R v Pulman HC Auckland CRI 2007-057-2376
[2010] NZHC 1702
•27 August 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-057-002376
THE QUEEN
v
SAMUEL ROSS PULMAN
Hearing: 27 August 2010
Appearances: B Northwood for the Crown
S Grieve QC and S Cullen for the Prisoner
Judgment: 27 August 2010
SENTENCING NOTES OF WYLIE J
Solicitors:
Crown Solicitor, P O Box 2213, Auckland 1140
S Grieve QC, P O Box 4555, Shortland Street, Auckland 1140
R V S R PULMAN HC AK CRI 2007-057-002376 27 August 2010
[1] Mr Pulman, you appear for sentence having pleaded guilty on 18 May 2009 to one representative count of manufacturing methamphetamine together with other persons between 1 January 2005 and 4 December 2007.
[2] You were due to be sentenced in relation to that offending on 7 July 2009. However, on 1 July 2009 you applied for leave to vacate your guilty plea. That application was heard on 8 October 2009. It was dismissed by Hugh Williams J on
13 October 2009.
[3] You therefore fall to be sentenced today on the single representative count of manufacturing methamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act
1975. The maximum penalty for manufacturing methamphetamine is one of life imprisonment.
Factual background
[4] Pseudoephedrine is a crucial ingredient in the manufacture of methamphetamine. Over 95% of the clandestine methamphetamine laboratories located by the Police have used pseudoephedrine as the primary precursor substance. It is classified as a Class C drug and it is found in a large number of cold and flu remedies.
[5] At all relevant times between January 2005 and December 2007, you were an employee at the Unichem Pukekohe Pharmacy. You had previously owned the business and you stayed on to help the new owners.
[6] In early October 2007, the Police received information that you had been supplying large quantities of pseudoephedrine-based products to customers. The Police commenced covert observations of the pharmacy. Their surveillance established that you were supplying large quantities of pseudoephedrine-based products to a restricted group of persons. You were opening the pharmacy as early as 6:15 am, Monday to Friday. You were usually the sole employee working at the pharmacy at that time. The pharmacy was not supposed to open until 8:00 am each morning. You were repeatedly supplying large quantities of medication containing
pseudoephedrine to more than 30 different people, and some had come some distance to visit the pharmacy. Customers entering the pharmacy would approach you direct. After a brief discussion, you would supply packets of the pseudoephedrine-based products in exchange for cash. You placed the money into a small white cardboard box which you kept in a locked side room. No change was provided to customers, and it was only on very rare occasions that customer details were recorded in a register kept for that purpose. Nor did you enter the sales on pharmacy computers.
[7] You had been repeatedly directed by pharmacy management not to open the pharmacy early in the mornings, and not to supply large quantities of pseudoephedrine-based products to customers. You ignored these directions. Further, all staff at the pharmacy were advised of and required to adhere to company policy in relation to the sale of over-the-counter medications containing pseudoephedrine. That policy provided that only one packet or bottle of medication was to be supplied to each customer, and required that customers provide photographic identification, unless they were personally known to the dispenser. Further, their details were required to be entered into the register, which was supplied to the Police, and you ignored these instructions as well.
[8] You were aware at least from August 2005 that pseudoephedrine is one of the main ingredients required for the manufacture of methamphetamine. The pharmacy had been visited by the Pukekohe Community Constable in August 2005, and you and other pharmacy staff were then made aware of the use to which pseudoephedrine-based products can be put.
[9] You supplied the pseudoephedrine-based products at prices substantially in excess of the retail price. The retail price was approximately $30 per packet. You supplied them at prices in excess of $100 per packet, and at times up to $200 a packet.
[10] When you were ultimately spoken to by the Police in December 2007, you acknowledged that you were aware that the pseudoephedrine-based products you had been supplying were being used to manufacture methamphetamine. Subsequently,
you and a number of the persons to whom you had supplied the pseudoephedrine- based products were charged with the manufacture of methamphetamine.
[11] You have repeatedly claimed that the Police asked you at an early stage to continue supplying pseudoephedrine-based products to customers so that they could apprehend others involved in the manufacture of methamphetamine. That assertion was denied by the Police. I have held a disputed facts hearing into that issue. I received evidence by way of affidavits from a number of witnesses. You gave evidence in Court and you were cross-examined. I did not accept your claim. Rather, I gained the distinct impression that you were in a state of denial and that you were trying to minimise responsibility for your acknowledged offending.
[12] One other issue canvassed at the disputed facts hearing was whether or not you had derived any financial benefit from the sale of the pseudoephedrine-based products. You asserted that you had not derived financial benefit. I found that the Crown had failed to negate your assertion beyond reasonable doubt. The burden of proof was on the Crown to do so. I also found that your assertion was not wholly implausible or manifestly false.
Pre-sentence report
[13] I have received a detailed pre-sentence report. It records that you were a 69 year old male — you are now 70 years old. You and your wife have been married for some 40 years. You have three children and six grandchildren with whom you maintain good relationships.
[14] You were brought up on a farm, and were educated at Pukekohe High School and then Papakura High School. You aspired to become a doctor, but that was not financially possible. You therefore pursued your studies aiming to become a pharmacist instead. You qualified as a pharmacist in 1961, and you have practiced as a pharmacist since that time.
[15] You have also had extensive community involvement. You were a member of the Rotary Club, and you have a strong passion for working with young people.
You promoted that passion through various entities including your tennis club and your Rotary membership. As part of your commitment to youth, you purchased a building in the Franklin area some 30 years ago, which has since been used as a youth centre. You have charged no rental for the use of the building and you have regularly and actively sought to assist disadvantaged young people and their families in a variety of ways.
[16] You are in good health, and you do not take any medication.
[17] When spoken to about your offending, you suggested that you felt that you could not refuse. You said that otherwise you would get abused, and that you were under a lot of pressure. As already noted, you have asserted on a number of occasions that the Police advised you not to stop, so that they could put a net around the offenders and eventually clean up the streets. The Probation Officer who interviewed you noted that you appeared to minimise and shift blame for your offending.
[18] This accords with the view I formed at the disputed facts hearing.
[19] You have expressed accountability and remorse for your actions. The Probation Officer noted that you have expressed a strong desire to somehow make amends for your offending, and you are assessed as having a high level of motivation to adhere with the sentencing outcome.
[20] You do not have a previous criminal history, and you are not considered to be at risk of re-offending.
[21] The Probation Officer recommended that, given the serious nature of the charge you face, and the misuse of your position of authority within the community, there is no alternative to imprisonment. There was, however, a home detention appendix annexed to the report.
[22] I have received helpful submissions from Mr Northwood for the Crown and from Mr Grieve QC on your behalf.
[23] Both counsel addressed the purposes and principles of sentencing. Mr Grieve emphasised s 7(1)(a), (b), (e), (f) and (h), and s 8(a), (b), (g), (h) and (i) of the Sentencing Act 2002. He also referred me expressly to s 16 of the Act, which requires the Court to have regard to the desirability of keeping offenders in the community as far as is practicable and consonant with the safety of the community.
[24] Mr Northwood referred me to the decision of the Court of Appeal in R v Fatu.[1] That case discusses the appropriate tariffs for those involved in methamphetamine-related offending. Mr Northwood stressed the aggravating features of your offending — namely the length of time over which the offending was committed and premeditation on your part. He pointed out that large quantities of methamphetamine were able to be manufactured from the pseudoephedrine you supplied. The Police estimate that it was possible to extract around 1,500 g of pseudoephedrine from the pills you supplied, and that based on a conversion rate of
[1] [2006] 2 NZLR 72 (CA).
50 per cent, some 750 g of methamphetamine could have been manufactured from the pseudoephedrine supplied. If a higher conversion rate of 75 per cent is adopted, then the total amount of methamphetamine that could have been manufactured from the pills you supplied is a little over 1.1 kg of methamphetamine. Mr Northwood noted that it is strongly arguable that your offending falls within Band 4 in Fatu, which the Court of Appeal suggests requires a starting point of between 13 years and life imprisonment. However, he accepted that a starting point at the top of Band 2 or the bottom of Band 3 could be adopted, and he submitted that the appropriate starting point in your case should be between 10 and 12 years’ imprisonment. He also referred to your role in the process. In this regard, he submitted that you were a willing and regular supplier of methamphetamine’s most important precursor to those you knew were actively involved in the manufacture of methamphetamine. Mr
Northwood accepted that you were entitled to substantial credit because of your hitherto good character, and your past community involvement.
[25] Mr Grieve on your behalf drew my attention to a number of matters. He reiterated that prior to your arrest, you were a pillar of your local community, and that you have a lengthy history of being engaged in charitable works, including funding a centre for youth at your own expense. He referred me to a number of references which have been given in your support. He accepted that you have been properly convicted, but nevertheless noted that your true motivation is a relevant and powerful mitigating factor. In his original submissions filed before the disputed facts hearing, Mr Grieve submitted that your motivation was to comply with the directions or requirements of your employer and your employment, and to facilitate and assist with what you perceived to be the purposes of the Police — that is, the monitoring and apprehending of drug users and/or manufacturers. As a result of my findings following the disputed facts hearing, Mr Grieve has filed supplementary submissions. He now submits that the motivation for your offending is inexplicable. He notes that you were aware that surveillance equipment was being installed in the pharmacy, but that you nevertheless continued offending. He suggests that the only viable explanation appears to be that you were either totally naive or that you were delusional as to the responsibility you would eventually have to accept for your actions. He has further suggested this morning that your continued offending once the surveillance equipment was installed is consistent with your explanation that you were endeavouring to assist the Police. He submitted that your offending could be regarded as being the least serious of its kind.
[26] In his original submissions, Mr Grieve submitted that I should adopt a starting point in the vicinity of 18 months’ imprisonment. He now accepts that a starting point of nine to 10 years’ imprisonment is appropriate. He then submits that that a term of imprisonment should be significantly reduced to allow for your limited role and lesser culpability, your guilty plea, your remorse, apologies and contrition, your previous good character, and the absence of any previous relevant convictions.
[27] I have considered the principles set out in ss 7 and 8 of the Sentencing Act. I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for, and acknowledgement of, your offending, the need to denounce the conduct in which you were involved, and importantly in this case, the need to deter others from committing the same or similar offences. I have taken into account the gravity of your offending including your culpability, and I have considered the seriousness of this type of offence and the general desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences. I have been mindful of Mr Grieve’s submissions that I should impose the least restrictive outcome that is appropriate in the circumstances, that I should have regard to your particular circumstances and to the need for rehabilitation.
Analysis
[28] My starting point is s 6(4) of the Misuse of Drugs Act. That provision requires me to impose a sentence of imprisonment in relation to your offending, unless I am of the opinion that you should not be so sentenced having regard to the particular circumstances of your offending or personal to you.
[29] Here I have considered the circumstances of your offending. It occurred over a lengthy period. You have pleaded guilty to a representative charge covering some three years. Your offending was clearly premeditated. You got into the pharmacy early in the mornings when nobody else was present. You opened the pharmacy despite express instructions from your employer not to do so. You admitted customers to the premises and supplied them with large quantities of pseudoephedrine-based products. You have claimed that you felt intimidated by customers, but at the disputed facts hearing, you accepted that at least some of the customers were polite and non-threatening. You charged prices which were well above ordinary retail prices. On most occasions, you failed to enter the names of customers into a register kept by your employer — again, contrary to your
employer’s express instructions. The quantities of pseudoephedrine-based drugs you supplied was very substantial indeed. The Police estimate that over the years, you supplied some 35,000 30 mg pills, some 6,800 60 mg pills, and some 70 120 mg pills. You knew that the pseudoephedrine was going to be used in the manufacture of methamphetamine. Your offending was clearly serious and sustained.
[30] I have considered your personal circumstances and also return to these below. I accept that you are an elderly man. There is, however, nothing to suggest that a sentence of imprisonment would be unduly harsh for you. You have a lengthy history of involvement with the community; you have worked hard over your adult life and you have no previous convictions. For some reason, perhaps succumbing to initial pressure, or perhaps naivety, you became involved in what in my view was very serious offending. That offending snowballed. The methamphetamine you were a party to manufacturing will have caused significant harm to individuals and much suffering in the community. The drug is highly addictive. It has entrapped many people from all sectors of the community. Its detrimental effects are well known. They include aggression, psychotic behaviour, anxiety and paranoia. Moreover, the manufacture and distribution of methamphetamine is linked to organised criminal offending. Methamphetamine related offending is a key driver in very many criminal cases. You must have been aware of all of this.
[31] I am not persuaded that you should escape a term of imprisonment. Indeed, in my view, a term of imprisonment is the only realistic sentence to impose in this case and I note that Mr Grieve has accepted that today. The manufacture and subsequent supply of the drug is a scourge, and those involved must expect a firm response from the Courts.
[32] I now turn to consider the appropriate starting point in determining what term of imprisonment I should impose.
[33] The leading case is R v Fatu. As I have noted, it deals with methamphetamine-related offending. Fatu puts in place the following three bands for the offence of manufacturing the drug:
a) Band 2, where quantities of up to 250 g of methamphetamine are manufactured, attracts a starting point of four to 11 years’ imprisonment;
b)Band 3, which applies where large commercial quantities of methamphetamine ranging from 250 to 500 g are manufactured. This band attracts a starting point of 10 to 15 years’ imprisonment; and
c) Band 4, which applies were very large commercial quantities of methamphetamine in excess of 500 g are manufactured, to which a starting point of 13 years’ imprisonment to life imprisonment applies.
[34] Here, as I have noted, the Police estimate that the pseudoephedrine-based products you supplied could have resulted in the manufacture of somewhere between
750 g and a little over 1.1 kg of methamphetamine.
[35] While you have pleaded guilty to the manufacture of methamphetamine, I accept that you should only be sentenced in relation to offending which you admit, or which the Crown can prove. Here you have not expressly admitted that you were aware of the potential yield of methamphetamine which the Crown has referred me to. I also bear in mind Mr Grieve’s submission, accepted by Mr Northwood this morning, that not all of the sales were illegitimate, and further that not all of the sales may have been made with the requisite guilty knowledge — particularly, earlier on. Moreover, any sentence imposed on you must reflect not only the quantity of the drug involved, but also your limited role in the manufacturing that occurred. Here you were not actually involved in carrying out the manufacturing itself. Nor were you involved in the distribution of the methamphetamine. Rather, you sold a legitimate product, knowing that it was to be used for an illegitimate purpose. You were well aware that the pseudoephedrine you were supplying could be used to manufacture methamphetamine and thus you were a party to its manufacture. I
accept that you were not the primary offender and that this suggests that I should adopt a lower starting point than might otherwise have been the case.
[36] I have looked at a number of cases where the potential or estimated yield ranged from 800 g to 1.5 kg, and where the offending fell within Band 4 of Fatu. The starting point in those cases ranged from eight years to 14 years’ imprisonment. I have also looked at authorities where the person convicted was not the prime offender, but rather a secondary offender or a party to manufacturing. I refer in
particular to R v Richards[2] and R v Kimura.[3] I also note that in the case of two of
[2] HC Auckland CRI-2006-090-9382, 21 February 2008 per Duffy J.
[3] HC Palmerston North CRI-2005-031-947, 8 November 2005 per Gendall J.
your co-accused, their offending was treated as coming within Band 2 in Fatu due to the actual amount of methamphetamine located at their respective properties, even though precursors were found sufficient to yield 1 to 1.5 kg of methamphetamine.
[37] While I do not proceed on the basis of potential yield alone, it is nevertheless a factor that I cannot ignore. In fixing my starting point I have also looked at your role in the offending to which you have pleaded guilty. In my view, your offending should be treated as coming at the top end of Band 2 or the bottom end of Band 3 in Fatu. I adopt as my starting point a sentence of 10 years’ imprisonment.
Mitigating factors
[38] While motivation is not generally relevant to drug-related offending, I accept the submission made by Mr Grieve on your behalf that there is no evidence to suggest that you received any direct personal benefit, whether pecuniary or otherwise, from your offending. I accept that this is a mitigating factor.
[39] I also accept that there are a number of factors personal to you which I should take into account in mitigation. First, you have no prior criminal record. Secondly, you were undoubtedly a pillar of your community. You actively involved yourself in community and charitable works, and assisted troubled youth and young families over a considerable period. You did so at some personal cost, both financially and in terms of time and effort. Mr Grieve has filed a large number of references in
character, your concern for youth in trouble, your strong social conscience and your Christian attitude. I accept that you have given generously of your time and money to help young people. These factors make your offending and your resulting fall from grace more difficult to comprehend. I suspect that you were naive and that initially you were placed under pressure, that the offending snowballed, that you felt you could not say no even when the purchasers were non-confrontational. I further suspect that ultimately you continued to offend, even when the surveillance cameras were installed, because you wanted to bring matters to an end and were unable to do so in any other way.
[40] You are nevertheless entitled to credit for your previous good character, but in making that comment, I am mindful of the observations made by Rodney Hansen J in R v Field.[4] His Honour there noted that it is not possible for the Courts to give undiminished credit to offenders with previous good character and a record of public service. As his Honour observed, from those to whom much is given, much is required.
[4] HC Auckland CRI-2007-092-18132, 6 October 2009.
[41] Here you were prominent in your community. You dealt with troubled young people regularly. You were a pharmacist. There is force in Mr Northwood’s submission that you abused your position of trust in the community through the offending which you have carried out.
[42] Looking at these various matters in the round, in my view, it is appropriate to discount the sentence which I would otherwise have imposed on you by a period of three years and six months, to recognise not only the mitigating factor relating to your offending, but also your previous good character and your lack of criminal history.
[43] There are two other matters I should refer to.
[44] The first is your age. You are 70 years old. That is a factor I can take into account under s 9(2)(a) of the Act. Further, you are at a stage of your life where this is a tragedy for you and for your family. You have had to retire. You have been required to retire or resign from a number of positions you formerly held. I accept Mr Grieve’s submission that a term of imprisonment will be harsh for you. However, I note there is no suggestion that you are in poor health. In the circumstances, I allow a further discount of six months to recognise these factors.
[45] The other factor to which regard would normally be had is your guilty plea. I note, however, that your plea was only entered on the first day of your trial. Further, you have subsequently sought, albeit unsuccessfully, to withdraw it. I accept the State was in the event saved the cost of a trial, and in the circumstances, I am prepared to allow you a discount of a little over five per cent, or four months, from the sentence I would otherwise have imposed to recognise this factor.
Sentence
[46] Mr Pulman, will you please stand.
[47] In respect of your conviction for manufacturing methamphetamine along with others, between 1 January 2005 and 4 December 2007, I sentence you to a term of imprisonment of five years and eight months.
[48] The Crown does not seek a minimum term of imprisonment. I have considered the relevant factors set out in the Act and I do not consider that I should make such an order.
[49] Mr Pulman, you have done much for your community in the past. I trust that while you are in custody, you will reflect on the harm your offending will have caused. I hope that you will stand by your expressed desire to make amends and that you will be able to contribute to your community again when you are released from prison.
Wylie J
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