R v Gunbie

[2014] NZHC 2804

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-225 [2014] NZHC 2804

THE QUEEN

v

STEVEN BRENT GUNBIE

Hearing:	30 October 2014
Appearances:	E J McCaughan for the Crown J S Kovacevich for the Defendant
Sentencingdate:	30 October 2014

SENTENCING NOTES OF THOMAS J

Solicitors:

Meredith Connell, Auckland.

Counsel:

J S Kovacevich, Auckland.

R v GUNBIE [2014] NZHC 2804 [30 October 2014]

Introduction

[1]      Mr   Gunbie,   you   appear   for   sentence   having   pleaded   guilty  to   one representative charge of knowingly permitting premises to be used for the purpose of producing the Class B controlled drug pseudoephedrine.  The maximum penalty for this offence is seven years’ imprisonment.

Facts

[2]      The facts are that between 6 January 2012 and 23 February 2012 you lived on Sharp  Road  in  Warkworth.    On  two  occasions  over  that  period,  you  allowed associates to produce an unidentified amount of pseudoephedrine, knowing that they ultimately intended to manufacture methamphetamine.  It is unknown whether any methamphetamine was manufactured at your address over that period or whether the associates completed the manufacture at another location.

[3]      The summary of facts also states that on 21 February 2012 you agreed to travel to an industrial unit in Glenfield, in order to see if  you could help your associates sort out a problem they were having in the process of manufacturing methamphetamine.  It is unclear whether you were able to assist them.

Personal circumstances

[4]      You have a lengthy criminal record, with 28 convictions in the last ten years alone.  Most relevant to the current offending is your conviction for possession of cannabis in February 2013, for which  you served a concurrent sentence of one month’s imprisonment.   The only other drug related convictions go back to 1997 where you received convictions for possession of methamphetamine and morphine. The Crown, however, does not seek an uplift for your previous offending.

[5]      You are 36 years old. You have seven children for whom you say you are responsible.  Three of them are your biological children.  You have a two and a half year old child with your current de factor partner, with whom you have been in a relationship since 2011. You say you are in regular contact with all your children.

[6]      You told the probation officer that you have a good relationship with your two ex-partners and provide them with financial assistance when they need it.  Police checks suggest that one of your ex-partners has a final protection order in place against you.   I have seen correspondence from your mother which provides some context in relation to that.

[7]      The probation officer spoke to your mother, who explained that the two of you reconnected after your release in 2011.   At that time she felt that you had changed your outlook on life.  She believes you have had enough of prison and enjoy working on the farm.  She says she “calls you out” on your behaviour.  The probation officer considers her to be pro-social and very supportive of you.   Your mother offered her home as a base for you.

[8]      I would like to turn to a letter she has written which I received this morning. It seems to me, Mr Gunbie, you are extremely fortunate to have such a supportive mother, in all the circumstances.  She clarifies the comments in the probation report about the protection order and she says there is no record of any domestic violence in your  subsequent  relationships.    She  herself  has  been  a  volunteer  for  Womens Refugee since the 1970’s and says she would never condone such behaviour. Importantly, however, she has assisted you in paying for some psychological help.

[9]      From 2009 to 2010 you worked with Mr Greg Wilcox a psychologist.   He feels it would be positive to work with you again on your release from prison.  Your mother was only able to afford two sessions previously but she says that she will fund future sessions on your release because she is in a better financial position.

[10]     Most importantly, you are welcome to live at her home on the family farm in Warkworth.  She offers paid employment for you to do so.  This will enable both her and your partner’s mother to care for the two and half year old child and this will enable your partner to return to employment as well.  Your mother discusses how your children miss you and she confirms that there will be no one at the farm with any convictions.   As  I say you are very fortunate to have  a mother who is so supportive.

[11]     Your partner has also continued to support you, notwithstanding that your having to be remanded in custody has meant she has not been able to work in her chosen career because she has had to care for your young child.

[12]     It seems at the time of the offending you were working from home restoring motor bikes as a source of income.   You said you received the benefit for some months in between repair jobs.  You have some unpaid fines and enforcement costs and outstanding reparation.

[13]     You told the probation officer that you only pleaded guilty to this offending because you had been on remand for two years.  You suggested to her that “you had not done anything wrong”.   You say you never set foot on the address on Ellice Road.   Initially you had no knowledge of your friends’ intentions.   You accept towards the end you became aware of them but say you distanced yourself from your friends.

[14]     The probation officer noted that you appeared almost dismissive when asked about your past offending.  She considers that you are unmotivated to change.  She notes that you have seven breaches of sentences dating back to 1994 and numerous convictions involving aggression towards Police and prison staff.  She is concerned that you pose a risk of harm to others if that attitude remains unaddressed.  She notes that for around six months in 2009 you were seen by an independent psychologist in prison to address your anger issues.

[15]     Overall,  based  on  your  criminal  history,  current  offending  and  lack  of insight, the probation officer assessed you as being at high risk of further reoffending and posing a high risk of harm to the community.   There was a suggestion of discussing with you sentencing options involving electronic monitoring but you were not interested.  It is important to note however, given the period of time you have spent on remand, that is, perhaps, an understandable position to take.  The probation officer recommends a sentence of imprisonment.

[16]     I have seen a letter dated 28 October from Mr Wilcox, the registered clinical psychologist.   He is of the opinion that your motivation for treatment is slightly

below average.   Despite this, however, he is willing to engage with you.   He has outlined the conditions of that engagement and says you have agreed to them.

Crown submissions

[17]     In reliance on the case of R v Bate,1  which I will discuss a little later, the Crown submits an appropriate starting is around two and half years to three years imprisonment.   I have had some discussion with Mr McCaughan today as to how that  relates  to  the  maximum  penalty  for  permitting  premises  to  be  used  for production of pseudoephedrine which carries a maximum of seven years imprisonment. As a result of that discussion, the Crown adjusted its starting point to around two and half years.   That also reflects a sentence I imposed earlier this morning in respect of somebody else involved in similar offending.

[18]     Mr McCaughan  says  that  this  would reflect  the fact  that  your offending occurred on two occasions, that pseudoephedrine was actually produced and that you were  willing  to  assist  with  the  groups’ manufacture  of  methamphetamine  at  a different location on another occasion.

[19]     The Crown says the fact you committed this offending while on bail is an aggravating factor which warrants an uplift.

[20]     The  Crown   says   that   you   would   have  to   show   that   your  personal circumstances would be outside the usual range before any material discount is allowed.  I accept that submission.

[21]     The Crown says a discount for your guilty plea of around 20 per cent guilty plea is appropriate.

Defence submissions

[22]     Submissions on your behalf today started with the submission that a starting point of two years of imprisonment was appropriate.   In recognition of the lower

1      Ibid.

maximum penalty for allowing premises to be used for the production of pseudoephedrine, Mr Kovacevich adjusted that to around 70 per cent of two years.

[23]     He pointed to the considerable support you have from your mother and from your partner.  He also submits that you should be entitled to the full discount for the guilty plea.  He accepts that you unsuccessfully applied to be discharged but that was in relation to a charge of manufacturing methamphetamine.

Starting point

[24]     In the case of R v Bate, Mr Bate allowed a group of associates to use his factory on one occasion for the purpose of manufacturing methamphetamine.  The agreement was that Mr Bate would be paid $500 up front and a further $4,500 when the manufacture was complete.  During the course of the manufacturing operations there was an explosion, which seriously burnt one of the offenders.  Two days after that Mr Bate was told he could expect to receive an additional $15,000.   He was never paid that money.

[25]     Venning J noted that Mr Bate went into the agreement with full knowledge that his premises would be used for the manufacture of methamphetamine, and on the basis that he had made a commercial arrangement to receive money for making the property available.  The Judge considered that a starting point of two years and a half years’ imprisonment was appropriate.

[26]     It is important to note that Bate concerned use of premises for the purpose of producing methamphetamine, a Class A controlled drug.  The maximum penalty is

10 years’ imprisonment.2    You are charged with permitting premises to be used for

the  purpose  of  producing  pseudoephedrine,  a  Class  B  controlled  drug.    The

maximum  penalty  is  seven  years’ imprisonment.3      The  starting  point  for  your offending must be adjusted to take account of that.

2      Misuse of Drugs Act 1975, s 12(2)(a).

3      Section 12(2)(b).

[27]     Furthermore, the main aggravating factor present in Bate is not present in this case.  There is no evidence that you had any agreement that you would be rewarded for allowing your premises to be used.

[28]     I have been unable to locate any sentencing decisions on the offence of permitting premises to be used for the production of a class B drug.  However I have taken into account three other cases of permitting premises to be used for the production of methamphetamine: R v Homburg, R v Langi and R v Kennedy.4    In those cases starting points of two years’ imprisonment were adopted.

[29]     Based on the analysis of all the cases cases, it can be said that the aggravating features of your case are that the offending took place in a residential area, your home; you knew what your associates were doing and that they ultimately intended to produced methamphetamine.   I also take into account the inherent danger in producing pseudoephedrine. That was graphically evidenced by the evidence at trial. I also take into account that your charge was representative reflecting the fact that it occurred on two occasions.

[30]     I recognise there is no evidence that  you receive any monetary or other reward for the use of your premises.

[31]     Overall,  I  consider  that  a  starting  point  of  24  months’ imprisonment  is

appropriate.

[32]     I agree with the Crown, that the fact that you committed this offending whilst on bail is aggravating factor and I impose an uplift of three months imprisonment to reflect that.

[33]     There are no personal mitigating facts in this case.

[34]     The Crown submits that you are entitled to a 20 per cent discount for the guilty plea.   You initially faced three charges of manufacturing methamphetamine

4      R v Homburg HC Auckland CRI-2007-092-6572, 22 April 2009; R v Langi HC Auckland CRI-

2006-092-009147, 4 November 2009; and R v Kennedy HC Palmerston North CRI-2007-054-
3776, 29 August 2008.

and  as  I  say,  your  347  application,  in  respect  of  that  was  declined.    In  early September your counsel, Mr Kovacevich, commenced discussions with a view to resolution and you pleaded guilty to the amended indictment and summary of facts on the 8 September.  In all the circumstances, I give you a discount of 20 per cent.

[35]     That brings me to an end sentence of 22 months’ imprisonment.

Outcome

[36]     For the reason given you are sentenced to 22 months’ imprisonment.

[37]     The pre-sentence report does not address any release conditions.  It seems to me, however, that there should at the very minimum be some sort of condition as to attendance at any programme, whilst recognising that you intend to undertake counselling with Mr Wilcox.

[38]     There will be standard and special conditions imposed on that sentence, Mr

Gunbie and they will expire six months from sentence expiry date.

(1)The special conditions is that you attend and complete any course or counselling directed to the causes of offending as required by your probation  officer,  taking  into  account  whether  you  are,  in  fact,

attending counselling with the psychologist, Mr Wilcox.

Thomas J