R v Carnachan
[2019] NZHC 3025
•20 November 2019
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 supply charge arise from conduct between late December 2011 and late February 2012. Before I describe the facts, I note that, as is common in cases like this, the agreed summary of facts contains some detail, but leaves other important details to be inferred, or not. I suspect this is intentional, and likely a result of the process counsel follow to come to a plea resolution. What I describe below is drawn from only the agreed summary of facts, so is light on some detail for that reason.
[8] On 29 December 2011 Mr Carnachan arranged for the delivery of four litres of “Fuel Lite” fluid for the manufacturing process overseen by Mr Davoren and a Mr Kaukasi, another associate. On 30 December 2011 Mr Davoren and Mr Afakasi discussed dividing up two ounces of the final product as a result of the successful manufacture of methamphetamine.
[9] On 19 January 2012 Mr Davoren contacted Mr Carnachan and asked him if he knew anyone who wanted a “doughnut”, slang for an ounce of methamphetamine. Mr Carnachan agreed to try and find someone, founding the conspiracy to supply charge.
6 R v Afakasi [2014] NZHC 2907.
7 R v Davoren [2015] NZHC 807.
[10] Between 19 and 23 January 2012 Mr Carnachan acted as an intermediary between Mr Davoren and other associates in organising manufacturing, including various people to pick up and drop off various components used in the manufacturing process. The typical pattern was Mr Davoren would ask Mr Carnachan to do something; he would then contact and instruct another person to do that task. This offending yielded not less than two ounces of methamphetamine.
[11] On 26 January 2012 Mr Carnachan contacted Mr Davoren, who advised him to contact another person to get the equipment and materials to manufacture methamphetamine. Mr Carnachan and Mr Davoren met to discuss this later that day. Around 6:00 pm Mr Carnachan again contacted Mr Davoren and told him he was keen to start the manufacturing process. Around 10:09 pm Mr Carnachan asked Mr Davoren to pick up caustic soda for the process. They met at Mr Carnachan’s home an hour later. The following day, Mr Carnachan asked Mr Davoren if they had everything to continue manufacturing, who replied they did, except they needed more hypophosphorous. Mr Carnachan asked him to tell him when he got it, so they could manufacture the same day. Later in the afternoon Mr Carnachan picked Mr Davoren up from an address in Remuera. Around 11:30 pm that night Mr Davoren contacted another person, saying he was in the process of manufacturing. This offending also yielded not less than two ounces of methamphetamine.
[12] On 20 February 2012, Mr Carnachan contacted Mr Davoren and asked if he wanted pseudoephedrine. Mr Davoren replied that he did. Later that day, Mr Carnachan contacted Mr Davoren to organise the manufacture of methamphetamine. Over the course of 20 to 23 February 2012 they communicated back and forth about the details of the manufacturing, for example, on 22 February Mr Davoren asked Mr Carnachan to bring a frying pan to the address. This offending also yielded not less than two ounces of methamphetamine.
[13] On 2 November 2012, Police executed a search warrant at Mr Carnachan’s home in Hillsborough. He was not present. They found, among other things, equipment used to manufacture methamphetamine, $65,000, and ammunition, although no firearm.
[14] As I said, Mr Carnachan successfully evaded capture until July 2018. The attempting to pervert the course of justice charge involved evading arrest by renting property and subscribing to services such as electricity using false names, travelling on airplanes and renting holiday accommodation using an adopted name, and allowing his driver licence to expire then travelling only as a passenger.
Mr Carnachan
[15] I turn now to Mr Carnachan’s personal circumstances. I have before me a pre-sentence report prepared by the Department of Corrections, a very thorough cultural report prepared by Ms Shelley Turner, many character references and letters in support, and a letter of remorse from Mr Carnachan.
[16] Mr Carnachan is 33 years old and of Niuean and Māori descent. His iwi is Ngāti Maniapoto. His mother has passed away, but Mr Carnachan reports a positive relationship with his father, who visits him in prison, and with his three siblings who he speaks with on the phone. He says his family are supportive of him. He has four children under the age of 10. He says he has a close relationship with his partner of 12 years, who visits him with the children on a regular basis.
[17] He has a relatively short but serious criminal history from before the current offending, comprising wounding with intent to do grievous bodily harm, for which he was sentenced to five years and 10 months’ imprisonment, robbery, and three counts of burglary. Given the date of the wounding conviction in 2008, it seems likely that Mr Carnachan became involved in manufacturing methamphetamine shortly after he was released from prison.
[18] Mr Carnachan said to the report writer that he accepted the summary of facts as accurate, but that it made it seem “worse than it is”. He described how he was using methamphetamine and could not afford it. The arrangement, he said, was if he ran an errand, he would get a gram, and was only involved to fund his own habit. He said he “got into drugs in prison” and when released did not have a means of supporting himself, so it was all he “could see to get through”.
[19] Community Corrections assesses Mr Carnachan as having a high risk of harm with regard to drugs and alcohol. He advises that he managed to “kick the habit” of methamphetamine but seems to have compensated with heavy alcohol and cocaine usage.
[20] Corrections further identify his friends and associates and substance abuse as contributing factors to his offending and assess him as at a high risk of reoffending should he remain untreated, and a medium risk of harm to others.
[21] Ms Turner identifies several factors that in her opinion have contributed to his offending, which have been a significant disadvantage in his life. These include cultural disconnectedness from Te Ao Māori; a dysfunctional whanau characterised by parental separation, separation from siblings, parental addiction and alcoholism, family violence and poverty; gang affiliation, which he joined at age 19; entry to the prison system at age 22; substance abuse; and, more recently, the death of his mother. Mr Carnachan reports looking up to and idolising his father, who was a community leader and activist, but who was also violent and spent time in prison.
[22] Despite this, Mr Carnachan described to Ms Turner how he was much loved by his family, and all of them took part in raising him.
[23] In terms of the time Mr Carnachan spent between being charged and arrested, he describes it as some of the most positive years of his life. His partner says he spent this time being a family man and engaging with the community. He played a leading role in organising various community events and fundraisers. Mr Carnachan’s cousin also says that Mr Carnachan took an active role in their marae, and that he likely has a future leadership role there.
[24] I thank Ms Turner for her thorough report, which contains much more than the summary I have given.
[25] I have also received today certificates of achievement and programmes Mr Carnachan has completed.
[26]I have 18 character reference letters from Mr Carnachan’s family and friends
– too many to address individually. The common themes are that Mr Carnachan is a hardworking, thoughtful and loving man who contributes positively to the community. I thank everyone for the references they have provided, and I take them into account as I sentence Mr Carnachan today.
[27] I also have a letter of remorse from Mr Carnachan, who writes that he has finally come to terms with the seriousness of his offending after having talked to others who have recovered from their addiction and learning more about the negative effects methamphetamine has on our society. Mr Johnstone, for the Crown, acknowledges this. Mr Carnachan writes that he is committed to rehabilitation programmes and from there moving into a space where he can assist others with their addiction. In the long term he is committed to his family, his community, and to connecting with his culture and history. I thank you Mr Carnachan for your letter.
Approach to sentencing
[28] In sentencing Mr Carnachan today, I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.8 In serious drug offending such as this, as noted by the Court of Appeal in Zhang v R, these include: to hold Mr Carnachan accountable for the harm done to the community; to promote in him a sense of responsibility for that harm; to denounce his conduct; to deter others from committing the same or a similar offence; to assist in Mr Carnachan’s rehabilitation and reintegration; and the need to impose the least restrictive outcome appropriate in the circumstances.9 I must also take into account the general desirability of consistency with sentences imposed in similar circumstances – a pertinent consideration here, given Mr Carnachan was part of an operation involving many others who have already been sentenced.
[29] I will follow the normal sentencing process.10 First, I will set a starting point, based on the characteristics of the offending, applying the guideline decision in Zhang. Secondly, I will consider whether any of Mr Carnachan’s personal circumstances
8 Sentencing Act 2002, ss 7-8.
9 Zhang v R [2019] NZCA 507 at [57]-[63].
10 R v Taueki [2005] 3 NZLR 372 (CA); and Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607.
justify an adjustment to that starting point, up or down. Thirdly, I consider whether Mr Carnachan should receive a discount for his guilty plea.
Methamphetamine offending starting point
[30] The quantity of methamphetamine at issue here is 226 grams. This puts it near the top end of band 2 in Zhang, which is from 5 to 250 grams. The suggested starting range for this band is two to nine years’ imprisonment.11 The Court in Zhang stated that the offender’s culpability, i.e. role in the enterprise, is an important factor in assessing where, in combination with quantity, the starting point should fall within the band.12 So a mere mule should be treated far less harshly than the ringleader.13 And, in cases where the quantity is at the lower end of the band and the offender’s role is limited, a Judge may be justified in moving into a lower band.14
[31] Given the quantity at issue here, this is not a case where it is appropriate to move between bands. Both the Crown and defence accept the starting point should be between six and seven years’ imprisonment.
[32] When assessing the offender’s role, in Zhang the Court of Appeal stated that Judges may be assisted by reference to the following descriptions, based on those developed by the United Kingdom Sentencing Council, to distinguish between lesser, significant and leading roles:15
Lesser Significant Leading 1. performs a limited function under direction; 1. operational or
management function in own operation or within a chain;
1. directing or
organising buying and selling on a
commercial scale;
2. engaged by pressure, coercion, intimidation; 2. involves and/or directs others in the operation whether by pressure, influence, intimidation
or reward;
2. substantial links to, and influence on, others in a chain;
11 Zhang v R [2019] NZCA 507 at [125].
12 At [118].
13 At [51].
14 At [123].
15 At [126].
3. involvement through naivety or
exploitation;
3. motivated solely or primarily by financial or other advantage, whether or not operating alone; 3. close links to original source; 4. motivated solely or primarily by own
addiction;
4. actual or expected commercial profit; and/or 4. expectation of substantial financial gain; 5. little or no actual or expected financial gain; 5. some awareness and understanding of scale of operation. 5. uses business as cover; and/or 6. paid in drugs to feed own addiction or
cash significantly disproportionate to quantity of drugs or risks involved;
6. abuses a position of trust or responsibility. 7. no influence on those above in a chain; 8. little, if any, awareness or
understanding of the scale of operation;
and/or
9. if own operation, solely or primarily for own or joint use on non-commercial
basis.
[33] Although the summary of facts is limited, I infer the following about Mr Carnachan’s role. He performed a somewhat limited function, in that he was mostly directed to do specific tasks by Mr Davoren. But he was also responsible for directing others to complete those tasks.
[34] I consider Mr Carnachan was motivated primarily by his addiction. I note the Court of Appeal’s comment in Zhang that there should be persuasive evidence of addiction if it is claimed as a mitigating feature, and that this should be beyond mere self-reporting.16 While we effectively only have self-reporting here, this is backed up by Community Corrections’ assessment of Mr Carnachan having a high risk of substance abuse. Further, the Crown accepts that Mr Carnachan was motivated by his
16 Zhang v R [2019] NZCA 507 at [148].
addiction, acknowledging this appears to be one of the rare cases where impairment of rational choice co-existed with more substantial offending. There is also reference in the summary of facts to an instance where Mr Carnachan, Mr Davoren and two others agreed to manufacture methamphetamine solely for their own use.
[35] I do not have any evidence of the compensation Mr Carnachan received for his role, but I consider it was likely mostly in product, as he said to the report-writer and Ms Turner, but it is also likely he received some financial reward, judging by the significant sum of cash found at his address.
[36] I consider he would have had some idea of the scale of the operation, but I have no evidence he had sway over those higher up in the chain. It seems from the summary of facts he took instructions predominantly from Mr Davoren.
[37] Considering my findings, I conclude Mr Carnachan is at the higher end of the “lesser” role described by the Court of Appeal.
[38] In terms of comparable cases, the Crown says Mr Carnachan’s offending was most similar to that of his co-offender, Mr Kaukasi.17 Toogood J described Mr Kaukasi’s role as a “lieutenant” to Mr Davoren and Mr Afakasi. The quantity that Mr Kaukasi was charged with was 336 grams, putting it in band 3 of the then tariff case R v Fatu.18 Toogood J set a starting point of 10 years’ imprisonment for his methamphetamine offending.19
[39] I consider on the agreed facts that Mr Carnachan’s role was less serious than Mr Kaukasi’s, and the quantity involved puts Mr Carnachan in the lower band 2. There is also the fact that sentencing guidelines have moved on since Fatu, so the pre-Zhang cases are less helpful, at least in terms of lower level offending.20 The Crown makes the point that Mr Carnachan should not benefit in terms of sentencing because he evaded police for so long. I acknowledge this submission. But Zhang makes clear it applies to all sentencings that occur after 21 October 2019,
17 See R v Afakasi [2014] NZHC 2907 at [30]-[35].
18 R v Fatu [2006] 2 NZLR 72 (CA).
19 R v Afakasi at [35].
20 See Zhang v R [2019] NZCA 507 at [11].
regardless of when the offending took place.21 Further, I consider Mr Carnachan’s evasion of Police can be accounted for separately on the perverting charge.
[40] Given the quantity involved and Mr Carnachan’s role, I consider a starting point of six years’ imprisonment is warranted.
Attempting to perverting the course of justice
[41] I turn now to the sentence for the attempting to pervert the course of justice charge. I consider this sentence should be imposed cumulatively. The perverting charge derives from Mr Carnachan evading responsibility for his crimes by taking active steps to conceal his whereabouts. It is a completely different type of offending from the methamphetamine charges and occurred over a much longer period.22 Courts have often imposed cumulative sentences where defendants commit further crimes to cover up their initial offending.23
[42] The Crown submits a starting point of between two to three years’ imprisonment is appropriate, citing the Court of Appeal decision in R v Clutterbuck, where the Court suggested a benchmark of three years’ imprisonment for relatively serious cases of perverting, and perhaps 18 months to two years for less serious cases.24 The defence submits a starting point of one year is appropriate, given Mr Carnachan reportedly was a positive member of the community during that time, and did not offend further. This is corroborated to an extent by the many character references attesting to his role in the community.
[43] I have not been referred to other cases of attempting to pervert the course of justice where the defendant was on the run for so long, nor have I been able to find any. I note that offenders who have been sentenced for assisting others who were on the run often are sentenced to something in the region of 15 months.25 Considering the nature of Mr Carnachan’s evasion, the risk of injustice occurring, the length of
21 Zhang v R [2019] NZCA 507 at [187].
22 Sentencing Act 2002, s 84.
23 See, for example, R v Uon CA108/05, 27 June 2005; and R v Field HC Auckland CRI-2007-092- 18132, 6 October 2009.
24 R v Clutterbuck CA372/99, 17 November 1999.
25 See, for example, R v Te Tomo [2012] NZHC 71; and R v Smith HC Hamilton CRI-2006-019- 4626, 16 November 2006.
time he was at large, and noting he apparently lived a positive life during that time, I consider a starting point of 18 months’ imprisonment is appropriate.
Mitigating features
[44] I now consider whether there are features personal to Mr Carnachan that justify an adjustment to the starting point. The Crown does not submit there needs to be any uplift.
[45] The defence submits Mr Carnachan should receive a significant discount for the fact his offending was motivated by his addiction, and another discount for the fact that his background and upbringing were a natural path to offending in the way he did.
[46] The Crown accepts that, in light of the observed nature and pattern of Mr Carnachan’s offending during the period he was under investigation, it is more likely than not addiction was a motivating influence in his offending. I note here the Court of Appeal’s comments in Zhang that an offender’s otherwise pro-social tendencies may be overwhelmed by dependence and addiction. In this case, the prison system had a detrimental effect on Mr Carnachan’s chances. He became addicted in prison, and with little support when he was released he felt the only way to support himself and his addiction was to offend in the way he did. This is not, of course, an excuse or justification for Mr Carnachan’s conduct, but it goes some way to explaining it. He seeks, and I consider he would benefit from, treatment for substance abuse.
[47] Then there is his background and upbringing, characterised by insecurity, violence and abuse, and where his role models were often offenders. This clearly contributed to him making the poor choices he has.
[48] However, there are signs of hope, as indicated by the numerous character references and Mr Carnachan’s letter of remorse. Mr Carnachan is now much older than when he first offended, and there is hope that, especially with treatment, he may be able to turn his life around after he is released from custody.
[49] In these circumstances, I consider a discount of 25 per cent is warranted to reflect his addiction, but I apply this to the methamphetamine sentence only. I do not
consider his addiction can have influenced his hiding from Police. That was calculated offending, where he knew the Police were looking for him, went to some lengths to avoid detection, and did not turn himself in after kicking the methamphetamine habit.
[50] However, I allow a further discount of 10 per cent to reflect both the negative effects of his upbringing and the rehabilitative prospects for the future, which I apply to both sentences.
[51] So, from a starting point of six years’ imprisonment for the methamphetamine offending, I deduct 35 per cent, or two years and one month, to come to three years and 11 months’ imprisonment.
[52] On the perverting charge, from a starting point of 18 months, I deduct 10 per cent, or two months, to come to one year and four months’ imprisonment. Combining the two, that comes to five years and three months’ imprisonment.
[53] I have considered whether this is excessive relative to Mr Carnachan’s overall culpability, but I consider it is appropriate, especially as I consider the starting points I have reached for each set of offending could be higher. Evading the Police for such an extended period is a serious matter. There is also something in the point that if Mr Carnachan had been sentenced in 2014 along with his co-offenders, he likely would have received a harsher sentence for the methamphetamine charges.
Guilty plea discount
[54] Finally, I must consider what discount is appropriate to reflect Mr Carnachan’s guilty plea. The maximum discount available is 25 per cent, but the value given to the plea must take into account all of the circumstances in which it arises.26
[55] Mr Carnachan did not plead at the first opportunity after he was arrested. He was charged on 5 July 2018, and entered guilty pleas on 25 July 2019, approximately three weeks before his trial. The Crown says in these circumstances a discount of no more than 15 per cent is appropriate.
26 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[56] The defence says the plea followed the release of a pre-trial decision and a change in counsel, and that there were significant savings to the justice system as a result.
[57] The pre-trial decision concerned an application for the perversion charge to be severed from the trial on the methamphetamine charges. That application was declined.27
[58] Late pleas can sometimes receive discounts near the top end where, for example, there has been a significant amendment to the charges or there are particular savings, such as to the effect on victims of having to give evidence. Acknowledging that the resolution involved the Crown not pursuing some charges with a compromise on quantity, I do not consider a discount near the top end is appropriate here. The pre- trial decision did not affect the content of the charges. While tactically there may have been an advantage to Mr Carnachan in having the charges severed, and that may have played into whether he pleaded guilty, he knew the substance of the charges well before that and chose not to plead. The fact he was on the run for so long is also relevant here – although I am conscious not to double count this factor, as it would seem odd if a person who avoided responsibility for so long were to receive near to full credit for accepting responsibility.
[59] In these circumstances, I agree with the Crown that a discount of 15 per cent, or ten months, is justified.
[60]This brings the total sentence to four years and five months’ imprisonment.
[61] The Crown do not seek a minimum period of imprisonment, nor do I consider one is appropriate.
Conclusion
[62]Mr Carnachan, please stand.
27 R v Carnachan [2019] NZHC 1218.
[63] On the four charges of manufacturing methamphetamine, I sentence you to three years and four months’ imprisonment.
[64] On the charge of conspiring to supply methamphetamine, I sentence you to three years and four months’ imprisonment.
[65] On the charge of possessing equipment to manufacture methamphetamine, I sentence you to 18 months’ imprisonment.
[66]Those six sentences are to be served concurrently.
[67] Finally, on the charge of attempting to pervert the course of justice, I sentence you to one year and one month’s imprisonment, to be served cumulatively on the other sentences.
[68]Please stand down.
Gault J
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