R v Howe
[2022] NZHC 3357
•12 December 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2020-070-002302
[2022] NZHC 3357
THE KING v
BEN DAVID HOWE
Hearing: 12 December 2022 (Heard at Hamilton) Appearances:
Richard Jenson for the Crown (via VMR) Jasper Rhodes for the Defendant
Sentencing:
12 December 2022
SENTENCING NOTES OF MOORE J
R v HOWE [2022] NZHC 3357 [12 December 2022]
Background
[1]Ben Howe, you appear today for sentence having pleaded guilty to charges of:
(a)manufacturing methamphetamine;1
(b)possession of methamphetamine for the purpose of supply;2
(c)unlawful possession of a firearm;3
(d)unlawful possession of ammunition;4
(e)possession of cannabis;5 and
(f)possession of a pipe for the use of methamphetamine.6
The offending
[2] I will first begin by describing the facts of your offending. These are set out in the summary of facts which you accept. The facts will obviously be familiar to you. But because sentencing is quintessentially a public function which is required to be undertaken in open court, it is important that I set these out.
[3] In late 2019, police began an investigation named “Operation Emoji” into the manufacture and supply of methamphetamine by your co-offender, Calebh Simpson. While his business was predominantly the wholesale manufacture and supply of methamphetamine, he also dealt in firearms and cannabis.
1 Misuse of Drugs Act 1975, s 6(1)(b) and (2)(a). Maximum penalty of life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum penalty of life imprisonment.
3 Arms Act 1983, s 50(1)(a). Maximum penalty of three years’ imprisonment or a fine not exceeding
$4,000, or both.
4 Arms Act 1983, s 45(1). Maximum penalty of four years’ imprisonment or a fine not exceeding
$5,000, or both.
5 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b). Maximum penalty of three months’ imprisonment or a fine not exceeding $500, or both.
6 Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty of one year imprisonment or a fine not exceeding $500, or both.
[4] On 13 February 2020, the police executed a search warrant at Mr Simpson’s address in Whakatane. There they found equipment, substances and material associated with a clandestine methamphetamine laboratory. The lab was not operating at the time. While some items were set up on a table, many others were bubble wrapped and neatly stored.
[5] This was a commercial venture. Mr Simpson was manufacturing and selling significant quantities of methamphetamine. He accumulated some $1.8 million in cash.
[6] You accepted by way of your guilty plea that between August 2019 and January 2020 you assisted Mr Simpson in the manufacture of at least two kilograms of methamphetamine. You also acted as a delivery driver, transporting methamphetamine from Whakatane to Auckland. At other times you supplied smaller quantities to unidentified purchasers.
[7] On 11 June 2020, the police searched your parents’ address where you were living at the time. In your bedroom they found a variety of items associated with your involvement. These included a loaded 44 calibre pistol; over 50 rounds of ammunition; 171 grams of methamphetamine stored in a safe; and a jar containing 29 grams of cannabis in your bedside drawer.
[8]Police also searched your car. They found a black satchel containing a further
5.8 grams of methamphetamine; over $10,000 in cash; a set of miniature scales; drug- related utensils; eight Tramadol tablets; a gold bracelet; a watch; and a damaged cell phone.
[9] When spoken to by the police, you acknowledged your relationship with Mr Simpson and confirmed that the items found belonged to you.
[10] So those are the agreed facts. Next, I turn to consider the appropriate starting point for your offending.
What is the appropriate starting point?
[11] This is the first stage in the sentencing process. Once the starting point is fixed, it will then be adjusted, either up or down or both, to account for your personal circumstances.
Starting point for the methamphetamine offending
[12] It is common ground that I should take the methamphetamine-related charges as the lead charges in setting the starting point. I will then uplift this to account for the other charges.
[13] Zhang v R is the guideline judgment when setting a starting point for methamphetamine offending.7 There the Court of Appeal set out five bands to classify offending based on quantity.8 Band five is the most serious.9 It applies in cases involving methamphetamine dealing in quantities of more than two kilograms.10 Penalties for offending within band five range from 10 years’ imprisonment to life imprisonment.11
[14] There is no dispute that your offending involves dealing in just over two kilograms of methamphetamine. So far as quantity is concerned, that places your offending in band five.
[15] Quantity is an important measure of culpability because it is an indicator of commerciality and subsequent harm to the community.12 However, it is not the sole determining consideration.13 The role an offender plays is also a central component in assessing culpability.14 Zhang helpfully groups offenders into three categories of
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
8 At [125].
9 At [125].
10 At [125].
11 At [125].
12 At [104].
13 At [104].
14 At [126].
role – lesser, significant or leading.15 Starting points may be adjusted up or down in response to the reduced or increased culpability associated with different roles.16
[16] The Crown’s position is that you had a significant, but not leading, role in Mr Simpson’s enterprise. In the very recent decision of Berkland v R, the Supreme Court recalibrated the criteria for the significant role.17 Of relevance is the distinction that Court drew between those who are managers in the operation and those who carry significant operational roles.18 Formerly, management and operational roles were combined for the purposes of assessment. Now they must be separately considered. Those at the upper end of the significant range can be expected to manage aspects of the operation through directing and engaging others with at least some knowledge of how the pieces fit together.19 Purely operational functions will typically be in the middle to lower end of the significant category, unless they exercise a high degree of autonomy in the performance of functions that are significant to the operation or there is some distinctive element of the operational role justifying placement at the upper end.20
[17] While it is accepted that Mr Simpson was the ringleader, the Crown submits that you were his “right-hand man”. The Crown says you assisted in the transportation of lab equipment, the manufacturing process and the distribution and delivery of methamphetamine. For this you are said to have received significant financial rewards.
[18] Your counsel rightly points out that the summary of facts does not describe your offending in quite that level of detail. The extent of the description is that you acknowledge that you assisted Mr Simpson in the manufacture of methamphetamine in some way; that you acted as a delivery driver on one occasion; and that you dealt small quantities of methamphetamine to unidentified persons. The level of financial gain associated with your offending is unclear, although you were found in possession of over $10,000 in cash.
15 At [126].
16 At [126].
17 Berkland v R [2022] NZSC 143.
18 At [67].
19 At [68].
20 At [68]–[69].
[19] In my view your role was a significant operational, rather than management, role. Assisting in the manufacture of methamphetamine is obviously integral to any methamphetamine manufacturing and distribution network as is possessing and distributing it. You were in direct communication with the leader. It is also a reasonable inference from the cash found in your bedroom that you received significant financial reward and participated for that reason. Given the lack of evidence that the reward was commensurate with the risk undertaken, it is my view you were at the lower end of the significant category.
[20] The issue is then quantifying the starting point to reflect your culpability. A helpful cross-check is to compare your offending to that of your co-offenders.
[21] You counsel submitted that a starting point of eight years’ imprisonment was appropriate, comparing your offending that of your co-offender, Albert Ellis. He had a lesser role in the manufacture of at least eight kilograms of methamphetamine. This included assisting Mr Simpson to renovate his garage, purchasing ice on his behalf, and transporting one drum of iodine and plastic containers of glassware. His offending was not motivated by addiction, nor commercial gain. Edwards J indicated that a starting point of eight years’ imprisonment was appropriate.
[22] I consider that your offending was more serious. Although Mr Ellis accepted that he assisted in the manufacture of a greater quantity of methamphetamine, his role in the operation was more peripheral than yours. Unlike Mr Ellis, you directly assisted in the manufacture and distribution of methamphetamine. A higher starting point is called for.
[23] Mr Simpson, on the other hand, had a leading role in the manufacture of at least eight kilograms of methamphetamine, alongside possession of another 625 grams.21 Lang J adopted a starting point of 14 years’ imprisonment.22
21 R v Simpson [2022] NZHC 1902 at [29]–[31].
22 At [31].
[24] Plainly your offending is less serious than that of Mr Simpson. He was the ringleader. You were not. A starting point in between that of Mr Simpson and Mr Ellis is appropriate.
[25] It follows that the appropriate starting point on the methamphetamine charges is 11 years’ imprisonment.
Uplift for the firearms offending
[26]The next aspect of your offending is possession of the pistol and ammunition.
[27] The Crown submitted that an uplift of 12 months’ imprisonment was appropriate for this aspect of your offending. Your counsel says it should be no more than six months.
[28] Comparison with Mr Simpson’s sentencing is of assistance. He was found in possession of numerous firearms and ammunition.23 Lang J noted that the presence of firearms in a drug-related context is always a matter of concern because experience has shown they will be used by those who wish to protect drug-related assets.24 He applied an 18-month uplift.25
[29] Your Arms Act offending was less serious because you were in possession of only one firearm and ammunition. Possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment.26
[30] Taking into account totality, I consider that an uplift of 12 months’ imprisonment is justified.
23 R v Simpson [2022] NZHC 1902 at [34].
24 At [34].
25 At [34].
26 Campbell v R [2022] NZCA 579 at [18].
Uplift for the remaining drug offending
[31] The final aspect of your offending is reflected in charges of possession of cannabis and possession of a pipe for the use of methamphetamine.
[32] The Crown submitted that this offending should be taken into account by applying a further uplift of two months.
[33]However, Mr Simpson was also found to be in possession of approximately
1.2 kilograms of cannabis.27 He was charged with possession for the purpose of supply.28 Lang J did not apply an uplift for that charge.29 He found that the starting point for the other charges sufficiently reflected Mr Simpson’s culpability.30
[34] You were found in possession of a much lesser quantity of cannabis – roughly 29 grams. While this exceeds the presumption of supply,31 you were charged with possession of cannabis, not possession for the purpose of sale or supply. You were also found in possession of a pipe for the use of methamphetamine.
[35] This aspect of your offending is associated with personal use of drugs. Given the commercial nature of your other offending and the lengthy term of imprisonment it attracts, I agree with your counsel that these charges do not justify a further uplift.
[36] No uplift is applied on the charges of possession of cannabis or possession of a pipe for the use of methamphetamine.
Conclusion on starting point
[37] It follows that the appropriate starting point for your offending is 12 years’ imprisonment.
27 R v Simpson [2022] NZHC 1902 at [14].
28 At [2].
29 At [33].
30 At [33].
31 Misuse of Drugs Act 1975, sch 5.
Adjustments to the starting point for personal circumstances
[38] I now turn to consider what adjustments need to be made to the starting point to account for your personal circumstances.
Guilty plea
[39]The first is your guilty pleas.
[40] Your counsel submitted that you should receive at least a 20 per cent discount for your guilty pleas. He relied on Mr Simpson being awarded a discount of
22.5 per cent by Lang J, despite his guilty pleas coming “late in the piece”.32
[41] In my view a discount of that magnitude for a late guilty plea sits at the upper end of the range. Lang J explained why he imposed a generous discount when he said that Mr Simpson’s guilty pleas saved “the cost of what would have been a very lengthy jury trial”.33
[42] Your plea came just a few days before trial. I agree with the Crown that a discount of 15 per cent strikes the appropriate balance between recognising the lateness of the plea and the savings associated with not having to proceed to trial.
Addiction-driven offending
[43] The next mitigating factor advanced by your counsel is addiction-driven offending.
[44] Addiction may give rise to a credit at sentencing depending upon the extent to which it mitigates moral culpability for the offending.34 The commercial nature of offending or an offender’s significant role in it do not preclude “meaningful discounts for addiction”.35 It is not the case that “all methamphetamine addicts who offend on a commercial scale do so in a clear-eyed and cynical way”.36
32 R v Simpson [2022] NZHC 1902 at [46].
33 At [47].
34 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].
35 Berkland v R [2022] NZSC 143 at [128].
36 At [128].
[45] The pre-sentence report records that you began using methamphetamine after a relationship ended following the “death of an unborn baby”. You were around 20 years old. By the time you were 27, you were a daily user consuming four or five grams per day. That is a massive amount. Consumption of this quantity was financially unsustainable. You reconnected with Mr Simpson and participated in his manufacturing operation. You described running a profitable business together.
[46] The connection between your addiction and your offending is clear. While the commercial nature of your offending does not preclude a meaningful discount, your candid acknowledgement of the profit-driven nature of the operation means it should be towards the lower end of the range.
[47]I consider a discount of five per cent is justified.37
Rehabilitative efforts and remorse
[48] The next factor advanced by your counsel is your rehabilitative efforts and remorse.
[49] As you spent time on electronically monitored bail (“EM bail”) at a residential rehabilitation facility, the Crown submits that your rehabilitative efforts and time spent on EM bail should not be double counted.
[50] My view is that these factors are independent and applying a credit for each does not constitute double counting. Credit for time spent on EM bail reflects the restriction of liberty associated with electronic monitoring and other bail conditions.38 Rehabilitative efforts are worthy of credit for different reasons. They are both evidence of remorse39 and also operate to reduce the risk of reoffending. For that reason both factors may not be present in any given case and each justifies a separate credit.
37 This is in line with the 10 per cent discount applied by the Supreme Court to recognise Mr Berkland’s background factors and addiction at [151]–[158] and [162].
38 Paora v R [2021] NZCA 559 at [42]–[52].
39 Hansch v Police [2014] NZHC 2438 at [15]–[19].
[51] Your counsel has provided me with letters from providers of rehabilitative programmes as evidence of your engagement in those programmes. He also advises that you have spent just over four weeks at a residential programme at Odyssey House prior to sentencing.
[52] You have also provided a letter of remorse. In that letter you say that you now understand the consequences of your offending on New Zealand society and accept full responsibility for what you have done. You describe your desire to be free from addiction and crime, and the rehabilitative steps you have made in that pursuit.
[53] I am satisfied that your expression of remorse is genuine. That and your rehabilitative efforts are worthy of credit.
[54] I consider a discount of 10 per cent appropriate to recognise both your rehabilitative efforts and remorse.
Previous good character
[55] Your counsel then submits that you should receive a discount for previous good character. He submitted that you lived an essentially offence-free and pro-social life until your addictions precipitated the downward spiral into the index offending.
[56] You have one previous conviction for breaching a liquor ban when you were 20 years old. This is particularly minor. I do not consider that it carries any weight in the assessment of your character.
[57]A discount of five per cent for previous good character is justified.
Time spent on electronically monitored bail
[58]Next is the time you spent on EM bail.
[59] An allowance of up to 50 per cent is not uncommon.40 That is not an upper limit – the assessment of credit is an evaluative decision to be made having regard to the restrictiveness and duration of EM bail conditions in each case.41
[60] You have been on EM bail since 13 July 2020. That equates to just under 29 months. By any measure that is a long time to spend on EM bail.
[61]I consider a discount of 14 months’ imprisonment appropriate.
Conclusion on personal mitigating factors
[62] It follows that I consider a total discount of 35 per cent is warranted, together with a 14 month reduction for time spent on EM bail.
[63]This results in an end sentence of six years and seven months’ imprisonment.
End sentence
[64]Mr Howe, please stand:
(a)On the charges of manufacturing methamphetamine and possession of methamphetamine for the purpose of supply, you are sentenced to concurrent sentences of six years and seven months’ imprisonment.
(b)On the charges of unlawful possession of a firearm and unlawful possession of ammunition, you are sentenced to concurrent sentences of two years’ imprisonment.
(c)On the charge of possession of cannabis, you are sentenced to a concurrent sentence of three months’ imprisonment.
(d)On the charge of possession of a pipe for the use of methamphetamine, you are sentenced to a concurrent sentence of three months’ imprisonment.
40 Paora v R [2021] NZCA 559 at [53].
41 At [53].
[65] Destruction orders are made in respect of the firearm and ammunition, as well as the methamphetamine pipe and laboratory equipment and reagents.
[66]Stand down.
Moore J
Barristers/Solicitors: Crown Solicitor, Tauranga Mr Rhodes, Auckland
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