R v Smith - [2012] NZHC 3003

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-009-008952 [2012] NZHC 3003

REGINA

v

MICHAEL LESLIE SMITH

Hearing: 1 November 2012

Counsel: B Hawes & N Robson for Crown
M I Sewell for Prisoner

Judgment: 1 November 2012

SENTENCING REMARKS OF WHATA J

[1] Mr Smith you have been found guilty on the following charges: (a) Manufacture of methamphetamine;
(b) Unlawful possession of explosives;

(c) Possession of precursor substances (x 2);

(d)Possession of equipment with intent to manufacture methamphetamine (x 2); and

(e) Unlawful possession of firearms.

[2] You also pleaded guilty to possession of a pistol.

R V SMITH HC CHCH CRI 2010-009-008952 [1 November 2012]

[3] Your lead offending is the manufacture of methamphetamine, which attracts a maximum penalty of life imprisonment.

Facts

[4] Various items associated with the manufacture of methamphetamine were located at Southey Street. Similarly, various items involved in the production of methamphetamine, including precursor items were identified at 642 Main South Road.

[5] In this regard I will attach to my sentencing notes the description of items found at the respective addresses provided by experts for the police. This was not contradicted by other expert evidence.

[6] While the jury clearly found you were guilty of manufacture of methamphetamine and in possession of the said items, the evidence about the scale of the activity was sparse and the Crown accepts that it cannot substantiate the quantity of methamphetamine which was manufactured by you.

Personal circumstances

[7] You are a 36 year old mechanic by trade. You have a supportive extended family including your brothers. You have two daughters aged 12 and 18.

[8] I have also had the opportunity to consider your pre-sentence report. In it you are recorded as having used methamphetamine socially. You also said to the report writer that you provided materials that would be used to manufacture drugs, in exchange for drugs, thereby reducing the cost of them to you. The report records that you were not aware that you were part of a bigger drug scene.

[9] The report also records that you demonstrated regret for your actions, indicating remorse.

[10] The report writer observes that your recent offending indicates that you are at low risk of reoffending. However, given the impact of methamphetamine on communities you are regarded as a medium risk of harm to others in the same offending circumstances. The report recommends that you would benefit from an updated substance abuse assessment. The report writer observes though that you are motivated to address your offending and are able to implement a plan targeted at reducing your own offending. A term of imprisonment is recommended.

Crown submissions

[11] The Crown submits that your offending is likely to fall within Band 2 of R v Fatu.1 A starting point of four to six years is recommended as appropriate for sentence. On the counts relating to possession of a pistol and firearm found at Hickory Place, it is submitted by the Crown that a cumulative sentence…

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 Smith

Details

AGLC: R v Smith [2012] NZHC 3003
Case: [2012] NZHC 3003
Decision Date: 1 November 2012

CaseChat Overview and Summary

In Regina v Michael Leslie Smith, the defendant was found guilty of manufacturing methamphetamine, unlawful possession of explosives, possession of precursor substances, possession of equipment with intent to manufacture methamphetamine, and unlawful possession of firearms. The defendant also pleaded guilty to possession of a pistol. The case was heard in the High Court of New Zealand, Christchurch Registry. The defendant's legal counsel argued that there was insufficient evidence to establish commerciality in the manufacturing of methamphetamine, while the Crown submitted that a starting point of four to six years was appropriate for sentence.

The court had to decide on the appropriate starting point for sentencing and the appropriate discount for the defendant's personal circumstances. The court held that there were real difficulties in assessing the defendant's culpability given the lack of evidence of the extent of manufacture at Southey Street. The court considered the totality of the evidence against the defendant, which suggested that he was involved in a commercial operation at some level. The court decided to commence with a starting point at the borderline of the commercial range set out in R v Fatu, namely four years. The court also took into account the totality of the defendant's drug offending overall. The court examined the defendant's personal circumstances and considered him to be a low risk of reoffending. The court decided to afford the defendant a 10% discount for the purposes of recognising the need to promote his rehabilitation but also acknowledging that he appeared to acknowledge the need to be accountable for what he had done.

The defendant was sentenced to three years and seven months imprisonment for the lead offence of manufacturing methamphetamine. The defendant was also sentenced to three years on each of the charges of possession of precursor substances and possession of equipment with intent to manufacture, to be served concurrently with the lead sentence. The defendant was sentenced to three months imprisonment on each of the charges of unlawful possession of a firearm, explosives and unlawful possession of a pistol, to be served concurrently as between them but to be served cumulatively in relation to the lead term of imprisonment. The end sentence for the defendant was three years and ten months.

Orders