R v Senior
[2013] NZHC 2156
•22 August 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-5703 [2013] NZHC 2156
THE QUEEN
v
TODD WALTER SENIOR
Hearing: 22 August 2013 Appearances:
B R Northwood for Crown
P J Kaye for PrisonerSentence:
22 August 2013
SENTENCING REMARKS OF PETERS J
Solicitors: Meredith Connell, Crown Solicitor, Auckland
Counsel: P J Kaye, Auckland
R v SENIOR [2013] NZHC 2156 [22 August 2013]
Introduction
[1] Mr Senior, you appear for sentence having been convicted of five offences, which are:
(a) three counts of manufacturing methamphetamine;1
(b) a representative count of supplying methamphetamine;2 and
(c) a representative count of offering to supply methamphetamine.3
[2] The maximum sentence for each offence is life imprisonment.
[3] You were convicted of these offences on 12 July 2013 following a jury trial at which I was the presiding Judge so I am familiar with all the evidence that was given and particularly the text messages that were before the jury. Following your conviction I remanded you in custody.
Facts
[2] It is not necessary to say very much about the facts.
[3] Let me deal first with manufacturing counts. The first occurred in March
2012 and the second and third were in April 2012. Each manufacture occurred at an address in Roscommon Road, Auckland and on each you were charged as a “party”. A co-offender of yours, Mr Kupkovic, lived at the Roscommon Road address.
[4] You were not the organiser of the manufactures, and nor were you “the cook”, but I am satisfied that you assisted in each manufacture and you did so voluntarily.
[5] You assisted in the first manufacture by providing iodine which is used in the manufacture of methamphetamine. On the second and third occasions, I am satisfied
1 Misuse of Drugs Act 1975, s 6(1)(b).
2 Ibid, s 6(1)(c).
3 Ibid.
that you purchased and delivered ice to the address, and that was also used in the manufacturing process. At trial, the Crown case was that you also acquired iodine for the second manufacture. I am satisfied that you tried to do that, it is apparent from the text messages, but I have reservations about whether you actually managed to achieve that and acquire any iodine. I am going to proceed on the basis that for the second and third counts you supplied ice only.
[6] Your involvement in the offending came to light when the Police executed a search warrant at the Roscommon Road address on 26 April 2012, during the third manufacture. On searching the property, the Police found approximately 440 grams of pseudoephedrine, 1.72 grams of methamphetamine and more than $27,000 cash. There is no evidence that any of that was yours. In fact the only property you had to hand at the time was $61.90 cash.
[7] Turning now to the supply counts, those are “representative” counts. The prosecution may bring a representative count if it contends a person has committed the same offence repeatedly. In this case the allegation was, and which the jury found proved, that between 27 January and 26 April 2012 you offered to supply methamphetamine and supplied methamphetamine on many occasions. To convict you, the jury must have agreed that you committed each offence on at least one occasion during that period.
[8] In my view, your conviction on both charges was inevitable given the numerous pages of text message conversations between you and others. These showed that you supplied or offered to supply small quantities of methamphetamine on many occasions.
[9] As I say, I remanded you in custody following your trial. Prior to that you had been on electronically monitored bail at your mother’s address for 5 to 6 months and before that you were in custody. As I understand it, there were no breaches of the EM bail and that may be some small indication, a positive indication, that you are getting to the point where you are starting to take your situation seriously.
Personal circumstances
[10] Since the trial I have received the Department of Corrections’ pre-sentence report dated 14 August 2013. I have received and considered carefully the submissions from the Crown and from your own counsel and of course I have had the benefit of hearing from you today.
[11] You are 44 years old, a father of one, and have used drugs since you were aged 20 or thereabouts. You became addicted to methamphetamine in 2006 and have been a chronic user since, although you told Corrections, and you told me today and I accept it, that you have been drug free since your arrest in April 2012. If so, that is
16 months and a promising start. The report states that you have been unemployed since about 2006 and you suggested to Corrections that your addiction has been an obstacle to getting employment. That is not a surprise Mr Senior.
[12] Taking into account the five charges for which you are being sentenced today, you now have 107 convictions. These date back to 1987 – so that is 26 years of offending. The vast majority of your convictions are for property related offences such as burglary, theft and driving offences. On the whole they are not for offending against the person. One thing that can be said for you is that you do not appear to be violent.
[13] Your drug related offending is the most relevant for today’s purposes. The earliest of your drug related convictions is in 1989 for procuring or possessing cannabis seeds and possession of cannabis for supply.
[14] The convictions for drug related offending are in 1998. That year you were convicted of manufacturing heroin, which is a Class A controlled drug, and were sentenced to 1 year and 3 months’ imprisonment. You were also convicted of possession of cannabis and possession of drug paraphernalia.
[15] Then we come to 2003. You were convicted of possessing a Class B
controlled drug and possession of cannabis.
[16] In 2007 you were convicted of procuring or possessing methamphetamine.
[17] Now there is this offending in 2012, all of which is methamphetamine related.
[18] Taking up methamphetamine was a backward step Mr Senior. It is a highly addictive drug and breaking the addiction and recovering is difficult. The consequences for those who take the drug, for their families, and for society are serious and long lasting.
[19] There are two other points I note about your offending. The first is that the offending for which you are being sentenced today must have started within weeks of your release on other charges. In December 2011 you were released from prison, having just finished serving a sentence of 3 ½ years’ imprisonment for robbery and related offending imposed in August 2009.
[20] The second point I note is that with two exceptions – one of which is the present offending – your offending has been at a level where it can be dealt with in the District Court and not the High Court. I hope that you will not offend again Mr Senior, but if you do I hope it is not at a level that sees you back before the High Court.
[21] Corrections’ view is that you are likely to re-offend unless you can overcome your addiction. That is a view that will not surprise you. The report says that you are not confident that you have the skill-set to remain offence-free but that is not to say you cannot acquire those skills Mr Senior.
[22] You are now in your mid 40s. You have been offending for more than
26 years. You need to decide whether you want to stop now, and your child would give you every incentive to do so, or whether you are going to keep going and spend most of your time in prison.
[23] I observed myself during the trial and I see again today that you have the support of your family. You have explained to me today that you have recently reached out to them and re-established your relationships with them after many years. I have no doubt that you have tested their support in the past to the absolute
maximum and even the most supportive family will reach the end of its tether eventually Mr Senior.
[24] I have also taken into account that you told me today that you thought that if you participated to some small extent in the manufacture of the methamphetamine then that would avoid the need to commit some other form of crime to fuel your addiction. I take that into account but I have to say the actions you took were a retrograde step.
Approach to sentencing
[25] Now we come to the actual sentencing exercise proper. Please do not think you have heard the final sentence until the end.
[26] In sentencing you today I have to do two things.
[27] First, I must identify what we refer to as the “starting point” for your offending and you have heard me discussing that with counsel. The starting point is to reflect the culpability inherent in your offending. It has nothing to do with you personally, we are looking at what you did. In fixing that starting point, I propose to take the manufacturing charges as the lead offences as they are the most serious, and then to deal with the supply charges by increasing the starting point on those manufacturing charges.
[28] The second part of the exercise is to look at your personal circumstances and consider whether there are any reasons why I should increase or reduce the sentence on account of such matters.
Starting point
[29] Let me come now to the starting point. In fixing the starting point, I need first to remind myself why I am sentencing you and the principles that I must apply. The particular matters I bear in mind are these.
[30] First, as I have already said, methamphetamine is a menace. Manufacturing and supplying it causes harm to the community. You ought to know that, because you are a classic victim of it. I am required to impose a sentence that reflects that you have participated in spreading that menace and which deters you and others from doing it again.
[31] Secondly, the charges of which you have been convicted are not spur of the moment offending. Assembling the ingredients to manufacture methamphetamine takes time. Each material – pseudoephedrine, iodine, toluene, hypo-phosphorous acid – has to be sourced. The evidence in your case included pages of text messages revealing the lengths to which you were going just to source or try to source one ingredient. The texts also indicate that your co-offenders were doing likewise to obtain other items required. So, it is not something that is just done on the spur of the moment.
[32] Thirdly, I am to sentence you on the same basis as others who have committed similar offences.
[33] Fourthly, I am required under the Sentencing Act 2002 to impose the least restrictive sentence that I can in the circumstances.
[34] I have been greatly assisted by counsel’s submissions and also by a case called R v Fatu.4 In that case, the Court of Appeal provided guidance for sentencing for the types of offence of which you have been found guilty. In that case, the Court of Appeal identified bands of sentence principally by reference to the quantity of methamphetamine involved. In this case, there is no or little evidence of the quantities that you assisted in manufacturing or that you supplied. The result of the search at the Roscommon Road address, Mr Kupkovic’s address, possibly says something about the scale of his offending but little about yours, at least on the
manufacturing charges. I am satisfied, in relation to the supply charges, that the
amounts you supplied were relatively small. I take that into account.
4 R v Fatu [2006] 2 NZLR 72.
[35] I also take into account the fact that offenders whose role is less significant than primary offenders – and that is you on the manufacturing charges – can expect starting point sentences towards the lower end of whatever band they would fall within.5
[36] Both counsel are agreed, and I agree with them, that you are within band 2 of Fatu for the manufacturing charges. “Band 2” applies to offending involving the manufacture of between five and 250 grams, and the range is 4 years’ imprisonment at one end of the scale and 11 at the other. You were a party and so I have considered particularly sentences imposed on others who have been guilty by virtue of providing assistance in the manufacturing process. These other cases are
R v Andersen, R v Henderson, R v Tang and Baird v R.6 All of them have some
relevance to your situation.
[37] At the lower end of the scale there is R v Andersen where the Judge adopted a starting point of 3 ½ years and at the upper end of the scale, just on the manufacturing charges, there is Mr Wu in R v Tang where the Judge adopted a starting point of 6 ½ years’ imprisonment.
[38] I am not going to talk through the details of each of those cases now and, with counsel’s agreement, shall put the details in the sentencing note.
[39] In R v Andersen,7 Mr Anderson pleaded guilty to one count of manufacturing a relatively small amount of methamphetamine. He was living at an address where methamphetamine was manufactured and he assisted the manufacture by lending his car so an associate could get equipment for the manufacturing process. Mr Anderson used some of the methamphetamine that had been produced and he packed up the clandestine laboratory. The Judge adopted a starting point of 3 ½ years’
imprisonment.
5 At [31].
6 R v Tang HC Auckland CRI-2009-004-13439, 6 October 2011; Baird v R [2012] NZCA 430; R v Andersen HC Auckland CRI-2007-057-753 30 September 2008; and R v Henderson HC Auckland CRI-2009-004-7670, 25 June 2010.
7 R v Andersen HC Auckland CRI-2007-057-753, 30 September 2008.
[40] In R v Henderson,8 the Judge adopted a starting point of 5 years’ imprisonment on two charges of manufacturing methamphetamine and added 1 year to reflect Mr Henderson’s other offending, namely one count each of supplying and offering to supply methamphetamine and of possession of precursor substances and materials for manufacture. Mr Henderson had participated in the manufacturing charges by “assisting somebody else” and acting “as an intermediary”.9
[41] In R v Tang,10 an offender named Mr Jones was convicted on three counts of manufacturing methamphetamine. Mr Jones was not actively involved in the manufacture but he did supply toluene. The Judge took a starting point of 5 years on the manufacturing charges and increased it by 18 months for other offences – two of supplying methamphetamine and one of possession of a material for manufacturing methamphetamine. The Court of Appeal confirmed that sentence on appeal.11
[42] For another offender in Tang, Mr Wu, the Judge adopted a starting point of
6 ½ years’ imprisonment for three counts of manufacturing methamphetamine. Mr Wu had been present on two of the three occasions of manufacture and had assisted in the manufacturing process. He had obtained a cutting agent for that purpose. The Judge increased the sentence by 1 year for other offences including two counts of supplying methamphetamine, two of possession of methamphetamine for supply and one each of possession of equipment for manufacture and possession
of a precursor substance.12
[43] I consider the role you played to be closer to the Andersen case than the others. It was relatively minor, and with that in mind, I take a starting point of
4 years’ imprisonment on the manufacturing charges.
[44] Then there is the supply offending, being the two representative counts. Crown counsel submits that a starting point of 3 to 4 years’ imprisonment for that
offending would be appropriate, if it were taken on its own. Mr Kaye for you
8 R v Henderson HC Auckland CRI-2009-004-7670, 25 June 2010.
9 At [2].
10 R v Tang HC Auckland CRI-2009-004-13439, 6 October 2011.
11 Baird v R [2012] NZCA 430 at [99].12 R v Tang, above n 7, at [54]-[55].
submits that any uplift should be at the lower end of the scale and should not be more than 6 months.
[45] Both offences are serious. The person who first supplied you did you no favours at all. I uplift the starting point by 1 year to reflect the two representative counts. That means your final starting point, not your final sentence but your starting point, is 5 years’ imprisonment.
Adjusting the starting point
[46] I then turn to the second part of the exercise, Mr Senior, which is to consider whether I need to increase or reduce the sentence on account of other matters.
[47] Crown counsel submits that I need to increase your sentence to reflect your previous convictions and the fact that you offended whilst on parole. He submits that an uplift of 1 year is warranted for that. Mr Kaye submits it should be very much at the minor end of the scale and again in the 6 months region.
[48] I propose to increase your sentence by 9 months, to reflect your previous convictions and the fact that you offended whilst on parole. Your prior convictions for drug offending are the most relevant but there is also the sheer extent of your offending history. Six of the 9 months uplift are for your previous drug related convictions and 3 months are for your other convictions and the fact that you offended whilst on parole. This is not to punish you twice for the same offending, but because you simply have not stopped offending despite numerous sentences.
[49] I do, however, take into account the fact that you have been on EM bail for
5 or 6 months now. The Crown accepts that I may take that into account. I propose to reduce the sentence by 2 months for that reason and by 3 months for remorse given the comments you have made to me today about your full acceptance of responsibility and your wish to turn matters around.
[50] That brings me to an end sentence of 5 years and 4 months’ imprisonment.
Sentence
[51] Mr Senior, please stand:
(a) I sentence you to 5 years and 4 months’ imprisonment on each of counts 4, 6 and 8, being the charges of manufacturing methamphetamine.
(b)I sentence you to 1 year imprisonment on count 9, the representative charge of supplying methamphetamine.
(c) I sentence you to 9 months’ imprisonment on count 10, the representative charge of offering to supply methamphetamine.
[52] These sentences are to be served concurrently. That means your total sentence is 5 years and 4 months’ imprisonment.
[53] Please stand down.
..................................................................
M Peters J