R v Stock HC Auckland CRI-2010-004-017262

[2011] NZHC 86

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-017262

THE QUEEN

v

DAVID STOCK

Appearances: Z Johnston for the Crown

S D Cullen for the Prisoner

Judgment:      11 February 2011

SENTENCING NOTES OF PRIESTLEY J

Counsel:

Z Johnston, Meredith Connell & Co, DX CP24063, Auckland 1140. Fax: [phone]
Email: [email protected]
S D Cullen, P O Box 5708 Wellesley Street, Auckland 1141. Fax: [phone]

Email:[email protected]

R V STOCK HC AK CRI-2010-004-017262 11 February 2011

[1]      David Grant Stock, it is my job to sentence you today on a large number of charges under the Misuse of Drugs Act.  To your credit you pleaded guilty to these charges in the Auckland District Court at an early opportunity in September 2010.  I also accept that through your counsel you indicated to the police, at an even earlier date, that you would be entering guilty pleas and not dispute appropriate charges laid against you.

[2]      I will certainly be giving you credit for that.  It is consistent with what you say in the letter you have given me this morning, and which I have read, that because of the difficulties you are having with drugs and also with psychological difficulties, your arrest was somewhat of a relief to you.

[3]      You  do  not  need  to  hear from  me, Mr  Stock,  a homily on  the  evils  of methamphetamine and drug use because you have clearly had some personal experience of that.  It has blighted your life as indeed it does blight the lives of all methamphetamine users.  You have embarked on serious drug use, manufacture and supply, and for that you have to pay the penalty.

[4]      The counts to which you pleaded guilty are one of manufacturing the Class A drug  methamphetamine  and  one  count  of  possession  of  methamphetamine  for supply.   Those carry a maximum of life imprisonment.   You are also facing two counts of possession of precursor substances, four counts of possession of equipment intended to be used in methamphetamine manufacture, two further counts of possession of materials, and all those counts carry maximum penalties of five years imprisonment.   There are two further related counts of possession of the Class C drug cannabis for supply and, somewhat sinisterly in your case, unlawful possession of a shotgun.  The amount of methamphetamine found in your possession was 17 grams.   Precursor substances included significant quantities of hydrochloric acid, sulphuric acid, pseudoephedrine, toluene, phosphorous and acetone.   Equipment included baking dishes, funnels, Ph test strips, filters, reaction flasks, a Parr bomb, and a Buckner funnel.  Other chemicals found included hypophosphorous acid and hydrogen peroxide.

[5]      These various items and drugs were found in three different locations.  One was a residence of sorts in Great South Road in Manukau, which as I understand the summary of facts were at business premises.   The second location was a storage facility unit which you had leased.   It was there that the shotgun was found, ownership of which you admitted.  The third location was your home in Goodwood Heights in Manukau, where the cannabis was found.

[6]      I do not need to set out in any detail, in the circumstances, the summary of facts.   It is of some concern that the Great South Road address, being business premises as I have said, was shared in a block which included a supermarket and a child care facility.  Cash was found in those premises of some $3,400 odd and also a tick list.   At your home, where 14 bags of cannabis, weighing approximately 28 grams, were discovered, you had a further $2,600 odd in cash.  The storage unit had been leased by you since 2006.

[7]      You have been jointly charged with a co-offender, a Mr Williams, who has denied his guilt and is currently facing trial in the Auckland District Court, so I am told.  Significantly perhaps he has absconded whilst on bail.  I think you would agree with me Mr Stock that you have been wise in putting distance between yourself and Mr Williams.

[8]      I say something about your personal circumstances.  You are a self-employed builder.  You are 31.   You have a female friend who is in Court here today. Importantly too, your parents, who must be hugely distressed by your predicament, are supportive of you and I acknowledge their presence in Court today as well.

[9]      You have had health problems, as a result of injuries inflicted on you as a result of a home invasion some years ago.  You have been taking anti-depressants. The presentence report, which I have read, inevitably recommends imprisonment. You are not detected to have any harmful pattern of alcohol use but certainly your past indications point to a harmful pattern of drug use.

[10]     You  have  been  assessed  as  having  a  low  risk  of  re-offending.     The presentence report, interestingly, however, assesses that you have a low motivation

to change.  My personal belief is that assessment is incorrect.  It is an understandable assessment, however, given your repetitive pattern of drug use and your past offending.  But whether I am right or wrong, Mr Stock, will totally depend on you and how you conduct yourself on your release.  Because if you continue to consume drugs, and certainly if you continue to traffic in drugs, you will just spiral down further and probably more lengthy periods of imprisonment await you.  So although you are obviously going to have to be imprisoned if you are a sensible man you will regard this as a turning point in your life.

[11]     Unfortunately, as I have just hinted, you have incurred similar convictions before.  There is a breath alcohol conviction in 2000, which I ignore for sentencing purposes, but in 2002 you were convicted for importing stimulants and drugs which were probably in the nature of ecstasy.   A six month term of imprisonment was imposed and under the then operative regime you were granted leave successfully to apply for home detention.   There are dishonesty convictions in 2003.   You were sentenced to community work in 2007 for possession of cannabis for supply and cultivation of cannabis.   And a further charge, dealt with at the same time, for possession of utensils and methamphetamine. As you know Mr Stock, the 300 hours community work imposed on you there suggests that you were treated leniently and given an opportunity to turn your life around.  Unfortunately you failed to do that, and for sentencing purposes I must take on board your previous offending in these closely related areas.

[12]     Sentencing purposes and principles need not delay us for long.   It is very clear in terms of ss 7 and 8 of the Sentencing Act 2002 that your conduct must be denounced and deterred.   By any stretch of the imagination this offending, manufacturing methamphetamine, is serious because manufacturers of methamphetamine,  and  clearly  you  were closely involved  in  the operation  of a clandestine lab and had all the equipment and precursor materials necessary for manufacturing methamphetamine, are manufacturing methamphetamine which leads to subsequent distribution and so on down the chain. And you really, as the Court of

Appeal has recognised in R v Fatu, [1] you were at the top of the chain.

[1] R v Fatu [2006] 2 NZLR 72

[13]     Counsel have been succinct in their submissions to me and as Mr Cullen has sensibly observed, he has no quarrel with the type of sentence I have indicated.  Nor has Ms Johnston whose comprehensive submissions for the Crown have assisted me.

[14]     The Crown correctly points out your offending, so far as the manufacturing is concerned, as sitting in approximately the middle of band 2 of R v Fatu.  Other than the amounts of methamphetamine found in your possession there is no indication or evidence before me as to the quantities of methamphetamine which were manufactured by you and your co-offender.   I rather suspect, however, given the volumes of chemicals involved, the fact that the chemicals and equipment were spread over two locations, and the fact that just about every ingredient necessary for the lethal mix of methamphetamine was present, that this clan lab had been operating for some time.  However, I can only sentence you on the basis of what was found, not on the basis of conjecture.

[15]     A serious  aggravating  feature  in  your  situation,  as  Ms  Johnston  rightly observes, however, is the possession of a firearm, in this case a shotgun, and ammunition. Drug dealers always say they need firearms for their own protection and probably that is correct.  It is clear in Court of Appeal and High Court authorities that possession of firearms, coupled with drug dealing or drug manufacture, must be regarded as more serious.   Ms Johnston suggests a start point of between eight to nine years imprisonment to reflect your overall culpability.   She does not quarrel with an appropriate reduction for your early guilty plea.

[16]     Your  counsel,  who  has  done  a  good  job  for  you  throughout,  does  not seriously quarrel with that start point.  He urges on me, in addition to a reduction for your early guilty plea as mandated by the Supreme Court in  R v Hessell,[2]  (the maximum being 25%), that there should be a further modest reduction to reflect your remorse and also to encourage you.  I am minded to accede to that particular request.

[2] R v Hessell [2010] NZSC 135.

[17]     The case which I think comes closest to you in recent times is the sentence imposed by Venning J in 2006 in R v Rogers.[3]   I have also considered R v Harkins,[4] and R v Hewitson.[5]

[3] R v Rogers HC Auckland CRI-2006-404-167, 21 November 2006.

[4] R v Harkins [2008] NZCA 540 (Ellen France, Potter and MacKenzie JJ).

[5] R v Hewitson HC Whangarei CRI-2007-088-4654, 5 February 2009 (Priestley J).

[18]     Stand up please.

[19]   What I intend to do is to fix a start point using the manufacture of methamphetamine as  the lead  charge which  reflects  the overall  totality of  your offending.   I am satisfied a start point which reflects that totality and your overall culpability on the significant number of charges you face Mr Stock is one of eight and a half years imprisonment.   To that I intend to apply a modest uplift of six months to reflect firstly the fact that you have offended in this area before and have not learned your lesson and also to reinforce your possession of a firearm.   That brings me to an adjusted start point of nine years imprisonment.  I intend to give you the full 25% discount for your early guilty plea which would compute at two years and three months to which I will add a further two months to reflect your remorse and also the fact that you are suffering from pain and intend, you hope, to turn your life around.  So the end sentence is going to be one of six years and seven months imprisonment.

[20]     Thus on the counts of manufacturing of methamphetamine and possession of methamphetamine for supply I sentence you to six years and seven months imprisonment.

[21]     On  the  two  counts  of  possession  of  precursor  substances,  which  were significant in volume, I sentence you to two and a half years imprisonment on each.

[22]     On the four counts of possession of equipment I sentence you to two years imprisonment.

[23]     On the two counts of possession of materials with intent I sentence you to two years imprisonment.

[24]     On the possession of cannabis count, in the circumstances, I sentence you to two years imprisonment.

[25]     And  in  the  aggravating  situation  to  which  I  have  referred  of  unlawful possession of a shotgun, laid under the Arms Act 1983 which carries a maximum of four years imprisonment, I sentence you to one years imprisonment.

[26]     The Crown has not asked for a s 86 minimum term of imprisonment.  In your particular circumstances I would not be minded to impose one.

[27]     I make orders for the forfeiture of cash and the destruction of all materials, including the shotgun and ammunition.

[28]     Finally for the benefit of the Parole Board and the prison authorities I make a strong recommendation that during your imprisonment and certainly before and after your   release   you   be   afforded   every  opportunity  to   enrol   and   attend   drug rehabilitation  programmes  and  life  skill  programmes  with  a  view  that,  on  your release, you will become a useful member of the labour force again.

[29]     Thank you Mr Stock. [30]        Take him down.

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Priestley J