R v Haden HC Napier CRI 2010-041-720

[2011] NZHC 227

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-041-720

THE QUEEN

v

JAMES ANTHONY HADEN STEVEN ROBERT RAE

Hearing:         18 March 2011

(Heard at Wellington)

Counsel:         G Kelly for Crown E Forster for Haden W C Pyke for Rae

Judgment:      18 March 2011

SENTENCE OF RONALD YOUNG J

[1]      Mr Rae  you  are  for  sentence  having  pleaded  guilty  to  one  charge  of manufacturing  a Class A Controlled  Drug,  methamphetamine and  one  charge of offering to supply that drug.  You pleaded guilty to these two charges after pre-trial decisions went against you, about two months prior to trial.

[2]      Mr Haden you were convicted by a jury on one charge of manufacturing methamphetamine, and three charges of possession of equipment or precursors.

R V JAMES ANTHONY HADEN HC NAP CRI 2010-041-720 18 March 2011

[3]      The backgrounds facts are these.  In July 2009 the Police executed a search warrant on your property, Mr Haden.  They found a large amount of equipment and material and precursors capable of being used to manufacture methamphetamine. An analysis of the chemicals found concluded that the extraction of pseudoephedrine from pharmaceutical preparations had been made and the manufacture of methamphetamine had taken place.   In my view both of you were involved in the manufacture.  There was, I acknowledge, no evidence of how much or how often the methamphetamine was produced.

[4]     Both of your finger prints were found on various items relating to the manufacture of methamphetamine.  No doubt the jury convicted you, Mr Haden, of possession of the various precursor substances and equipment on the basis of both evidence that these items were found in your own house and finger print evidence. There sheer volume of equipment and chemicals illustrates that this was not an unsophisticated operation.

[5]      Mr Rae, there were 15 text messages found on your phone offering to supply methamphetamine.  The amounts involved seemed to be about 0.1 or 0.2 of a gram on  each  occasion  perhaps  $100  to  $200  worth  of  methamphetamine  on  each occasion.

[6]      As  to  your  personal  circumstances  Mr Haden,  you  are  a  self  employed builder although the evidence you gave at trial was of grave difficulties in continued work. You take medication for anxiety.

[7]      The probation report records that  you do  not  seem to have a pattern of harmful alcohol or drug abuse.   However, understandably given  your continued denial of the offending, the probation officer assesses you as having low motivation to address the factors that contributed to your offending and, therefore, a moderate chance of re-offending in the future.

[8]      You have a number of convictions mainly for driving offences and theft. Your three convictions in the last ten years include possession of methamphetamine and cultivation of cannabis.

[9]      Mr Rae,  you have been  a self employed painter but  you are now on  an invalids benefit.  You have suffered some serious diseases in the last few months.  It is said that because of these illnesses you have changed your ways.  You have been living with your mother for the last three years and have had regular contact with your two children.   You have fewer convictions than Mr Haden but one serious violent offence, however, there are no drug offences.

[10]     The  Crown  say  that  a  starting  point  of  around  four  to  five  years’ imprisonment for the manufacturing charge alone is appropriate for each of you.  On the charge of offering to supply, Mr Rae, they say that what can be taken from the messages  are  repeated  offers  to  supply  relatively  small  amounts  of methamphetamine.  They say a starting point with regard to the offering to supply would generally be appropriate at two to four years’ imprisonment.

[11]     As to you Mr Haden they also say that a starting point of four to five years’

imprisonment is appropriate with a small uplift for the other offending.

[12]     I take into account your counsel’s written and oral submissions.   Mr Rae, your counsel stressed that it was not possible to determine either potential yield from the manufacturing or the value of the methamphetamine produced on the basis of the evidence  given.    He  stresses  there  was  no  evidence  of  any cash  in  your  bank accounts, tick lists or other evidence of wide distribution.  He says that the primary evidence was that Mr Haden was the main or primary offender.  He submits that your starting point should be four years’ imprisonment and a 20 percent discount for your guilty plea is appropriate.

[13]     As  to  Mr Haden,  your  counsel  submitted  that  you  had  a  limited role  of allowing a house to be used for the manufacturing and that you were essentially a recruit for Mr Rae.   He says that a starting point of four years’ imprisonment for manufacturing was appropriate with deductions for your lesser involvement and your strict bail conditions.

Discussion

[14]     It is, of course, interesting that both of you seem to say that the other was the main offender.  In my view there is no evidence to justify any such inference either way.   Both of you were clearly involved in the manufacture of methamphetamine and it is proper for me to treat you as equally responsible.  I, therefore, in that sense treat you in the same way.

[15]     I accept that there is no direct evidence of how much was produced or how often you manufactured the methamphetamine but all of the signs point towards a commercial enterprise.

[16]     As far as you are concerned, therefore, Mr Haden I consider a starting point of four years’ imprisonment is appropriate.   I consider a small uplift to reflect the fact  that  you  were  also  convicted  of  possession  of  material,  equipment  and precursors so that an overall starting sentence of four years and three months is appropriate.

[17]     Because you were on 24 hour curfew for a period of eight months I consider that some small allowance for that is appropriate.   It is not appropriate for me to make any further allowance on the conditions of bail.  I, therefore, reduce that start sentence by one month to four years and two months which is the sentence I impose.

[18]     Mr Rae as far as you are concerned I think the proper starting point for the manufacturing is also four years’ imprisonment.  I uplift that to four years and nine months’ imprisonment  to  reflect  the  offending  involving  the  offering  to  supply methamphetamine.

[19]     I acknowledge your plea of guilty although it was late and after you had challenged the admissibility of the evidence.  You pleaded guilty having made those pre-trial challenges and after they were rejected.  That hardly, in my view, indicates remorse.  Your previous ill health does not, in my view, justify a reduction of that sentence nor do your personal circumstances.

[20]     I,  therefore,  reduce  the  start  sentence  of  four  years  and  nine  months’

imprisonment based on your plea of guilty to four years’ imprisonment.

[21]     In   summary,   therefore,   Mr Haden   on   the   charge   of   manufacturing methamphetamine you are sentenced to four years’ imprisonment.  On the charge of possession of equipment, material and precursor substances, a further two months’ imprisonment, cumulative.

[22]     With regard to you Mr Rae, on both the manufacturing and offering to sell

charges you are sentenced to four years’ imprisonment, concurrent.

Ronald Young J

Solicitors:

G Kelly, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]

E Forster, Barrister, Hastings, email:  [email protected]
W C Pyke, Barrister, Hamilton, email:  [email protected]