R v Joseph HC Auckland CRI 2006-057-1237

[2007] NZHC 1958

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-057-001237

THE QUEEN

v

HENRY BENJAMIN JOSEPH

Appearances: N Walker for the Crown

S Ellis for the Prisoner

Judgment:      31 July 2007

SENTENCING NOTES OF PRIESTLEY J

Counsel/Solicitors:

N Walker, Meredith Connell & Co, P O Box 2213, Downtown Auckland
S Ellis, P O Box 19138, Hamilton

R V JOSEPH HC AK CRI 2006-057-001237  31 July 2007

Defences and Pleas

[1]      You are to be sentenced this afternoon on three charges laid under s 12A(2) of the Misuse of Drugs Act 1975 which, as you have heard, carries a maximum of five years imprisonment.   There is a fourth charge under s 13(1) which carries a maximum of one years imprisonment and/or a $500 fine.

[2]      It  is  the  first  three  which  are  the  most  serious.    One  charge  relates  to possession of equipment capable of being used to manufacture methamphetamine. That charge relates to a par bomb; various glass and plastic containers; glass storage jars, and coffee filters.   The second charge relates to possession of materials with methamphetamine capacity, being phosphoric acid and hydriotic acid.   The third charge related to a precursor substance being hydrochloric acid.  The s 13(1) charge relates to seven pipes found in the garage of your property.

[3]      You entered guilty pleas to these four counts on 21 May on the morning of the trial of you and an alleged co-offender.   The apparent impediment, in  your counsel’s submission, to an earlier guilty plea was a count on the more serious charge of manufacturing methamphetamine.  Counsel though seem to be agreed on what occurred.  It is clearly the case that although there may have been negotiations or discussions between your previous counsel and the Crown no conclusion was reached and on the morning of the trial, apparently after an indication by Harrison J, an application under s 347 was made by you in respect of the manufacturing charge, which the Crown opposed.   That application was successful, however, whereupon you entered your four guilty pleas.

Description

[4]      These materials and equipment were found in a garage at the rear of your home in residential Pukekohe in April 2006.  A search warrant was executed as a result of information obtained by the police.   In the garage were stored the three acids.   The equipment, including the par bomb, were found in a metal case. Throughout the last 16 months you have accepted responsibility for these items

knowing what they were used for, but have taken the approach that you were not the owner.  Clearly your pleas constitute an acknowledgement that you were possessing and controlling all these items, but for a person whose identity you are not prepared to disclose.

Personal Circumstances and Pre-sentence Report

[5]      You are 49 years old.  In recent times you have been on either a sickness or unemployment benefit.  You have been in a stable relationship for 26 years, and I note that your partner is in Court today.  You have two children aged 16 and six by your partner but are also the father of six adult children from a previous relationship. For the last 12 months you have effectively been the primary care-giver of your six year old daughter.

[6]      The  pre-sentence  report  suggests  you  had  a  long  association  with  the Pukekohe branch of Black Power but are no longer an active member.   Although, when I came into Court I wondered whether that past association had led you to make the unwise choice of allowing your garage to be used as a laboratory store house I accept your counsel’s submissions that this equipment and other materials have stemmed from your encouragement of and association with various itinerant musicians who were using your property for musical purposes in recent times. The fact  that  you  have  not  been  prepared,  however,  to  identify  the  owner  of  the equipment and materials is for sentencing purposes a neutral factor.   You cannot claim credit for co-operation with the police.

[7]      The pre-sentence report assesses you as having a low risk of re-offending but also a low motivation to change.

Previous Convictions

[8]      You   have,   unfortunately,   an   extensive   criminal   history.      You   have accumulated 47 convictions since 1970.   These range widely including sexual offending, dishonesty, driving offences, and low order drug offending.   A term of

imprisonment was imposed on you in 1992 relating to sexual offending, some of which historic.  There has been no drug offending, however, for almost 20 years and in recent times, reflecting I suspect your age and your family responsibilities, you have kept out of trouble.  Since your imprisonment in 1992 there has been only a blood/alcohol conviction in November 2000.

[9]      There is force to your counsel’s submission that you have, until this unhappy incident, been making attempts to keep your life on the straight and narrow and imposing a sentence on you I intend to reinforce that as the Sentencing Act obliges me to do.

Mitigating and Aggravating Features

[10]    Aggravating features relating to the offending in my view include your willingness to store essential items for methamphetamine manufacture for others; the degree of premeditation involved in that; and the fact that you were prepared to do this in a residential area.   Aggravating features relating to you are your prior offending, including previous offending under the Misuse of Drugs Act.

[11]     A relevant mitigating feature is your willingness to plead guilty, albeit late.  I note the trial judge, Harrison J, indicated that you were entitled to a discount despite that lateness.   I agree with that assessment.   There is force in your counsel’s submission that you could hardly be expected to plead earlier, in a situation where you faced a more serious manufacturing charge when clearly you had not been personally involved in using the materials and equipment in your garage for their obvious purpose.  However, I suspect the fact that no agreed arrangement was made prior  to  trial  between  counsel  and  the  fact  that  the  Crown  opposed  the  347 application might have made an earlier guilty plea difficult for you.

Submissions

[12]     Both counsel seem to agree that an appropriate start point is two and a half years, or thereabouts.

Sentence

[13]     I  intend  to  use  the  three  s 12A(2)  charges  as  the  lead  charges  with  no differentiation over sentence.   Reflecting totality principles I agree with counsel’s assessment that a start point of two and a half years is generally appropriate.  That start point is consistent with approved start points in comparable cases including R v Anderson (CA425/06, 23 April 2007) and R v Johnston (CA448/05, 16 May

2006), and the two recent High Court decisions of R v Pereira (HC AKL, CRI 2005-

090-4427, 4 April 2006, Asher J), and R v Walker (HC Gisborne, CRI 2006-016-

1855, 26 April 2007, Stevens J).

[14]     This is not an area where the Court of Appeal has set any tariffs and the infrequency of appeals for s 12(A) offending justifies reference to recent High Court sentences where generally that Bench has more experience.

[15]     I consider, in terms of R v Taueki [2005] 3 NZLR 372 that a modest uplift of two months is required to reflect the aggravating features of your previous criminal history and the deliberate premeditated assistance which you were prepared to give to others.

[16]     I consider that a 25% reduction across the board is justified to reflect your guilty pleas and also to recognise your domestic responsibilities and efforts which I suspect you have made to rehabilitate yourself over the last ten years.  A somewhat higher reduction would have been justified if your guilty pleas had earlier, or had been  coupled  with  a  greater  degree  of  co-operation  with  the  police.    I  stress, however, that the 25% reduction bundles up both of those mitigating factors I have mentioned.

[17]     That reduction would result in an appropriate sentence for the three lead charges of two years.

[18]     Accordingly on each of the s 12A(2) charges I sentence you to a term of two years imprisonment.  On the charge of possessing pipes under s 13(1)(a) I sentence

you to two months imprisonment.  All four terms of imprisonment are to be served concurrently.

Home Detention

[19]     Although a two year sentence requires me to consider granting you leave to apply for home detention I decline leave in this case.  The equipment and materials which  you possessed  were  essential  for  manufacturing methamphetamine.    This makes you offending serious.  You were prepared to store three acids on a residential property.  Denunciation and deterrence are relevant factors here and you knew the risk you were running in your own home.   In terms of s 97(3), the nature and seriousness of your offending outweigh the inevitable disruption which being in prison until your parole will mean to your family.   These are not suitable circumstances to grant leave and accordingly leave is declined.

[20]     Stand down.

………………………

Priestley J

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