R v C HC Auckland CRI 2004-404-3697

[2005] NZHC 45

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-404-003697

THE QUEEN

v

C

Charges:         Conspiracy to manufacture class B controlled drug methamphetamine

Plea:               Guilty

Appearances: P K Hamlin for Crown

G J Newell for Prisoner

Judgment:      15 September 2005

Three years 10 months’ imprisonment

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

G J Newell, Auckland

R V C  HC AK CRI 2004-404-003697  15 September 2005

[1]        C    , at the age of 40 you are before this Court for sentence having pleaded guilty to one count of conspiracy to manufacture a class B controlled drug methamphetamine.   The maximum penalty for the offence is 10 years’ imprisonment.

Background facts

[2]      The  summary  of  facts  records  that  between  2  November  2001  and  16

December 2002 you, with your co-offenders, conspired to manufacture methamphetamine.   At the time methamphetamine was a class B controlled drug. The police operation focused on three brothers, Ch , D and S W.  You are their cousin.

[3]      During the course of an extensive police operation a number of properties were searched and numerous telephone and text communications were intercepted. A property at Margate Road was searched in May 2002.  It is the Crown case that a large quantity of chemicals and equipment consistent with the manufacture of methamphetamine was found at that property. Your fingerprints were found on a glass lid and drawer set the Crown say were used in the manufacture.

[4]      Some six months later, on 20 November 2002 the police searched a property at Ocean View Road.   Pseudoephedrine had been extracted.   Chemicals and equipment required to convert pseudoephedrine  to methamphetamine were present at the property.  Again your fingerprints were found on glass vessels that were found inside the property.

[5]      You were also in regular contact with the W’ brothers as is evidenced by a  number  of  intercepted  telephone  conversations  and  text  messages.    Those conversations   and   messages   show   your   involvement   in   the   conspiracy   to manufacture.

Reports

[6]      The pre-sentence report indicates that you pleaded guilty prior to the third trial scheduled for this case.  That trial has now itself been abandoned and there is a prospect of further legal argument before the possibility of a fourth trial.  The pre- sentence report suggests you pleaded guilty because the process has just been too stressful for you and you are sick of it.

[7]      While you admit regular contact with the W ’ brothers and offering pre-cursors by your telephone calls you say that nothing eventuated from your offers to supply the pre-cursors.  That explanation does not suggest true remorse on your part.  It seems to be an attempt to minimise your involvement.  I note from the report that you confirm you were using methamphetamine at the time of your offending and you say that your drug dependency would have left you less able to think clearly about the consequences of your actions at the time.  I accept that no doubt in part, at least, your offending in this operation was driven by your own addition to “P”, methamphetamine.

[8]      Your health is not good.   You have been recently hospitalised in June this year for three weeks.  You are diagnosed with a collapsed lung.  It is likely that you will suffer from emphysema in the future.   You may need major surgery in the future.  You want to get on with your life.  There are drivers for change.  You are apparently motivated by the thought of your 18 year old son and the stage he is at and you want to help your girlfriend who herself has had difficulties with drugs.

Submissions

[9]      The Crown submit that a starting point for your sentence should be six years’

imprisonment having regard to the tariff levels in R v Wallace & Christie [1999] 3

NZLR 159.  That is on the basis that the operation you were involved in involved commercial manufacture on a substantial scale reflecting a reasonable degree of sophistication and organisation, that it extended over a significant period of time and

that you played an integral role in the overall operation and were involved at a reasonably high level.

[10]     The Crown say you had a variety of roles in the manufacturing enterprise and acted  as  agent  for  the  Williams’  brothers  as  an  assistant  and  as  a  supplier  of chemicals and equipment.  You also had a link with a number of other accused.

[11]     On the other hand your counsel has submitted that the starting point for you should be less than the four and a half years taken as the starting point in the case Mr Aitu, a co-accused, who pleaded guilty at an earlier date.  It was submitted that the offers that you made for the supply of pre-cursors were treated with a degree of disbelief and with the attitude that the parties you were speaking to would believe it when they saw it.  He submitted that your involvement was no more than as a foot solider involved in obtaining pre-cursors for other people to then manufacture.  He submitted that the starting point should be less than that of Mr Aitu.

[12]     In terms of the Sentencing Act I have to take into account the purposes of sentencing which in your case include:

•    holding you accountable for the harm done to the community by the manufacture of methamphetamine;

•   to promote in you a sense of responsibility and acknowledgement of that harm;

•   to denounce your conduct;

•   to deter you and others from committing the same or similar offending;  and

•    I do not overlook the need to assist you in your rehabilitation at the end of the sentence.

[13]     I am also conscious of the need for consistency in sentencing.   I have had regard to, apart from R v Wallace & Christie that has been referred to and Mr Aitu’s case, a number of other decisions: R v Allison and others (HC Auckland, T002481,

31 July 2003, Williams J); R v Tamati and Laxon (CA270/01 & 285/01, 26 February

2002); R v O’Carroll (CA3/05, 24 August 2005); R v Gee (CRI 2004-012-394, HC Dunedin, 5 March 2004, John Hansen J); and R v Wright (CA 440/02, 19 May 2003).

[14]     Mr C     I had the advantage of presiding through the second trial in this  matter for some six  weeks  prior  to  discharge  of  the  jury.    That  discharge occurred very close to the conclusion of the Crown case.  I had the opportunity to assess the evidence of the operation involved in this case and the respective parties’ involvement  in  that  operation.     On  my  assessment  the   operation   involved commercial manufacture over a long period of time at various locations.   I accept that the operation may not have been particularly successful in terms of financial reward over time for the parties involved and there were occasions perhaps that the manufacturing process was not successful.  However, the operation did extend over a significant period of time and there were a number of people involved in it.  It seems that most of those involved in it were heavy users of drugs themselves.   While I would not go so far as to say you were involved at the high level of the Williams’ brothers, or as their lieutenant as the Crown have suggested, you were nevertheless a willing party to it and you were involved in it.   In my view I consider your involvement to be more regular and consistent than that of Mr Aitu.  The intercepted telephone calls and text messages reflect the high degree of involvement that you had, not only with the Williams’ brothers but with the other participants in the conspiracy.   That said, having regard to the authorities and to your level of involvement I am not of the view that your criminality is such as to justify the starting point of six years that the Crown argue for.

[15]     Taking account of counsels’ submissions, relevant authorities and the above principles I take as a starting point for your offending in this case five years.

[16]     I then have to consider personal aggravating and mitigating factors.   The personal aggravating factor in your case Mr C     is your previous criminal history, that counts against you.  You have an extensive list of previous convictions. You have 10 previous convictions for drug and drug related offending but I accept nothing as serious as you have allowed yourself to become involved in in this case. In my assessment your previous convictions support an uplift of four months.

[17]     I then turn to mitigating factors.  I note your health problems.  At a personal level I can have some sympathy for the health problems and the difficulty that they may pose to you in prison.   However, in offending of this nature, personal circumstances of offenders can count for little.  The deterrence factor is a significant consideration.

[18]     The major factor in your favour and one which enables me to give you a substantial discount on your sentence is your guilty plea.   That is a positive acknowledgement  by  you  of  your  responsibility and  I  am  going  to  give  you  a substantial credit for that.

[19]     Mr C    , would you please stand.

[20]   Taking all matters into account Mr C     you are sentenced to imprisonment for a term of three years 10 months.  That’s all, stand down.

G J Venning J