R v Vijn HC Auckland CRI 2006-004-16616

[2007] NZHC 1664

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-016616

THE QUEEN

v

JOHN GERARD VIJN

Charges:        Manufacturing class A controlled drug methamphetamine x2

Possession of equipment for the manufacture of methamphetamine x2

Possession of pre-cursor substances x2

Possession of material for the manufacture of methamphetamine x2

Possession of methamphetamine x1

Plea:               Guilty

Hearing:         23 February 2007

Appearances: Ms E Priest for Crown

Mr D Reece for Prisoner

Sentenced:     23 February 2007

Manufacturing methamphetamine – 3 years 6 months’ imprisonment; Possession of equipment,  pre-cursor  substances  and  materials  –  2 years’ imprisonment on each charge concurrent;

Possession    of    methamphetamine    –    2    months’    imprisonment

concurrent

Total sentence:  3 years six months’ imprisonment

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

D Reece, Auckland

R V  VIJN HC AK CRI 2006-004-016616  23 February 2007

[1]      John Gerard Vijn,  you appear for sentence for a number of drug related offences.  You have pleaded guilty to two counts of manufacturing a class A drug methamphetamine, two counts of possession of equipment for the manufacture of methamphetamine, two counts for the possession of pre-cursor substances for the purpose of the manufacture of methamphetamine, two counts of the possession of material for the manufacture of methamphetamine and one count of possession of methamphetamine.  The most serious charges as counsel has recognised are the two charges of manufacturing a class A controlled drug methamphetamine.  Those counts carry a maximum sentence of life imprisonment.

[2]      The offending relates to two separate occasions, 12 January 2006 and 11

August 206.  The offending on 12 January 2006 occurred at Takanini.   The police were  alerted  by  the  security  at  the  New  Zealand  Holiday  Park    there  to  your activities.  Your cabin was searched.  The police located a bag containing chemicals and glass equipment used for the manufacture of methamphetamine.  While one of the officers was speaking to a lawyer on the phone, you picked up a jar of phosphorous powder, poured it down the sink and ran water in an attempt to dispose of it.   Subsequently further equipment and chemicals, including phosphorous acid, pseudoephedrine  and iodine, were located.  There was no methamphetamine located apart from a point bag found in your wallet.   In a brief of evidence prepared for sentencing purposes Detective Sergeant McLeay, who has experience in drug operations, has noted while it is of course not possible to estimate volume from the production there was sufficient iodine found present to manufacture between 10 and

15 grams of methamphetamine.

[3]      The second set of offending relates to a search of a property at Greys Avenue on 11 and 12 August 2006.  You were on bail at the time and living at that property. The police located at the property a number of items used in the production of methamphetamine, reaction  flasks,  hot  plates,  iodine,  hydrochloric acid,  toluene, acetone, phosphorous acid, empty packets of medicine containing pseudoephedrine, a pump and condenser, coffee grinder, flasks and a pH meter.   There were also documentation and emails relating to the chemicals required for the manufacture and

recipes for methamphetamine production.   Again Detective Sergeant McLeay says that there was sufficient pseudoephedrine found to produce 13 to 20 grams of methamphetamine, sufficient iodine to produce 22 to 34 grams and sufficient phosphorous acid to produce between 50 and 75 grams.  In my view the most helpful indication is that of the pseudoephedrine available because that is the basic raw material.

[4]      Mr Vijn you are 37 years old.   You have told the probation officer that relations  within  your  family  while  growing  up  were  good  but  there  was  some pressure on the family because of your sister’s disability and communication difficulties arising from your parents’ limited English.   Although you left school without formal qualifications you worked in the roofing industry for 17 years and during this time you established your own business.  You obviously were successful financially and worked hard because you were able to purchase a family home, pay it off and you expand the business.  Unfortunately it seems that all of that hard work has been undone by your introduction to and involvement with methamphetamine which  occurred  some  six  years  ago.    You  have  told  the  probation  officer  that financing your growing drug addiction led to the loss of your assets, your savings and your business.  You have also confirmed that in your letter to the Court which I have read and considered.

[5]      Mr Vijn the real shame of it is that your case is not unique.  This Court has had to sentence a number of people in your situation who  have been otherwise successful in life who have put at risk and often lost what they’ve worked for both in terms of financial security and also family relationships.  That’s the consequences of being involved in this drug.  You are fortunate perhaps and more fortunate than some that this Court has to sentence because despite that activity and despite your involvement with the drug you still have the support of your partner and you still have the support of your parents and family.

[6]      You also told the probation officer that you did not actually manufacture methamphetamine but pleaded guilty because of the equipment in your possession. Well Mr Vijn, as that matter has been clarified this morning, I have to tell you that even if someone else was the cook you accept that you were actively involved in the

manufacturing process and operation and on that basis you are properly guilty of manufacturing methamphetamine and you have properly pleaded guilty to manufacturing methamphetamine and I must sentence you on that basis.

[7]      The  probation  officer  considered  you  were  assessed  as  a  high  risk  of reoffending based on the nature of the charges and the fact  you were offending whilst on bail and also your denial of responsibility.  Frankly it seems to the Court that the risk of reoffending is based largely on your severe dependency on methamphetamine.   If you remain free of that drug and take appropriate courses within prison, given your aptitude for hard work that you have displayed in the past, you should be able to break the addiction and if you break the addiction there is no reason for you to offend in this way again.

[8]      In  sentencing  you  Mr  Vijn  I  have  to  take  account  of  the  purposes  and principles of the Sentencing  Act.   In  your  case the particular  purposes that  are relevant are to hold you accountable for the harm done to the community by drug offending and your involvement in the manufacture of methamphetamine, which does make the drug available to the community.  The sentence must also promote in you responsibility for and acknowledgement of that harm.   I take from your letter that  you  have  some  appreciation  of  the  harm  caused  by  your  offending.    The sentence  must  also  denounce  your  conduct  and  deter  you  and  others  from committing similar offending in the future.  I am also directed to take account of the principles of the Sentencing Act and in particular the desirability of consistency with other sentences for similar offending.   I am also directed to have regard to your rehabilitation.

[9]      In this case there are two further factors relevant to fixing a starting point for your sentence.  The first is the totality principle.  You face sentence on a number of offences although they relate to two particular incidents.   The sentence I impose must reflect the totality of your offending.   The second is a particular aggravating feature of your offending, which is of course that you offended whilst on bail in exactly the same way as you had on the first occasion.

[10]     The leading authority is the case of R v Fatu [2006] 2 NZLR 72 (CA) as you have heard counsel refer to it. It is a Court of Appeal decision. The Court of Appeal have indicated that a range of between four and 11 years’ imprisonment is applicable as a starting point for drug manufacture depending on the extent of the offending.

[11]     In this case there is no direct evidence on the extent of the manufacturing operation and the Court has to have regard to Detective Sergeant McLeay’s evidence as to estimates of what might have been produced.   The Court of Appeal in Fatu expressed caution as to sentencing someone such as you on estimates of potential production and I  bear  those expressions of caution in  mind.    But the reality is nevertheless as the Court of Appeal observed in Fatu that those who gear up to manufacture methamphetamine are not likely to be content with a single cook.  In your case of course you have been offending on a second occasion so clearly you weren’t satisfied with being involved in the on-off production of methamphetamine. There is also the indication of what might have been produced from the pre-cursors found on the second occasion.   While you may have received some of the methamphetamine   yourself   as   quid   pro   quo   for   your   involvement   in   the manufacturing process it nevertheless was a commercial manufacturing operation.

[12]     The  totality  of  your  offending  at  Takanini  on  the  first  instance  would ordinarily lead to a start point of five years’ imprisonment.   However, given the aggravating factor of your subsequent offending at Greys Avenue whilst on bail I take as a start point for sentencing you seven years’ imprisonment.  I have to take into account the fact that the second set of offending was also serious offending in relation to class A drug manufacturing and it was again a commercial operation and to make it worse as I have said it was committed on bail.

[13]     From a starting point of seven years I am then directed to take into account mitigating factors.   In the present case the principal mitigating factor I can take account of is your relatively early guilty pleas.   You have a number of previous convictions.  I accept most are driving and of a relatively minor nature.  I propose to give you credit for your guilty pleas on all counts.  Taking account of that and also taking account of other matters referred to by counsel, Mr Vijn, would you please stand.  On the two counts of manufacturing methamphetamine you are sentenced to

imprisonment for three years six months.  In relation to the possession of equipment, pre-cursor substances and materials you are sentenced to imprisonment for two years on each charge.  On the possession of methamphetamine you are sentenced to two months’ imprisonment.  All sentences are concurrent.  The effective sentence of the Court is three years six months.  Your outstanding fines are wiped.  When you are released from jail you will have a fresh start.  There will be an order for destruction

of the drugs and drug related paraphernalia.  That’s all, you may stand down.

Venning J