R v Coombe HC Auckland CRI 2005-404-45

[2005] NZHC 1233

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-45

THE QUEEN

v

WAYNE MICHAEL COOMBE

Hearing:         4 March 2005 Appearances: M Davies for the Crown

G Foley for the Accused Judgment:     4 March 2005

SENTENCING OF SIMON FRANCE J

Solicitors:

The Crown Solicitor, PO Box 2213, Auckland, for the Crown G Foley, PO Box 105267, Auckland Central, for the Accused

R V W M COOMBE HC AK CRI 2005-404-45 [4 March 2005]

[1]    Mr Coombe you appear for sentencing today having pleaded guilty to one charge of attempting to manufacture the class A drug methamphetamine (which carries a term of imprisonment of 10 years maximum) and one charge of possessing the same drug (which carries a term of imprisonment of six months maximum).

[2]    On 30 May 2003, you and two associates rented a motel room in Newmarket. Various paraphernalia was taken to the room. The purpose was to manufacture methamphetamine. You were discovered because the management of the motel became concerned at the smell emanating from the room. Police were called and located in the room were lab equipment associated with manufacture, precursor chemicals, and instruction books on the manufacture of methamphetamine. There were also numerous point bags. Located in the car was 325 mg of ‘P’, which is the basis of the second charge to which you have pleaded guilty.

[3]    You are presently 30 years of age. For a considerable part of your life you appear to me to have been a normal member of the community. You were in employment in the advertising industry and then it appeared that you ran your own business. Seemingly at the age of around 24 you became involved in drugs such as Ecstasy and then in 2001 you started smoking methamphetamine. From that point, things went downhill, with your increasing use leading to increasing debt. It is, regretfully, a familiar pattern.

[4]    At the time of the offending you owed $12,000. You had sold your car to meet some of this debt but you say you were still being pressured. You say you were threatened with harm and on the evening of the offending you accepted a suitcase from the dealer who was threatening you. The suitcase contained some of the equipment found at the motel. You rang a woman you knew who agreed to be involved. She rented the motel room and matters progressed from there until your arrest later that morning.

[5]    The events that have occurred since your arrest place you in quite a unique category, in my experience. It is today some 21 months since your arrest. You have been on bail and you have used your time well. You attended Higher Ground to assist with your drug use. That course worked successfully and you have been drug

free since that time. You have entered into a new and stable relationship; you have been in employment since August 2004; your employer speaks highly of you and wishes to keep you in employment. In short, you have returned to being a normal, responsible member of the community. As such, and you will appreciate this from my discussion with counsel, you present quite a sentencing dilemma.

[6]    The pre-sentence report is very supportive of you. It is plain you impressed the probation officer with your sincerity and with the manner in which you have turned things around. The report notes that you kept away from the Auckland area and that this has assisted your rehabilitation. The report writer recognises that imprisonment is the normal response but considers that any leniency shown to you would not be misplaced.

[7]    Mr Coombe, in 2002 Parliament passed a new sentencing law that requires a sentencing court to identify the aggravating features of the offending, the mitigating features, and what the legislation calls the purposes of sentencing on this occasion. That is what I now do for your offending.

[8]    Concerning the purposes of sentencing, most of the matters listed in the statute have some applicability. However, I consider the particularly relevant ones to be first denunciation. Your offending occurred in August 2003. Methamphetamine was a problem then; it is a greater problem now. The courts must play their role in denouncing those who seek to increase the misery that this drug causes. Second, and related to the first, is deterrence. The courts are obliged to send a message that those who involve themselves in this illegal and harmful industry will pay the price. The third purpose is rehabilitation and reintegration into the community, and here one comes back to the dilemma that you pose. It is clear that the person standing before me today is not the person who offended in 2003. You have set yourself down a path of reintegration and that should be recognised in the sentencing.

[9]    Concerning aggravating features, the most obvious aggravating feature is the venue. Manufacturing this drug is dangerous. Choosing a public venue such as a motel, you endangered the welfare of other guests and the property of the owners of the motel. Having thought about it, I see little other matters of aggravation.

Manufacturing methamphetamine inherently involves a degree of planning, this offending commenced only that night and it does not appear to have been a particularly impressive or sophisticated effort.

[10]   The mitigating factors, that is those things which are in your favour, that I identify are your lack of previous convictions, your guilty plea, and the steps you have taken since your arrest.

[11]   You have heard today the submissions of both counsel. There seems to be agreement as to the relevant decisions that I must have regard to and not a lot of disagreement as to what they mean in your case. From those cases, your counsel suggests that the appropriate starting point is 3 years. The Crown counsel suggests 4 years. To explain, the starting point is where the process commences before I then give credit to matters that should be taken into account in your favour. The 3 years suggested by your counsel, Mr Foley, should bring home to you the seriousness of your situation.

[12]   I am satisfied that the appropriate starting point is 3½ years. That seems to me to be consistent with other sentencings in this Court and in particular I mention three cases - R v Smith (Miller J, Wellington, 20/10/04); R v Makorere (Ellen France J, 11/3/04) and R v Martin (Priestley J, 28/7/04). A 3½ year starting point recognises that what was involved here is a single attempt at manufacture which did not ultimately produce methamphetamine. However, it must also be recognised that it failed because you were stopped, rather than because of any efforts on your part to stop. I have no evidence as to the likely output and I have no sense that it would have been significant. Given the absence of this evidence, I treat this as a category 3 Wallace offence, coming towards the top but not right at it. I note again it was a single attempt and that the venue was an aggravating feature. The starting point of 3½ years also includes recognition of your possession offence, although I place little significance on it.

[13]   And so I come to the final sentence. The important question is what should happen once that 3½ year figure is identified. I do not wish to keep you in suspense. I am going to tell you what the sentence is and then I will explain to everyone

present why that is. You will be sentenced to 21 months imprisonment. You will be given leave to apply for home detention. I will defer the start of the sentence to enable you to keep working in the interim until your application for home detention is considered. You will be required to pay $730 reparation.

[14]   I will explain that sentence now for the sake of everyone here. I know that from the pre-sentence report there was perhaps some hope of no imprisonment and, as he properly should, Mr Foley raised that with me, but I would be failing in my duty if imprisonment were not imposed. Methamphetamine is a serious problem in our society and even one who has made the personal strides that you have made must realise that to involve oneself in the manufacture of these drugs is to inevitably invite imprisonment if you are caught.

[15]   I am very impressed by what you have achieved since your arrest. I have read the letters of support, the references, and I have considered the pre-sentence report. A 21 month sentence represents a reduction of 50% from the starting point. It recognises your guilty plea, your lack of previous convictions, the strong support  that you enjoy, and your own excellent efforts to get back on to the right path. It is the greatest weight possible that I can give to the statutory purpose of rehabilitation and re-integration, but I must not ignore the need for deterrence. By normal standards it is a large discount. It means that the final sentence of imprisonment is in fact lenient. But the Court of Appeal authorities by which I am bound recognise that in some cases one can take more account of personal circumstances than usually is possible in this area of sentencing for serious drug offending. I have endeavoured to do that and see your case as one of those.

[16]   I am satisfied that home detention is appropriate. You must understand that I am giving you leave to apply for home detention. It is not my decision as to whether you get that. The test that applies, counsel agree, is the old test which is somewhat easier to satisfy but I would have been satisfied under the new stringent test. Your efforts at rehabilitation, and your family and work situation make home detention plainly in the best interests of the community. Similarly, I am satisfied that deferral is appropriate. The present test these days is exceptional circumstances. The older

test, that was the law at the time you offended was ‘special reasons’. I am satisfied that either would have been met.

[17]   So Mr Coombe we come at last to the formal part of the sentence. If it assists I record in my sentencing remarks my view that home detention would be appropriate and in the interests of the community if the Parole Board is satisfied as to the suitability of the plan presented to it. So I formally sentence you to 21 months imprisonment on the attempting to manufacture charge; to two months  imprisonment on the possession charge, that sentence to be served at the same time. I give you leave to apply for home detention under s 97 of the Sentencing Act 2002. I defer the start of the sentence for period of two months or until the Parole Board determines your application, whichever comes sooner. I grant you bail. Mr Foley will no doubt explain the detail to you but the law provides that that bail is subject to specified conditions which in summary are these:

a)You must apply for home detention within two weeks of today;

b)You must appear before the Parole Board as the Board requires;

c)You must surrender yourself to the prison at the end of the two months or whenever the Parole Board decision is given, whichever comes first.

[18]   I also continue the conditions of bail that you have been on up till today. They are that you reside at 15 Rawene Street, Hamilton; that you surrender your passport and not apply for any other passport, and that you report to the Hamilton police station Mondays and Fridays until your application is determined.

[19]   Finally, I order that you pay reparation of $730 in favour of the motel owner. This is to be paid at $30 a week, either from when home detention is granted or otherwise upon your release.

Simon France J