R v Senior - [2013] NZHC 2156

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 Prisoner

Sentence:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Senior

Details

AGLC: R v Senior [2013] NZHC 2156
Case: [2013] NZHC 2156
Decision Date: 22 August 2013

CaseChat Overview and Summary

The case of R v Senior before the High Court of New Zealand concerned the sentencing of Mr Senior, who was convicted of five offences, including three counts of manufacturing methamphetamine, one count of supplying methamphetamine, and one count of offering to supply methamphetamine. The court had to determine an appropriate sentence for Mr Senior, taking into account the nature and circumstances of the offences, as well as his personal history and background. The key legal issue was to determine the appropriate starting point for the sentence, and whether any adjustments should be made to account for mitigating or aggravating factors.

The court considered the seriousness of the offences, noting that methamphetamine is a highly addictive and harmful drug, and that manufacturing and supplying it causes significant harm to the community. The court also considered the role Mr Senior played in the offending, which was not that of the primary offender but rather an assistant. Based on previous cases and guidelines provided by the Court of Appeal in R v Fatu, the court determined that Mr Senior fell within band 2 for the manufacturing charges, which involved the production of between five and 250 grams of methamphetamine. The court decided on a starting point of 4 years' imprisonment for the manufacturing charges and an additional 1 year for the supply charges, resulting in a total starting point of 5 years' imprisonment.

The court then considered whether any adjustments were necessary to account for mitigating or aggravating factors. The court decided to increase the sentence by 9 months to reflect Mr Senior's extensive criminal history, particularly his drug-related convictions and the fact that he offended while on parole. However, the court reduced the sentence by 5 months to account for Mr Senior's compliance with electronically monitored bail and his expression of remorse. The final sentence imposed on Mr Senior was 5 years and 4 months' imprisonment, to be served concurrently.

Orders