R v McCormick HC Auckland CRI 2008-055-3127

[2010] NZHC 809

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-055-3127

THE QUEEN

v

PETER MCCORMICK

Hearing:         13 April 2010

Appearances: N Speir for the Crown

S Cassidy for the Prisoner

Judgment:      13 April 2010

SENTENCING NOTES OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

S Cassidy, PO Box 26172, Epsom, Auckland 1344

R V MCCORMICK HC AK CRI 2008-055-3127  13 April 2010

[1]      Mr McCormick, you appear for sentence today on a number of drug related charges.

[2]     On 17 August 2009 you pleaded guilty to one count of manufacturing methamphetamine, for which the maximum penalty is life imprisonment.  You also pleaded guilty to one count of supplying methamphetamine, for which the maximum penalty is also life imprisonment, a further count of possessing a substance used in the production of methamphetamine for which the maximum penalty is five years imprisonment and one count of money laundering for which the maximum penalty is seven years imprisonment.

[3]      I formally enter convictions against you in relation to those offences.

The Facts

[4]      When   the   police   executed   a   search   warrant   on   your   home   on

18 December 2008 they found a number of snap lock bags containing considerable quantities of ContactNT, six snap lock bags containing a total of approximately

41.6 grams of methamphetamine (having a street value of approximately $41,600), a set of digital weighing scales, a methamphetamine pipe and other similar utensils, a little over $7,000 in cash and several glass methamphetamine pipes.  The amount of ContactNT found at your address contains 638 grams of pseudoephedrine which can be converted to between 319 and 478 grams of methamphetamine.

[5]      Analysis of receipts located at your address showed that some $30,000 had been spent between 26 April and 18 December 2008, $11,800 of which was spent in November  2008  alone.    1582  grams  of  ContactNT  (with  a  minimum  value  of

$56,000) was also purchased.  Your TAB account also showed that over $19,000 had been deposited into it over that April to December period.

[6]     In your interview with police that day you admitted to manufacturing methamphetamine over a period of 12-18 months in increasing amounts.   By the

time of  your last manufacture prior to arrest,  you were producing three lots of

12 grams per “cook”, hoping to sell an ounce (28 grams) for $14,000.  It is known that you manufactured approximately 188 grams of methamphetamine between December 2007 and December 2008.

Pre-sentence Report

[7]      The pre-sentence report dated 15 October 2009 shows that you are a 36 year old father with three children aged 8, 4 and 10 months at that time.  You married the mother of your children early in 2009.  You have been described as a devoted father and husband.  You are currently receiving an unemployment benefit and spend time with your children and helping your stepfather who trains and breeds thoroughbred horses.  You have been involved in community affairs and you have coached a junior team for the Marist Ardmore Rugby Club over the last five or six years and won “Coach of the Year” in 2009.

[8]      You are in good physical and mental health, although drugs have been an issue with you for some time.  You moved from being an occasional user of cannabis at the age of 17 or 18 to trying ecstasy and cocaine in your early 20s and then seven or eight years ago you tried methamphetamine for the first time and subsequently became addicted to it.

[9]      You have said that you began manufacturing methamphetamine for your own use but started selling it to others as your skills improved.  Your principal motivation was money which was needed to maintain your own habit.  You have said that you never used methamphetamine in front of your children and you never manufactured the drug at home, using motel rooms and so on instead.

[10]     You have described P as “an evil drug” and have acknowledged that you have “stuffed up and got a price to pay”.  You have expressed sorrow for the effect of your offending on others and accepted full responsibility for the position you now find yourself in.   You  have said that  you have been clean since  your arrest in December 2008 and you have been assessed as at a low risk of reoffending.

[11]     The presence of your family and friends at the back of the Court today is evidence of the considerable support that you have in the community and the regard in which you are held.

[12]     You have previous convictions for the use of cannabis (1995), possession of cannabis (1995), unlawful interference with a motor vehicle (1994), and receiving stolen property ($500 to $5,000) in 1994.

Crown Submissions

[13]     The Crown has submitted that the manufacturing methamphetamine charge should be taken as the lead charge for which a sentencing starting point in the region of 9 years imprisonment is appropriate.  The Crown also says that an uplift of 2 – 3 years may be warranted to account for the other charges to which you have pleaded guilty and that an appropriate global starting point (which takes account of the totality of your offending) would be between 10 and 12 years imprisonment.  The Crown accepts that the sentences imposed on you for each offence should be served concurrently, provided that account is also taken of the totality of your offending.

[14]     The Crown also accepts that you are entitled to a reduction of 20 to 25 per cent to take account of your guilty plea (which was entered at the depositions stage) and that you are also entitled to receive some credit for your candidness with police during the DVD interview.   This would result, on the basis of the Crown’s submissions, in a total sentence of between 7½ and 9 ½ years.

[15]     The Crown also sought forfeiture orders pursuant to s 32 of the Misuse of

Drugs Act 1975 of:

a)        A Toyota Surf motor vehicle, registration AYJ736; and

b)        All cash (totalling $7,150) found at your address on 18 December.

However, Mr Cassidy advised the Court today that the vehicle was sold some nine months  ago  on  Trade  Me  and  in  light  of  that  the  Crown  does  not  pursue  that particular order.

Defence Submissions

[16]     Your counsel, Mr Cassidy, accepted that the manufacturing charge should be taken as the lead charge but said that the starting point should be in the vicinity of eight years three months for that offence.  He said further that there should be no uplift to reflect the totality of your offending because this is not a case where the evidence obtained by the police does not give a true indication of your level of offending and because although there are discrete offences to which you have pleaded, all are in reality part and parcel of the manufacturing offence.  Mr Cassidy also submits that because manufacturing inherently involves commerciality, it would be effectively double counting to uplift for the sale offence when sale is implicit in manufacturing.

[17]     Mr  Cassidy  essentially  agrees  with  the  Crown  that  there  should  be  a reduction in the end point of between 20 and 25 per cent to reflect your guilty pleas, your modest history of offending (including the fact that you have no convictions for drug dealing offences), the genuine remorse you have shown and the fact that you fully co-operated with police.  On the above basis, Mr Cassidy has submitted that a sentence of between 6 and 7 years imprisonment would be appropriate.

Discussion

[18]     There are certain statutory matters to which I am required by law to have regard when determining your sentence.  I must, through the sentence I impose, hold you  accountable  for  the  harm  you  have  done,  promote  in  you  a  sense  of responsibility, denounce your conduct, deter both you and others from acting in this way, protect the community and provide for the interests of any conceivable victim. I must also, so far as is compatible with these things, assist you in rehabilitation and reintegration into the community.

[19]     In all this I must also have regard to the following sentencing principles: the gravity of the offending, the need to be consistent with other sentences, the need to impose a sentence near to the maximum, should that be warranted.  Equally, though, I must take into account the need to adopt the least restrictive outcome appropriate, the need to take account of anything that would make any otherwise proper sentence disproportionately severe and I am also to have regard to your personal, family and cultural background.

[20]     For you, the aggravating factors are the fact that your offending was clearly both premeditated and serious.   As I have said, it has been calculated that you manufactured approximately 188 grams of methamphetamine between December

2007 and December 2008.   Each of the other charges to which you have pleaded guilty are in themselves serious.

[21]     Although  the  general  harm  done  by methamphetamine  is  implicit  in  the penalty for manufacturing, storing methamphetamine, precursor substances and chemicals inside your house and in an unlocked garage where three young children were living is also an aggravating factor.   Manufacturing the substance in motel rooms necessarily exposed the public to dangerous chemicals and you have also admitted that you dumped the waste from your manufacturing operations on the side of the road or in toilets.

[22]     I  have  already  referred  to  your  previous  convictions  for  drug  related offending, but these are not nearly as serious as the current charges and are also some 15 years old, and so in my view have little or no weight as aggravating factors. I note the Crown does not seek any uplift in that respect.

[23]     On the plus side, and as I have said, you are entitled to credit for your early guilty pleas.  You are also entitled to credit for the remorse that you have shown, although the Courts have said that this is not to be treated as a discrete mitigating factor.[1]

[1] R v Hessell [20009] NZCA 450

[24]     There is evidence of your previous good character.  I have referred to your commitment to the junior Marist rugby team, and the support of your family and friends.

[25]     It   is   common   ground   between   your   counsel   and   the   Crown   that manufacturing 188 grams of methamphetamine falls within what the Courts refer to as the Band 2 category, which generally warrants a sentence of between 4 and

11 years’ imprisonment.[2]   The Courts have also said that the sentence imposed must

reflect not only the quantity of the drug involved, but also the role that a particular offender has played in the manufacturing in question[3].

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

[3] Fatu at [43].

[26]  I have considered other cases involving Band 2 methamphetamine manufacturing in the 188 gram range.   In one[4]the offender was involved in the supply of approximately 170 grams of methamphetamine and also significantly involved in manufacturing.   The High Court there held that the starting point was

10 years imprisonment, given the substantial commercial dealings and the totality of the offending.  After a discount for the early guilty plea the final sentence was seven years imprisonment.

[4] R v Vitali HC Auckland CRI 2005-004-20376

[27]     In another[5]  the offender pleaded guilty to manufacturing methamphetamine, possessing precursor substances and equipment and receiving stolen property.  The methamphetamine manufactured by him was estimated to be between 168 grams and

169 grams.  Again, the offending was held to fall towards the top end of Band 2 and a starting point of nine years imprisonment was adopted, increased by two years for the possession of precursor substances and equipment and by a further one year for receiving.   The total starting point of 12 years imprisonment was then reduced by

45 per cent to reflect the particular mitigating factors in that case.

[5] R v Patten HC Auckland CRI 2006-004-3200

[28]     In a case that went to the Court of Appeal[6]the offenders were convicted of manufacturing in excess of 174 grams of methamphetamine, possessing equipment and precursor substances and failing to answer bail.  The Court of Appeal held that a

seven year starting point was too low and endorsed a starting point toward the upper end of Band 2, namely nine years.   A reduction in the final sentences again took account of mitigating factors.

[6] R v Smith [2008] NZCA 175

[29]     On the basis of the submissions I have heard and the authorities to which I have referred I adopt a starting point of nine years imprisonment but with an uplift of one year to take account of the totality of the offending, which is also intended to take account of the submissions made by Mr Cassidy in this respect and to be consistent with the approach taken in some of the cases I have just referred to.   I agree with both counsel that you are entitled to a significant discount for your guilty plea and I also take into account the remorse you have expressed to date, together with the fact that you have been assessed at a low risk of reoffending.

[30]     In formal terms, the sentence of the Court will be seven years and six months imprisonment on the charge of manufacturing methamphetamine.  Sentences of nine months imprisonment on the supply charge, two years six months imprisonment on the possession of precursor substances charge, and one year and six months imprisonment for the money laundering charge are to be served concurrently.

[31]     In the light of Mr Cassidy’s advice as to the sale of the Toyota vehicle I am unable to make a forfeiture order in that respect but I do make such an order in relation to all cash found at your address on 18 December 2008.

[32]     Mr McCormick, I believe Mr Cassidy when he said that you should not be written off and that there is hope for the future.   I can only hope that you will eventually be able to pick up the pieces of your life.

[33]     Stand down please.

Rebecca Ellis J