R v Harries
[2013] NZHC 359
•28 February 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2012-069-251 [2013] NZHC 359
THE QUEEN
v
DAVID JOHN HARRIES
Hearing: 28 February 2013
Counsel: R G Douch for Crown
D J Allan for Prisoner
Judgment: 28 February 2013
SENTENCING NOTES OF HEATH J
Solicitors:
Crown Solicitor, PO Box 19173, Hamilton
Counsel:D J Allan, PO Box 4443, Hamilton
R V HARRIES HC HAM CRI 2012-069-251 [28 February 2013]
Introduction
[1] David John Harries, you appear for sentence today having pleaded guilty in this Court to the following offences:
(a) First, count 1; a charge of manufacturing the Class A controlled drug methamphetamine, between 1 November 2011 and 15 February 2012 at Taupo
(b)Second, counts 4 and 5 of the indictment; in which you are charged with possessing methamphetamine for supply. One of those relates to an incident in Auckland on 18 November 2011 and the other to one in Taupo on 15 February 2012.
(c) Counts 6 and 7 alleged possession of a precursor substance for the manufacture of methamphetamine, namely pseudoephedrine. The charges arise out of the incident in Auckland on 18 November 2011 and in Taupo on 15 February 2012.
[2] During the course of today’s sentencing hearing, you instructed your counsel that you would plead guilty to an amended charge on count 2. You were arraigned on an amended charge of possessing equipment for the purpose of manufacturing methamphetamine. This charge relates to the period between 1 January 2011 and 15
February 2011 and occurred in Kawhia.
[3] The lead charge of manufacturing methamphetamine carries a maximum penalty of life imprisonment.
[4] On counts 3, 8 and 9 of the amended indictment the Crown has offered no evidence. On those charges you are discharged under s 347 of the Crimes Act 1961. That has the effect of an acquittal on those three counts.
[5] Mr Harries, this is not the first time on which you have appeared for sentence in this Court on methamphetamine related offending. On 23 July 2008, you were sentenced by Allan J to an effective term of imprisonment of three years on offending that included a charge of possessing methamphetamine for supply.1 The Judge indicated that a sentence of two years and six months imprisonment would have been appropriate for that charge alone.2
[6] At the time you committed the February and November 2011 offending which is the subject of this sentencing, you had been released from the sentence imposed by Allan J on parole. However, you were subject to an interim recall order made by the Parole Board on 23 December 2010, of which you were aware. Notwithstanding that knowledge, it appears that a District Court Judge was persuaded to grant bail when you first appeared following arrest on 18 November
2011.
[7] I treat the February 2012 offending as having occurred while you were on bail even though, strictly speaking, bail should not have been granted and you should have been returned in terms of the interim recall order.
[8] During the course of sentencing submissions you will have heard me say to Mr Allan that I regard your actions in offending while subject to various judicial orders as showing utter contempt for the orders and sentences imposed. That attitude will count against you significantly today in this sentencing exercise.
Facts
[9] I will summarise the relevant facts briefly.
[10] Between 1 January and 15 February 2011, at Kawhia, you possessed equipment for the purpose of manufacturing methamphetamine.
1 R v Harries HC Hamilton CRI 2007-073-434, 23 July 2008.
2 Ibid, at para [19].
[11] On 18 November 2011, the Police stopped a Mercedes motor vehicle on Karangahape Road which you were driving. You provided false details and when your correct identity was established you were arrested. While being processed you were searched. A small quantity of methamphetamine, a methamphetamine pipe and
$700 cash was located.
[12] Subsequently, the motor vehicle you were driving was seized and searched. Located in the boot was a bag containing 54 grams of methamphetamine, plastic snap-lock bags, scales and 3.5kgs of the precursor substance commonly known as Contac NT.
[13] The notebook that was found at the time indicated that you had references to weights and “sets” within the bag that was seized. “Sets” are commonly used to describe 1000 tablets containing pseudoephedrine.
[14] After you were granted bail in the District Court, you moved to a rural address near Taupo where you resided before 15 February 2012. You lived in a structure which was a short distance from the main dwellinghouse occupied by the property owner.
[15] The Police executed a search warrant at that address on 15 February 2012. You were apprehended attempting to flee your living quarters. At the time of your apprehension you were carrying a bag containing 952 grams of methamphetamine and another bag containing $157,000 in cash. The quantity of methamphetamine in your possession was capable of returning something in the order of $600,000 to
$700,000 at street level.
[16] In a room adjacent to where you lived, a clandestine methamphetamine laboratory was located. Significant amounts of chemicals used in the production of methamphetamine were located as were items used for the manufacturing process.
19.6kgs of pseudoephedrine was found. In addition, a sum of $5040 was located later.
Analysis
[17] Mr Harries you will be well aware that drug offending of this type and on this scale requires a sentencing response that is primarily directed at meeting society’s need to denounce your offending, to deter you and others from offending in this way and to hold you accountable for your wrongdoing. The need to protect society against those who manufacture methamphetamine for distribution to others is also a significant sentencing factor.
[18] Undoubtedly, your personal circumstances necessarily invoke feelings of sympathy. I empathise with your position and the grief you have suffered over many years. That has clearly had a detrimental effect on your health and there is evidence of both physical and mental health concerns. I will give some weight to those in the sentencing process, but as you know, personal circumstances can play little role in sentencing on cases of this type.
[19] There are reasonably strict guidelines which I must apply in sentencing you.3
[20] The Crown contends, and you accept, that at least on some during the period of manufacture in Taupo, you were the “cook”. You were in possession of substantial amounts of methamphetamine and cash when arrested in February 2012.
[21] Necessarily, it is the manufacturing charge that I used to identify a starting point for sentence. Other offending will be taken into account as aggravating factors to enable me to assess the sentence that will best respond to the totality of the offending.
[22] Where manufacture involves quantities of 500 grams or more, there is a starting point to be taken of somewhere between 13 years and life imprisonment. The quantity of methamphetamine found in your possession was 952 grams. The amounts of money seized were significant also in the context of what you were doing. The pseudoephedrine alone was capable of being manufactured for the
purpose of making methamphetamine and could have been used to manufacture
3 R v Fatu [2006] 2 NZLR 72 (CA) at para [43].
something in the order of 6.3kgs, an amount that would have had a street value of about $5 million. What that demonstrates, is that your offending is at the upper end of manufacturing offending.
[23] I have considered the comparator authorities4 to which counsel have referred me. Having regard to the circumstances in which this offending was committed, I choose a starting point of 16 years imprisonment for the manufacturing charge. I uplift that by two years and six months to take account of other offending. That includes the uplift of six months to reflect the February 2011 offending that was discussed at the time you entered your plea to count 2 this morning. That leaves a revised starting point of 18 years six months.
[24] The significant aggravating personal factor is your offending while subject to the interim recall order and on bail. You also have a lengthy list of previous convictions, including crimes in relation to drugs other than those in Class A. I add one year for those personal aggravating factors. That uplifts the starting point further to 19 years and six months.
[25] The next step in the sentencing exercise is for me to consider mitigating circumstances. As I have said, I cannot give great weight to the health and family circumstances. I am satisfied, however, notwithstanding Mr Douch’s submissions for the Crown to the contrary, that your medical conditions are likely to make your time served in prison a little harder than for most. I reduce the sentence for personal mitigating factors by one year which brings down the sentence to 18 years six months.
[26] I am not prepared to give credit for remorse. I am not prepared to do so because nothing seems to have changed of any significance since you were sentenced by Allan J. In light of what he was told when he was sentencing you, I can only regard your offending as a deliberate choice once you were released from
your sentence imposed by him.
4 R v Bechkam [2012] NZCA 603 and R v Gollop HC Auckland CRI 2006-092-16424 (Winkelmann J), the latter in relation, in particular, to the sentencing of Mr Kissling..
[27] You are entitled to credit for your guilty pleas. However, leaving aside the plea entered today, I treat the pleas as having been entered in mid December 2012 in the context of an allocated reserve trial for May 2013 and a likely trial in June. I am prepared to give credit of 20% for the pleas. 20% of 18 years six months is rounded to three years and nine months. That means that the end effective sentence will be
14 years and nine months imprisonment.
Minimum non-parole period
[28] The next question is whether a minimum non-parole period should be imposed.
[29] Given your willingness to offending while subject to judicial orders, I consider that the community does need protection from you and that a sentence which would see you released potentially after serving one-third, does not meet the sentencing goals of denunciation, deterrence and accountability sufficiently.
[30] A period of nine years is sufficient, in my view, to meet those concerns. That represents just over 60% of the end sentence.
Sentence imposed
[31] Mr Harries, on the charge of manufacturing methamphetamine, you are sentenced to a term of imprisonment of 14 years and nine months with a minimum term of imprisonment to be served of nine years.
[32] On the two charges of possessing methamphetamine for the purpose of supply, you are sentenced to a term of imprisonment of nine years.
[33] On the two charges of possessing precursor substances, you are sentenced to a term of imprisonment of four years.
[34] On the charge of possessing equipment for the purpose of manufacturing methamphetamine, you are sentenced to a term of imprisonment of three years.
[35] All of those terms will be served concurrently, so that the end sentence is 14 years nine months.
[36] Stand down.
P R Heath J