R v Morris HC Auckland CRI 2004-090-246

[2005] NZHC 1697

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-090-246

THE QUEEN

v

ANTHONY DAVID MORRIS

Hearing:         25 February 2005 Appearances: D A Bell for Crown

M A Kennedy for Prisoner

Sentence Imposed:     2003 charges:

Manufacturing Methamphetamine 3 years imprisonment

Possession of equipment to manufacture Methamphetamine 1 years imprisonment

Manufacturing cannabis oil 1 years imprisonment Possession of pipes

6 months imprisonment Possession of Methamphetamine 6 months imprisonment

2004 charges:

Failure to complete community work 6 months imprisonment

Possession of precursor substances 6 months imprisonment

All concurrent sentences

Possession equipment to manufacture Methamphetamine 1 year cumulative

Effective Sentence: 4 years imprisonment Fines remitted of $11,662

Judgment:      25 February 2005

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland Counsel:

M A Kennedy, PO Box 6955, Auckland

R V MORRIS HC AK CRI 2004-090-246 [25 February 2005]

[1]    Anthony David Morris, you have pleaded guilty to a number of charges arising out drug related offending in October 2003 and October 2004 respectively. The charges on which you appear for sentence today are manufacture of Methamphetamine, possession of equipment to manufacture Methamphetamine, manufacture of cannabis oil, possession of pipes, possession of Methamphetamine, possession of precursor substances and also a failure to complete community work, there being two charges in that regard.

[2]    On the charges of possession of equipment to manufacture Methamphetamine, one arose out of the offending in October 2003 and the other in 2004. The failure to complete community work and possession of precursor substance charges arose out of the 2004 offending also.

[3]    I will be sentencing you on the basis of the manufacture of Methamphetamine, being the lead charge. That is the most serious charge you face.  It carries a maximum term of life imprisonment. That should, in itself, indicate the seriousness with which the Courts must approach offending of that nature.

[4]    In addition, I must have regard to the fact that the October 2004 offending occurred while you were on bail for the other charges. That must be relevant to the length of imprisonment I have to impose.

[5]    The 2003 offending came to light during a search of premises occupied by you and your de facto spouse in October 2003. In the garage were located a number of bottles of chemicals and other agents, being chemicals required for the manufacture of Methamphetamine. Various types of equipment consistent with the manufacture of precursor substances and Methamphetamine were also located.  In the house itself, two point bags of Methamphetamine, two glass pipes for consuming Methamphetamine, a glass bowl containing cannabis oil, cannabis plant and a glass bowl containing Methamphetamine residue were also located.

[6]    In October 2004, a further warrant was executed. During the course of that search a number of glassware items were located in a locked shed consisting of

breakers,  glass  dishes  and   funnels,  possessing   a  strong  chemical  smell.     The chemicals were consistent with those used for the manufacture of Methamphetamine.

[7]    Ms Bell for the Crown, has submitted that the primary sentencing goals I should apply in this case are the need to hold you accountable for the harm done to the community, to promote in you a sense of responsibility for your offending and to denounce the offending and deter you and others of like mind from offending in this way in the future.

[8]    The intention of Parliament when reclassifying Methamphetamine as a Class A controlled drug and increasing the maximum term of imprisonment available for that crime to life imprisonment was to reflect how seriously Parliament regarded the damage caused to society through the use and manufacture of Methamphetamine.

[9]    I must also be mindful of the desirability of consistent sentencing  levels while also endeavouring to impose the least restrictive outcome to promote rehabilitation and reintegration into the community in due course.

[10]   Ms Bell submitted that imprisonment was the only option. I agree. Effectively, the provisions of the Sentencing Act and s6(4) of the Misuse of Drugs 1975 require me to sentence you to a term of imprisonment.

[11]   The aggravating features in this case to which Ms Bell referred were the level of premeditation, the pernicious nature of the drug Methamphetamine, offending in the garage and home environment carrying the risk of injury to young people out of the mix of chemicals that was potentially occurring and your previous history in relation to drug offences. All of those aspects have relevance as aggravating  features. In the context of this case, the potential for injury to occur from some sort of explosion when mixing together chemicals of a toxic nature is something I regard as quite important to deter.

[12]   You have pleaded guilty to the charges, after depositions but before trial, and you are entitled to a generous credit for that.

[13]   Ms Kennedy has submitted that the most important sentencing goal should be rehabilitation and that this was in the lowest category of commercial manufacture of Methamphetamine. She submits that a relatively short sentence of imprisonment is appropriate and also asks for fines totalling $11,662 to be remitted.

[14]   She emphasised to me that the items found during the course of the 2004 search were items that you previously had, rather than newly acquired items. I propose to give you the benefit of the doubt on that issue and to sentence you on the basis that this was equipment which, while not disclosed to the Police at the time of the initial arrest, was available to you.

[15]   I have already gone through the issues relating to the purposes of sentencing and the aggravating features. In my view, having regard to the aggravating features in this case an appropriate starting point for sentence in respect of the 2003 offending is one of 4 years imprisonment. I intend to allow a credit of 25% to represent the guilty plea so the lead sentence on the 2003 offending will be one of 3 years imprisonment.

[16]   The 2004 offending must be marked separately however because it did occur while on bail. I take account of the circumstances in which  you had the equipment  in fixing a starting point of 18 months imprisonment rather than the level of starting point I used for 2003 sentencing. I allow a credit of one-third for an early guilty plea meaning that the sentnece to be imposed on those charges will be effectively 1 year imprisonment.

[17]   The total sentence you will serve will be a cumulative sentence of the 3 years imprisonment plus the 1 year, making 4 years imprisonment. I am satisfied that that reflects the totality of the offending overall.

[18]   I also intend to remit the fines that you have incurred. I am of the view that you do not need a reason to go out and manufacture drugs when you come out of jail to pay fines. This is an opportunity to have a clean slate and it means that you can, when you get out of jail, try to live a law abiding life without worrying about how

you are going to pay the fines that are outstanding. I have taken that into account in fixing the period of imprisonment that has been imposed.

[19]The structure of the sentence I impose will be as follows:

a)On the charge of manufacturing Methamphetamine you will be sentenced to 3 years imprisonment

b)On the 2003 charge of possession of equipment to manufacture Methamphetamine you will be sentenced to 1 year imprisonment.

c)On the charge of manufacturing cannabis oil, 1 years’ imprisonment.

d)On the charge of possession of pipes, 6 months imprisonment

e)On the charge of possession of Methamphetamine, 6 months imprisonment

f)On the 2004 charge of failure to complete community work, one months imprisonment

g)Possession of precursor substances, 6 months imprisonment.

All of those will run concurrently.

[20]   In addition, on the 2004 charge of possession of equipment to manufacture Methamphetamine you will be sentenced to a term of imprisonment of one year, cumulative on the 3 years for other offending, making a total sentence of 4 years imprisonment.

[21]Fines totalling $11,662 are remitted.

[22]   Mr Morris, I hope you do as your counsel says and make some efforts while in jail to rid yourself of this terrible habit. Until you do that you are not going to be

able to make a worthwhile contribution and you will find yourself consistently coming back here. That is something you want to avoid.

[23]Stand down.

P R Heath J