R v Tobin HC Auckland CRI 2004 090 5245

[2007] NZHC 1699

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004 090 5245

REGINA

v

LEE LATHAM TOBIN

Hearing:         27 March 2007

Counsel:         Maria Pecotic for Prisoner

Lara Marshall for Crown

Judgment:      27 March 2007

SENTENCE OF WILLIAMS J

Charge:Possession    of    equipment    capable    of    being    used    for    the manufacture of methamphetamine.

Sentence:       Imprisonment 1 year – cumulative on present term of 4 years currently serving.

Solicitors:

Crown Solicitor, Auckland

Email:               lara[email protected]

Copy for:

Ms M Pecotic, P O Box 6379 Wellesley Street, Auckland

Email:                [email protected]

Peteru Iosia, Criminal registry, Auckland High Court

Email:                [email protected]

Sentencing Establishment Unit, Law Commission, Wellington

Email:                [email protected]

R V TOBIN HC AK CRI 2004 090 5245  27 March 2007

[1]      Mr Tobin:   At the age of 33 you appear before the Court for sentencing on one count of possessing equipment capable of being used for the manufacture of methamphetamine and with the intention the equipment be used for that purpose. You pleaded guilty to that charge.

[2]      Just to clear up one issue arising out of my discussion with your counsel, Ms Pecotic, the Court’s formal record at the moment includes a discharge under the Crimes Act 1961 s 347 on count 1 in the indictment, but it does not include s 347 discharges on counts 2 and 3.   Ms Pecotic, who was involved in the negotiations with the Crown which led to  your plea and to the 347 discharges, says it was intended that all counts other than the one to which you have pleaded guilty would be discharged.  I accept that and there will be a formal order that you be discharged under the Crime Act 1961 s 347 on those two counts.

[3]      On the Police summary of facts, what occurred was that a little after midnight on 17 June 2004 you were seen by Police acting in a suspicious manner. You were spoken to, gave a false name to the Police and as a consequence were arrested.  In a bag that you were holding there were two Pyrex containers, one of which had a spigot, some hydrochloric acid which is a precursor chemical for the manufacture of methamphetamine and a number of empty packets of tablets and the like.  The Pyrex containers are equipment that is commonly used by those who manufacture methamphetamine.

[4]      Ms  Pecotic  has  handed  me  the  letter  that  you  have  written  recently, explaining your part in the matter.  On the face of that letter you were simply with some friends who gave you this bag containing the equipment and asked you to delivery it, in return for which they cancelled a debt.  As I mentioned to counsel, that rather minimizes your involvement but I do take a certain amount of account of what you say there and, as Ms Marshall for the Crown accepts, you are charged only with the one offence of possessing the various items of equipment found in that bag.

[5]      It is perhaps a little unfortunate that we do not have an up to date pre- sentence report from the Probation Service.  All that we have is a copy of two that

they prepared during last year for sentencing on the charges for which you are now serving four years’ imprisonment in total, that term having been imposed in October

2006, and that was prepared in relation to the burglary charges which were of quite some age.

[6]      It seems, from that Probation report and indeed from the attendance of your family here this afternoon that they still support you in the predicament in which you find yourself and that when you are released you will have employment offered to you.   It is commendable that whilst you have been in prison the certificates and testimonials that are before the Court show that you have taken every course you possibly could to try and assist in your rehabilitation and in particular you have participated in the voluntary drug testing programme, with negative results on each occasion, and that you remain interested, if it is possible, and if it is still necessary, in attending Odyssey House on your release.

[7]      But it does seem that, unfortunately like so many who come before the Court for sentencing, you became involved in drugs some years ago.   That led you to methamphetamine, as it so often does.  That led to addiction, as it so often does, and that led to a lot of your more recent offending.  It is disconcerting, I must say, to read in the pre-sentence report, and I quote “That methamphetamine is amply available in the prison environment” but you have abstained from it.

[8]      You have, of course, quite a list of previous convictions.  By my count it is something over 50 in the period from 1994 to last year, mainly offences involving dishonesty and the like.  But of importance, in 2005 you were sentenced to a month in gaol for possessing methamphetamine, which seems to me to be part of an overall sentence at the time, and three years before that you were convicted and fined for cultivating cannabis and possession of a pipe.

[9]      For the Crown, Ms Marshall submits the starting point for sentencing you should be in the order of some two to three years’ imprisonment.  She accepts that there  are  no  aggravating  features  -  those  making  it  worse  -  in  relation  to  the offending itself.  It was a pretty straightforward, commonplace, case of possession of equipment.  She draws attention, in relation to your personal aggravating features, to

your previous history and your previous imprisonment but acknowledges that you are entitled to some reduction in the sentence for your guilty plea.  She draws my attention to a number of cases in particular R v Gaylor   (H25487 HC Hamilton,

14 October 2004, Williams J) and R v Morehu  (CRI 2005 032 815 HC Wellington

25 August 2005, Goddard J) where, again, there were pleas of guilty to charges of possessing equipment and precursor chemicals with starting points of the order of four years in Gaylor and two and a half to three years in Morehu.

[10]     This is a slightly unusual area for sentencing Judges in that possession of equipment and possession of precursor chemicals only attracts maximum terms of five and seven years respectively.   That has been the case since 1998 and despite Parliament changing methamphetamine from class B to class A in 2003 thus making those involved in more serious methamphetamine offences liable to life imprisonment, Parliament has never looked again at the maxima for the sort of offences that you are facing – to your good fortune, of course.

[11]     Ms Pecotic accepts that some term of imprisonment is inevitable for this offending.  That is a realistic concession.  She accepts that your previous offending makes matters somewhat worse for you but in mitigation she relies on the plea of guilty, the family support and the testimonials that I have read and, of course, the presence of your family here today, your remorse at finding yourself in the situation in which you now find yourself, and points of course to the alcohol and drug programmes and other programmes you have undertaken in prison.  She suggests the starting point should be in the order of about 18 months’ imprisonment.

[12]     I need to try and fashion a sentence that will hold you accountable for the harm done to the community for any involvement in methamphetamine, try and promote a sense of responsibility in you, denounce the conduct in which you have been involved, deter you and others, and protect the community from this sort of offending.   But, as you are only too well aware, any offending involving methamphetamine is serious offending, it is a blight and a scourge throughout our country at the moment and the courts have to do what they can to ensure that those who involve themselves in any variant of that sort of offending are appropriately sentenced.

[13]     Now, as I have mentioned, the count that you face has a maximum term of imprisonment of five years.  This was serious offending but I agree with counsel that it is not serious offending at the top of the scale.  It may be that you were just acting as a courier with this equipment at the time.

[14]     The authorities discussed by counsel suggest that for the offending alone, this offence alone, the starting point should be about three years' imprisonment or thereabouts.

[15]     There are some personal aggravating features – in particular your previous offending and the previous imprisonment involved in it.   That would suggest that before allowance for the mitigating features, you should be sentenced to about three and a half years’ imprisonment.  But you are entitled to reductions for the plea.  You are  entitled  to  a  certain  level  of  reduction  for  your  family  support  although Ms Pecotic will have told you that in dealing with drug matters courts can pay very little attention to personal and family circumstances, so great is the scourge of these drugs in our society.

[16]     Leaving aside the question of totality, that would suggest that this offence should result in a term of about some two and a half years.  The Court of Appeal in R v Bunning (CA378/04, 6 April 2005) reviewed a number of cases at that juncture where sentences of widely varying amounts had been imposed and came to that view that that was the sort of level of sentencing that should probably result.

[17]     The most difficult question, however, in sentencing you is what lawyers and Judges call “totality”.  And it is made particularly difficult in this case because the District Court sentenced you, it seems to two and a half years’ imprisonment on some burglaries and a year and a half on others, making those cumulative.  There was other offending involved as well but I do not have the sentencing notes so although Ms Pecotic has done what she can to assist I cannot be quite sure just why it was that the Judge settled on those sentences in the way he did.

[18]     That makes it difficult because, as Ms Marshall says, what I have to try and do is assess whether the Judge would have imposed something additional on you had

he or she been sentencing you for this offence.  And that is extremely difficult.  This, of course, is offending quite different in character from the burglaries and unlawful takings and the like which formed the basis of your current sentence.  It is also, to an extent at least, distinct in time from the two clutches of burglary and similar offences for which you were sentenced in the District Court.

[19]     But, standing back and looking at the issue overall as best I can on the information available to me, I come to the conclusion that District Court would have imposed some length of cumulative sentence on you for this offending had all the charges been before the one Judge on the one occasion.  And, again looking at it as best I can, my conclusion is that the Courts would have imposed on you about a year in addition to the four years it did impose.   That seems to me, on the totality principle, to be about appropriate and accordingly on this offence I sentence you to one year’s imprisonment cumulative on the terms of two and a half and one and a half years’ imprisonment you are currently serving.  Stand down.

………………………………..

WILLIAMS J

27 March 2007