R v Sisson HC Auckland Cri-2006-090-1151

[2007] NZHC 1757

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-090-001151

THE QUEEN

v

STACEY SISSON

Appearances: S Walsh for the Crown

H B Leabourn for the  Prisoner

Judgment:      25 May 2007

SENTENCING NOTES OF PRIESTLEY J

Counsel/Solicitors:

Meredith Connell, P O Box 2213, Auckland. Fax: [phone]

H B Leabourn, P O Box 941, Auckland. Fax: [phone]

R V SISSON HC AK CRI-2006-090-001151  25 May 2007

Introduction and description

[1]      Mr Sisson, I sentence you today on four charges.   Three of these are laid under the Misuse of Drugs Act 1975 and all relate to methamphetamine manufacture and possession of relevant chemicals and equipment.  The fourth is laid under s 45 of the Arms Act 1983 covering your unlawful possession of a rifle.

[2]      Your arrest on these charges, significantly in my view, took place 15 months ago.   On the morning of 16 February 2006 your residence was searched by police seeking another person pursuant to outstanding arrest warrants.  A pipe was found next to you in your bedroom where you were asleep.   A warrantless search took place.   In a garage accessible through your bedroom were found containers of hydrochloric  acid  and  sulphuric  acid  being  the  precursor  substances  of  the s 12A(2)(b) count.   Also found, relevant to the s 12A(2)(a) count, were conical flasks,  a  condenser,  a  Pyrex  baking  dish,  a  heating  element,  and  equipment consistent with being a water distiller.

[3]      Discovered in the garage, which the police rightly classified as a laboratory, photographs of which I have seen, was a .22 calibre rifle with the wooden stock removed and also, I accept, with the bolt detached.  There was no ammunition close to the rifle and the rifle did not have a magazine.  It is thus, and counsel are agreed on this, a firearm which was inoperable at the time.

[4]      You admitted to ownership initially but denied knowledge of what you were doing with the equipment, stating in your police interview that you were “….just fucking around with something I don’t know nothing about”.

[5]      At a criminal callover before Cooper J in July 2006 you entered not guilty pleas.  Your guilty plea did not arrive until almost seven months later, on 7 February

2007, which I am told was the morning of your jury trial but before the jury was empanelled.  However, counsel accept that a few working days prior to that your guilty pleas had been intimated.

[6]      On  the  manufacture  of  methamphetamine  charge  you  are  exposed  to  a maximum penalty of life imprisonment.  On the two s 12A(2) charges the maximum is five years.  The Arms Act charge carries a maximum of four years imprisonment.

[7]      I have read the agreed summary of facts and the pre-sentence report.  You are a single, unemployed man aged 31.  You candidly admitted to the probation officer your use of drugs as an emotional escape, your preferred drugs being cannabis and methamphetamine.   I have also had produced to me this morning some helpful references.  I am told that you come from a good and hardworking family and I have also received testimonials from two of your previous employers, both of whom attest to your hard work and your good working habits.  To your credit also, Mr Sisson, while you have been on remand you have successfully completed a lifestyles programme and also completed an anger management programme.   Those matters are to your credit and will, I hope, if you play your cards right, stand you in good stead when you are released.

[8]      Prior to your arrest you were using methamphetamine twice a day and stated that you made that drug for your personal consumption although you would sometimes share it.  There is thus a clear basis for your guilty plea of manufacturing methamphetamine although there is no evidence, as the Crown responsibly accepts, of the quantities produced.  You have indicated a willingness to take part in drug and alcohol rehabilitation programmes.

[9]      The pre-sentence report assesses your desire to change your life as sincere, but fairly observes that previous chances to modify your behaviour through community-based sentences have not worked.  Until such time as your motivation is proved through commitment, it is assessed as low to medium particularly in the drug-related area.  And in that regard, Mr Sisson, although those two courses you have completed in recent months will assist you, the real proof will be whether you can put to use the skills you learned in those courses when you are released back into the community.  Only you can do that.

[10]     With one exception your previous convictions are driving related.   In June

2003, however, you were sentenced to 50 hours of community work for possession

of a Class B drug.   You have over $13,000 of unpaid fines all related to motor vehicle use.  I note that you have 14 fines imposed for driving an unlicensed motor vehicle  and  nine  for  no  warrant  of  fitness,  which  demonstrate  in  my  view  a somewhat cavalier approach to your obligations.    Although your counsel optimistically asked me to remit those fines today, I have no such power to do so, although I accept that as part and parcel of your rehabilitation, remission of those fines, wholly or in part, might assist you.  That depends on what information you put before the relevant forum at the time you make such an application.

[11]     The Crown stresses in terms of ss 7 and 8 of the Sentencing Act 2002 the need to reflect, with Class A offending, denunciation and deterrence.   Counsel responsibly acknowledges that much of the paraphernalia of a drug supplier, such as point bags and scales, were absent in your case, but points to the presence of a firearm, which in any drug context must be regarded as a seriously aggravating factor.  In this case, however, as I have already said, it is accepted that the rifle was partly disassembled and inoperable.  Other than the correct observation that your manufacturing offending falls at the lower end of Band 2 of R v Fatu [2006] 2 NZLR

72, the Crown has no proposals on sentencing range.  Mr Walsh, however, when pushed, did not quarrel with a start point of between four years nine months and five years and an end sentence of between three years nine months and four years.  Your own counsel too accepts both those start point and end point ranges   as being appropriate.

[12]     Your  counsel  accepts  that  the  s 7  purposes  of  accountability  promoting responsibility, denunciation, deterrence, and community protection are relevant as are the s 8 principles (a) – (f).

[13]     Mr Leabourn submits that the possession of the firearm was not linked with manufacturing and that it was in the house as a result of your assisting your father with  his  moving;  was  old  and  incapable  of  being  fired.     I  do  not,  in  the circumstances, see any useful purpose in holding a disputed facts hearing on this aspect.  The Crown agrees and it would appear that, if necessary, your father could confirm those matters.

[14]     Mr Leabourn submits that the sentence imposed by Lang J in R v Sorich (HC AK CRI-2005-005-2811, 5 September 2006) is a useful guide as did the Crown in its written submissions.   In Sorich there were more precursor chemicals found.   A loaded shotgun was found in a locked room, to which the prisoner had the key, and there was little evidence of the yield and commerciality of the manufacturing operation.  Higher start points were contended for in Sorich, with the Judge adopting a lead sentence start point of six years three months.

[15]     On that basis Mr Leabourn contends for a start point of four to five years with an end sentence of three-and-a-half to four years.

[16]     As the Court of Appeal pointed out in Fatu, the scale of your offending in the manufacturing  area  is  problematic.    In  terms  of  [41]  of  that  authority  there  is evidence that you not only possessed some equipment but also, from ESR analysis, it had been put, as you well know, to some use.

[17]     I intend to treat the scale of your manufacturing as being largely limited to your own use and occasional supply to others.  Such an approach is consistent with the lack of dealer-related paraphernalia.

[18]     In terms of R v Taueki [2005] 3 NZLR 372, I must, in reaching a start point, consider offence-related aggravating features. You were clearly manufacturing in an urban residence. The risk to other innocent parties is much greater in an urban context than it is in some isolated rural setting where, if an explosion occurs, it is only the perpetrators who suffer. I note that the one-litre bottle of sulphuric acid was only one-sixth full and the hydrochloric acid 500 ml containers were half full and a quarter full respectively. This suggests potential future use as well as past use as Mr Walsh rightly submitted.

[19]     Manufacture   of   methamphetamine   with   the   associated   possession   of dangerous chemicals, and the risks inherent in manufacturing in an urban setting require, in my view, some uplift.  I intend to treat the location of the firearm being unloaded and inoperable in the vicinity of the garage laboratory as a neutral factor here.

[20]    The other aggravating features of course in terms of R v Taueki are the possession by you during the same time frame of related equipment.

[21]     Thus, on a basis which I consider reflects the aggravating features and also fairly reflects the totality of your offending, I intend to adopt a start point of four years nine months to five years imprisonment on the manufacturing charge using that as the lead sentence.

[22]     I now turn to mitigating factors.   You are entitled to some credit for your guilty  pleas.    However,  that  credit  must  be  considerably  smaller  than  would otherwise be the case.  In cases where victims have to give evidence at a trial (particularly in sexual offending trials) it seems to me that a generous credit is justified to reflect the trauma which such a trial will bring to so many people.  There is also a cost saving if a trial is avoided.   But in this case the principal witnesses against  you  were,  with  one  exception  out  of  the  15  witnesses  involved,  police officers and analysts.  You were as guilty, in my view, in February of this year when you pleaded, as you were when you were arrested 12 months previously, although I accept your counsel’s submission that the most serious manufacturing charge was not laid until some time later.  Your late guilty plea has saved no victims.  Rather it has arguably caused considerable disruption to the Crown, to witnesses, to a jury panel, and to the Court.  Had you pleaded guilty on arraignment in July 2006 I would have unhesitatingly accorded you a credit of somewhere around 35% inclusive of other mitigating factors.  In this situation, however, I decline to go higher than approximately 20%.

[23]     I  also  include  in  that  mitigating  discount  the  need  to  promote  your rehabilitation, and to impose on you the least restrictive outcome, and to give you some credit and encouragement for your motivation to change your ways.  I also accept that you are remorseful, Mr Sissons, and that you are making efforts to rehabilitate  yourself,  and  you  also  have  a  personal  realisation  of  where  drug addiction has led you.  I also weigh your previous drug conviction, this being an aggravating factor personal to you.

[24]     Accordingly on the charge of manufacturing methamphetamine you will be sentenced to three years and nine months imprisonment.  I regard that as a lenient sentence, in respect of which I could have gone higher, but I am giving you as much credit as I can for your rehabilitative efforts to date.  On the charge of possessing precursor substances I sentence you to 18 months imprisonment.  On the charge of possessing equipment I sentence you to 12 months imprisonment.  On the Arms Act charge, reflecting the fact that the rifle was, when found, inoperable, I sentence you to a term of three months imprisonment.  All those four terms of imprisonment are to be served concurrently.

[25]    I also recommend that during your imprisonment you be given meaningful access to alcohol and drug related programmes and programmes geared towards the acquisition of life skills.

[26]     Thank you.  Take him down.

……………………

Priestley J