R v Harvey
[2014] NZHC 2795
•30 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-225 [2014] NZHC 2795
THE QUEEN
v
DANIEL RALPH HARVEY
Hearing: 30 October 2014 Appearances:
E J McCaughan for the Crown
R M Mansfield for the DefendantSentencingdate:
30 October 2014
SENTENCING NOTES OF THOMAS J
Solicitors:
Meredith Connell, Auckland.
Counsel:
R M Mansfield, Auckland.
R v HARVEY [2014] NZHC 2795 [30 October 2014]
Introduction
[1] Mr Harvey, you appear for sentence having pleaded guilty to:
(a) one representative charge of knowingly permitting premises to be used for the purpose of manufacturing methamphetamine; and
(b) one charge of possession of methamphetamine.
[2] The maximum penalty on the charge of knowingly permitting premises to be used is 10 years’ imprisonment and the maximum penalty on the possession charge is six months’ imprisonment.
Facts
[3] The facts are that between December 2011 and February 2012, you leased an industrial unit located in Glenfield. Between 29 December and 23 February, you allowed associates to manufacture methamphetamine at the unit on four occasions. The amount of methamphetamine manufactured on those four occasions is unknown.
[4] You also assisted in the manufacture of methamphetamine. On 30 December
2011, you agreed to air out the unit to remove any fumes. Between 19 and 24
January 2012, you provided one of your associates with unidentified items for the manufacturing process. On another occasion you agreed to move the “pots” at the unit. And on 21 February 2012 you agreed to bring bags of ice to the unit.
[5] On 9 January 2012 you received one ounce of methamphetamine as a reward for allowing your associates to manufacture at the address. The summary of facts notes that an ounce of methamphetamine generally sells for between $8,000 and
$15,000 per ounce and could be worth around $28,000 if it were split up and sold as
“points”.
Personal circumstances
[6] You do not have any relevant prior convictions, and indeed Mr Harvey, I have to say, given your age it is extraordinary to me that you allowed yourself to become involved in offending of this serious nature. The Crown does not seek an uplift on the basis of your criminal record. I note that for your previous convictions you have only received fines, a disqualification from driving and, on one occasion, reparation.
[7] Your pre-sentence report tells me you are 39 years old and live with your parents. For the past two years you have been employed by a commercial cleaning company, working Monday to Friday from 8 am to 5 pm. You are the manager of the workshop repairs, sale and services and your work involves repairing and maintenance of commercial cleaning equipment. I have before me a letter from the director of that company. He says you are an integral part of the company and a very important staff member. He says you are very reliable, punctual, have a good work ethic, and give “110 per cent” to the job. He says he would hate to lose you as a staff member and you would be very hard to replace.
[8] The probation officer says you minimised the offending, claiming you did not realise what you got yourself into until it was too late. You said that you initially did car repairs for “some people” and later took over the family truck business and continued to do car repairs at the factory. These people asked you if they could use the factory and you gave them permission to do so. You said you thought they just wanted to hang out there because there was a room with some couches and a television. Over time you became suspicious because there were a lot of chemical containers and other people warned you that things were not right. You said your brother found out about the situation. He and his family moved into the factory for three weeks, and that gave you, says Mr Mansfield on your behalf, the excuse to stop the use of the premise for the manufacture of methamphetamine.
[9] You say that you did not receive any monetary payment for the use of the premises. But you acknowledged you were given the methamphetamine and you must accept therefore there was an element of reward. You say however, you gave it to someone else because you “didn’t want anything to do with it”.
[10] The probation officer assesses you as having a relatively low likelihood of further offending. However, the report writer notes that by allowing your premises to be used for the manufacture of methamphetamine, you exposed members of the public to a high risk of harm.
[11] She says that you lack remorse. She does accept, however, that you appear to be motivated to comply with sentence requirements and may benefit from attending an alcohol and drug rehabilitation programme.
[12] Your parents’ address in Forrest Hill, North Shore, has been assessed as suitable for an electronically monitored sentence. Your parents consent to your serving a sentence at their home. I have a letter before me from your mother. She notes that your wages contribute to paying the mortgage on the property. She says in the past you have acknowledged associating with “unreliable” people but in your mother’s opinion you have turned your life around. She says you are a valued member of your family and notes you have maintained good friendships with people from school.
[13] The probation officer recommends a sentence of home detention and community work.
Starting point
[14] I turn now to the sentencing process. In sentencing you today I must take into account the purposes of sentencing set out in the Sentencing Act 2002, such as the need to hold you accountable for the harm done to the community by your offending and the need to deter other people from committing the offending.1 I am mindful that people who make premises available to others to manufacture methamphetamine enable the drug to be manufactured and distributed through our society. The sentence imposed today should promote in you a sense of responsibility for and acknowledgement of that harm.2 I also bear in mind the principles of
sentencing set out in the Act, such as the need to impose a sentence which is
1 Sentencing Act 2002, s 7(1)(a) and (f).
2 Section 7(1)(b).
consistent with what similar offenders have received for similar offending.3 I must impose the least restrictive outcome that is appropriate in the circumstances.4
[15] I must first set a starting point, which reflects the seriousness of the offending but does not take into account factors personal to you.
[16] The Crown refers to the case of R v Bate.5 Mr Bate allowed a group of associates to use his factory on one occasion for the purpose of manufacturing methamphetamine. The agreement was that Mr Bate would be paid $500 up front and a further $4,500 after the manufacture was complete. During the course of the manufacturing operations, there was an explosion, which seriously burnt one of the offenders. Two days after the incident Mr Bate received a text message saying he was to receive $5,000 and would be paid a further $10,000 the week after. He was in fact never paid that money.
[17] Venning J noted that Mr Bate went into the agreement with full knowledge that the premises would be used for the manufacture of methamphetamine and on the basis that he had made a commercial arrangement to receive money for making the property available. The Judge considered that a starting point of two years and six months’ imprisonment was appropriate in all the circumstances.
[18] The Crown submits that your offending was more serious than Mr Bate’s because it occurred on four different occasions, on each occasion an unknown quantity of methamphetamine was manufactured, you assisted in a minor way, and you received a significant reward for your involvement. The Crown submits that an appropriate starting point in this case is therefore three to three and a half years’ imprisonment.
[19] Mr Mansfield on your behalf, submits that a starting point of no more than two years and six months’ imprisonment is appropriate. He points out that, unlike Mr Bate, it was not agreed that you would receive a monetary award, although you did
receive some reward for your involvement. The total quantity of methamphetamine
3 Section 8(e).
4 Section 8(g).
5 R v Bate [2014] NZHC 237.
manufactured is unknown and you assisted only in the manufacture in very limited ways, in Mr Mansfield’s submission. There was no damage to your property or neighbouring premises. Furthermore, Mr Mansfield submits, you only realised the activity for which the factory was being used after you had given the group access to it. He does accept however, that the offending started shortly after you had leased the unit. However, he says you did not know how to resolve the situation and that you felt under pressure from associates to allow them to use the premises. You brought their use of the unit to an end by saying that your family needed to occupy and use the unit. That, Mr Mansfield says, should be reflected in the starting point.
Analysis
[20] I have considered the case of Bate, as well as other relevant cases. In R v Homburg, the defendant allowed the rented property in which he lived to be used as a laboratory for the manufacture of methamphetamine.6 A total of 27.9 grams was located in the house. The defendant’s fingerprints were found on several of the items of equipment. Stevens J adopted a starting point of two years’ imprisonment.
[21] In R v Langi, the defendant allowed his associate to manufacture methamphetamine in a room in his house.7 Winkelmann J considered it an aggravating feature of the offending that the property was in a residential area, and that his mother and three sisters also lived there. His fingerprints were found on some of the equipment and he admitted to helping his associate carry various items into the room. Winkelmann J considered that a two year starting point appropriate.
[22] Counsel also referred me to R v Kennedy.8 In that case the defendant and his co-offender had set up a clandestine laboratory in their rental property capable of manufacturing methamphetamine. There was also evidence of the manufacture of cannabis oil. Over 1,000 blister packs of medicine were found and it was estimated that 20 to 30 grams of methamphetamine could be produced from it. Clifford J
adopted a starting point of two years’ imprisonment.
6 R v Homburg HC Auckland CRI-2007-092-6572, 22 April 2009.
7 R v Langi HC Auckland CRI-2006-092-009147, 4 November 2009.
8 R v Kennedy HC Palmerston North CRI-2007-054-3776, 29 August 2008.
[23] Unlike in those cases, your charge is representative. The representative nature of the charge essentially reflects the fact that you assisted in the manufacturing, if only minimally, on four separate occasions. This aggravating factor was not present in those other cases (save for Mr Langi’s helping his associate carry items into the room). I do acknowledge, however, that in those cases offenders’ finger prints were also located on items used in the manufacture. Furthermore, while you claim not to have known for what the offenders were doing in the unit, it is clear that you must have known for what they were using it from at least 30 December 2011 onwards when you agreed to air out the unit. Therefore, for almost two months, you knew that methamphetamine was being manufactured there.
[24] I put little weight on the fact that you felt pressured into allowing your premises to be used in this way. As the Judge in Kennedy noted, it is not unusual for a person charged with this offence to be under the influence of the principal offender to some extent.9 I also do not consider it relevant to your culpability that the amount of methamphetamine ultimately produced is unknown and I have already referred to the Crown submission that an inference could be drawn given the amount of
methamphetamine which you received.
[25] I acknowledge, however, that unlike in Bate there is no evidence of any prior agreement of your receiving reward for allowing the offenders to use the premises. That was a significant aggravating factor in Bate. Furthermore, unlike in Langi and Kennedy, the property used in this case was in an industrial area as opposed to premises in a residential area.
[26] Taking all those factors into consideration I consider that a starting point to reflect your culpability is two years’ and nine months’ imprisonment.
Personal aggravating and mitigating factors
[27] The parties are agreed that there are no personal aggravating factors at play in this case.
9 At [17].
[28] Mr Mansfield submits that a discount of six months is justified on the basis of a variety of personal mitigating factors. He refers to your “strong and positive history of employment”; the fact that at the time of offending you had taken over your family business and were struggling to make ends meet; the fact that you have been on bail for an extended period without any breaches. You have the support of your family, friends and partner.
[29] Mr Mansfield submits that you are entitled to a further five per cent discount
for your “demonstrations of remorse and contrition”.
[30] In the Crown’s submission, before any material discount is allowed, it must
be shown that your particular circumstances are extraordinary.
[31] Those who commit this offence are often under great financial pressure. There is nothing before me to suggest that you would qualify for an additional discount for remorse. Indeed the probation officer stated that you lacked remorse and sought to minimise your offending.
[32] I note however, you have been on bail for two years, that you have established a good work record and you are a valuable and contributing employer. I accept that you used the means that you could to bring the offending to an end and that is, I accept, relevant to the assessment of the likelihood of reoffending.
[33] As I said earlier given what is effectively a lack of a criminal history, it seems to me extraordinary that at 39 years of age you allowed yourself to be drawn into this offending. But I accept that it is unlikely that you will reoffend.
[34] I acknowledge the case law suggests that your particular circumstances must be extraordinary in order for there to be a material discount with respect to the factors to which I have referred.
[35] I am satisfied however, that you are entitled to a limited discount to reflect all those circumstances and I set that at 5 per cent.
Guilty plea
[36] The Crown submits that you are entitled to a guilty plea discount of up to 15 per cent. You initially faced four charges of manufacturing methamphetamine and one charge of possession for the purpose of supply. Resolution discussions began around two weeks before the trial was due to commence. The Crown agreed to reduce the charge of possession for supply to possession simpliciter. The Crown submits that your discount must be significantly less than the 25 per cent received by Mr Bate, who similarly pleaded guilty to a downgraded charge at a much earlier stage.
[37] Defence counsel submits that you are entitled up to a 25 per cent guilty plea and that you could not have pleaded guilty earlier.
[38] In Hessell v R, the Supreme Court said:10
[75] Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.
[39] Considering your particular circumstances as outlined, I assess the discount for the guilty plea at 20 per cent.
Home detention
[40] That brings me down to a sentence of 24 months’ imprisonment. It is therefore open to me to impose home detention if I am satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences.11
[41] The probation officer considered that a sentence of home detention supported by attendance at an alcohol and drug rehabilitation programme would assist you to
10 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
11 Sentencing Act 2002, s 15A(1)(a).
better understand how drugs affect those within the community. She noted that a sentence of community work will allow you to contribute more positively to society
[42] I accept the recommendation. I am satisfied that a sentence of home detention, albeit at the maximum, is the least restrictive sentence appropriate. As mentioned earlier, you are considered to be a valued and important employee by your employer. A sentence of home detention would allow you to continue to be a contributing member of society through community work and also your job, if the probation officer considers your employment suitable. The discipline needed to complete your community work and indeed to comply with the sentence of home
detention and the support of your family will aid your rehabilitation.12 This sentence
also denounces your conduct and serves as a deterrent to prevent you from ever again being involved in offending of this type.13
[43] As I said, Mr Harvey the sentence of home detention will be at the maximum level couple with a substantial amount of community work.
[44] For the reasons given, Mr Harvey, I sentence you to 12 months’ home detention and 300 hours’ of community work on the charge of permitting premises to be used for purpose of manufacturing methamphetamine. The pre-sentence report did not include conditions of home detention, even though it recommended that as a sentence. The following conditions are to apply:
(a) You are to proceed directly to 35 Sunnynook Road, Forrest Hill, North Shore and await the arrival of the probation officer and monitoring company;
(b)You are to reside at that address for the duration of the sentence of home detention and not move address without the prior written
approval of the probation officer;
12 Sentencing Act 2002, s 7(1)(h).
13 See the Court of Appeals comments in R v Iosefa [2008] NZCA 453 [41]—[43].
(c) You must comply with the requirements of electronic monitoring as directed by the probation officer;
(d)You are to abstain from the possession and consumption of alcohol and illicit drugs for the duration of the sentence;
(e) You are to undertake, attend and complete any programme such as in a programme to raise your awareness of the harm of drugs, as directed by and to the satisfaction of your probation officer;
(f) You are not to associate with any of your previous offending associates or any people specified in writing by your probation officer without the prior written consent of the probation officer.
[45] I am also imposing 300 hours of community work. On the charge of possession of methamphetamine I impose a concurrent sentence of two months’
home detention.
Thomas J
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