R v Butterworth HC Auckland CRI-2005-090-07212

[2007] NZHC 1832

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-090-07212

THE QUEEN

v

LISA BUTTERWORTH

Hearing:         12 June 2007

Appearances: L Hamilton for the Crown

S Cullen for the Prisoner

Judgment:      12 June 2007

SENTENCING NOTES OF CLIFFORD J

[1]      Ms Butterworth, you appear for sentence having pleaded guilty to:

a)       Two counts of the manufacture of methamphetamine, the maximum sentence for each such count being life imprisonment.

b)      Three counts of possession of equipment for the manufacture of methamphetamine, the maximum sentence each such count being five years imprisonment.

c)      And three counts of possession of precursor substances for the manufacture of methamphetamine, the maximum sentence for each such count being five years imprisonment.

R V BUTTERWORTH HC AK CRI-2005-090-07212  12 June 2007

d)Finally,  two  counts  of  possession  of  material  pursuant  for  the manufacture of methamphetamine, the maximum sentence again for each such count being five years imprisonment.

[2]      The charges arise from three separate police searches carried out at different addresses:

a)       A  search  on  20  September  2005  at  12  Brigham  Creek  Road, Whenuapai.

b)       A search on 3 April 2006 at 24B Crawford Avenue, Mangere.

c)       And  a  search  on  –  21  April  2006  at  Unit  194/7  Tony  Street, Henderson.

[3]      The Whenuapai search involved an address at which you lived and you were present at the address at the time the search warrant was executed.

[4]      Chemicals and equipment required to extract pseudoephedrine were present, and pseudoephedrine had been extracted.  Swabs from the walls tested positive for methamphetamine all pointing to the use at the premises.

[5]      Found  at  the  address were 445  grams of pseudoephedrine,  2.8  grams  of methamphetamine plus a number of point bags with small quantities of methamphetamine in them. The Crown submits, based on a standard yield of conversion of pseudoephedrine into methamphetamine of around 50-75%, that 445 grams of pseudoephedrine could yield 220 – 335 grams of methamphetamine.   I note, however, the caution expressed by the Court of Appeal in Fatu in particular in terms of the significance to be given to estimated yields in sentences for manufacturing.

[6]      Also found were $20,100 approximately in $100 denominations located in a safe and another $5,000 cash lying on your bed.

[7]      The Mangere search, of premises belonging to the mother of your boyfriend at the time, Dean Darren Longair, revealed at least three separate methamphetamine manufacturing laboratories, and extensive equipment, solvents and chemicals used for the manufacture of methamphetamine.

[8]      At the rear of the property an underground bunker approximately five metres by five metres was located containing further solvents and chemicals, used for the manufacture of this drug methamphetamine.

[9]      Your fingerprints were found on a number of items.

[10]   A pharmaceutical preparation containing 1.2 grams of pseudoephedrine hydrochloride was located.

[11]     The Henderson search involved a unit at the National Mini Storage Units rented  by  you.     An  amount  of  laboratory  equipment,  as  used  in  clandestine laboratory operations, and a container of hydrochloric acid was found inside the storage unit.

[12]   The Mangere search uncovered a very substantial methamphetamine manufacturing operation, one of undoubted and significant commerciality, although there  is  here  little  direct  evidence  of  quantities  actually  produced.    Similarly, although the earlier Whenuapai search involved only one laboratory operation, the evidence of chemicals involved and cash found again supports a very clear finding of a commercial manufacturing operation, albeit on a lesser scale than that uncovered at Mangere.

[13]     By your plea of guilty you  have acknowledged  your  involvement  in and responsibility for these offences.  It has been submitted extensively by your counsel Mr Cullen that yours was a lesser involvement than that of Mr Longair and also than that of the other man who may have been involved in the Whenuapai events.  Whilst the Crown acknowledges that it is open to the Court to draw the inference – particularly as regards the second offending – that yours was a lesser role, the Crown

is not prepared to concede as it were how much lesser it was and in any event says your involvement was significant.  I’ll return to those matters later in this sentencing.

Sentencing exercise

[14]     Now, in sentencing you I am required to first fix what is known as a starting point for your sentence.  That is a sentence that takes account of what you did, that is the seriousness of your offending.  I am then required to consider matters relating to you personally that might justify a longer or a shorter sentence than that represented by the starting point I identified. These are known as aggravating and mitigating factors.

[15]     In  sentencing  you,  I  will  refer  to  your  pre-sentence  report,  and  to  the submissions made by the Crown and by counsel on your behalf.

Pre-sentence report

[16]     Your pre-sentence report records that you had a good upbringing and are supported by your parents, with whom you have “strong positive relationships”, and you can be thankful for that in all the circumstances. You kept yourself employed over the years with a variety of jobs, often involving horses or hospitality.  You also worked for two years with the ASB and by your own account you were a stunt double for awhile.  You refute the implication from the summary of facts that you were ever a sex worker.

[17]     The report writer records that based on his inquiries with family, employers and others, you are, and I quote, “universally regarded in strongly positive terms”. He records that you take full responsibility for your offending.

[18]     The report writer considers your involvement with drugs flows from two relationships with drug-abusing men (the latter of whom, Mr Longair, was your co- offender and who recently committed suicide) and that this was, and again I quote,

an “aberrant exception to your normally active and positive lifestyle”.   The report states that you have insight into your offending now and are remorseful.

[19]     The report concludes that you are seen as a low-risk of re-offending, are not in need of any therapeutic intervention and are not a danger to society.

[20]     Overall, in the circumstances the probation report is a very positive one, whilst recognising nevertheless the seriousness of the offences for which you are to be sentenced today.

[21]     You  have  appeared  twice  before  the  District  Court  for  relatively  minor offences in the past which I do not regard as relevant for these purposes.

Crown Submissions

[22]   Turning now to the Crown submissions, the Crown takes the second manufacturing count, that is based on the Mangere search, as the lead charge and submits that an appropriate starting point is six to eight years.  The Crown submits that, although the amount of methamphetamine actually found was small, the scale of the operation was large, warranting an appropriately high starting point.

[23]     The Crown submits that a further 1 – 2 years should be added for the charges arising from the Henderson search, plus another three years for the charges for the Whenuapai search, giving an overall starting point of 10 – 13 years.

[24]     The Crown submits that an aggravating feature is the fact that you were on bail from the time of your arrest in relation to the Whenuapai search and acknowledges that you are entitled to a discount for your guilty plea and for your willingness to give evidence against your co-accused and suggest that an appropriate reduction to reflect both matters is a discount of around 40%.  That would result in a final sentence of 6 – 8 years.

[25]     The  Crown  also  submits  that  the  Court  should,  in  these  circumstances, impose a minimum period of non-parole greater than the one third provided by the Parole Act.

Submissions for the Prisoner

[26]     On your behalf, Mr Cullen accepts a starting point for the Mangere offending in itself of 6 – 8 years but submits that this should be tempered in recognition of the relationship between you and Mr Longair that he says was behind this offending, and the relationship with the other man, and also the significantly lesser role played by you in the offending.   He further submits that the Henderson offending should be viewed as part of the Mangere offending, rather than being in addition to it, and I’ve indicated to him that I accept that submission.

[27]     Taking into account the factors listed above, counsel submits that a more appropriate starting point for you in relation to Mangere and Henderson is 5 – 7 years.   He acknowledges that an increase is warranted with respect to the earlier offending resulting in a starting point of 8 – 9 years.

[28]     Now, emphasising your lesser role and with reference to the discount, he asks for a sentence in the vicinity of 5 – 6 years.

Discussion

[29]     The first matter I must decide today is what is the appropriate starting point for the offending disclosed as a result of the Mangere search, which I agree, as submitted  by  the  Crown  and  your  counsel,  should  be  the  lead  offence.    With reference to the authorities referred to by both the Crown and your counsel, the scale of the operation here was clearly commercial in nature, and of some significance.  At the same time, and in terms of your participation, there is the question of your lesser role which, having heard submissions from both the Crown and counsel, I acknowledge as being a lesser role.

[30]     Taking those two factors into account, and recording that in my impression the Mangere operation was one of considerable commercial significance, I consider that the appropriate starting point for that offence is a term of eight years imprisonment.

[31]     I also note as I’ve said that I think the Henderson offending is part of the Mangere offending and I’ll deal with that  as part of that  and therefore not  add anything on for that part of it.

[32]     It is now necessary to have regard to the offending and the charges which reflect the outcome of the earlier Whenuapai search.   Again, this was clearly a commercial operation. At the same time, I acknowledge your lesser role.   In my view, and having regard to the individual elements of that offending and the need now to fix a starting point which takes account of that offending and the totality of the offending, I consider that a further three years should be added to the starting point, so that overall I conclude a starting point of 11 years is appropriate.

[33]     I now have to consider aggravating and mitigating factors.

[34]     Here I note immediately the aggravating factor –you were on bail at the time of the Mangere and Henderson offending.

[35]     At the same time, and importantly in this instance, I note your guilty pleas and your willingness to co-operate and provide assistance to the authorities.   Both your counsel and the Crown have agreed that a 40% discount overall takes account of both aggravating and mitigating factors and that is a submission with which I find myself in agreement.

[36]     I therefore allow you a 40% discount with the result that I sentence you to six and a half years imprisonment on the charge of manufacturing methamphetamine arising as a result of the Mangere search, and five years concurrently on the charge arising as a result of the Whenuapai search.

[38]     And I know these sentences sound severe, and I’ve read the letters written on your behalf, and when I come to the question of the minimum non-parole period, I am going to have regard to the very good things that have been said about you.

[39]     With  reference  to  the  Crown’s  submissions  on  the  minimum  non-parole period, I note that the purposes of a minimum non-parole period, or the factors I am to take account of, are to hold you accountable for the harm done, to denounce your conduct and to deter you and others.  And it’s often said in drug sentencing that it’s the deterrence of others that is of particular importance.

[40]     Here  however,  I  have  listened  to  what’s  been  said  on  your  behalf  and weighing that, I am satisfied that in this instance, and somewhat unusually in these circumstances, the question of your parole can be left with the Parole Board, so that I will not impose a minimum non-parole period.

[41]     On that basis, you are sentenced to six and a half years on the charge of manufacturing methamphetamine arising as a result  of the Mangere search,  five years concurrently on the charge of manufacturing as a result of the Whenuapai search, and I sentence you to a concurrent sentence of 18 months in respect of each of the other charges of possession of equipment, possession of material and possession of precursor substances.

[42]     On that basis, you may stand down.

(Speaking to Ms Butterworth’s supporters at back)

[43]     And once again I thank you all for coming today.  I recognise that what I’ve had to do today perhaps sounds harsh from your perspective, but in this area the Courts are required to impose sentences that reflect the harm methamphetamine does to society and I think Ms Butterworth probably understands that from the discussions she’s had with Mr Cullen.

“Clifford J”

Solicitors:           Crown Solicitor’s Office, Auckland for the Crown

Albion Chambers, Auckland for the Prisoner