R v Corless
[2014] NZHC 1211
•30 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-090-2181 [2014] NZHC 1211
THE QUEEN
v
SCOTT JAMES CORLESS
Appearances: M Walker for the Crown
B Sellars for the Prisoner
Sentence:
30 May 2014
SENTENCING NOTES OF ELLIS J
Counsel/Solicitors:
M Walker, Meredith Connell, Auckland
B Sellars, Barrister, Auckland
R v CORLESS [2014] NZHC 1211 [30 May 2014]
[1] Mr Corless you are for sentence today, having pleaded guilty to two groups of methamphetamine related offences committed over a 2 year period between April
2008 and May 2010. The charges were the result of three searches by the Police, one of a property in Te Atatu and two of your home in Titirangi.
[2] Before turning to the matter of your sentence, though, it is necessary I think to put on record why it is taken quite so long to get to this point.
[3] Following the search of the Te Atatu property on 2 February 2009 you were arrested but then bailed to your home address at Otitori Bay Rd. You were arrested again after the first search of that property on 29 April 2009. You were bailed to that address again. The third search occurred on 7 May 2010 and you were again arrested. You have been in custody since then.
[4] On 11 October 2010 you pleaded guilty to 5 charges arising out of the second search, namely:
(a) one count of possessing precursor equipment;1
(b) one count of possessing a class C drug, namely 542 tablets of BZP
and TFMPP, for supply;2
(c) one count of unlawful possession of a .22 rifle;3
(d) one count of unlawful possession of a pump action shotgun;4
(e) one count of unlawful possession of ammunition;5
[5] Before your trial on the second group of charges was scheduled to commence on 20 September 2011, you sought to challenge the admissibility of the evidence
obtained as a result of the Te Atatu search. That challenge was dismissed by the
1 29 April 2009.
2 29 April 2009.
3 29 April 2009.
4 29 April 2009.
5 29 April 2009.
District Court on 15 June 2011 and your appeal was dismissed by the Court of Appeal on 30 August 2011. In the event the trial scheduled for September was adjourned to May the following year.
[6] Then, after reaching an agreement with the Crown that 15 of the second group of charges would not be pursued on the morning your trial was scheduled to commence, that is 29 May 2012, you pleaded guilty to:
(a) One count of possessing 25.8 grams of methamphetamine for supply6; (b) Two counts of manufacturing methamphetamine7;
(c) One count of receiving stolen property (four Apple Macbook computers valued at $2400 each)8;
(d) One count of possessing methamphetamine9;
(e) One count of unlawful possession of a 357 magnum revolver10;
(f) One count of unlawful possession of a Russian semi-automatic sniper rifle11;
(g) One count of unlawful possession of a high powered air rifle12; (h) One count of unlawful possession of ammunition13.
[7] After entering the second group of guilty pleas your sentencing was delayed by a disputed fact hearing relating to the scale of your manufacturing activities. That hearing took place over 3 days in June 2013. Mr Walker submitted today that the
Crown was put to proof on almost its entire case against you at that hearing.
6 2 February 2009.
7 Between 30 April 2008 and 29 April 2009 and between 30 April 2009 and 7 May 2010.
8 1 August 2008 – 29 April 2009.
9 7 May 2010.
10 7 May 2010.
11 7 May 2010.
12 7 May 2010.
13 7 May 2010.
[8] Further delay has resulted from the Crown’s application under s 142B of the Sentencing Act for an instrument forfeiture order in relation to your house in Otitori Bay Rd, which was used by you for manufacturing purposes. That application gave rise to three separate and successive applications for relief by third parties claiming an interest in that property, namely your ex-wife Laura, two of your children and your niece and nephews, who applied for relief later because they had not been served with the Crown’s instrument forfeiture application. The application by them is the one, of course, I heard this morning.
[9] Lastly, a conflict of interest caused your former lawyer, Mr Mansfield, more recently to seek leave to withdraw and the need for Ms Sellars to have time to get up to speed has added to the considerable time it has taken to get where we are today.
[10] Before telling you what sentence I am going to impose there are a number of things I need to record and say to you. I begin with the facts of your offending. I deal with those facts in three groups, based on the three searches to which I have already referred.
Facts
[11] In the morning of 2 February 2009 the Police searched a residential address in Alma Street, Te Atatu, Waitakere. You were visiting at the address and were in the garage area when Police arrived.
[12] In a bag hanging on a hook inside the garage Police found mail addressed to you, 28 grams of methamphetamine (25.8 grams dried), some self-sealing plastic bags and a plastic spoon.
[13] Following your arrest that day you were, as I have said granted bail to your home at 61 Otitori Bay Rd, where you had lived for about five years. It is relevant to note that you then had part time custody of Luke, your younger son, who lived with you there on weekends.
[14] As I have said, the first search of your home took place in the early morning of 29 April 2009. During that search the Police found equipment, material and pre-
cursor substances regarded as indicative of the manufacture of methamphetamine. They also found a small plastic Tupperware container containing 1.4 grams of crystal methamphetamine, empty zip lock bags and micro-scales.
[15] In the loft area of the garage and hidden under floor boarding was a pump action shotgun and .22 rifle. Also in the garage loft area of the garage was one live
.38 pistol round and another round of an unidentified calibre. Police found ammunition in the rear parcel tray of a Holden Commodore utility that was parked in the driveway of that address. They found nine .38 special pistol rounds in the master bedroom. At your work address they found one .22 round of ammunition.
[16] The Police also found four computers that were stolen in August 2008 from the Lincoln Heights School in Massey. Three were found at your work address and one at your home.
[17] A number of charges relating to your activities between 30 April 2008 and April 2009 were laid arising out of this search. You were again, however, bailed to your Otitori Bay Rd address.
[18] On the afternoon of 7 May 2010 the Police executed another search warrant there. What they found resulted in the third tranche of charges, involving offending between 30 April 2009 and that day, 7 May 2010.
[19] On that occasion the Police again found equipment, material and precursor substances indicative of the manufacture of methamphetamine. Police entered a large manhole that was in the centre of the garage ceiling. Inside they found a 357
Magnum revolver and 685 rounds of ammunition of various calibres. They found a
Russian semiautomatic sniper rifle hidden in the corner of the garage roof space.
[20] In a shed by the corner of the house was another hidden compartment, where the Police found a parr bomb. A snap lock bag containing 2 grams of methamphetamine was found in the bushes at the base of the rear deck.
[21] Police also found cash totalling $83,781.00 New Zealand dollars and
$1,800.00 Australian dollars. Some was found in an icecream container next to the ammunition,14 some was in a small bag,15 some was found on your person16 and the rest was locked in your safe in your bedroom.17
Disputed facts hearing
[22] The Police position has always been that, based on a raft of circumstantial evidence, you were engaged in the manufacture of very large commercial quantities of methamphetamine during the period 30 April 2008 to 7 May 2010. You disputed that and said that you had only been involved in manufacturing twice during that period and that on both occasions you had failed to produce any usable methamphetamine. As you know, I did not accept your evidence about that. What I said at the conclusion of my disputed fact judgment was this:
[56] In the end, I have no hesitation in concluding that the Crown has proved beyond reasonable doubt that Mr Corless manufactured over 500 grams in total during the period in question; even the amounts that can fairly precisely be quantified add up to that amount. A robust approach, based on the combined effect of the evidence I have summarised, would suggest that he manufactured a good deal more.
[57] For sentencing purposes Mr Corless therefore falls into Fatu18 band four.
Sentencing Act
[23] In any sentence involving the manufacture of drugs on a large scale, issues of deterrence and denunciation are obviously to the forefront. The only way in which the courts can realistically combat the scourge that is methamphetamine is by imposing deterrent sentences on those who are caught. The rewards for this form of offending are large. So the risks must also be known to be large. Anybody who manufactures methamphetamine on this scale must realise that they are liable to a
substantial sentence of imprisonment if they are caught.
14 $74,950.00.
15 $3,000.00 and $1,880.00 AUD.
16 $1,280.00 in his wallet and $1,000 in a jacket pocket.
17 $4,051.00.
18 R v Fatu [2006] 2 NZLR 72 (CA).
[24] At the same time, however, it is important that I try to impose a sentence on you that is broadly consistent with those imposed in similar cases. I say “broadly similar” because, as the authorities demonstrate, the circumstances of no two cases are ever the same.
Starting point
[25] So I now need to set the appropriate starting point for your sentence. The starting point is the sentence that would be imposed upon you having regard to all factors relevant to your offending, but excluding factors personal to you, which I will come to later.
[26] At this point I record that the manufacturing charges and the possession of methamphetamine for supply charge carry maximum penalties of life imprisonment. The Class C possession for supply charge carries a maximum penalty of 8 years imprisonment. The receiving charge carries a maximum penalty of 7 years imprisonment. The precursor equipment charge carries a carries a maximum penalty of 7 years imprisonment. The firearms offences variously carry maximum penalties of 3 years and 4 years imprisonment. The possession of methamphetamine charge carries a maximum penalty of 6 months imprisonment.
[27] Everyone here today is agreed that the two manufacturing charges are the lead offences for sentencing purposes. I also record that although the charges on which you are being sentenced arose out of three separate searches on different days over two years, I regard your offending during this time as being continuous. I also accept that the receiving and firearms offences for which you are being sentenced today were connected with your drug offending. That was clear enough from the disputed fact hearing and from the exigencies of your own severe methamphetamine addiction. So for that reason I propose to take a concurrent rather than cumulative approach to your sentences today, although of course I must also take into account the totality of your offending.
[28] As I’m sure you know by now, Mr Corless, manufacturing that falls within what is known as Fatu19 band four means that the starting point for your sentence today lies somewhere between 13 years and life imprisonment. And the Crown submits that the manufacturing charges on their own in your case should carry a starting point of 14 years. Ms Sellars, on your behalf, put it at only a little less. I think she said 13 years. I accept what Ms Sellars said on your behalf about
premeditation and sophistication being a necessary part of offending such as yours, and also that your own dreadful addiction played a significant role in your offending. But taking into account my findings in the disputed fact hearing and the very great harm that people like you, who are prepared to manufacture methamphetamine, do to the wider community. I consider that 14 years errs, if anything, on the side of generosity. But a 14 year starting point is what I propose to adopt.
[29] As far as the precursor materials are concerned, the Court in Fatu (at [42])20 observed that where large quantities of methamphetamine have been manufactured, the criminality of gearing up to manufacture may be absorbed in the culpability of the primary offending. So the equipment found in 2009 that forms the basis of the precursor charge can, I think, properly be regarded as part and parcel of your manufacturing activities. In saying that, though, I do not disregard the fact that the materials and equipment that were seized after the first search at Otitori Bay Road were then entirely replaced by you. I also consider the separate possession of methamphetamine charge is really part and parcel of your primary manufacturing offending.
[30] Some separate recognition does, however, need to be given in your sentence to the possession for supply of the Class B drugs and to your possession for supply of methamphetamine in February 2009, which was before the period in which the relevant manufacturing occurred. Similarly, I consider that the considerable number of firearms and ammunition that were found during the searches require separately to be recognised by way of uplift. In that respect I have to say I reject your explanation for their presence at your property. Drugs and firearms are often found in close
proximity and, taken together, they often prove to be a deadly mix. On their own I
19 Above n 14.
20 Above n 14.
have no doubt that the charges relating to the guns and the ammunition would attract a sentence of at least 18 months imprisonment. I consider that an uplift of two years is required to recognise the firearms, the receiving and the other drug offences, as the totality of your offending.
[31] Other relevant matters requiring an increase in the starting point are the fact that your manufacturing activity, which gave rise to the two lead charges and indeed almost all of your other offending, occurred while you were on bail. Nor am I able to disregard that your offending took place in your home, where Luke regularly stayed. Even if I were to accept what you have said about being careful not to manufacture or to deal when he was there, and I must say I do tend to accept that, the reality is that his hair did test positive for methamphetamine; he was plainly exposed in one way or the other so I need to give a further uplift of one year for those matters. That gives a starting point of 17 years.
[32] I turn now to consider factors personal to you that might mean that that 17 year starting point should be increased or decreased.
Aggravating factors
[33] In terms of aggravating factors, you do have previous convictions, including minor drug-related offending. But you have never appeared for sentence before on anything remotely resembling the charges we are dealing with today. The Crown realistically accepts that no further uplift should be imposed for that earlier offending.
[34] Having said that though, you need to be aware, Mr Corless, that from now on you will be viewed by the Courts as a drug manufacturer on a large scale. So if you appear for sentence again on charges such as these, there is no doubt that the sentence will be increased to reflect the fact that you have not learnt the lesson that the sentence I impose today is designed to convey to you.
Mitigating factors
[35] In terms of potentially more positive factors I now want to say something briefly about your personal circumstances. I begin by acknowledging that you have had some very serious health issues in the last 10 years and that the after effects of these may make prison difficult for you. I also acknowledge that you have had some very difficult life events which I accept may well have led, at least in part, to your addiction in the first place. As well, Ms Sellars has said that you are remorseful, and this is reflected in comments made in the most recent pre-sentence report which also assesses the risk of your reoffending as low. I acknowledge that in the four years you have been in prison awaiting sentence it seems you have taken steps to rehabilitate yourself, to address your addiction and to be a positive influence within Mt Eden. However, you are, as you will appreciate Mr Corless, living in a controlled environment in prison and the real test as to whether you can put your addiction behind you will have to await your release.
[36] I also record that I have received and read three letters, one from you, one from your son Luke and one from Michael Baker. I acknowledge both their presence here today in support of you. In terms of your letter, I acknowledge that you are sorry for the effect that your offending has had on you and your family. For the reasons given by Mr Walker today I have some reservations in accepting that you wholeheartedly take responsibility for what you have done or the harm that offending such as yours does to society as a whole. Luke’s letter, and what he said today, I think was genuine and very touching. He says that he believes you “have the power to change from a bad but loving man to a loving and a good man”. He says you can easily be a great person and asks the Court to trust him about that. He says you have been responsible for him doing well at school and how difficult your imprisonment is for him. You are lucky, I think, to still have his love and support. As I said before I think you can be very proud of him and I hope that you will get the chance to prove to him that his feelings are well founded. Mr Baker’s letter is also very supportive and hopeful for the future.
[37] As you are probably aware, however, personal matters tend to count for little in drug offending as serious as yours. Generally speaking, they must be put to one
side and cannot be given any real weight. That is what courts higher up than this one have said. In your case, I am prepared to reduce the 17 year starting point by 9 months to reflect the factors I have just mentioned.
[38] I now need to say a bit more about the instrument forfeiture application. Initially an order was sought that the whole of the Otitori Bay Rd house was forfeit to the Crown. The property, which has recently been valued at $800,000, is owned by the Soul Mate Trust but you have realistically accepted that you have effective control over it. There is no mortgage.
[39] As you know, as a result of the various applications for relief that have been made, I have held that your ex wife Laura has an interest in the property that I have assessed at half the current market value, namely $400,000. As you know after the hearing this morning I have decided that whatever debt you almost certainly owe to your nephews and niece is better dealt with in another way.
[40] So that leaves you with a share of 50 per cent, which is, as I have said, valued at $400,000. Although I raised with Ms Sellars the possibility of a partial forfeiture you told her you accepted your whole interest in the property should go to the Crown so that is what I propose to order.
[41] I consider that in all the circumstances of your case it would be appropriate to recognise the significance of that forfeiture by a 3½ year discount on your sentence and I also record at this point the discussions we had today in which Mr Walker agreed that the Crown would endeavour to ensure that Luke’s legal bills will be met out of the forfeited amount.
[42] Lastly there is the matter of your guilty pleas. There has been a debate today about their circumstances and timeliness. I largely accept what Mr Walker has said about that which was in particular that your guilty pleas to all of the more significant counts, including the two lead manufacturing charges were entered on the morning of your trial and that the lengthy disputed facts hearing meant that the advantage to the State that a guilty plea recognises usually was largely absent in your case. But I have also heard what Ms Sellars has said about that on your behalf and you will have
heard what I said earlier about the withdrawal of the 15 counts on the day of the hearing, which I am sure played some part in all of that.
[43] After considering everything that has been said I have concluded that 21 months discount for your guilty pleas is appropriate here. That would give an end sentence of 11 years imprisonment.
Minimum term of imprisonment
[44] In any case involving offending as serious as this the Court must give consideration to making an order requiring the offender to serve a minimum term of imprisonment before being eligible to apply for parole. The Court has that power under s 86 of the Sentencing Act 2002 in any case where it is satisfied that the usual parole provisions will be insufficient to reflect principles of deterrence, denunciation and accountability.
[45] In your case I think you would ordinarily be eligible to apply for parole after serving just four years of your sentence. I think those four years may nearly be up. The seriousness of your offending is such that I do not consider that eligibility for parole after four years could meet the principles of sentencing to which I have referred. I consider that they can only be met by the imposition of an order requiring you to serve a minimum term of six years imprisonment on the lead charges.
Sentence
[46] So, Mr Corless please stand up now.
[47] Your half share in the Otitori Bay Road house will be forfeit to the Crown. The market value of that property as a whole is $800,000.
[48] On the two manufacturing charges in respect of which you faced a maximum sentence of life imprisonment you are sentenced to 11 years imprisonment.
[49] On the precursor equipment charge you are sentenced to 4 years imprisonment.
[50] On the charge of possession of methamphetamine for supply21 you are sentenced to 4 years imprisonment.
[51] On the Class C possession for supply charge I sentence you to one years imprisonment.
[52] On each of the firearms charges you are sentenced to 18 months imprisonment.
[53] On the receiving charge you are sentenced to 6 months imprisonment.
[54] On the possession of methamphetamine charge you are sentenced to 3 months imprisonment.
[55] All those sentences are of course concurrent which means you serve them all at the same time, 11 years being the total.
[56] On the two charges of manufacturing methamphetamine, you are ordered to serve a minimum term of six years imprisonment before being eligible to apply for parole.
[57] I make an order for the destruction of the firearms, ammunition and the associated drug items located during the searches.
[58] Please stand down.
Rebecca Ellis J
21 Which falls within Fatu band 2, above n 14.
6
0
0