R v Howe - [2022] NZHC 3357

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;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Howe

Details

AGLC: R v Howe [2022] NZHC 3357
Case: [2022] NZHC 3357
Decision Date: 12 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, Ben David Howe stands sentenced for his involvement in manufacturing and distributing methamphetamine, among other charges. The defendant pleaded guilty to charges of manufacturing methamphetamine, possession of methamphetamine for the purpose of supply, unlawful possession of a firearm, unlawful possession of ammunition, possession of cannabis, and possession of a pipe for the use of methamphetamine. The case was heard and sentenced on 12 December 2022.

The central legal issues involved determining the appropriate starting point for sentencing, adjusting the starting point based on personal circumstances, and ultimately arriving at a suitable sentence. The court had to consider the quantity of methamphetamine involved, the defendant's role in the operation, and compare his culpability with co-offenders. It also had to weigh mitigating factors such as the defendant's guilty plea, addiction-driven offending, rehabilitative efforts, and remorse.

Moore J began by setting the starting point for the methamphetamine-related charges, placing the defendant's offending in band five due to the quantity involved. The court assessed the defendant's role as significant but not leading, leading to a starting point of 11 years' imprisonment. Additional uplifts were applied for the firearms and ammunition charges (12 months) and possession of cannabis and a methamphetamine pipe (no uplift), resulting in a total starting point of 12 years' imprisonment. Mitigating factors led to a total discount of 35 per cent and a 14-month reduction for time spent on electronically monitored bail, resulting in a final sentence of six years and seven months' imprisonment. The court also issued destruction orders for the firearm, ammunition, methamphetamine pipe, and laboratory equipment and reagents.

This case highlights the complex considerations involved in sentencing for drug-related and firearms offences, balancing the gravity of the crimes with personal mitigating factors. The outcome demonstrates the court's approach to applying guidelines and principles of sentencing in a nuanced and balanced manner.

Orders