R v Moran
[2018] NZHC 3250
•11 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-11344
[2018] NZHC 3250
THE QUEEN v
DUANNE JAMES MORAN
Hearing: 11 December 2018 Appearances:
K Li for Crown
N P Chisnall for Defendant
Judgment:
11 December 2018
SENTENCING REMARKS OF LANG J
R v MORAN [2018] NZHC 3250 [11 December 2018]
[1] Mr Moran, you appear for sentence on a representative charge of permitting premises to be used for the manufacture of methamphetamine,1 and a representative charge of supplying methamphetamine.2 You entered guilty pleas after I gave you a sentence indication on 23 October 2018.3
[2] The facts on which you are to be sentenced were set out in my sentence indication and I do not propose to repeat them here. My sentence indication will be attached to these remarks and form part of them. In short, you and your partner, Ms Verdonk, permitted a person by the name of Mr Griffiths to manufacture methamphetamine at your address on 13 separate occasions between January and June 2017. In return, you received money or drugs. Mr Griffiths eventually left the address after you and Ms Verdonk expressed your displeasure at the state of the premises due to his use of them.
[3] I selected a starting point of two years nine months imprisonment on the charge of permitting premises to be used for the manufacture of methamphetamine. I then added an uplift of three months to reflect the fact that on several occasions you supplied methamphetamine to others. I infer that you sourced the methamphetamine from Mr Griffiths. I am also satisfied that you are likely to have used the proceeds of any sale to purchase opiates for your own use.
[4] I then reduced the sentence by nine months to reflect guilty pleas. This amounted to a reduction in the order of 25 per cent. The Crown accepted that a reduction of that order was appropriate. This left me with a sentence of two years three months imprisonment before taking into account other mitigating factors.
[5] I have now received an extremely detailed report from a psychiatrist. I have also received a helpful pre-sentence report. Both of these are consistent in stating your background and current position. You had an extremely troubled youth. You lived in a series of foster homes throughout your childhood and adolescent years. This led to
1 Misuse of Drugs Act, ss 12(1) and 12(2)(a) (maximum penalty ten years imprisonment).
2 Misuse of Drugs Act, ss 6(1)(c) and 6(2)(a) (maximum penalty life imprisonment).
3 R v Griffiths, Verdonk & Moran [2018] NZHC 2733.
difficulties for you on a number of fronts. I am satisfied that it led virtually directly to the situation you now find yourself in.
[6] Disturbingly, the report confirms that you began using cannabis at about five years of age. Later on, you began using morphine and, virtually immediately, it appears you became addicted to it. I have no doubt that the difficult circumstances of your early years led directly to the fact that you are now a drug addict.
[7] Thankfully, you and Ms Verdonk have signed up to a methadone programme. You have now been drug-free for approximately 12 months. In addition, you have been on bail subject to an overnight curfew since February 2018. You have not breached the terms of your bail on any occasion. All of these factors can be taken into account in selecting both the length and nature of the sentence to be imposed on you.
[8] From the starting point of two years three months imprisonment, I propose to apply a reduction of three months, or around ten per cent, to reflect the rehabilitative efforts you have made over the last 12 months. I apply a further discount of three months to reflect the fact that you come from a very difficult background and this has contributed directly to your offending. Although this is probably a mitigating factor in relation to the offending itself, I apply it at this stage as a personal mitigating factor because I have already selected a starting point for your offending.
[9] This means your sentence is reduced to one of one year nine months imprisonment. As a result, you are eligible for a sentence of home detention.
[10] Ordinarily, offending this serious would result in a sentence of imprisonment. That is particularly so where it is suggested that you will serve a sentence of home detention at an address also occupied by your co-offender. In the present case, however, I am satisfied for several reasons that a sentence of home detention is appropriate. First, you have been able to show that you can comply with stringent bail conditions over a lengthy period. Secondly, you and your partner have supported each other over the last 12 months in remaining drug-free. Thirdly, you are now on a programme that will enable you to remain drug-free in the future. In some senses, Mr Moran, this offending has been the saviour of you provided you accept the
opportunity it provides. It enables you to set yourself on a path that will enable you to remain drug-free in the future.
Sentence
[11] On the charge of permitting premises to be used for the purpose of manufacturing methamphetamine, you are sentenced to ten months home detention. On the remaining charges you are sentenced to three months home detention. All of those sentences will be served concurrently. This means you will serve an effective sentence of ten months home detention.
[12] The conditions of your sentence are to be those set out under the heading “Option 1” at the conclusion of the pre-sentence report. In short, these require you to go immediately to your nominated address and there await the arrival of a monitoring representative. You will then serve a sentence of ten months home detention at that address. You will only be permitted to leave the address for pre-approved appointments.
[13] To avoid any doubt, should there be any outstanding charges that the Crown has not yet withdrawn, the Crown is offering no evidence on those charges. You will be discharged on them under s 147 of the Criminal Procedure Act 2011.
[14]Stand down.
Lang J
Solicitors:
Kayes Fletcher Walker, Manukau N P Chisnall, Barrister, Auckland
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
THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-11344 [2018] NZHC 2733
THE QUEEN
v
DAVID ROBERT GRIFFITHS CATRINA JOSINA VERDONK DUANNE JAMES MORAN
Hearing: 23 October 2018
Appearances: N Fletcher and K Li for Crown
J S Kovacevich for Mr Griffiths J-A Kincade for Ms Verdonk
N P Chisnall for Mr Moran
Judgment: 23 October 2018
SENTENCE INDICATION OF LANG J
[1] Mr Griffiths faces 19 charges of manufacturing methamphetamine4 and one representative charge of supplying methamphetamine.5 Ms Verdonk and Mr Moran each face a representative charge of permitting premises to be used for the manufacture of methamphetamine6 and a representative charge of supplying methamphetamine.7 Each now seeks a sentence indication. This is an indication of the sentence the Court would impose in the event that guilty pleas were entered in the near future. If a defendant elects not to accept the indication and proceed to trial, he or she will be sentenced if convicted on the facts as the trial Judge finds them to be.
The charges
[2] The charges arise out of a lengthy police investigation known as Operation Ardmore. This involved enquiries made by the police over the period between January and September 2017. During this period they discovered Mr Griffiths had been involved in manufacturing methamphetamine on no fewer than 19 separate occasions. He used five addresses in wider Auckland to carry out the manufactures, the first 13 occasions at a rural address in Swanson between January and June 2017. On each occasion, he either manufactured the methamphetamine himself or with the assistance of his partner.
[3] The Swanson property is owned by Mr Moran and Ms Verdonk. They permitted Mr Griffiths to use the property for the manufacture of methamphetamine on 13 occasions. Mr Griffiths ceased using the address in June 2017 after they became displeased with the state the address was left in as a result of Mr Griffiths’ activities. Mr Griffiths then moved to an address in Glenfield, where he manufactured methamphetamine in late July 2017. He then manufactured methamphetamine at addresses in Castor Bay and Sunnyvale in August 2017. Those addresses were inspected by a forensic clandestine laboratory team. It was discovered that swabs
4 Misuse of Drugs Act 1975, ss 6(1)(b) and 6(2)(a) (maximum penalty life imprisonment).
5 Misuse of Drugs Act, ss (1)(c) and 6(2)(a) (maximum penalty life imprisonment).
6 Misuse of Drugs Act, ss 12(1) and 12(2)(a) (maximum penalty ten years imprisonment).
7 Misuse of Drugs Act, ss 6(1)(c) and 6(2)(a) (maximum penalty life imprisonment).
taken from the addresses returned high readings consistent with the manufacture of methamphetamine having taken place there.
[4] Mr Griffiths then moved to an address in Awhitu, where he manufactured methamphetamine on three occasions during August and September 2017. When the police terminated the operation, they discovered Mr Griffiths present at the address and in the process of manufacturing methamphetamine. The police discovered three pyrex saucepans containing methamphetamine that was in the process of being manufactured. It is agreed for present purposes that the total dry weight of this methamphetamine would be 772.8 grams. In addition, the police found 704.5 grams of crystallised methamphetamine in two containers. This had obviously been manufactured at the address previously. This means the police found a total quantity of 1.4773 kilograms of methamphetamine at the address.
[5] The police are unable, for obvious reasons, to ascertain the quantity of methamphetamine manufactured on the occasions to which the first 18 charges relate. However, the police discovered photographs of laboratory equipment used at the Swanson address. These had apparently been taken by Mr Griffiths. The equipment depicted in the photographs is the same as that located when the police searched the Awhitu address. It included items typically associated with the large-scale manufacture of methamphetamine, including a 25 litre still and a 20 litre three-neck reaction vessel.
[6] In addition, the police found a 25 kilogram drum of iodine inside a caravan at the Awhitu property. Iodine is commonly used to convert pseudoephedrine into methamphetamine. It is a valuable commodity, and sells for around $2,000 per kilogram on the domestic black market. The Crown contends that 25 kilograms of iodine could be used to produce between 10.5 and 15.75 kilograms of methamphetamine.
[7] The police also found 20 litres of hypophosphorous acid at a storage unit rented by Mr Griffiths. This is also a very valuable commodity. The Crown estimates it could have been used to produce approximately 20 kilograms of methamphetamine.
[8] Mr Griffiths generally used web-based applications for communicating with others. These could not be intercepted by recognised means of surveillance. However, other intercepted communications established that he had supplied an unknown amount of methamphetamine to various associates on at least 25 occasions between 22 July and 21 September 2017.
[9] The police also analysed communications on Mr Moran’s cellphone. These showed that he supplied, or offered to supply, small quantities of methamphetamine to unknown associates on approximately 13 occasions between 9 February and 17 March 2017. The Crown can prove that the amount supplied or offered for supply on four occasions totalled 0.8 of a gram. The police were unable to ascertain from the remaining communications what quantity of drugs was being supplied or offered.
[10] An analysis of Ms Verdonk’s cellphone showed that she supplied or offered to supply methamphetamine to unknown associates on approximately 18 occasions between 8 February 2017 and 1 July 2017. On 11 of these occasions, the Crown can establish that at total of 5.75 grams of methamphetamine was supplied or offered. It is not possible to establish what quantity was being offered or supplied on the remaining eight occasions.
Starting point
Mr Griffiths
[11] There is no real dispute between the Crown and counsel for Mr Griffiths regarding the starting point to be selected in relation to the manufacturing charges. The Crown suggests that a starting point of around 16 years imprisonment would be warranted for the last occasion on which Mr Griffiths was found in possession of 1.4773 kilograms of methamphetamine. It submits an uplift of around two and a half years imprisonment is appropriate to reflect the remaining charges.
[12] I consider the Crown has adopted an extremely conservative approach. The amount manufactured on the last occasion, coupled with the quantities of precursor substances found in Mr Griffiths’ possession at that time, indicate he had built up a substantial manufacturing operation. Even allowing for a period during which
Mr Griffiths acquired experience, it is highly likely that very large quantities of methamphetamine were produced on earlier occasions.
[13] Both counsel have referred me to several authorities in which the Court has dealt with offenders who have manufactured methamphetamine in large quantities and on numerous occasions.8 In addition, I have considered the sentences imposed on methamphetamine cooks employed by Mr Brownie Harding in a series of cases in Northland recently. These demonstrate that, where offenders have produced large quantities of methamphetamine on numerous occasions, a starting point well in excess of 20 years is appropriate.9 Although I am prepared to accept the starting point by the Crown of 18 years six months imprisonment to reflect Mr Griffiths’ culpability on all charges, I consider that to be very much at the lowest end of the available range and should not be taken as a precedent in other cases.
Aggravating factors
[14] In terms of aggravating factors, Mr Griffiths received a sentence of imprisonment for manufacturing methamphetamine in 2013. On that occasion, he was sentenced to five years and five months imprisonment. He was on parole when the present offending began. That is a very significant aggravating factor. It demonstrates that Mr Griffiths is a determined offender, and a substantial sentence of imprisonment has not deterred him from becoming involved again in the manufacture and supply of methamphetamine. The Crown suggests an uplift of 18 months imprisonment to reflect this factor. I am prepared to apply that uplift, but again consider it to be at the lowest end of the available range. This produces an end sentence of 20 years imprisonment before taking into account mitigating factors.
Mr Moran and Ms Verdonk
[15] The Crown suggests an appropriate starting point for Mr Moran and Ms Verdonk of around three years imprisonment. Their counsel suggest the starting point lies between two years six months and three years imprisonment.
8 R v Bell [2017] NZHC 2975; R v Allen [2016] NZHC 445; R v Rhodes [2009] NZCA 486.
9 R v Hura [2016] NZHC 777; R v Rodgers [2016] NZHC 1103; R v Mangu [2016] NZHC 1104; R v Keogh [2016] NZHC 508 at [20].
[16] In a case where an owner or occupier of premises vacates the premises for a brief period of time to enable a single manufacture of methamphetamine to occur the appropriate starting point will be around two years imprisonment. In the present case, however, the starting point must be significantly higher than that. The offending occurred over a period of two to three months, and both Mr Moran and Ms Verdock were fully aware of what was happening. In addition, they supplied methamphetamine that had been manufactured at their premises. In those circumstances, I consider the minimum starting point to be one of two years nine months imprisonment. That reflects only the culpability in relation to the lead charge of permitting premises to be used for the manufacture of methamphetamine.
[17] In the case of Mr Moran, I would apply an uplift of three months to reflect the supply charges, although they would easily attract a starting point of around 12 to 15 months on a standalone basis. In the case of Ms Verdonk, I would apply an uplift of six months to reflect greater quantities she has supplied.
[18] The Crown does not suggest there should be an uplift to reflect previous offending in relation to either Mr Moran or Ms Verdonk. This means the end starting point for Mr Moran is one of three years imprisonment, whilst that in relation to Ms Verdonk is three years three months imprisonment.
Mitigating factors
[19] The Crown agrees that all three defendants indicated a desire to obtain a sentence indication at a very early stage. Their trial is not scheduled to take place until mid-2019. For that reason the Crown accepts a discount of 25 per cent is warranted in each case to reflect guilty pleas. This results in Mr Griffiths receiving a sentence of 15 years imprisonment, whilst that in relation to Mr Moran is two years three months imprisonment. Ms Verdonk would receive an end sentence of two years five months imprisonment.
[20] As I advised counsel during the hearing today, there may be other mitigating factors the Court can take into account. These could only properly be considered at sentencing when supporting material will be available. For that reason, if guilty pleas were entered by Mr Moran and Ms Verdonk, I would direct that home detention
appendices should be obtained, although in Ms Verdonk’s case she may not be able to bring herself within the two year threshold for a sentence of home detention.
Minimum term
[21] In the ordinary course of events, Mr Griffiths would be required to serve just five years of his sentence before being eligible to apply for parole. Given his previous convictions and the scale of the present offending, I consider that would be manifestly insufficient to reflect the sentencing principles set out in s 86 of the Sentencing Act 2002. For that reason I would order Mr Griffiths to serve one-half of his sentence before being eligible to apply for parole.
Lang J
Solicitors:
Kayes Fletcher Walker, Manukau
6
0