nine months imprisonment before taking into account mitigating factors that are personal to you.
Mitigating factors
[25] You appear for sentence at the age of 43 years. It is clear from the material that has been provided to me that you have redeeming qualities. You have held down responsible jobs in the past. You are also clearly a good father and a person who displays admirable personal qualities to his family.
[26] You have young children now, for whom you obviously care a great deal. Unfortunately, the lifestyle that you have chosen means that you have been separated from them since your arrest in 2009 and you will remain separated from them for some time in the future.
[27] You express remorse and say that you are determined to rehabilitate yourself and rid yourself of your addiction to methamphetamine. You have already made overtures to institutions who may be able to assist you to do that upon your release.
[28] That is all very well, Mr Boyden, but you must understand that your history does not help you here. You have undertaken this type of endeavour before without success. I have no doubt that you have also given similar assurances to sentencing Judges in the past. I propose to take that into account so far as I can, but I am limited regarding the extent to which I can recognise it in your case.
[29] The obvious factor for which I can provide you with a discount is that relating to your guilty pleas. The Crown accepts that you entered these at the earliest
opportunity in relation to the 2009 offending once your counsel understood the case against you. You also entered it relatively early in relation to the 2006 offending.
[30] The approach that the Court must give to guilty pleas is now governed by the recent decision of the Supreme Court in R v Hessell [2010] NZSC 135. Previously the Court applied an arithmetical formula depending on the date upon which the guilty plea was entered. The Supreme Court has made it clear that that is not an appropriate approach. Although the Supreme Court recognised that an early guilty plea should be given greater recognition than a late guilty plea, it said that the timing of a guilty plea is just one factor to be taken into account when considering the issue of the discount to be given for a guilty plea. The Court is required to take all relevant factors into account, including the strength of the prosecution case.
[31] It has to be said that the Crown case against you relation to the 2006 offending was strong, given the existence of your fingerprints on various items and the presence of your carrier bag in the bedroom where drug-related paraphernalia was found.
[32] You were also effectively caught red-handed in relation to the 2009 offending. I do not know how you could have successfully defended those charges given the nature of the Crown case against you. As I have said, the Supreme Court has now declared that the strength of the Crown case is a factor that sentencing judges should take into account when assessing the discount to be given for a guilty plea.
[33] The Crown takes the view that a discount of 25 per cent is appropriate. The Supreme Court made it clear in Hessell that that is the maximum that could be given for a guilty plea. In your case that would not realistically be available in relation to the guilty pleas alone because of the strength of the prosecution case. I propose, however, to allow you that discount, but I make it clear that it applies also in relation to the remorse that you now express and your expressed desire to rehabilitate yourself from the devastating effects of methamphetamine.
Sentence
[34] On each of the charges of manufacturing methamphetamine you are sentenced to five years imprisonment.
[35] On each of the remaining charges you are sentenced to one year’s imprisonment.
[36] All sentences are to be served concurrently.
Minimum term of imprisonment
[37] Mr Boyden, you also need to be aware that when a Court passes a sentence of this type, it has the power to impose a minimum term of imprisonment. This means that it can specify the term of imprisonment that you must serve before being able to apply for parole.
[38] The Crown has not sought that in this case. You need to be aware that any continued offending of this type is likely to bring those provisions into play. The Court has got the power to order an offender to serve up to two-thirds of his or her sentence before being eligible to apply for parole. I suspect that if you offend again in a similar way in the future, the Crown will have no hesitation in seeking a minimum term of imprisonment.
[39] Stand down.
Lang J
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