R v Hita HC Auckland CRI 2006-092-0305

[2007] NZHC 1783

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-0305

THE QUEEN

v

NORMAN FRANCIS HITA IAN EVANS

Hearing:         1 June 2007

Appearances: K A Lummis for Crown

S D Cassidy for Hita

P E Dacre for Evans

Judgment:      1 June 2007

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland

R V HITA AND ANOR HC AK CRI 2006-092-0305  1 June 2007

Norman Hita

[1]      Norman Hita, you appear for sentence for three sets of offences against the

Misuse of Drugs Act:

(i)       four offences on 13 December 2005, as a result of your plea on the point of trial or shortly after, the manufacture of the class A drug methamphetamine   and   possession   of   equipment,   material   and precursor substances.

(ii)      five offences on 17 December 2005, conspiracy to manufacture methamphetamine and possession for supply, to which you pleaded on arraignment before trial, and to possession of equipment, material and precursor substances, to which you had pleaded earlier  in the District Court.

(iii)     supply of methamphetamine on 10 March 2006, as a result of having been found guilty as a party at trial with others.

Context

[2]      Shortly after 8 am on Tuesday 13 December 2005 the police executed a search warrant at 20 Marr Road, Manurewa where you were then staying.  They did so undetected by a surveillance camera linked to a television monitor in the sleep-out that you were occupying.   They saw you and Ian Evans, whom I am to sentence shortly and who with his partner occupied the address and allowed you to stay, walking from the sleep-out.

[3]      In the sleep-out they found all the elements of a clandestine laboratory, the materials, the equipment and precursor substances.   In the house and around the property they found a considerable quantity of further materials. Manufacture was not taking place but you acknowledged that it had been.  You claimed that you had played a lesser part and under constraint.

[4]      On 17 December, just four days later, the police executed a search warrant at a second  Manurewa property,  8 Rako Place.    You were  not  amongst  the  three present.   Nor   did   you   then   live   there.      The   police   found   43   grams   of methamphetamine and 30  grams of cannabis.    In the  garage they found  all the equipment needed to  manufacture methamphetamine.   The three occupants were arrested and charged.

[5]      You later made an affidavit and gave evidence that everything found was yours.  You said that you had asked the occupants, who were friends of yours, if you could store clothes there.  You admitted that you had been given the drugs found for taking the equipment to the address and that you were going to share the drugs with friends.  The equipment itself was to be used later, you accepted, for the purpose of manufacture by somebody else.

[6]      On 10 March 2006 at a third address, 33 Cargill Street, a co-offender of yours negotiated in your presence with an undercover officer, the sale of .9 of a gram of methamphetamine.  They reached a deadlock and you proposed a way through.  The transaction took place elsewhere in your absence.   You were found a party to this offence at trial.

Pre-sentence report

[7]      Your pre-sentence report, dated August 2006, was prepared after you had pleaded guilty in the District  Court  to the three lesser  offences and before any convictions were entered in this Court.   No more recent report has been prepared. You have been in custody, however, and there has been no material change to your circumstances except in the respect to which I will come shortly.

[8]      You are a single man with no dependants.  You left school when you were 14 and you have not often worked since.  You have been dependent on cannabis since you were aged 15.  You have had an ongoing alcohol problem and you began using methamphetamine, the report says, perhaps three years ago.  Also you were, prior to being apprehended, hooked, it appears, on poker machines.

[9]      Your role in the manufacture and distribution of methamphetamine, you told your assessor, was to organise places where manufacture could take place, often in garages without the occupiers knowing what was going on.   You did not admit to any more central role.

[10]     You  did  say that,  given  the  opportunity,  you  would  be  willing  to  enter Odyssey House.    But  your  assessor  noted that  you  have  failed  to  comply  with community based sanctions and I note that, though you have only one conviction for possession of cannabis and another for possession of an implement, you have numerous others, amongst them breaches of conditions of supervision. Even at the point when you had pleaded to these lesser offences, therefore, your assessor saw no alternative to imprisonment and, as you know, that is the sentence I must impose on you.

[11]     I have this morning received letters from your mother and a friend of your family, each of whom speak very well of you.  But your mother is frank that, until you were apprehended, you were in the grip of addiction and she considers that the year you have spent in custody, now more than a year, is the best thing that could have happened to you.  You are drug free.

[12]     Further, it is clear from certificates that I have seen that you have undertaken to an unusual extent courses within the prison to turn your life around and that has to be encouraged.

Principles

[13]     In sentencing you I must hold you accountable for your offending and what it does, not just to you but to the community.  I must denounce your offending. I must promote in you some sense of responsibility for it or, if not that, deter you and others from such  offending.    I  must  also,  so  far  as  it  can  be  achieved,  assist  you  to reintegrate  into  the  community.    But  in  that  balance  the  seriousness  of  your offending is paramount. Nothing short of a sentence of imprisonment will serve.

[14]     It is common ground also that the scale of manufacture in which you were implicated,  and  that  is  your  lead  offence,  the  one  for  which  you  were  first apprehended on 13 December 2005, lies in the second category identified in R v Fatu [2006] 2 NZLR 72. Manufacture within that category, between 5 grams and 250 grams, attracts starting points for sentence, before personal or aggravating or mitigating factors are taken into account, between four and eleven years imprisonment.

[15]     Inherent  in  that  offence  is  the  possession  of  materials,  equipment  and substances and those offences attract concurrent sentences and are not in themselves independently aggravating: Fatu para [41].  As against that, further such offending can be aggravating and either call for a heightened starting point for the offending first in time or an uplift: R v Vijn HC AK CRI 2006-004-016616 23 February 2007, Venning J.

Submissions

[16]     The Crown contends that, though on 13 December 2005, the date of your principal offence, the manufacture offence, manufacture was not then taking place, and no methamphetamine was found, there had been manufacture on a commercial scale. The forensic evidence was that from the materials found 50 grams of methamphetamine could already have been manufactured there or elsewhere and there were materials enough to manufacture 15 grams more.

[17]     For this offence, therefore, the Crown contends for a starting point in the vicinity of seven years, but urges that it be increased to take into account the totality of your offending, principally the offending discovered four days later.   For that reason also the Crown seeks also a minimum term.

[18]      As to the manufacturing offence, your own counsel proposes a starting point in the range five to six years and accepts that your further offending could, and may even require an increase from that  starting point.   However, he urges me to be sceptical  about  the  volume  of  manufacture  at  Marr  Road  evident  from  the combination of materials found there.

[19]     That calculation assumes the volume that could have been derived from the use of the materials present in the greatest quantity. It should rather have derived from what could have been manufactured from those materials combined with those, equally essential, but available in the least quantity.

[20]   Secondly, your counsel points to your response immediately you were apprehended.  You had been, you intimated, awake for some four days.  You were fearful.   You wished to be instantly arrested.   You thought yourself vulnerable to those to whom you were accountable.   You owed them money and you had been setting up places for manufacture to take place to pay off your debts.   You were under constraint.  You are not a manufacturer yourself.

[21]     Your counsel contends therefore that, if one then takes into account your pleas, even though some were late, and the efforts that you have made on remand, a sentence close to the starting point for your principal offence should be imposed and a minimum term would be unjust.

Comparable cases

[22]     The Crown’s starting point for manufacture derives from R v Sorich (HC AK CRI  2005-055-2811  5  September  2006,  Lang  J).  There  Lang  J,  sentencing  for offences identical to your 13 December 2005 offences, where manufacture was not taking place, accepted that manufacture must have been reasonably substantial (a calculation suggested 40-60 grams) and for such offending he identified the starting point as lying between five and seven years.

[23]     The Crown says that your offending must sit at the upper level because the evidence here was more tangible, and where there is repeat offending within a short time an uplift is clearly called for.  In R v Vijn HC AK CRI 2006-404-016616 23

February 2007, where offending was nearly indistinguishable from yours but the level of manufacture was less, Venning J increased the starting point for the first offending by two years for the second offending.   That was actual manufacture, however, and conspiracy to manufacture is a less serious offence. In R v Savage (HC

Whangarei, CRI 2005-029-1267, 21 July 2006), Lang J discounted the Fatu range by

30 percent.

[24]    For possession offences, equipment, materials, and precursor substances, sentences range at the extreme between three years and ten months: R v Walker (CRI

2006-016-1855, 26 April 2007, Stevens J), and R v Coultas (HC Auckland, CRI

2004-90-9763, 18 October 2005, Priestley J).   More typically sentences lie in the range two to two-and-a-half years commensurate with higher starting points.

[25]     Finally  as  to  supply,  the  actual  supply  of  methamphetamine,  your  final offence, I take into account R v Katipa & Kree (HC AK CRI 2006-055-001076, 1

December, 2006, Andrews J) where Andrews J sentenced a co-offender of yours, culpable of two supplies, from a starting point of three years.

Conclusions

[26]     In sentencing you I begin from the premise that though you are culpable of manufacture you were not yourself the manufacturer.  You were not the cook.  You were  not  the  one  who  was  to  benefit  financially.    You  were  an  indispensable assistant but you were an assistant.   So I do not place you at the highest level of culpability.  I place you a little below that.

[27]     For that reason, though a seven year starting point might be appropriate for manufacture for the principal offender, the starting point I take for you is six years imprisonment. To reflect your later, perhaps simultaneous, offending, the conspiracy offence and the offences related to that, I increase your starting point by 18 months to seven-and-a-half years.  In that I take account of the fact that it was conspiracy and not actual manufacture.

[28]     To recognise your pleas, though they were as to the most serious of your offences right on the verge of trial, and also the efforts that you have made on a long period on remand, I intend to give you a credit of 18 months, which I have to say is unusually large. Your sentence therefore for your principal offence will be six years imprisonment.

[29]     For the conspiracy offence you will be sentenced concurrently to three years imprisonment.   For the possession for supply offence, and for the possession of equipment offences, each of which was of some scale and repeated, you will be sentenced  concurrently  to  two-and-a-half  years  imprisonment.    For  the  supply offence, for which you are entitled to no credit for plea but in respect of which you were at most a party, you will be sentenced concurrently to 12 months imprisonment. Your effective sentence is six years imprisonment.

[30]     The  Crown  seeks  a  minimum  term,  and  ordinarily  for  such  sustained offending I might well be inclined under s 86 to impose one. I am satisfied, however, from what your counsel has told me that at the time when you offended you were not a free agent entirely.   I also am encouraged by the tangible efforts that you have made over the period of your lengthy remand to give a more hopeful prospect to your life.  I decline therefore to impose a minimum term.

Ian Evans

[31]     Ian  Evans  you  appear  for  sentence  for  three  possession  offences  on  13

December 2005, possession of equipment, materials, and precursor substances.

[32]     You and your partner had occupied the address searched for a relatively short time and you were at the address on a 24 hour curfew, having been released very shortly before on parole.   At the property there were very extensive materials and equipment, as I have said already in sentencing Norman Hita.   There were also precursor  substances  in  a  not  insignificant  quantity.    The  materials  as  a  whole showed evidence of past manufacture and the prospect of more.

[33]     You must be held accountable for knowing control of what was found.   In contrast to Norman Hita, however, you have the benefit of an acquittal at trial for manufacture.  The jury was not satisfied that the possession offences for which it did find you culpable translated to any active part in the purpose for which those items were at the property.

[34]     Your pre-sentence report  describes  you  as having  a  partner  of 10  years, present in Court today, and two young sons.  You have, it seems, been unemployed for some five years, but you now have the offer of work, an offer I have seen confirmed today.

[35]     You have two previous drug related convictions, but they are of a minor order, possession and use of utensils, and you yourself deny, the report says, that you have ever been addicted.  The report is sceptical as to that, however, because at the time when it  was completed you were shown to  have given four positive urine samples while on remand.

[36]     Given that, and the fact that you were on parole at the time of this offending, the report is not encouraging and recommends imprisonment.

Submissions

[37]     The Crown, pointing  to  the quantity of equipment  and  materials at  your property and its implication, and the fact that you were on remand at the time when the search took place, contends for  a starting  point  in  your  case of three  years imprisonment, and urges that be the end point identifying nothing that is mitigating.

[38]     Your own counsel accepts that a starting point in the range two to two-and-a- half years might  be appropriate, but invites me to  give you the benefit  of your acquittal for manufacture. He has given me also an analyst’s certificate, dated 26

April 2007, which shows that then at least your urine sample was negative. Then at least you were drug free.   He also confirms that you do have an offer of work on release and, as he says, having been on remand for perhaps 18 months the point may soon come where that is a distinct possibility.

[39]     In sentencing you I do make the distinction that your counsel invites between you and Mr Hita, and I do so in two senses.  The first is that you are not convicted of manufacture and he was.  The second is that he was found in possession twice not once, and indeed his role was to be in possession.  However, what was found at your property was so extensive that your complicity is very real indeed.

[40]     Balancing those factors I take the view a starting point of two-and-a-half years imprisonment and I am prepared to allow you, given that you have made some effort recently to remain drug free and you have undertaken courses, a credit of six months so that you can resume with your family a normal life soon.  That again is not strictly usual.  But if there is an opportunity here it should be taken, and you will

have it. Your sentence will be two years imprisonment.

P.J. Keane  J