R v Townsend HC Wellington CRI-2004-043-953

[2005] NZHC 1238

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2004-043-953 AND 3985

THE QUEEN

v

PETER ALLAN TOWNSEND JAMIE DALE PIRIMONA CRAIG JOSEPH CARTER

Hearing:         22-25, 28 February and 1-2 March 2005 Appearances: K G Stone for the Crown

W M Johnson for the Accused Townsend K R Smith for the Accused Pirimona

J K W Blathwayt for the Accused Carter Judgment:    15 April 2005

SENTENCE OF FRATER J

Solicitors:    Luke Cunningham and Clere P O Box 10357 The Terrace Wellington for the Crown

W M Johnson P O Box 962 Wellington for the Accused Townsend K R Smith P O Box 2420 Wellington for the Accused Pirimona

Wollerman Cooke and McClure P O Box 49 Carterton for the Accused Carter

R V P A TOWNSEND And Ors HC WN CRI-2004-043-953 AND 3985 [15 April 2005]

[1]    Peter Allan Townsend, Jamie Dale Pirimona and Craig Joseph Carter, you each appear for sentence having been found guilty by a jury of attempting to manufacture methamphetamine, possession of equipment for the production of a controlled drug and possession of substances for the production of a controlled drug.

[2]    You were acquitted on charges of conspiring to manufacture methamphetamine and manufacturing methamphetamine, which were laid as alternatives to the attempt charge on which you were each found guilty. You were also acquitted of attempted arson, of putting an explosive substance in a dwelling- house and you, Mr Townsend, were acquitted on a further charge of unlawful possession of a pistol.

[3]    A fourth accused, with whom you were jointly charged, was acquitted on all charges that he faced.

[4]    In addition, you, Mr Townsend, are to be sentenced on a charge of manufacturing methamphetamine, to which you pleaded guilty this week.

[5]    The charges on which you were jointly charged arose out of a Police operation known as Operation Who. It centred on a house property at 9 Holborn Dr, Stokes Valley, which the Police suspected was being used on an ongoing basis for the manufacture of large quantities of methamphetamine. It had been kept under surveillance for some time when, at about 3 o’ clock in the morning of 19 December 2003, Police noticed a light on in the house. A search warrant was obtained and shortly after 5.00 am the Police returned to the house, together with members of the Armed Offenders Squad and dog handlers. While members of the Armed Offenders Squad entered the house down a long driveway, the two dog handlers waited in Holborn Dr. In the otherwise deserted street they came across three men, two of whom were later identified as Mr Carter and Mr Pirimona. Mr Carter went one way; Mr Pirimona and the other man, another. The dog handlers and their dogs  gave chase. One of them followed a track up a steep bank through bush to No 9. After unsuccessfully searching the basement of the house they followed another line of scent  along  the  top of the  bank  into the  rear of houses  on an adjoining  street.   Mr Carter was eventually apprehended in an alleyway. Later, when he was searched,

a  magazine  with  two  cartridges  was  found  on  him.     The ammunition matched ammunition found in a stream he had crossed a short time before.

[6]    Neither you, Mr Carter, nor Mr Pirimona gave any statements to the Police or explanation for your presence there.

[7]    Mr Townsend was not apprehended until many months later and he was not positively identified at the scene, although one of the dog handlers said that he saw four people on the street below 9 Holborn Dr, but was not able to identify that fourth person.

[8]    While the search for offenders was going on in the street below, the Armed Offenders Squad were searching the property at 9 Holborn Dr. Although they did  not find anybody there, they did find a large quantity of materials and equipment which, the Crown argued, was consistent with the ongoing manufacture of methamphetamine. The place had all the hallmarks of people having left hurriedly. On the stove there were three glass jars full of caustic material and pseudoephedrine bubbling away at a low heat. Another jar was partially on the stove.  They also  found a three-necked glass vessel and other glassware with traces of material which were subsequently analysed and established to be methamphetamine.  For example, in a wardrobe of a bedroom, there was a fan evaporating a white substance, which was methamphetamine.

[9]    In a room upstairs, they found a television set still on and a scanner, which was operating on the Police channel. Elsewhere in the house they found a recipe, printed off the Internet, for the production of methamphetamine.

[10]   On questioning, Mr Pirimona had pieces of grass on his clothing and boots, and there were fresh dirt marks on his clothing, which is consistent with him having slid down the bank or the path from the house in a great hurry. There were also fresh abrasions and cuts on his left hand on his palm. Car keys were found in his pocket which matched a Honda Accord motor vehicle parked on the roadway outside the Holborn Dr property, and his dog was picked up from the car.

[11]   The car in question was also said to be linked to Tracey Carter, who, was at that stage the separated partner of Mr Carter.

[12]   In a woolsack in the basement of the address, there was a loaded rifle and an imitation firearm. However the ammunition found on Mr Carter did not match that  in the revolver.

[13]   Although Mr Townsend was not found at or in the vicinity of the scene, a number of documents linked him to the address.

[14]   In the black Holden Commodore there were documents both in his name and that of his brother. There was a curriculum vitae, a vehicle inspection notice and some periodic detention documents. Documents in Mr Townsend’s name were also found in a bag in a bedroom of the house.

[15]   The final evidence linking the prisoners to the property was the fingerprint evidence. Mr Carter’s fingerprints were found on the printed recipe for making methamphetamine, and Mr Pirimona’s on glassware connected with the operation.

[16]   At trial evidence was called from two scientists. That of Mr Hugel from the ESR was, in my view, critical. From samples taken from the scene, he analysed and identified toluene, methamphetamine, hydrochloride, iodine, hydrochloric acid, pseudoephedrine and various side products from the synthesis of methamphetamine. He also analysed the material found in the glass jars and in the drums which were found at the property, and formed the opinion that the material in one of the drums was waste material. In his view, and I quote:

“The seized equipment was being used on an ongoing basis to produce pseudoephedrine from legitimate preparations by extraction.”

[17]   He was asked to give an opinion as to the yield that the materials found at the scene would have produced. He said that the yield from the pre-cursor substances would have been above 25 grams of methamphetamine, although, conservatively, 13 grams. However, in his view, the amount of waste material produced and put into  the drum was more indicative of a process that would have made several kilograms

of methamphetamine, rather than 20 to 30 grams, although he acknowledged that this would have been over some period.

[18]   Certainly a large number of empty drums were found at the scene. There was a 20 litre drum marked xylene, another 20 litre marked methylated spirits, and three 20 litre containers labelled to contain toluene.

[19]   It was not disputed that all the materials necessary for the manufacture of methamphetamine were found at the property, except hypophosphorous acid or red phosphorous.

[20]   Mr Carter was not apprehended until 9 March 2004. On that evening the Police, again with the assistance of the Armed Offenders Squad, executed a search warrant at a property at 1 Huiwa Street in Waikanae, where he was believed to be living. Having surrounded the property, he was located attempting to leave on foot. When the Armed Offenders Squad entered the kitchen area, they observed chemical liquids from a fully set up clandestine laboratory pouring out over on to the floor. Because of the extreme danger that caused, surrounding properties were evacuated and the ESR scientists did not enter the property to carry out a scene examination until the next day. It is undisputed that it was a clandestine laboratory and that methamphetamine was being manufactured there.

[21]   The charge of manufacturing methamphetamine at that address was originally joined in the one Indictment with the Stokes Valley charges but, on the application  of defence counsel, an order was made in this Court severing that charge from the charges relating to the earlier incident. I am told that that charge was set down for trial two weeks after the trial over which I presided, but subsequently adjourned. In any event, Mr Townsend entered a guilty plea to that charge earlier this week, and other charges which were laid in the same Indictment were withdrawn.

[22]   Against this background, the Crown seek the imposition of deterrent sentences. In his sentencing memorandum, Mr Stone pointed to evidence linking each of you to the Stokes Valley property and the operation that was going on there and submitted that, as everything was present for the manufacturing of

methamphetamine except for the supply of the red phosphorous, it would appear from the jury’s verdict of attempting, rather than the full act of manufacture, that they had a reasonable doubt about whether actual manufacture was ongoing on or about the time that the Police raided the property. I accept that that is a reasonable conclusion to reach from their verdicts given the question that they asked about what “on or about” meant. They were told that it meant some time during the night or during the day and the night leading up to the Police operation.

[23]   The Crown submit that this was a large commercial operation. Mr Stone termed it a factory operation, a sophisticated operation with surveillance and an established escape route. In his submission, that was indicative of planning and deliberate attempts to avoid detection.

[24]   Another aggravating feature of this operation, the Crown submit, notwithstanding the not guilty verdicts in relation to the explosives charges, was the fact that chemicals were left heating on the stove, which could have caused a fire or an explosion.

[25]   The Crown also point to the fact that all of you have previous convictions:  Mr Carter having convictions extending over 20 years; Mr Townsend also having a substantial list of previous convictions, which include  cannabis  convictions;  and Mr Pirimona having a list of previous convictions extending back 14 years.

[26]   In Mr Stone’s submission, there are no mitigating features in respect of the Stokes Valley offending. He says that as none of you gave evidence, it is not  possible to assess the parts that you each played, whether it was a minor or a significant part.

[27]   In respect of the manufacturing charge faced by Mr Townsend, the Crown seek a cumulative sentence to reflect that this was a separate operation, that a full- scale methamphetamine laboratory was set up, and that he was the only person seen to be present. As it is a charge of manufacturing, obviously it is even more serious than the attempting charge. It is also an aggravating feature that he absconded from

the scene of the Stokes Valley offending, and continued offending when a warrant was out for his arrest.

[28]   The Crown say that there is nothing in any of your personal circumstances which would in any way mitigate your sentences.

[29]   Before actually going through the appropriate sentencing levels and the sentences sought by the Crown on the one hand and defence counsel on the other, I turn now to consider the situation of each of the prisoners individually.

Peter Allan Townsend

[30]Mr Townsend, you are 32 years of age.

[31]   You told the pre-sentence report writer that, before these offences happened, you did not have a settled address, and had drifted away from your family, but you have now re-established contact with them and they are very supportive of you.

[32]   You suffered an accident, which resulted in your back being broken in 1991, and received a substantial lump sum payment from the Accident Compensation Corporation. But you spent all that and, in recent years, have been living off the proceeds of your drug involvement.

[33]   You have a previous relationship, from which you have a son. It has been on and off over the years, but you are keen to resume it.

[34]   You owe the Inland Revenue Department some $28,000 for unpaid child support, and the fines collection unit approximately $10,000.

[35]   You told the pre-sentence report writer that you were not, in fact, at the Stokes Valley premises in the 24 hour period leading up to the raid, and I note that when apprehended following the Waikanae offending, you were reticent, to put it mildly, about explaining the nature of what was going on, and did not admit that there was a clandestine laboratory there.

[36]   You have subsequently acknowledged that you are a drug addict. You regret that you have become involved with others in using drugs, and you have expressed  to the probation officer at least a willingness to change.

[37]   The pre-sentence report writer indicated that you will benefit from undertaking an alcohol and drug counselling programme following any period spent in custody. You would also benefit from attending a Straight Thinking programme. Your level of motivation to change, however, has been assessed at low to moderate and, given the lack of any rehabilitative measures taken by you to date to address your issues. Accordingly, the recommendation of the pre-sentence report writer is that you be sentenced to imprisonment.

[38]   Mention has already been made of your previous convictions. Of particular relevance is your convictions for possession of cannabis in 1999 and 1997, and a conviction for cultivation of cannabis in 1995. Your other convictions are mainly for driving offences, and there are some for offences of dishonesty and breaches of bail and the like.

[39]   On your behalf, Mr Johnson submitted, as did other defence counsel, that there was no conclusive evidence of vast quantities of methamphetamine being produced at either property. He submitted that a case on which I should rely is that  of R v Andrell CA 69/02 29 August 2002, the circumstances of which, he said, were analogous to those in the present case. He asked me to act as the  Court  of Appeal did in that case and impose concurrent sentences for the two incidents on the basis that this was continuing offending, rather than separate operations.

[40]   He stressed the lack of evidence as to your occupancy of the Stokes Valley premises and the fact that, while on bail, you have sought treatment for your addiction and that you have family support.

[41]   In his submission, concurrent sentences in the range of five to six years  would be appropriate.

Jamie Dale Pirimona

[42]   Mr Pirimona, you are 29 years of age. You do not have quite the list of previous convictions that your fellow prisoners have and you have no previous convictions for any drug-related offences. Your convictions are for violence, for traffic offences and for offences of dishonesty. You are a drug addict and, in that capacity, have caused your family a good deal of heartache. Your parents and your partner are here in Court to support and indeed supported you throughout the trial. You say that you ceased using by going cold turkey some six to eight months before the trial, that you did not attend counselling but that you want to do so. You are concerned to change because you now have an infant child, who you want to be able to help care for.

[43]   Your counsel has submitted that you played a minor role in the Stokes Valley offending. You told the pre-sentence report writer that you were there simply in search of drugs. You said that you had gone to the address in an effort to buy a small quantity of the drug from a dealer and, as a result, were wrongly implicated in this offending for which you had no involvement. Counsel has stressed that and says that there is no evidence that you are a major player in the drugs world.

[44]   Your financial position is dire. You had a house but, because of your drug habit, were unable to maintain payments on the mortgage and it has been lost in a mortgagee sale. You are facing bankruptcy.

[45]   In the past you have been engaged as a labourer for your father, you have been involved in doing landscaping and you are able to get back to that employment now that you say you have put your drug habit behind you.

[46]   Your counsel submits that, given your extreme remorse and your concern to turn your life around, that a very low sentence of imprisonment would be appropriate

– indeed one that would enable you to apply for home detention. In support of that  he refers to the fact that the pre-sentence reporter recommended a non-custodial sentence in your case.

[47]   In support of a sentence of two years or less, Mr Smith referred me to the recent Court of Appeal decision of R v Arthur CA 382/04 17 March 2005 which, he submitted, would support a starting sentence in the range of three to five years imprisonment, with considerable reduction given for your remorse, your addiction and your expressed wish to break the addiction cycle.

Craig Joseph Carter

[48]   Finally, I come to you, Mr Carter. You are older than the other prisoners – you are 42 years of age. In your life you have acquired a considerable  list  of previous convictions. It extends to nine pages. Your offending started back in 1977 when you appeared in the Youth Court and it is has continued  fairly consistently until as recently as last year, in June of 2004, when you were convicted for shoplifting. That was at a time when you were on bail. You were also convicted in 2003 for threatening to kill and various other offences of violence.

[49]   What marks your case as different from the others is that while on bail you have actively taken steps to turn your life around. You have been involved with the Salvation Army in Auckland. You were referred to them to complete 100 hours of community work. You are said to have performed all the tasks that you  were required to do extremely well. You have certainly become involved in the work of the Salvation Army, so much so that you continued to assist in a voluntary capacity after you completed your sentence in September 2004. You have also been attending drug and alcohol counselling and an anger management course and taken steps to address abuse which you suffered in your childhood. You have been referred for ACC counselling in respect of that.

[50]   Your wife is also supportive of you. I am told she is expecting the birth of a child in a matter of weeks.

[51]   You, like Mr Pirimona, deny that you were actually involved in the offending for which you were convicted. Mr Blathwayt submitted that that is reflected in the fact that you were first observed going in the opposite direction from the others. However, no explanation was given at the time.

[52]   On your behalf, Mr Blathwayt also sought a low prison sentence, suggesting that the nearest equivalent type of case to yours cited in R v Arthur is that in R v Blake HC WN CRI-2004-085-2409 4 March 2005 and that a starting point which would enable a sentence in the vicinity of two years and to allow for release on home detention would also be appropriate in your case.

[53]   The Crown emphasise the commerciality involved and seek substantial sentences of imprisonment. In the case of Townsend, as I have said, they seek cumulative sentences. They also seek a minimum non-parole period.

Discussion

[54]   I accept at the outset that it is not an easy matter to fix an  appropriate sentence for this type of offending. Since the tariff case of R v Wallace and Christie [1999] 3 NZLR 159, manufacturing methamphetamine has become a Class A drug with a maximum sentence of life imprisonment. It is generally acknowledged that that amendment to the sentence needs to be reflected in the sentences imposed. In R v Arthur the Court of Appeal offered some guidance in cases involving the supply of methamphetamine. It recommended that sentencing Judges make use of the band system that is in place in New South Wales, which lists a starting point for low level supply in the range of two to four years imprisonment, for a commercial quantity between three and nine years imprisonment, and a large commercial quantity in the range of eight years or more, and emphasised that starting points are to be fixed before aggravating and mitigating factors are considered.

[55]   There are three other recent Court of Appeal judgments which are of some assistance. In R v Grant CA 326/04 28 February 2005, the Court emphasised that deterrence is of the greatest importance in respect of drug offending, particularly where there are commercial overtones. In R v Franklin CA 363/04 15 March 2005, a differently constituted Court of Appeal minimised the distinction between commercial and social supply, saying that it is the nature and scale of the offending that leads to  the  appropriate  starting  point  for  sentence.  And  in  R  v  Conway CA 275/04 23 March 2005 R v Arthur was applied, but again it was a case of possession for supply.

[56]   There is, as yet, no appellate guidance on the manufacture or attempted manufacture of methamphetamine post the amendment to its classification. There are, however, some useful comments in the case of Arthur. First, that Wallace remains important for its descriptions relating to levels of manufacturing methamphetamine. In that case starting points were set at over eight years imprisonment for commercial activity on a major scale, five to eight years where commercial manufacture is on a substantial scale and up to five years for smaller commercial operations.

[57]   Secondly, the Court said that those who manufacture or import methamphetamine may well incur much higher sentences than those imposed for supplying methamphetamine as they are responsible for actually bringing the illegal substance into existence or into the jurisdiction.

[58]   Thirdly, that although the quantity of the drug is a relevant factor, it is not the only factor to be taken into account.

[59]   And then, in relation to previous convictions, they said that repeat offending may well suggest significant uplifts are justified, given that deterrence is a fundamental principle of drug offending.

[60]   And so I turn to previous cases of attempted manufacture. Of course, each case needs to be considered on its own facts, and I note that these cases were all before Arthur and that the sentences imposed vary somewhat markedly.

[61]   In R v Coombe HC AK CRI 2005-404-45 4 March 2005,  a decision of  Simon France J, a starting point of three and a half years was taken, recognising that this was a single attempted manufacture, in a hotel room. But that was balanced against mitigating factors, which included steps taken since arrest to attend a programme, a stable relationship and remaining drug free.

[62]   In R v Smith HC WN CRI 2004-091-2795 20 October 2004, the starting point was also three and a half years. Aggravating features included offending while on

bail and mitigating factors included a guilty plea and co-operation with the Police. The final sentence in that case was two years and nine months.

[63]   In Martin HC WHA T 035895 28 July 2004, a decision of Priestley J, concurrent sentences were imposed for possession of equipment and pre-cursor substances. On a charge of attempted manufacturing, after taking into account aggravating features, which included the number of charges, the fact that the offending was deliberate and planned and also previous cannabis related convictions, and balancing that against the mitigating factors of a guilty plea, support of family and current employment, from a starting point of four years, a final sentence of two and a half years imprisonment was imposed.

[64]   And finally, in R v Makoare HC NAP CRI-2005-020-5713 11 March 2004, where there was no evidence about the scale of manufacturing, from a start point of three and a half years, after balancing previous convictions against a guilty plea, remorse and co-operation, a sentence of two and a half years imprisonment was imposed on the attempt charge.

[65]   So what are the appropriate sentences in this case, first for the attempting to manufacture at Stokes Valley?

[66]   I accept that this offending fell within the second category described in R v Wallace and Christie. Before the change in the legislation, a charge of  manufacturing in these circumstances would have fallen with the tariff range of five years and upwards. I accept, on the basis of the evidence of the very large quantity  of pre-cursor substances that was found at the property, the large amount of waste material and the scientific evidence if the sentencing had been for manufacturing, you would have been looking at a sentence in the range of seven to eight years, in  my view.

[67]   As this was an attempted manufacturing charge, which I consider more serious than the other attempt cases to which I have referred, given, as I say, the commercial element involved, I consider that an appropriate starting point would be

half of the maximum, which would give me a starting point of five years imprisonment.

Sentences

[68]   With that in mind, I turn to the individual sentences to impose for each prisoner, starting with Mr Townsend.

[69]   Starting with aggravating features, I take into account your previous convictions for cannabis use and cultivation, although I accept they were some time ago. I also take into account that you offended again after this offending,  that  you are at high risk of re-offending, that material was left on the stove in the Waikanae incident and also in the Stokes Valley property. While you were not necessarily living at the Stokes Valley property, the documentation there certainly linked you to having an established involvement at the property. In mitigation, I accept that you have family support, both from your partner and your siblings, and that you have expressed a desire to change.

[70]   I do not accept that it is appropriate to impose concurrent sentences for the two incidents. In my view, the fact of their separateness is reinforced by your application to have the trials severed. But in fixing the appropriate end sentence, I take into account the totality principle and look at the sentence in the round. Bearing that in mind, I impose a sentence of four and a half years on the Stokes Valley offending, with a cumulative sentence of three and a half years on the manufacturing at Waikanae, together with concurrent sentences of two years on the charges of possession of pre-cursor substances and possession of instruments.

[71]   The Crown seek a minimum non-parole period. I will impose a minimum non-parole period of four years imprisonment, because I am satisfied that the requirements of s 86, as it originally stood, are met in that the circumstances of your offending are sufficiently serious to justify a minimum period of imprisonment that is  longer than the one-third term release date that would be available to  you under    s 84(1) of the Parole Act 2002.

[72]   An order is also sought for the destruction of the property. Accordingly in your case I make an order for the destruction of the equipment and substances found at the Waikanae address, and I make a global order for destruction of the property found at the Stokes Valley address, which will apply to all three prisoners.

[73]   Mr Pirimona, I say at the outset that I do not accept your counsel’s statement that you were merely a visitor at the Stokes Valley property. While you were under no obligation to give evidence, as you did not do so I have no basis upon which to determine your involvement other than the evidence given at trial. In my view, the presence of your fingerprints on the equipment for manufacturing methamphetamine, in my view indicates your involvement in the offending.

[74]   I accept that you now wish to address your drug habit and that you have support from both your family and your partner. I accept also that your list of previous convictions is not as extensive as your co-offenders. Those mitigating factors, in my view, justify a reduction in the five year starting point that I took, to a sentence of four years imprisonment on the attempting charge, and I impose that accordingly. I also impose concurrent sentences of two years imprisonment on the charges of possession of equipment and possession of pre-cursor substances.

[75]   Mr Carter, for the same reasons as I have stated in respect of Mr Pirimona, I do not accept your expression of non-involvement in this offending, especially given the fingerprint evidence. I accept, however, that you are entitled to a reduction in the starting point of five years that I have set to reflect the considerable steps that you have taken to turn your life around in the last year or so. And, accordingly, I impose  a sentence of four years imprisonment on you also. I also impose concurrent sentences of two years imprisonment on the charges of possession of pre-cursor substances and possession of equipment.

[76]   I would make a plea to the prison authorities to give each of you the opportunity to address your drug offending and to undertake a Straight Thinking programme, if you are found suitable to be involved in such a programme. Unless you do that and unless you take on board the need to accept responsibility for your offending, and learn the tools to do that, so that when you are released you can resist

the temptation of drugs and the lure of financial gains or rewards that drug offending can bring, you will not be able to enjoy the family life and the involvement with children and partners that you each say you seek.

[77]   Finally, there is a question of continued name suppression for Mr Townsend which was ordered in respect of the manufacturing charge.

[78]   I will rescind the earlier order for interim name suppression in respect of this offending. If Mr Johnson wishes to make an application in relation to any other charges faced by his client, that is a matter for him.

[79]That is all I have to say.  Stand down.

M A Frater J