R v Martin

[2012] NZHC 2381

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-004750 [2012] NZHC 2381

THE QUEEN

v

LEON GEOFFREY MARTIN

Charges:         Permitting premises to be used for the purposes of manufacturing methamphetamine x1;

possession of a pre-cursor substance for the manufacture of methamphetamine x1;

possession of equipment for the purpose of manufacturing methamphetamine x 1

Plea:               Guilty

Hearing:         14 September 2012

Appearances: M R Walker for Crown

P J Kaye for Prisoner

Sentenced:     14 September 2012

Permitting premises to be used – 2 years 7 months imprisonment; Possession of equipment and pre-cursor substances – 1 year’s imprisonment on each (concurrent).

Total sentence:  2 years, 7 months’ imprisonment

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            P J Kaye, Auckland

R V MARTIN HC AK CRI-2010-092-004750 [14 September 2012]

[1]      Leon  Geoffrey Martin  you  appear  for  sentence  having  pleaded  guilty  to charges of permitting premises to be used for the purposes of manufacturing methamphetamine, being in possession of a pre-cursor substance for the manufacture of methamphetamine and being in possession of equipment for the purpose of manufacturing methamphetamine.

[2]      The maximum sentence on the charge of permitting premises to be used is 10 years’ imprisonment.    The  charges  in  respect  of  the  pre-cursor  substances  and equipment carry a maximum of five years’ imprisonment in each case.

[3]      Mr Smyth was a suspect in a major police operation aimed at locating and detecting the manufacture and supply of methamphetamine.  The police concluded that he was using your address at 222 Ness Valley Road, Clevedon to manufacture methamphetamine.  On 31 March 2010 the police executed a search warrant at your address.  They found a large amount of industrial chemicals used in the manufacture of methamphetamine, including toluene, hydrochloric acid, iodine, caustic soda and acetone.   They also found a large amount of equipment used to manufacture methamphetamine, including a water distiller, condenser, a metal condenser containing traces of pseudoephedrine and chlorpheniramine, glass condensers, equipment to make a par bomb, reduction flasks, vacuum pumps and other pieces of equipment for the manufacture of methamphetamine.  All contained the residue of the drug and had clearly been used for it.

[4]      The substances and equipment were found at various places throughout the house. There was also a set of scales and zip lock bags.

[5]      In addition there was a .22 calibre pistol wrapped in a tee-shirt on a kitchen bench.  Rounds of ammunition were also found in the property.

[6]      Mr Smyth was charged with manufacturing methamphetamine but ultimately was discharged during trial.

[7]      The Crown submit that, in the case of your offending, having regard to the aggravating features a starting point of three to three and a half years’ imprisonment is appropriate.  Mr Kaye submits a starting point of nearer two and a half years is appropriate.

[8]      In sentencing you I am required to have regard to the purposes and principles of the Sentencing Act 2002.   Particularly in this case the relevant purpose is to ensure your accountability for the harm done to the community.   People who manufacture methamphetamine need to find places to do it.   They need to find people like you who are willing to make the places available to them.  Without that, it would be more difficult for them.  You have to realise your role in providing your home for the manufacture of methamphetamine has added to the availability of that drug in the community. You need to accept responsibility for and acknowledge that.

[9]      It is also necessary for the Court to denounce and deter the conduct you have been involved in.

[10]     The particularly relevant purposes are to have regard to the seriousness of the type of offending which is reflected in the maximum penalty Parliament has prescribed and your degree of culpability in this case.

[11]     Importantly I am also required to consider other sentences so that there is a degree of consistency amongst the sentences imposed in this area.  There is no tariff decision in relation to this offending.

[12]     I accept the Crown submission that the manufacturing operation carried out on your property was a commercial one.  That accords with the Court of Appeal’s comments  and  observations  in  R  v  Fatu.[1]      The  difficulties,  expense  and  risks involved in manufacturing methamphetamine make it inherently unlikely that an operation  is  set  up  just  to  produce  drugs  for  personal  consumption.    There  is generally always a commercial reason for it.  I note the Crown estimate that using the quantity of pseudoephedrine found on the property approximately 133 grams of

methamphetamine could be produced.  I accept however there is force in Mr Kaye’s

submission that such an extrapolation is somewhat artificial.  Nevertheless I accept that your place, your home, was used for a commercial operation.

[1] R v Fatu [2006] 2 NZLR 72 (CA) at [42].

[13]     There is also the additional feature of this firearm. As discussed with counsel I acknowledge that you have been discharged in relation to the count of possession of a firearm.  I do not sentence you as though you had possession of it.  Nevertheless the presence of the firearm at the property simply underlies the commerciality and seriousness of the general operation that you permitted to be carried out at your property.

[14]     I  have  had  regard  to  the  cases  counsel  have  discussed:    R  v  Grant;[2]

R v Smith;[3]   R v Brown;[4]   and R v Lorigan[5] which took starting points of between two years, six months and three years, six months depending on the particular circumstances of the case.

[2] R v Grant HC Auckland CRI-2008-009-1219, 4 December 2008.

[3] R v Smith HC Auckland CRI-2010-057-1017, 22 February 2011.

[4] R v Brown HC Auckland CRI-2007-057-1032, 8 May 2008.

[5] R v Lorigan HC Auckland CRI-2010-404-1742, 29 November 2011.

[15]     In light of the circumstances of your offending, having regard to the totality of your offending, namely the need to sentence you in relation to the precursor and equipment charges as well, and my assessment of this overall operation, I take as a start point two years nine months’ imprisonment.

[16]     In relation to your personal situation you are 40 years old, you have no children, and have never married.  You are an experienced dairy farmer and have spent your life working in that industry.  You were working as a farm hand at the time of this offending.  While you do have a reasonably lengthy criminal history I accept it is for unrelated offending.  A large amount of it is dated now.   I do not propose to apply any uplift because of that previous offending.

[17]     I also accept Mr Kaye’s submissions that as a consequence of your offending in this case you have effectively lost everything.

[18]     Your explanation to the probation officer is that this was poor decision- making by you.  You say you got caught up in the excitement of it and thought the co-offender’s lifestyle looked glamorous.

[19]     There is nothing arising from the report Mr Martin which would suggest that this Court should apply any further discount in relation to your personal circumstances.

[20]     The last matter for the Court to consider is your guilty plea.  You are entitled to a credit for the guilty plea you have entered but you have to accept that in this case there are three features that reduce that credit.

[21]     The first is that you did not attend the first trial and as a consequence the community has incurred the further expense of the other appearances and further scheduled retrial.

[22]     The guilty plea also was late in the piece.   Even after the reduced charges were presented in March you only pleaded on 31 July, just immediately prior to the trial that was due to start.

[23]     Finally, the Crown case against you, it has to be said, was exceedingly strong and it is likely that your guilty pleas simply recognised the inevitability of what you were facing.

[24]     In those circumstances I am not able to accept Mr Kaye’s submission that a

reduction of 10 per cent is appropriate but I accept that something between five and

10 per cent is available.

[25]     Mr Martin would you please stand.

[26]   On the charge of permitting premises to be used you are sentenced to imprisonment  for  two  years  seven  months.    On  the  charge  of  possession  of equipment and pre-cursor substances you are imprisoned for one year in each case. That   is   concurrent.      The   effective   sentence   is   two   years,   seven   months’ imprisonment.

[27]     There  will  be  an  order  for  forfeiture  of  all  the  drug  related  equipment, materials,  pre-cursor  substances  and  the  firearm  and  ammunition  found  at  the

property. That’s all, stand down.

Venning J