R v Cave HC Hamilton CRI 2006-019-8940

[2007] NZHC 1999

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-019-8940

QUEEN

v

AARON DONALD CAVE

Hearing:         16 August 2007 (Heard at Hamilton)

Appearances: T Clark for Crown

S Ellis for Prisoner

Judgment:      16 August 2007

Sentence imposed:     Manufacture of a Class A controlled drug, namely methamphetamine

Two years and eight months’ imprisonment

Possession of equipment capable of being used in the manufacture of a Class A controlled drug, namely methamphetamine

15 months’ imprisonment (sentence to be served concurrently)

Order remitting all outstanding fines ($5,806)
No order for reparation made in respect of damage to carpet
Forfeiture of motor vehicle to the Crown

SENTENCING NOTES OF ASHER J

Solicitors:

R V CAVE HC HAM CRI 2006-019-8940  16 August 2007

Almao Douch, PO Box 19173 Hamilton

S Ellis, Barrister, 14 Knox Street Hamilton

[1]      Mr Cave you have pleaded guilty to two counts, the first of manufacturing a Class A drug, methamphetamine, and the second of possession of equipment for the manufacture  of  methamphetamine.      The  penalty  for  manufacturing methamphetamine is life imprisonment.

[2]      The police summary, which is not in contention, shows that on the evening of

25 July 2006 you and an associate booked into a room at a motel in Cambridge, paying for one night’s accommodation.   During the night you spilled a precursor substance used in the manufacture of methamphetamine onto the carpet floor of the unit.  This caused a large and permanent chemical burn to the carpet.  The cost of repairing that damage was $3,123.96.  The next morning you booked another night’s accommodation without mentioning the damage to the carpet.  You then left without paying.

[3]      Some  months  later  on  16 November 2006  you  were  driving  a  vehicle  at

8:45 am in the morning with another when, because of the condition of your vehicle, you were stopped by a constable.   You gave a false address.   The vehicle had no warrant of fitness and had excessive rust.  While talking to you the constable noticed a strong pungent smell coming from the vehicle.   Additional police arrived and determined that there was a clandestine drug laboratory within the vehicle.

[4]      A  search  of  the  vehicle  revealed  a  significant  number  of  precursor substances, and materials and equipment for the manufacture of methamphetamine in the rear of the vehicle.  These included a buchner flask, beakers, glass reaction flask, pyrex dish, glass condensers, phosphorous acid, fuelite container, 145 grams of iodine and two bottles containing hydrochloric acid.   When spoken to by the police you largely admitted the facts that have been outlined.  You said that you had the laboratory materials in your vehicle because you were waiting for some pseudoephedrine to become available so that you could manufacture methamphetamine in the future.

[5]      The tariff case for the manufacture of methamphetamine is R v Fatu [2006] 2

NZLR 72 (CA).  Bands 1 and 2 are as follows:

(a)Band one – actual or potential yield of up to $20,000. Up to eight years’ imprisonment.

(b)      Band two – actual or potential yield of between $20,000 – $200,000.

Eight years’ to 15 years’ imprisonment,  with  a standard  starting point of at least ten years.

[6]      Both the Crown and your counsel accept that you are at the bottom end of band 2 of R v Fatu.  They differ, however, in their submissions as to the appropriate discount which you should be given in relation to matters affecting you personally following the decision as to a starting point.  The Crown submits that the discount for  a  guilty  plea  should  be  in  the  20-25 percent  range,  whereas  your  counsel, Mr Ellis, has strongly urged me to give a greater discount because of your efforts at rehabilitation and the circumstances of your guilty plea.

The offending

[7]      Mr Ellis submitted to me that there was a basis for concluding that you were a party and not principal to the manufacturing of methamphetamine.  I cannot accept that submission.  You accepted responsibility for manufacturing methamphetamine when you spoke to the police.   There is no evidence that you were acting as an assistant to any other person.  The clear impression given is that you were principally involved in the manufacture of methamphetamine.

[8]      I do, however, accept the submission that the level of commerciality   was low.  Your conduct in the motel and in driving an unwarranted car indicate a definite lack of sophistication.  There was no evidence in the vehicle of lists of names, books, scales or other equipment or materials which indicate   that the manufacture was taking place on a commercial scale.  The state of your vehicle indicates that you are poor.  Clearly you have a serious addiction to methamphetamine.  Equally, however, you do not appear to have been holding a regular job.   I conclude that there was some level of commerciality in your activity but, as I have said, it is at a low level and you would be a primary consumer of whatever you make.  This is not one of those cases where I can accept that there was no commerciality and indeed Mr Ellis does not seek to persuade me of this.

[9]      I therefore conclude that the appropriate starting point is at the bottom of band 2 and I fix the starting point at four years’ imprisonment.

[10]     I now turn to matters relating to you personally.   The pre-sentence report which I have read, reveals unfortunate circumstances.  You do not appear to have held any regular job for some time.  You do not have a close association with your son.   You have at times been addicted to alcohol and gambling.   Your previous convictions do not show you to  have a history of drug offences but you display a very  poor  driving  history,  together  with  some  dishonesty  and  minor  violent offending.  You have outstanding fines of $5,806.

[11]     Ironically,  despite  this  unfortunate  history  you  are  clearly  intelligent.    I hardly need tell you that if you continue the way you have been going, you will spend more and more time in prison, continue to  jeopardise your enjoyment of life and cause misery to those who are close to you.  You do seem to understand that, and  your  counsel  has  emphasised  that  you  have  contacted  Odyssey  House  and sought help.  Certainly there are no matters relating to you personally that I regard as aggravating factors, and I am prepared to give you some credit for a genuine wish to address your problems.  I do note the point Ms Clark makes that you appear to have contacted Odyssey House before this offending.   I accept, nevertheless, a genuine wish on your part to get out of a life of addiction.

[12]     The most significant mitigating factor in your favour is the guilty plea.   It was only entered relatively late on arraignment.  For that reason I will not be giving you the full discount for a guilty plea, although I do accept the force of Mr Ellis’ submission that a period of negotiation was required because a conspiracy charge had been laid against you which was ultimately, when the matter reached the Crown Solicitor, not pursued.

[13]     The Crown’s submission is that for a guilty plea on arraignment a discount of no more than 20 or, at the very most, 25 percent would be appropriate.   This is correct.    However,  because  of  the  personal  matters  relating  to  you  that  I have mentioned, and the need to sort out the charges, I am going to give you a greater discount  than  that.    The  discount  that  I  propose  giving  you  is  approximately

30 percent,  which  will  result  in  a  sentence  of  two  years  and  eight  months’

imprisonment.

[14]  On  the  charge  of  manufacturing  a  Class  A  controlled  drug, methamphetamine, you are sentenced to a term of imprisonment of two years and eight months’ imprisonment.

[15]  On the charge of possession of equipment for manufacturing of methamphetamine, you are sentenced to a period of imprisonment of 15 months. That sentence to be concurrent.

[16]     The Crown seeks reparation of the damages to the carpet of $3,123.96.  I am not prepared to make an order for reparation.   I consider in the circumstances it would be unrealistic.  You have no assets.  My hope is that when you finish your sentence you will on leaving prison seek ongoing help for your propensity towards addiction and will obtain a job.   I do not consider it appropriate when you have completed your sentence of imprisonment that you face this additional burden.

[17]     For  the  same  reason  I  order  that  the  fines  that  you  personally  owe  are remitted.  I do this because I have the hope that you will on leaving prison be able to start again with a better life and no burdens to hang over from your past life.

[18]     However, I do order that the motor vehicle be forfeited to the Crown.

[19]     Mr Cave, redemption is clearly a possibility for you.  The alternative is the opposite, which I do not need to spell out for you.  I very much hope that you will choose the better course.

ADDENDUM:

[20]     Ms Clark following my sentencing asks for a period of disqualification from driving to be imposed on Mr Cave.   Although this had been referred  to  in  the summary of facts, it had not been sought in the Crown’s submissions.   I am not going to make such an order.   Mr Cave’s driving is not at issue, and the error of driving a motor vehicle without a warrant and in a poor condition does not warrant

such a response.  I consider that the sentence of imprisonment that I have imposed is the appropriate sentencing response to the methamphetamine charges.

…………………………….

Asher J