R v Hannon

[2016] NZHC 2600

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-092-2827 [2016] NZHC 2600

THE QUEEN

v

SHANE PATRICK HANNON

Hearing:	1 November 2016
Appearances:	KE Hogan for Crown AMM Ives for Defendant
Sentence:	1 November 2016

SENTENCING NOTES OF TOOGOOD J

R v Hannon [2016] NZHC 2600 [1 November 2016]

[1]      Shane Patrick Hannon:  you appear for sentence having pleaded guilty to one charge of manufacturing methamphetamine;1 one charge of possession of methamphetamine for supply;2  three charges of unlawful possession of a firearm;3 and two charges of unlawful possession of ammunition.4

[2]      Your   pleas   were   entered   after   I   gave   a   sentence   indication,   on

13 September 2016, under s 61(1) of the Criminal Procedure Act 2011.  In reaching my views as to the appropriate sentences to be imposed today, I have taken into account the helpful submissions I received from counsel at the time of the sentence indication hearing and I rely on the reasons I gave in my written decision.5    I have added some further comment on matters which have been drawn to my attention since the sentence indication.  I do not need to do more, however, than summarise what I said earlier.

Factual Background

[3]      The  relevant  facts  are  that  the  Police  executed  a  search  warrant  on  an apartment room to which you were connected after surveillance.  You were found with two associates, and you had with you a loaded 9 mm pistol and a plastic snap lock  container  with  recently  manufactured  methamphetamine  which  weighed

616.5 grams and had a purity of 66 per cent.  $176,800.00 in cash was located in the room.

[4]      A search warrant was also executed at a factory unit at Wiri.  The entry points to the unit were found to be fortified, and there were security cameras around the site.  The unit contained a “hidden room” with a drug laboratory within it.  5.6 grams of methamphetamine were found there, as well as a loaded revolver, homemade pistol and ammunition.

[5]      That afternoon, the Police also executed a search warrant on a residential address of one of your close associates. The Police located ammunition, three AK 47

1      Misuse of Drugs Act 1975, s 6(1)(b): maximum penalty life imprisonment.

2      Misuse of Drugs Act 1975, s 6(1)(f): maximum penalty life imprisonment.

3      Arms Act 1983, s 45(1)(b): maximum penalty four years' imprisonment and/or $5000 fine.

4      Arms Act 1983, s 45(1)(b): maximum penalty four years' imprisonment and/or $5000 fine.

5      R v Hannon [2016] NZHC 2161.

semi-automatic rifles, six AR15/M4 semi-automatic rifles, an M4 style semi- automatic rifle, a cut down Ruger 10/22 rifle, a Tactical shotgun and two Bolt action rifles.

[6]      A search warrant of a deposit box in the name of your girlfriend revealed

$300,650.00 in cash.

Setting a starting point

[7]      The leading charge of manufacturing methamphetamine, falls into band 4 of the guideline bands because the amount manufactured was above 500 grams.6   I am required  to  analyse  your  role  in  the  manufacturing  as  well  as  considering  the amounts of methamphetamine involved.7     The Crown describes you as having a primary role in the operation, being responsible for manufacturing the methamphetamine, including cooking and storing it, and that characterisation is not disputed.

[8]      Taking the decisions in other cases into account,8  I am satisfied that your operation had many of the same indicia of commerciality as manufacturing charges spread across a number of months.   Taking into account the amount of methamphetamine, the money found, and the clearly commercial and sophisticated nature of the operation, a starting point of 13 years' imprisonment is warranted.

Taking account of other offending

[9]      No uplift is sought for the supply offending which involved the same quantity of drugs.

[10]     The Arms Act  offending is  very serious.   Although  there are only three charges, two are representative and they span an arsenal of fourteen firearms from

6      R v Fatu [2006] 2 NZLR 72 (CA) at [43].

7 At [42].

8      R v Webb HC Auckland CRI-2006-044-1401, 17 June 2008; Van de Ven v R [2014] NZCA 265;

Gilfedder v R [2013] NZCA 426; Murray v R [2016] NZCA 221; R v Korach [2016] NZHC
923;R v Sarsfield [2015] NZHC 1977; R v Davoren [2015] NZHC 807, upheld by Sililoto v R
[2016] NZCA 328.

one address and another two from a separate address.  Each of the weapons found must be considered in the sentencing analysis.

[11]     The firearms found were all operational.  Three were loaded, and substantial quantities of ammunition were found at two of the addresses searched.   The possession of loaded firearms is treated seriously by the courts; it is necessary to impose sentences which express society’s condemnation of the lethal risk they carry.9

Greater condemnation is required for military style weapons such as these, and their association with major drug dealing is always a serious aggravating feature.10

[12]     Taking into account the need for consistency in sentencing; the sentences given in other cases where fewer weapons were involved in the context of drug offending; the totality principle and the need to create a strong deterrent against the importation and possession of high-powered weapons, I uplift the sentence by three years for the firearms offending.   The uplift would have been higher but for the Crown’s request for an uplift of only two to two-and-a-half-years which, in my view, underestimated the seriousness of the offending.

[13]     That brings the overall starting point to 16 years' imprisonment.

Adjustments to the starting point

[14]     You are aged 38, Mr Hannon. I have received little information about your past but your mother, who continues to support you, says you were a successful jockey with great prospects until your career was brought to an end in 2003 when you suffered a serious head injury in an attack by someone wielding a golf club. Sadly, you turned to drugs and to dealing in drugs to obtain money.  Your criminal history shows that you offended in minor ways on and off from 2008 but I disregard

most of that offending for sentencing purposes today.

9      R v Richardson CA450/02, 25 March 2003 at [33]. In the same vein more recently, see Perez v R

[2015] NZCA 267 at [51].

10     See Mills v R [2016] NZCA 245 at [18]; referring to cases of two to three guns, some loaded: Haggie v R [2011] NZCA 221 at [23]; R v Singh HC Rotorua CRI-2006-070-7259, 17 July 2008; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338. See also R v Latimer [2015] NZHC 1278; Herewini  v  Police  [2014]  NZHC  2396;  Martel  v  Police  HC  Hamilton  CIV-2010-419-69,

4 October 2010; R v Richardson, above n 10.

Previous offending

[15]     In  May 2010,  however,  you  were  sentenced  to  three  years  four  months' imprisonment on a lead charge of manufacturing methamphetamine.11    I note that there were firearms charges associated with that offending.  That history means that a further uplift in the sentence – of six months – is required to recognise the need for greater deterrence, given the serious manner in which you have re-offended.  I fix that uplift bearing in mind totality considerations and the deterrent element inherent in a minimum term of imprisonment.12

Assistance to the Police

[16]     Ms Ives submitted you should receive a discount for assisting the Police. You told the Police of the Takanini location of the firearms; you were present during the search; and  you assisted with the identification of a number of firearms and in advising the occupants to co-operate with the Police.  Discounts for assistance turn on the value of the assistance offered.13    The Police were aware of and intended to search  that  address  but  you  did  not  know  that  at  the  time  you  disclosed  the

information.   The assistance you offered justifies a discount of 5 per cent in your sentence.14

Guilty pleas

[17]     I accept  also  that  your  guilty pleas  were entered  on  the first  reasonable occasion after disclosure of the case against you, consideration by counsel, and the receipt of the sentence indication.   Because the evidence against you was strong,

however, a 20 per cent discount for the pleas is justified.15

11     R v Hannon CRI-2009-057-001450, 5 May 2010.

12     R v Stevens [2015] NZHC 2336 at [11].

13     R v Hadfield CA 337/06, 14 December 2006.

14     See Fleming v R [2011] NZCA 646, where an offer of assistance which bore no fruit still warranted a discount.

15     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[18]     In total, the justifiable discounts amount to a 25 per cent reduction in the sentence,  resulting  in  an  end  sentence on  the  lead  charge  of 12 years  and  four months' imprisonment.

[19]    I acknowledge that you have expressed remorse and contrition for your offending, and you have indicated a determination, with the support of your mother and your partner, to turn away from past associations and behaviour and to lead a useful life in the community when you are released from prison.  I have taken note of the fact that you wish to engage yourself in some form of training which will enable you to act as a drug counsellor to turn others away from drugs, so they would not suffer the same fate as you, and I commend you for that.  I encourage you to make good on the promising start of completing a course in drug and alcohol awareness, but I am not persuaded that a further reduction in sentence is warranted on that account.

Minimum period of imprisonment

[20]     A minimum period of imprisonment is almost always imposed in cases of serious drug offending and one is justified in this case.  There was only a short turn- around between your leaving prison and re-engaging in offending.  You are assessed as posing a high risk of re-offending, at least until you make further progress in rehabilitating yourself. That will be entirely in your hands, Mr Hannon.

[21]     A 50 per cent minimum period of imprisonment should be imposed to meet the sentencing purposes of accountability, denunciation, deterrence, and community protection.16

Sentences

[22]     Mr Hannon, would you please stand:

(a)       On the lead charge of manufacturing methamphetamine, I sentence you to 12 years and four months' imprisonment.   On that charge, I

16     Sentencing Act, s 86.

order that you should serve a minimum period of six years and two months' imprisonment.

(b)      On  the  charge  of  possession  of  methamphetamine  for  supply,  I

sentence you to four years and six months' imprisonment.

(c)       On each of the charges of possessing unlawful firearms, I sentence you to three years and six months' imprisonment.17

(d)On each of the charges of possessing unlawful ammunition, I sentence you to two years and six months' imprisonment.

[23]     All of the sentences I have imposed are to be served concurrently, which means that the total effective end sentence is one of 12 years and four months' imprisonment.

[24]     Please stand down.

..................................................

Toogood J

17     These sentences were imposed after counsel pointed out that the sentences of four years and six months’ imprisonment originally imposed, and which were recalled, exceeded the maximum of four years imprisonment available under s 45(1)(b) of the Arms Act 1983.