R v Mack HC Auckland CRI-2009-090-11944

[2011] NZHC 779

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-090-11944

THE QUEEN

v

WARWICK JOSEPH MACK

Hearing:         25 July 2011

Appearances: Ms N Walker and Ms K V Mills for Crown

Mr M Ryan for Prisoner

Judgment:      15 July 2011

SENTENCING REMARKS OF LANG J

R V MACK HC AK CRI-2009-090-11944 15 July 2011

[1]      Mr Mack, you appear for sentence today having been found guilty by a jury on  two  charges  of  manufacturing  methamphetamine,  nine  charges   being  in possession of materials, equipment or precursor substances for use in manufacturing methamphetamine and three charges of being in possession of firearms.   At the commencement  of  your  trial,  you  pleaded  guilty  to  four  charges  of  being  in possession of firearms or ammunition.

[2]      As  you  know,  the  charges  of  manufacturing  methamphetamine  carry maximum sentences of life imprisonment.   The charges of being in possession of materials, equipment and precursor substances carry maximum sentences of five years imprisonment, and the firearms and ammunition charges carry maximum sentences of four years imprisonment.

The facts

[3]      The charges in respect of which you appear for sentence arise out of events that occurred at four separate addresses.  The police became interested in you and your activities after they began an investigation into the activities of a person by the name of Mr Richard Collins.  The police searched a factory premises at 361 West Coast Road on 3 August 2005, and found an active clandestine laboratory in those premises.   Mr Collins was ultimately found to be responsible for operating that laboratory. Your fingerprints were found on one of the items in the laboratory.

[4]      After his arrest on 3 August 2005, Mr Collins was released on bail.  At that point the police kept him under surveillance and during this period they saw him travelling to an address at 3 Gum Road, Henderson.  That is a property owned by your mother.  It is a large rural property comprising a house in some considerable need of repair, together with outside sheds, including a large and more modern workshop.

[5]      The police obtained a search warrant in respect of the property, and when they searched the workshop on 23 September 2005 they found all the trappings of a very extensive clandestine laboratory.  The photographs produced at trial show that vast quantities of equipment were situated within the premises.  They also found all

of the chemicals necessary to produce pseudoephedrine and from that point to produce methamphetamine.  Traces of methamphetamine were found in a number of vessels in two-layer liquids.  These confirmed, of course, that methamphetamine had been manufactured there.  Traces of methamphetamine were also found on various dishes found in the address.

[6]      The  scale  of  the  operation  was  such  that  it  took  a  police  clandestine laboratory team six days to clear and process the laboratory.  I shall have something to say about the scale of the laboratory when I return to consider the sentence that should be imposed upon you.

[7]      The police also searched the house adjoining the laboratory.   When they searched the bedroom that you formerly occupied, they found a quantity of cash. They also found, in a wardrobe, a packet containing 1.294 kilograms of ContactNT granules.    These  are  used  to  extract  pseudoephedrine,  and  that  quantity  could produce a very substantial amount of methamphetamine.

[8]      In a car inside the workshop the police also found a Gevarm shotgun.  This had been modified in the sense that it had been cut down, or shortened, so that it amounted to a pistol for the purposes of our Arms Act.   It had also been further modified to provide it with fully automatic capability.   The police armourer who gave evidence at the trial said that the shotgun was operable, although it had a tendency to jam.   A magazine clip was also  found in the  workshop  containing ammunition that was capable of being fired from the weapon.

[9]      At  or  about  the  same  time,  the  police  executed  a  search  warrant  on  a residential address at 21 Tirimoana Road, Glendene.   Mr Collins had been seen visiting that address as well.  It transpired that he had left one of his vehicles at the address.   When the police entered that address, they found another clandestine laboratory.  This was on nowhere near the scale of the Gum Road laboratory.  It did, however, contain a considerable quantity of equipment and materials associated with the extraction of pseudoephedrine.  Waste materials found within equipment at that address showed that pseudoephedrine had, in fact, been extracted.   There was no

evidence, however, that methamphetamine had been produced from the pseudoephedrine extracted at that address.

[10]     At the time that the police searched the address, you were the tenant of the address.  At trial you asked the jury to believe that you had left the address some time earlier, but the jury’s verdicts make it clear that they were of the view that you were the person who was responsible for assembling the equipment and materials at this address.

[11]     You must, I infer, have become aware of the fact that the police had searched either or both the Gum Road, and/or Tirimoana Road, properties.  At that point you effectively  became  a  fugitive.     You  remained  of  that  status  for  some  very considerable time.

[12]     The next set of offending was not uncovered until 12 November 2009, when the police executed a search warrant at 214 Carter Road, Oratia.  This address was owned by the family trust of your co-accused, Mr Macpherson.  You had been living at  the address  on  and  off for about  12  months  before the police arrived.   The attention of the police had been drawn to the address when Mr Macpherson was seen purchasing toluene from a Hammer Hardware shop in Glen Eden on 3 September

2009.  The police also had other information to suggest that you had a connection with the Carter Road address.

[13]     When the police searched the address you were present.  The police found a quantity of equipment and chemicals capable of being used to extract pseudoephedrine and manufacture methamphetamine.  These included the container of toluene that Mr Macpherson had been observed purchasing on 3 September 2009.

[14]     When the police clandestine laboratory team swabbed the window in the kitchen of the address, they found strong traces of methamphetamine present.  These were such that the scientist who gave evidence for the Crown at trial was sure that methamphetamine had been manufactured in the vicinity.     Traces of methamphetamine were also found in the garage workshop area of the premises, although these were not of the same strength as those discovered in the kitchen.  The

scientist was not able to say that the traces found in the garage workshop were consistent with manufacturing.  She said that it was a reasonable possibility that they had got there through the smoking of methamphetamine in the vicinity.

[15]     The police also found a quantity of cash in a bag belonging to you, together with a coffee filter.  This contained .9 of a gram of methamphetamine mixed with pseudoephedrine. The police also found a large number of pipes in the premises, and the jury found that you were in possession of at least some of these.   That is not surprising given the fact that one of the pipes was in your bag and one of the pipes was found under the bed in the bedroom in which you were living.

[16]     The police also searched a carport outside the house.  Parked in the carport was a white BMW motor vehicle that, I am satisfied, belonged to you.  In the boot of the vehicle the police found a large number of containers that held fluid consistent with having been produced during the manufacture of methamphetamine, or the production of pseudoephedrine.   The police also found chemistry books in the vicinity.  Similar books had also been found both at the Tirimoana Road address and at Gum Road. That appears to have been a feature of your offending.

[17]     The police also found a large number of guns and gun parts at the address, as well as a quantity of ammunition.  Your pleas of guilty at the commencement of the trial reflect the fact that you recognised at the outset that those belonged to you.

[18]     After  your  arrest  you  were  granted  electronically  monitored  bail.    This required  you  to  reside  permanently  at  an  address  at  8  Sherrybrooke  Place, Sunnyvale.   On 6 January 2010, the police conducted a routine bail check at the address.  You apparently invited a police officer inside the address to check your bed to satisfy himself that it was warm, thereby indicating that you had been home when the police arrived. When the police officer went into the bedroom, he noticed a point bag consistent with those used to package methamphetamine.  He then searched the room and found two pipes, one of which was broken, and one of which was intact. Both of these were consistent with being capable of being used for the consumption of methamphetamine. The police also found a quantity of ammunition.

[19]     Against that background it is necessary for me to make some factual findings before selecting the starting point for your offending.

Factual findings

[20]     You dispute the proposition that you were the principal offender at Gum Road. At trial you maintained that you knew nothing about what was going on there. You suggested that Mr Collins must have been responsible for what was happening in  the  garage  workshop.    You  also  suggested  that  gangs  may  have  had  an involvement in the manufacturing of methamphetamine at the workshop.

[21]     I do not accept that explanation.  Your fingerprints were found on a number of items inside the workshop.  Other items belonging to you were also found there. You were the person who had the greatest access to the property. You had a key to it, and you had earlier used it regularly to work on cars.   The fact that the cash and ContactNT granules were found in your former bedroom also suggests that you had a strong connection with the workshop.

[22]     Taking all of those matters into account, I have no doubt that you were the person who was principally responsible for manufacturing methamphetamine at that workshop.   Other people may have visited from time to time, but that does not detract from the fact that you were the principal offender.

[23]     So far as Tirimoana Road is concerned, I consider that the jury’s verdict makes it clear that you were responsible for the extraction of pseudoephedrine at that address.  I view the offending that occurred there as being largely part and parcel of the offending that was occurring at about the same time at Gum Road.  It may be that you were using your residential address as a convenient place from which to extract pseudoephedrine for use in manufacturing methamphetamine at Gum Road.

[24]     I also consider that you were the principal offender at Carter Road.  There is no suggestion that Mr Macpherson knew anything about the manufacture of methamphetamine.   I accept that he was acting under your instructions when he

purchased the toluene, just as he acted on your instructions when he purchased other items for you.

[25]     The chemistry books that were found in the address demonstrate, in my view, that you were the person who was responsible at that address for manufacturing methamphetamine.  You were also primarily responsible in organising the gathering of the equipment and materials at Carter Road.

[26]     So far as Sherrybrooke Place is concerned, I consider that the ammunition that was found there was largely a hangover from what the police found at Carter Road. The evidence at trial was that an associate had brought to you at Sherrybrooke Place items that had been left at Carter Road after the police search.  Although the police uplifted guns and ammunition from Carter Road they may well have missed this ammunition.  I accept also that the pipes may have come from Carter Road as well, although I find that more surprising.

[27]     I do not propose to add anything to  your sentence for the Sherrybrooke offending.  It is, however, relevant in a way that I shall shortly outline.

Sentencing Act 2002

[28]     In any sentence involving the manufacture of drugs on a large scale, issues of deterrence and denunciation are obviously to the forefront.  The only way in which the courts can realistically combat the scourge that is methamphetamine is by imposing deterrent sentences on those who are caught.  The rewards for this form of offending are large.  The risks must also be commensurately large.  Anybody who manufactures methamphetamine on this scale must know that they are liable to a substantial sentence of imprisonment if they are caught.

[29]     At the same time, however, it is important that I endeavour to impose a sentence on you that is broadly consistent with those imposed in like cases.  I say “broadly similar” because, at the authorities demonstrate, the circumstances of no two cases are ever the same.

Concurrent or cumulative sentences?

[30]     The Crown suggested in its submissions that I should impose a lead sentence on the most serious charge, which is that relating to the manufacture of methamphetamine at Gum Road.   It suggested that the lead sentence should encompass the culpability inherent in all of the other charges.

[31]     I would ordinarily adopt that approach when there is ongoing offending of this type.  However, the fact that the offending at Carter Road occurred four years after the earlier offending places it, in my view, in a different category.  So, too, does the fact that it occurred at a time when you were actively endeavouring to avoid the police, when you knew that they were looking for you in relation to the Gum Road offending.

[32]     I  therefore  propose  to  select  a  starting  point  that  reflects  your  overall culpability in relation to Gum Road.  That will also encompass your culpability in relation to Tirimoana Road.  I will then add a cumulative sentence in relation to the offending at Carter Road.  As I have already indicated, I do not propose to increase your sentence to reflect the offending at Sherrybrooke Place.

Starting point

[33]     The starting point is the sentence that would be imposed upon you having regard to all factors relevant to your offending, but excluding factors personal to you.

[34]     The sentence to be imposed on a charge of manufacturing methamphetamine is governed by the decision of our Court of Appeal in R v Fatu.1    In that case the Court identified bands of offending.  In Band 2, which involves the manufacture of up to 250 grams of methamphetamine, a starting point of between four and 11 years will be selected.  In cases involving the manufacture of between 250 and 500 grams of methamphetamine, a starting point of between ten and 15 years imprisonment will

be appropriate.

1 R v Fatu [2006] 2 NZLR 72

[35]   In  this  case,  as  in  many  cases  involving  the  manufacture  of methamphetamine, it is impossible to know precisely how much methamphetamine you produced at the Gum Road laboratory.   I am satisfied, however, that the manufacturing process occurred on several, if not numerous, occasions.  I reach that conclusion having regard to several factors.

[36]     First, the sheer scale of the operation.   As  I have already indicated, the quantity and variety of chemicals and equipment that the police found at the address speaks volumes.  Nobody would assemble this volume of equipment and material for a single one-off manufacture.  Second, many of the base materials were depleted in quantity.  This indicates that manufacture had earlier taken place.  Third, the sheer volume  of  waste  liquids  stored  at  the  premises  makes  it  clear  that  numerous instances of manufacture had occurred.

[37]     Some assistance is also to be gained from the ContactNT granules that were found in the wardrobe of your former bedroom.   The Crown submits that these would be sufficient to produce upwards of 150 grams of methamphetamine.   It contends, in fact, that it could produce between 261 and 391 grams of the drug.  If that submission is correct, you were obviously in a position to manufacture a very large amount of methamphetamine in the future.   It does not, however, prove that you had necessarily manufactured that much in the past.  Nevertheless, it does give a very good guide as to the scale of the manufacturing that was taking place.   It suggests that large quantities of methamphetamine were being produced.

[38]     The Crown submits that your offending at Gum Road falls within Band 3 identified in Fatu. It argues that you must have produced more than 250 grams of the drug. I am not prepared to go that far, simply because of the absence of any reliable evidence as to quantity produced.  Instead, I propose to place your offending in the upper end of Band 2.  I consider that, on its own, the Gum Road offending would attract a starting point of around eight years imprisonment.

[39]     Your counsel submits that that is the starting point that I should select having regard to all factors relevant to Gum Road, including the offending at Tirimoana Road.

[40]     I take a different view.  I consider that some account must be taken of what was happening at Tirimoana Road, even if it was part and parcel of the Gum Road offending.  I say that because you chose to set up a laboratory in premises belonging to another person.  In doing so, you placed that property at risk and also placed at risk the people who were forced to dismantle the laboratory and who will be required to inhabit the property in the future.   It would be wrong, in my view, if I was to ignore that factor completely.

[41]     I consider the fact that an additional property was involved calls for an uplift of at least one year.  I therefore take an overall starting point in relation to the Gum Road and Tirimoana Road offending of nine years imprisonment.

[42]     I also consider that the modified shotgun and ammunition that were found at the Gum Road premises call for recognition.  Drugs and firearms are often found in close proximity and, taken together, they can be a lethal cocktail.  On their own I have no doubt that the charges relating to the Gevarm shotgun and the ammunition found at Gum Road would attract a sentence of at least 18 months imprisonment.  I consider that an uplift of six months is required to recognise this factor.

[43]     This means that I take an overall starting point in relation to the Gum Road and Tirimoana Road offending of nine years six months imprisonment.

[44]     So far as Carter Road is concerned, it is again difficult to ascertain just how much methamphetamine you manufactured there.   One indication of the extent to which manufacturing had been taking place is to be gained from the toluene that Mr Macpherson was seen purchasing on 3 September 2009.  When the police executed the search  warrant  on  Carter Road  just  over two months  later,  they found  that approximately 17 litres out of a 20 litre container had been used.  This gives some idea as to the extent to which manufacturing was taking place.  Overall, however, I propose to give you the benefit of the doubt in relation to manufacturing operation at Carter Road.   I do so simply because I have no real idea of the amount that was ultimately produced.

[45]     In R v Fatu the Court of Appeal identified four years as being the appropriate starting point for offending at the lowest end of Band 2. That is a starting point that I consider is appropriate for the charges of manufacturing and being in possession of materials, equipment and precursor substances at Carter Road.

[46]     I do not propose to add to this sentence greatly to reflect the pipes and firearms that were found at the premises.   I consider that the pipes form part and parcel  of  your overall  association  with  methamphetamine and  their existence  is adequately reflected in the starting point I have identified.  Unlike the firearm found at Gum Road, I do not consider that the gun parts and guns that were found at Carter Road necessarily have the same sinister overtones.   Nevertheless, they do require some recognition.  I propose to add three months to reflect their existence.

[47]     Of more importance, in my view, is the fact that the offending at Carter Road occurred at a time when you knew the police were looking for you in connection with the clandestine laboratories they had found four years earlier at Gum Road and Tirimoana Road.   You deliberately set about gathering together the necessary materials and equipment to manufacture methamphetamine when you knew that the police were searching for you for just that type of offending.  I consider that to be a seriously aggravating factor, and I propose to add nine months to the sentence to reflect that fact.

[48]     This leaves an end starting point in relation to Carter Road, all other things being equal, of five years imprisonment.

[49]     It is necessary, however, for me to have regard to totality principles.  If I were to combine the two sentences without alteration, that would leave an end starting point of 14 years imprisonment.   I do not think that that would be appropriate, particularly  having  regard  to  the  sentence  imposed  on  Mr  Collins  after  his conviction.   He was found to have been operating no fewer than four clandestine laboratories.  In one of those, 130 grams of methamphetamine were found.  On the lead charge in that case, which related only to the factory building that I have

referred to earlier,2 the Judge selected a starting point of 11 years imprisonment.3   He then added four years to reflect the culpability of the offending at the other three premises.

[50]     I view Mr Collins as being a significantly more serious offender than you.  I consider it would be wrong for you to receive a sentence of 14 years imprisonment when the Judge in his case selected a starting point of 15 years.  Totality principles lead me to the conclusion that a cumulative sentence of two and a half years imprisonment is appropriate in relation to the Carter Road offending.

[51]     This means that I have selected an end starting point of nine and a half years imprisonment on the Gum Road charges, and a cumulative sentence of two and a half years imprisonment in respect of the Carter Road offending.

Aggravating factors

[52]     You have some previous convictions and these relate generally to cannabis. Although it means that you cannot take advantage of a completely clean record, I do not propose to uplift the starting points that I have selected to reflect the previous convictions.

Mitigating factors

[53]     I now need to consider whether I should reduce the starting points I have selected to reflect mitigating factors personal to you.  The only real mitigating factor here is the fact that you spent 17 months on EM bail before trial.  The Court has the ability to reduce a sentence to reflect the fact that an offender has been subject to particularly restrictive bail conditions prior to trial.  Whether or not the Court elects to  do  so  in  any  given  case  is  a  matter  for  it,  having  regard  to  all  relevant

circumstances.

2 At [3]

3 R v Collins HC Auckland CRI 2007-090-005304, 3 March 2009

[54]     In the case of Mr Collins, the Judge reduced his end sentence by six months to reflect the fact that he had been on restrictive bail conditions for approximately a year.  In another case referred to by your counsel, the sentencing Judge reduced the sentence by a year to reflect similarly restrictive conditions.

[55]     I have reached the conclusion that I should reduce the sentence to be imposed on you by six months to reflect this factor.  I may have been persuaded to give you a greater discount, but I am conscious of the fact that the offending at Sherrybrooke Place occurred whilst you were on electronically monitored bail.  It is obviously a matter of concern that you were prepared to have items such as methamphetamine pipes and an empty point bag in your possession when you were subject to electronic bail. For that reason I do not consider that a reduction of more than six months is justified.

Minimum term of imprisonment

[56]     I now need to consider whether or not I should consider a minimum term of imprisonment.  The Court has the necessary jurisdiction4 to impose a minimum term of imprisonment in any case where that is necessary to reflect four factors. They are:

(a)       Holding the offender accountable for the harm done to the victim and the community by the offending;

(b)      Denouncing the conduct in which the offender was involved;

(c)       Deterring the offender or other persons from committing the same or a similar offence;

(d)      Protecting the community from the offender.

[57]     In any case involving serious drug-related offending these criteria are likely to be met.  Society expects such offending to be met with deterrent sentences that hold the offender accountable for the harm done by the offending.  The protection of the community also assumes importance, as does the principle of denunciation.  It has now become relatively commonplace, in cases involving serious drug offending, for the sentencing Judge to require an offender to serve around one half of the

overall sentence before being eligible to apply for parole.

44 Under s 86(2) of the Sentencing Act 2002

[58]     Each case must, of course, be decided on its own facts.  In your case there are several   aggravating  aspects   that,   in   my  view,   render  a  minimum   term   of imprisonment inevitable.   The first of these is the sheer scale of the Gum Road operation.  The second is the fact that you were prepared to become involved again in manufacturing methamphetamine at a time when you were wanted by the police for that very offence.  The third is that you were consistently surrounded by firearms at the time of your offending.

[59]     I do not consider that the purposes and principles of sentencing, and more particularly those set out in s 86(2) of the Sentencing Act 2002, would be met without the imposition of a minimum term.  I consider that an appropriate minimum term to be imposed on the lead charge, that is of manufacturing methamphetamine at Gum Road, is one of five years nine months imprisonment.

Sentence

Gum Road

[60]     On  Count  1,  the  charge  of  manufacturing  methamphetamine,  you  are sentenced to nine years imprisonment and ordered to serve a minimum term of five years nine months before being eligible to apply for parole.

[61]     On  Counts  2,  3  and  4,  that  is  the  materials,  equipment  and  precursor substances charges, you are sentenced to concurrent sentences of three years imprisonment.

[62]     On Counts 5 and 6, relating to firearms and ammunition at that address, you are sentenced to 18 months imprisonment to be served concurrently with the other sentences.

Tirimoana Road

[63]     On  Counts  7,  8  and  9,  the  charges  of  being  in  possession  of  materials, equipment and precursor substances, you are sentenced to two years imprisonment to be served concurrently with all other sentences.

Carter Road

[64]     On  Count  11,  the  charge  of  manufacturing  methamphetamine,  you  are sentenced to two and a half years imprisonment to be served cumulatively on the sentence imposed in respect of Count 1.

[65]     On Counts 12, 13 and 14 relating to the possession of materials, equipment and precursor substances at Carter Road, you are sentenced to two years imprisonment to be served concurrently with all other sentences.   On Count 20 relating to possession of pipes, you are sentenced to six months imprisonment to be served concurrently with all other sentences.

[66]     On Counts 22, 23, 24 and 25, the firearms and ammunition charges relating to Carter  Road,   you  are  sentenced  to  18  months  imprisonment  to  be  served concurrently with all other sentences.

Sherrybrooke Place

[67]     On Count 26, that relating to the possession of the pipe, you are sentenced to three months imprisonment to be served concurrently with all other sentences.

[68]     On Count 28, the charge of being in possession of ammunition, you are sentenced  to  six  months  imprisonment  to  be  served  concurrently with  all  other sentences.

Forfeiture

[69]     I make an order for the forfeiture of the cash that was found at Gum Road. To the extent that it is not already subject to automatic forfeiture, I make an order for

the forfeiture and destruction of all weapons and ammunition that the police seized at the various addresses. To the extent that it may be necessary I also make an order for

the destruction of all equipment and paraphernalia found at those addresses.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

Mr M Ryan, Auckland