R v Johnson HC Auckland CRI 2006-042-2569

[2008] NZHC 2509

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-042-2569

THE QUEEN

v

MARC PATRICK JOHNSON

Hearing:         15 August 2008

Appearances: B Finn for the Crown

I Koya for the prisoner

Judgment:      15 August 2008

SENTENCING NOTES OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

I Koya, PO Box 47228, Ponsonby, Auckland 1144

R V JOHNSON HC AK CRI 2006-042-2569 15 August 2008

[1]      Marc Patrick Johnson you appear for sentence today having pleaded guilty to three offences under the Misuse of Drugs Act 1975.   Those are: one charge of conspiracy to supply methamphetamine, for which the maximum sentence is 14 years’ imprisonment; one charge of conspiracy to manufacture methamphetamine, for which the maximum sentence is 14 years’ imprisonment; and one charge of possessing equipment, for which the maximum sentence is five years’ imprisonment.

[2]      For the purposes of your sentencing today, I have been greatly assisted by written and oral submissions from the Crown and from your counsel, Mr Koya.   I have also received and considered a pre-sentence report from the Probation Service. This report refers to a number of steps that you have taken to rehabilitate yourself and  Mr  Koya  has  today submitted  a  considerable  number  of  certificates  which confirm the steps which you have been taking to improve yourself and that is commendable.

Facts

[3]      In March 2006, Police began investigating a Motueka based group in relation to methamphetamine dealing.   Police obtained an interception warrant on 7 July

2006 and began to monitor and intercept the phone and cellphone activity of your co- accused, Douglas Gordon Hay.  As a result you came to the notice of the Police.

[4]      Your contact with Mr Hay via text message and telephone continued from around 11 July 2006.   During the  period  of  the  interception,  you  and  Mr  Hay discussed opportunities to source pseudoephedrine, chemicals and utensils necessary to manufacture methamphetamine.

[5]      On 12 July you rang Mr Hay and asked if he had any “singles”.   Mr Hay acknowledged that he did and you responded that you had some “buddies” coming around with some cash.  You arranged to talk to each other over the next hour or so about the arrangement.

[6]      From 25 July, you and Mr Hay had various communications regarding a friend of yours from Auckland that Mr Hay had found a job for.   You met with

Mr Hay  and  a  man  believed  to  be  the  friend  referred  to  in  the  discussions  in

Auckland on 3 and 4 August.

[7]      On 9 August, Mr Hay received a phone call from a person believed to be the friend mentioned earlier.  The friend told Mr Hay that he had something of critical importance that was needed back in Auckland.  You rang Mr Hay with instructions about how the item should be delivered to Auckland.   Mr Hay followed the instructions you gave him and was intercepted when approaching Nelson Airport to drop the package with Air New Zealand Cargo for delivery destined for Auckland. The package contained 100 Sudafed tablets and $1,000 in cash.

[8]      On the same night a search warrant was executed at your Auckland address. Police located a quantity of liquid solution containing methamphetamine that was in the process of being refined into a final product.  A set funnel was being used as part of this process.

[9]     You  stated  that  you  had  obtained  approximately  one  gram  of methamphetamine-based “goo” earlier that day and had placed it into the set funnel and added caustic water to separate out the methamphetamine oil.

[10]     You admitted possession of the items found on you at the time of your arrest but declined to comment on their intended use.   You refused to comment on the involvement of others in the conspiracy matters.

Personal circumstances and pre-sentence report

[11]     You  are  42  years  of  age.    You  have  been  remanded  in  custody  for  a considerable period of approximately two years.  However, you were granted bail in order to prepare for this hearing.  During your release on bail you have resided in Auckland with your partner.

[12]     You left school in the sixth form and enrolled in the Auckland Institute of Technology.   You completed a New Zealand Certificate of Science and began working as a laboratory analyst.  You worked in this area for over ten years both in

New Zealand and in England.  So in terms of education you have had opportunities and shown that you are able.

[13]     Whilst in England, you developed an interest in event lighting.   On your return to New Zealand in 1995 you established yourself as an entertainment and event organiser.  This led to your involvement in the nightclub scene in 1998.  While initially successful, this venture eventually failed and bankruptcy followed.

[14]     As you became involved in the entertainment industry,  you also became involved in the drug scene.   You acknowledge that you began using drugs with increasing frequency, leading to your conviction for conspiracy to supply a Class B controlled drug and your imprisonment in 2000.

[15]     When you were released in 2002 you stated that you were “clean”, that you exercised regularly and worked intermittently at your father’s plastic welding business.  You admit that in 2004 you began using methamphetamine again.  Your use escalated up until your current offending.  You describe yourself as living “week by week” and being “lost in a maze of meth”, and on a “downhill run” at the time of your offending.

[16]     Your have significant support from your partner and family.  Your father has confirmed that he can provide you with employment upon your release.  Over the course of your time on remand you have remained drug free and have completed several programmes referred to in the certificates that I have considered.

[17]     You  explained,  in  relation  to  this  offending,  that  you  were  sourcing precursors for your associate, given that you know people from your time in the club scene.  You saw an opportunity to profit.  You stated that the drug paraphernalia and substance found at your residence were for personal use.

[18]     In hindsight you state that you are “appalled with the whole thing”.  And so you should be, because this is a nefarious drug, the effects of which are pernicious, not just for you, but for the whole of society.  The report writer commented that you appeared  to  accept  responsibility  and  appeared  genuinely  remorseful  for  your

behaviour.   You have acknowledged your methamphetamine addiction and have demonstrated a willingness to address it.   At least by acknowledging the problem you can now start to turn your life around.

[19]     The probation officer assessed various factors relating to  your offending. The main factors being your addiction to methamphetamine and your criminal associates.  You have acknowledged those factors and that has taken you down the path of rehabilitation.

[20]     The probation officer considers that you have made considerable progress in addressing your drug problem, and indicates that there is a medium risk of re- offending.  Because of the nature of the offending, imprisonment is really the only sentencing option, which I am sure you understand.

Prior convictions

[21]     You have previously appeared before the Courts on a range of offences, but the most relevant of these was in 2001 when you were convicted of an attempt to produce/distribute/manufacture methamphetamine and conspiracy to supply a Class B drug.  At the time of this offending you were on active charges of possession of equipment/material/precursor substance with intent.  In 2007 you were convicted of these charges.

[22]     As Mr Koya indicated, you have $1,150 in outstanding fines.  Mr Koya will take steps to make an application to the appropriate authority for those to be remitted and it is to be hoped that can be achieved so when your term of imprisonment concludes you will start back in society again with a clean slate.

Crown submissions

[23]     The Crown  submits  that  a  sentence  in  the  range  of  three  to  five  years’ imprisonment would be appropriate.   The Crown referred to various aggravating features including your previous convictions, the offending whilst on bail, and that

you not only discussed the manufacture of methamphetamine with your co-offender, but took steps to gather the various components required for such manufacture.  The Crown rightly acknowledged the mitigating factors that apply to you, namely, the credit for the guilty plea and the steps that you have taken towards rehabilitation.

[24]     The Crown noted that your co-offender Mr Hay was sentenced in the High Court at Nelson on 20 June 2008 to three years and six months’ imprisonment on the same charges.  The Crown also sought an order for destruction of all drugs and drug- related exhibits, which I will deal with later.

Defence submissions

[25]     Mr Koya presented a focussed and concise submission and submitted that a starting point of three years and six months’ imprisonment would be appropriate. Mr Koya emphasised your guilty plea and the considerable steps which you have taken towards  rehabilitation, and submitted that an end  sentence  of under  three years’ imprisonment would be appropriate.

Purposes and principles of sentencing

[26]     The Sentencing Act 2002 requires that I keep a number of purposes and principles in mind when deciding on an appropriate sentence.  In your case, I have specific regard to the following purposes of sentencing as set out in s 7 of the Act: the need to hold you accountable for the harm done to the community; the need to promote in you a sense of responsibility for, and an acknowledgement of, that harm; the need to denounce your conduct; the need to deter you and others like you from committing the same or a similar offence; and the need to assist in your rehabilitation and reintegration.

[27]     In  sentencing  you  I  also  take  into  account  the  principles  of  sentencing according to s 8 of the Sentencing Act 2002, including: the need to take into account the gravity of your offending, including the degree of your culpability; the need to take into account the seriousness of this type of offence in comparison with other

types of offences; the need to consider the general desirability of consistency with appropriate sentencing levels in respect of similar offences committed in similar circumstances;  and  the  need  to  impose  the  least  restrictive  outcome  that  is appropriate in your circumstances.

Features of the offending

[28]     The Court of Appeal in R v Taueki [2005] 3 NZLR 372 set out the orthodox approach to sentencing. Accordingly, I will first set a starting point based on the features of the offending, and then adjust the starting point according to any mitigating and aggravating features relating to you Mr Johnson.

Aggravating features

[29]     Section 9(1) of the Sentencing Act sets out the factors that are considered aggravating.  In your case, I consider that the applicable aggravating factors are:

a)        The active steps which were taken to gather the materials required to manufacture methamphetamine;

b)        The involvement which had a degree of commerciality.

Mitigating features

[30]     Section 9(2) of the Sentencing Act sets out the mitigating factors that may apply in sentencing.  I accept that your involvement with methamphetamine was in part motivated by your addiction to that drug.

Features of the offender

[31]     In terms of aggravating features, it is inevitable that I will need to adopt a slight  uplift  because  of  your  previous  serious  offending.    I  must  say  that  is  a worrying aspect.

[32]     In terms of mitigating factors, I have already referred to your guilty plea, your remorse and your steps towards rehabilitation.

Imprisonment factor

[33]    When sentencing in a drug case of this nature, the presumption against imprisonment is overridden by a presumption in favour of imprisonment in s 6(4)(a) of the Misuse of Drugs Act.

Comparable cases

[34]     I  have  considered  the  applicable  cases  which  include  R  v  Fatu  [2006]

2 NZLR 72 (CA) which sets out the tariff bands for methamphetamine offending. A number of High Court decisions revised those tariffs downwards by an appropriate percentage because of the lower maximum penalty which applies for a conspiracy. The Court is required to focus on the nature and scope of the conspiracy and the extent to which the offender participated and assisted in it in order to determine the appropriate level of criminality.

[35]     In the Court of Appeal case of R v Te Rure CA374/06 20 July 2007, the approach taken in relation to conspiracy to manufacture was to reduce the applicable Fatu  band  for  the  fact  that  it  was  a  conspiracy,  but  to  calculate  the  discount depending on how close the conspiracy had come to implementation and execution. Wilson J, delivering judgment of the Court, said at [27]:

Where a conspiracy to manufacture methamphetamine proceeds no further than a theoretical plan, only the third level of criminality [the making of an agreement] requires to be address in sentencing.   In such cases, offenders should  expect  a  substantial  reduction  of  the  Fatu  sentencing  levels. However, where a plan has been developed to the point of action, the first two levels of criminality [the possession of precursor equipment and the use of that equipment to manufacture methamphetamine] must be addressed as well.   Where all three levels of criminality are present, offenders should expect a very small discount indeed.

[36]    I have considered a range of applicable cases concerning conspiracy to manufacture methamphetamine including R v Savage HC WHA CRI 2005-029-1267

21 July 2006, Lang J; and R v Manuel & Owen HC WHA CRI 2003-090-13812

12 October 2004, Harrison J.  In relation to conspiracy to supply methamphetamine I have closely considered the notes of Miller J in the case involving your co-offenders R v Hay & Holtham HC NEL CRI 2006-042-2601 20 June 2008.   I have also considered R v Lockart-Blundell HC ROT CRI 2006-063-4690 11 March 2008, Cooper J; and R v Brown HC AK CRI 2005-004-14921 21 March 2007, Stevens J.

Analysis

[37]     It is clear from the sentencing approach set out in the cases to which I have referred, and the case involving your co-offender Mr Hay, that the appropriate band here is towards the lower end of band 2 in Fatu.

[38]   The summary of facts related to the operation suggests an element of commerciality in your offending.   You were plainly involved in the drug dealing scene to a reasonable extent, although I accept in part to fuel your addiction.  If this were a straight manufacturing case the starting point would be between four and 11 years’ imprisonment, but there must of course be a reduction because this is a conspiracy to manufacture.

[39]     First,  there  was  the  conspiracy  to  supply  methamphetamine  which  was apparent from the intercepted conversations between you and Mr Hay.  Next, so far as the conspiracy to manufacture methamphetamine is concerned, you and Mr Hay made the agreement regarding the sending of the 100 Sudafed tablets to Auckland. It  seems  that  those  had  come  into  Mr  Hay’s  possession  by  mistake  and  the possession of a precursor substance indicates further involvement in the methamphetamine manufacturing scene.    The  real  significance  of  this  is  that  it establishes that the conspiracy was actually being put into effect and is an indication of the quantity involved.

[40]     In addition, when the search warrant was executed at your address it was in the course of what appeared to be an attempt to manufacture methamphetamine. This  again,  is  illustrative  of  the  fact  that  the  conspiracy  was  reasonably  well advanced.   These factors that I have referred to reinforce my conclusion that you

were involved in the manufacture of methamphetamine and the drug supply scene to a reasonable extent.  Having said that, the question of parity is important here and for that reason I apply an overall starting point of four years’ imprisonment, which was the same as for Mr Hay.  That also takes into account the totality of the offending, including the charge of conspiracy to supply methamphetamine.

[41]     Next, looking at your criminal history, I apply an uplift of three months to reflect your prior, serious and relatively recent offending and the fact that the offending occurred whilst you were on bail.  I could have adopted a greater uplift, but I have chosen only to apply three months.  So that would mean a total sentence before applying the mitigating factors of four years and three months’ imprisonment.

[42]     Because of your guilty pleas and because of the significant steps you have taken to rehabilitate yourself and turn your life around, I am going to give you one last chance.  I am therefore going to apply a generous discount and I impose a final sentence on the conspiracy to manufacture methamphetamine charge of two years and ten months’ imprisonment.  On the second conspiracy charge of conspiracy to supply methamphetamine, a sentence of 18 months’ imprisonment concurrent will be imposed.   On the possession of equipment it will be a sentence of 18 months’ imprisonment concurrent.

[43]     There will be an order for destruction of all drugs and drug-related exhibits. That order is to exclude the following items:   your passport, a pocket PC, two laptops, a hard drive, a box of floppy discs, an MP3 player and various documents such as bank records.  The final item is a vacuum pump which you say you use in your lighting business.  If that has been destroyed then that will be included within the order for destruction.   If it is extant, i.e. is still available, then it too will be excluded from the order.

[44]     You may stand down.

Stevens J