R v Gibbons HC Hamilton CRI 2006-019-617
[2007] NZHC 1995
•14 August 2007
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2006-019-617
QUEEN
v
TANE KYLE DOUGLAS GIBBONS, KAIYA IAN GENE GIBBONS AND NICOL JOY STEPHENS
Hearing: 14 August 2007 (Heard at Hamilton)
Appearances: P Crayton for Crown W Pyke for T Gibbons G Boot for K Gibbons
T Sutcliffe for N Stephens
Judgment: 14 August 2007
SENTENCING NOTES OF ASHER J
Sentences imposed: Tane Gibbons
Permitting premises to be used for the manufacture of methamphetamine
Two-and-a-half years’ imprisonment
Possession of equipment for the manufacture of methamphetamine
15 months’ imprisonment (sentence to be served concurrently)
Possession of material for the manufacture of methamphetamine
15 months’ imprisonment (sentence to be served concurrently)
Possession of a precursor substance for the manufacture of methamphetamine
15 months’ imprisonment (sentence to be served concurrently)
Kaiya Gibbons
Manufacturing methamphetamine
Two years and nine months’ imprisonment
R V GIBBONS & ORS HC HAM CRI 2006-019-617 14 August 2007
Possession of equipment for the manufacture of methamphetamine
15 months’ imprisonment (sentence to be served concurrently)
Possession of material for the manufacture of methamphetamine
15 months’ imprisonment (sentence to be served concurrently)
Possession of a precursor substance for the manufacture of methamphetamine
15 months’ imprisonment (sentence to be served concurrently)
Nicol Stephens
Permitting premises to be used for the manufacture of methamphetamine
300 hours community service
Solicitors:
Almao Douch, PO Box 19-173 Hamilton
WC Pyke, PO Box 19-271 HamiltonG Boot, Gavin Boot Law, PO Box 19043 Hamilton
Till Henderson King, PO Box 19342 Hamilton
Introduction
[1] Tane Gibbons, Kaiya Gibbons and Nicol Stephens you appear today for sentence having stood trial and been found guilty on 21 June 2007 of various charges relating to methamphetamine. The particular counts of which you were found guilty were as follows:
Tane Gibbons
(1) Permitting premises to be used for the manufacture of methamphetamine
(2) Possession of equipment for the manufacture of methamphetamine
(3) Possession of material for the manufacture of methamphetamine;
and
(4)Possession of a precursor substance for the manufacture of methamphetamine
Kaiya Gibbons
(1) Manufacturing methamphetamine;
(2) Possession of equipment for the manufacture of methamphetamine; (3) Possession of material for the manufacture of methamphetamine;
and
(4)Possession of a precursor substance for the manufacture of methamphetamine
Nicol Stephens
(1) Permitting premises to be used for the manufacture of methamphetamine
[2] The charges arose from a search of a property at 83 Alderson Road Hamilton, on 25 January 2006. The search warrant had been issued for matters not related to methamphetamine. When the police arrived at approximately 11:00 am on the Sunday morning, all three of you were present. In the kitchen the police found evidence that the manufacture of methamphetamine was proceeding or had just been completed. Two other persons who were in the house endeavoured to escape but were ultimately apprehended.
[3] Statements were taken from all three of you in which to varying extents you admitted some awareness of what was happening. A subsequent police search of the house and the outlying garage and sleepout revealed equipment and materials that could be used for the manufacture of methamphetamine and some precursor substances. At least two backpacks were found which indicated that mobile methamphetamine laboratories were in use. There was evidence that methamphetamine had been manufactured in the kitchen of the house, but despite the presence of equipment and material in the sleepout and garage there was no evidence that actual manufacture had taken place out there. I will return to aspects of these facts when I deal with matters relating to each of you individually.
Approach to sentencing
[4] Each of you has been convicted of a different range of offending. I propose to just make some brief remarks about the general approach. Only you, Mr Kaiya Gibbons, have been found guilty of manufacturing methamphetamine. In relation to you, Mr Tane Gibbons, the jury did not convict you of manufacturing methamphetamine but convicted you of the charge that was laid in the alternative, of permitting premises to be used for the manufacture of methamphetamine. Both of you were found guilty of possession of equipment, materials and precursors, relating to methamphetamine manufacture. Ms Stephens, you were found guilty only of the single charge of permitting premises to be used for the manufacture of methamphetamine.
[5] I will deal with each of you in the sequence set out in the indictment. In relation to each of you I will first consider the matters relevant to the offending to reach an appropriate starting point for sentence, and then consider matters relating to you personally to reach a final sentence.
[6] I bear in mind that all three of you were involved in what was on the day in question at least, a single sequence of events, and that all of you were living in the house. I make the general comment that all three of you were relatively young at the time of the offending. I am satisfied having heard the evidence that you were
associating with persons who were older than you were, and who had considerable experience in the use and manufacture of methamphetamine.
Tane Gibbons
[7] I consider that the most serious count of which you have been found guilty was that of permitting your premises to be used for the manufacture of methamphetamine. That offence carries a maximum penalty of 10 years’ imprisonment. I consider that of the four persons who lived in the property you were the dominant personality. I am left with a clear impression that you were the one who developed the friendship with the person who was the heavy user of methamphetamine and who knew how to make it. You accepted in your statement to the police that you knew that chemicals had been brought to the house and that you knew that there were chemicals in the shed. You acknowledged that the third party had cooked up in your place before and said that that was three to four times, although you had never “pulled out” any ‘P’ before or “none that he’d shown us”.
[8] Having heard the evidence I am satisfied beyond reasonable doubt that you permitted the premises to be used for the manufacture of methamphetamine on the day in question and on three previous occasions. It is possible, of course, that there were more occasions but I put that to one side for the purposes of sentencing because I cannot be satisfied to the appropriate standard of any more than those occasions I have mentioned. I see your role, as I have already indicated, as not that of an instigator, and indeed this is in part reflected in the jury’s verdict where it found you not guilty of manufacturing methamphetamine. There is no evidence that you gained anything personally, save perhaps for methamphetamine to use for yourself and your friends, from allowing premises to be used. I conclude that the commerciality that existed was of a low order.
[9] There is no tariff decision in relation to permitting premises. Indeed the great range of circumstances that can be involved in this offence, which are demonstrated in this particular sentencing process, would make it difficult for any tariffs to be set.
[10] Counsel have referred me to R v Johnston and Stott HC AK CRI 2005-044-
5100 11 April 2006, where I sentenced a person whose role was passive and who had been led into the offending by force of circumstance and a relationship, to a starting point of two-and-a-half years. The Crown submitted that your involvement was more serious than in that case, and the appropriate starting point for this and the other three charges taking into account the totality principle was three to three-and-a- half years. Your counsel has submitted that a starting point of no more than two- and-a-half years is required.
[11] I have found that your offending took place on a number of occasions and that makes it more serious than a single incident. However, I do conclude that your level of offending has only been of a moderate level of seriousness because of the lack of serious commerciality and the fact that you were under the influence, I consider, of your more hardened associates. If you were only convicted of permitting premises the starting point of a sentence around the three-year mark would be appropriate. However, I cannot ignore your convictions on the other three counts, which are in themselves serious and cover a longer time frame.
[12] In that regard I am mindful that in terms of the possession of precursor substances the evidence is that you purchased some packets of medicines containing pseudoephedrine on four occasions. In terms of possession of precursor substances that is at a low order of seriousness. The possession of equipment and materials convictions must be seen in the context of you being a friend of others who were more serious offenders who may have been using your place as a drop-off point for portable laboratories.
[13] Taking into account the totality principle I consider that the starting point for sentence for you is three years and three months’ imprisonment.
[14] I now turn to matters relating to you personally. Both you and your brother present as an odd contradiction. Your mother whose anguish at your predicament can be readily understood, gives a credible picture of you as a cheerful and able young man who is capable of developing skills and of hard work. The letter that you have written to me shows intelligence and a good perspective on your life to date.
Yet you had committed yourself to an association and an activity that was totally criminal and utterly destructive of yourself, your brother and your partner, and ultimately the wider community.
[15] You have previous convictions, which include, for your age, quite a serious run of dishonesty matters. While these are not aggravating factors as they do not relate to methamphetamine, they show that in 2004 you were going down the road to becoming a hardened criminal. However, I bear in mind your youth at the time of the offending. You were 18 years of age for much of the period, and had turned 19 in the month before the police arrived. This is a substantial mitigating factor, particularly when I consider it in the context of the explanation that your mother has given of your life over recent years, and the fact that regrettably you have not had the guidance that was clearly needed. I take all these factors into account, but I must also bear in mind the limit on the weight that can be given to personal circumstances when it comes to methamphetamine offending. However, this limit does not relate to your youth, which is the most significant mitigating matter.
[16] In all of the circumstances, I consider that the appropriate final sentence for you is a sentence of two years and six months’ imprisonment.
Kaiya Gibbons
[17] You have been convicted of the most serious charge faced by the three of you, namely manufacturing methamphetamine. The indication given as to the appropriate sentencing bands in R v Fatu [2006] 2 NZLR 72 (CA) applies. The effect of your statement to the police was to admit participating in the manufacture of methamphetamine on the day in question. I am satisfied that your role in doing so was as an assistant. It seems that the manufacture of methamphetamine that took place on that day did not involve a great moment. The evidence was that methamphetamine had been consumed immediately before the police arrived, and the police did not find any methamphetamine in the house or on the accused. I conclude that the amount of methamphetamine manufactured was relatively small and no more than could be consumed by two or three persons. You are in the same
position as your brother to the extent that you were not an instigator, but rather a person in a subsidiary role.
[18] I am not satisfied beyond reasonable doubt that you assisted in the manufacture of methamphetamine more than on this one occasion. I am, however, satisfied that you were aware of the presence of equipment, materials and precursor substances on the property for more than just that one day, and for at least some months prior during the course of your residence at 83 Alderson Road.
[19] I consider that your role for the manufacture of methamphetamine falls within the second category in R v Fatu, being the manufacture of small commercial quantities where the band is four to eleven years’ imprisonment. I note that in R v Fatu it was stated at [31]:
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.
[20] The Crown has submitted that the appropriate starting point for you is in the lower half of band 2 of R v Fatu, being five to six years’ imprisonment. Your counsel has submitted that the offending is right at the bottom end of band 2. I consider that your offending was at the bottom end of band 2, given the fact that the manufacturing charge related to the events of a single day and that your role was as a party assisting rather than as a principal. I also take into account the low quantities produced. I consider that a starting point as low as three years and nine months could have been contemplated. However, I take into account your other offending and the totality principle, and I conclude that the appropriate starting point for you is four years’ imprisonment.
[21] I turn to matters relating to you personally. The general remarks I have made about the character of your brother, Tane, showing the contradictory facets of ability and being able to hold good work, against a bad record considering your age, apply. So does the partial explanation offered by your mother as to how this has all come about.
[22] A particular factor referred to in your pre-sentence report of you being assessed as having a low motivation to address your offending arises from your unwillingness to expressly acknowledge your wrongdoing. This is not an aggravating factor, but in any event I am inclined to accept your counsel’s explanation that you are in a general sense remorseful and do accept that you have to change your lifestyle in a radical way. This is evidenced from your personal statement to me, and the very excellent references with which I have been provided. You have come top in a particular trade course and those who have employed you speak highly of you.
[23] The most significant mitigating factor is your youth. At the time of the offending you were 17 years old. I have already taken into account your role as that of a party being led into offending when I have considered the starting point. However, it is not double counting to weight the fact that you were only 17 at the time, and clearly susceptible to the influence of others, including your brother. I also do not think that I can entirely ignore the principle of sentencing in s 8(e) of the Sentencing Act 2002, which requires a Court to take into account the general desirability of consistency with sentencing levels for similar offenders committing similar offences with similar circumstances. You have been convicted of a more serious crime than your brother Tane, but I am conscious of the fact that the events on the day were part of a single continuum and that your brother’s ultimate sentence was two years and six months’ imprisonment.
[24] I do not ignore your bad record but I do not regard it as an aggravating matter as the offences were not concerned with methamphetamine. I give most emphasis to your youth, but also weighing the very positive aspects of your character and the parity issue I have mentioned, I fix a final sentence for you of two years and nine months’ imprisonment.
Nicol Stephens
[25] When the third party arrived at your home on the Sunday morning to set up the methamphetamine laboratory you were asleep. He was let in by your partner, Tane Gibbons. You woke and in the course of doing housework you went through
the kitchen where methamphetamine manufacture was taking place. The jury verdict indicates that you were aware that methamphetamine manufacture was going on and took no steps to stop it. You were the person in the house who had signed the tenancy agreement and were effectively, with your partner Tane Gibbons, one of the two persons in charge of the house.
[26] However, having heard the evidence and read the material handed to me in the course of submissions in mitigation, I consider that your role in permitting the premises to be used was at a very low level. The impression I have, having heard you give evidence and having considered all this material, is that you were a person who had no wish at all to be complicit in criminal offending. You did not like the elements with whom Tane Gibbons was mixing, and on occasions would leave the home to avoid them. You sought to discourage Mr Gibbons from mixing with those elements and it was only your relationship with him which left you in the predicament of having to tolerate persons in your home whom you would have otherwise avoided.
[27] The Crown does not suggest that you permitted offences to occur on any occasion other than the day in question. Your offending must be seen in the context that your awareness of what was happening before the police arrived is unlikely to have been for more than half an hour. You had the option of putting a stop to it and that is why you have been found guilty, but I recognise that in the circumstances that you have been very difficult for you to do so.
[28] The Crown in its submissions accepts that your offending was at the lowest level. Mr Crayton nevertheless submitted that a sentence of imprisonment should be imposed. He submitted that the awful consequences of methamphetamine production and its use means that any less a sentence cannot be tolerated. He suggests a starting point in the range of six to twelve months’ imprisonment.
[29] Your counsel has submitted that this should be one of the rare cases where a non-custodial sentence is imposed. He submits that a sentence of community work rather than imprisonment is appropriate.
[30] I consider the starting point range suggested by the Crown of six to twelve months’ imprisonment as being realistic, although I would fix any starting point at the lower end of that. However, this would be before taking into account any mitigating circumstances relating to you personally.
[31] You have no previous convictions. Despite your relative youth (you were 21 years of age at the time of the offending), you have an impressive work record. You are a qualified hairdresser and you have successfully run your own hair salon, although the success of this lessened as your involvement with Mr Gibbons increased. Your testimonials are very supportive and convincing. Your parents, who gave evidence on your behalf at the trial, support you and I accept what they say about your good character and decency. You were pregnant at the time when the police executed the search warrant, although you did not realise it, and you now have a child.
[32] You are entitled, therefore, to full credit for good character. I am also satisfied that in a general sense you are extremely remorseful for allowing yourself to be put in a situation where a serious crime has been committed in a house that you occupied.
[33] I am, therefore, taken to the point that community work must be seen as a serious option for you. At that point any precise application of R v Taueki [2005] 3
NZLR 372 (CA) formula for reaching a starting point and then making adjustments for matters relating to the offender cannot be so easily applied, and the position must be looked at in the round. I take into account the need to impose the least restrictive outcome that is appropriate in the circumstances, and also the statement in s 16 of the Sentencing Act 2002 that the Court in considering a sentence of imprisonment must have regard to the desirability of keeping offenders in the community as far as that is practical and consonant with the safety of the community.
[34] I return to the point forcefully and properly made by Mr Crayton that methamphetamine offending of this order is so serious that responding to it by anything other than a sentence of imprisonment may be inappropriate. However, in this extreme case I am satisfied that I can properly impose a sentence of community
work. I do not think that doing so is inconsistent with the safety of the community. This is because of the particular unusual features to which I have referred. As I have already stated, your offending is at a very low level. Your involvement was extremely limited. It was short in time and you had only limited options. The actual manufacturing was not particularly commercial. You were relatively young and in a relationship where you deferred to your partner in a situation where he was clearly the dominant party. He let the offender into the house.
[35] Your good record and excellent character tip the balance away from a term of imprisonment and make community work the appropriate sentencing response. A sentence of community work cannot, however, in the circumstances be short. This is an extremely serious crime of which you have been convicted. The sentence will therefore be 300 hours of community work.
Result
[36] Mr Tane Gibbons on the permitting premises to be used for the manufacture of methamphetamine charge you are sentenced to a term of imprisonment of two- and-a-half years. On the other three counts you are sentenced on each to a term of imprisonment of 15 months’ imprisonment. Those sentences are concurrent.
[37] Mr Kaiya Gibbons on the manufacturing methamphetamine charge you are sentenced to two years and nine months’ imprisonment. On the other three charges you are sentenced on each to 15 months imprisonment. Those sentences are concurrent.
[38] Nicol Stephens on the permitting premises to be used for the manufacture of methamphetamine charge you are sentenced to 300 hours community service.
[39] I can say to all three of you that the future is now up to you. All three of you have the ability to live happy lives with families, good jobs and being good citizens in your community. You have seen through this process what the alternative is. If you come before the Courts again you will come before the Courts as persons who have a serious criminal record, and that will be taken into account in any sentencing
that might happen. I do believe that at the moment none of the three of you intend that that should happen. Let me say that I hope that that remains your intention.
………………………… Asher J
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