R v Craig & Young HC Ham CRI 2006-072-577

[2008] NZHC 2265

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-072-577

QUEEN

v

BRIAN JOSEPH CRAIG AND BRENT WILFRED YOUNG

Hearing:         18 April 2008

Appearances: P Crayton for Crown

P Morgan QC for B Craig

P Mabey QC for B Young

Judgment:      18 April 2008

Sentence imposed:     Brian Joseph Craig:

Possession of equipment with intent

280 hours community service and nine months’ supervision

Possession of a precursor substance with intent

280 hours community service and nine months’ supervision

(concurrent)

Brent Wilfred Young:

Possession of equipment with intent

Nine months’ home detention

Possession of a precursor substance with intent Nine months’ home detention (concurrent) Possession of utensils

Nine months’ home detention (concurrent)

SENTENCING NOTES OF ASHER J

Solicitors:

Almao Douch, PO Box

P Morgan QC, PO Box 19 021 Hamilton

P Mabey QC, PO Box 13 199, Tauranga

R V CRAIG &  YOUNG HC HAM CRI-2006-072-577   18 April 2008

[1]      Brian Joseph Craig and Brent Wilfred Young, you have both pleaded guilty to a number of charges, which relate to the possession of equipment and utensils for the manufacture of methamphetamine.

[2]      In particular, Mr Craig you have pleaded guilty to the following charges:

a)        Possession of equipment with intent, with a maximum penalty of five years’ imprisonment; and

b)Possession  of  precursor  substance,  acetone,  with  intent,  with  a maximum penalty of five years’ imprisonment.

[3]      Mr Young you have pleaded guilty to the following charges:

a)        Possession of equipment with intent, with a maximum penalty of five years’ imprisonment;

b)Possession of precursor substance (toluene and acetone) with intent, with a maximum penalty of five years’ imprisonment; and

c)        Possession of utensils (glass pipe), with a maximum penalty of one year imprisonment.

The facts

[4]      The facts are straightforward.  On the morning of 3 August 2006 the police executed  a  search  warrant  on  your  property,  Mr Craig,  at  986  Oakura  Road, Otorohonga.   You were present there at the time, together with Mr Young.   Your utility vehicle, Mr Young, was parked in front of Mr Craig’s workshop.  The police and members of the clandestine laboratory team located in the vehicle the following items:

ƒ        On the backseat an electric frying pan with a white residue, being traces of

methamphetamine     and    the     by-products     of     the     manufacture     of methamphetamine.

ƒA three litre water bottle containing a two-layered liquid.  The top layer was toluene showing traces of methamphetamine and the by-products of the manufacturing process.

ƒA 2006 diary which contained entries consistent with substances and their values related to the manufacture of methamphetamine.

ƒA Wrightson’s notebook containing a diagram and entries consistent with an endeavour to manufacture methamphetamine.

ƒOn the front seat in a grey camera bag there was a glass methamphetamine pipe.

ƒIn the workshop of the property the police located within the deep freeze a pyrex measuring jug.   It was analysed as being acetone containing methamphetamine and by-products from the manufacture of methamphetamine.  The contents were not frozen.

ƒAlso in the workshop the police found three electric frying pans in a black rubbish bag.   Each of the frying pans had a white residue on the inside surface which showed traces of methamphetamine and by-products of methamphetamine.

You, Mr Craig, spoke to the police at the time of their investigation.  You indicated that the electric pans did not belong to you but that you realised that they might have something to do with the making of methamphetamine.

The approach to sentencing

[5]      As  I have observed,  the maximum  penalty in  relation  to  the  charges  of possession of precursor substances and equipment is five years’ imprisonment.   A

wide range of sentences have been imposed in cases involving these charges over recent years.  In R v McLean CA102/05 18 August 2005, it was stated that precursor offending in respect of a class A controlled drug would be more serious than similar offending in respect of a class C controlled drug.  It is a significant issue whether the possession is of a custodial nature, rather than in the nature of permanent ownership.

[6]      Starting points from 15 months’ imprisonment to four years’ imprisonment can be seen in a large number of cases including: R v Gaylor (High Court Hamilton, H25487,  14 October 2004,  Williams J),  R  v  Broome  (High  Court  Auckland, CRI 2004-044-008658,  6 December 2005,  Venning J),  R  v  Hudson  (High  Court Tauranga, CRI 2005-070-001563, 8 September 2005, Simon France J), R v Morehu (High Court Wellington, CRI 2005-032-000815, 25 August 2005, Goddard J) and R v Gibbons (High Court Auckland, CRI 2005-004-002579, 8 February 2006, Asher J).

[7]      There is no tariff case or straightforward principle that can be applied in reaching the appropriate starting point.  Counsel, while accepting this, did not seek to persuade me that there was any particular precedent that was directly applicable.

Submissions

[8]      The Crown submitted that in relation to Mr Craig the appropriate starting point for sentence ranged between 12 and 18 months.   This relatively low starting point reflected the Crown’s acceptance of the limited nature of his involvement, which I will refer to shortly.  Mr Morgan for Mr Craig strongly submitted that the Court  should  take  the  step  in  this  case  of  not  sentencing  Mr Craig  to  either imprisonment or home detention, but rather to a sentence of community work and supervision.

[9]      In relation to Mr Young, the Crown’s starting point was 18 – 27 months’

imprisonment.   Mr Mabey, while inclined to suggest that the maximum could be

24 months, did not quibble at this assessment.   He submitted that the appropriate sentence  in  all  the  circumstances  for  Mr Young  could  be  home   detention. Mr Crayton in his helpful and fair submissions did not argue that home detention would not be an appropriate sentence for either Mr Craig or Mr Young.   He did

however resist Mr Morgan’s submission that in relation to Mr Craig a sentence lower in the hierarchy than home detention could be appropriate.

[10]     I will follow the order of indictment in dealing with Mr Craig’s position first and will then move to that of Mr Young.   In relation to each offender I will fix a starting point relating to the offending and then move to matters personal to the offender.

Mr Craig

[11]     The facts as outlined show that you, Mr Craig, were guilty of possession of three electric frying pans and a container of acetone.  The electric frying pans do not appear to have been operable.   The acetone came to about 250 milligrams, being about a glass full.  It had been used.  The fact that it was not frozen indicated that it had only recently been placed in the freezer.  The Crown immediately accepted your counsel’s submissions that your involvement was not central and indeed could be described as peripheral.  You were carrying out an exercise of storage as a favour for other persons.

[12]     The offending therefore has the following features:

ƒA very limited involvement, being storage for other persons.   It seems that the non-frozen nature of the acetone would indicate that storage had just begun.

ƒA very limited quantity of equipment and materials.  Most of the equipment and  materials  necessary  for  a  methamphetamine  laboratory  were  absent. There were no pseudoephedrine products, no toluene, no acids and none of the beakers, vials and other equipment usually seen with methamphetamine

laboratories.

[13]     Mr Crayton made the point that an intention to use the equipment for the purpose of making methamphetamine is conceded in the pleas of guilty.  Accepting that, these facts place the offending right at the bottom of the scale of seriousness.

There was nothing to indicate commerciality or indeed any active participation in any process leading towards the production of methamphetamine.  All that has been demonstrated is knowledge and the very short term receipt of some minor pieces of equipment and materials.

[14]     In my consideration of the cases to which I have been referred I have not seen a case involving such a low degree of culpability.  I refer in particular to two cases. In  R  v  Fountain  CRI 2004-044-007303  HC  AK  1 February 2008,  Andrews J,  a starting point of 15 months was fixed where a greater number of items were found than here, consistent with the extraction of pseudoephedrine on the day of the search. The  offender’s  fingerprints  were  on  the  items.     In  R  v  Gibbons  HC  AK

8 February 2007, Asher J, the offender was involved by assisting over a very short period of time in moving an entire portable methamphetamine laboratory from a motel unit to a car.  A starting point of 15 months was fixed in that case.

[15]     Given the unusual features of this case a starting point of 12 months or even less can be seen as consistent with the principles of sentencing in the Sentencing Act and other authorities.

[16]     I turn to matters relating to you personally.  I propose treating you as a first offender.  You have been convicted of some other more minor charges but they all arose  from  the  same  search.    The  Court  has  been  provided  with  a  full  and sympathetic pre-sentence report.   You are 38 years old and live with your partner and 10 month-old baby on a farm in the Otorohanga district.  You have your own electrical contracting business servicing farms in the area.  It is a successful business which has been operating for approximately ten years.  You had the frying pans and liquid placed in your shed by Mr Young without encouragement on your part.  The drug abuse screening test results show no indication of drug abuse.  You appear to be remorseful.

[17]   I have been provided with a number of references from people in the community.  These confirm the impression provided in the pre-sentence report of a man of good character who is respected in the area.   You are supported by our partner and your parents.  You are described as a solid citizen and a reputable and

hardworking member of the community.   In terms of an orthodox sentencing approach you are entitled to substantial credit not only for your guilty plea but for your good character and remorse.   It is in this context your counsel has urged a sentence that is less than imprisonment or home detention.

[18]     It  was  stated  by  the  Court  of  Appeal  in  R  v  Anderson  CA425/06

23 April 2007 at [39], that:

… sentences of imprisonment are appropriate for those who have precursor substances along with chemicals and equipment for manufacturing methamphetamine, even where the offender has limited involvement and where there are personal circumstances that call for some leniency.

That was in the context of a case where there was extensive equipment found including flasks, beakers and condensers and 500 pseudoephedrine tablets.  It seems that the storage there had been going on for some time.

[19]     Since R v Anderson there have been changes to the Sentencing Act.   The changes encourage sentences other than imprisonment where appropriate, modify the nature of home detention and create the sentence of intensive supervision.   In the Explanatory Note to the Bill that led to the 2007 amendments it was stated that:

The new sentences of intensive supervision and home detention include a special condition that allows the Judge to impose judicial monitoring of a offender’s compliance with the sentence in appropriate cases. … The proposed  process is  particularly aimed  at  borderline  cases,  that  is  cases where the decision to impose either a community-based option or a sentence of imprisonment is finely balanced.

It was also stated:

The purpose of the Bill is to introduce a range of measures to arrest the sharp increase in the prison population in recent years.  This increase is no longer sustainable, neither financially nor socially.

[20]     In R v Sullivan CRI 2005-004-020922 HC AK 6 December 2007, Venning J noted the changes.   He imposed a sentence of community work and intensive supervision in relation to similar charges.  The process of sentencing now has to be approached taking into account the new range of sentences that are available.

[21]     I note in particular the hierarchy of sentences and orders set out in s 10A of the Act.   What your counsel seeks is in fact the fourth ranked sentence in the hierarchy, behind imprisonment, home detention, and intensive supervision and community detention.

[22]     Section 6(4)  of  the  Misuse  of  Drugs  Act 1975  and  the  presumption  of imprisonment for serious drug offences does not apply.   The Court is obliged to impose the least restrictive outcome that is appropriate in the circumstances under s 8(g) of the Sentencing Act.   In terms of s 16 the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with public safety.   I accept of course that personal factors can only be given limited weight where serious drug offending is concerned.  Deterrence remains a principal aim of the sentencing process.  However, the very unusual features of this case persuade me that a sentence that is less than imprisonment or home detention is consistent with the sentencing principles that must be applied.

[23]     To sum up, the following factors persuade me to this position:

ƒThe culpability of the offending is right at the bottom of the scale involving: (a)      a short term acceptance of custodial possession of some very minor

items  of  unusable  equipment  and  a  small  quantity  of  the  used chemical acetone;

(b)       no element of commerciality; and

(c)       a level of involvement that was peripheral and passive.

ƒ        You have no previous offending.

ƒYou can be fairly regarded as of good character, having proven that over a lengthy period in your community.

ƒThe  offending  appears  to  have  been  one  off  and  arising  from  particular circumstances.

ƒ        The   probation   officer   in   the   pre-sentence   report   recommends   either

supervision and community detention or community work.

ƒYou show real remorse and  you express convincingly a wish not to  get involved in drugs further in any way.  You are assessed as low risk.

These factors support a sentence that enables you to stay fully in your community and allows you to work.

[24]     Putting to one side imprisonment and home detention, I must consider the third  options  in  the hierarchy of  sentences  which  are  available,  being  intensive supervision and community detention.  Intensive supervision should only be imposed if the Court is satisfied in terms of s 54C that such a sentence would reduce the likelihood of further offending through the rehabilitation and reintegration of the offender.  The nature of the offender’s rehabilitative or other needs must require the imposition of such conditions for a period longer than 12 months.   Further, the ability to meet these rehabilitative needs should not be available through the imposition of a sentence of supervision.

[25]     Those requirements are not met in this case.  Your past record and character as summed up in the probation report and references indicate that you do not need this sort of rehabilitation and reintegration.  I do not consider intensive supervision to be an appropriate penalty.

[26]     Section 69(c) of the Sentencing Act sets out guidance on the imposition of community detention.   That is appropriate where the sentence would reduce the likelihood of further offending by restricting the offender’s movements during specified periods, including but not limited to offending of a particular type or at a particular time.  It is a sentence which undoubtedly would suit the young offender who could be tempted to commit crimes at certain times, or in certain specific conditions, if he or she was not restricted.   It is not the sort of sentence that is tailored to a mature offender, such as yourself, being of otherwise good character, showing genuine remorse, and who in the Court’s view does not require insulation from temptations that would otherwise arise.

[27]     Thus, although I would naturally have turned to the third ranked sentence in the hierarchy, I put to one side intensive supervision and community detention as not suited to your particular position.

[28]   This leads to a consideration of the sentence of community work and supervision.  I consider that, for all the reasons that I have already set out, this is the appropriate sentence given, I emphasise, the very unusual features of your case.   I consider that the appropriate sentence in all the circumstances will be 280 hours community work, with supervision for a period of nine months.  I will return to this at the end of this sentencing.

Mr Young

[29]     Mr Mabey  properly  accepted  the  differentiation  between  your  position, Mr Young, and that of Mr Craig.  You have not sought to argue that the equipment found in the car was not yours and that you did not have some active involvement in it being there.   However, two  points  must  again  be  noted.    First,  although  the equipment and materials are more extensive than those which were in the possession of Mr Craig, there was still a relatively limited quantity of equipment and materials, being effectively only one used frying pan, some toluene, and the limited items inside.  In addition, there was the diary and notebook indicating some involvement in the process of manufacture of methamphetamine, and in the front seat of the car the glass methamphetamine pipe.   There were no indications that you were running a commercial operation.

[30]     I consider therefore, that the Crown and your counsel are correct in placing your involvement towards the lower end of the spectrum, although not in the same position as that of your co-offender.   A complete laboratory was not present and there was little evidence of commerciality.  The fact that you were transporting this equipment and material to be stored and had taken steps to take notes in relation to it cannot be ignored.  I consider that the appropriate starting point for your sentence is a period of two years’ imprisonment.

[31]     I  turn  to  matters  relating  to  you  personally.    Your  pre-sentence  report contains many encouraging remarks.   You have had a troubled background.   You have been a member of the Outcast Gang and  your record shows a number of previous convictions.  The most serious is a 1998 conviction for cultivating cannabis and possession of cannabis for supply in respect of which you were sentenced to two years’  imprisonment.    However,  since  then,  save  for  one  relatively minor  theft conviction, you have kept out of trouble.

[32]     Your pre-sentence report indicates that you have developed a relationship with your present partner that is healthy and supportive.  She has provided a letter to the Court which shows impressive commitment to you and faith in your future.  The probation officer assesses you as being at a low-level risk of reoffending.   The probation officer appears to accept that you have made significant changes to your lifestyle and that you demonstrate genuine remorse.   Indeed, the probation officer recommends community work of 250 hours.  Community work certainly would not be warranted given the circumstances of your offending and previous record. However, you are entitled to a full discount for your guilty plea.   I intend to go a little further than that and give you an even greater discount, given the way you appear to have turned a corner in your lifestyle and in light of the genuine remorse you have shown.  It is to be noted that you hold regular employment, but that would have to be suspended if you were sentenced to imprisonment or home detention.

[33]     Given  all  of  these  factors  I  consider  that  the  appropriate  period  of imprisonment,  should  that  be  the  ultimate  sentence,  would  be  a  sentence  of

16 months’ imprisonment.

Home detention

[34]     I turn now to the issue of home detention.   This is the penalty sought by Mr Mabey.    The  jurisdictional  threshold  is  set  out  in  s 15A  of  the  Sentencing Act 2002.   The Court must be satisfied that the purpose or purposes for which sentencing is being imposed cannot be achieved by any less restrictive sentence or combination of sentences,  and  the  Court  must  be in  a position  where it  would otherwise sentence the offender to a short-term sentence of imprisonment.  That is

the position that applies here.  A sentence less restrictive than imprisonment or home detention would not be appropriate.   However, as I have outlined, the sentence of imprisonment to be imposed here would be a short-term sentence of imprisonment, being a sentence of less than two years.

[35]     The new provisions of the Sentencing Act do not set out any principles that are to be applied when considering whether home detention is the appropriate sentence.   I take into account the observations of the Court of Appeal in R v Hill CA559/07 29 February 2008.  It was concluded there that home detention is intended to be a mechanism to reduce the number of people sentenced to imprisonment.   It reflects the perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment.

[36]     I consider that the relatively low level of your culpability combined with the very positive pre-sentence report and your good future outlook make home detention the appropriate sentence.   I have a report relating to your home conditions, which indicates that your home environment will be entirely suitable for such a sentence.

[37]     The next matter to be determined is the period of the home detention.  Home detention can only be ordered where the offender would otherwise be sentenced to a short-term sentence of imprisonment, being two years or less.  The maximum period of home detention is 12 months.   This is undoubtedly an indication that on some occasions a home detention sentence half the length of the sentence of imprisonment that would otherwise be imposed can be the right sentence.   Involved in such consideration is the fact that a person sentenced to a short-term sentence of imprisonment of two years or less by s 86 of the Parole Act 2002 should serve only half their sentence.   In that situation an injustice would arise where an offender served the same period of time in home detention that would otherwise have been the full sentence of imprisonment.  The overall period of imprisonment would, in such a case, last twice as long.

[38]     It   was   noted   in   Golding   v   Police   HK   WHG   CRI 2008-488-0003

14 February 2008 Rodney Hansen J, that the appropriate sentence of home detention

was not automatically half the alternative sentence of imprisonment.  It must also be borne in mind that home detention is a less onerous sentence than imprisonment.  It does not involve incarceration.   The offender may live at home within a family environment.  It is a particular type of sentencing option and its duration turns on a consideration of its particular features, against the relevant facts of the offending and the circumstances of the offender, as well as the particular features of the proposed home and its occupants.

[39]     I consider here, taking into account all the matters mentioned, that the correct sentence of home detention is nine months.

[40]     I would ask you both to stand up please now, Mr Craig and Mr Young.

[41]     Mr Craig  in  relation  to  count 4,  I sentence  you  to  280 hours  community service and nine months’ supervision.

[42]     The terms of supervision will be as follows:

a)       To attend, participate and complete an alcohol and/or drug assessment to the satisfaction of your probation officer and counsellor.

b)To   attend,   participate   and   complete   any   alcohol   and/or   drug counselling to the satisfaction of your probation officer and counsellor or treatment provider.

c)       To attend, participate and complete any counselling, or program to the satisfaction of your probation officer and counsellor or program provider.

[43]     In relation to count 5, you are also sentenced to 280 hours community service and nine months’ supervision.  That sentence to be concurrent.

[44]     Mr Young, in relation to count 2, you are sentenced to nine months’ home detention.   In relation to count 3, you are also sentenced to nine months’ home detention.  That sentence to be concurrent.

[45]     The terms of the home detention will be as follows:

a)        You  are  to  travel  directly  from  Court  following  sentence  to  522

Ormsby Road, Pirongia, and await the arrival of the probation officer.

b)You are to reside at 522 Ormsby Road, Pirongia, for the duration of the sentence.

c)       You are to move only with the written approval of your probation officer.

d)You are not to consume alcohol or illicit drugs for the duration of the term of home detention.

e)       You are not to have illicit drugs on the premises at 522 Ormsby Road, Pirongia.

f)        You are to abide by the rules of detention to the sentence of home detention.

g)       You are to attend assessment and any counselling treatment required to address drug abuse issues to the satisfaction of the probation officer and the provider.

h)You are to attend any counselling programs as deemed appropriate to address the factors relating to the offending to the satisfaction of the probation officer and the provider.

[46]     In relation to count 3 you are sentenced to nine months’ home detention. That sentence to be concurrent.

[47]     In relation to count 6 I will treat this wrongdoing as subsumed in the previous sentencing and convict and discharge you.

[48]     Mr Crayton has also drawn my attention to the fact that count 1 has not been formally disposed of.   The Crown seeks a discharge under s 347 of the Crimes Act 1961.  Mr Craig and Mr Young, you are both discharged in relation to count 1.

[49]     Mr Craig and Mr Young, little more needs to be said.  In respect of both of you the sentences that I have imposed are lenient.  I have done this because I am persuaded, by what you have said, by what the probation officers have said, by what your counsel have said and by what your family members have said, that you are genuinely remorseful and that you have turned corners in your lives and you will not be coming back to Court again.  So I am sure that is the position.  If it is not you will have let down all those people I have just referred to and of course the Court as well.

……………………… Asher J