R v Piddeck

[2017] NZHC 1016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000396 [2017] NZHC 1016

THE QUEEN

v

ANDREW TERRENCE PIDDECK

Hearing:	16 May 2017
Appearances:	B R Northwood for Crown J C L Dixon for Prisoner
Date:	16 May 2017

SENTENCING NOTES OF COURTNEY J

R v PIDDECK [2017] NZHC 1016 [16 May 2017]

[1]       Andrew Terrence Piddeck, you appear for sentence today having pleaded guilty to one charge of manufacturing methamphetamine,1  one of possession of a precursor substance,2 one charge of possessing material for manufacturing methamphetamine3 and one charge of possessing equipment for manufacturing methamphetamine.4

The offending

[2]      Your offending was identified in the course of a wider police investigation into the manufacture and supply of methamphetamine.  This investigation involved covert electronic surveillance and you came to the attention of the Police through your communications with those already under investigation.  On 26 January 2016 the Police intercepted communications in which you discussed manufacturing methamphetamine.  The next day you were observed purchasing hydrochloric acid and a still and have admitted to manufacturing methamphetamine on 26 and 27

January 2016.

[3]      On  31  March  2016  the  Police  executed  a  warrant  at  your  address  in Hamilton.   There they found the following precursor substances, equipment and materials: approximately 375 mls of hypophosphorous acid; two 3.4 kilogram containers of calcium chloride; a two kilogram container of sodium hydroxide; a steam distiller; a 500 ml glass beaker; a coffee grinder; a distillation condensor, a 1- litre container of hydrochloric acid; a 5-litre container of hydrochloric acid and a metal cylinder with a screw thread containing the reaction mixture from the manufacture of methamphetamine.

Sentencing

[4]     In sentencing I am going to start with the charge of manufacturing methamphetamine, which is the most serious of course.  In sentencing on this charge

the  primary  objective  is  deterrence  and  denunciation.    The  manufacturing  of

1      Misuse of Drugs Act 1975, s 6(1)(b); maximum penalty life imprisonment.

2      Misuse of Drugs Act 1975, s 12A(2)(b); maximum penalty five years’ imprisonment.

3      Misuse of Drugs Act 1975, s 12A(2)(a); maximum penalty five years’ imprisonment.

4      Misuse of Drugs Act 1975, s 12A(2)(a); maximum penalty five years’ imprisonment.

methamphetamine is a serious crime that affects individuals and society as a whole and I know from the letter that you have given me today that you understand this only too well.  I am required to apply the principles that are set out in the Sentencing Act 2002 including taking into account the gravity of the offending, the offender’s culpability,seriousness of the offences as indicated by the maximum penalty.

[5]      Judges sentencing on methamphetamine offences are also assisted by the Court of Appeal’s decision in R v Fatu5 which identified appropriate starting points for the manufacturing of methamphetamine based on the amount of the drug manufactured.   In this case the precise amount of methamphetamine that you manufactured is not known, but counsel are agreed that the situation falls within what is known as band 2 of Fatu which relates to the manufacturing of up to 250 grams of methamphetamine and attracts a starting point of between four and 11 years’ imprisonment.

[6]      Exactly where in this range the starting point sits depends on the nature of the manufacturing operation.   The Crown has argued that the substantial amount of equipment, material and precursor substances suggested a reasonably sophisticated manufacturing operation with some level of commerciality.   You say that the manufacturing was for personal use only.  Your lawyer has drawn my attention to intercepted messages which suggest a small amount being manufactured, the short period over which the manufacturing took place and the fact that you did not, at the outset, have some of the essential equipment and ingredients, all pointing to the manufacturing operation as not being sophisticated or commercial.   I accept your lawyer’s submissions.

[7]      I am not satisfied that this was a commercial operation, at least the point the Police intervened.  At the outset you did not have everything you needed, so it is evident that the manufacturing set-up was very recent.  The set-up itself could have been used for future manufacturing, possibly on a commercial level.   But you are being sentenced on the basis of what you actually did on 26 and 27 January 2016. And  I  proceed  on  the  basis  that  this  was  not  an  instance  of  commercial

manufacturing.

5      R v Fatu [2006] 2 NZLR 72.

[8]      This means that the starting point will be toward the lower end of band 2 and I have had some assistance from other cases involving similar offending.  The Crown relies on cases in which starting points of five-and-a-half years,6  five years7  and between four and five years’ imprisonment8 were taken.  Your lawyer has drawn my attention to a different case, which was a Solicitor-General’s appeal, in which the

Court of Appeal considered that the appropriate starting point for conspiracy to manufacture was four-and-a-half years, which suggests that a starting point of five years would be appropriate for a manufacturing case at this low level.9    Looking at all of these cases  and  the circumstances  of  your offending,  I too  think  that  an appropriate starting point is five years’ imprisonment.  That takes into account, of course, the totality of the offending represented by the other offences.

[9]      The Crown seeks an uplift of six months to reflect your previous convictions. You do have a large number of previous convictions including 14 drug-related convictions.   However, your almost continuous record of offending since 1980 in different ways seems to have ended in about 2003, with the conviction in respect of that offending entered in 2005.  Your lawyer resists any uplift on the basis that a gap of more than ten years shows real progress in breaking the longstanding pattern of offending and that your present offending ought to be viewed as an isolated lapse. He describes it as falling off the wagon and probably due to personal factors in your life at that time.  After 2005 there were only two instances of minor offending.  For present purposes I regard your relevant offending as having ceased in 2003 and I do not see any reason to impose an uplift.

[10]     Your lawyer has argued for a discount of up to 10 per cent for remorse, pointing to your acceptance of full responsibility of the offending.  You have given me today a very long letter in which you have disclosed very personal information and described the hardships in your life that have led you into what has been a very long history of offending, and I can see that you have had many struggles over that time.  It is to your credit that you managed to stay out of trouble for that ten years

since 2003.  I am sure you can do it again.

6      R v Warhaft HC Auckland CRI-2006-057-1581, 5 October 2007.

7      R v Kissling HC Hamilton CRI-2006-070-6764, 22 December 2008.

8      R v Lee HC Auckland CRI-2007-004-013371, 30 January 2009.

9      R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627.

[11]     I am satisfied from the things that you have put in your letter that you are genuinely remorseful and that, not only that, you have a strong desire to actually do something  practical  to  help  other  people  who  are  at  risk  of  being  drawn  into addiction in the way that you were.  I am prepared to give a 10 per cent discount to recognise that.  That would take us to a provisional sentence of four years and six months.  You are entitled to a 25 per cent discount to reflect your guilty plea.  So I am going to ask you to stand now Mr Piddeck.

[12]     The end sentence on the manufacturing charge is going to be three years five months’ imprisonment.   On each  of the remaining charges  I impose  concurrent sentences of 18 months so that the total you will serve is three years five months.

[13]     I can see from your letter that you have had some psychological help in the past.  I urge you to get more and to do what you can to get yourself back onto an

even keel.  Stand down.

P Courtney J