R v H HC Tauranga CRI 2005-070-1563

[2005] NZHC 27

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2005-070-1563

Q U E E N

v

H

Prisoner

Hearing:         8 September 2005

Appearances: S Bridges for Crown

A Balme for Prisoner

Judgment:      8 September 2005

SENTENCE OF SIMON FRANCE J

Solicitors:

Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, PO Box 13063, Tauranga

(Fax: [phone])

Mr A C Balme, Barrister, PO Box 13079, Tauranga (Fax: [phone])

R V H  HC TAU CRI 2005-070-1563  8 September 2005

[1]      Mr H      you were convicted following trial on one charge of possessing equipment for the manufacture of methamphetamine (maximum penalty five years). You were acquitted at the same time on one charge of having manufactured the drug.

Facts

[2]      The Police executed a search warrant at the address where you lived with your parents.  In a triple garage was found a variety of equipment that could be used in the manufacture of methamphetamine.   This equipment included glassware, a burner, condensers, hydrochloric acid, and metal vessels.  Also found was a coffee grinder  that  had  obviously  been  used  in  the  first  stage  of  the  process,  namely crushing up prescription pills in order to obtain ephedrine and pseudoephedrine. ESR analysis also established, beyond doubt, that the equipment had been used to manufacture methamphetamine – trace elements were located in various parts of the equipment.

[3]      You told the Police you had recently acquired the equipment.  There was no sign that manufacture had occurred in the garage.   Further, chemicals that are necessary for each stage of the process were missing – ethanol or methanol, iodine, toluene or acetone.  I regard the verdict as meaning, and it is the basis on which I sentence you today, that the equipment you obtained had been used by someone else to manufacture methamphetamine and that you possessed it and intended to try the same thing at some point in the future.  It is not possible to make any assessment of how much you might have made or tried to make – certainly there is no sign in my view that manufacture was imminent.  The chemicals were absent and there was no indication that assembly was about to occur.

Reports

[4]      There is no pre-sentence report.  I am advised that you refused to participate because you maintain your innocence.  I have discussed this with your counsel, who has indicated on your behalf that the sentencing can proceed and he can advance any matters of mitigation.  It is preferable to have a report which would normally serve to

highlight matters favourable to you.  However, given you will not participate I intend to proceed with the sentencing.

[5]      You are 36 years old with no dependants.  You lived with your parents at the rural address where the drugs were found.  You have previous convictions; the most relevant ones are cultivating cannabis in 1993, and possession of cannabis in 1997.  I note, however, a fine of $400 was imposed so I presume it was of a minor nature. Earlier this year you were fined $250 for possession of cannabis.  I see the effect of these offences as meaning you cannot obtain credit for an offence-free past.  They are not of a nature as to aggravate your offending.

Competing submissions

[6]      The Crown seeks a starting point of three-and-a-half to four years.  It bases this on an application of what it says is a similar case – R v Gaylor H25847, Hamilton, 14 October 2004.  I will discuss that case in more detail later.  The Crown submits there are no mitigating factors, noting that you have past convictions.   It generally submits a penalty near the maximum is required given that a Class A drug is involved, and that there was premeditation, a substantial quantity of equipment and relevant past convictions.

[7]      On your behalf, Mr Balme submits a starting point of two to two-and-a-half years as appropriate.  He made submissions concerning the appropriate approach to your offending.   I largely agree with him, and this is reflected in the summary of facts I have already given.  I do not accept that someone else may have been going to manufacture, at least to the extent that suggests you were merely a custodian.   I consider you would have been involved in any future manufacture.  I doubt in any event that for sentencing purposes the difference between the two is particularly relevant.

Starting point

[8]      The starting point is the level that is fixed for the offending, regardless of any personal characteristics of the offender.   The starting point that would be taken regardless of who had been convicted of this offence.

[9]      The maximum penalty for the offence for which you have been convicted is five years.   It is an offence that is applicable to all classes of drugs.   In Gaylor Williams J suggested, and I agree, that the fact the equipment was to be used to manufacture a Class A  drug increases  the  seriousness.    As  I stated  earlier,  my assessment is that you possessed equipment previously used to manufacture methamphetamine by someone; at some point in the future you were going to try and do  the  same  yourself.    You  were  some  distance  from  having,  at  the  site,  the necessary chemicals, and the way the equipment was stored did not suggest manufacture was imminent.  I do note, however, the numerous recipes that you had available to you.   I see the offending as falling at the bottom end of this type of offending in relation to a Class A drug.  I consider that two-and-a-half years is an appropriate starting point for the offending.

[10]     I  do  not  consider  there  are  any  aggravating  features  that  would  lift  the sentence beyond that level.   Premeditation is inevitable in the possession of equipment for the purpose of manufacture.  The amount of equipment does not tell me anything about what might be done with it and I have no basis on which to increase liability for that reason.

[11]     Accordingly, I take the appropriate sentence prior to giving credit for any mitigating factors as two-and-a-half years.

Mitigating factors

[12]     Concerning mitigating factors, I do not regard there as being any.  You have previous convictions and you continue to deny your guilt.   I have no evidence of addictions or any other possible explanations for the offending.  In the area of drug

offending, as your counsel noted, it is well established that deterrence is the primary motivation on sentencing.

Final sentence

[13]     Mr H      would you please stand.

[14]     On  the  charge  of  possessing  equipment  to  manufacture  a  Class  A  drug, namely methamphetamine, I sentence you to two years six months imprisonment.

[15]     Please stand down.

Simon France J