R v Smith HC Auckland CRI-2010-057-1017

[2011] NZHC 150

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-057-1017

THE QUEEN

v

JEREMY DAMIAN SMITH ARLENE ROCHELLE CROSBIE

Hearing:         22 February 2011

Appearances: Ms E Priest for Crown

Mr J Soondrum for Prisoners

Judgment:      22 February 2011

SENTENCING REMARKS OF LANG J

R V SMITH HC AK CRI-2010-057-1017 22 February 2011

[1]      Mr Smith, you appear for sentence having pleaded guilty to charges of manufacturing methamphetamine, supplying methamphetamine and being in possession of methamphetamine for supply.  As you know, the maximum sentence for each of those charges is one of life imprisonment.  You have also pleaded guilty to charges of being in possession of materials, equipment and precursor substances for use in the manufacture of methamphetamine.  The maximum penalty for each of those charges is one of five years imprisonment.

[2]      Ms Crosbie, you appear for sentence today having pleaded guilty to one charge of permitting premises to be used to manufacture methamphetamine.  That charge carries a maximum sentence of ten  years  imprisonment.   You have also pleaded guilty to wilful ill-treatment of your three year old daughter.  That carries a maximum penalty of five years imprisonment.

The facts

[3]      All of these charges arose as a result of the fact that in or about March last year you began renting premises at 7 Roseneath Road, Karaka.   Shortly after you arrived,  an  associate  of  yours,  Mr  Smith,  came  and  asked  if  he  could  use  the basement of the property to manufacture methamphetamine.  You agreed to allow him to do that, and so in April and May 2010 he and another associate began manufacturing methamphetamine in your basement.

[4]      The police arrived at the property on 20 May 2010.  When they arrived there, you were both present, as were the other two persons who were involved in the manufacturing process. The police found a very large and sophisticated laboratory in operation.  It was sufficiently large to enable all three phases of the manufacturing process to be carried out at once.   This meant that significant quantities of methamphetamine could be produced over a 48 hour period.  The Crown estimates that each manufacturing process would have produced about 180 grams of methamphetamine. That is a very large quantity indeed.

[5]      You told the police that methamphetamine was being manufactured at the property every two to three days.  The Crown estimates that over the period before

the police arrived, it is likely that methamphetamine of approximately 1.6 kilograms in weight would have been produced.  When the police examined the equipment they found your fingerprint on a glass beaker, Mr Smith, and your fingerprint on a glass jug, Ms Crosbie.

Culpability

[6]      The approach that I need to take is to ascertain the culpability of you both in relation  to  the  manufacturing  operation  that  was  taking  place.    Obviously,  Ms Crosbie, yours is a lesser culpability because the Crown does not assert that you were physically part of the manufacturing process.  You were originally charged as a party to the manufacturing, but the police ultimately accepted that, although you may have provided encouragement in the form of food and drinks, you nevertheless did not physically participate in the manufacturing process.

[7]      Mr Smith, your culpability arises in the following ways.   First, you were prepared to make your property available to the person who was responsible for manufacturing the methamphetamine.  Without secure premises, a methamphetamine manufacturer cannot undertake his clandestine activities.  You, therefore, provided a very valuable commodity to the manufacturer.

[8]      Secondly, you were physically present during the manufacturing operations. You were prepared to physically assist as required and, no doubt, this is how your fingerprint came to be found on an item of equipment.

[9]      Thirdly, you were prepared to assist by supplying materials in the form of caustic soda.

[10]     Fourthly, you allowed a car to be registered in the name of the manufacturer and make it available for his use.

[11]  Fifthly, you received payment for your services in the form of methamphetamine.   You told the police that you received seven grams of methamphetamine from each batch that was manufactured.   You and Ms Crosbie

then consumed a significant proportion of it yourselves and you then sold the rest to associates.

[12]     Your offending was clearly commercially based to a large degree.  You had a very significant  methamphetamine  addiction  and  this  required  large  amounts  of methamphetamine to service.  You told the probation officer that you did not like paying retail prices for any commodities, including drugs.   For this reason  you actively sought out a source of supply that would be cheaper than a retail distributor. You  realised  at  an  early stage  that  the  person  whom  you  allowed  to  use  your basement  was  a  manufacturer,  because  he  did  not  appear  to  be  answerable  to anybody else.  You were then prepared to allow him to use the premises so that you could obtain cheaper methamphetamine for yourself.

[13]     It  is  also  noteworthy  that,  when  the  police  searched  the  upstairs  of  the address, they found ten grams of methamphetamine in a drawer beside your bed, together with quantities of cash totalling just over $2,100.  That cash reflected the proceeds of recent sales of methamphetamine.

[14]     You therefore appear for sentence as a person who has supplied premises for the manufacture of methamphetamine, who has become physically involved to some extent in the manufacturing process and who has then later become a seller of the drug at retail level to friends and associates.

[15]     Ms Crosbie, your culpability comes about in two ways.   Firstly, you were equally responsible with Mr Smith for allowing the manufacturer to use the property. On this point you both say that you understood that he would be manufacturing one batch of methamphetamine at the property and  would then leave.   If you truly believed that, you were naïve.  Nobody sets up a clandestine laboratory on this scale for a single manufacture of methamphetamine.  Inevitably, more than one batch was going to be produced.

[16]     As it transpired, the manufacturer and his associate began to use the property as  if  it  was  their  own.    I accept  that  you  felt  powerless  to  some  degree,  but, ultimately, it was your property and you had the means if you wished to exercise it,

to tell them to go.  The problem was, of course, that if that occurred your source of methamphetamine would disappear.   You then took the easier option of allowing them to stay and reaping the profits of what they were doing.  Having said that, I accept the submission of your counsel that you were making some efforts to find alternative accommodation when the police arrived.

[17]     The second aspect of your offending, Ms Crosbie, arises from the fact that you exposed your three year old daughter to significant dangers as a result of what you did.   She was present for at least part of the time that the others were manufacturing methamphetamine downstairs.  This led her to be exposed to the risk of physical injury through an explosion and through inhalation of toxic fumes.  You did not allow her to go downstairs to the laboratory at any stage, but, nevertheless, there remained the risk that vapours would ascend from the basement and be inhaled by both you and your daughter upstairs.

[18]     In addition, you and Mr Smith were prepared to smoke methamphetamine in the house.  This led to the risk that she would inhale the smoke on a secondary basis. As you must accept, that was wholly irresponsible.  It amounts to a breach of trust between mother and daughter.  Only time will tell if it has had a deleterious effect on her.

Sentencing Act 2002

[19]     In sentencing you, I need to have regard to the purposes and principles of the Sentencing Act 2002.  In any case involving the manufacture of methamphetamine, and particularly manufacturing on this scale, issues of deterrence and denunciation are to the forefront.  The courts simply have to send a message to people that, if they are prepared to get involved in this kind of offending, then they have to pay the price.   The price for this  offending is,  generally speaking,  imprisonment  and  a significant period of imprisonment.  That is the only way really in which the courts can hope to counter the scourge that is methamphetamine.   As you both know, methamphetamine has wrecked your lives.  It wrecks many peoples’ lives.  It wrecks human relationships and causes people to commit crimes that they would not otherwise commit, and the two of you are living examples of that.

Starting point

Mr Smith

[20]     So far as the manufacture, possession and supply of methamphetamine is concerned, the starting point for any sentence is the decision of the Court of Appeal in R v Fatu[1].  In that case the Court of Appeal identified bands of offending.  These are based, to some degree, on the physical quantities of methamphetamine produced. That is not the end of the matter, however. The Court looks at the overall scale of the manufacturing and supply operation in order to determine where the starting point should lie.

[1] [2006] 2 NZLR 72

[21]     Counsel for the Crown submits, and your counsel agrees, that the starting point for the principal offender in this case would be around 16 to 18 years imprisonment.   This is because they fall in the top band identified in Fatu.   That involves the manufacture and distribution of more than 250 grams.  Quite clearly, the operation here produced well in excess of that amount.   Band 4 attracts a starting point of between 13 years and life imprisonment.  So in the event that the principal manufacturer is found guilty of the charges that he faces, he can expect a starting point in that region.

[22]     That is not the starting point to be adopted in relation to you, Mr Smith, because you were not the principal manufacturer.  Your culpability falls below that level and both counsel agree about that.

[23]     There are, however, significant aggravating aspects to your offending.  They involve the provision of premises and physical assistance, and the receipt of a reward for your services.

[24]     The  sheer  scale  of  the  operation  means  that  the  starting  point  must  be significant.  On its own, and taking into account only the manufacturing charges, but encompassing  also  the  material,  precursor  substances  and  equipment  charges,  I

would fix a starting point of ten years imprisonment.

[25]     I must also, however, factor into the equation the fact that you were prepared to sell some of this methamphetamine.  It is likely that in April and May 2010, you sold a number of grams.  Again, in terms of Fatu that, in itself, is likely to attract a sentence of imprisonment of around four to five years.

[26]     Taking into account principles of totality, I propose to increase the starting point by two years to reflect the fact that you also became a commercial supplier of methamphetamine.  This means that I take an end starting point for you, Mr Smith, of 12 years imprisonment.

Ms Crosbie

[27]     Ms Crosbie, the Crown has provided me with a number of authorities relating to offenders who have been charged with permitting premises to be used for the manufacture of methamphetamine. These show that the starting point routinely adopted is one of around two to two and a half years imprisonment.

[28]     The scale of the operation in this case, and the period of time over which it occured, coupled with the full knowledge that you had of what was going on downstairs and your willingness to share in the reward for making your premises available, mean that I would have adopted a starting point of two and a half years imprisonment  on  that  charge  alone.   The  added  factor  of  the  presence of  your daughter in the vicinity of such a large scale operation is an issue that I also have to take into account.  I propose to increase the starting point by one year to reflect that fact.   I am therefore left with an end starting point of three and a half years imprisonment in relation to both charges so far as you are concerned.

Aggravating factors

[29]     You both have some previous convictions, but nothing in relation to drugs. You  have  gone  from  pure  users  of  methamphetamine,  it  would  seem,  into involvement in the manufacture of the drug at the top end.  The sentences that you have received in the past on other offending really are of no consequence for present

purposes.   I do not propose to increase the starting points that I have selected to reflect your previous convictions.

Mitigating factors

[30]     I turn now to the mitigating factors that operate to reduce the end starting points that I have identified.   The first of these is the fact that you have pleaded guilty to the charges against you.  The Crown accepts that you have pleaded guilty at the earliest opportunity.

[31]     Although you pleaded guilty after committal for trial in this Court, the Crown accepts that several factors mean that you should be given credit as if you had pleaded guilty at a much earlier stage.   These include the need for the Crown to investigate the operation further in order to identify the true level of your respective culpability.   In this case, Mr Smith, that has led to additional charges being laid against you.   In your case, Ms Crosbie, it has led to the charge of manufacturing being withdrawn.

[32]     The decision of the Supreme Court in R v Hessell[2] makes it clear that a guilty plea is a significant factor that the sentencing Court must take into account.   The earlier the plea, the greater recognition that can be given to it.  The Supreme Court has said that the maximum discount that the Court can allow for a guilty plea is one of 25 per cent.  I propose to allow that in respect of both of you.

[2] [2010] NZSC 135

[33]     I turn now to the second mitigating factor, which is the efforts that you have made at rehabilitation.    You both clearly have had a very significant methamphetamine habit.  That has led you, Mr Smith, at the age of 36 years and you, Ms Crosbie, at the age of 35 years, into a position that neither of you would have dreamed possible.   It must break your parents’ heart, Mr Smith, to see you in the position that you are in today.  You have been given every opportunity.  You had a good education, you had the support of your family throughout and your addiction to

methamphetamine has led you to where you are now.

[34]     Ms Crosbie, you have had a more difficult life, but again, you have been lucky to have the support of Mr Smith’s parents.    Again, addiction to methamphetamine is what has led to your current predicament.  It follows that it is in society’s interests to mark genuine efforts at rehabilitation in some material way.

[35]     Ms Crosbie, you have made significant progress towards rehabilitation.  Mr Smith, you have made some progress, but not as much because you failed to attend one programme and relapsed into drug use.  You have now been drug free, though, since October 2010 and your only hope of staying out of prison in the future is to continue with those efforts.  I propose to allow a further five per cent to reflect that factor.

[36]     I come then to the assistance that you have already provided to the authorities and that you will provide in the future.   This is a significant factor in the present case.   First, you have already provided information by way of detailed videotaped statements that you have made to the police.  These have formed the basis for the additional charges that you now face, Mr Smith.  You have also both said that you will be giving evidence at the trial of your co-accused.  That is an important factor in the present case, because the Crown acknowledges that it requires your evidence in order to secure convictions against your co-accused.

[37]     You also need to know that it is not possible for you to gain the benefit of a discount for this factor at this stage, and then to walk away from your obligations.  If you decline to give evidence, the likelihood is that the Crown will appeal against the sentence that I am imposing on you now.  It will seek to have the discount that I am giving you reduced to what it would have been had you not told the police that you were going to give evidence against your co-accused.  The Court of Appeal will then be able to read from my sentencing notes the extent to which I have provided a discount for the assistance that you are going to give.

[38]     I propose to allow a further discount in respect of this factor to around a total of 60 per cent.  This means that the total discount that I will provide you both with is around 60 per cent.   The Crown recognises that this is an appropriate level of

discount, particularly given the level of danger, Mr Smith, that you will expose yourself to as a result of what you are going to do.

Sentence

Mr Smith

[39]     Mr Smith, on each of the charges of manufacturing, supplying and being in possession of methamphetamine for supply, you are sentenced to five years imprisonment.   On each of the remaining charges you are to be sentenced to one years imprisonment.  All those sentences are to be served concurrently.  This means that you will serve an effective sentence of five years imprisonment.

Ms Crosbie

[40]     Ms Crosbie, the end sentence that would be imposed on you is one of 18 months imprisonment.   This means that you are eligible for a sentence of home detention.    The  Court  is  always  hesitant  when  it  sentences  drug  offenders  to sentences of home detention, because the boredom of being cooped up at home can lead to further drug offending.

[41]     The Court also is concerned about the prospect of a person who has offended at home, as you have done, returning home to live.  In the present case, however, I am satisfied that the address that has been provided for you will ensure that that will not occur.   I am therefore prepared to give you the benefit of the doubt on this occasion and sentence you to a sentence of home detention.  You need to know, of course, that this is the last occasion on which that level of leniency will ever be extended to you by the Court.  If you become involved in drugs again, prison will be the only alternative.

[42]   You are sentenced on the charge of permitting premises to be used to manufacture methamphetamine to nine months home detention.   On the charge of wilful ill-treatment of a child, you are sentenced to three months home detention.

Those sentences are concurrent, so that you will serve an effective sentence of nine months home detention.

[43]     I impose the following special conditions on you, Ms Crosbie:

(a)      You are to travel directly to 147C Princes Street, Otahuhu and to await the arrival of a probation officer and the monitoring company.

(b)You are to reside at that address and not to move address without the prior written approval of a probation officer.

(c)      You are to notify your probation officer prior to starting, terminating or changing your position or place of employment.  You are only to undertake  employment,  whether  paid  or  unpaid,  that  has  been approved by your probation officer.

(d)You are not to possess or consume alcohol or illicit drugs for the duration of the sentence of home detention.

(e)      You are to attend and complete and alcohol and/or drug treatment programme as directed by the probation officer to the satisfaction of the probation officer and programme provider.

(f)      You  are  to  undertake  any  other  counselling  as  directed  by  the probation officer.

Forfeiture

[44]     There will be an order for the forfeiture of the cash that was found at your address and for the destruction of any drugs that were in your possession.  The cash,

in this case, is $2,185.40.

Lang J

Solicitors:
Crown Solicitor, Auckland
Mr J Soondrum, Auckland