R v G HC Hamilton CRI 2005-019-3481
[2005] NZHC 8
•1 September 2005
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2005-019-003481
THE QUEEN
v
G
Charges: Manufacturing Class A controlled drug methamphetamine x1
Cultivation of cannabis x1; Theft of a motor vehicle x3; Receiving x3
Breach of bail x1
Plea: Guilty
Appearances: Mr C Bean for Crown
Mr S Ellis for Prisoner
Judgment: 1 September 2005
Manufacturing – 4 years 6 months’ imprisonment
Cultivation of cannabis – one year’s imprisonment concurrent to manufacturing charge
Theft –1 year’s imprisonment
Receiving –2 months’ imprisonment concurrent to theft charges but cumulative to drug offences
Breach of bail – convicted and discharged
Total sentence: Five years six months’ imprisonment
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Hamilton
Mr S Ellis
R V G HC HAM CRI 2005-019-003481 1 September 2005
[1] G , at the age of 36 you appear for sentence on one charge of manufacturing a class A controlled drug, methamphetamine; one charge of cultivation of a prohibited plant, cannabis; three charges of theft of a motor vehicle; one charge of receiving property over $1,000; two charges of receiving property not exceeding $500; and breach of bail. The most serious charge is the charge of manufacturing a class A drug, methamphetamine. That charge carries a maximum sentence of life imprisonment.
[2] Mr G , your offending falls into the two categories, the drug dealing and the dishonesty offending. It may well be, as has been suggested, that your dishonesty offending is due to your involvement with drugs and your dependence on drugs. However, the dishonesty charges are quite different in kind to the drug offences themselves. I am going to deal with the drug and the dishonesty charges separately and I am going to deal with the dishonesty offences by way of a cumulative sentence on your drug offending sentence. But in so doing I am going to look at your offending overall to fix an appropriate sentence that reflects the totality of your offending fairly.
[3] Your drug offending came to the attention of the police when they executed a search warrant at your address in Hamilton on 28 January this year. The police found a fully operational clandestine methamphetamine lab at your property, which was in a residential street in Hamilton. You lived at the address with your partner and three young children.
[4] It was apparent as soon as the police arrived at the property that a clandestine lab was in operation or had been in operation there. There were chemical smells and fumes coming from an open garage door, and the police found chemicals and products used in the manufacture of methamphetamine inside the garage. The next day scientists located and identified a number of chemicals and equipment commonly used in the manufacture of methamphetamine at that property. In addition they found numerous empty packets of cold and flu products containing pseudoephedrine, which is required as an input into the process. The police also
found 12 cannabis plants growing under ultraviolet lights in a shed at the rear of the property.
[5] You were not at the property when the police arrived to search it on 28
January. The police spoke to you about the matter on 17 May 2005, some four months later. At that time while you denied you were the cook, you admitted that you had supplied a number of chemicals for use in the product and made your property available for the manufacture of methamphetamine. It is apparent that a number of cooks had taken place at the property. Mr G , you were clearly a significant party to the manufacture of methamphetamine at the address, which was your family address. You have also pleaded guilty to the cultivation of cannabis at that address.
[6] The theft offences relate to the theft of three motor vehicles, the receiving charges relate to property taken from motor vehicles, and a Canon printer. That offending has had an impact on the people whose property has been stolen and taken from them.
[7] Mr G , the pre-sentence report makes for depressing reading. As a child you were subjected to abuse. Counsel has emphasised that. It appears you had no effective role models. You left school without any qualifications. You have been unemployed for significant periods of your life. At the age of 36 you have been before the Court, I think, every year in the last 19 years. You have maintained the cycle of poor parenting and failure by allowing your addiction to drive you to the position where you have allowed your home to be used for the manufacture of drugs. You allowed the clandestine lab to be set up in a garage at the property close to where you and your family live. You have surrounded yourself with criminal associates.
[8] You are assessed by the probation officer as having a high risk of re- offending. There is a positive note in the report that apparently you now have motivation to change and that you have support from your partner and I acknowledge her presence in Court. However, I have to say that I have some reservations about those expressions of motivation to change as you have already
received assistance through various courses and release conditions in the past but despite that you have readily relapsed into offending as a result of your addictions.
[9] Mr Ellis has emphasised that you do intend to turn yourself around and that you have taken steps to do that in prison. Mr G , actions speak louder than words. Your past track record doesn’t suggest that you have taken steps. I hope that in the future you will. It is entirely up to your whether you are able to turn yourself around. At the age of 36 you have got time to do it.
[10] In terms of the Sentencing Act I am directed to take into account the purposes set out in the Act in sentencing you and those purposes include:
• Holding you accountable for the harm done to the community by your offending, namely the manufacture of methamphetamine, cultivation of cannabis and theft and dishonesty offending, particularly in relation to motor vehicles, which is prevalent.
• To promote in you a sense of responsibility for and acknowledgement of that harm.
• To denounce your conduct.
• To deter you and others from committing similar offending.
• To protect the community from harm associated with offending such as yours, particularly the manufacture and availability of class A drugs, and the cultivation of cannabis.
• Insofar as I can to assist in your rehabilitation at the end of your sentence.
[11] I also have regard to the principles in ss 8 and 16 of the Sentencing Act and s 6 (4) of the Misuse of Drugs Act. In this case because of the nature of the drug offending and the seriousness of the offending, as counsel has realistically sensibly
agreed, imprisonment is the only option. You are in no position to pay a fine. The issue for this Court is how long you are to be sentenced to imprisonment.
[12] As I said I propose to treat the manufacturing class A drug methamphetamine as the lead charge and sentence you to concurrent sentences for that and the cultivation of cannabis, the other drug charge. However, I regard your dishonesty offending as separate in nature and that will be dealt with by a cumulative sentence.
[13] Counsel have referred during the course of submissions to a number of cases decided by this Court and by the Court of Appeal. This Court is bound by decisions of the Court of Appeal. Other decisions of this Court are of assistance when considering the appropriate sentence and in satisfying the requirement for consistency in sentencing.
[14] In the Court of Appeal decision of R v R v Arthur (CA 382/04, 17 March
2005) the Court of Appeal considered an appropriate sentence range for the possession of methamphetamine for supply. The Court of Appeal referred to three bands used in Australia and suggested they could be of assistance. The Court of Appeal identified a band for small commercial quantities of between five and 250 grams, that for supply. For that band the Court identified a starting point of between three to nine years’ imprisonment as appropriate. I consider that the manufacturing operation at your home that you were a significant party to puts you in that category. I accept that your offending would put you perhaps towards the lower end of that band as a small commercial operation but I also have to acknowledge that in Arthur the Court of Appeal was dealing with supply and the Court expressly recognised that manufacturing might call for a higher starting point. The reason for that is that those who manufacture class A drugs are responsible for actually bringing the illegal substance into existence.
[15] Mr Ellis has argued against the application of that principle in your case. Despite his submissions I consider the distinction made by the Court of Appeal is appropriate and applicable. However, I accept that at the end of the day you are to be sentenced on the basis of the facts and the particular circumstances that relate to your case.
[16] The matter can be approached in another way. In an earlier Court of Appeal decision in R v Wallace & Christie [1999] 3 NZLR 159 the Court identified three categories of offending in relation to the manufacture of drugs. In that case the Court was considering class B drugs and class A drugs of course such as methamphetamine involved more serious offending and more serious penalties. This Court has dealt with that recently by taking categories in Wallace & Christie and applying some uplift to the starting point to acknowledge the more serious nature of class A drug offending. On that basis your offending would fall into the third category in Wallace and Christie, again at the lower end of commercial manufacture.
[17] When I have regard to those authorities and the need to be consistent and bearing in mind that you are also for sentence on the cultivation of cannabis I take as an appropriate starting point before considering personal aggravating and mitigating circumstances a sentence of five and a half years’ imprisonment for the drug offending.
[18] I then have to consider aggravating circumstances. In your case the personal aggravating circumstances are the fact of your numerous previous convictions for drug offending. You can’t come to this Court and place reliance on a clear slate or no previous record. You have an extensive criminal history including 12 previous convictions for drug offending of one kind or another. You have other convictions as well. It might be said that to date you have been treated relatively leniently by the Court.
[19] Against that I am able to take into account mitigating factors on your behalf. Mr Ellis has emphasised your difficult personal circumstances and I have acknowledged those. There is, however, a limit to how far I can take those matters into account and how much weight I can give them given the nature of your offending. In your case the principal mitigating factor that I can properly take into account is your early guilty pleas to all counts.
[20] I accept that those early guilty pleas are an acknowledgement of responsibility on your behalf and I also want to send a message that people who do plead guilty early will be given a credit for that.
[21] Mr G please stand. On the charge of manufacturing class A controlled drug methamphetamine you are sentenced to a term of imprisonment of four years six months. On the charge of cultivation of cannabis you are sentenced to one year, that to be served concurrently. In terms of the dishonesty offending, on the three charges of theft you are sentenced to imprisonment for one year. On the three charges of receiving you are sentenced to imprisonment for two months. The breach of bail you are convicted and discharged. The sentences for the dishonesty offences are to be served concurrently with each other but are cumulative on the drug offending. The total term of imprisonment for you therefore is five years six months.
[22] There will be an order for destruction of all illegal materials and substances found at your property. That is all, stand down.
G J Venning J
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