R v Smethurst HC Auckland CRI 2006-092-16424
[2008] NZHC 2428
•29 July 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-092-16424
THE QUEEN
v
WAYNE JOHN SMETHHURST
Hearing: 29 July 2008
Appearances: I F West for Prisoner
B R Northwood for Crown
Judgment: 29 July 2008
SENTENCE OF KEANE J
Solicitors:
Crown Solicitor, Auckland
R V SMETHHURST HC AK CRI 2006-092-16424 29 July 2008
[1] Wayne Smethhurst, you appear for sentence, having pleaded prior to trial, for conspiring between 27 June – 23 November 2006 to manufacture the class A controlled drug methamphetamine; for manufacturing on two occasions, first between 17 – 18 November 2006 and then between 20 – 22 November 2006, at Waiuku; for importing the class C controlled drug, pseudoephedrine, between 1
October – 10 December 2006; and for supply of methamphetamine between 22
October – 23 November 2006.
Context
[2] In June 2006 your part, with that of a number of others, in manufacturing and selling methamphetamine first became apparent on a search of inner city Auckland addresses and three storage units, one of which was yours. The level and range of activity that the police then began to monitor, after obtaining interception warrants, proved to be both intensive and diverse. But for the purposes of sentence I need only refer to those aspects that concern you: manufacture twice at Waiuku, one outcome of the conspiracy in which you shared; your part in importing pseudoephedrine by going to China; and the supply of others.
[3] On 16 November 2006 you were staying at the Waiuku address where you were joined by two of your co-offenders the following day. You three engaged in manufacture together. The scale can only be established by inference. The Crown points to the transactions that followed. One of your co-offenders, who has since admitted his part and been sentenced, attempted to supply four ounces of methamphetamine to the brother of another of your co-offenders. He was apprehended. That apart, you or your co-offenders advised at least five others that they too could anticipate supplies. The Crown invites the inference that the yield must have been at least seven ounces (196 grams of methamphetamine), and could have been higher.
[4] The second course of manufacture at Waiuku, in which you again played a part between 20 – 22 November 2006, was not carried through completely. The liquid methamphetamine obtained was not converted to methamphetamine
hydrochloride powder. Once again, the scale has to be inferred, but this time from three perspectives.
[5] On 20 November 2006 you told a co-offender that you had secured 1,000 packets of pseudoephedrine in one deal and you needed $65,000 urgently because you thought you would be obtaining pills in smaller lots. That, it seems, was arranged. But that apart, there was a quantity of hydrophosphorous acid and iodine discovered, suggesting that manufacture was on a commercial scale with a high yield. Most cogently of all, the liquid methamphetamine discovered, 319 grams in all, suggested a potential yield of 250 - 300 grams of methamphetamine hydrochloride.
[6] On that basis, the Crown contends, the combined yield of the two processes of manufacture could be of the order of 500 grams of methamphetamine or, if not that, between 450 - 500 grams. Your own counsel initially contended for a lesser yield, between 250 – 300 grams. She now accepts that the yield may well have been higher but she urges caution about any inference that can be taken even from the quantity of the liquid methamphetamine base.
[7] Your part in importing pseudoephedrine from China is quite distinct. On 20
September 2006 you travelled to China to obtain pseudoephedrine for the group. You were joined by a co-offender. You arranged to transport to New Zealand by container, in a Rolls Royce car and ornaments in the car, Contac NT pills weighing
8.419 kilograms capable of yielding 1.7 to 2.5 kilograms of methamphetamine. As your counsel says, that was a high risk strategy. Even allowing for the sophistication of the attempt on which the Crown relies, that inevitably would have attracted attention at the border.
[8] Finally, you supplied others on six occasions or so on your return from China. The quantity can only be inferred. As the Crown accepts, it was in grams, not ounces. It is relatively second order.
Pre-sentence report
[9] Inevitably, given the serious nature of your offending, your pre-sentence report recommends a sentence of imprisonment. Three aspects of it deserve emphasis.
[10] First, you are an Australian citizen anxious apparently to return to Australia, and more especially because, as your counsel confirms, you are a paraplegic as a result of a motor vehicle accident in 1995 and confined to a wheelchair.
[11] Second, you have no previous convictions in New Zealand but you do have related convictions in Australia. Your assessor was unable to verify your convictions. I see that you have four drug related convictions in Australia, the most serious for trafficking in 1996, for which you received a three year sentence of imprisonment suspended for four years.
[12] Third, as much to the point, your assessor says, your dependence on methamphetamine has been entrenched and at the time of assessment you did not show a large instinct to face up to that. Your risk of re-offending is considered to be medium to high.
Purposes and principles
[13] In sentencing you for these offences I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim. This was far from victimless offending. I must also, so far as it is compatible, assist you in your rehabilitation and reintegration into the community.
[14] In this I must have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with other cases, the need to impose a sentence near to the maximum, should that be warranted. Equally, I must take into account the contrasting principles: the need to adopt the least restrictive
outcome appropriate, the need to take account of anything that would make any otherwise proper sentence disproportionately severe, and the need to recognise you and your personal background.
[15] Where drug offending is as serious as yours is, I have to say, personal circumstances and the more positive purposes and principles of sentencing have normally little part to play. Denunciation and deterrence is what is principally called for. However, as I shall say shortly, your paraplegia does deserve to be recognised in the sentence imposed.
Manufacture offence
[16] Counsel agree that, for the purpose of sentence, your lead offences are the manufacture offences and they do not differ significantly as to how that is to be approached. Counsel for the Crown contends that, as I have said, the combined yield of the two processes of manufacture was of the order of 450 - 500 grams and that you lie at the top of band 3 or the bottom of band 4: R v Fatu [2006] 2 NZLR 72. The starting point for sentence, if you lie in band 3, is between 10 – 15 years imprisonment, or if you lie in band 4, between 13 years and life imprisonment.
[17] Your own counsel contends, as I have said, that on the quantity that can safely be inferred as to manufacture, you lie in band 3. But she also says that, even if you were in band 4, you ought to lie at the bottom of that band, which attracts a starting point two years lower than the maximum starting point for band 3; in other words 13 years. The result is that counsel agree that for your manufacturing offences the starting point should be 13 years imprisonment.
[18] On sentence, where the scale of manufacture depends on inference, what the likely yield was or could have been calls for care. As to your first course of manufacture, for instance, care about what can be inferred from intercepted conversations. As to the second, care as to what can be inferred from the ingredients of manufacture found, in the absence of all ingredients. But as to the second manufacture, the liquid in the flasks seems to me to be inherently reliable.
[19] The result is that I do not accept the Crown’s estimate absolutely literally as to the combined yield of the two courses of manufacture. But it does seem to me that, whether you are to be seen as lying in category three or category four, the starting point on which counsel agree, 13 years, is proper.
[20] I must, as counsel agree also, increase that starting point to take account of your other offending, for which concurrent sentences will be imposed. Your part in the conspiracy, your part in travelling to China to obtain very considerable quantities of pseudoephedrine, your supply of others. The Crown contends that the uplift should be three to four and a half years. Your own counsel contends for a two year uplift.
[21] My own view is that, taking account of the importing offence especially, which was very serious in its own right, a three year uplift is called for. The resulting maximum sentence will be 16 years imprisonment subject to the credits to which you are entitled. They are your plea prior to trial and the effect that your paraplegia will have on you in serving an otherwise proper sentence. I will come to those shortly.
Related offences
[22] Your related offence, conspiracy to manufacture, is largely contextual. It marks the fact that the manufacture to which you were a party was a concerted enterprise.
[23] In R v Te Rure CA 374/06, 20 July 2007, a conspiracy given effect, as yours was, was equated with the offending that resulted. But I agree with Lang J in R v Savage (HC WHA, CRI 2005-029-001267, 21 July 2006), that because conspiracy attracts a 14 year maximum term, not life, a lesser sentence must be imposed, perhaps as much as 30 percent less.
[24] The Crown contends for a finite sentence of seven years for this offending. Your counsel contends for a five year sentence. My own view is that seven years is proper.
[25] Your importing offence, as I have said, was significant in itself. It was quite distinct from your part in the process of manufacture. You had to go to China to pursue this option. You enlisted help while you were there to bring it off. You were away from New Zealand in China between 20 September – 20 October 2006. It was a sustained effort. The Contact NT that you imported was very considerable.
[26] This importation, according to the Crown, lies in category one as identified in R v Ho (HC AK, CRI 2005-092-000567, 12 April 2005), Winkelmann J, and attracts a six or seven year starting point. The Crown urges a sentence that sits towards the top of that range. Your counsel cannot dissent and a seven year term seems to me to be right to mark that offending.
[27] Finally, there are the supply offences. As to those, which are, as I have said, second order, it will be enough to say that I agree with a three year term in which both counsel concur, again to be imposed concurrently.
Credit for plea
[28] In sentencing you, finally, I must allow you a credit for plea. You pleaded after depositions so you are not entitled to a full credit, in the vicinity of a third. However, you did begin negotiating a plea late last year and that was entered in March this year, well before your scheduled trial date. The Crown originally urged a credit of 20 percent. Your counsel urges a credit of 30 percent. My own view is that a 25 percent credit, which is the usual credit for plea, is appropriate.
[29] Then there is the distinct question of your paraplegia and the effect that will have on your ability to serve your sentence. It is well established that paraplegia can be the basis for a credit on the basis that an otherwise proper sentence would be disproportionately severe. In one case a four year sentence was reduced by a quarter on that account: R v Woodgate (HC WHA, T 35464, 30 November 2004), Randerson J. There is another such case; R v Wallace (HC HAM CRI 2006-019-
10117, 29 August 2007), Allan J, where credit was given.
[30] Your counsel seeks a two year credit. The Crown opposes that and says that from the first you have been on notice that this offending will result in a lengthy term of imprisonment. Any credit should be minimal. My view is that your disability is real and that as you have found already it renders you vulnerable in a prison environment, and that this should be recognised in what is to be a lengthy sentence come what may. You will have a two year credit.
[31] The result is that from a starting point of 16 years, four years must be taken off for your credit for plea and two years for your disability. Your effective sentence will be ten years imprisonment. You will also be sentenced concurrently to seven years imprisonment for the conspiracy and importing offences and three years concurrently for the supply offence.
Minimum term
[32] Finally, the Crown seeks a minimum term, contending that your offending is of such an order that the sentence I have imposed will be insufficient to hold you accountable, to denounce and deter your offending and to protect the community: s
86(2) Sentencing Act; R v Anslow (CA 182/05, 18 November 2005). The Crown contends for a minimum term of at least 50 percent.
[33] Your counsel submits that your condition is such that the sentence imposed on you will be hard enough as it is and I agree. To impose a minimum term on you would be inconsistent with the credit that I have given you for the difficulty the
sentence will impose. I decline to impose a minimum term.
P.J. Keane J
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