R v Duthie
[2022] NZHC 3023
•17 November 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-419-79
[2022] NZHC 3023
THE KING v
RICHARD ALAN DUTHIE
Hearing: 17 November 2022 Appearances:
J Hamilton for the Crown
J D Munro for the Defendant
Sentencing:
17 November 2022
SENTENCING NOTES OF WYLIE J
Solicitors/counsel:
Hamilton Legal, Hamilton J D Munro, Auckland
R v DUTHIE [2022] NZHC 3023 [17 November 2022]
Introduction
[1] Mr Duthie, you appear for sentence having pleaded guilty to the following charges:
(a)manufacturing methamphetamine (a representative charge). This is an offence pursuant to s 6(1)(b) of the Misuse of Drugs Act 1975. The maximum penalty is life imprisonment;
(b)possession of methamphetamine for supply. This is an offence pursuant to s 6(1)(f) of the Misuse of Drugs Act and the maximum penalty is also life imprisonment;
(c)possession of equipment for the manufacture of methamphetamine. This is an offence pursuant to s 12A(2)(a) of the Misuse of Drugs Act and the maximum penalty is five years’ imprisonment.
Relevant facts
[2] The agreed summary of facts records that you were charged following an investigation by the Waikato Police Organised Crime Squad. The investigation commenced in December 2019. It focused on the large scale manufacture and distribution of methamphetamine in the Waikato area. The investigation uncovered a core group of people involved in the criminal enterprise. You were identified as having an association with a member of that group.
[3] You own a residential property in Lichfield. You were charged with, and by your plea you have acknowledged that you manufactured methamphetamine in the kitchen of that property. The amount of methamphetamine that you manufactured is not known but you accept that you manufactured the drug on at least one occasion.
[4] In July 2020, the police executed a search warrant on your property. They found the following items in a safe in your bedroom:
(a)a container holding 92 grams of methamphetamine;
(b)a case containing 17 ziplock bags, each holding approximately
20.4 grams of methamphetamine; and
(c)$41,510 in cash.
The total amount of methamphetamine found was 438.8 grams.
[5]Police also located the following items at your property:
(a)162 milligrams of methamphetamine hydrochloride dried on a glass baking dish;
(b)1,615 milligrams of methamphetamine hydrochloride within plastic containers (dried and in liquid form);
(c)various items of glassware; and
(d)numerous indicia of supply, including unused ziplock bags, NIK (drug testing) kits, a money counter and electronic scales.
Pre-sentence report
[6] You are 56 years old and identify as New Zealand European. You have an extensive criminal history dating back to 1983. Many of your convictions involve drugs, but you also have convictions for violence, firearms and driving related offending. Notably, in 2008 you were sentenced to 11 years’ imprisonment on various charges including possession of methamphetamine and LSD for supply, supplying methamphetamine, possession of equipment/material with intent and possession of methamphetamine utensils. The report writer characterised your recent methamphetamine offending as being “a dangerous escalation in prolific substance-related offending”.
[7] In explanation, you said that you were using methamphetamine to stay awake as you were working very hard in your business. You said you were not supplying anyone directly; rather you were just using the drug yourself. You expressed regret for the situation your family members now find themselves in as a result of your offending.
[8] Your risk of reoffending, and of harm to others, was assessed as high. However, the report writer noted that this risk might be reduced if you can address your offending related factors, namely substance abuse, antisocial peers, offending supportive attitudes, self-entitlement, and cognitive distortion. The report writer did note that you have had many opportunities to address your drug dependency in the past. It was suggested that your claimed willingness to address your offending should be considered with caution due to your criminal history.
[9] The report writer recommended a sentence of imprisonment to allow you time to address your offending related factors by way of extensive drug treatment programmes.
Section 27 report and psychological report
[10] I have received a s 27 report prepared by Dr Jarrod Gilbert (and others) and a psychological report prepared by Dr Loshni Rogers. The reports are helpful and detailed. Various factors affecting you were identified, and it was suggested that they are likely to have contributed to your offending. I will discuss these reports in more detail shortly.
Forfeiture order
[11] The Crown sought forfeiture of your residential property where the offending was carried out. Recently, Campbell J ordered that 50 per cent of your equity in the property should be forfeited to the Crown.1 The sum forfeited was $325,000. Section 10B of the Sentencing Act 2002 requires me to take into account the fact that the forfeiture order was made. I return to this issue shortly as well.
Submissions
[12] Ms Hamilton, for the Crown, submitted that the lead offences are both the manufacture of methamphetamine and the possession of methamphetamine for supply charges. She contended that the following are aggravating factors – namely planning and premeditation, commerciality and the seriousness of the social harm resulting from your offending. She submitted that the quantity of methamphetamine found in
1 R v Duthie [2022] NZHC 2851.
the safe brings your offending within the middle to upper end of band three identified in the guideline decision of Zhang v R.2 She argued that your role was significant, suggesting the commercial nature of the operation illustrated that you were motivated by financial advantage and the anticipated profit. She submitted that a global starting point of 10 years’ imprisonment is appropriate. She then argued that an uplift of one year is required to take into account your previous offending. She accepted that significant credit is available for your guilty pleas. She also acknowledged that a discount of 20 to 25 per cent is appropriate to recognise the forfeiture order. She suggested that a minimum period of imprisonment of 40 per cent of the end sentence is appropriate given the scale and commercial nature of your offending.
[13] Mr Munro, on your behalf, submitted that the lead offence is the possession of methamphetamine for supply charge. He argued that a starting point cannot be fixed for the manufacturing charge because the factual basis underlying that charge gives little or no guide as to your culpability. He accepted that the charge of possessing methamphetamine falls within band three of Zhang but argued that there is no clear evidence to show your position in the criminal enterprise’s hierarchy. He submitted that the evidence does not justify the starting point sentence suggested by the Crown. He put it to me that a starting point of eight years’ imprisonment is appropriate, referring to the sentencing of one of your co-offenders, Mr McQuade.3 He argued that an uplift for the remaining charges is not required, on the basis that they do not offer a guide as to your role or elevate your level of culpability.
[14] Mr Munro further submitted that an uplift of no more than nine months’ imprisonment is appropriate for your previous convictions. He argued that a discount of 20 to 25 per cent is appropriate for the matters outlined in the s 27 report and the psychological report. He submitted that a 25 per cent discount is appropriate for the guilty pleas, and that a discount in excess of 30 per cent is appropriate to take account of the forfeiture order.
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
3 R v McQuade [2022] NZHC 559.
Purposes and principles of sentencing
[15] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved. I have also been mindful of the need to deter others from committing the same or similar offences. This is a primary factor in drug related offending. I have taken into account the gravity of the offending with which you were involved, including your culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences. I have also been mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and that I need to consider your rehabilitation in the circumstances which have arisen.
Starting point
[16] The guideline judgment for methamphetamine is the decision of the Court of Appeal in Zhang v R.4 In that case, the Court identified five sentencing bands, based on the quantity of the drug involved. The bands are as follows:
(a)band one – less than five grams – a community based sentence to a sentence of four years’ imprisonment;
(b)band two – less than 250 grams – two to nine years’ imprisonment;
(c)band three – less than 500 grams – six to 12 years’ imprisonment;
(d)band four – less than two kilograms – eight to 16 years’ imprisonment;
(e)band five – more than two kilograms – 10 years to life imprisonment.
The Court also emphasised the importance of considering the role of the offender when fixing a starting point sentence.5
4 Zhang v R, above n 2.
5 At [118].
[17] As I have noted, the Crown submitted that there are two lead offences – manufacturing methamphetamine and the possession of methamphetamine for supply. Mr Munro however submitted that the lead offence is possessing methamphetamine for supply, and that a starting point cannot be fixed for the manufacturing charge as the factual basis for that charge gives no guide as to your culpability.
[18] I accept that the summary of agreed facts in relation to your manufacturing offending presents some difficulties. It records that you manufactured methamphetamine at your property on at least one occasion between 29 June 2018 and 7 July 2020.6 You are entitled to be sentenced by reference to the summary of facts to which you pleaded guilty, and in any event, there is nothing to suggest that you undertook more than one manufacture of methamphetamine. No evidence of significant manufacture was identified by ESR analysts who took multiple swabs from inside the house. Levels of contamination consistent with the manufacture of methamphetamine were detected on only one swab. The yield from the admitted manufacture is unknown.
[19] Were the manufacture of methamphetamine to be taken as the lead offence, it would fall to be treated as a single instance of methamphetamine manufacture involving a limited quantity. Such offending would attract a starting point at the lower end of band one of Zhang. In my view, such a starting point would be plainly inappropriate. It would not reflect the seriousness of your overall drug related offending.
[20] Accordingly, I take the possession of methamphetamine for supply as the lead offence. As I have noted, the quantity of methamphetamine involved was 438.8 grams. This offending falls towards the upper end of band three in Zhang, and attracts a starting point range of six to 12 years’ imprisonment.
[21] The evidence as to your role and position in the criminal hierarchy is limited. Nevertheless, I consider that your role must have been of more than minor significance. You were involved in the manufacture (at least on one occasion) as well as the supply of the drug. Your actions were financially motivated. A substantial
6 This date range relates to the period in which Mr Duthie started living at the property through to the date of his arrest.
quantity of cash and a money counter were located in your possession along with a large quantity of methamphetamine. So were other indicia of commercial dealing. Your assertion that you were only supplying yourself can be ignored. The amount of methamphetamine and other indicia of dealing put the lie to that claim. While your precise role is not known, it is reasonably clear that you were more than just a bit player in the overall enterprise.
[22] Although Mr Munro referred to it, I am not persuaded that the case of R v McQuade is very helpful.7 It involved one of your co-offenders, but the summary of facts in that case was quite different. Mr McQuade pleaded guilty to charges of manufacturing methamphetamine, supplying methamphetamine, participating in an organised criminal group, and possessing material for the manufacture of methamphetamine. At sentencing, it was common ground that the lead offence was manufacturing methamphetamine. The amount of methamphetamine manufactured was unclear but the Crown submitted that a starting point in band three was appropriate given the size of the laboratory. Counsel for Mr McQuade accepted that band three was appropriate and the sentencing Judge – Gault J – adopted a starting point of eight years’ imprisonment.
[23] Taking both the quantity of the methamphetamine found in your possession and the role I consider you must have taken into account, I consider that a starting point of nine years’ imprisonment is appropriate for the offence of possessing methamphetamine for supply. An uplift is warranted in respect of the remaining charges of manufacturing methamphetamine and possessing equipment for manufacture. In my view, an uplift of one year’s imprisonment on the initial starting point appropriately reflects the totality of your offending. This takes the starting point to one of 10 years’ imprisonment.
Personal circumstances
[24] It is now necessary to consider your personal circumstances to see whether this starting point should be adjusted.
7 R v McQuade, above n 3.
[25] As I have mentioned, you have a number of previous convictions for drug related offending including for the possession and supply of methamphetamine. I agree with Mr Munro that an uplift of nine months – or 7.5 per cent – is appropriate to recognise your criminal history and recidivism.
[26] I next turn to the pre-sentence report. I have already summarised it. There is nothing in that report which suggests that the starting point should be adjusted – either up or down.
[27] You are entitled to a discount for your guilty pleas.8 Any reduction cannot exceed 25 per cent.9 Your pleas were entered a short time before trial, and only after the Crown had indicated that it was prepared to significantly amend the charge notice. Ms Hamilton acknowledged the desirability of resolution given the uncertainty associated with a lengthy trial in light of the then COVID-19 interruptions. There was nevertheless a strong Crown case against you. Mr McQuade was given a discount of 25 per cent for his guilty pleas. They were entered at the same time as your guilty pleas. Nevertheless as I apprehend it, the case against Mr McQuade was not as strong as the case against you. I allow you a 20 per cent discount for the guilty pleas.
[28] I also accept that you are entitled to a discount for the various matters raised in the s 27 and psychological reports.
[29]In the s 27 report, Dr Gilbert pointed to the following:
(a)You experienced socio-economic deprivation after your parents’ separation when you were five years old. You described your mother as loving and supportive but said that she struggled to provide for the family as a solo parent. Dr Gilbert noted that socio-economic deprivation can have a distorting effect on opportunities, priorities and expectations, and that it is associated with higher rates of crime. He said that growing up in this environment placed you at a disadvantage from the very beginning;
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].
9 At [75].
(b)The absence of a parental connection in your life. You described a relationship of poor attachment with your stepfather. You said you rarely saw your birth father after your parents’ separation and that you never knew your birth family. Dr Gilbert noted that poor attachment to parental figures can be associated with criminal behaviour during adolescence and young adulthood;
(c)Your experience of violence during your childhood. You reported witnessing and suffering violence and abuse as a child, particularly but not exclusively, at the hands of your stepfather. He was a heavy drinker and he was also physically abusive towards your mother and siblings. You also say that you were physically abused by another adult and that you resorted to drugs to deal with this abuse. Dr Gilbert noted that violence and physical abuse during childhood can be connected with the increased likelihood of criminal activity in later life. For your part, you consider that your traumatic experiences as a child have likely contributed to your offending;
(d)Your substance use. You began using cannabis at a “very young age” and drinking alcohol at around age 11. The early consumption of cannabis can impair psychological functions and is associated with an elevated risk of criminal offending. You also described sniffing glue, paint and petrol as a teenager, which escalated to prescription medication and then heroin at age 21. You have been addicted to various drugs as an adult, primarily methamphetamine, and you were using methamphetamine at the time of your offending. You have identified drug use as the primary factor behind your offending; and
(e)Institutionalisation. You first engaged with the criminal justice system as a youth and you have repeatedly offended since, serving a number of sentences of imprisonment. You reported that you can feel more comfortable in prison than in the outside world. Dr Gilbert noted that becoming institutionalised can often make it very difficult to break the cycle of reoffending and reimprisonment.
[30] In the psychological report, Dr Rogers noted that the abuse you experienced as a child appears to have had a profound impact on your trajectory since adolescence. It was observed that your struggles appear to manifest as rebellion to ensure that you will not be victimised again. You have developed a distrust of authority figures, you began to truant at school and you associated with negative peers and used drugs and alcohol as a coping mechanism. Your dependence on drugs and ongoing association with antisocial peers have likely perpetuated your recidivist drug related offending over almost 40 years. You appear to have focused on immediate gratification and to have been undeterred by consequences.
[31] Dr Rogers recorded that the present offending appears to have been triggered by the death of your brother and another family tragedy in 2019. You relapsed after four years of abstinence from methamphetamine at around this time. You reported that you engaged in the offending to fund your methamphetamine use, which helped you to cope with your negative emotions.
[32] Dr Rogers assessed you as posing a high risk of general re-offending (though a low risk of violent offending). He noted that your self-report is indicative of post-traumatic stress disorder. He recommended engagement with an individual Department of Corrections psychologist as the primary treatment pathway, followed by alcohol and drug treatment.
[33] Mr Munro, noted that, since undergoing the assessment with Dr Rogers, you have sought referral to Odyssey House and that you are in the process of applying for assessment for the Higher Ground programme.
[34] The various factors identified in these reports can properly be considered to have impaired your choices in life and to have diminished your culpability. The Court is not required to be satisfied that the matters identified in the reports were the proximate cause of your offending, simply that there was a causal connection. I consider that there is a causal connection in your case. You turned to drugs initially to deal with traumatic events in your childhood. You became involved in the drug world as a result. This does not altogether explain your decision to become involved in drug manufacture and supply on a commercial scale but I nevertheless allow you a discount of 15 per cent to recognise the various factors identified by the report writers.
[35] I am also required to recognise the forfeiture order made in respect of half your equity in your property. There is no set discount for this factor. Each case depends on its own facts and requires the exercise of judgment on the part of the sentencing Court.10 In deciding the weight to be given to such a discount, the Court must take into account the value of the property that is the subject of the forfeiture order, and the nature and extent of the offender’s interest in the property forfeited.11 Not insubstantial discounts have been allowed in past cases.12
[36]Mr Munro suggested, and I agree, that the most helpful case is Macpherson v
R.13 There the appellant was convicted on charges of manufacturing methamphetamine, possessing a precursor substance, producing cannabis resin, possession of cannabis resin for supply, possession of cannabis for sale, possession of a methamphetamine pipe, and cultivating cannabis. The sentencing Judge adopted a starting point of four years’ imprisonment. The Court had made a forfeiture order of 50 per cent of the appellant’s interest in a property ($380,000). Recognising this, the end sentence imposed was nine months’ home detention. On appeal, the Court of Appeal reduced the forfeiture order to 25 per cent of the appellant’s interest (around
$160,000). The Court did not however disturb the end sentence reached by the first instance Court.
[37] In your case, the forfeiture order seized half of your equity in your property – a sum of some $325,000. You accepted that this order should have been made. The property’s primary use was as your residence; it was not a property which had been solely set up for offending nor is there anything to suggest that it had been used for offending repeatedly or over time.14 It also was the only major asset that you own.15 You are 56 years old. While you are still in a position to maintain employment, as a result of the forfeiture, you now have limited means to re-establish yourself. In these circumstances, I allow you a further discount of 25 per cent to recognise the forfeiture order that has been made.
10 Macpherson v R [2012] NZCA 552 at [64].
11 Sentencing Act 2002, s 10B(2).
12 Vant Leven v R [2014] NZCA 330 (50 per cent discount); R v Gray [2013] NZHC 450 (25 per cent discount); and R v Corless [2014] NZHC 1211 (discount of 3.5 years from 17-year starting point).
13 Macpherson v R, above n 10.
14 R v Duthie, above n 1, at [36].
15 At [39].
[38] Adopting the two-step approach discussed by the Court of Appeal in Moses v R,16 and applying the uplift for previous convictions and deducting the various discounts from the starting point sentence of 10 years’ imprisonment, results in an end sentence of four years and nine months’ imprisonment.
Minimum period of imprisonment
[39] The Crown submits that, given the commercial nature of the offending and your previous convictions for Class A drug offending, a minimum period of imprisonment (MPI) is warranted.
[40] An MPI must not be imposed as a matter of routine or in a mechanistic way.17 A reasoned analysis is required, both as regards to the imposition of an MPI and its length. In Zhang, the Court of Appeal observed that due to deterrence, denunciation and accountability sitting at the forefront of drug cases, lengthy MPIs should properly be reserved for cases involving significant commercial dealing.18 However, more recently, in Chai v R, the Court of Appeal confirmed that an MPI can be expected in cases of recidivist or commercial methamphetamine dealing.19
[41] Your offending involved serious commercial supply, as well as manufacture on at least one occasion, for profit and without regard to but with knowledge of the social harm your actions were causing. You have a history of similar offending. Nevertheless, an MPI can only be imposed if the Court is satisfied of the various matters set out in s 86 of the Sentencing Act. Here, I am not persuaded that an MPI is necessary to hold you accountable for the harm done to the community by your offending, nor to denounce the conduct in which you were involved. The forfeiture order made by Campbell J has already had significant consequences for you and your family. It will also have served as a warning to like-minded offenders. So will the sentence I am imposing on you. In my view, no further denunciation or deterrence is required. I decline to impose an MPI.
16 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[46].
17 Zhang v R, above n 2, at [169].
18 At [171].
19 Chai v R [2020] NZCA 202 at [39].
Sentence
[42]Mr Duthie, will you please stand.
[43] In respect of the offence of possession of methamphetamine for supply, I sentence you to a term of imprisonment of four years and nine months.
[44] In respect of the offence of manufacturing methamphetamine, I also sentence you to a term of imprisonment of four years and nine months.
[45] In respect of the offence of possession of equipment for the manufacture of methamphetamine, I sentence you to a term of imprisonment of one year.
[46] All sentences are to be served concurrently. In other words, you are sentenced to a total term of imprisonment of four years and nine months.
[47] I make an order for the forfeiture of the cash seized from you and for the destruction of the drugs and other items used by you in the commission of the offending.
[48]Mr Duthie, you may stand down.
Wylie J
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