R v D HC Christchurch CRI-2004-009-2495
[2005] NZHC 127
•19 October 2005
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2004-009-2495
THE QUEEN
v
P J D
G G G D
J C B
Hearing: 19 October 2005
Appearances: C M Ruane for Crown
R B Squire QC for P D
S N Hewson for G D
T W Fournier for J B
Sentence: 19 October 2005
SENTENCING NOTES OF GODDARD J
[1] J B , G D and P J D , you each appear for sentence today as a result of your involvement in methamphetamine offending. The timeframe in which you offended was April to August 2003, during which period methamphetamine was rightly reclassified as a class A drug. That is simply a historical fact of marginal relevance, to your case only Mr B . Today’s sentencing for all of you proceeds as class A drug offending.
[2] J B , you pleaded guilty to charges of unlawful possession of a colt .45 pistol and ammunition and to charges of unlawful possession of two rifles
R V D & ORS HC CHCH CRI-2004-009-2495 19 October 2005
and ammunition following committal to the High Court for trial on those charges. At the commencement of your trial for the methamphetamine offending you pleaded guilty on arraignment to possession of equipment capable of being used in the manufacture of methamphetamine and pleaded guilty towards the end of the Crown’s case to an amended charge of conspiring with persons unknown to manufacture methamphetamine.
[3] G D and P D , you each pleaded guilty to charges of possession of equipment capable of being used in the manufacture of methamphetamine towards the close of the Crown’s case at trial and were discharged on charges of conspiring to manufacture methamphetamine.
Facts
[4] The brief facts are that due to responsible compliance with reporting requirements the principals of Biolab in Christchurch notified the authorities that a large order of laboratory equipment, capable of being used in the manufacture of methamphetamine, had been placed with Biolab (indirectly) by you Mr B . As a result of that notification, for which Biolab is to be commended, the police moved swiftly to monitor the situation and were able to intercept and close down your activities whilst the conspiracy was still at a mercifully early stage. The glassware and laboratory equipment that you ordered was of a high quality and at a cost of more than $7,000 and consisted of items such as flasks, funnels, condensers, glass stoppers, retort stand clamps, thermometer holders and a heating mantle. As the police state, it was an extensive list and had all the components necessary to set up a commercial clandestine laboratory. Most of that equipment was delivered to you in staged deliveries monitored by the police and an interception warrant later obtained ultimately implicated the D brothers as suspected as playing some part in your plans. When search warrants were executed at your home and at your business premises, the police found the loaded colt .45 pistol hidden but readily accessible in your home and found the .303 and .22 rifles hidden at your work premises, not loaded but with ammunition nearby. The presence of firearms in conjunction with drug dealing is a serious matter, particularly for a man with your
criminal profile. That profile includes a number of previous firearms convictions and previous serious drug convictions. Also found by the police at your business premises were solvents and other chemicals capable of being used for the manufacture of methamphetamine, such as acetone, toluene, sulphuric acid and hydrochloric acid. Some glassware at those premises indicated that some manufacture of methamphetamine had already taken place, although I acknowledge that you are not charged with that and it is not proved that it was you who conducted that manufacture. Nevertheless it is an additional factor that adds to the picture of your knowledge of and involvement in methamphetamine offending.
[5] G D , I am satisfied, as I made clear to Mr Hewson at the time your guilty plea was entered, that I do not accept that your involvement through Mr B was confined simply to your efforts on 11 August 2003. There was evidence at the trial of your having received materials from Mr B on at least one earlier occasion, those materials being equipment capable of being used in the manufacture of methamphetamine. There is also evidence of a trip by you to Christchurch in July 2003. The assistance that you gave to Mr B on both of those occasions was to facilitate the transport, packaging and storage of the laboratory equipment he was sourcing. Plans connected with the manufacture of methamphetamine were also found at your home. It was suggested at trial that the equipment that was brought to Wellington from Christchurch by Mr B on
11 August 2003 was somehow being taken on a round trip to put the police off the trail. I do not know where that equipment was ultimately destined for but it is improbable to suggest that it simply came to Wellington for a round trip to keep Mr B company while he purchased a car in Wellington.
[6] The essential matter is that you knew what Mr B was up to and you involved yourself by lending him a hand in the ways that I have described. That involvement was against the back drop of your (at that time) recent conviction for manufacturing methamphetamine in May 2002, when the drug was classified as a class B prohibited drug and on which occasion you had received an extremely lenient sentence of 15 months imprisonment suspended for 18 months. Your involvement in this current offending against that backdrop shows a contempt for the law and a foolishness that is disappointing.
[7] P D , I accept, on the evidence, that you were peripherally involved and only on 11 August 2003. I also accept that on the evidence it is a reasonable inference that you did not willingly involve yourself but found yourself involved because of your brother’s foolishness and intervened out of a desire to avoid him getting into the situation in which he finds himself in today. At the time the police executed a search warrant on your business premises on 11 August 2003 you were found to be in possession of around 5g of methamphetamine which the police ultimately accepted had been purchased by you for your personal use. You have been dealt with in relation to that by way of a fine for possession simpliciter. The fact that at the time you were a user of methamphetamine and therefore knowledgeable of the drug does not however enhance your image. But it does not play a part in today’s sentencing exercise.
[8] J B , in respect of the offences of possession of equipment and conspiring to manufacture methamphetamine, I intend to sentence you to concurrent sentences calculated on a totality basis and mindful that the firearms charges must properly attract a cumulative sentence of some length. The charges of possession of equipment and conspiracy to manufacture methamphetamine go hand-in-hand, as the laboratory operation that you were involved in setting up was clearly going to be of commercial magnitude and the operation of a clandestine laboratory necessitates the involvement of a number of people. That is why I approach sentencing for those charges on a totality basis. The maximum penalty for conspiracy is 14 years imprisonment and the maximum penalty for possession of equipment is five years imprisonment. The premeditation, the nature, amount and cost of the equipment that you had sourced and were purchasing, put the possession charge at the most serious end of the scale for offending of its type. This is particularly so when one bears in mind your previous convictions for major drug dealing and for which you were sentenced by Doogue J in 1994 to a total effective sentence of seven years imprisonment. Those charges included conspiracies to supply LSD, methamphetamine, amphetamine, cannabis oil and cannabis plant; supplying LSD, methamphetamine and cannabis oil; and importing amphetamine. You were also sentenced on that occasion for the unlawful possession of a pistol. At that time methamphetamine was a class B drug and the operation that led to your arrest was described as one of the largest of its type. You were an active member of the Satan
Slaves Motorcycle Gang and then Doogue J described the offending as to further the drug dealing activities of that gang not only to its members but also through them to the public. He described your role in that “major drug offending” as a “key role”. Notwithstanding your guilty pleas, he deemed a total sentence of seven years imprisonment as appropriate.
[9] Those previous convictions are a serious aggravating factor and a starting point of five years imprisonment for your involvement in this further and potentially major drug conspiracy and sourcing of materials is merited. Given the lateness of your guilty pleas and the absence of any real mitigating factors, the most merciful end sentence that can impose for those offences is four years imprisonment, to be served concurrently.
[10] I turn then to the firearms charges. These are also very serious charges, given your previous relevant convictions, which include three for possession of offensive weapons in 1988 and 1993 and for aggravated robbery using a firearm in 1990. For that robbery you received a sentence of three years and six months imprisonment. The most recent relevant firearms conviction was that entered against you in 1994 for unlawful possession of a pistol when you were sentenced by Doogue J. On that occasion he sentenced you to a concurrent sentence of 18 months imprisonment for that firearms’ offence. Taking that history into account, but bearing in mind the totality principle, a cumulative sentence of 12 months imprisonment is the least that I can credibly impose for the three charges you face today. Accordingly, you are sentenced to 12 months imprisonment on each of those charges concurrently but cumulatively on the concurrent sentences of four years imprisonment already imposed for your class A drug offending. That is a total of five years imprisonment.
[11] I hope never to see you back in Court again Mr B but that is a matter for you. You may stand down.
[12] G D , the aggravating factors in your case are your relevant previous conviction for manufacturing methamphetamine in May 2002 for which, as I have noted, you received a sentence of 15 months imprisonment suspended for 18 months. It is a further aggravating factor that you allowed yourself to become
involved in this offending whilst you were still serving that suspended sentence. Mr Ruane has suggested that I do not have jurisdiction to reactivate that sentence but even if I do, rather than endeavour to establish what portion of that suspended sentence could be called up to take effect, on account of this further offending, I am simply going to take it into account as an aggravating factor in fixing an appropriate sentence for this current offending. It is, however, an aggravating factor. Whatever the reasons that motivated you to involve yourself in Mr B ’s criminal activities (whether friendship or financial need) you of all people, with the horrifying experience you have had of the frightful effects of ‘P’ consumption, should have turned your back on any further involvement with that drug, or with any drug. You did not do so and you must now pay a further penalty. The principles of denunciation and deterrence are overriding when one is dealing with involvement in class A drug offending. Personal circumstances can be given little or no weight. Taking all matters into account, including your late guilty plea, I am satisfied that an effective end sentence of two years imprisonment is called for in your case but I decline to grant you leave to apply for home detention. Accordingly you are sentenced to two years imprisonment. You may stand down.
[13] P D , I have accepted all that Mr Squire has said on your behalf and it is indeed a pity that you find yourself caught up in this offending. However, you did so as a mature man who understood the implications of what you were doing even if you were reluctantly drawn into it. I take into account all that has been said on your behalf in terms of the business that you have built up by yourself, the employment that you provide to others, the personal stability and happiness that you have achieved. The overriding need in a sentencing exercise such as this is, however, to send a very public message of deterrence to all who might be tempted or persuaded or pressured into assisting in offending in any way, however small. I have thought quite a lot about your case and I have had some difficulty in accepting that a term of community service is appropriate but I bear in mind that sentences of community service were passed on Mr McCale and Mr Stewart for what Mr Squire has correctly termed “offences of greater seriousness”, and in the case of Mr McCale for “a significantly greater involvement in matters more directly related to the core objective of manufacturing methamphetamine”. Notwithstanding, it is a well established disparity principle that an unduly lenient sentence imposed on a co-
offender does not justify the imposition of a sentence that is wrong in principle or manifestly inadequate on another offender.
[14] When I came into court this morning I was fairly firmly resolved to impose a sentence of 15 months imprisonment on you with leave to apply for home detention. However, I have been persuaded by Mr Squire that other competing sentencing principles may, if given prominence, prove more beneficial to not only you personally but perhaps to the community in terms of what you might be able to give in your future life if you keep going forward, give up drugs altogether and certainly any involvement in their supply or manufacture. So at the end of the day, having thought carefully about the matter and taken your circumstances into account, I have come to the conclusion – somewhat diffidently – that a sentence of 150 hours community work can appropriately be imposed in your case. You may stand down.
Solicitors:
Raymond Donnelly & Co, Christchurch, for Crown
Hewson & Co, Wellington, for G D
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