R v Dobbyn

[2014] NZHC 2715

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-18344 [2014] NZHC 2715

THE QUEEN

v

ANTHONY CHARLES DOBBYN

Charge:

Plea:

Manufacturing methamphetamine

Not Guilty

Counsel:

BD Tantrum and RK Thomson for Crown
SJ Bonnar QC for Prisoner

Sentenced:

3 November 2014

SENTENCING NOTES OF BREWER J

Solicitors/Counsel:           Meredith Connell (Auckland) for Crown

Stephen Bonnar QC (Auckland) for Prisoner

R v DOBBYN [2014] NZHC 2715 [3 November 2014]

Introduction

[1]      Mr Dobbyn, the jury found you guilty on one charge of manufacturing the

Class A drug methamphetamine.  The offence occurred on or around 28 September

2012.  The maximum penalty is life imprisonment and I have to decide now what

society’s response to your proved offending should be.

[2]      Let me say at the outset that I am limited in what I can do by the law that binds me.  When a Judge approaches a sentence, he or she does not look at whether the person they are going to sentence is a good person or a bad person.  The Judge looks at what the proven facts are and then looks to see what the law requires them to do.  Both of the lawyers here today understand that and, to a large extent, the law they have referred me to is the same because it is the law, and what the lawyers have been arguing about is what part of my discretion I can call on in your sentencing.

Facts

[3]      I will not go through the facts of the case on which the jury convicted you.  I discussed your case in my judgment on your application for a post-verdict discharge and they are there to be seen.1   But I do need to tell you the basis on which I will be sentencing you.

[4]      You were a long time friend and associate of Mr Frank Murray and, to a lesser extent, Mr Brett Bogue.  Those two were the main players in a very significant methamphetamine  manufacturing  and  distribution  business.     I  infer  from  the evidence that you were aware of that business.  Indeed, I do not think that Mr Frank Murray made much of a secret of it when dealing with people that he knew well.

[5]      On   or   about   28   September   2012,   there   was   a   manufacture   of methamphetamine at your brother’s place at Wright Road, Matakana.   You were there.  I know that you and your brother deny that there was any manufacture at that address, but that is what the jury found and I am bound by that.

[6]      It was a manufacture for commercial purposes.   I do not know how much methamphetamine  was  manufactured,  but  I  agree  with  Mr Tantrum  that  it  was enough to engage Mr Bogue’s attention as the chief distributor of the business.

[7]      There is no evidence that you actually participated in the manufacture and it was not your property.  On all the evidence I heard, I conclude you were very much a secondary party.   You were drawn into the manufacture by your association with Frank Murray and Brett Bogue.  You gave at least encouragement by your presence there and I think that at most your role was that of a “go-fer”.  That ties in with the evidence  of  your  failure  to  get  the  “drink”  and  your  later  attempt  to  persuade Mr Bogue to get it.   I accept, of course, that that was after the manufacture, but I think it illustrates the low level of your involvement with Mr Frank Murray and Mr Brett Bogue’s methamphetamine business.

[8]      I will be sentencing you on the basis that you were a secondary party to the manufacture of a commercial amount of methamphetamine.   You provided encouragement by your presence and you knew what was going on.  In a low level sense, you were a party to what was happening but I do not conclude that you actually participated in the manufacture.  Nor do I conclude that you were involved in order to make money or to obtain methamphetamine.   You were a friend and associate of Mr Frank Murray and Mr Brett Bogue and you were drawn into what was going on by that association and by your own personality.

Starting point

[9]      Mr Dobbyn, with that basis for the sentencing, I have to first set a starting point for your sentence.   I then have to see whether that starting point should be adjusted, up or down, to take into account factors that relate to you rather than to your offending.

[10]     As you have heard, I am bound by the Court of Appeal’s decision in a case called  R v Fatu.2      That  case  categorises  methamphetamine  dealing  in  bands  of seriousness.  I put your case as falling within band 2 of Fatu’s bands.

[11]     As you have heard both lawyers submit, that would generally mean a starting point of at least four years’ imprisonment, and four years’ imprisonment is what the Crown  contends  for.    But  I  agree  with  Mr Bonnar  QC  that  where  secondary participation is the basis for sentencing, a Judge can go below the band levels.  I will set a start point of three years’ imprisonment.

[12]     I will not give my analysis of the cases that I have been referred to.  I will note the cases in the written record.3    Suffice to say that I cannot see that I can go below  a  starting  point  of  three  years’ imprisonment  where  a  person  has  been willingly involved, albeit as a secondary party, in the manufacture of methamphetamine for commercial purposes.

Personal circumstances

[13]     Mr Dobbyn, you are 54 years old.  You have led a largely productive life. You have a number of references which speak warmly of your character and of your personal  qualities.    Everything  that  I  have  heard  in  evidence  and  read  in  the references tells me that you are a likeable person who has enhanced the lives of the people you have come into contact with.

[14]     I see, however, that you have two convictions for the possession of cannabis in 2008 and six convictions for unlawfully possessing firearms in 2007.  I will not take these as aggravating features in your sentencing, but they do limit the credit I can give you for your otherwise good character.

[15]     I have read the pre-sentence report.  It notes you live with your partner and her daughter, and of course I have read your partner’s reference just this morning.

[16]     You,  of  course,  have  told  the  writer  of  the  pre-sentence  report  that  you continue to maintain that you had nothing to do with manufacturing methamphetamine  and  that  no  methamphetamine  was  manufactured  at  your

brother’s address in the period charged.

3      R v Senior [2013] NZHC 2156; R v Andersen HC Auckland CRI-2007-057-753, 30 September

2008; Macpherson v R [2012] NZCA 552; R v Kupkovic HC Auckland CRI-2007-004-23338,

2 April 2009; R v Russell HC Auckland CRI-2006-044-8275, 24 June 2008; R v Allen HC Auckland CRI-2004-044-7303, 24 June 2005.

[17]     The writer of the report assesses your risk of re-offending as being low to medium and recommends a sentence of home detention.

Sentence

[18]     I am very limited as to how I can move from the start point of three years’

imprisonment.

[19]     You did not plead guilty to the offending and so I cannot give you a discount for a plea of guilty.  Sometimes reductions can be given for remorse, but since you maintain your innocence that is not a factor.

[20]     Your history of the way you have lived your life can be taken into account, although in serious drug offending personal circumstances are generally given little weight and in your case you do have those previous convictions.  But, nevertheless, I will give you a good character discount of three months.   That results in an end sentence of two years and nine months’ imprisonment.

[21]     Mr Dobbyn, on the charge of manufacturing methamphetamine, I sentence

you to two years and nine months’ imprisonment. You may stand down.

Brewer J