R v Chavannes HC Hamilton CRI 2007-019-006454

[2008] NZHC 2544

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-019-006454

THE QUEEN

v

CHARLES HUDDELL CHAVANNES

Hearing:         29 August 2008

Appearances: M N Sturm for Crown

W N Dollimore for Accused

Judgment:      29 August 2008

SENTENCE OF COOPER J

Solicitors:

Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3244

Copy to:

W N Dollimore, PO Box 19-115, Hamilton, 3244

R V CHAVANNES HC HAM CRI 2007-019-006454  29 August 2008

[1]      Mr Chavannes, I have to sentence you now in respect of the two offences to which you have pleaded guilty.  They are, manufacturing the Class A controlled drug methamphetamine between 1 June 2003 and 2 August 2007 and during the same period, possession of methamphetamine for the purposes of supply.

[2]      Both of those offences carry potential maximum terms of imprisonment for life, which is an indication of the seriousness with which the legislature views those crimes.

[3]      It appears that on 2 August  the  police  executed  a  search  warrant  at  the address where  you were living at Newcastle Road in Hamilton.   There  was an extensive  investigation  carried  out  by  ESR  staff  into  what  was  obviously  a substantial clandestine methamphetamine manufacturing laboratory found at the address.

[4]      Among items found were hundreds of empty boxes of pseudoephedrine based medication.  There were blister packs of loose capsules discovered outside cardboard packets which were actually discounted by the scientists, but nevertheless, the total amount of pseudoephedrine hydrochloride able to be obtained from the contents of the packets that they did find and count was about 410 grams.

[5]      At the disputed facts hearing that I conducted under s 24 of the Sentencing Act, Mr Hugel gave evidence for the Crown, that the quantity of pseudoephedrine that was found could be used for the purpose of manufacturing at least 127 grams of methamphetamine hydrochloride.

[6]      There  were  various  items  of  equipment  and  other  matters  found  at  the property  including  electronic  scales  on  which  there  were  traces  of methamphetamine.   There were snap-lock bags in point and gram sized variants, there were drug manufacturing manuals.  There were documents which the Crown claimed were consistent with being tick lists, although those showed only a low level of methamphetamine sales, and other documents that the Crown said were indicia of the manufacture of methamphetamine.

[7]      I found in my judgment of 18 July 2008 that those matters were not of much assistance in assessing the extent of the manufacturing operation.

[8]      There were a range of items of laboratory equipment.  There were chemicals and  liquids.    In  particular  there  were  eight  containers  of  liquid  waste.    It  was Mr Hugel’s evidence that the waste that he focused on had characteristics which were consistent only with being the waste product of the manufacture of methamphetamine.  There were 56 litres of liquid in this category.

[9]      Applying his ratio of 20:1 he was of the opinion that the amount of waste meant that over the relevant period you would have manufactured at least 2.5 kilograms of methamphetamine.  On the evidence I determined that that was right, and  it  is  on  that  basis  that  I  have  to  sentence  you  today.    I  understand,  and Mr Dollimore has made plain to me, that you disagree with those conclusions.  But, the view I took of the evidence was that it showed beyond reasonable doubt that at least  2.5  kilograms  of  methamphetamine  were  manufactured  by  you  over  the relevant period.

[10]     I also concluded that not more than 50 grams of that amount would have been for your own personal use.  That meant that at least 80% of the methamphetamine that had been manufactured was for the purposes of supply to other people.  So, it is on the basis of those conclusions that I must now sentence you.

[11]     I have had regard to a pre-sentence report that has been prepared by the probation service for the purposes of today’s sentencing.  From it I understand that you are a person of 50 years of age.  There appears to have been nothing unusual in your background.   Your partner was interviewed and told the author of the report that you had ceased living together some time ago.  She had decided to move out when you became heavily involved in using methamphetamine.   She spoke of the personality change which that had caused.

[12]     You left school at the end of the 6th form year.  It is plain that at school you had developed an interest in scientific experimentation and that included what was described as “dabbling in science” and also in particular electronic experiments.

You were able to gain employment as an electrician and at one stage you secured an apprenticeship in respect of that trade.   Your history shows that you have in fact enjoyed a long period of full-time employment before at some stage giving that up and deciding to sell the house in which you were living and I have to conclude also, at least to some extent, you must have chosen to rely on the proceeds of  your offending.

[13]     The report refers to a tool used to assess your likelihood of re-offending as showing that you were a low risk but, sensibly, the author of the report says that a medium risk of re-offending would be a more appropriate description given that your drug use has spanned a number of years and has evidently been of serious proportions.   There is reference to you expressing some remorse for your actions. There is no detail of that, but I am prepared to take that into account for the purposes of your sentencing.

[14]     Mr Sturm, for the Crown, has provided me with written submissions which he has addressed orally today.  In those submissions he has referred to a decision of the Court of Appeal in a case called R v Fatu [2006] 2 NZLR 72 which provides guidance for sentencing Judges for this kind of offending. In that case the Court of Appeal identified a number of bands for sentencing purposes beginning with less serious cases and going through in, Band 4, to the more serious ones. Band 4 is related to manufacturing “very large commercial quantities” of methamphetamine and by that description the Court is referring to the manufacture of 500 grams or more. That is conduct which, in accordance with the Court of Appeal’s decision merits sentences of 13 years’ imprisonment up to the maximum of life imprisonment for the most serious of the cases.

[15]     Having referred to a number of other authorities, Mr Sturm, for the Crown suggested that I should adopt a starting point for sentencing purposes in the vicinity of 13 to 15 years.  From that he acknowledged that some allowance could be made for mitigating elements in relation to your personal position and conduct.   In particular there was a guilty plea, which although not made at the earliest possible stage, was nevertheless made at an early stage - at the depositions hearing and prior to evidence being called at that hearing.

[16]     However, Mr Sturm sought to minimise the significance of that guilty plea by reference to what he described as the overwhelming nature of the evidence which you were facing and the inevitability of conviction.  He has also referred to your on- going minimisation of the seriousness of your conduct and the amount of methamphetamine that  you manufactured, arguing that that should diminish any weight that I might otherwise give to the acceptance of responsibility represented by the  guilty pleas  and  the  remorse  which  it  said  that  you  feel  in  relation  to  the offending.

[17]     Referring to a matter that has been emphasised by Mr Dollimore, on your behalf, and that is the absence of anything remotely like this conduct by way of previous offending, Mr Sturm says that that is simply the absence of an aggravating factor rather than anything positive when one has regard to the seriousness of the current offending before the Court.

[18]     Taking all those matters into account, Mr Sturm argued that a final sentence in the range of 11 to 13 years’ imprisonment would be appropriate.

[19]     Now, on your behalf Mr Dollimore has had to accept that he is constrained in what he can say as to the facts by the decision that I made on 18 July and he has right about that.   One thing he has emphasised about the facts is the lack of any overt indications that you made a lot of money out of the possession of this methamphetamine for supply.  That is a matter that I recognised in my judgment of

18 July.  Whatever the reasons for it might be, I accept that there is no clear proof that you have made a great deal of money out of this activity and I accept that that must go to the gravity of the offending.

[20]     Mr Dollimore has then emphasised the lack of equivalent previous offending, the fact that for most of your life you have been a hard working and law abiding citizen and that you demonstrate remorse for your actions.  He submits that I should give you the full and general discount that is applied in respect of early guilty pleas and in that context he emphasised what he described as an extraordinary degree of co-operation with the police.

[21]     I am not sure that I would describe your co-operation as being extraordinary, but I do take on board Mr Dollimore’s point you not only admitted manufacturing at or about the time that the police came to your property, but you also admitted having been manufacturing for some time.   Having said that, the extent to which I can reduce a sentence that would otherwise apply because of these  factors must be tempered by what is, I think, an on-going attempt to downplay the extent to which you were manufacturing and that was a characteristic of the interviews that you gave to the police.  So, although it can be said on one hand that you were co-operating, you were I think trying to minimise the extent of your offending.

[22]     Bearing in mind the various submissions that have been made to me by counsel I think that an appropriate starting point for sentencing purposes here is one of 14 years’ imprisonment.  In fixing that starting point I have regard to the amount of methamphetamine manufactured which is a very significant quantity and the fact that the conduct for which you are to be sentenced occurred over a period of over four years.   Those circumstances mean that little can be made of a previous good record.

[23]     Band 4 of the bands identified by the Court of Appeal in R v Fatu provides for a period of 13 years’ imprisonment or more to set in at the point where 500 grams are manufactured.  So it was not unreasonable for Mr Sturm to submit that an even higher starting point than the one I have fixed on might have been appropriate. I do not fix the starting point at the 15 year level to take into account the fact, as Mr Dollimore emphaasised, that there is no overt sign of a significant commercial gain from your conduct.

[24]     Having fixed on a 14 year starting point I then turn to the mitigating factors. In particular I mention the guilty plea which was at depositions and prior to evidence being called.  Although again Mr Sturm was probably right when he said that you made an inevitable decision having regard to the weight of the Crown’s evidence, nevertheless, you did make that decision and consequently, there was a saving of resources for the State.

[25]     I am not inclined to reduce the amount of the deduction on account of a guilty plea because of the fact that you subsequently exercised your right to dispute the facts on which the Crown relied under s 24 of the Sentencing Act 2002.  In my view it will be appropriate here for there to be a full deduction in respect of the guilty plea bearing in mind the indications that have been given in the report of your remorse and of steps that you have taken to deal with your addiction to methamphetamine. Consequently, from the starting point of 14 years I step back to arrive at a final sentence on the manufacturing count of nine years and four months.   I take the manufacturing count as the lead offence for sentencing purposes and will impose a concurrent sentence in respect of the charge of possession for supply.

[26]     Will you now stand please?

[27]     On the count alleging manufacture of methamphetamine you are sentenced to a period of imprisonment of nine years and four months.  On the count of possession of methamphetamine for supply you are sentenced to a period of eight years’ imprisonment.  Both terms are to be served concurrently.