R v Harding - [2007] NZCA 551

IN THE COURT OF APPEAL OF NEW ZEALAND

CA374/07 [2007] NZCA 551

THE QUEEN

v

CARL HARDING

Hearing: 22 November 2007
Court: Glazebrook, Williams and MacKenzie JJ Counsel: R G Glover for Appellant
A M Powell and T Singh for Crown

Judgment: 29 November 2007 at 3pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Glazebrook J)

R V HARDING CA CA374/07 29 November 2007

Introduction

[1] On 11 June 2007 Mr Harding was convicted, after a trial before Chisholm J and a jury, of possession of equipment and material with intent that they be used for the manufacture of methamphetamine. On 20 July 2007, Mr Harding was sentenced to three years imprisonment.

[2] Mr Harding appealed against his conviction and sentence. He subsequently indicated in his written submissions that he has accepted counsel’s advice that the jury was not misdirected by the trial Judge and that he abandons his conviction appeal.

Background

[3] On 18 October 2005 the police were called to an address in connection with a dispute. They subsequently located various items of equipment at the premises, including a measuring cylinder, baking dish, pieces of a pyrex dish with brown staining, a 100ml glass measuring cylinder and an electric hot plate, along with an assortment of glass and plastic containers with fluids in them. Some of these items were found in the garage, some hidden outside the garage and some in the house. The police also found a pressure cooker in the boot of a car. These items formed the basis of the possession of equipment charge.

[4] The charge of possession of materials revolved around matchbox striker plates which were found in the garage. Matchbox striker plates are commonly used to obtain red phosphorous which is used in the manufacture of methamphetamine.

[5] Scientific examination of some of the equipment, which was found at the address, revealed the presence of by-products of the process of methamphetamine extraction. In particular, the fluid in the glass and plastic containers was identified as toluene (a chemical that is used in the manufacture of methamphetamine) containing traces of methamphetamine and by-product chemicals. One of the glass jars containing traces of methamphetamine was found in the bedroom.

[6] Detective Sweeney, an experienced drug squad detective, gave evidence that it was unusual for police to locate a fully operational clandestine laboratory. Components were usually stored separately, often in vehicles as they were easily portable, and then brought together for the manufacturing process, which takes between three to eight hours.

[7] There was evidence at trial that some days before the police search, an associate of Mr Harding’s had dropped off three drums labelled toluene and probably some other items in the garage.

[8] At the time of sentencing, Mr Harding was 31 years of age with 17 previous convictions, including a conviction on 8 November 2002 for the manufacture of methamphetamine (which at that time was a Class B controlled drug) and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Harding

Details

AGLC: R v Harding [2007] NZCA 551
Case: [2007] NZCA 551
Decision Date: 29 November 2007

CaseChat Overview and Summary

In the case of R v Harding, the appellant was convicted of possession of equipment and materials with intent that they be used for the manufacture of methamphetamine, and sentenced to three years imprisonment. The appeal against conviction and sentence was dismissed. The appeal concerned the sentencing and conviction of Mr Harding, who was found to possess equipment and materials intended for methamphetamine manufacture, including various chemicals and apparatus hidden or located in his premises. The appeal was based on the argument that the sentencing was inappropriate as it did not consider certain mitigating factors, such as the timing of when the items were brought to the premises and Mr Harding's lack of intent to use the items himself.

The court considered the appeal and found that the trial judge did not err in his assessment of the case. The appeal court found that the evidence showed Mr Harding's involvement in the methamphetamine production process was significant, despite the absence of some key components. The court further found that the sentence was appropriate given Mr Harding's criminal history and the fact that the offending occurred while he was still subject to a previous sentence. The appeal court concluded that the sentence was within the appropriate range and dismissed the appeal against both conviction and sentence.

The final orders of the court were to dismiss the appeal against conviction and sentence, upholding the original judgment and sentence imposed by the trial judge. The court found that the trial judge had correctly assessed the evidence and circumstances of the case, and that the sentence was appropriate given the appellant's criminal history and the nature of the offending.

Orders