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 in  the vicinity of six months imprisonment is appropriate.

[12]     As to aggravating features, the Crown refers to your relatively brief criminal history.    While there are convictions for possession of cannabis and methamphetamine, as these do not relate to manufacture or supply of illicit drugs, no increase in starting point is recommended by the Crown.  The Crown is unaware of any personal circumstances that might warrant a reduction in sentence.

Defence submissions

[13]     Your counsel raises various matters she says are relevant to your sentencing. She helpfully refers to sentencing purposes and principles of the Sentencing Act

2002  that  are  relevant  to  you.    On  the  lead  offending,  namely manufacture  of methamphetamine, she contends strongly that there is insufficient evidence to establish commerciality.  She notes for example that there is no evidence as to when and how many times you are alleged to have manufactured methamphetamine.  She highlights that there are various difficulties assessing your culpability because of:

(a)       The uncertainty of the verdicts, she says, in relation to Main South

Road;

(b)      The acquittal on the conspiracy charge;

(c)       The lack of evidence of the times or extent of manufacture at Southey

Street; and

(d)Indeed the lack of evidence of connection to 642 Main South Road and the items possessed there, ie, there was only a single letter addressed to you she says.

[14]     She then refers to various decisions where, notwithstanding the guidance afforded by R v Fatu, a starting point of less than four years was adopted.   Your counsel referred in particular to R v Kawerau.2

Sentencing approach

[15]     I must of course be guided by the purposes and principles of the Sentencing Act 2002.   Particularly relevant to you Mr Smith, and to the alleged offending of manufacturing, is the need for accountability, denunciation and deterrence while at the same time recognising the importance of rehabilitation.

[16]     Plainly the jury were satisfied that you were involved in the manufacture of methamphetamine and  that  you  were in  possession  of precursor substances  and materials and equipment involved in the manufacture of methamphetamine.  Your counsel highlights that the jury may have been misled by the verdict sheet which refers in relation to Counts 21 and 22, to possession of items at Southey Street, not Main South Road.  Given the way that I propose to sentence you by reference to the lead offending, namely manufacture, I do not consider that much turns on this point even if she is correct.  I would add further that both in the jury questionnaire (which refers to the relevant addresses) and in the verdict sheet, specific reference is made also to items which the jury was satisfied you possessed.  I repeat again the jury were satisfied that you were involved in the manufacture of methamphetamine.  It is that

manufacture and the possession of those items which is important for the purposes of sentencing.

[17]     Returning, however, to the lead offending, namely that of manufacturing, I agree with your counsel that there are real difficulties in assessing your culpability given the lack of evidence of the extent of manufacture at Southey Street.  Unlike say the evidence in relation to Mr Miles, where at least there is some clear evidence of substantial methamphetamine residue, there is a paucity of evidence relating to the scale of any such manufacture in relation to you.  As you have been acquitted on the conspiracy charge, I also do not think it is available to me to draw on the evidence relating  to  that  conspiracy  to  establish  the  level  of  culpability  on  your  part. However, the totality of the evidence against you suggests you were involved in a commercial operation at some level.   There is evidence of the security measures taken by you at Southey Street.  You were found in possession of $1,500. I find the explanation  of  this,  a  gambling  win,  to  be  unconvincing.    I  also  consider  it appropriate to consider the evidence against you in relation to 642 Main South Road and the items found there, including cash and precursor substances.  This forms part of a wider factual matrix which suggests manufacturing on a commercial scale rather than simply for personal use.  Nevertheless, I consider that based on the available evidence I must commence with a starting point at the borderline of the commercial range set out in Fatu, namely four years.  In addition, in setting this figure I have taken into account the totality of your drug offending overall.

[18]     There are no aggravating features that might warrant an uplift and therefore a starting point of four years is appropriate.

[19]     I  have  examined  your  personal  circumstances  and  I  acknowledge  the suggestion that you are prepared to turn your life around and that you present as a low risk.

[Discussion with counsel]

[20]     Turning then to your sentence.   Having regard to what is said in your pre- sentencing report, I think it is appropriate for the purposes of recognising the need to promote your rehabilitation but also acknowledging that you appear to acknowledge the need to be accountable for what you have done, to afford you a 10% discount for those factors.

[21]   Given the foregoing I propose to sentence you on the lead offence of manufacture of methamphetamine for a period of three years and seven months.

[22]     In relation to the other offending I propose to adopt the Crown suggestion that there be a small combined uplift in relation to the possession of explosives and the possession of firearms, of three months inclusive of the discount I previously referred to.     In that regard I accept Ms Sewell’s submission that the items were securely stored and not in any way connected to your other offending and did not present at any time any danger to the public.

[23]     In relation to the unlawful possession of precursor substances and possession of equipment with intent to manufacture methamphetamine, I propose to impose sentences of three years on each of them, to be served concurrently with the lead sentence (noting again  that  I have factored those matters  for the totality of the offending into my sentencing on the lead charge).

[24]     Accordingly, Mr Smith you are sentenced as follows:

(a)      On the count of manufacturing methamphetamine you are sentenced to three years and seven months imprisonment;

(b)On the counts of possession of precursor substances and possession of equipment  with  intent  to  manufacture,  you  are  sentenced  to  three years on each of those charges, to be served concurrently with the lead sentence;

(c)      On the charges of unlawful possession of a firearm, explosives and unlawful possession of a pistol, you are sentenced to three months

imprisonment on each of them (to be served concurrently as between them) but to be served cumulatively in relation to the lead term of imprisonment.

[25]     In the result, your end sentence Mr Smith is three years and ten months. [26]           Mr Smith, please stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch

M I Sewell, Christchurch