R v Shortcliffe HC Auckland CRI 2004-092-9992

[2005] NZHC 1680

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-092-9992

Q U E E N

v

SHANE ALLAN SHORTCLIFFE

Hearing:         15 April 2005 Appearances: E Fletcher for Crown

C Harder for Prisoner Judgment:  15 April 2005

SENTENCING BY SIMON FRANCE J

Solicitors:

Crown Solicitors, Auckland Counsel for the Accused: Christopher Harder, Auckland

R V SHORTCLIFFE HC AK CRI 2004-092-9992 [15 April 2005]

Offending

[1]                   Shane Allan Shortcliffe, you have pleaded guilty to one charge of producing a precursor substance, knowing that it was to be used to produce or manufacture a controlled drug, and one charge of possession of precursor equipment capable of being used in the production and manufacture of a controlled drug.

[2]Each offence is punishable by a maximum of five years.

Relevant facts

[3]                   On 23 April 2004 a search warrant was executed at an Otahuhu address. You were present. It was not your residence, although it previously had been. In a back shed there was found pseudoephedrine together with precursor equipment such as a hydrogen chloride gas generator, a condenser and a pyrex dish.

[4]                   You have pleaded guilty to possession of these items, the accepted allegation being that they were all to be used in the manufacture of methamphetamine.

[5]                   You were committed to trial on 12 November 2004 on these charges, together with a manufacturing charge. On 25 February you pleaded guilty to the two charges, this being three days before trial.

[6]                   You have been in custody since your arrest on 23 April 2004, although for a significant period of that time you were serving another sentence.

Personal facts

[7]                   You are 32 years old. You were in a relationship and had two children with your former partner. They reside with their mother. You have been living primarily with your step-mother. The summary of facts notes that that you have at times otherwise lived with friends and in a car. You say you have no alcohol issues and do not use P. Your former partner confirms this.

[8]                   You have told your probation officer that your period of incarceration since your arrest has been a wake-up call. I have today received a letter from you which is to similar effect.

[9]                   You owe $24,525 in fines dating back to 1993. You also owe $455 reparation. The period of imprisonment, already described earlier, was your first.

Competing submissions

[10]               The Crown, in written submissions, indicated a range of two to four years as a starting point. Following my indication at the hearing that I regarded that as unhelpfully broad, Mr Fletcher for the Crown confirmed that the bottom end of that range was seen as appropriate.

[11]               The Crown emphasises the $4,000 in cash found in your possession, and the lack of any personal habits to feed, as matters reflecting a commercial focus. The Crown otherwise identifies no aggravating features and accepts that you are entitled to credit for a guilty plea.

[12]               The Crown also places weight on the cases of Worth (CRI 2004 019-7297, Hamilton, 21 October 2004, Williams J) and MacLaughlin (CRI 2004 019-000030, Hamilton, 10 February 2005, Ronald Young J). It supports the remission of fines. I am also advised that the $4,000 in cash that was found with you at the time of your arrest, which might otherwise have been the subject of a contested application for forfeiture, has in fact been paid in any event to the Inland Revenue Department. No issue therefore arises.

[13]               On your behalf Mr Harder argues for a starting point of 12 to 18 months. He emphasises the relatively low potential yield of the material that you had in your possession. His submissions indicate that it would have produced 3.5 grams of methamphetamine, and the Crown does not take issue with this. He notes correctly that the maximum starting point for each offence, given the timing of the offending is five years. He submits on your behalf that you have good family support, that you are not a high risk of reoffending and that you are well motivated to change.

[14]               In addition to your own letter I received a letter supporting your general character from a previous employer.

[15]               Mr Harder referred to several cases for his contention for the starting point, and in particular I have had regard to the cases of Chicoine (CA 220/04, 21 March 2004) and Ho (CRI 2005 092-000567, Auckland, 12 April 2005, Winkelman J).

[16]               Mr Shortcliffe, the law requires me to identify the specific purposes of sentencing this morning. Having regard to those that are identified in the statutes, in my view the relevant purposes are well settled in the area of drug offending. This case is no different. The primary purposes that I identify are the need to hold the offender accountable, to denounce the conduct, and generally to deter others from engaging in what has become a serious problem for society. I also remind myself, in terms of s 8 of the Sentencing Act that I must impose the least restrictive outcome that is appropriate in the circumstances.

[17]               The law also requires me to identify aggravating and mitigating factors. I do not see particular evidence of pre-meditation, other than that inherent in the offence, and so I see no relevant aggravating factors. In terms of mitigation you are entitled  to some credit for a guilty plea, but that is generally greatly reduced because of the time at which it was made. However, today Mr Harder has explained to me, and I accept, that the timing is somewhat explained by the late arrival of ESR reports and the consequent reduction in charges stemming from that.

Starting point

[18]               I have considered the cases referred to me. Of those I rely particularly on Chicoine, Ho and MacLaughlin. I also have regard to two Court of Appeal authorities, the recent sale case of methamphetamine Arthur (CA 382/04, 17 March 2005), which the Crown referred me to and a very recent decision considering precursor substances, Bunning (CA 378/04, 6 April 2004). In Ho, where the importation of precursor substances was much more significant than the present case, against an eight year maximum starting point, a starting point of three-and-a-half years was taken.

[19]               I accept that the potential production in this case was modest. Even though there is some dispute as to the $4,000, I also note your lack of any personal habit to feed, and have little doubt that there was a commercial element to your offending.

[20]               Considering all those cases and the cases discussed in them, and bearing in mind your counsel’s submissions, I take two years as your appropriate starting point.

[21]               I was minded to give a very small reduction for the guilty plea, but accepting Mr Harder’s submissions and also the letter you have given me today setting out a positive approach to the future, I reduce that sentence by five months. In doing that I bear in mind that in the area of drug offending, the authorities are very clear that personal circumstances can be given little weight, but I have endeavoured, in keeping with s 8 of the Sentencing Act, to maximise the amount of credit you can obtain.

[22]               Accordingly, on each of the two charges, I sentence you to 19 months imprisonment to be served concurrently.

[23]               Mr Harder has indicated a request for home detention. The timing of the offending means that you are to be considered under the old law. Under that law the Court had a rather loose gate-keeping role as to whether leave should be given. Bearing in mind your commitment to the future, but also recognising a slightly itinerant lifestyle and the need for deterrence, I decline leave to grant for home detention. I bear in mind that in identifying a need for deterrence I intend to remit  the total amount of fines that you owe, but not the reparation. I also note that given the amount of custodial remand that you have served, the issue may be somewhat moot is that you are likely to be entitled to release in the near future.

[24]               In terms of s 14(1) of the Parole Act, I impose the standard conditions. I see no need for any special conditions.

[25]               Finally, as indicated I remit the total of your fines, less the sum of $455 which is owing as reparation.

Simon France J