R v Kayrouz
[2013] NZHC 799
•18 April 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2010-019-2006 [2013] NZHC 799
THE QUEEN
v
SIMON LINDSAY KAYROUZ
Appearances: J Foster for the Crown
P G Mabey QC for the Prisoner
Sentence: 18 April 2013
SENTENCING NOTES OF PRIESTLEY J
Counsel:
J N Foster, Crown Solicitor, Hamilton. Email: [email protected]
P G Mabey QC, Barrister, Tauranga. Email: [email protected]
R V KAYROUZ HC HAM CRI-2010-019-2006 [18 April 2013]
[1] Simon Lindsay Kayrouz, you are being sentenced today on five counts on which a jury found you guilty at the end of a lengthy trial in December 2012. The counts are manufacturing methamphetamine, supplying methamphetamine, possession of precursor substances and possession of equipment and material, all under the Misuse of Drugs Act 1975. The fifth count is a charge of unlawful possession of three pistols under the Arms Act.
[2] As you know the manufacturing and supply of methamphetamine charges carry a maximum sentence of life imprisonment. The Arms Act charge carries a maximum of four years imprisonment. The two counts of possession of precursor substances and equipment carry maximums of five years imprisonment.
[3] In a conventional sentencing minute I would at this stage set out my view of the facts. Because of the complexity of the trial and your offending that is not easy to do. So for while I am going to range fairly widely and touch on some points which will feed into the sentence I intend to craft for you.
[4] Mr Kayrouz, it is not easy for me to pin down with any precision the basis on which I should sentence you. First, you maintain that you are innocent and should not have been convicted. As you know, however, the jury’s five verdicts bind both of us. Whether you were properly convicted is a matter for the Court of Appeal if you choose to go there. But your stance takes away certain credits which might otherwise have been available to you.
[5] Secondly, as was your right, you kept your mouth shut throughout. You admitted nothing to the police other than a few comments which cast doubt on your knowledge and expertise as a farm employee. You did not give evidence, which innocent people, although they are not obliged so to do, frequently do. You have not instructed your counsel to place distance between yourself and the much more culpable king pin, Stephen Gray. However, Mr Mabey is correct, and I accept his submission, that because you were clearly below Mr Gray in a hierarchical sense,
your culpability is less. The Court of Appeal in R v Fatu1 has observed that a
1 R v Fatu [2006] 2 NZLR 72 at [43].
sentence must reflect not only drug quantities but also the role of a particular offender in a manufacturing ring.
[6] Thirdly, the Crown case against you was entirely circumstantial. Various intercepted conversations by others implicated you. There was one single word text from you at a crucial time which linked you to the manufacture and delivery of a large supply of methamphetamine. Other than that there was no direct evidence of your handing over methamphetamine to Mr Gray, (once possibly at his home), unsurprisingly perhaps given the isolated nature of your house and Mr Gray’s farm; there is no evidence, through residues, of you manufacturing methamphetamine in your home or neighbouring sheds – absolutely no traces of manufacturing residue on swabs. The only evidence of volumes manufactured by you is what can be extrapolated from much stronger and direct evidence of supply by Stephen Gray. There was an intercepted conversation which suggested that you went away from the farm to cook. Whether or not you did so, I know not. There is no evidence on that at all.
[7] At one stage, in a ruling in the absence of the jury, I speculated that the Crown case against you did not strike me as being particularly strong. But that certainly does not mean the Crown case was hopeless. Indeed Ms Foster’s closing address, summarising the Crown case against you, was compelling and properly carried the jury. The jury by its verdicts accepted, Mr Kayrouz, the prosecution assessment that you were Mr Gray’s cook and manufactured methamphetamine for him on a regular basis in the seclusion of the farm. Certainly the evidence of precursor materials and equipment deliberately hidden on hillsides in rugged farm terrain, but within easy walking distance or farm-bike distance of your home, was evidence from which the jury drew the inferences the Crown urged upon them.
[8] The difficulties for the Crown, in producing any direct evidence, were underlined by legitimate attempts during the trial to produce propensity evidence against you which I refused, and also by some heroic attempts by Ms Foster to suggest that a virtually immobile alternator and trailer found in an implement shed near your house could have been used as a power source for manufacturing methamphetamine in other parts of the countryside.
[9] For what it is worth, although it is not my function as trial Judge to determine your guilt, I consider that the jury’s verdicts were correct. Slim though some of the evidence may have been, the jury, Mr Kayrouz, was sure of your guilt.
[10] Although my following comments have not been directly advanced by Mr Mabey, I have my own assessment of your position. You were on your own admission at that time addicted to methamphetamine. You stated that to the probation officer and I have seen reports provided by your counsel to that effect. I note that since your arrest in 2009 you seem to have cured yourself of your addiction. In that I wish you well. When your house was searched for the first time, attempts were made to dispose of pipes in the fireplace. You are clearly a man who is good with your hands, you have had a variety of trades, and you have considerable knowledge of electrical engineering. The witness you called spoke highly of your ability to work on motor vehicles and string up party lights.
[11] For my part I take the view that you were used by Mr Gray. Your 2004 conviction and its summary of facts suggests you have a historic knowledge of methamphetamine manufacture. You were, as the Crown submitted to the jury, an experienced and skilled cook. In interceptions of Mr Gray’s conversations he described you as such. And indeed, Mr Kayrouz, you did manufacture large quantities of this pernicious drug. The advantages to you were, that at no cost to yourself, you could feed your own habit. But you were in essence (and perhaps it is a pity you are not prepared to admit this) the tool of Mr Gray. He was prepared to provide you with free accommodation, free electricity, a home where you could live with your partner, exercise regular contact with your daughter, operate, when you wanted, your own business, and feed your habit. What did not come your way were large sums of money. Your lifestyle was modest. The interior of your house, from the photographs, looked chaotic. You do not appear to have benefitted financially to any significant extent from manufacturing methamphetamine and supplying it to Stephen Gray. What you got instead was a relaxed lifestyle and, as is clear from one of the intercepted conversations, your ability to take your own cut of methamphetamine for your own use. Ms Foster has submitted to me that you exercised a considerable degree of independence. It may well have been that Mr Gray did not push you to any significant extent. Nonetheless you were there as an
integral part of his operation. You have the skills, he used them, and you knew, Mr
Kayrouz, what you were doing.
[12] For sentencing purposes the approach I have outlined does not avail you much. You were Mr Gray’s willing tool. He took large sums of money from supplying your product. You got a free house, arguably some peace and quiet, but very little financial benefit that I can see.
[13] But I accept Mr Mabey’s submission, as I have said, that you were clearly below Mr Gray in a hierarchical sense so far as Mr Gray’s activities were concerned. You were his tool but you cannot dance around the fact that you were a vital tool. Nonetheless, your lesser culpability, in terms of Fatu [43] means my sentence must reflect this lower culpability.
[14] It is against that backdrop that I need to assess your culpability and the other facts. But you cannot resile, as I have just said, from the fact, Mr Kayrouz, that you manufactured large quantities of methamphetamine and supplied those to Mr Gray. You were the creator of an addictive drug which was supplied and sold widely on the downstream market place with ruinous effects on the lives of many. And you yourself have personally experienced what some of those effects can be.
[15] Unlike Mr Gray, whose sentencing you will have heard about, there are no assets I can strip off you. Nor, fortunately for you, were you involved in the sale or supply of other drugs.
[16] In the absence of any other evidence, and certainly on the basis of the evidence led at your trial, I must sentence you on the basis that you manufactured approximately 60 ounces of methamphetamine for Mr Gray over a five month period which, on the Crown’s estimate, could have yielded Mr Gray somewhere between
$700,000 and $800,000.
[17] You have, along with Mr Gray, been convicted as a party to the possession of precursor substances and equipment found near your home. The most significant item here was hypophosphorous acid, sufficient, if combined with pseudoephedrine
and iodine (which were absent), to manufacture 12 kg of methamphetamine with a conservative value, that is the acid, of between $50,000 and $80,000. Both counsel accept, however, as observed by the Court of Appeal in Fatu2 at [42] that where large quantities of methamphetamine have been manufactured, the criminality of gearing up to manufacture may be absorbed in the culpability of the primary offending. So the equipment and materials can properly be regarded as part and parcel of your manufacturing, but their secretion is clear evidence of an ongoing operation and, if you like, of plant or stock-in-trade.
[18] As for the pistols, I tend to take a lenient view of your conviction in that regard. The pistols strike me as being more collector’s items. They were not well maintained or oiled and no credible stash of ammunition was found. However, it is collector’s items of this type which frequently appeal to drug dealers so that they can be produced or pointed at times of perceived vulnerability such as when manufacturing methamphetamine or delivering it. As Court of Appeal and High Court authorities make clear, possession of pistols in the context of drug dealing is serious to our social fabric and is to be deterred. Whether or not you ever carried a pistol with you on your manufacturing expeditions is a matter on which I shall not speculate. You have no previous Arms Act convictions, so the uplift, for that conviction for all these reasons, will be small. I certainly accept your counsel’s submission that on the facts before the jury there is no evidence that your possession of these varied firearms was an aggravating feature of specific drug offending.
[19] I now want to say something briefly about your personal circumstances. I have received two letters, including one from your partner. The letters speak highly of you and I accept that in many respects you are a caring and gentle individual.
[20] You are aged 43. You have one child to a previous partner who you see on a regular basis. You are, or were, in a long term relationship. You admit to being a longstanding user of methamphetamine spanning a period of over 10 years and, as I have said, drug addiction would inevitably have played as a substantial motivator for your offending.
[21] I have received reports, and this is confirmed in part by the probation officer who wrote the presentence report, that you have done a lot to rehabilitate yourself and so far as your past addiction is concerned the outlook is good. However, you are, as you will have appreciated over recent months Mr Kayrouz, living in a controlled environment in a prison and the real test as to whether you can put your addiction behind you will have to await your release.
[22] During the course of your adult life you have engaged in a number of trades which I do not need to itemise. I note that your formal education was limited somewhat because you suffer from dyslexia and it is doubtless a handicap which has held you back to some extent. The presentence report which I have assesses, and I accept, that you constitute a low risk of future offending and pose no risk of harm to others.
[23] You do not, as you know, have an unblemished criminal record. Since 1987 you have incurred a number of convictions. None of these have been met with a custodial sentence. You have a very minor conviction for possession of a cannabis plant in 1990 and there was the 2004 conviction to which I have referred of possession of equipment or precursor substances. However, the fact that that was met with a non-custodial sentence of community work and supervision suggests to me that the sentencing court regarded that offending by you as being at the low end of the Misuse of Drugs Act scale.
[24] I have been assisted by counsel’s submissions. Ms Foster submits that I must be guided by the start point of 17½ years imprisonment which I utilised for Mr Gray. She also submits that it is appropriate, in your case particularly, to emphasise the Sentencing Act principle of deterrence, that I impose a minimum term of imprisonment on whatever end sentence I reach.
[25] Mr Mabey’s submissions I have, in part, alluded to in an earlier part of my sentencing comments. He submits strongly, however, there is no need for me to impose a minimum term of imprisonment on you and that the sentence I have to craft should be one that is suited to your unique and personal circumstances. Mr Mabey
points out that there is no hard and fast rule that sentences exceeding nine years under the Misuse of Drugs Act inevitably attract s 86 minimum terms.
[26] Now as I have just said, when I sentenced Stephen Gray last month I used the manufacturing count as the start point and fixed a 17½ year term of imprisonment which I subsequently uplifted to reflect the totality of the multitude of other counts he faced. I intend to use the same charge, manufacturing methamphetamine as your lead sentence.
[27] In terms of R v Fatu3 I am satisfied you fit easily inside Band 4. You were manufacturing very large commercial quantities, well in excess of 500 grams, which justifies a term of imprisonment of between 13 years to life. Because I regard your culpability as being less than that of Mr Gray I intend to adopt a lower start point of
15½ years imprisonment. The two possession of equipment and materials charges can properly be seen as part and parcel of your manufacturing operation but nonetheless you were the joint custodian of those items. As I have said they point to long range and repetitive manufacturing. Your supply of methamphetamine was very different from Mr Gray’s supply. Whereas he was supplying to third parties you were supplying solely, and Ms Foster accepts this, to him.
[28] I have already commented on the Arms Act charge which carries a maximum of four years imprisonment.
[29] I consider that given the close inter-relationship of your convictions, all being part and parcel of your manufacturing operation, that a total uplift of 12 months imprisonment (including the Arms Act matter and the aggravating feature of repetition) is sufficient, which will bring me to an end sentence of 16½ years imprisonment.
[30] I do not intend to uplift for other aggravating factors. The 2004 offending was dealt with, as I have said, by a non-custodial sentence. It would be wrong to re- punish you for that.
[31] Turning to the contentious issue of a minimum term of imprisonment, the sole issue is whether for the purposes of s 86 parole eligibility, once you have served
5½ years imprisonment (which is one third of 16½ years), is sufficient for the Sentencing Act principles of accountability, denunciation, and deterrence. Your co- offender, Mr Gray, who but for very large forfeiture orders would have been looking at an end sentence of 17 years imprisonment and a minimum term of 8½ years had available to him mitigating credits which you do not have. On him I imposed an MPI of 5½ years. Ms Foster is undoubtedly correct when, on the authority of R v
Fleming4 and also R v Anslow,5 she observes that minimum terms are commonly
imposed for drug offending which attract sentences of greater than nine years. However, to impose a minimum term on you which would be greater than that I impose on Mr Gray when, so far as yours and his methamphetamine offending is concerned, your culpability is somewhat less, would arguably transgress issues of parity, comparability, and quite frankly be contrary to my own sense of justice of the circumstances of your particular situation. So in the unique situation in which I find you, Mr Kayrouz, I decline to impose a minimum term. I do this not because I consider there is anything wrong with serious drug offending attracting minimum terms. The Court of Appeal’s comments in Fleming are undoubtedly correct. But it is not, as Mr Mabey has submitted, a hard and fast rule that such minimum terms should be imposed. And an example, so counsel tell me, was another offender arrested and dealt with in the same police operation, Mr Clifford, who having pleaded guilty, attracted a 12 year term of imprisonment for methamphetamine offending. That term did not attract an MPI.
[32] So stand up Mr Kayrouz at this point please.
[33] On the lead charge of manufacturing methamphetamine you are sentenced to a term of 16½ years imprisonment.
[34] On the charge of supplying methamphetamine, fitting into a different category of offending but nonetheless in the R v Fatu,6 [Band 4]7 I sentence you to
13 years imprisonment.
[35] On the two charges laid under s 12A of the Misuse of Drugs Act 1975, particularly having regard to the value of the hypophosphorous acid, I sentence you to four years imprisonment. On the one charge of unlawful possession of pistols, laid under the Arms Act, I sentence you to 12 months imprisonment.
[36] All those terms of imprisonment, Mr Kayrouz, are to be served concurrently. I decline to order a minimum term of imprisonment under s 86 of the Sentencing Act.
[37] Thank you. Take him down.
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Priestley J
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