R v Lorigan HC Auckland CRI-2010-055-1742

[2011] NZHC 1923

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-055-1742

THE QUEEN

v

ROBERT EDWARD LORIGAN

Hearing:         29 November 2011

Counsel:         B Finn for Crown

G Gotlieb for Prisoner

Judgment:      29 November 2011

SENTENCING REMARKS OF LANG J

R V LORIGAN HC AK CRI-2010-055-1742 29 November 2011

[1]      Mr Lorigan, you appear for sentence have pleaded guilty at a special callover on 1 September 2011 to charges of permitting premises to be used for the purpose of manufacturing methamphetamine and to being in possession of five grams of methamphetamine.  The maximum sentence on the charge of permitting premises to be used is ten years imprisonment.  The maximum sentence on the charge of simple possession of methamphetamine is six months imprisonment.

Background

[2]      The  charges  against  you  follow  the  execution  by the  police  of  a  covert surveillance operation targeted at other people.   They obtained warrants from this Court  authorising  them  to  intercept  cellphone  traffic  and  text  message  traffic. Through this, they were led to a large scale ring of persons who were manufacturing methamphetamine on a substantial scale.  They discovered that those persons were operating, to some extent at least, from a shed on premises that you were renting in a rural area.  The period of the offending was between 4 January 2010 and 17 April

2010.

[3]      The operation revealed that methamphetamine was manufactured on your property on no fewer than ten occasions.  The police believe that approximately 50 grams of methamphetamine was manufactured on each occasion.  This means that

500 grams, or approximately half a kilo, of methamphetamine was manufactured on your property.   As  you  must  understand, Mr Lorigan, that is a very significant quantity of methamphetamine.  It also has a very significant commercial value when sold at street level.

[4]      Your culpability in relation to this charge arises from the fact that those who manufacture methamphetamine seek premises such as those that you supplied so that they can carry out their activities in private and away from prying eyes.   Without people  who  are  prepared  to  make  their  premises  available  to  them,  they  have nowhere to manufacture methamphetamine.   So the seriousness of your offending cannot be underestimated.  It allowed a large scale manufacturing ring to produce a significant quantity of methamphetamine.

[5]      You  say  that  you  allowed  the  shed  to  be  used  by  a  person  whom  you understood would be storing and/or working on motor vehicles on the property. Your plea makes it clear, however, that at some stage you became aware that methamphetamine was being manufactured in the shed.   You also received methamphetamine in payment for the use of the shed, and this has led to the charge of being in possession of methamphetamine.

Sentencing Act 2002

[6]      In   any   case   involving   methamphetamine   issues,   of   deterrence   and denunciation are to the forefront.   You must by now know, Mr Lorigan, that methamphetamine is a very serious problem for our society.  As a result, the courts routinely,  indeed  virtually  inevitably,  impose  sentences  of  imprisonment  when people appear for sentence having been caught dealing in or manufacturing methamphetamine.

[7]      The same applies to people who permit their premises to be used for the purpose of manufacturing methamphetamine.   Your counsel and the Crown have supplied me with a range of cases involving that charge.[1]   These show that sentences of between two and three years imprisonment are usually imposed when a person commits the charge of permitting premises to be used for the manufacture of methamphetamine.

[1] R v Johnston & Stott HC Auckland CRI-2005-044-5100, 11 April 2006; R v Brown HC Auckland

Starting point

[8]      In assessing the starting point to be applied in your case, several factors are relevant.   The first is the lengthy period over which the offending occurred.   It occurred  over  some  three  and  a  half  to  four  months.    Second,  the  number  of occasions on which methamphetamine was manufactured.  Ten occasions is a very large number of occasions in this context.   You must have known that this was

happening on a regular basis.

[9]      I put to one side the suggestion that the sophistication of the manufacturing operation and the amount produced are aggravating factors.  The Crown accepts that you played no direct part in the manufacture of methamphetamine, or the setting up of the laboratory.   Neither did  you have any means of knowing precisely what quantities were being produced in the shed.  Those factors were determined by the persons whom you allowed to use the shed on your property.   I consider that the aggravating factors here are the length of time over which the offending occurred, and the number of occasions on which it occurred.

[10]     Likewise,  I accept  that  you  did  not  derive  commercial  gain  out  of  your offending.  Instead, you received quantities of methamphetamine for your own use. You have told the probation officer that you never purchased methamphetamine. You relied on your associates to provide it to you free of charge, usually in point quantities.  Your methamphetamine intake rose dramatically once you allowed these people to use your shed to manufacture methamphetamine.  Although you allowed a commercial operation to be carried on from your premises, I accept that you did not derive commercial benefit from it yourself.

[11]     I am also prepared to accept that the culpability of your offending may have been lessened to some extent by your personality.  Your counsel has provided me with a report from a psychiatrist indicating that you were badly injured in a motor accident in 1978.  As a result you were in a coma for some considerable period, and then required substantial rehabilitation.  This may have left you with some form of cognitive impairment, although the psychiatrist cannot be sure about that.   He suggests, and the pre-sentence report really confirms this,  that you may have a personality that reacts to suggestion by others.  You may have a desire to go along with  others  and  give  them  what  they  wish,  so  that  you  take  the  path  of  least resistance. That may have contributed to some extent to the offending here.

[12]     Taking those factors into account, I consider that an overall starting point of two years six months imprisonment is appropriate.

[13]   You have some previous convictions, in fact, you have a few previous convictions relating to cannabis.  Previous convictions are an aggravating factor, and can lead the Court to increase a sentence to reflect the fact that previous sentences have not worked.

[14]     I take the view, however, that your previous offending is sufficiently different in type as to not warrant an uplift being applied.  For that reason I do not propose to increase the starting point to reflect previous convictions.

[15]     You need to know, however, that your criminal record will now show that you are a person with a significant involvement in methamphetamine.  This means that, if you appear in the future for any methamphetamine-related offending, the Court is highly likely to increase the sentence to reflect the fact that you have been prepared to become involved again in methamphetamine.

Mitigating factors

[16]     I now need to have regard to the factors that operate to reduce the starting point that I have selected.

[17]     The only real mitigating factor here is your guilty plea.  It came late, but I accept that it came following significant negotiations between the Crown and your counsel relating to the charges for which you would accept responsibility.  For that reason I accept that a reduction of 20 per cent is available.

[18]     I would not be prepared to give you a further discount on that, because I consider that your conviction on the charge of permitting premises to be used was virtually inevitable on the evidence available to the Crown.   It was also clear that you were, from time to time, in possession of quantities of methamphetamine, albeit for your own use and not for the purposes of supply as the Crown originally contended.   This means that I am left with an end sentence, after reducing your sentence by six months, of two years imprisonment.

[19]     This brings you within the range eligible for a sentence of home detention. The  Crown  is  unable  to  endorse  that  sentence  in  your  case,  because  of  the seriousness of your offending and the fact that you have previous convictions for drug-related offending.

[20]     Your counsel relies on the factors personal to you to which I have already referred.  He submits that, in effect, you were used to some extent by others and that, the recommendation in the probation report should be followed.   This is that you should serve your sentence by way of a sentence of home detention.

[21]     A sentence of home detention can be  problematic, Mr Lorigan, in drug- related offending.   First, it can be seen as sending the wrong message because, although it is a serious sentence in its own right, it is certainly lower down the sentencing hierarchy than a sentence of imprisonment.  It can send a message that the courts are not taking their responsibility seriously.   Second, it can send the offender back to live in the very environment in which the offending occurred.

[22]     Had there been a hint of commerciality about your offending, I would have shied immediately away from any suggestion that you serve your sentence by way of home detention.   I am prepared, however, to take the lack of commerciality into account when making my decision.  Second, I am satisfied that your personality has to some extent contributed to the position in which you now find yourself in.  Third, I note that you have completed a CADS course since your arrest and that you are now determined to remain drug free,   Fourthly, the property at which you would serve a sentence of home detention is that occupied by your mother and brother, and will not be the environment in which your offending occurred.

[23]     Taking those factors into account, I am prepared to sentence you to home detention.  Again, however, you need to understand that this is the last opportunity that you will have.   Any future offending of this type will inevitably lead to a sentence of imprisonment.

[24]     I now need to consider the appropriate term of the sentence, because you have already spent four months in custody whilst on remand.   This equates to a sentence of eight months imprisonment.   Had I sentenced you to a sentence of imprisonment, that would have been reflected in your release on parole.  It will now not be reflected in the sentence of home detention to which I propose to sentence you.

[25]     In fixing the sentence of home detention, I therefore propose to apply a notional deduction to the sentence of imprisonment that I would otherwise impose.  I will deduct eight months from the sentence of two years imprisonment, thereby leaving an end sentence of one year four months imprisonment.  I acknowledge that you have been on restrictive conditions of bail, but an overnight curfew is by no means as restrictive as a 24-hour curfew.   Effectively, you have been allowed to come and go from your property during the day.   I therefore propose to impose a sentence that reflects an end sentence of 16 months imprisonment.

Sentence

[26]     On the charge of permitting premises to be used you are sentenced to eight months home detention.

[27]     On the charge of being in possession of methamphetamine you are sentenced to one month home detention.

[28]     Those sentences are to be served concurrently.

[29]     Your sentence is subject to the following conditions:

1.Upon release from Court you are to travel directly to 431C Glenbrook Road, Pukekohe and you are to there await the arrival of a probation officer and security officer.

2.You are to reside at that address and not move or change addresses or employment without the prior written approval of a probation officer or for the duration of the sentence.

3.You are not to purchase, possess, or consume alcohol and/or illicit drugs for the duration of the sentence.

4.You are not to communicate or associate with persons involved in your current offending, unless you have the prior written consent or your probation officer.

5.You are to attend and complete any programme and/or counselling as may be directed by your probation officer.

[30]     I  impose  the  following  special  condition  as  a  post-detention  release condition:

1.You are to undertake and complete any remaining rehabilitative programmes, counselling, treatment and maintenance or follow up as

directed by your probation officer.

Lang J

Solicitors:

Crown Solicitor, Auckland
Counsel:

G Gotlieb, Auckland

CRI-2007-057-1032, 8 May 2008; R v Smith & Crosbie HC Auckland – CRI-2010-057-1017, 22
February 2011.