R v McQuade
[2022] NZHC 559
•25 March 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-419-79
[2022] NZHC 559
THE QUEEN v
ALAN CLINTON McQUADE
Hearing: 25 March 2022 Appearances:
J Hamilton and K Whyte for the Crown S Lance for Mr McQuade
Sentencing:
25 March 2022
SENTENCE OF GAULT J
Solicitors / Counsel:
Ms J Hamilton and Mr K Whyte, Hamilton Legal, Office of the Crown Solicitor, Hamilton Mr S Lance and Ms K Hogan, Barristers, Auckland
R v McQUADE [2022] NZHC 559 [25 March 2022]
[1] Mr McQuade, you have pleaded guilty to four charges following a sentence indication I gave you on 9 February 2022:1
(a)manufacturing methamphetamine;2
(b)supplying methamphetamine;3
(c)participating in an organised criminal group;4 and
(d)possessing material for the manufacture of methamphetamine.5
[2] I will annex the sentence indication to my sentencing remarks, but it is necessary to repeat some of it given the public nature of sentencing.
Facts of the offending
[3]I begin by setting out the facts of your offending.
Manufacture of methamphetamine
[4] On 28 October 2018, police attended 107 Horrell Road, a large rural property located on the outskirts of Morrinsville. On the property was a residential dwelling with multiple sheds, outbuildings, and small structures in a cluster some distance from the house.
[5] Police attempted to locate the occupier of the property, Donald Armstrong. They approached the outbuildings and observed a number of items consistent with the manufacture of the Class A controlled drug methamphetamine, including reaction vessels, chemical containers and glassware.
[6]A short time later, police located Mr Armstrong on the property.
1 R v McQuade [2022] NZHC 129.
2 Misuse of Drugs Act 1975, s 6(1)(b). Maximum penalty life imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty life imprisonment.
4 Crimes Act 1961, s 98A. Maximum penalty 10 years’ imprisonment.
5 Misuse of Drugs Act 1975, s 12A(2)(a). Maximum penalty five years’ imprisonment.
[7] A specialist team from the Clandestine Laboratory Unit was called in to examine the sheds and outbuildings. During their search, they located a secret room disguised by a false wall and false fittings.
[8] An extensive selection of equipment used in the manufacture of methamphetamine was located in the outbuildings. This included five large parbombs, a steam condenser, five water-filled condensers, four steel distillers, eight hotplates/gas burners and glassware, including separators, 15 reaction flasks, vials and tubing.
[9] The search also uncovered materials used in the manufacture of methamphetamine – 12 kilograms of sodium hydroxide, 5 litres of hypophosphorous acid, and 8.7 kilograms of iodine. In addition, police located 10 litres of the precursor substance hydrochloric acid. A small amount (.934 milligrams) of ephedrine was located in two small bags in the shed area.
[10] The National Clandestine Laboratory Team observed that the clandestine laboratory was the largest commercial clandestine laboratory they had processed that calendar year.
[11] Numerous containers with small amounts of methamphetamine, small snaplock bags, electronic scales, and measuring straws were located at the scene. Product containing traces of methamphetamine was detected in many of the items of equipment located at the scene, as were traces of the various materials and precursors used in the manufacture process.
[12] Analysis of swabs taken from surfaces in the back workshop indicated a level of methamphetamine consistent with manufacture having occurred in that area. By-products of the manufacturing process were also identified on one of the swabs.
[13] A swab taken from the inside mouth area on a respirator located in the clandestine laboratory was analysed and a mini-STR DNA profile was obtained. The majority of the DNA detected in the sample using a mini-STR DNA test appeared to originate from one individual. There was an indication of a very small amount of
DNA from a second individual. However, the additional DNA was not suitable for meaningful comparison purposes.
[14] Statistical analysis provided extremely strong scientific support for the proposition the DNA recovered from the swab originated from you and one other person.
[15] No methamphetamine or by-product from the manufacture of methamphetamine was located on the respirator.
[16] Police inquiries revealed that Mr Armstrong, together with you and a third person, had been involved in the manufacture of commercial quantities of methamphetamine in and around the outbuildings at the property.
[17] The amount of methamphetamine manufactured cannot be quantified through contemporaneous telephone communications or forensic analysis because the manufactures occurred prior to any police investigation commencing.
Participating in an organised criminal group
[18] In late December 2019, the Waikato Police Organised Crime Squad commenced an investigation focused initially on your involvement in the manufacture and supply of methamphetamine. That investigation was codenamed Operation Kingsville.
[19] As a result of the investigation, police uncovered a core group of people based in the Waikato area operating an organised and lucrative drug dealing business with a primary focus on the large-scale manufacture and distribution of methamphetamine.
[20] There followed a covert phase of the operation involving the interception of the private communications, including text messages and voice calls, of a number of individuals identified as part of the criminal group.
[21] It became apparent that you were careful in terms of your communications regarding illicit activity. However, occasionally you would depart from the usual
course and discuss matters relating to the criminal activities of the group in a manner that was guarded and coded.
[22] You were identified as having a close association with a number of members of the group. Police identified a particularly close relationship between you and Ray Tyler-Waugh, who was actively engaged in the prolific manufacture and supply of methamphetamine from at least early March to late May 2020.
[23] In early May 2020, intercepted communications revealed that you arranged for your associate, Leslie Sunnex, to make a property at Pukemoremore Road, Cambridge available to Mr Tyler-Waugh and his assistants Gabrielle Liefting-Bull, Peter Henderson and Hemi Paul. They used it for the purpose of manufacturing methamphetamine.
[24] You visited the property on repeated occasions and communicated with Mr Tyler-Waugh while the group operated there.
[25] While preparations were made for the manufacture of methamphetamine at the property, you gave the group both a water pump (which was for general use at the property and was not successfully installed) and a heat wrap.
[26] Methamphetamine was manufactured in the garage at the address on at least one occasion. You were not involved in the manufacturing process, other than as I have already set out.
Supplying methamphetamine
[27]On 26 May 2020, you met with Mr Tyler-Waugh at a mutual friend’s property.
[28] That evening, you contacted your associate Ryann Simpson and told him you could “probably help him out”. The two of you arranged to meet in Hamilton at a service station on Kahikatea Drive. Shortly after, you met Mr Simpson as arranged and supplied him with approximately one ounce of methamphetamine.
Possessing material for the manufacture of methamphetamine
[29] On 27 May 2020, Mr Tyler-Waugh arranged to meet you at a storage unit you leased at 25 Sunshine Avenue, Hamilton.
[30] At the storage facility, you unlocked and opened your unit, allowing access to Mr Tyler-Waugh. Mr Tyler-Waugh left the unit carrying a large cardboard drum containing approximately 50 kilograms of iodine.
[31] Prior to the meeting, Mr Tyler-Waugh had asked you to bring your “savings”. While at the unit, you took a cardboard box containing $97,400 from your vehicle and gave it to Mr Tyler-Waugh.
[32]The meeting was recorded on CCTV cameras at the storage facility.
[33] Mr Tyler-Waugh then left the storage facility in his vehicle. After leaving, he contacted you requesting a telephone number for his “mate” who could arrange a property for the manufacture of methamphetamine. You gave him Mr Simpson’s telephone number.
[34] Mr Tyler-Waugh then contacted Mr Simpson asking whether he was able to organise a property to manufacture methamphetamine. During subsequent communications, Mr Tyler-Waugh advised Mr Simpson he had to leave the Pukemoremore property and needed somewhere safe.
[35] Police tried to apprehend Mr Tyler-Waugh while in possession of the iodine and cash. An officer in a marked police vehicle fell in behind Mr Tyler-Waugh before activating red and blue flashing lights while sounding the police siren. Mr Tyler- Waugh initially pulled over but then accelerated away at speed. The manner of his driving was such that the police pursuit was abandoned due to the risk posed to other road users.
[36] During the pursuit, Mr Tyler-Waugh contacted Mr Simpson and Ms Liefting- Bull and told them about the pursuit. Mr Simpson then phoned you and discussed the “chase” before asking you whether Mr Tyler-Waugh would have “all that shit on him”.
You responded: “I would say so”. Mr Simpson then enquired why manufacturing could not continue at the Pukemoremore address, and you indicated issues had arisen as a result of Mr Henderson being arrested by police. You and Mr Simpson discussed steps to be taken to assist Mr Tyler-Waugh to avoid apprehension. You asked Mr Simpson to “keep [you] posted”.
[37] Mr Tyler-Waugh was arrested together with Ms Liefting-Bull, Mr Simpson and Jane Paki in Morrinsville later that day.
[38] Mr Tyler-Waugh’s vehicle, Ms Liefting-Bull’s vehicle and a motel room rented by the pair in Morrinsville were searched by police. Along with a significant amount of precursors, equipment, and materials used in the manufacture of methamphetamine, police recovered a large drum containing 51.5 kilograms of iodine in Mr Tyler- Waugh’s vehicle. The cardboard box containing the cash you gave Mr Tyler-Waugh was located in a motel unit rented by Mr Tyler-Waugh and Ms Leifting-Bull.
[39] In the early hours of 29 May 2020, police executed a covert search warrant of your storage unit at 25 Sunshine Avenue. They located a second cardboard drum containing approximately 48.9 kilograms of iodine.
[40] The next day, you returned to the storage facility and removed the remaining iodine from your unit.
Post-arrest conduct
[41] Following the termination of Operation Kingsville, you were held at the Spring Hill Correctional Facility. During a recorded prison call, you instructed Max Savage, a member of the criminal group, to “question” someone you considered was likely to have assisted the police investigation. Discussions then followed regarding steps to be taken to ensure the job was done “thoroughly”.
[42] While still in custody, you became aware Mr Armstrong had provided a statement to police alleging you were involved in manufacturing methamphetamine at Horrell Road. Once while you were in the high security medical bay cell, you wrote graffiti on four walls of the cell calling Mr Armstrong a “nark”.
[43] Further graffiti found in the cell suggested a bounty on Mr Armstrong’s “head”. You deny doing the graffiti.
Approach to sentencing
[44] In terms of my approach to sentencing,6 I will first set a starting point which reflects the nature and circumstances of your offending, adjusted up or down to incorporate aggravating and mitigating features of the offending. This adjusted starting point is then further adjusted to take into account aggravating and mitigating factors personal to you, as well as your guilty pleas.
[45] I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.7 In drug offending, the relevant purposes of sentencing include: to hold you accountable for harm done to the community; to promote a sense of responsibility for and acknowledgement of that harm; to denounce the conduct; to protect the community; to deter you and other persons from committing the same or a similar offence; and to assist in your rehabilitation and reintegration. I must also take into account the need for consistency between sentences for similar offending, and the need to impose the least restrictive sentence that is appropriate in the circumstances.
Starting point
[46] I turn to the starting point for your offending. As I said in the sentence indication, the most serious offending is the charge of manufacturing methamphetamine. The Court of Appeal’s guideline judgment for methamphetamine related offending provides five bands for this offending, reflecting the quantity of the drug involved.8 Culpability is measured first by the quantity of the drug, and second, by the offender’s role in the offending – whether it is a leading, significant or lesser role. Your offending falls within band 3 of the guideline judgment.9 Band 3 captures offending involving between 250 and 500 grams of methamphetamine and sets a starting point range of six to 12 years’ imprisonment.
6 As set out by the Court of Appeal in Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
7 Sentencing Act 2002, ss 7 and 8.
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
9 At [125].
[47] Given that your actions were financially motivated, I considered that your role in the offending was “significant”.10 I set a starting point of eight years’ imprisonment on the manufacturing charge. I then uplifted this by two years, having regard to your other charges as well as totality. As a result, I indicated an overall starting point of 10 years’ imprisonment. I confirm that this remains appropriate.
Personal aggravating and mitigating factors
[48] I now consider whether the starting point should be adjusted to recognise any aggravating and mitigating factors personal to you.
[49] Looking at your personal aggravating factors, you have several 2008 convictions for manufacturing and supplying methamphetamine, for which you were sentenced to 14 years’ imprisonment. At the indication, your counsel, Mr Lance, submitted that an uplift of nine months (or 7.5 per cent) should be applied to take this into account. I accepted that was appropriate.
[50] In terms of personal mitigating factors, I have already indicated you are entitled to a discount of 25 per cent for your guilty pleas.
[51] Mr Lance also submits that other mitigating circumstances – deprivation in your upbringing, mental health and addiction – may justify a further discount of up to 30 per cent based on the material contained in the reports that have been prepared. In addition to the standard pre-sentence report, I have read the cultural report prepared by Mr Jacobsen,11 and the alcohol and drug assessment report prepared by Mr Brooking. I have also read your personal poem and references on your behalf.
Personal background
[52] It is well-established that an offender’s personal background of deprivation or trauma can warrant a discount where there is a causal nexus with the offending. This does not require the Court to be satisfied that those matters are a proximate cause of
10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].
11 Sentencing Act 2002, s 27.
the offending.12 If there is persuasive evidence showing a causal nexus, the Court needs to balance this with the purpose and principles of sentencing.13 Social, cultural and/or economic deprivation can justify a discount for an offender sentenced for methamphetamine offending.14 The Courts have generally given discounts in the range of 10 to 30 per cent where an offender’s deprivation contributed causatively to their offending.15
[53] You are now 48 years old. Your own account of your childhood in your poem is that your father left when you were four, and you went to live with him and his second wife when you were seven. Your father was never home, and you were stuck with your stepmother and two older stepbrothers who you did not get on with. She beat you. At twelve, you and your father left to live with his third wife, who you found even worse. Soon they were both gone. You were using drugs and alcohol to take away the pain and make you feel free. You write that inside you is “a boy battling his past”.
[54] Mr Jacobsen’s report includes a detailed narration of interviews with you, your partner and your adult son. You recount that your parents had a dysfunctional and violent relationship. [REDACTED.] After your father left, you moved with your mother up north for six months and lived in a bus, before moving to your father’s. Physical and psychological abuse followed. You ran away numerous times. When your father left with his third wife, you stayed with a family friend in Whangamata and were encouraged into drinking and marijuana, which became everyday use. This continued in Tokoroa. You hung around people using drugs. Your mother smoked marijuana too and you told Mr Brooking that she was an alcoholic.
[55] Mr Jacobsen considers that your dysfunctional relationship with your father in particular has defined your identity. He neglected you by often leaving others to look after you, not intervening in your stepmother’s abuse and allowing you to engage in alcohol and drugs without boundaries or supervision. He was an alcoholic. You had
12 Carr v R [2020] NZCA 357 at [64].
13 See Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [38]-[39].
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [137].
15 See for example Paul v Police [2015] NZHC 2583 at [83]; Green v Police [2019] NZHC 2565; Waho v R [2020] NZCA 526; Heta v R [2012] NZCA 267; Poi v R [2020] NZCA 312; Minogue v R [2020] NZCA 515; and Kreegher v R [2021] NZCA 22.
no supportive role models, love or encouragement. This has led to anxiety and depression, and Mr Lance’s reference to your mental health. You describe yourself as being at war with your emotions, often experiencing anger, impulsivity and low self- esteem. You said that your upbringing turned you into a people-pleaser, you want others to like you, which has taken you in directions you should never have taken.
[56] School was not a positive experience either. You were in survival mode and say maybe you had a learning disability. You left school at age 12 or 13. You only properly learned to read and write 20 years later in prison. As your poem indicates, you now use expressive writing as an outlet.
[57] Based on these accounts, Mr Jacobsen considers that trauma is at the root of your offending.
[58] Most of this account of your childhood is self-reported, rather than the subject of persuasive evidence. But I accept that your family circumstances and relationships were dysfunctional, and that disadvantage would have affected you deeply and led you on the path to alcohol and drug use. That is also corroborated by your minor offending as a teenager.
[59] You reported to Mr Brooking that you can’t turn your mind off and only sleep two or three hours a night. His testing was strongly suggestive of post-traumatic stress disorder. He said a number of factors may be contributing to a potential diagnosis, including the childhood trauma you have described. Another factor contributing to a possible diagnosis is the subsequent head injury you have described. I have not seen any medical report about that.
[60] Even though there is limited corroboration, the Crown does not take issue with the information about your background. I accept there is a sufficient link between your disadvantaged upbringing and the choices you made in relation to alcohol and drugs that ultimately led to your offending.
[61] I will deal with your drug issue next, and need to avoid double counting. Leaving that aside for now, I consider a discount of 15 to 20 per cent is appropriate for your disadvantaged upbringing.
Addiction
[62]The Court of Appeal in the guideline decision said that an offender’s addiction
– where this is supported by evidence – can be grounds for a discount of up to 30 per cent.16 Addiction that is not causative of the offending is unlikely to mitigate an offender’s culpability.17 Commercial dealing is likely to be inconsistent with any drug-related impairment of the offender’s ability to exercise rational choice, which would lessen their culpability and justify discounting the sentence.18 However, the Court of Appeal did not rule out the possibility that a discount could be applied in those circumstances.
[63] You self-referred to Alcohol Drug Assessment & Counselling (ADAC). Mr Brooking’s assessment canvasses many of the same matters as the cultural report, including how alcohol and drugs were normalised and encouraged in your youth. You said that you started binge drinking at age 12 and first tried methamphetamine at 19 and were soon using it on a daily basis. You told Mr Jacobsen that you stopped drinking at age 23 but found a replacement in methamphetamine, after the break up of your marriage with two young children. You said you became addicted quickly, using it as an escape. Your accounts vary as to whether you were using half a gram or three to four grams daily. Methamphetamine disconnected you further, but pulled you into negative friendship circles where buying and selling methamphetamine allowed you to maintain your habit. This continued for almost 10 years until you went to jail following your 2006 offending.
[64] After your release in 2014, you say you avoided methamphetamine for nearly three years until you relapsed following the 2017 death of your father – who you were finally connecting with – and were drawn to associates from prison. You said you became involved providing precursors as you could not afford to buy
16 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].
17 At [147].
18 At [147].
methamphetamine. You said you were using a gram a day from then on. The report writers consider this progressed into your present offending, including involvement in manufacturing methamphetamine as part of a criminal enterprise. When reflecting on your offending to the pre-sentence report writer, you said, “drug[s] brought people to me, a feeling of acceptance”. You also report that you used cannabis occasionally to help you sleep, and that you have tried other drugs occasionally.
[65] The ADAC assessment concludes that you meet the Diagnostic & Statistical Manual (or “DSM”) IV criteria for cannabis and methamphetamine dependence and the DSM V criteria for a severe substance abuse disorder. It recommends treatment.
[66] I accept that your addiction was causative of your offending and that a discount is appropriate. But, as Ms Hamilton submitted, addiction was not apparently an issue in the years between 2014 and 2017 until your relapse. It is also accepted that your offending progressed to manufacturing methamphetamine as part of a criminal enterprise and your role in the enterprise was “significant”. It was, at least partly, financially motivated, not limited to funding your own addiction. In the circumstances, I consider a discount of only five to 10 per cent is appropriate.
[67] Given the overlap with your upbringing, I consider a combined discount of 25 per cent is appropriate.
Rehabilitation prospects
[68] I turn to your prospects of rehabilitation. Mr Jacobsen’s report indicates that only recently have you been able to articulate the trauma you have described in your childhood. You have also described subsequent head injuries. You now recognise the benefit of addressing trauma through counselling, and the need for transformative and holistic change. That includes addressing your substance abuse. Your rehabilitation process has started but you acknowledge it is very disjointed so far.
[69] I accept you are committed to engaging in rehabilitation. It is not too late. You have positive loving family relationships and want to be a good father, strengthening the relationships in your life that your addiction and offending have sabotaged. You have encouraging letters of support. You are intelligent, generous,
have a strong work ethic and, importantly, have insight into the issues you face. You set good long-term goals for yourself: breaking away from your anti-social influences, addressing your trauma and addiction, gaining employment, and prioritising your family.
[70] The pre-sentence report writer considers that you have good prospects of rehabilitation and that participation in relevant programmes will reduce your likelihood of offending.
[71] I consider that a further reduction of five per cent is appropriate for your prospects of rehabilitation.
COVID-19 effect
[72] Mr Lance also submits that in the COVID-19 environment, it is relevant that prisoners are only out of their cells for one hour a day. Rather than a factor specific to you that would make an otherwise appropriate sentence disproportionately severe, that applies to all sentences in the current environment, for health-related reasons. Whether and how long that continues is dependent on the COVID-19 situation. It does not warrant a discrete discount.
Total discounts
[73] Offset against the uplift of 7.5 per cent for your previous convictions, the discounts of 25 per cent for your guilty pleas, 25 per cent for your disadvantaged upbringing and addiction and 5 per cent for your prospects of rehabilitation, totalling 55 per cent, result in a net discount of 47.5 per cent.
Conclusion
[74] From an adjusted starting point of 10 years’ imprisonment, the net discount is four years and nine months, which reduces your end sentence to five years and three months’ imprisonment.
Minimum period of imprisonment
[75] The Crown submits that a minimum period of importation is required for the purposes of denunciation of your offending, deterrence and protection of the community.
[76] Mr Lance submits that a minimum period of imprisonment is not required. He acknowledges that a minimum period of 40 per cent is consistent with the periods imposed on your co-offenders, but submits that your sentence already serves the purpose of denouncing your offending and you are no longer any danger to the community. He highlights the Court of Appeal’s statement in the guideline decision that minimum periods of imprisonment should not be imposed as a matter of routine.19
[77] Knowing participation in a commercial scale drug operation is a material factor in considering an MPI.20 That applies here. However, your prospects of rehabilitation weigh against the need for an MPI. But you have had the benefit of a circuit breaker before and in all the circumstances I consider an MPI of 40 per cent, that is 25 months, is required for the reasons given by the Crown.
Result
[78]Mr McQuade, please stand.
[79] On the charges of manufacturing methamphetamine and supplying methamphetamine, I sentence you to five years and three months’ imprisonment.
[80] On the charge of participating in an organised criminal group, I sentence you to two years and six months’ imprisonment.
[81] On the charge of possessing material for the manufacture of methamphetamine, I sentence you to 15 months’ imprisonment.
[82]These sentences are all to be served concurrently.
19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].
20 At [263].
[83]I impose a minimum period of imprisonment of 25 months.
[84]Please stand down.
Gault J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-419-79
[2022] NZHC 129
THE QUEEN v
ALAN CLINTON McQUADE
Hearing: 9 February 2022 Appearances:
J Hamilton and K Whyte for the Crown
S Lance and K E Hogan for the Defendant
Sentence Indication:
9 February 2022
SENTENCE INDICATION OF GAULT J
Solicitors / Counsel:
Ms J Hamilton and Mr K Whyte, Hamilton Legal, Office of the Crown Solicitor, Hamilton Mr S Lance and Ms K Hogan, Barristers, Auckland
R v McQUADE [2022] NZHC 129 [9 February 2022]
[1]Mr McQuade seeks a sentence indication on the following charges:
(a)manufacturing methamphetamine;21
(b)supplying methamphetamine;22
(c)participating in an organised criminal group;23 and
(d)possession of material for the manufacture of methamphetamine.24
Facts of the offending
[2]The summary of facts agreed for the sentence indication is as follows.
Manufacture of methamphetamine
[3] On 28 October 2018, police attended at 107 Horrell Road, a large rural property located on the outskirts of Morrinsville.
[4] Situated on the property was a residential dwelling with multiple sheds, outbuildings, and small structures in a cluster some distance from the house.
[5] Attending police officers attempted to locate the occupier of the property, Donald Armstrong.
[6] While looking for him they approached the outbuildings and observed a number of items consistent with the manufacture of methamphetamine including reaction vessels, chemical containers and glassware.
[7] Specialist police units were called and a short time later police located Mr Armstrong on the property.
21 Misuse of Drugs Act 1975, s 6(1)(b): maximum penalty life imprisonment.
22 Misuse of Drugs Act 1975, s 6(1)(c): maximum penalty life imprisonment.
23 Crimes Act 1961, s 98A: maximum penalty 10 years’ imprisonment.
24 Misuse of Drugs Act 1975, s 12A(2)(a): maximum penalty five years’ imprisonment.
[8] A specialist team from the Clandestine Laboratory Unit was tasked with examining the scene and that examination was conducted over a two day period. The predominant focus of the search was the cluster of sheds and outbuildings. During the course of the search a secret room disguised by a false wall and false fittings was located.
[9] An extensive selection of equipment used in the manufacture of methamphetamine was located in the outbuildings, including five large parbombs, a steam condenser, five water-filled condensers, four steel distillers, eight hotplates/gas burners and glassware, including separators, 15 reaction flasks, vials and tubing.
[10] The search also uncovered materials used in the manufacture of methamphetamine being 12 kilograms of sodium hydroxide, 5 litres of hypophosphorous acid, and 8.7 kilograms of iodine.
[11] In addition, police located 10 litres of the precursor substance hydrochloric acid. A small amount (.934 milligrams) of ephedrine was located in two small bags in the shed area.
[12] The National Clandestine Laboratory Team observed the clandestine laboratory located at Horrell Road was the largest commercial clandestine laboratory they had processed that calendar year.
[13] Numerous containers with small amounts of methamphetamine, small snaplock bags, electronic scales, and measuring straws were located at the scene.
[14] Product containing traces of methamphetamine was detected in many of the items of equipment located at the scene, as were traces of the various materials and precursors used in the manufacture process.
[15] Swabs were taken from a number of surfaces in a back workshop including lights above two work benches and a wall above a desk. Analysis indicates a level of methamphetamine present on those swabs consistent with manufacturing having
occurred in that area. By-products of the manufacturing process were also identified on one of the swabs.
[16] A swab taken from the inside mouth area on a respirator located in the clandestine laboratory was analysed and a mini-STR DNA profile was obtained. The majority of the DNA detected in the sample using a mini-STR DNA test appeared to originate from one individual. There was an indication of a very small amount of DNA from a second individual however the additional DNA was not suitable for meaningful comparison purposes.
[17] Statistical analysis provided extremely strong scientific support for the proposition the DNA recovered from the swab originated from Mr McQuade and one other person.
[18] No methamphetamine or by-product from the manufacture of methamphetamine was located on the respirator.
[19] Subsequent enquiries by police revealed that Mr Armstrong, together with the defendant Mr McQuade and a third person, had been involved in the manufacture of commercial quantities of methamphetamine in and around the outbuildings at the Horrell Road property.
[20] The amount of methamphetamine manufactured cannot be quantified by way of contemporaneous telephone communications or forensic analysis, the manufactures having taken place prior to any police investigation commencing.
Participating in an organised criminal group
[21] In late December 2019 the Waikato Police Organised Crime Squad commenced an investigation focused initially on Mr McQuade’s involvement in the manufacture and supply of the Class A controlled drug methamphetamine.
[22]That investigation was codenamed Operation Kingsville.
[23] As [a] result of the investigation, police uncovered a core group of people based in the Waikato area operating an organised and lucrative drug dealing business with a primary focus on the large-scale manufacture and distribution of methamphetamine.
[24] There followed a covert phase of the investigation involving the interception of the private communications including text messages and voice calls of a number of individuals identified as being part of the criminal group.
[25] During that part of the investigation it became apparent that Mr McQuade was careful in terms of his communications regarding illicit activity, however, on occasions he would depart from the usual course and discuss matters relating to the criminal activities of the group in a manner that was guarded and coded.
[26] Mr McQuade was identified as having a close association with a number of members of the group. Police identified a particularly close relationship between the defendant and Ray Tyler-Waugh who was actively engaged in the prolific manufacture and supply of methamphetamine from at least early March to late May 2020.
[27] In early May 2020, intercepted communications revealed that Mr McQuade arranged for his associate, Leslie Sunnex, to make a property at Pukemoremore Road, Cambridge available to Mr Tyler-Waugh and his assistants Gabrielle Liefting-Bull, Peter Henderson and Hemi Paul, who used it for the purpose of manufacturing methamphetamine.
[28] Mr McQuade visited the property on repeated occasions and communicated with Mr Tyler-Waugh while the group operated there.
[29] While preparations were made for the manufacture of methamphetamine at the property Mr McQuade provided the group with both a water pump (which was for general use at the property and was not successfully installed) and a heat wrap.
[30] Methamphetamine was manufactured in the garage at the address on at least one occasion. Mr McQuade was not involved in the manufacturing process, other than as set out above.
Supplying methamphetamine
[31] On 26 May 2020 the defendant [Mr] McQuade met with Mr Tyler-Waugh at a mutual friend’s property.
[32] That evening, Mr McQuade contacted his associate Ryann Simpson and advised he could “probably help him out”. The two arranged to meet in Hamilton at a service station on Kahikatea Drive.
[33] Shortly thereafter the defendant [Mr] McQuade met Mr Simpson as arranged. During the transaction that followed, Mr McQuade supplied Mr Simpson with approximately one ounce of methamphetamine.
Possession of material for the manufacture of methamphetamine
[34] On 27 May 2020 Mr Tyler-Waugh arranged to meet Mr McQuade at a storage unit leased by Mr McQuade at 25 Sunshine Avenue, Hamilton (“the storage facility”).
[35] At the storage facility Mr McQuade unlocked and opened his unit allowing access to Mr Tyler-Waugh. Mr Tyler-Waugh left the unit carrying a large cardboard drum containing approximately 50 kgs of iodine.
[36] Prior to the meeting, Mr Tyler-Waugh asked Mr McQuade to bring “his savings”. While at the unit, Mr McQuade took a cardboard box containing $97,400 from his motor vehicle and provided it to Mr Tyler-Waugh.
[37]The meeting was recorded on CCTV cameras at the storage facility.
[38]Mr Tyler-Waugh then left the storage facility in his motor vehicle.
[39] After leaving the storage facility, Mr Tyler-Waugh contacted Mr McQuade requesting a telephone number for his “mate” who could arrange a property for the
manufacture of methamphetamine. Mr McQuade responded, providing him Mr Simpson’s telephone number.
[40] Mr Tyler-Waugh then contacted Mr Simpson enquiring whether he was able to organise a property to manufacture methamphetamine from. During the course of subsequent communications, Mr Tyler-Waugh advised Mr Simpson he had to leave the Pukemoremore property and needed somewhere safe.
[41] A decision was made by police to try and apprehend Mr Tyler-Waugh while in possession of the iodine and cash. A police officer in a marked police vehicle fell in behind Mr Tyler-Waugh before activating red and blue flashing lights while sounding the police siren. Mr Tyler-Waugh initially pulled over but then accelerated away at speed. The manner of his driving was such the police pursuit was abandoned due to the risk posed to the other road users.
[42] During the pursuit, Mr Tyler-Waugh contacted Mr Simpson and Ms Liefting- Bull advising them of the pursuit.
[43] Mr Simpson then telephoned Mr McQuade and discussed the “chase” before asking Mr McQuade whether Mr Tyler-Waugh would have “all that shit on him”. The defendant responded: “I would say so”. Mr Simpson then enquired why manufacturing could not continue at the Pukemoremore address and Mr McQuade indicated issues had arisen as a result of Mr Henderson being arrested by police. Mr Simpson and Mr McQuade discussed steps to be taken to assist Mr Tyler-Waugh to avoid apprehension and Mr McQuade asked Mr Simpson to “keep me posted”.
[44] Mr Tyler-Waugh was arrested together with Ms Liefting-Bull, Mr Simpson and Jane Paki in Morrinsville later that day.
[45] Mr Tyler-Waugh's vehicle, Ms Liefting-Bull’s vehicle and a motel room rented by the pair in Morrinsville were searched by police. Along with a significant amount of precursors, equipment, and materials used in the manufacture of methamphetamine, in Mr Tyler-Waugh’s vehicle police recovered the large drum containing 51.5 kgs of
iodine. The cardboard box containing the cash referred to above was located in a motel unit rented by Mr Tyler-Waugh and Ms Leifting-Bull.
[46] In the early hours of 29 May 2020 police executed a covert search warrant of Mr McQuade’s storage unit at 25 Sunshine Avenue, Hamilton.
[47] Located within the unit rented by Mr McQuade was a second cardboard drum containing approximately 48.9kgs of iodine.
[48] The following day Mr McQuade returned to the storage facility and removed the remaining iodine from his unit.
Receipts for the purchase of gold
[49] While searching Mr McQuade’s home at Waitetuna Valley Road during the termination phase of Operation Kingsville, police located three tax invoices from New Zealand Gold Merchants Limited. Two of the tax invoices related to transactions on 4 December 2017. One of the tax invoices related to a transaction on 25 January 2018.
[50] Police enquiries revealed the corresponding purchases had been made by Mr Sunnex.
[51]On 4 December 2017 Mr Sunnex purchased 10 x 10 ounce gold bars for
$190,600 in two transactions. He made payments of $100,000 and $95,300 in cash and was provided $4,700.00 cash in change.
[52] On 25 January 2018 Mr Sunnex purchased 9 x 100 gram gold bars ($54,877.50) and 3 x 1 ounce gold bars ($5,689.50) for a combined cost of $60,567. The notation “$60,000.00 cash” is handwritten on the tax invoice.
[53] Both invoices for the transactions referred to above were made out to Des Johnathan. Police enquiries revealed Mr Sunnex had used the pseudonym “Des Johnathan” when undertaking the transactions and represented to the salesperson that he was purchasing gold and silver for his daughters.
[54] In addition to the transactions recorded on the tax invoices located at Mr McQuade’s home, Mr Sunnex made further purchases from New Zealand Gold Merchants Limited on 13 June 2018 (gold and silver bars) and 24 May 2019 (gold bars).
[55] Mr McQuade does not accept he had any involvement in the purchases made by Mr Sunnex.
[56] Police recovered 25 x 1 kg bars of silver and 3 x 10 ounce ingots of silver from the boot of one of Mr McQuade’s motor vehicles in the days following the termination of Operation Kingsville in July 2020.
Post-arrest conduct
[57] Following termination of Operation Kingsville Mr McQuade was held at the Spring Hill Correctional Facility.
[58] During a recorded prison call, Mr McQuade instructed Max Savage, a member of the criminal group, to “question” an individual Mr McQuade considered was likely to have assisted the police investigation. Discussions then followed regarding steps to be taken to ensure the job was done “thoroughly”.
[59] While still in custody, Mr McQuade became aware Mr Armstrong had provided a statement to police alleging Mr McQuade was involved in the manufacture of methamphetamine at Horrell Road.
[60] On an occasion while Mr McQuade was in the high security medical bay cell he wrote graffiti on four walls of the cell identifying Mr Armstrong as a “nark”.
[61] Further graffiti found in the cell suggested a bounty on Mr Armstrong's “head”. Mr McQuade denies that graffiti is attributable to him.
Approach to sentence indications
[62] A sentence indication is a statement by the Court that, if the defendant pleads guilty, the Court would or would not be likely to impose on the defendant a sentence
of a particular type, within a specified range, or of a particular quantum.25 It is intended to provide clarity and certainty around the actual jeopardy a person faces if he or she pleads guilty.26
[63] A sentence indication is not the same as a sentencing. In particular, the Court does not have all the information that would be available at sentencing. Nevertheless, subject to that important limitation, the sentence indication can follow the same approach as a sentencing.
[64] The approach is first to determine a starting point for the offending, adjusted up or down to incorporate aggravating and mitigating features.27 This adjusted starting point is then further adjusted for aggravating and mitigating factors personal to the defendant, as well as any guilty plea.28
[65] I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.29 In drug offending, the relevant purposes of sentencing include: to hold you accountable for harm done to the community; to promote a sense of responsibility for and acknowledgement of that harm; to denounce the conduct; to protect the community; to deter you and other persons from committing the same or a similar offence; and to assist in your rehabilitation and reintegration. I must also take into account the need for consistency between sentences for similar offending, and the need to impose the least restrictive sentence that is appropriate in the circumstances.
Starting point
[66] The lead offending is the charge of manufacturing methamphetamine. The associated offences are to be taken into account in assessing the overall starting point.
25 Criminal Procedure Act 2011, s 60.
26 Taylor v R [2013] NZCA 55 at [17].
27 The Court of Appeal used the term adjusted starting point “to signify that it incorporates all aggravating and mitigating features of the offending”: Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [6].
28 Moses at [46].
29 Sections 7-8.
[67] The Court of Appeal guideline judgment for methamphetamine-related offending is Zhang v R.30 There are five bands for methamphetamine offending in the guideline decision,31 reflecting the quantity of the drug involved in the offending. Culpability is measured first by the quantity of the drug, and second, by the offender’s role in the offending, whether it is a leading, significant or lesser role.
[68] Ms Hamilton for the Crown submits the following aggravating features are present:
(a)planning and premeditation given the location and modification of the property – although not directly involved in that, this indicates a significant degree of care by the joint venturers;
(b)scale of offending – given the equipment and materials located; and
(c)commerciality – while total quantity cannot be determined, the steps taken indicate the offending involved a significant amount of methamphetamine produced for supply.
[69] Mr Lance submits these features are inherent in any case of manufacture. That may go too far but I consider these features are better factored into the assessment of the Zhang bands. Ms Hamilton submits a starting point in band 3 is appropriate given the size of the laboratory even though the quantity cannot be determined with certainty. Band 3 captures offending involving between 250 and 500 grams of methamphetamine. Mr Lance accepts that Band 3 is appropriate, that is, you admit involvement in manufacturing of that quantity. In this band, the starting point ranges from 6 to 12 years’ imprisonment.
[70] Given the financial motivation, the Crown submits your role was significant. Mr Lance accepts that – accepting it was not a lesser role but nor was it a leading role. I agree your role was significant in the Zhang sense.
30 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
31 At [125].
[71] The Crown seeks a starting point of eight years’ imprisonment for the lead offending, whereas Mr Lance proposes seven years’ imprisonment. For the lead offending of manufacturing methamphetamine, I set a starting point of eight years’ imprisonment.
[72] The Crown seeks an uplift of three years’ imprisonment, taking the adjusted starting point to 11 years, to reflect the subsequent offending, the totality of your offending and having regard to the sentencing of your co-offender Mr Tyler-Waugh, where an overall starting point of 15 years was adopted. Ms Hamilton acknowledges, however, that the evidence against him indicated a substantially greater involvement in the actual manufacture and supply.
[73] Mr Lance submits a lower uplift is appropriate with a total starting point of nine years’ imprisonment.
[74] Having regard to the other offending as described, and totality, I consider an uplift of two years’ imprisonment is appropriate, increasing the adjusted starting point to ten years imprisonment.
Personal aggravating and mitigating factors
[75] Turning to personal aggravating features, you have previous convictions for the manufacture and supply of methamphetamine, among others. Mr Lance submits the sentence you received was a surprise, but in any event an uplift of at least nine months (that is, 7.5 per cent) is appropriate.
[76] You are entitled to credit for your guilty plea. Your counsel submits at least 25 per cent. That is usually the maximum where a plea is entered early. Normally a plea at this late stage would receive only a modest discount, but here there would be a significantly amended charge notice in a case with some history and difficult features and Ms Hamilton acknowledges the desirability of resolution given the uncertainty associated with a lengthy trial in the current COVID-19 climate. Given the Crown’s acknowledgments in the unusual circumstances of this case, I allow a full 25 per cent discount.
[77] Any other personal mitigating factors, such as those mentioned by Mr Lance, are to be addressed at sentencing.
Minimum Period of imprisonment
[78] The Crown submits a minimum term of imprisonment is warranted but Ms Hamilton acknowledges that that may be better assessed at sentencing once your personal circumstances are more fully known. I agree.
Conclusion
[79] With an adjusted starting point of ten years’ imprisonment, an uplift for previous convictions of 7.5 per cent and a guilty plea discount of 25 per cent, totalling a net 21 months, the indicated end sentence would be eight years and three months’ imprisonment, which may well be further reduced by other discounts for your personal background and other circumstances, such as addiction if supported by persuasive evidence.
[80]As proposed, this sentence indication has effect until expiry tonight.
Gault J
3