R v Carnachan - [2019] NZHC 3025

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2012-090-7531

CRI-2018-090-3340 [2019] NZHC 3025

THE QUEEN

v

LOUIS IESE CARNACHAN

Hearing: 20 November 2019

Appearances:

D G Johnstone for the Crown M W Ryan for the Defendant

Sentencing:

20 November 2019

SENTENCE OF GAULT J

Solicitors / Counsel:
Mr D G Johnstone, Meredith Connell, Office of the Crown Solicitor, Auckland Mr M W Ryan, Barrister, Auckland

R v CARNACHAN [2019] NZHC 3025 [20 November 2019]

Introduction

[1] Mr Carnachan appears for sentence after pleading guilty to six charges relating to manufacturing and conspiring to supply methamphetamine between December 2011 and February 2012. The Crown has offered no evidence in relation to two further outstanding charges – charges 2 and 9. Those two charges are dismissed. Mr Carnachan also pleaded guilty to a charge of attempting to pervert the course of justice.1 Mr Carnachan evaded arrest between November 2012 and July 2018.

[2]The six methamphetamine related charges are:

(a)manufacturing methamphetamine (x 4);2

(b)conspiring to supply methamphetamine;3 and

(c)possessing equipment to manufacture methamphetamine.4

[3] The total quantity at issue is 226.8 grams. This puts it at the higher end of band 2 of the new guideline judgment for methamphetamine, Zhang v R.5 Both the Crown and the defence submit a starting point of between six and seven years’ imprisonment is appropriate for the methamphetamine charges. There will then need to be a cumulative sentence or uplift for the perverting charge. The Crown submit this should be two to three years’ imprisonment, and the defence say one year.

Background

[4] In December 2011, the Police began an investigation, codenamed Operation Shiloh, which spawned a related investigation, codenamed Operation Jericho. Together, these investigations identified an organised crime syndicate involved in the manufacture and distribution of methamphetamine and pseudoephedrine. The two overseeing this operation were a Mr Afakasi and a Mr Davoren. These two used

1      Crimes Act 1961, s 117(e). Maximum penalty seven years’ imprisonment.
2      Misuse of Drugs Act 1975, ss 6(1)(b) and 2(a). Maximum penalty life imprisonment.
3      Section 6(2A). Maximum penalty 14 years’ imprisonment.
4      Sections 12A(2)(a) and 12A(3)(b). Maximum penalty five years’ imprisonment.
5      Zhang v R [2019] NZCA 507 at [125].

several associates to source items required for the manufacture of methamphetamine, including pseudoephedrine, iodine, hypophosphorous acid, and associated equipment. Mr Carnachan was one of these associates.

[5] On 1 and 2 November 2012 the Police executed numerous search warrants at addresses associated with members of this group, including Mr Carnachan.

[6] Mr Carnachan managed to evade arrest, but a number of others, including Mr Afakasi and Mr Davoren, were arrested and stood trial in this Court, presided over by Toogood J and a jury. Mr Davoren absconded from his trial following closing submissions. Mr Afakasi and nine others were sentenced on 20 November 2014.6 Mr Davoren was eventually re-captured on 3 March 2015 and sentenced on 23 April 2015.7

[7] The four manufacturing charges and the conspiracy to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Carnachan

Details

AGLC: R v Carnachan [2019] NZHC 3025
Case: [2019] NZHC 3025
Decision Date: 20 November 2019

CaseChat Overview and Summary

Louis Iese Carnachan has been sentenced by the High Court of New Zealand for his involvement in methamphetamine manufacturing and conspiracy to supply methamphetamine, as well as attempting to pervert the course of justice. Carnachan evaded arrest for six years until his capture in 2018. The court considered the quantity of methamphetamine involved, which was 226.8 grams, placing it at the higher end of band 2 of the methamphetamine guideline judgment. Both the Crown and defence agreed that a starting point of six to seven years' imprisonment was appropriate for the methamphetamine charges. The court also considered the perverting charge, for which the Crown sought a sentence of two to three years' imprisonment, and the defence argued for one year. The court decided on a starting point of 18 months' imprisonment for the perverting charge.

The court took into account mitigating factors, such as Carnachan's addiction, which was accepted as a motivating influence in his offending. A discount of 25% was applied to the methamphetamine sentence only, and a further discount of 10% was applied to both sentences for the negative effects of Carnachan's upbringing and his rehabilitative prospects. The court also considered the guilty plea discount, ultimately deciding on a 15% discount for the late plea.

The final sentence was four years and five months' imprisonment for the methamphetamine charges, to be served concurrently, and one year and one month's imprisonment for the perverting charge, to be served cumulatively. Carnachan was sentenced to three years and four months' imprisonment for each of the four manufacturing charges, three years and four months' imprisonment for the conspiracy to supply charge, and 18 months' imprisonment for the possession of equipment charge.

Orders