R v Fatu Ca415/04
[2005] NZCA 278
•18 November 2005
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA415/04
THE QUEEN
v
DWIGHT PERCIVAL FATU
Hearing:13 April 2005
Court:Anderson P, William Young and Chambers JJ
Counsel:P J Kaye for Appellant
D J Boldt and T Smith for Crown
Judgment:18 November 2005
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS
(Given by William Young and Chambers JJ)
Table of Contents
Para No
Introduction [1]
GUIDELINES FOR SENTENCING FOR OFFENDING INVOLVING SUPPLY,
IMPORTATION OR MANUFACTURE OF METHAMPHETAMINESentencing for methamphetamine offending prior to its [4]
reclassification as a Class A drug
The necessity to respond to the reclassification of [7]
methamphetamine as a Class A controlled drug
The approach contended for by the Crown in cases of [11]
methamphetamine manufacture
Arguments advanced by Mr Kaye [17]
Current sentencing practice in relation to methamphetamine [20]
manufacture and importing
Proposed guidelines for offending involving the sale, [21]
importation and manufacturing of methamphetamine – general
Guidelines for offending involving the supply of [33]
methamphetamine
Guidelines for offending involving the importation of [35]
methamphetamine
Guidelines for offending involving the manufacture of [37]
methamphetamine
Other considerations [44]
The case at hand
Factual background [47]
The sentences imposed [58]
The argument for the appellant in this Court [62]
The starting point [63]
The discount for mitigating circumstances [66]
Overall assessment [67]
The result [68]
Introduction
[1] This is an appeal against sentences imposed by MacKenzie J following the appellant’s guilty pleas to charges of manufacturing and supplying methamphetamine, conspiring to manufacture methamphetamine, wilful neglect of children, and receiving stolen property. The offending occurred before and after the 30 May 2003 reclassification of methamphetamine from a Class B drug to a Class A drug. This case therefore provides an opportunity to review the guidelines for sentencing for methamphetamine offending provided to sentencing Judges in R v Wallace and Christie [1999] 3 NZLR 159 in light of the drug’s reclassification.
[2] Given the significance of the issues posed by the case and the invitation from the Crown to deliver a guideline judgment, we invited further written submissions from counsel as to comparative material from other jurisdictions. This we have now received with gratitude and considered carefully.
[3] The following section of this judgment (ie [4] - [46]) is of general application, albeit confined to offences involving methamphetamine. The balance of the judgment (from [47] on) deals with the circumstances of the appellant and the sentence imposed on him.
Guidelines for sentencing for offending involving supply, importation or manufacture of methamphetamine
Sentencing for methamphetamine offending prior to its reclassification as a Class A drug
[4] In Wallace and Christie, this Court addressed sentencing for importing and manufacturing methamphetamine. After reviewing the then current sentencing patterns, the Court went on:
[30] The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14‑year maximum penalty will have little direct relevance to the total offending.
[31] Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range five to eight years.
[32] For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.
[33] Application of the general principles earlier set out and comparison with the circumstances of the cases listed will be necessary in assessing individual cases by reference to these categories. There must be kept in mind of course that sentences actually imposed in particular cases are not to be equated with a starting point for offending at that level established on a contested hearing.
[34] It is intended that the foregoing review will facilitate sentencing hearings on Class B drug offending and aid consistency in sentences imposed. This judgment and the cases reviewed should in general provide sufficient reference without the need to research and cite earlier cases.
[5] In practice, category one (ie “commercial manufacture or importation on a substantial scale”) applied only to those who manufactured “massive quantities” of methamphetamine; see R v Atkinson and Others CA546/99 19 April 2000 at [22]. Our sense of the cases is that the value of the drugs manufactured would have to be well in excess of $200,000 (and perhaps in the millions) before an offender would qualify for inclusion in category one.
[6] The Wallace and Christie guidelines were primarily applicable to manufacturing and importation of Class B controlled drugs but obviously were of relevance in other commercial offending involving Class B controlled drugs, ie supplying, conspiracy to supply and possession for supply of such drugs.
The necessity to respond to the reclassification of methamphetamine as a Class A controlled drug
[7] The courts are plainly required to respond to the reclassification of methamphetamine from a Class B controlled drug to a Class A controlled drug; see R v Spartalis [1979] 2 NZLR 265, R v McFarlane [1992] 3 NZLR 424 and R v Arthur [2005] 3 NZLR 739. The last of these cases (which involved a low level of methamphetamine supply by a school teacher to four teenagers) is the most relevant in the present context. The judgment contains a discussion of the methamphetamine problem and the significance of the reclassification of methamphetamine from a Class B to a Class A controlled drug.
[8] In Arthur, the Court suggested the following sentencing bands for offending involving the supply of methamphetamine:
(a)Low level supply (less than five grams) - two years to four years imprisonment.
(b)Commercial quantity (five grams to 250 grams) - three years to nine years imprisonment.
(c)Large commercial quantity (250 grams or more) - eight years or more.
The Court then went on:
[27] We also stress that the suggested starting ranges are limited to supply cases. Those who manufacture or import Class A drugs may well incur higher sentences - indeed, much higher sentences - as they are responsible for actually bringing the illegal substance into existence or into the jurisdiction: R v Aramah (1982) 4 Cr App R (S) 407 at 409.
[9] Leaving aside for a moment complications associated with purity variations, the five grams figure that marks the boundary between the first two bands proposed in Arthur has received legislative support as this is now the weight at which the presumption for supply cuts in, see Schedule 5 of the Misuse of Drugs Act 1975, as inserted by s 22 of the Misuse of Drugs Amendment Act 2005. The overlapping nature of the sentencing ranges recognises the reality that the quantity of drugs involved in offending is not the only consideration which is material to culpability.
[10] The Divisional Court which determined Arthur specifically stated that it was not a guideline judgment (at [7]) but suggested that it should apply in methamphetamine supply cases until such time as this Court delivered a guideline judgment. Subject to minor adjustment, we are content to adopt the general approach taken in Arthur. We will revert later to the actual guidelines which we propose.
The approach contended for by the Crown in cases of methamphetamine manufacture
[11] The general Crown position is captured by what Mr Boldt said at para 33 of his initial submissions:
Methamphetamine abuse can fairly be characterised as the most serious drug problem the country faces at present. The various ways in which the drug threatens the community are well-known. Methamphetamine is a particularly destructive drug for users; it is highly addictive with profound mental and physical side-effects. It induces aggressive and irrational behaviour, and is regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs. It has created a thriving industry, in which organised crime is heavily involved at all levels. The manufacturing process is particularly dangerous. It is submitted, with respect, that if it is appropriate to draw any distinction between Class A drugs, methamphetamine can fairly lay claim to a place in the most serious category.
[12] Mr Boldt contended the courts have customarily underestimated the real seriousness of offences involving the manufacture of methamphetamine. This is largely because of an artificial focus on what is often the limited evidence as to the quantities of the drug that was actually manufactured. It will seldom be possible for the courts to be confident as to the precise extent to which methamphetamine has been manufactured. Characteristically the evidence will be primarily addressed to the circumstances as they were when police intervention occurred.
[13] Mr Boldt argued that no one who has made the investment in materials required to assemble a laboratory, obtained the necessary precursors and acquired the expertise to manufacture methamphetamine can be treated as a small scale offender. Further, a single episode of manufacturing will produce many thousands of dollars worth of methamphetamine.
[14] In order to allow for this feature of the offending, Mr Boldt suggested in his initial submissions that any person guilty of manufacturing should be seen as being, at the very least, in the equivalent of what is now the middle of category two of the Wallace and Christie categories.
[15] Mr Boldt argued that we should fix categories of offending with suggested starting point sentencing ranges as follows:
(a)Band one - actual or potential yield of up to $20,000. Up to eight years imprisonment.
(b)Band two - actual or potential yield of between $20,000 - $200,000. Eight years to 15 years imprisonment with a standard starting point of at least ten years.
(c)Band three - actual or potential yield of more than $200,000. More than 14 years imprisonment.
[16] It will be noted that the Crown’s proposed sentencing bands are denominated in terms of monetary yield. But in his further written submissions, Mr Boldt referred extensively to relevant sentencing practice in Australia, the United Kingdom, Canada and the United States. He noted that “the English courts’ reasons for preferring a weight/purity analysis to monetary yield as the appropriate measure of culpability are compelling”. He went on to say that, as a consequence of the review of the overseas material, the Crown no longer had a preference as to whether the categorisation or banding should be done on a monetary yield basis or on a weight basis. The Crown remained adamant, however, that there should be “some form of objective measure”.
Arguments advanced by Mr Kaye
[17] Mr Kaye did not accept that there were valid sentencing distinctions to be drawn between manufacturers and importers or between them and other traffickers.
[18] He suggested that anticipated monetary yields provided an unreliable basis for assessing culpability; this given differences in wholesale, bulk purchase and street values and uncertainty as to such values. His broad position was that sentencing should primarily be by reference to the quantity of the drug involved albeit that this in itself can be problematic given purity variations. He suggested that these variations should be allowed for by the adoption of categories which are based primarily on 100% purity but with sufficient flexibility to allow for situations where purity cannot be accurately determined.
[19] Mr Kaye also noted the difficulty of assessing the scale of manufacturing operations and was adamant that manufacturers must be sentenced by reference to proven offending rather than potential offending.
Current sentencing practice in relation to methamphetamine manufacture and importing
[20] Mr Boldt submitted to us an appendix summarising more than 80 sentencing decisions in which offending involving methamphetamine as a Class A drug (ie post reclassification) has been in issue and in which many of the charges included importation and manufacture of methamphetamine. Relevantly:
(a)At least sixty of the decisions involve offending which was categorised as being within category three of the Wallace and Christie guidelines (ie the least serious). Mr Boldt told us that in only one of these decisions was a starting point of more than five years identified (although in a second case a starting point of five years was increased to six years in light of aggravating features);
(b)Twelve cases involving a total of 16 offenders fell within the middle category of the Wallaceand Christie guidelines and, in all but two, starting points in the five year to eight year range were used.
(c)The only case which could be regarded as being in category one involved starting point sentences of 15 to 16 years and 13 to 14 years.
Proposed guidelines for offending involving the sale, importation and manufacturing of methamphetamine – general
[21] We record that we use the expression “starting point” in its now orthodox sense as referring to sentences which reflect the culpability of the offending but before allowance for aggravating and mitigating circumstances (including a plea of guilty) which are personal to the offender, cf R v Taueki CA384/04 30 June 2005 at [8].
[22] All other things being equal, a manufacturer is more culpable than an importer and an importer is more culpable than a supplier. A drug manufacturer (or importer for that matter) is responsible for bringing the drugs in question into circulation in New Zealand and will usually be more culpable than a dealer in drugs. This is consistent with the approach taken in R v Aramah (1982) 4 Cr App R(S) 407. Another way of looking at it is that a drug manufacturer or importer can be regarded, at least normally, as being at the top of the supply chain. This was the approach taken in Cabassi v R [2000] WASCA 305 at [10].
[23] We see the culpability of the manufacturer as being greater than that of the importer, given the dangers associated with the manufacturing process. These dangers are set out in the advice that the Expert Advisory Committee on Drugs (“EACD”) gave to the Minister of Health in 2002. In that report, the committee noted that several different chemical processes could be used to manufacture methamphetamine. Regardless of the process used, the chemicals involved are generally highly flammable, corrosive, explosive or toxic: EACD Advice to the Minister on Methamphetamine (2002) at 13.
[24] The committee went on to observe:
While these are hazardous substances in isolation, the combination of chemicals or the heating of the substance over an open flame can be extremely dangerous. Thus the risk of explosion, chemical burns or poisoning associated with the domestic manufacture of methamphetamine is high. It is noticeable that 20-30 percent of methamphetamine laboratories are only discovered as a result of fires and explosions (Skeers 1992).
[25] The committee noted that the danger was a significant issue for law enforcement officials and emergency service personnel, particularly as international experience indicated that exposure can be reasonably frequent and have serious health consequences. The committee also noted that the public can also be exposed to risks due to the establishment of clandestine laboratories in New Zealand communities. That risk can be intensified if manufacturers shift to smaller or portable operations to avoid detection. Further, the health hazards associated with clandestine methamphetamine laboratories are not limited to the immediate period of manufacture. The building containing the laboratory can be contaminated for some time after the completion of the manufacturing procedure due to the leaching effect of many of the chemicals and gases involved in the manufacturing process.
[26] We have opted for bands based on objective criteria in preference to those used in Wallace and Christie; this given the indeterminacy of the Wallace and Christie categorisations. We have decided that the quantity of the drug involved in the offending (rather than anticipated monetary yields) provides the most helpful measure of culpability. There are significant problems with using estimated monetary yields, as Mr Kaye pointed out in his submissions, see [18] above. As well, the prices at which drugs are sold are heavily influenced by their availability. Sentencing by reference to monetary yield would produce the perverse result that the greater the availability of a particular drug the lower the associated sentencing levels, see R v Aroyewumi and Others (1995) 16 Cr App R(S) 213 at 215. As well, the prices paid per point of methamphetamine vary considerably. The material most recently made available to the Court suggested a range of prices between $50 - $350 per point.
[27] We are of the view that objectivity and consistency are best served if the weight calculations proceed on a basis that is referable to purity. Where the Misuse of Drugs Act refers to quantities of drugs (as for presumption of supply), it refers to the actual quantities of the controlled drug concerned. So a mixture containing 12 grams of a controlled drug and six grams of baking soda is treated as 12 grams and not 18 grams of the controlled drug for the purposes of the Act. The position is the same in Australia and England. The reason for the words “whether or not contained in a substance, preparation, or mixture” in Schedule 5 is simply to make clear that if, say, the controlled drug were a very small proportion of the overall product, it is still a controlled drug.
[28] The material most recently supplied by the Crown includes a report from a forensic scientist, Ms Jennifer Sibley. This shows that methamphetamine is sold and used in the solid crystalline hydrochloride salt form - methamphetamine hydrochloride. The methamphetamine component of methamphetamine hydrochloride is 80% with the balance (20%) being hydrochloride. Accordingly, the maximum purity of methamphetamine as sold on the street is 80%. In practice, the purity of methamphetamine which is sold as “P” is usually in the range of 70% ‑ 80% and almost always over 60%. We note in passing that methamphetamine hydrochloride is itself a Class A controlled drug under cl 4 of Schedule 1.
[29] A practical consideration that we must allow for is that the determination of the precise purity of a methamphetamine sample requires a time consuming and costly process (and is far more expensive than what is required simply to determine the presence of the drug).
[30] The sentencing bands which we propose are to apply by reference to the weight of what the market would regard as “P”, ie a form of the drug in which the purity is of the order of, or exceeds, 60%. In most cases, it will be relatively obvious, without expensive analysis, whether the drug involved is indeed “P”. The prosecution position as to this should be stated in the summary of facts. If disputed by the defendant, such dispute should be signalled, and the issue can then be determined by the Court (presumably after analysis of the drug). In cases where the purity levels are less than what would be expected of “P”, the sentencing response can be less stern.
[31] Our sentencing ranges overlap between categories. Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant. Obviously the sentencing Judge will also need to take into account the principles of sentencing referred to in s 8 of the Sentencing Act 2002. Further, the aggravating and mitigating factors relevant to the offending (as opposed to the offender), as set out in s 9 of the Sentencing Act, will also be highly relevant in fixing the starting point within a particular band.
[32] In cases involving importation and supply, considerations of commerciality may be significant. Indeed, as will become apparent, we think that in importation cases involving only small quantities of the drug for personal consumption, the appropriate sentencing response may lie outside (ie beneath) the bands postulated (see [34] below). In cases involving supply, there is an obvious culpability difference between those who supply for gain and those who give small quantities of drugs to friends for their personal consumption (or, perhaps, buy small quantities of drugs for their friends). Where there is a complete absence of commerciality and an absence of aggravating features (eg an aggravating feature such as the supply of drugs to school children or other young people) sentencing Judges may sentence beneath the bands postulated in [34].
Guidelines for offending involving the supply of methamphetamine
[33] We have referred to the sentencing bands proposed in Arthur (see [8] above). With one modification, we are content to adopt those bands for offending involving the supply of methamphetamine. The Court in Arthur indicated that the “large commercial quantity” category may well require further subdivision: ibid at [23]. After consideration, we think it desirable to ensure a gradation in sentencing response which is broadly referable to the quantity of methamphetamine involved in the offending. Where the quantity concerned is in excess of 500 grams, we would see the appropriate starting range as being ten years imprisonment or more. Longer sentences will be appropriate where the quantities are appreciably larger, to reflect the fact that dealing in methamphetamine now potentially attracts a life sentence.
[34] The result is that we adopt the following sentencing bands in cases involving the sale or supply of methamphetamine:
(a)Band one - low level supply (less than five grams) ‑ two years to four years imprisonment.
(b)Band two - supplying commercial quantities (five grams to 250 grams) - three years to nine years imprisonment.
(c)Band three - supplying large commercial quantities (250 grams to 500 grams) - eight years to 11 years imprisonment.
(d)Band four - supplying very large commercial quantities (500 grams or more) - ten years to life imprisonment.
We emphasise that these are starting points, before taking into account aggravating and mitigating factors relating to the offender (as opposed to the offending). We also note that supply in small quantities where there is no commerciality and no other aggravating features may call for starting points less than those indicated as appropriate for band one.
Guidelines for offending involving the importation of methamphetamine
[35] For offending involving the importation of methamphetamine, we regard the Arthur bands as being broadly appropriate but with uplifts of 10% ‑ 20% in the starting point sentences contemplated.
[36] The result is that we adopt the following sentencing bands in cases involving the importation of methamphetamine:
(a)Band one - low level importing (less than five grams) - two years six months to four years six months imprisonment.
(b)Band two - importing commercial quantities (five grams to 250 grams) - three years six months to ten years imprisonment.
(c)Band three - importing large commercial quantities (250 grams to 500 grams) - nine years to 13 years imprisonment.
(d)Band four - importing very large commercial quantities (500 grams or more) - 12 years to life imprisonment.
As indicated, in cases where small quantities of methamphetamine have been imported for personal consumption, it is open to sentencing Judges to treat band one as not applicable. We emphasise that these bands are otherwise applicable to all who import methamphetamine, including those whose roles are as “mules”. Obviously the more significant the role of the offender in any importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band.
Guidelines for offending involving the manufacture of methamphetamine
[37] Cases involving the manufacture of methamphetamine can be problematical. Whether the scale of the offending can be assessed depends very much on chance; the evidence of manufacture on hand at the time of police intervention, volumes of precursor materials located and the availability of extrinsic evidence (eg in the form of electronic intercepts).
[38] Obviously it is open to a sentencing Judge to make findings of fact as to the extent of past offending based on evidence, perhaps in the form of admissions, intercepted communications, cash movements, tick lists and chemical purchases. If there is no agreed summary of facts, such findings must be made in accordance with s 24(2)(c) of the Sentencing Act 2002 (ie on the basis of the criminal standard of proof).
[39] Rather more problematical is the extent to which the Courts should sentence on the basis of potential yield. In R v Terewi [1999] 3 NZLR 62 at [5] - [8], this Court considered that sentencing Judges are entitled to have regard to potential revenue anticipated by the offender as being able to be derived from the set up of a hydroponic cannabis growing operation.
[40] The Terewi approach is broadly consistent with the argument for the Crown but we have reservations as to its applicability in the present context. As a matter of principle, an offender should only be sentenced in relation to offending which he or she admits or which the Crown can prove. It is not right for an offender to be sentenced on the basis of offending that he or she would or could have committed had the police not intervened. On the other hand, the courts must take a realistic view of the dynamics of this particular form of offending. Those who gear up to manufacture methamphetamine are not likely to be content with a single “cook”. As was recognised in Worth v R [2001] WASCA 303 at [50], the “practical potential of the operation” must be a relevant consideration.
[41] A principled approach is to recognise that manufacturing methamphetamine necessarily involves criminality at two levels: first the possession of equipment for the purpose of manufacturing (which is an offence against s 12A of the Misuse of Drugs Act 1975) and secondly the actual use of that equipment to manufacture methamphetamine. When offenders put together the equipment to manufacture methamphetamine, the culpability of their conduct is closely associated with the likelihood that the equipment will be used for that purpose. This approach can either be taken directly (if the prosecution lays charges under s 12A) but can also be implemented indirectly by treating the possession of the equipment as an aggravating feature of the primary manufacturing offending. In the end the approach which we prefer leads to the same conclusion as that contended for by the Crown albeit that we have reached it by perhaps a slightly circuitous route.
[42] Where the Crown can establish that large quantities of methamphetamine have been manufactured, the Court may regard the criminality in gearing up to manufacture as being absorbed by the culpability of the primary offending. In other cases, where the evidence as to how much was manufactured is uncertain, the position is different. Nonetheless it is right to recognise that methamphetamine manufacture is always (or almost always) going to involve significant commerciality. We say this because the difficulties, expense and risks involved in manufacturing methamphetamine make it inherently unlikely that such an operation would be set up to produce drugs for purely personal consumption.
[43] In those circumstances we consider that appropriate sentencing bands for those who are the primary offenders in methamphetamine manufacturing operations should be based on uplifts of 10% - 20% on those applicable in the case of importers:
(a)Band one - not applicable for reasons given in [42].
(b)Band two - manufacturing up to 250 grams - four years to 11 years imprisonment.
(c)Band three - manufacturing large commercial quantities (250 grams to 500 grams) - ten years to 15 years imprisonment.
(d)Band four - manufacturing very large commercial quantities (500 grams or more) - 13 years to life imprisonment.
The sentence imposed must reflect not only the quantity of the drug involved but also the role of the particular offender in the manufacturing ring in question. Findings of fact in this area must, of course, be made in accordance with s 24(2)(c) of the Sentencing Act.
Other considerations
[44] The High Court should apply these guidelines in all methamphetamine cases where a plea of guilty is entered or a finding of guilt is made after the date of this judgment.
[45] The principal impact of these guidelines will be where there is uncertainty as to the amount of the drug that has been manufactured or where the quantities actually manufactured are low. In relation to such offending, the new guidelines will tend to lift sentencing levels as they reflect the criminality inherent in gearing up to manufacture methamphetamine.
[46] We also stress that these guidelines are applicable only to offending involving methamphetamine. Other appellate authorities should continue to guide sentencing for other Class A dealing, including other Class A manufacturing. At some convenient time, we may review those authorities to see whether a quantity banding approach might be appropriate there as well. Further, Wallace and Christie should continue to be regarded as the guideline judgment for Class B drug offending. At an appropriate time, however, we will review Wallace and Christie with a view to determining whether to bring Class B sentencing on to a quantity band approach.
The case at hand
Factual background
[47] On three occasions in 2003, the police executed search warrants at premises associated with the appellant.
[48] The first search, on 2 April 2003, was of the premises at 48 Matai Road which was then occupied by the appellant, his wife and their two children (who were then five and eight). The material found included precursor chemicals (acetone, isopropyl, clear meths and sodium hydroxide), equipment (filters, beakers, a digital pH meter and testing strips), and materials commonly used by dealers to package pure methamphetamine for retail sale (plastic zip lock bags known as “point bags” and “gram bags”). Residue in buckets indicated that pseudoephedrine extraction had been carried out. A large number of used coffee filters, which are commonly used by methamphetamine manufacturers, were also located.
[49] The appellant returned to his house while the police were still at the scene. He promptly departed.
[50] A second warrant was executed at the same address on 23 June 2003. The police found further chemicals and equipment for the manufacture of methamphetamine, stolen property (a TV valued at $13,000, and two laptop computers valued at $6,500 and $3,500 respectively) and cash hidden in a photo frame. The police located the appellant and several associates inside the garage.
[51] On 5 August 2003, the police charged the appellant in connection with the stolen property and precursor substances found in the previous searches. He was then released on bail.
[52] The third warrant was executed on the morning of 1 November 2003 at an apartment occupied by the appellant at 2/2 Ruakiwi Road. More precursor materials were found (diethyl ether, acetone, hydrochloric acid, sulphuric acid, and toluene). A strong chemical odour permeated the apartment and was also associated with the persons inside, namely the appellant his wife and two associates. Other non‑precursor chemicals were found including iodine and phosphoric acid. These are commonly used in the manufacture of methamphetamine. The appellant later acknowledged that he had flushed material down the toilet to avoid detection, including pH testing strips. These, together with electronic scales, were later found in the plumbing.
[53] A methamphetamine laboratory was found packaged in a nearby vehicle. This consisted of two reaction vessels known as Parr bombs (cylindrical vessels which are used to produce chemical reactions), one of which had been adapted to include a pressure gauge, two steam distillation units, thermometers, digital scales, and heating, drying, and venting equipment.
[54] During the execution of the warrant the appellant was arrested together with his wife and two associates.
[55] Throughout the period of the investigation and surveillance, significant telephone traffic was intercepted which suggested sizeable commercial dealings.
[56] On any view, the scale of the offending was significant. The manufacturing extended over a period of at least seven months. The appellant claimed that he manufactured methamphetamine less than once a week. He admitted that each “cook” produced between one and one and a half ounces of methamphetamine. Assuming say three “cooks” a month, each producing an ounce of methamphetamine, the total produced would have been in the order of 600 grams, with a total retail value of up to $600,000 (assuming a retail price of $1,000 per gram).
[57] The appellant’s two children, then aged five and eight respectively, were exposed to substantial danger by the appellant’s decision to manufacture methamphetamine in the family home. His disregard for the children’s safety formed the basis of the charges for wilful neglect.
The sentences imposed
[58] MacKenzie J sentenced the appellant as follows:
(a)Nine years imprisonment (with a minimum term of five years) for manufacturing methamphetamine after it became a Class A drug;
(b)Eight years imprisonment (concurrent) for supplying methamphetamine after it became a Class A drug;
(c)Six years imprisonment (concurrent) on each of the charges of manufacturing and supply relating to the period when methamphetamine was a Class B drug;
(d)Six years imprisonment (concurrent) for conspiracy;
(e)Six months imprisonment (concurrent) for wilful neglect of his children; and
(f)Two years imprisonment (concurrent) for receiving stolen property.
[59] MacKenzie J found that the manufacturing fell within the second category of Wallace and Christie (commercial manufacturing) and was towards the upper end of that category. Under the Wallace and Christie guidelines the second category attracted starting point sentences of between five and eight years. The Judge then observed at [15]:
… That starting point needs to be adjusted to reflect the fact that methamphetamine is now a class A drug, and that requires a significant increase in the starting point. …
[60] MacKenzie J considered that offending within category two of the Wallace andChristie guidelines ought now to attract a starting point sentence of between seven and 12 years. Taking the view that the offending was at the top end of category two he fixed a starting point of 11 years. MacKenzie J used the expression “starting point” to encompass all features of the case that were relevant to the setting of a sentence other than those which were intrinsic to the offender.
[61] MacKenzie J then considered the credit to be given for the appellant’s guilty pleas and his expressions of remorse. On the one hand, the appellant had pleaded guilty some months before his trial. On the other hand, there was a considerable delay between the initial charges in August and November 2003 and the eventual guilty pleas on 27 August 2004. Moreover, it seems that the guilty pleas followed negotiations which resulted in the dropping of charges against the appellant’s wife. In the end, MacKenzie J considered that a reduction of two years (ie an 18% credit) was appropriate.
The argument for the appellant in this Court
[62] The appellant challenges the sentences in two principal respects. First, he argues that the starting point set by MacKenzie J for the post-reclassification charges was too high. Secondly, he submits that insufficient credit was given for his guilty pleas and personal circumstances.
The starting point
[63] Two particular aggravating features need to be allowed for:
(a)The persistence of the appellant’s offending despite the execution of the first two search warrants and his arrest (in early August 2003). Some of this offending occurred while he was on bail; and
(b)The unrelated offending involving the receiving of stolen property of substantial worth.
[64] Against that background, a starting point of up 12 or 13 years could easily have been justified. The appellant’s offending involved production of large commercial quantities of methamphetamine. In accordance with the starting points we have identified, an appropriate starting point was at least 12 years and, in view of the two aggravating features we have just mentioned, an appreciably higher starting point could have been adopted. We are, of course, conscious that our concept of large commercial quantities is perhaps somewhat less than that contemplated in Wallace and Christie.
[65] It must be recalled that MacKenzie J was sentencing for a number of serious offences. A starting point of 11 years was by no means too high, given the aggravating features we have just identified. We also note that, had the appellant been sentenced under our new sentencing bands, the starting point would have been higher.
The discount for mitigating circumstances
[66] The sentencing credit for the guilty plea (which was less than 20% of the identified starting point) was not generous but in this area sentencing Judges are accorded a substantial measure of discretion. As Gault J stated in R v Mako [2000] 2 NZLR 170 at [14], delivering the judgment of a five judge bench:
…The Court has resisted laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which it might be entered. …
We also refer to R v Wrenn, Ross, and Thomas (1989) 4 CRNZ 165 at 175 (in the context of LSD importation) where Bisson J stated:
It is true that Wrenn’s pleas of guilty have saved the expense of a trial but very little credit can be given to such a plea when the country had already been put to the expense of a large number of police being engaged in the electronic surveillance and when a plea of not guilty would have been futile, Wrenn having been caught red-handed.
The case against the appellant was overwhelming and his pleas of guilty did no more than acknowledge the inevitable.
Overall assessment
[67] Apart from the guilty pleas there were no other mitigating circumstances of any significance. The most that can be said in favour of the appeal is that the discount for the guilty plea was less than other Judges might have been prepared to allow. Given that the most the appellant could fairly expect to have received for his guilty plea was say a 25% reduction in his sentence and the reality that the starting point picked by the Judge was on the light side, we do not see this as warranting the allowing of the appeal.
The result
[68] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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