R v Coyle HC Auckland CRI 2006-004-3971

[2007] NZHC 1918

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-003971

THE QUEEN

v

JOHN EDWARD COYLE

Charge:Conspiracy to manufacture Class A controlled drug; Conspiracy to supply Class A controlled drug

Plea:               Guilty

Appearances: David Johnstone for Crown

Ron Mansfield for Prisoner

Sentenced:     26 June 2007

Conspiracy to manufacture – 2 years 9 months imprisonment
Conspiracy to supply – 18 months imprisonment (terms concurrent)

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown

Ron Mansfield (Auckland) for Prisoner

R V COYLE HC AK CRI 2006-004-003971  26 June 2007

Introduction

[1]      Mr  Coyle,  you  have  pleaded  guilty  to  one  charge  of  conspiring  to manufacture methamphetamine and one charge of conspiring to supply the same drug.  You are aware that the maximum term of imprisonment which I can impose on each offence is 14 years.

[2]      By way of introduction, I note that the periods of offending overlap and fall within a relatively tight timeframe in July and August 2005.  They arise out of the same  course  of  conduct.    The  facts  are  intertwined.    Accordingly,  the  Crown, through Mr Johnstone, accepts that I should impose concurrent sentences (that is, side by side) and not cumulative.  I am prepared to follow that practice today.

[3]      Before dealing with the formal parts of the sentence,  I acknowledge the presence in Court of your mother and friends.   You have heard her address me briefly this morning.  She has paid me the courtesy of a letter.  I acknowledge her pain as a parent and the suffering she has endured as a result of your recent drug addiction and offending.   Her letter, and Mr Mansfield’s submissions, will make a difference  to  the  term  of  imprisonment  which  I  impose.    It  is  most  unusual, Mr Coyle, for a prisoner in this Court to have the benefit of ongoing family love and support.

[4]      I must deal first with the facts.  They will determine the length of your prison sentence.

Facts

[5]      Sometime within the past 10 years, apparently following your father’s death, you  started  using  drugs.    You  became  addicted.    You  fell  in  with  undesirable elements in our community.   In 2001 you were convicted for importing a Class B controlled drug.  However, I note that you received a merciful sentence.  I can only assume that your offending was at the lesser end of the scale.  Nevertheless, over the next four years you and others with whom you associated continued to commit drug related crimes.

[6]      In 2005, as a result of intercepting communications, the police learned that you were acting as an assistant to the patched member of a motorcycle group who was manufacturing methamphetamine.  Over that relevant period in July and August he made at least 283 grams.   It is common ground that while you assisted, your participation was limited in two respects: (1) you were purely an assistant; (2) you were only involved in some of the manufacturing.

[7]      During this period, and this is the source of the charge of conspiring to supply, you sold one to two grams of methamphetamine weekly to an associate.  It is accepted that you were not paid for these transactions.  You were given drugs for personal use.

[8]      In his written submissions, Mr Mansfield has referred to the financial duress that was imposed upon you by others.  He said that you were subject to threats of physical violence also if you did not participate.  That may be correct, but you know it is no excuse.

Starting Point

[9]      Against that brief background, I must fix the starting point for your sentence. That is the term of imprisonment which is appropriate to reflect your wrongdoing or culpability if the circumstances of your offending are considered in isolation and before I take into account any personal factors which may increase or reduce the starting point.

[10]     The starting point, Mr Coyle, reflects the well settled sentencing principles of deterrence, denunciation and punishment.  You do not need me to repeat what many other Judges have said in this jurisdiction.  Methamphetamine is a truly evil drug.  It destroys families, relationships and friendships.  It has a particularly and pernicious antisocial effect. You know more than anyone in this Court the destruction it causes.

[11]     Three factors are particularly relevant in the mix of fixing the starting point. First, the charge of conspiring to manufacture is the more serious.  It is the lead or index sentence.  In using that charge as the guideline, I must take into account within

it on the totality principle your offending on the charge of conspiring to supply.  So the starting point  for  the conspiracy to  manufacture  reflects  your  culpability or wrongdoing on the charge of conspiring to supply methamphetamine.

[12]     Second, on the charge of conspiring to manufacture I have referred to the common  ground  that  283 grams  were  made.     If  you  were  charged  with  the substantive offence of manufacturing, and not of conspiring, you would be placed in what is known as the band 3 category of offending.  That has been set by a decision of the Court of Appeal in R v Fatu [2006] 2 NZLR 72 (CA). Essentially a principal party convicted of manufacturing methamphetamine, where the amounts range between 250 and 500 grams, is liable on a starting point for a term of imprisonment of between 10 and 15 years. However, and this is of great importance, I repeat that your role was secondary and your participation was limited. The Crown accepts that you were substantially less culpable than the primary offender. So this factor counts in your favour.

[13]     Third,  as  many  other  Judges  in  this  Court  have  recognised,  conspiracy charges present their own sentencing difficulties.   They are resolved in this way. The maximum sentence for a substantive charge of manufacturing methamphetamine is 20 years.   As  I said to  you before, the maximum sentence for conspiring to manufacture is 14 years.  That means, on those bands that I was talking about before, it is appropriate to apply a discount against the tariff sentences for manufacturing of about 30%: see R v Walters HC AK CRI-2005-488-013 17 May 2005, Venning J; R v Savage HC WHA CRI-2005-029-1267 24 July 2006, Lang J; R v Johnson HC WHA CRI-2006-088-001233 27 September 2006, Asher J.

[14]     Taking all those factors into account, I am satisfied that both counsel are correct when they reach general agreement on a starting point – for the Crown, Mr Johnstone says it should be in the range of five to seven years imprisonment; for you, Mr Mansfield says the range is between five and six years.   I repeat that the starting point I adopt will also reflect your plea of guilty on the supply charge.  You do have previous convictions, as I mentioned, for drug related offending.   By my assessment there are three – in 2001, 2004 and 2007.   All are relatively minor.

Taken  together  they are  not  sufficient  to  justify an  upward  adjustment  in  your starting point.

[15]     Balancing all the factors, Mr Coyle, I intend to adopt a starting point of five- and-a-half years on the charge of conspiring to manufacture methamphetamine.

Personal Circumstances

[16]     I now come to your personal circumstances.  First and foremost in your credit is your plea of guilty.  It was entered early.  It reflects many things.  It is a sign of remorse, contrition and, from my assessment, the first step on the road to rehabilitation.  In this case it will have a particularly beneficial effect to the Crown and to you.

[17]     Second, there are your general circumstances.  Mr Coyle, it is unusual to see somebody like you before the Court.  You are 34 years of age.  You are single.  You have no dependants.  You are one of two siblings.  You have your mother here, as I said before, to support you.  You are obviously a person of considerable intelligence. You have passed your university entrance qualification.  You have also completed a business certificate at Auckland Technical College.

[18]     You are described by your mother as a sociable and likeable young man when  not  under  the  influence  of  drugs.    As  her  letter  highlights,  she  cannot understand why and how a loving son like you followed the wrong path and mixed with the wrong people.  She believes, and so do I, that you are now willing to take steps to turn your life around and to abstain from criminal behaviour.  The sentence that I impose is designed to assist you along the path of rehabilitation.

[19]     On those circumstances I would have applied a discount of 30% against your starting point of five-and-a-half years.   However, for other reasons which I shall record in a separate memorandum which is to be sealed and held on the Court file, I am prepared to allow an additional 20%.  Thus the discount from the starting point for all your personal circumstances is 50%.

[20]     The sentence imposed upon you on the charge of conspiring to manufacture methamphetamine is two years and nine months imprisonment.   The sentence imposed  on  you  on  the  charge  of  conspiring  to  supply  methamphetamine  is

18 months imprisonment.  Both of those sentences are to be served concurrently.

[21]     Before I conclude the formal parts of this sentence, Mr Coyle, I note that you have committed two very serious crimes against the community.  You must pay the price in the term of imprisonment imposed upon you.  But I acknowledge also your courage and the steps you have taken since you were apprehended.  I acknowledge also your personal characteristics.  All this will mean that you have to pursue a life

elsewhere and start anew.  In that endeavour I wish you well.

Rhys Harrison J