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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Marlow

Details

AGLC: R v Marlow [2015] NZHC 1052
Case: [2015] NZHC 1052
Decision Date: 19 May 2015

CaseChat Overview and Summary

Samuel Granich Marlow was found guilty of four drug-related charges, including attempting to manufacture methamphetamine, possessing precursor substances, and possessing equipment for manufacturing methamphetamine. The court considered the purposes and principles of sentencing, focusing on accountability, denunciation, and deterrence. The court recognised the commercial scale and sophistication of the manufacturing operation but noted Marlow's peripheral involvement and lack of significant premeditation. The court assessed a starting point of two years' imprisonment, considering the culpability of co-offenders who received lesser sentences. The court found no personal aggravating factors and dismissed personal mitigating factors due to Marlow's denial of guilt and lack of remorse. The court concluded that home detention was appropriate, balancing rehabilitation prospects, culpability, and the need for denunciation and deterrence. The court imposed a sentence of 12 months' home detention and 200 hours of community work on each charge, to be served concurrently, with special conditions including electronic monitoring, abstinence from alcohol and drugs, and mandatory counselling. The court emphasised the importance of Marlow's rehabilitation and warned against any breach of the home detention conditions.

Orders