R v R HC Auckland CRI 2007-090-10797

[2009] NZHC 1720

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-090-10797

THE QUEEN

v

R
R

Hearing:         30 April 2009

Counsel:         S Moala for the Crown

I Koya for the Prisoners

Judgment:      30 April 2009

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, P O Box 2213, Auckland 1140

Copy to:            I Koya, P O Box 47-228, Ponsonby, Auckland 1144

R V R AND ANOR HC AK CRI 2007-090-10797  30 April 2009

[1]      R and R   you are before the Court for sentencing having been found guilty by a jury of a charge of possessing equipment for the manufacture of the Class A controlled drug methamphetamine intending the equipment to be used for that purpose.  You both entered guilty pleas to a charge of possession of a pipe for the consumption of methamphetamine.   The maximum penalty for both these offences is five years imprisonment, as I am sure you are aware.

[2]    The  jury  found  you  not  guilty  of  charges  of  manufacturing methamphetamine, possession of precursor substances and possession of materials.

Background facts

[3]      Mr and Mrs R   lived at the relevant time (and still live) at 40 La Rosa

Street, Green Bay.  Next door was (and is) an Early Learning Centre.  In November

2007, a staff member of the Early Learning Centre, when attempting to recover a ball one of the children had put over the fence between the two properties, noticed a camouflage backpack against the fence in the R   property which was hidden by shrubbery, though immediately apparent to her when she leant over the fence. She took possession of the backpack.   The manager of the Centre telephoned the Police.   The expert evidence of Mr John Hugel was that the backpack contained equipment for, and had been used in, the manufacture of methamphetamine.   The expert could not age the manufacturing process which had been carried out using the equipment in the backpack.

[4]      The premises at 40 La Rosa Street were subsequently searched by Police.  No other items or paraphernalia relevant to the manufacture of methamphetamine were found on the premises.   However, two of five wipes taken by ESR revealed methamphetamine.  The pipe which was the subject of Count 5 in the indictment to which the guilty pleas were entered was found in the master bedroom.

[5]      When interviewed by the Police Mr R   said he had no knowledge of the backpack.  Mrs R   said they had discovered the backpack the previous Sunday,

that her husband had opened it and had seen the items inside, but he had then instructed her to place it back where it was found.  She said she did so.

[6]      Implicit in the jury’s verdict is that they were satisfied that Mr and Mrs R   were in possession of the backpack, that is they knew it was there, and they had the ability and intention to exercise custody and control over it.  Further, the jury must have been satisfied that Mr and Mrs R   knew the equipment was in the backpack.  Clearly they did not reach the required level of conviction in respect of the precursor substances and materials that were also in the backpack.

Pre-sentence reports

[7]      Helpful pre-sentence reports have been prepared for Mr and Mrs R  . Both are assessed by the probation officer who interviewed them and prepared the reports, as being of low risk of re-offending.   This is based in the case of Mr R   on his limited previous offending history (he has only two convictions over

20 years ago), his self reported abstinence from illegal drugs since this offending in November 2007, and his claim to disassociation from the particular friends who introduced him to the drug.   In the case of Mrs R   it is noted she is a first offender, that she is remorseful, and she reported abstinence from illegal drugs since

2007.   She expressed willingness to undertake drug counselling or rehabilitative programmes in relation to her drug use.

[8]      Both  Mr  and  Mrs  R    are  reported  as  employed.    Mr  R  ’s employer Redwood Panel & Paint (2005) Limited has provided a reference dated 20

April 2009 which is very favourable and supportive of Mr R  .  He is described as “a reliable and very valuable, hardworking” member of the staff of that company with whom he has been employed since July 2008.  Mrs R   is employed part- time as a care services manager with Metlifecare Pinesong Limited.  The probation report records the statement of her employer that she is a “reliable and flexible” employee.  The employer is willing to support Mrs R   in serving a sentence to which monitoring and probation checks would apply.

[9]      Mr and Mrs R   are aged 48 and 38 years respectively.  They have two daughters aged 15 and 12 years who are both at school.  They say their relationship of  19  years  is  close  and  stable  and  they  have  a  close  relationship  with  their daughters.

[10]    They admit to having consumed methamphetamine twice a week in the weekend, for about a year.  They say they never consumed the drug in front of their children.   They maintain abstinence from the time the offending occurred in November 2007.  Alcohol and drug screening tests were administered for each of Mr and Mrs R   and the report records no harmful pattern of alcohol or drug use over the past 12 months.

[11]     The report as to the suitability for home detention or community detention is attached to the probation reports.  I shall refer to this report again later.

Aggravating and mitigating factors

[12]     Premeditation is a factor inherent in the offences, as is the factor emphasised by the Crown in submissions – the enormous harm to the community caused by the use of methamphetamine and by those who produce and supply it.   Mr and Mrs R   had in their backyard a backpack containing equipment used for manufacturing methamphetamine.  There are no mitigating factors of this offending.

[13]     The guilty pleas to the charge possession of a pipe were entered in June 2008 by Mr R   and only at trial by Mrs R  .  Those pleas did not impact upon the evidence that had to be led at trial, nor the length of the trial but the Crown acknowledges that the offenders are entitled to some credit for those guilty pleas.

[14]     The pre-sentence reports identify mitigating factors personal to the offenders. including that Mr and Mrs R   have no prior relevant convictions, are in stable employment, devoted parents committed to their family and on their own report, have steered their lives away from involvement with methamphetamine.

[15]     However, there has to be a real concern that in your mid 40s and 30s Mr and Mrs R   you did not have the wisdom and maturity to discern that your use and association with the drug methamphetamine  could only lead to wholly negative outcomes for you and your family.  Your’s is not a case where youthful foolishness can be called in mitigation.

Purposes and principles of sentencing

[16]     I have helpfully been referred by counsel for the Crown to the purposes and principles of sentencing and I take them into account.

[17]     Deterrence both of the offenders and of other persons who may be minded to offend in the same or a similar way, is a primary purpose in sentencing for drug offending.   The offenders must be held accountable for the harm done to the community and the sentence must seek to promote in them a sense of responsibility for that harm.

[18]     The Court is required to impose the least restrictive outcome appropriate in the circumstances.

Submissions

[19]     Having referred to the purposes and principles of sentencing the aggravating and mitigating features of this offending and certain relevant authorities, the Crown submitted in written submissions that an appropriate starting point for sentencing is between two to two and a half years imprisonment.

[20]     In oral submissions this morning Ms Moala referred to the decision in R v Saundercock and Robertson HC WG CRI 2005-085-3489 8 February 2007, Mallon J and the starting point of twenty one months taken in that case.  She also referred to the decision of R v Gibbons HC AK CRI 2005-004-002578 8 February 2006 Asher J, where a starting point of fifteen months was taken.  She noted the range of starting points identified in the Saundercock and Robertson judgment at [23]. In sentencing

for this type of offending, Mallon J stated having reviewed the cases, a starting point somewhere between fifteen months and four years would be appropriate with two to three years common.

[21]     In written submissions Mr Koya submitted that having been convicted of the two charges, the prisoners should be discharged under s 108 of the Sentencing Act. He also made submissions about inconsistent verdicts.

[22]     After hearing from the Crown this morning, he has resiled from that position. Let me say immediately that while the Court must consider whether convicting and discharging the offender would be more appropriate than imposing a sentence, I regard this submission as wholly inappropriate in the circumstances of this case because of the seriousness with which Parliament and the Courts view Class A drug related offending, particularly methamphetamine.  Ultimately, Mr Koya urged that a sentence of home detention should be imposed.

Authorities

[23]     There is no guideline judgment which sets out the parameters for sentences for these sorts of charges.

[24]     An offence of this kind is often associated with other methamphetamine related offending and the factual circumstances vary considerably.

[25]     In R v Towgood CA480/06 23 August 2007, conviction on an alternative charge  of  attempting  to  manufacture  methamphetamine  was  appealed unsuccessfully.   Towgood was also found guilty on charges of possession of equipment and precursor substances.  The Court of Appeal said that the appropriate sentence on the two possession charges was two years imprisonment.

[26]     In R v Gibbons, the prisoner was convicted of one charge of possession of equipment and one charge of possession of a precursor substance.  Mr Gibbons was at a motel with a co-offender and was observed putting boxes and other material into a car.   He admitted using methamphetamine but denied knowing the nature of the

equipment he had loaded into the car.  Mr Gibbons was sentenced on the basis that his involvement was peripheral and short term and that he was not involved in actual manufacture.  A starting point of fifteen months was taken.  The sentence imposed was eleven months imprisonment after a discount having been allowed for a range of mitigating factors.   Leave to apply for home detention was granted.   By way of explanation this decision was before home detention became a stand-alone sentence. So the granting of home detention rested with the Parole Board rather than the sentencing Judge.

[27]     In R v Fountain HC AK CRI 2004-044-007303 1 February 2008 Andrews J, the prisoner pleaded guilty to one charge of possession of equipment.  The charge followed a search of property where the equipment was found.  Mr Fountain was 34 years old with no previous drug convictions.  A starting point of fifteen months was taken.  There was a discount to recognise the guilty plea entered to that charge by the prisoner together with efforts to address addiction and other mitigating factors.  The final sentence was seven months imprisonment.  Again leave was granted to apply for home detention.

Sentencing

[28]     I consider the need for denunciationa and deterrence justifies a sentence of imprisonment in this case.  I take into account that the jury acquitted the prisoners of the charge of manufacturing methamphetamine, and the involvement was limited to having possession of the equipment for that process.   On the evidence at trial the sentencing must proceed on the basis that the involvement of Mr and Mrs R   in any manufacturing process was peripheral.   I am not prepared to consider a community-based sentence.   Parliament and the Courts have consistently and emphatically  made  clear  that  offending  involving  the  Class  A  drug methamphetamine will be very seriously treated.  Methamphetamine is a particularly dangerous  and  pernicious  drug  to  which  users  quickly  become  addicted.    The damage  it  does  in  our  community  is  far  reaching  and  inevitably  extremely destructive.

[29]     I consider a starting point in all the circumstances of this case to be in the range of fifteen to eighteen months imprisonment.  I take a starting point of sixteen months imprisonment.  From that starting point I allow a discount of four months to reflect the mitigating factors of the offenders to which I have previously referred. That would result in a sentence of twelve months imprisonment.  On the conviction of possession of a pipe, the sentence would be two months imprisonment to be served concurrently with the sentence of twelve months imprisonment.

Home detention

[30]     I  turn  to  consider  home  detention.     I  consider  home  detention  more appropriate for this offending and these offenders than community detention which is directed to restricting the offender’s movements during specified periods to reduce the likelihood of further offending.  Both Mr and Mrs R   are assessed in the home detention report as suitable for home detention.  The appendix attached to the probation report states that the accommodation at 40 La Rosa Street, Green Bay is suitable for home detention.   This is the address where Mr and Mrs R   and their family have resided for the last 12 years.

[31]     The Police have concerns that this address appears to have been associated with the manufacture of methamphetamine.  Of course there was no conviction on that charge.  There has to be some concern also about the proximity to the address of the Early Learning Centre next door.

[32]     However, in all the circumstances of this case, including the positive pre- sentence  reports,  the  past  sound  and  responsible  track  records  of  Mr  and  Mrs R   (excepting their methamphetamine use said to have been over a year) and that they have the ability to remain in employment and to pursue stable lives for themselves  and  their  family  determinedly  free  of  any  association  with  drugs including methamphetamine, I consider that home detention should be at their address, 40 La Rosa Street, Green Bay.   It would be disproportionately disruptive and difficult for the family and likely to achieve very little, were the Court to require a different address to be considered for home detention purposes.

[33]     There is no parole available in respect of a sentence of home detention. Therefore the sentence imposed will usually be in the vicinity of half the term of the short term sentence of imprisonment that would otherwise be imposed.

[34]     Would you please stand Mr and Mrs R  .

[35]     The sentence I impose on each of you is six months home detention.   In addition to the standard conditions the following special conditions will apply as set out in the report.  Mr and Mrs R   are:

a)       To proceed from the Court directly to 40 La Rosa Street, Green Bay, Auckland and wait there until their home detention connection is facilitated by the probation officer.

b)To undertake and complete alcohol and drug counselling as directed by the probation officer.

c)       To undertake any counselling programme if directed by the probation officer.

d)To abstain from consuming illicit drugs for the duration of the home detention sentence.

[36]     I note that the standard post-detention conditions in s 80(O) of the Sentencing Act will apply following the expiration of the sentence of home detention.   As I understand it these standard conditions apply for a period of twelve months from the date the sentence ends.  I consider it important that there is this extended period of supervision to ensure an offence-free future direction for Mr and Mrs R  .

Result

[37]     In summary therefore the sentence imposed on each of you Mr and Mrs R   is six months home detention on each of the charges to be served concurrently.

[38]     I  only  hope  that  having  faced  criminal  prosecution  and  having  been  up brought against the realities associated with your previous methamphetamine use and association you will have realised that any use or association with methamphetamine or for that matter any drug, or willingness or tendency to become involved with them in any way, is absolutely opposed to your professed commitment to one another, to your children and to a stable family life.  Any involvement with drugs, particularly such a dangerous drug as methamphetamine, will only ensure the destruction of all you say you want and all you have worked hard to achieve.  I hope you have come clearly to that realisation.

[39]     You may stand down.