R v Scouse HC Auckland CRI 2010-092-6304

[2010] NZHC 1893

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-6304

THE QUEEN

v

GLENN PETER SCOUSE

Charges:         1.    Manufacturing methamphetamine

2.    Supplying methamphetamine

Plea:               Guilty

Counsel:         S C Waalkens for the Crown

R MMansfield for Prisoner

Sentence:       23 September 2010

Imprisonment

1.    Four years

2.    Three years

(to be served concurrently)

SENTENCING NOTES OF MacKENZIE J

[1]      Glenn Peter Scouse you appear for sentence on one count of manufacturing methamphetamine and  one count of supplying methamphetamine.   You pleaded guilty to those charges.

[2]      The facts are that from July 2009 police had received information that you had been  selling methamphetamine.   In November 2009 police  received further

information that indicated that you were manufacturing methamphetamine at your

R V SCOUSE HC AK CRI-2010-092-6304  23 September 2010

home  address.    On  15 December 2009  police  executed  search  warrants  on  your vehicle and on your home.   In your vehicle they located eight grams of methamphetamine.  They also found in the search of your vehicle $920 in cash.  At your home police located equipment associated with a clandestine laboratory including hot plates, reaction flask, parr bomb, metal condenser, PH meters, flasks and measuring jugs, stoppers, plastic and glass tubing and filters.  They also located substances and materials used in the manufacture of methamphetamine being quantities of hydrochloric acid, acetone, hypo phosphorus acid, sodium hydroxide, iodine and turpentine.    You stated that you had been manufacturing methamphetamine since the beginning of 2009.   You said that  you did a cook producing ten or 20 grams of methamphetamine every three to four weeks.  You said that about half was sold, which provided funds to purchase more equipment or precursors and the balance was for your own use, you being a heavy user of methamphetamine.   I acknowledge what your counsel has submitted about those estimates of quantity and I take that into account when I come to assessing the starting point.

[3]      You are 46 years of age.  You are not in a relationship and have no children. You have a good and supportive upbringing and have the support of your immediate and extended family.   You left school at fifth form level without any formal qualifications and have worked for your whole life in a number of different jobs, including working in responsible positions at management level.   You have some health problems.   You were diagnosed with myasthenia gravis, a condition which has affected  your eyesight and muscle strength and  your medication has led to diabetes.  You also have ongoing effects from an injury suffered in a motor cycle accident.   You developed a methamphetamine habit about seven to ten years ago after you first used it and found that it relieved the problem with your eyesight. Sadly, but I am afraid unfortunately typically, your use developed to an addiction which took over your life.  You are assessed as being highly motivated to address your offending and to stay away from methamphetamine.   You have expressed a willingness to participate in programmes designed to address your addiction.  You have a limited previous history of offending.   There are no previous convictions involving drugs.  Your nine previous convictions involve driving offences and other comparatively minor offending, none at a level which has been serious enough to

justify a sentence of imprisonment in the past.  Of the purposes of sentencing in your case, the most relevant are the need to hold you accountable, to denounce your conduct and to deter you and others.  The Court of Appeal has frequently reiterated the need for sentences for drug offending to send a clear deterrent message.   The increasing number of clandestine drug laboratories is a major cause of concern to police, and to society.  Those laboratories pose a risk to the community around them, the persons who operate them and the law enforcement officers who must deal with them.   The need for a deterrent message is clear.   In your case that need for a deterrent message is very graphically illustrated.   You are a victim of your own offending.  Your family are victims of your offending.  This is a tragedy for you.  It is a tragedy for your family.  I will take that into account to the extent that I am able. But in fixing a starting point for your offending I must adopt a starting point which reflects the need for deterrence which your circumstances so amply illustrate.

[4]      In fixing a starting point, I take as the lead charge that of manufacturing but I consider the totality of the offending because the manufacture and supply are inextricably linked.  In the guideline judgment of R v Fatu,[1]  to which counsel have referred, the lowest category for manufacturing is band 2 which is described as manufacturing involving up to 250 grams.  That is clearly the appropriate band in which to place your offending.  It is notoriously difficult to make an assessment of

the quantity involved in methamphetamine manufacture, where the circumstances disclose an ongoing course of action but the actual quantity located is small.  That is the case here, and as I have indicated to counsel, without your admissions the scale of your operation would have been difficult to determine.  But, having said that, the assessment which I make of your offending even in the absence of that information would lead me to the point that I reach.  As the Court of Appeal said in Fatu, the sentencing levels in the guidelines reflect the criminality inherent in gearing up to manufacture methamphetamine.

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

[5]      Starting points in band 2 are in the range of four to 11 years imprisonment. The  Crown  has  estimated  the  total  yield  from  your  admitted  manufacturing

operations, based on your statements to police, as in the range of 100 grams to

267 grams.  As I have indicated I take that estimate into account but I also make my own assessment of the likely level of your operation.  Counsel for the Crown submits that this should be assessed as being in the middle to upper half of band 2 with a starting point in the range of six to eight years.   Your counsel submits that the starting point should be five years.  I do not consider that a starting point of that level would adequately reflect the seriousness of this offending, for the reasons that I have given.  In fixing the starting point I must adopt a point which reflects the deterrence which must be conveyed by the Court.  So having regard to that I consider that an appropriate starting point for your offending is seven years.   That reflects all the factors relevant to the offending itself, both on the lead charge and on the charge of supply.  I adopt that approach because the commerciality of the operation has been taken into account in fixing the starting point for the manufacturing charge.

[6]      To  that  starting  point,  I  must  make  adjustments  to  reflect  personal aggravating and mitigating factors.  There are no personal aggravating factors.  Your limited previous history is such that it does not require an uplift.  It does however mean that your previous history cannot be regarded as a significant mitigating personal factor.  I do consider that your personal circumstances rank as a mitigating factor justifying an adjustment downwards to the starting point.  As counsel for the Crown has very properly recognised, your pre-sentence report is largely positive. You are considered to show real insight into your offending and to be highly motivated to address it.  You are assessed at a low risk of re-offending.  You have considerable support from your family and friends as is clearly evident from the presence of so many of your family here today and it is also evident from the many letters of support that have been submitted by your family and friends and others. That bodes well for  your prospects of rehabilitation and enables me to make a significant allowance for your personal circumstances despite the general principle that personal circumstances can carry little weight in drug offending.  I consider that a discount to reflect these matters may properly be made, to provide some encouragement to you to use the sentence positively by taking advantage of rehabilitative opportunities.  I also take into account that your health condition will mean that a prison sentence will give you particular difficulty.  Taking all of those

factors into account I would allow a reduction from the starting point that I have indicated of one year.

[7]      You are also entitled to a credit for your guilty plea and I deal with that separately and at the last stage as the guidance in Hessell requires.[2]   You entered that plea prior to committal.   Counsel for the Crown acknowledges that the discount should be at least 25% and your counsel submits that it should be up to 30%.  The point that I have reached prior to allowing the discount is six years.   I propose to allow a full one third discount to reflect your guilty plea, what I regard as the

enhanced level of remorse which is inherent in it, and the extent of your cooperation. So I would make a deduction of two years from that point.   That leaves an end sentence of four years which is the sentence I intend to impose.

[2] R v Hessell [2009] NZCA 450.

[8]      Counsel for the Crown seeks an order for forfeiture of the $920 cash found in your car.   I consider there is sufficient evidence to justify the inference that that money is derived from the supply of methamphetamine and your counsel does not contest that.  There will be an order for forfeiture accordingly and I have taken that into account in looking at the discounts that I have provided.  There will also be an order for destruction of the material and equipment.

[9]     So I come to the formal sentence.   On the count of manufacturing methamphetamine I sentence you to a term of four years imprisonment.   On the count of supply of methamphetamine I sentence you to three years imprisonment. Those terms are to be served concurrently.  So that is an effective term of four years.

[10]     Thank you, you may stand down.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140 for Crown

R M Mansfield, PO Box 2674, Shortland Street, Auckland 1140 for Prisoner