R v Rae HC Auckland CRI-2005-004-023074

[2008] NZHC 2647

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-004-023074

QUEEN

v

JOHNNY CEDRICK RAE

Hearing:         28 October 2008

Appearances: M Wharepouri for Crown

Mr Brown on instructions from P Kaye for Offender

Judgment:      28 October 2008

SENTENCING NOTES OF JOHN HANSEN J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

P Kaye, PO Box 941, Shortland Street, Auckland 1140

R V RAE HC AK CRI-2005-004-023074  28 October 2008

[1]      Johnny Cedric Rae, you have pleaded guilty to charges of manufacturing methamphetamine and possession of a pistol by way of a sawn off shotgun.   You were jointly charged with James Robert Becker.  You were indicted on a total of six counts being manufacture of methamphetamine, possession of methamphetamine for supply, equipment capable of being used to manufacture methamphetamine, possession of precursor substance and possession of a pistol being two counts.  You absconded and did not face trial.  Mr Becker went to trial and was found guilty of all six counts. When you were apprehended you pleaded guilty to the two counts before me.

[2]      I can  say at  the  outset  that  the  Crown  accepts  that  Mr  Becker  was  the ringleader and that your role was somewhat more of a secondary party.

[3]      On the occasion in question, the Police received information that persons at a motel in Royal Oak were in possession of a firearm and precursor substance.  You were stopped when you drove from the premises.  A search of the vehicle under the Arms Act did not uncover anything and you were allowed to go.   Later you were spoken to again when you were observed walking up and down Manukau Road.

[4]      On 6 April 2005, in the early hours of the morning, Police entered room 10. Mr Becker and two associates were in the room.  There were multiple items present consistent with a clandestine methamphetamine manufacturing laboratory.  This had been used to manufacture 30.8 grams of methamphetamine.

[5]      Also located was a sawn off single barrel shotgun and ammunition hidden in the unit.  Your fingerprints were found on a hotplate.

[6]      You claimed that you had only been in the unit initially for ten minutes. Ultimately, however, as I have said you have pleaded guilty to the two charges that you are now before the Court for sentence.

[7]      You  are   aged  42.     You  had  a  difficult  and  unpleasant   upbringing characterised by physical and psychological abuse.  You stopped going to school at

12 and ran away from home.  You spent some time in a boys’ home and you came to the attention of the Youth Court, a typical background for offenders such as yourself. What is of significance in your case is that during the period you were living with your estranged wife and children, your offending dipped noticeably and the level of that offending was not as serious as one may have expected.

[8]      Unfortunately,  in  2004  you  had  a  stroke  and  your  wife  ended  your relationship that year.  You have used drugs since the age of 18 and you are assessed as having a harmful pattern of drug use.  It appears that after your separation from your wife that methamphetamine became an important part of that life.

[9]      There is a difficulty in your case because to the Probation Officer you deny this offending, notwithstanding your guilty plea.

[10]     You have a number of previous convictions.  To my mind, although there are several cannabis convictions in the past, the relevant offending is procuring and producing methamphetamine in 2006.   One can only say that given the sentence imposed on you on that date, that it must have been offending at the lower end.

[11]    There are a number of aggravating features in this case.   There is the commerciality.   There is the presence of firearms and ammunition.   They are aggravating in relation to this offending.  Aggravation in relation to yourself is your previous offending, including your previous drug offending.

[12]     In terms of mitigation, there is the fact that you have pleaded guilty, but any allowance  that  may  be  made  for  that  must  be  tempered  by  the  fact  that  you absconded from bail and were absent for some considerable time before you were apprehended.

[13]     In terms of the purposes and principles of sentencing in the Act, I take into account that I am to hold you accountable for the harm done for this offending, and methamphetamine stands high in that type of offending that harms the community, and to promote in you a sense of responsibility and acknowledgement of that harm. The probation report would indicate that you have little insight into the dangers of

drug abuse and, in particular, the abuse of methamphetamine.   To denounce your conduct and deter future offending.  I take into account the gravity of the offending, which I will turn to in terms of the tariff cases.  The desirability of consistency and the need to impose the least restrictive outcome.

[14]     The Crown seek a starting point of five years’ imprisonment.  This is slightly less than the starting point for Mr Beckett, which is a recognition by the Crown that your role was somewhat less than his.

[15]     The Crown submits there needs to be an uplift because of the firearms charge to which you have pleaded guilty.  They submit a similar uplift as imposed on your co-accused Mr Beckett of nine months is appropriate.

[16]     Your counsel accepts that a starting point of five years is correct given the quantity of methamphetamine, but submits there ought to be recognition for your position as a secondary party and your guilty plea.  There is also always the need to consider parity issues, but I accept in this case that there is justification in the light of the Crown’s acceptance of your lesser role for a lighter sentence than that imposed on Mr Beckett.

[17]     The appropriate tariff case is that of R v Fatu [2006] 2 NZLR 72 which sets a starting point for band 2 offending such as yours between 4 and 11 years. Similar cases that, by analogy, could be compared to yours are R v Sisson HC AK CRI 2006-

090-1151 25 May 2007,  Priestley J;  R  v  Vercoe HC  ROT  CRI 2006-070-7031

28 February 2008, MacKenzie J and R v Richards HC AK CRI 2006-090-9382

21 February 2008, Duffy J.

[18]     It seems to me the proper starting point is, as the Crown submits, one of five years’ imprisonment with an uplift for the firearms charge of nine months’ imprisonment.  Given your guilty plea an appropriate allowance in my view is one of nine months.

[19]    Accordingly, on the charge of manufacturing methamphetamine you are sentenced to five years’ imprisonment.  On the charge of possession of a pistol you

are sentenced to one years’ imprisonment concurrent.  That is an effective sentence of five years.  That is all thank you.

……………………..
John Hansen J