R v Marlow

[2015] NZHC 1052

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-090-3842 [2015] NZHC 1052

THE QUEEN

v

SAMUEL GRANICH MARLOW

Hearing:	19 May 2015
Appearances:	B M Finn for the Crown R J Earwaker for the Defendant
Sentence:	19 May 2015

SENTENCING NOTES OF MUIR J

Solicitor:

B M Finn, Crown Solicitor, Auckland

Counsel:

R J Earwaker, Barrister, Auckland

R v MARLOW [2015] NZHC 1052 [19 May 2015]

Introduction

[1]      Mr Marlow, you appear today for sentencing having been found guilty by a jury of the following four offences, as you are aware:

(a)      One charge of attempting to manufacture the class A controlled drug methamphetamine, the maximum penalty for which is 10 years’ imprisonment;

(b)One  charge  of  possession  of  a  precursor  substance  (hydrochloric acid), which carries a maximum penalty of five years’ imprisonment;

(c)      One charge of possession of equipment to be used for the purposes of manufacturing   methamphetamine,   again   carrying   a   five   year maximum term of imprisonment; and

(d)One charge of possession of material (iodine and sodium hydroxide) to be used for the purposes of manufacturing methamphetamine, and like the other possession charges it carries a five year term of imprisonment.

Facts

[2]      The facts of the case as they appear to me are these.  At approximately 6 am on 17 May 2013 the armed offenders squad arrived at a rural property at 123 Totara Road, Whenuapai as part of a large anti-drug and corruption operation.  The property was tenanted by a Mr Rei who had been identified as having a significant role in methamphetamine manufacture inquiries which had preceded that raid.

[3]      The officers at the scene located you in a shed which was being used as a clandestine laboratory.  You were the sole person in it.  In the shed and its immediate environs the police found a large quantity of pseudoephedrine hydrochloride; significant quantities of waste material, including 10 litres of caustic soda used for extracting  pseudoephedrine  and  20  litres  of  waste  produced  as  a  result  of  that

process; five litres of hydrochloric acid and 394 grams of iodine, both of which are precursor substances.   Various items of equipment used in the manufacture of methamphetamine were also located. Additional equipment was found elsewhere on the property but there is no evidence connecting you to any of that.

[4]     The shed had been used by Mr Rei to manufacture large quantities of methamphetamine on two previous occasions over the preceding month, in respect of which he pleaded guilty to the relevant charges.  You were not alleged to have been involved in those manufactures and the waste products located at the property are, in my assessment, more likely associated with those quite independent manufactures.   The operation interrupted on 17 May was, however, similarly of a commercial scale.  At the time of the police’s arrival, 152 grams of pseudoephedrine hydrochloride had already been extracted and were in the process of drying on a hot plate in the shed in which you were located.   There were sufficient quantities of iodine in the shed to undertake the next phase of the manufacture – conversion of pseudoephedrine into methamphetamine – but one essential ingredient – the hypophosphorous acid — was missing, and no doubt in the process of being sourced by Mr Rei.   As  and  when  the hypophosphorous  acid  was  obtained,  the Crown estimates that Mr Rei  would have manufactured between 74  and  114  grams of methamphetamine, assuming a yield of 50 to 75 per cent.   It was a large scale operation.

Purposes and principles of sentencing

[5]      The purposes and principles of sentencing that are relevant in terms of the sentence I must impose are these.  In any case involving serious drug offending the pre-eminent purposes are to hold the offender accountable, to denounce the conduct and to deter the offender and others from similar offending in the future.  Because of your comparative youth and the absence of previous similar offending, however, rehabilitation and re-integration are also very relevant in this case and accepted as such by the Crown.  In sentencing you today Mr Marlow, I also take into account the gravity of the offending and the degree of your culpability, and that I must impose the least restrictive outcome appropriate.

Multiple offences

[6]      The offences for which you have been found guilty are interconnected in both time and circumstance and I accept the position of both the Crown and the defence that concurrent sentences are appropriate under s 84 of the Sentencing Act 2002.  I intend  to  approach  the  sentencing  on  the  basis  that  the  lead  charge  is  that  of attempted manufacture of methamphetamine.

Establishing a starting point

[7]      So, as your counsel must have advised you, I must start with establishing a starting point.  That requires me to assess your overall culpability while excluding any factors that are personal to you.

Aggravating and mitigating factors of the offending

[8]      In terms of aggravating and mitigating factors of the offending, it is apparent that the manufacturing operation was of a significant scale, sophistication and commerciality.   However, I accept Mr Earwaker’s submission that care must be taken when considering these factors, as there is no evidence that you played any part in developing the manufacturing operation to the commercial scale at which it was conducted.  Nor do I consider there was significant premeditation or planning in your involvement.  These aggravating factors are more appropriately applied to Mr Rei, in my opinion.   I am also conscious of the fact that, to an extent, the commerciality of the operation is reflected in band placement that the authorities require me to undertake.

[9]      The Crown properly concedes that your lesser role mitigates your offending.

Approach to setting the starting point

[10]     I talk about band placement and that is another part of assessing the starting point.  In cases of this kind the High Court is governed by a well known decision

called R v Fatu,1 which is what we call a tariff judgment for manufacturing methamphetamine.   The quantity of methamphetamine that would have been produced had the hypophosphorous acid been obtained and used would have placed this case into the middle of band two of that decision, which applies to quantities of five to 250 grams, and it has attaching to it a range of starting points from four years’ to 11 years’ imprisonment.

[11]  However, as the present case is only an attempt to manufacture methamphetamine, a different approach is required.

[12]     There are two helpful decisions of this Court which are identified in footnotes to the sentencing notes.   One is R v Towgood2  and the other R v Roulston.3     In Towgood, Hansen J first identified the relevant band in Fatu and then he halved the lower and upper starting points of the range.  His Honour then set a starting point based on the halved Fatu range.   His Honour acknowledged an element of arbitrariness in that approach but suggested that it broadly approximated the fact that

the manufacturing process was about half complete.  That seems to me likewise to be the case here with the added rider that completion could not actually occur with the ingredients which were on site at the time the operation was interrupted and when you were actually providing the assistance which is implicit in the jury verdict.

[13]     In the other case I refer to, the Judge first identified a starting point based upon the appropriate level of culpability had the manufacture been successful, which he assessed as three years and nine months and then he reduced that to two years, which was a 43 per cent reduction.

[14]     Although these approaches represent two different methods of arriving at broadly the same point, I prefer the approach set out by Hansen J as it seems to be

better suited to a wider range of cases where the quantity of methamphetamine that

1      R v Fatu [2006] 2 NZLR 72 (CA).

2      R v Towgood HC Whangarei CRI-2005-088-3563, 12 February 2008.

3      R v Roulston HC Rotorua CRI-2007-070-4450, 22 February 2008.

could have been produced may not be so easily determined.   It also takes into account the fact that attempts may vary greatly in both seriousness and criminality.4

[15]     I therefore halve the Fatu band two range to produce an available starting

point of between two to five and a half years’ imprisonment.

Parity with co-offenders

[16]     This is in my assessment a very important consideration in this case.   Mr Marlow, you had three co-offenders, Messers Pakau, Rei and Holloway, all of whom were sentenced by Andrews J.5    The sentencing notes relating to Messers Rei and Holloway are the most relevant to this case.  Both received final sentences of three years for attempted manufacture of methamphetamine relating to these specific circumstances.  Although no starting point was identified for this charge for either

defendant, because the attempt was not the lead charge, it can be deduced from the sentencing notes that the starting points are likely to have been two years and nine months for Mr Holloway and three years for Mr Rei.  Both had previous drug related convictions and both had significantly greater involvement in the operation than I conclude your involvement was.

Setting the starting point

[17]     The Crown recommends a starting point of two to two and a half years’ imprisonment.  Mr Earwaker for the defence recommends a starting point between eighteen months and two years’ imprisonment.  They are very closely aligned as you would expect responsible counsel to be.

[18]     I  have  considered  the  cases  referred  to  me  by  counsel6   with  particular emphasis on the culpability of the various offenders in them and how that sits by comparison  with  the  culpability  of  your  offending.    I  keep  in  mind  that  the

circumstances of your presence, fully dressed in the clan lab at 6 am on a mid-May

4      R v Towgood, above n 2, at [18].

5      R v Pakau [2014] NZHC 3020.

6      R v Evans [2014] NZHC 2612; R v McIntyre [2012] NZHC 1643; R v Stilwell HC Whangarei

morning, has never been explained.  Clearly the jury verdict precludes, I say, “idle curiosity” on your part and I agree with counsel for the Crown that the findings of guilt in relation to the possession charges also preclude an analysis based solely on a

‘lookout’ role, ie you having gone into the shed to forewarn Mr Rei of the approaching van which contained the armed offenders squad officers.  The verdict is consistent with a monitoring role perhaps coupled also with a secondary ‘lookout’ responsibility.

[19]     However, I accept that your involvement was very much subordinate to that of Mr Rei.   Mr Rei was the property’s tenant, he was the initiator of the illegal enterprise, he was the party who assembled the clandestine laboratory and he was the cook on this and the two previous occasions.  You were only ever charged as a party and correctly so. You were never actually on the radar in terms of the operation PAX inquiry.  Indeed, you were unknown to the investigating officers.

[20]     I  conclude  that  your  involvement  was  peripheral  and  nor  is  there  any evidence  that   you  stood  to  gain   financially  from  that  involvement.     That distinguishes the case from many others and, in particular, the decision of Evans7 which has been referred to by both counsel.  The most likely scenario seems to me that your involvement arose out of a developing friendship or association with Mr Rei, initially based on work that you were otherwise doing on the property on motor

vehicles and with the installation of a spa pool, and an association which you sought to reinforce through low-level assistance.  I actually infer an element of naivety on your part.  However, none of that detracts from the fact that assistance of any kind in methamphetamine manufacture, with all the consequences in terms of human misery that results from it, does invite the strong condemnation of the law.

[21]     Having regard to your overall culpability I adopt a starting point of two years’ imprisonment in relation to the charge of attempted manufacture of methamphetamine.  I am in that context particularly mindful of the parity issues with

co-offenders who the Crown agrees were significantly more culpable.

7      Above n 6.

[22]     I cannot identify any personal aggravating features that would warrant an uplift from that.   Although you have a number of previous convictions, they are predominantly for motor vehicle related offences and breaches of community work orders and I agree with both the Crown and defence that they are not relevant for present purposes.

[23]     Mr Earwaker argues that there are a number of mitigating factors personal to you.  You are 27 years old and are a qualified marine electrician.  You have consistently been employed, at first working for others and then self-employed after you set up your own business in 2012.  You have been on bail without incident since your arrest.  You have continued to work up to the time of your initial trial (which could not proceed for health reasons), following which you have been unable to obtain further employment but you have done occasional jobs for friends.  You have also recently completed a refresher course to enable you to renew your practicing licence as an electrician.  The pre-sentence report confirms that you do not have any substance abuse problems with drugs or with alcohol.

[24]     I  do  not  consider  the  factors  identified  by  Mr  Earwaker  as  ultimately qualifying for a discount off the starting point.  I accept that you do appear to be a young  man  of  very significant  potential  which,  of  course,  I  hope  is  ultimately realised.  However, as the pre-sentence report identifies, you have also demonstrated a sense of entitlement at various times of your life. Your record is not such that I can recognise a discount for previous good character and, as Mr Earwaker candidly acknowledges, and Mr Finn agrees, your bail conditions were not as strict as many facing class A drugs charges.

[25]     Nor are you entitled to any discount for remorse because, of course, you continue to deny your offending.   There are no other mitigating personal circumstances that I can identify.

[26]     Accordingly,  I  make  no  adjustment  to  the  starting  point  of  two  years’

imprisonment.

[27]     That, however, puts the subject of home detention very firmly in the frame and home detention is really the most critical issue that I must face in terms of this sentencing today.  You have heard reference to s 6(4) of the Misuse of Drugs Act. That establishes a presumption of imprisonment in relation to manufacturing charges unless there are particular circumstances of the offence or the offender which would indicate that such a sentence of imprisonment is not appropriate.  However, as Mr Earwaker points out, this presumption only applies where the offence was committed in circumstances indicating to the Judge an intention to offend against s 6(1)(c) of that Act, namely where a person intends to supply or administer a controlled drug.

[28]     In the very particular circumstances of this case and having regard to the factual findings which I have made, I do not consider that s 6(1)(c) is engaged.   I cannot  safely  conclude  that  there  was  an  intention  on  your  part  to  supply  or administer  a  controlled  drug.    If  I am  wrong  in  that  conclusion  then  I would, alternatively, as Mr Earwaker invites me to do, rely on the further exception which is recognised in s 6(4) itself, namely that if the particular circumstances of both the offence or the offender mean that a sentence of imprisonment is not appropriate, then I may elect not to impose it.  My view is that the circumstances of the offending, at the very low level that I have identified in my factual findings, is sufficient to engage that exception.

[29]     Section 15A of the Sentencing Act empowers the Court to impose a sentence of home detention where the purpose of the sentence cannot be achieved by any less restrictive sentence and where the sentence would otherwise be a short term sentence of imprisonment.  Section 80A confirms that home detention is an available sentence if the Court is satisfied that the proposed residence is suitable, the occupants understand and consent to the sentence of home detention, and that the offender understands and agrees to the conditions of that sentence.

[30]     Home detention is recognised as a sentence carrying a very considerable measure of denunciation and deterrence.8    It is to be treated as a real alternative to imprisonment9 and the authorities so establish.

[31]     The pre-sentence report identifies you as posing a low risk of harm and a low risk of re-offending, and that you are suitable for a community based sentence.  The report writer recommends a sentence of home detention with community work.

[32]     The proposed address is your mother’s address, where you have lived before your arrest and where you awaited trial and sentencing while on bail.  Your mother is, I am very pleased to observe, highly supportive of you, and she has consented to you staying at that address during a sentence of home detention.  You have also been appraised of and signed all of the necessary papers indicating your willingness to comply with the conditions of home detention, and the address has been deemed suitable.

[33]     The  Crown  considers  the  issue  finely  balanced  but  does  not  ultimately consider itself to be in a position to support a sentence of home detention, having regard to the circumstances of the offending and your personal circumstances.   It says that there is very little to justify a departure from the decision in R v Evans10 to which it refers and which makes it clear that sentences of home detention are very exceptional in this context.

[34]     I consider that the principle distinguishing feature of the R v Evans decision is the fact that there was in that case a finding that this was “a serious attempt at commercial  profit  making”.    I  cannot  safely  conclude  that  you  were  actually involved in commercial aspects of this operation.   As I have said earlier in my sentencing, I believe that this was a case of friendship or association which has taken a further step, which it should never have done, and which has caused you so much

subsequent grief.

8      R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R [2013] NZCA 340 at [29].

9      R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

10     Above n 6.

[35]     Having regard to my assessment of those facts and my consideration of those cases I do consider a sentence of home detention to be appropriate.   I factor in particularly your age, your rehabilitation prospects and your overall culpability, balancing, as I must, the need for denunciation and deterrence and the principle that I should impose the least restrictive outcome that is appropriate.

[36]     The Sentencing Act also provides that I may, in combination with a sentence of home detention, impose a sentence of community work.   A lengthy period of community work is in my view appropriate as part of your reparation to society in relation to these serious offences.

The possession charges

[37]     I deal quickly with the possession charges.   Ordinarily these would attract concurrent sentences in the order of two years imprisonment.   The Crown case against you was based on joint possession with Mr Rei and again I am satisfied that it was Mr Rei who was the party with the primary role in the offending.  In those circumstances a sentence of 18 months imprisonment, would in my view be appropriate on each of those possession charges.  Again home detention is available as an alternative.

Sentence

[38]     Mr Marlow, would you now stand please.

[39]     Mr Marlow, I sentence you to 12 months’ home detention on each of the four charges for which you have been convicted, to be served concurrently.  You are also ordered to complete 200 hours of community work.   You are to comply with the following special conditions:

(a)       You are to travel directly to 56 Maywood Crescent, Glen Eden at the conclusion of the sentencing;

(b)You  are  to  reside  at  56  Maywood  Crescent,  Glen  Eden  for  the duration of the home detention sentence;

(c)       You  are  to  comply  with  the  requirements  of  an  electronically monitored sentence as directed by the probation officer;

(d)You are to abstain from the possession and consumption of alcohol and illicit drugs for the duration of the sentence;

(e)       You  are  to  attend  and  complete  any  assessment,  programme  or counselling if directed and to the satisfaction of the probation officer.

[40]     I  also  impose  a  post-detention  condition  to  attend  and  complete  any assessment,  programme  or counselling if  directed and  to  the satisfaction  of the probation officer.   That condition is in addition to the standard post-detention conditions  provided  for  under  the  Sentencing Act  and  which  your  counsel  will appraise you of.  The special additional condition is to expire 12 months from the end date of your detention.

[41]     Mr Marlow I add just one final comment.  The sentence that I have imposed recognises the significance that I place on your rehabilitation which is in turn based on my assessment of your potential as a young man. Please do not squander that opportunity.  And I encourage you please to be mindful of the fact that anything less than strict adherence to the conditions of your home detention and the requirements of the community work orders that have been imposed can be expected to result in

little sympathy from the Court.

Muir J