R v Richardson

[2017] NZHC 1970

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000168 [2017] NZHC 1970

THE QUEEN

v

KENNETH CHARLES RICHARDSON

Hearing:	17 August 2017
Counsel:	BR Northwood for Crown IM Brookie and CW Farquhar for Defendant
Judgment:	17 August 2017

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Auckland.

IM Brookie, Auckland. CW Farquhar, Auckland.

R v RICHARDSON [2017] NZHC 1970 [17 August 2017]

Introduction

[1]     Mr Richardson, you are for sentence in relation to a single charge of manufacturing methamphetamine between 18 November 2015 and 31 March 2016. You pleaded guilty on the morning of trial having foreshadowed a guilty plea was likely.

Facts

[2]      Your offending was detected by a Police inquiry directed at others engaged in the supply of ephedrine, supply of materials used in the manufacture of methamphetamine, and the supply and manufacture of that drug.  Police discovered you  were  in  frequent  contact  with  one  of  the  men  in  the  enterprise  who,  on occasions, also came to your home.  You were also acquainted with another man in the enterprise.  On 17 December 2015 he was in contact with your partner.

[3]      On 31 April 2016 Police executed a search warrant at your home.  You were home, as was your partner.  Police found a number of items used in connection with the manufacture of methamphetamine:

(a)      Steel  pots,  safe  sharp  containers,  and  a  one  litre  container  of hydrochloric acid (all in a cardboard box in the loft).

(b)A hotplate, glassware, a pH metre, and a tupperware box containing a number of snaplock bags with crystalline residue (all in a cardboard box in the lounge).

(c)       A steel funnel and length of clear tube (both in your car).

(d)A pH  metre box,  a pyrex  baking dish,  a one  litre bottle labelled acetone, and an oven dish.

[4]      Methamphetamine was found on the pyrex baking dish, hotplate and in the bottle labelled acetone.    Methamphetamine and by-products of that drug’s manufacture were found on the funnel and the oven dish.  Analysis established the

pH metre box had been used in connection with the manufacture of methamphetamine.  Liquid in an Absolut vodka bottle contained that drug. And, that liquid is typically produced during the final stage of the manufacturing process.

[5]      It is not known how much methamphetamine you made.  It is agreed you did so once.

[6]      You exercised your right to silence.

Starting point

[7]      It is common ground your offending sits toward the bottom of band two of R v Fatu.1   Only one year separates the parties: the Crown advances a starting point of five years’ imprisonment; Mr Brookie, your lawyer, advances a starting point of four years’ imprisonment.

[8]      You told the pre-sentence report writer you manufactured methamphetamine exclusively for your own use.   You said that since being diagnosed with terminal cancer approximately three years ago, you became depressed.  I will return to this topic shortly. You said you made methamphetamine in this context.

[9]      The Crown contends your offending had at least a commercial element, by which  it  means  even  if  some  of  the  methamphetamine  was  for  your  own consumption; some was intended for others too.  Mr Brookie’s written submissions on your behalf refer to and acknowledge “limited commerciality”.

[10]     I offered you and the prosecution a disputed facts hearing in relation to this issue.  I also inquired whether you proposed to testify.  You did not want a disputed facts hearing and neither did the Crown.  Nor did you wish to give evidence.

[11]     I  am  satisfied  beyond  reasonable  doubt  your  offending  had  at  least  a commercial  element  in  the  way  the  Crown  identifies.    I  reach  this  conclusion

because:

1      R v Fatu [2006] 2 NZLR 72 (CA).

(a)      The Court of Appeal has recognised methamphetamine manufacture almost always involves  significant commerciality, and because the difficulties, expense and risks involved in manufacturing that drug make it inherently unlikely such an operation would be set up to produce drugs for purely personal consumption.2

(b)The agreed summary of facts implies some level of commerciality, particularly with its reference to your contact with others in the enterprise.

(c)      The manufacture of methamphetamine is not an obvious response to depression.  Nor is consumption of that drug as against, say, cannabis.

(d)Mr  Brookie  acknowledges  at  least  some  commerciality,  albeit  he submits that was low.

(e)       And finally, you did not offer this explanation to the Police or on oath.

The right to silence does not preclude a fact finder from noting the absence of testimony on a point in dispute on which the defendant could have testified.3

[12]     I will not detain you with the case law in relation to the starting point because the parties are so close.   It is sufficient to observe in a case called R v Piddeck,4 which arose from the same Police investigation as that which caught you, a starting point of five years’ imprisonment was adopted for offending the Judge concluded was not commercial in nature.  Unlike that case, your offending had a commercial element,  but  only one  charge.    Overall,  the  same  starting  point  is  required.    I

therefore adopt five years.

[13]     To recapitulate, while I accept some of the methamphetamine might have been for your own consumption, some of the drug was intended for others.

2      R v Fatu, above n 1, at [42].

3      Evidence Act 2006, s 33.   See R v Gunthorp [2003] 2 NZLR 433 (CA) at [142]–[143], and

R v Haig (2006) 22 CRNZ 814 (CA) at [101]–[104] per William Young P and Chambers J.

4      R v Piddeck [2017] NZHC 1016.

An aggravating feature?

[14]   You are no stranger to the Courts.   In 2002 you twice manufactured methamphetamine—it was then a Class B controlled drug.  You were sentenced to a term of two  years and eight months’ imprisonment.   Mr Northwood contends I should uplift the starting point with reference to this offending.  I decline to do so. That  offending,  while  serious  and  similar  in  kind  to  that  here,  was  committed

13 years before this offending.   It follows the instant offending is more consistent with a lapse as against a persistent course of conduct.  Additional deterrence by way of uplift is not called for in your case.

Mitigating features

[15]     There are three mitigating features.

[16]     By agreement and convention, the first I say nothing beyond the fact it merits a discount of 15 percent.

[17]     The second is your ill health.  This topic has vexed me.  To elaborate, when you pleaded guilty on the morning of trial, I was told it was common ground you suffered lung cancer.   I granted bail with the explicit purpose so you could place before me, at sentencing, a medical report or reports in relation to your condition.5

On 14 August 2017 you filed a single page letter from a general practitioner.  The

body of the letter records:

This is to confirm that the above patient has informed me that he has a diagnosis of lung cancer which made 2 years ago, 2015. At that time he had an MRI which confirmed the diagnosis.   Since then he has not had any further treatment or investigation by personal choice.   He is symptomatic with pain and shortness of breath which is slowly worsening with time.  On examination he has an area of his lungs with reduced air entry and dullness to percussion.  At this time we have no way of knowing where he is on his cancer journey.  Unfortunately lung cancer often has a very poor prognosis. There is a very real possibility that Ken is entering a more terminal phase of his illness.

He initially had many symptoms of depression that was influencing some of his decisions around his health.  His mental health is now improving and he is wanting to consider further referral to specialists to discuss possible treatment options.   This is naturally very challenging with his upcoming

5      R v Richardson HC Auckland CRI-2017-404-168, 19 June 2017 (oral ruling).

custodial sentence.   I intend to refer him to the local respiratory specialist urgently so that he can start to look at cancer treatment options.

I have provided him with medication to help his mood, sleep and some pain relief but I do feel that it is essential that he have access to specialist input in the very near future.

[18]     To summarise, the letter says you told the doctor you were diagnosed with lung cancer two years ago.  The doctor considers you exhibit shortness of breath as your lungs have “reduced air entry”.  She says there is no way of knowing where you are on “your cancer journey”. The doctor also refers to symptoms of depression.

[19]     The state of evidence is unsatisfactory.   I convened a telephone conference with the lawyers two days ago to raise this issue.   I put to Mr Brookie I required more information in order to assess the extent to which ill-health was a relevant sentencing consideration.  In short, he said he asked you for this information “many times” but you wished it to remain “private”.  I asked Mr Brookie whether Dr James was in a position to confirm the diagnosis of lung cancer.  He said Dr James was not able to confirm the diagnosis.

[20]     Also  relevant  is  an  affidavit  from  your  ex-partner  filed  yesterday.    The affidavit talks about your reported diagnosis, related laboured breathing and depression.  While well intended, the affidavit does not greatly advance the position. There is no reliable information before me as to prognosis, or the extent to which imprisonment may adversely affect your health.  I also record the obvious: there is no source medical material in the record to confirm you actually have lung cancer.

[21]     I proceed on the basis you do have lung cancer.   And so your situation is inherently serious.  To do otherwise now would be unfair.  I repeat that when you were briefly granted bail it was common ground as between the parties you have lung cancer.  But as Mr Northwood observes this morning, he made that concession based on your self-report.

[22]     To recapitulate, I accept you have this condition.  However, given the paucity of  reliable  information  as  to  prognosis  and  the  like,  any  discount  must  be

constrained.6    I am operating in something of an evidential vacuum.  I settle upon

15 percent.

[23]     This brings me to the third and final mitigating factor—your guilty plea. Mr Brookie contends a 20 percent discount is warranted.  Mr Northwood advances

15 percent.  As observed, you pleaded guilty on the morning of trial, albeit you had foreshadowed a likely guilty plea in the week before trial.  Discount here depends on totality of circumstance.

[24]     You  were  charged  on  31  March  2016.    After  the  Crown  reviewed  the evidence in relation to your co-defendants it took the view you should be tried on your own.   Severance was ordered, I believe by consent, on 18 May 2017.   The Crown accepts your opportunity to focus on charges against you in isolation “came comparatively late”.  However, it observes the evidence did not materially change. Mr Brookie invites attention to a number of outstanding disclosure issues in the week prior to the trial.

[25]     Against this background, a discount of 15 percent is warranted.  This level of discount is significant.  It reflects relatively late changes by the Crown in relation to its case.   However, and as observed, the evidence against you did not materially change.  A greater level of discount would be unfair to those defendants who plead guilty at an early stage of proceedings, particularly when decisions as to charges, co-defendants, and evidence are often in a state of flux in our system.   So too perfection of disclosure.

[26]     The result is an end sentence of 35 months’ imprisonment, or just less than three years’ imprisonment.7  As will be apparent, this level of sentence is appreciably above the jurisdiction to consider a sentence of home detention.   If I had more information about your health, additional discount might have followed.   Whether that would have been of an order to give rise to jurisdiction for home detention, or

the imposition of home detention, I cannot say.

6      R v Verschaffelt [2002] 3 NZLR 722 (CA).

7      Discount for a guilty plea is afforded as a percentage of the otherwise appropriate sentence; not as a percentage of the starting point.

[27]     Mr Richardson please stand.

[28]     On the charge of manufacturing methamphetamine, I sentence you to a term

of 35 months’ imprisonment.

[29]     I wish you well. You may stand down.

……………………………..

Downs J