R v D HC Auckland CRI 2008-057-1264

[2008] NZHC 2643

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-057-001264

THE QUEEN

v

D

Hearing:         23 October 2008

Appearances: B M Finn for Crown

A Bouchier for accused

Judgment:      23 October 2008

SENTENCING REMARKS OF ALLAN J

Solicitors/Counsel:

The Crown Solicitor, PO Box 2213, Auckland

A Bouchier,PO Box 26354, Epsom Auckland   [email protected]

R V D HC AK CRI 2008-057-001264  23 October 2008

[1]     Mr D  , you appear for sentence this morning on one charge of manufacturing a class A controlled drug, namely methamphetamine, having pleaded guilty  to  that  charge  in  the  Pukekohe  District  Court  on  14  July  2008  at  the depositions hearing but prior to committal.  The maximum penalty for this offence is life imprisonment.

[2]      In  early October  2007,  the  Police  became  aware  that  an  employee  of  a Pukekohe pharmacy was supplying large quantities of the precursor substance, pseudoephedrine, to a number of persons.  In consequence, the Police began covert observations of the pharmacy.  As the result of information gained during the course of that surveillance, a search warrant was executed on 4 December 2007 at your home address in Te Aroha.

[3]      You were found by the Police in a garage at the rear of the property.  When apprehended, you were smoking methamphetamine and were in the final stages of completing a methamphetamine cook.   The Police found a fully functioning methamphetamine laboratory, including the necessary laboratory glassware, heating equipment, chemicals, and  empty packets  of  pseudoephedrine  medication,  along with a small quantity of methamphetamine.  A further search revealed a number of empty blister packs which when full would have contained 588 individual pills, each yielding 30 mg of pseudoephedrine.  That quantity was capable of being converted into between about 7 and 16 grams of methamphetamine having a street value of

$11,000-$16,000.  Also located were pH test strips.

[4]      An ESR analysis of the items found at your residence established that your manufacturing activities had produced two separate quantities of methamphetamine totalling about 0.3 grams and having a street value of perhaps $200-$300.

[5]      You admitted manufacturing methamphetamine to the Police but said that everything was for your personal use.

Personal circumstances

[6]      The helpful pre-sentence report discloses that you are 32 years of age and living in Te Aroha along with your partner and your two children aged three years and seven months respectively.  Your relationship with your partner is good and she remains supportive of you.   You have been employed in various positions over a period of some years but more recently have developed chronic rheumatoid arthritis. That has prevented you from engaging in paid employment in recent times. The report also discloses a number of recent traumatic events in your life, including the death of your father and a nephew, along with the imprisonment of your brother.

[7]      The pre-sentence report writer considers you to be extremely remorseful in respect of this offending and prepared in a practical and realistic way to address its causes,  which  include  problems  with  depression  and  a  personal  drug  addiction. Since your apprehension you have taken two significant steps to address the causes of your offending.   First, you have on your own initiative undertaken a course of therapy with a consultant clinical psychologist.  In a useful report, the psychologist, Ms Juanita Ryan, has confirmed your engagement in December 2007 and the fact that you undertook with her a course of therapeutic sessions which continued until May 2008.  They were aimed at dealing with the factors in your personal life which underpinned your drug dependency.

[8]      A second initiative involves your participation in the Higher Ground Drug Rehabilitation recovery programme.  That is an 18 week residential programme for people with a dependency in respect of alcohol or drugs.   A certificate from the director of that programme dated 2 September 2008 confirmed your successful passage into the final phase of the programme.  Mr Bouchier has handed me a further certificate dated 22 October 2008 which certifies you have completed the Higher Ground residential treatment programme.   The report confirms also that a well structured “after-care plan” has been negotiated with your counsellor.   The plan involves   your   attendance   at   the   Hamilton   Support   House   and   an   ongoing involvement with a counsellor on a one-to-one basis. You are also to attend a fortnightly  after-care  recovery  group.      These  are  wholly  positive  steps  which

suggest to the Court that you are serious in your determination to leave your drug offending behind you.

Crown submissions

[9]      The Crown says that this offending falls within band 2 of the well-known guidelines laid down in R v Fatu [2006] 2 NZLR 72. That band applies to quantities of up to 250 grams and mandates a starting point of between four and 11 years imprisonment. The Crown says that in this case the starting point ought to be five years imprisonment in order properly to take account of the fact that a number of purchases of precursor substances were made, that the laboratory was complete and functioning, and that you were actually manufacturing when the search warrant was executed. I discount this last factor. I do not think that it matters for sentencing purposes whether manufacturing was actually being undertaken at the time of execution of the warrant. The key issue is that the Police discovered a complete laboratory which had been used for the purpose of manufacturing methamphetamine.

Defence submissions

[10]     On your behalf, Mr Bouchier indicates that you accept manufacturing about

7 grams  of  methamphetamine  overall  but  says  that  it  was  all  for  your  own consumption.  Mr Bouchier accepts that this case ought properly to be placed at the lower end of band 2 of Fatu but says that an appropriate starting point is of the order of four years imprisonment.    He also argues that a sentence of home detention is warranted, rather than a term of imprisonment.

Purposes and principles of sentencing

[11]     I am required to take into account the purposes and principles set out in the Sentencing Act.  Of particular relevance here are the need to hold you accountable for the harm done to the community by reason of this class A drug offending and your   involvement   in   the   manufacture   of   methamphetamine   which,   at   least potentially, may have become available to vulnerable members of the community.  I

am bound also to promote in you a sense of responsibility for and an acknowledgement of the harm you have done.   There must also be an element of denunciation and deterrence aimed not only at you but any other person who may be contemplating the commission of a similar offence.  There is a need for an element of consistency in the imposition of sentences in like cases.  There is also a need to do what I can to promote your rehabilitation and to that end to impose the minimum sentence properly available in the circumstances.  Having said that, however, s 6(4) of the Misuse of Drugs Act directs the Court to impose a sentence of imprisonment for an offence of this kind where there is an element of commerciality about the offending, unless there are special circumstances.

Discussion

[12]     I intend to consider first the appropriate term of imprisonment, and then, in the light of that assessment, whether home detention is warranted instead.  Although as I have mentioned, counsel agree that this case falls towards the lower end of band

2 of Fatu, there is no consensus as to the appropriate starting point.  As is said in Fatu, some care is needed when considering the quantity of methamphetamine identified in a given case.   The exercise is not simply arithmetical.   Here, it is accepted that a quantity of the order of 7 grams was manufactured but you say it was all for your own habit.  Nothing located by the Police suggests that you were actively engaged  in  supplying  the  methamphetamine  you  manufactured  so  the  Court  is simply left with the observation by the Court of Appeal in Fatu to the effect that methamphetamine   manufacture   will   almost   always   involve   a   degree   of commerciality.  Having said that, it is relatively routine for this Court to encounter cases in which offenders have set up their own manufacturing operation simply in order to feed their own habit, usually because it is cheaper to do so.

[13]     In  the  present  case,  although  you  are  one  of  a  number  of  offenders apprehended by the Police in consequence of a single operation, there is nothing before the Court to suggest that you worked in conjunction with any other person in respect of the manufacture or supply of the methamphetamine produced.  I propose

to deal with you on the basis that the drug you produced in relatively small quantities was wholly, or at least largely, to feed your own acknowledged habit.

[14]     Mr  Finn has helpfully referred the Court to the recent case of R v Owens HC HAM CRI 2008-019-3077 5 June 2008 in which Venning J sentenced the prisoner to

3 years 3 months imprisonment on a charge of manufacturing methamphetamine. Mr Owens was a co-accused but only in the sense that he fell within the same Police net as you did.  There, the Judge took a starting point of four years six months to which he added three months because the offending occurred while the prisoner was still on parole in respect of an earlier sentence.  But that case was somewhat different from this one.  The Judge was satisfied that the methamphetamine laboratory with which Mr Owens was involved was a sophisticated commercial operation.  That is not the case here, despite the quantity of precursor materials located by the police.

[15]     In my view, the appropriate starting point here is three years nine months, which is broadly in line with a number of other cases in which the Court has decided that there is no significant commercial element.  Among the cases concerned are: R v Teague HC AK CRI-2005-004-5436 18 May 2007;   R v McDonald HC AK CRI

2008-057-1431 28 November 2006;  R v Woodhams HC AK CRI-2005-090-3399 7

April 2006;   and R v Ranford HC AK CRI 2005-043-2237/CRI 2005-043-2283

7 February 2006.

[16]     In my view, there are no aggravating or mitigating factors in respect of the offending itself but in mitigation at a personal level you are able to point to your relatively early guilty plea, your remorse and, associated with that, the very real and meaningful steps you are taking to deal with the addiction which underpins the present offending.  I do not regard your previous criminal record as an aggravating factor.  It is relatively brief and contains only two minor drug-related offences which are now historical only.   I deduct 15 months as a discount for mitigating factors. That produces a sentence of two years six months imprisonment.

Home detention

[17]     I turn now to consider the home detention issue.   Ordinarily a sentence of home detention may be considered only where the term of imprisonment otherwise appropriate is two years or less, but in R v Hill [2008] 2 NZLR 381 the Court of Appeal has pointed out that the transitional provisions covering offending prior to

1 October 2007 involve no such restriction.  The information charging the offence to which  you  have  pleaded  guilty  alleges  offending  between  1  January  2007  and
5 December 2007.  Most of that period precedes 1 October 2007.  I proceed on the basis that the transitional provisions apply:  R v Grove HC AK CRI 2007-057-2094

20 May 2008.  In Hill the Court of Appeal referred to a number of factors which it is proper for a sentencing Court to take into account in assessing whether or not a sentence of home detention might be appropriate.

[18]     Those factors include:

a)       The plain purpose of the home detention regime, which is to reduce the number of people  sentenced  to  imprisonment.    A  sentence of home detention reflects a 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.

b)The need to impose any sentence of home detention in a way that is consistent with the purposes and principles of sentencing as set out in the Sentencing Act.

c)       The need to bear in mind the presumption of imprisonment created by s 6(4) of the Misuse of Drugs Act.   That presumption reflects the seriousness with which Parliament views drug offending, and the weight it gives factors such as denunciation, accountability and deterrence.    That is a factor of particular importance where methamphetamine offending is concerned.

[19]     The Court of Appeal observed that sentences of home detention are likely to be imposed in cases of class A drug offending, only at the lower end of the spectrum. Hill was a successful appeal against a sentence of two years three months imprisonment for possession of methamphetamine for supply.  The Court substituted for the sentence of two years three months imprisonment imposed in this Court, a sentence of 12 months home detention together with 200 hours community work.

[20]     Importantly for present purposes, the Court noted that in cases of this type, the prospect of rehabilitation will be significant and even decisive.   That will be particularly so, the Court said, if the assessment that there are good prospects of rehabilitation is based not simply on conjecture or expressions of intent or hope, but on hard evidence that demonstrates that the offender has made a real commitment to change and is working towards that in specific and realistic ways.

[21]     In Hill the Court considered there was evidence of such a commitment in that:

a)       The offending, although involving an element of commerciality was at the low end of the spectrum;

b)The  prisoner  had  committed  himself  to  dealing  with  his  drug addiction and had made considerable progress in doing that;

c)       He was addressing personal issues which had caused him to enter the drug   sub-culture,   and   in   particular   he   was   re-establishing   a relationship with his father;

d)He was able to serve his period of home detention at a place where he had good support from his partner.

[22]     In my opinion there are several points of similarity between the facts of this case and those in Hill.  First the offending here involved little, if any, commerciality. Second,  you have decided to do something about the  plight  in  which  you  find

yourself  and  have  made  very  considerable  progress  in  conquering  your  drug addiction and putting behind you your involvement in the drug world.

[23]     The pre-sentence report writer assesses the risk of future offending as low, provided that you are able to maintain the progress evident to date.

[24]     Next, as in Hill your recent drug offending has occurred in the context of a series of personal tragedies which, while not excusing, nevertheless might to some degree explain what has occurred.

[25]     I  come  to  the  final  factor,  which  is  the  availability  of  a  suitable  home detention address, and the presence in your life of a stabilising influence, namely your partner and  your children.   Your home at Te Aroha has been assessed as suitable for home detention purposes, in that it is readily accessible to electronic monitoring authorities and enjoys good cell phone coverage.

[26]     There is of course the fact that this offending occurred at that very address. That is often regarded as a disqualifying factor.  I am satisfied however that it is not an obstacle here.  Your manufacturing and drug taking activities were confined to a separate shed on the property.  There is no evidence that any drug related material or activity took place in the house itself.  Further, the home detention report discloses that the shed has been closed up and rendered permanently inaccessible.  The fact that such a step has been taken is tangible evidence of the depth of your commitment to commence a new chapter in your life.

[27]     I  need  also  to  make  specific  reference  to  your  partner  and  two  young children.  Your partner is highly supportive and consents to the terms of the home detention protocols.   I note her presence in Court to support you.  You have been together now for some years, and your young family will tend to provide a steadying influence.  In other words, you have a network of support that is often absent where drug offenders are concerned.

[28]     I have concluded that this is one of those relatively rare cases in which it is proper to impose a sentence of home detention rather than a term of imprisonment,

but it must be the maximum term of 12 months.  Anything less would fall short of what is required.   Your current health problems preclude a concurrent sentence of community work.  I have been very heavily influenced by the steps you have already taken to turn away from drugs, and also by the stable home life available at the home detention address.  You must however regard the sentence of home detention as an opportunity that will be offered only once.  See that you do not mess it up.

Sentence

[29]     You are sentenced to 12 months home detention.   I impose the following conditions:

a)        Upon  release  from  this  Court  today  you  are  to  travel  directly  to

38 Lawrence  Street,  Te  Aroha,  there  to  await  the  arrival  of  the probation officer and security personnel responsible for setting up electronic monitoring equipment.

b)You are to reside at 38 Lawrence Street, Te Aroha, and nowhere else without the prior approval of the probation officer.

c)       You are to abstain from the consumption of  alcohol  and/or  illicit drugs for the duration of your sentence of home detention.

d)You  are  to  undertake  and  complete  any further  alcohol  and  drug counselling inclusive of a maintenance programme/course to the satisfaction of the probation officer and the programme provider.

C J Allan J