R v Harris

[2012] NZHC 2942

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-009-008952 [2012] NZHC 2942

REGINA

v

RUSSELL STAFFORD RICARDO HARRIS

Hearing:         1 November 2012

Counsel:         B Hawes and N Robson for Crown

G Nation for Prisoner

Judgment:      1 November 2012

SENTENCING REMARKS OF WHATA J

[1]      Mr Harris you have pleaded guilty to the following charges:

(a)       One    count    of    manufacture   of    a    Class    A   controlled    drug, methamphetamine;

(b)       Two counts of possession of a pistol; and

(c)       One count of possession of a restricted weapon.

[2]      The  lead  charge,  manufacture  of  methamphetamine,  attracts  a  maximum penalty of life imprisonment.

R V HARRIS HC CHCH CRI 2010-009-008952 [1 November 2012]

Facts

[3]      Turning to the facts of your offending.   In my view the summary of facts fairly sets the base for the description of your offending.   Mr Harris, you in fact acknowledge manufacturing of methamphetamine, the possession of precursor substances  and  associated  equipment  at  642  Main  South  Road.     You  also acknowledge  possession  of  firearms.    You  accept  that  you  were  involved  with Mr Newton, a central figure in a larger methamphetamine enterprise, though you say that you have no real knowledge of the extent of that enterprise.  In addition as the summary  of  facts  records,  you  made  contact  with  Mr  Newton  on  numerous occasions in relation to Mr Newton’s activities.

[4]      It is nevertheless difficult to quantify the amounts manufactured at 642 Main South Road.  There was however a large number of substances and various items of equipment used to manufacture methamphetamine located at those premises.   The substances included phosphorous acid, toluene, iodine, sodium hydroxide and acetone.   A set of hot plates, various reaction flasks, conical flasks, a pH meter, steam distiller and submersible pump were also found at the address. Notably 416 pseudoephedrine tablets were located in the kitchen hidden in a box for scales. There was also cash in two bundles of $2,300 and $10,000.  All of this points to a commercial operation.

[5]      As to the firearms charges, they concern possession of .22 calibre bullets and a .22 calibre revolver, two firearms and a plastic stun gun also located at 642 Main South Road.

Personal circumstances

[6]      I have had the opportunity to read a pre-sentence report, which helpfully sets out your personal circumstances.

[7]      You are a 34 year old man.  You are reported as having been brought up in a gang family environment and that this has impacted on  you negatively in  your

younger years. Your family, however, is no longer identified with a gang culture and supports you.  You have a limited employment history, affected by your gang membership and subsequent drug misuse issues.   Your stated intention is to commence  an  electrical  engineering course  during  your time in  prison  or upon release.

[8]      The pre-sentencing report also records that you are mostly in agreement with the summary of facts relating to the current convictions for manufacture of methamphetamine and unlawful possession of pistols.   You have accepted responsibility  for  manufacturing  of  methamphetamine,  but  say  it  was  not  for personal gain but rather for supply for your own use and as a means to repay those who supplied you with precursors.

[9]      The pre-sentence report assesses you as being at medium risk of re-offending, although the report acknowledges this risk is likely to be increased if you continue to engage in problematic drug use and associate with others similarly inclined.  Overall, therefore, the report considers you to be at a medium to high risk of re-offending if you  continue  to  misuse  drugs  upon  release.    Given  the  serious  nature  of  the offending, the recommendation is a long-term period of imprisonment.

Crown submissions

[10]     The Crown submits that overall the offending at 642 Main South Road was commercial in character and falls within Band 2 of the R v Fatu[1]  manufacturing band.  A starting point in the range of six to seven years imprisonment is considered appropriate.   The Crown says that the additional drug related  counts should be treated  as  aggravating  features  to  the lead  offence.   A short  additional  term  of imprisonment, in the vicinity of six months, is considered appropriate to reflect the additional firearms charges, namely possession of two pistols and a stun gun.

[1] R v Fatu [2006] 2 NZLR 72 (CA).

[11]   No additional personal aggravating features are identified.   The Crown acknowledges that you should be given credit for your guilty plea in the order of

15%.

[12]     Your counsel says the evidence concerning 642 Main South Road is not sufficient to establish manufacture of large scale commercial quantities of methamphetamine.  It is submitted therefore that the sentence should be at the lower end of Band 2 of the guidelines established in R v Fatu.  Your counsel then refers to the approach taken by the police in relation to a co-accused, Mr Smith, and the recommendation by the Crown for Mr Smith of a starting point between four and six years.      He  says  that  the  only  element  of  commerciality  was  the  exchange  of precursor substances for the manufacture of the methamphetamine.

[13]     Your counsel recommends that the appropriate way to deal with the Arms Act offending in association with the other charges would be to arrive at a starting point for all offending of between four and six years.

[14]     Your  counsel  says  there  are  no  aggravating  factors.  But  he  says  that  a significant personal factor in your favour is that you have shown remorse and that you have used the period since  your apprehension to come to terms  with  your offending and to address your problems associated with drug use.  He also says that the pre-sentence report indicates a real insight into the reasons for your offending and that you are motivated to change.

[15]     As to a discount for guilty plea, your counsel notes that you wrote to the Crown as early as 31 August 2011, indicating that you would plead guilty to charges which were ultimately accepted as being appropriate by the Crown.  Apparently, the Crown did not respond to that offer until February 2012.   There was then further discussion in April 2012 on the basis upon which guilty pleas would be accepted. That led to agreement over the summary of facts that would be produced and then the guilty pleas followed.  Your counsel stresses that you did not unduly burden the trial at any stage of the process.

[16]     A discount of 25% is therefore suggested for the purposes of the guilty pleas.

[17]     In terms of my assessment, I must be guided by the Sentencing Act 2002. Particularly relevant to you is the need to denounce your conduct and to deter others, to see that you are held accountable for your offending, but also to recognise the importance of your rehabilitation.

[18]     In light of that guidance, I will proceed to sentence you on the lead charge. As suggested by the Crown, I will add an additional sentence to be served cumulatively in respect of the firearms charges.

[19]     Turning then to the lead charge, manufacture of methamphetamine.  As both counsel have indicated, guidance is afforded to me by the decision of R v Fatu.  In particular, the Court of Appeal in Fatu identified the following bands:

(a)       Band 1 – not applicable because manufacture of methamphetamine almost always involves significant commerciality.

(b)      Band 2 – manufacture of up to 250 grams - starting point 4-11 years imprisonment.

(c)       Band  3  –  manufacture  of  large  commercial  quantities  (250-500 grams) - starting point 10-15 years imprisonment.

(d)      Band  4  –  manufacture  of very  large  commercial  quantities  (500 grams or more) - starting point 13 years to life imprisonment.

[20]     Somewhat  optimistically,  your  counsel  invited  me  to  review  the  police evidence against Mr Smith for the purposes of assessing the charges against you. While it is appropriate for me to refer to the evidence overall, I must proceed on the basis that you have pleaded guilty to the offending as alleged by the Crown.  In any event, I am satisfied that, given the nature of the items found at 642 Main South Road, the type of offending was at a commercial scale. Your offending, also unlike Mr Smith’s, is coloured by the evidence of your association (as recorded in the summary of facts) with Mr Newton.  I am also satisfied, however, that it was at the lower end of commerciality rather than a large commercial operation.  I am therefore going to approach your lead sentence on the basis that it is in the lower half of Band

2.  This therefore suggests a starting point in the order of four to seven years.  This would appear to be consistent with a range of authorities.[2]

[2] R v Vitali HC Auckland CRI 2005-004-020376, 29 August 2006; R v Johnstone HC Rotorua CRI

2006-063-004598, 5 February 2009;  R v Hair [2009] NZCA 214; R v Gordon-Smith [2008] NZCA 33; R v Holloway [2007] NZCA 508; R v Pue & Ors CA78/04, CA118/04, CA119/04, CA137/04,  CA186/04,  19  May  2005;  R  v  Gray  HC  Auckland  CRI  2006-004-003200,

25 September  2007;  R  v  Tawhiri  HC  Tauranga  CRI  2008-070-001877,  5 February  2010;

R v Dunn HC Auckland CRI 2008-404-000076, 21 August 2008. 

[21]     I am also specifically assisted by the approach taken by the Court in R v Gray[3] where the jury found various offenders guilty of manufacture.  The offending was deemed to have a commercial character, as in this case.   A range of starting points between four and seven years was applied.  I am also not convinced that the difference between you and Mr Smith is such that a seven year starting point is appropriate.   In light of all of the above, I therefore proceed on the basis that an

appropriate starting point of five years should be adopted.  I do not consider there to be any aggravating features that might warrant an uplift.   In terms of mitigating factors, I consider that you are entitled to a discount for the remorse that you have displayed and the commitment you have made to turn your life around. All of this is consistent with recognition of your acceptance of the offending and your acceptance of the need to make you accountable and your rehabilitation.  On that basis I will afford you a discount of 10%.

[3] R v Gray HC Auckland CRI 2006-004-003200, 25 September 2007.

[22]     The  Crown  suggest  a  discount  of  15%  for  the  guilty plea.    However,  I acknowledge the submission of your counsel that you indicated quite early in the piece that you were prepared to enter pleas of guilty and this was not contradicted by the Crown.   Having regard to that added element, I consider a further discount of

20% is appropriate.

[23]     In  relation  to  the  other  offending,  no  clear  nexus  has  been  established between this offending and the manufacture offending.  Separate sentences will be imposed on each count of six months (inclusive of discounts for mitigating factors) to be served concurrently with each other, but in combination with the sentence to be

served on the lead offending.

[24]     Accordingly, Mr Harris, you are sentenced as follows:

(a)      On the count of manufacture of methamphetamine, I sentence you to a period of imprisonment of three years and six months imprisonment;

(b)On the two counts of unlawful possession of a pistol, I sentence you to six months imprisonment to be served concurrently with the other sentences, except for the lead sentence;

(c)      On the count of possession of a restricted weapon, I impose a sentence of  six  months,  again  to  be  served  concurrently  with  the  other offending except the lead sentence.

[25]     Accordingly  Mr  Harris,  the  effective  end  sentence  will  therefore  be  a sentence of four years imprisonment.

[26]     Please stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown
G Nation, Christchurch, for Prisoner