R v Waters

[2013] NZHC 2604

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-069-251

[2013] NZHC 2604

THE QUEEN

v

JEFFREY WATERS

Hearing:

4 October 2013

Appearances:

R Douch for Crown

H Leabourn for accused

Judgment:

4 October 2013

SENTENCING REMARKS OFALLAN J

Solicitors:

Crown Solicitor Hamilton H Leabourn Auckland

R v WATERS [2013] NZHC 2604 [4 October 2013]

Introduction

[1] Mr Waters, you have pleaded guilty to, and appear for sentence on, one count of supplying methamphetamine and one count of possessing a precursor substance with the intention to manufacture methamphetamine from it. The maximum penalty for supplying methamphetamine is life imprisonment, the maximum penalty for possessing a precursor substance is five years imprisonment.

Factual summary

[2] On 11 May 2011, police officers went to your rural address near Cambridge where you lived with your partner and teenage daughter. A search of the property revealed two packages containing ContacNT granules, having a combined weight of 1.07kg. ContacNT contains pseudoephedrine, which at that time was a precursor substance used to manufacture the Class A controlled drug methamphetamine. From that quantity of pseudoephedrine it would be possible to produce between 200 and 300 grams of methamphetamine. Also found at your property was a quantity of iodine, also a precursor substance.

[3] In the ceiling space of your house the police located two bags containing bundles of $20 and $50 notes wrapped in plastic.   The total value of the banknotes was

$156,260.

[4] You acknowledged to police that the substance found in the rubbish bin in the kitchen was ContacNT, and that the other substance found was iodine which you said was for use in the treatment of horses. There was no explanation for the presence of the cash.

[5] Your co-offender was Mr Harries. Text messages which passed between you and Mr Harries indicate that between you, you were effecting sales of methamphetamine at a price of $14,000 per ounce. If, as the Crown contends, the sum found in the ceiling was derived from the sale of methamphetamine, it represents the proceeds of sale of about 315 grams.

[6] Following that search you were charged and initially remanded in custody. Eventually however, you were granted electronically monitored bail, with a curfew restricting you to your Cambridge home on a 24 hours a day basis.  Somewhat later it emerged that you were maintaining your contact with Mr Harries and your offending was continuing while you were on bail.

[7] In November 2011, Mr Harries was apprehended in a motor car on Karangahape Road, Auckland. He had with him 54 grams of methamphetamine, about 3.5 kg of ContacNT and various other drug dealing indicia. That very large quantity of ContacNT was capable of being used to manufacture between 700 grams and one kg of methamphetamine.

[8] Following Mr Harries apprehension, the police obtained access to text messages between you and Mr Harries, sent between 9 August 2011 and 12 February 2012. Those text messages contained evidence of various occasions on which sales of methamphetamine were made. It is common ground that from those text messages, there is evidence of sales totalling 409 grams.

[9] There were further text communications between October 2011 and February 2012 between you and Mr Harries regarding your joint drug dealing activities. In particular, there were numerous references to sets of pseudoephedrine, capable of course of producing further methamphetamine.

[10] On 15 February 2012, a search warrant was executed at Mr Harries’ address near Taupo. He was apprehended in possession of almost one kg of methamphetamine and cash totalling $157,000. A methamphetamine laboratory was located there, along with 19.6 kg of pseudoephedrine and a great variety of other precursor substances. Mr Harries had been bailed following his initial apprehension in November 2011.

[11] Your property was searched on 15 February 2012 when police located a small quantity of methamphetamine and some further cash totalling about $2,500, including $1850 concealed in a rubbish bin in the garage.

[12] There has been a degree of contention between you and the Crown as to the significance of the sets of pseudoephedrine mentioned in the text messages between you and Mr Harries. Until today it was contemplated that it would be necessary for there to be a disputed facts hearing as to the significance of the text messages and inferences which it would be proper to draw from them. However, as has emerged from counsel’s submissions this morning, a measure of agreement has been reached between counsel and of course Mr Leabourn was unable to do that without your instructions. The result is that it is accepted by you that the quantity of methamphetamine with which you were involved, was at least one kg, and on the Crown’s side Mr Douch accepts that it is proper to sentence you on that footing.

Personal circumstances

[13] You are 52 years old, living previously near Cambridge with your partner and one of your four daughters. You had worked as a truck driver, and at one time owned a bobcat machinery business. But at the time of the offending you were not working fulltime. Rather, you were engaged occasionally in doing odd jobs for people in the community. This morning, among various references that have been handed up, there is confirmation of that.

[14] Regrettably you have a significant criminal history, including 19 drug related offences, spanning something over two decades. Most of them occurred over a relatively short period about eight or nine years ago. They included a conviction for supplying methamphetamine, for which you were sentenced to three years imprisonment.

[15] You have long standing issues with drug use, and in particular have been a heavy user of methamphetamine.

[16] The pre-sentence report is cautiously optimistic. It is said that you are remorseful for this offending, and that you have exhibited signs of insight into the manner in which your actions have harmed others, including your family. My initial reaction was to approach expressions of remorse in this case, as in other serious drug cases, with some caution.   Expressions of remorse are regularly tendered to the

Court, but they often sit uneasily with the background and the facts of a particular offence. They would, as I mentioned to Mr Leabourn earlier, carry a great deal more weight were it not that you continued to offend in precisely the same way after your initial apprehension. That suggests that you had no regard at all for the authority of the Courts or for the legal process. Nor did you learn an obvious lesson.

[17] But in this case I accept that there is room for cautious optimism. The probation officer was plainly impressed by you, and what you were doing while in custody. The probation report indicates you have completed a drug rehabilitation programme while in custody and that you are clear of substance abuse and have been for some considerable period, which is perhaps unsurprising given that you were in custody. Nevertheless, that is a good start.

[18] Mr Leabourn has handed up a bundle of testimonials and references, some of them from members of your family who are distressed, and even distraught, by what has occurred, facing the loss of a loved one for a significant period. Of even greater interest to me perhaps, is the range of references from others in the community, in which you are obviously a man of good standing except for this offending. It is not particularly common to find that someone facing sentence on charges like this, has a great deal to offer the community and may well on completion of his sentence be in a position to resume his place in the community. All too often, people in your situation have bleak prospects because they simply lack the ability and skills to continue in the community once they are released.

[19]    In the light of all of that, the probation officer assessses you at a medium risk of re-offending. That assessment is sometimes difficult to accept in respect of someone who has been involved at a relatively high level in such a pernicious trade which ruins countless lives.  But there are glimmers of hope here, and I can see why it is that the probation officer, having spent some time with you, and having been impressed by what you have done since being remanded in custody has made that assessment. It seems to me that you have undertaken just about every possible improvement course available in prison, and will diligently search for those you have not yet reached.

[20] That is a good start, and I take that into account as  I indicated  to  Mr Leabourn, in making a small allowance for that when we come to the sentencing process itself. I take into account also, the fact that you have significant family support and when the time of your release comes, you will return to a strong family support network.

Purposes and principles of sentencing

[21]    The sentencing principles to which the Court must have regard are set out in ss 7, 8 and 9 of the Sentencing Act 2002. I take them generally into account. In such cases as the present which involves large scale commercial drug offending, there must be an emphasis on denunciation and deterrence. The deterrence aspect is aimed not just at you, but also others who might contemplate engaging in similar activity. The need for accountability is also to the fore.

[22] Having said that, I need to take into account your prospects for rehabilitation and the need to integrate you back into the community at the end of your sentence. As has been noted in the course of the submissions, however personal factors will generally be relegated in importance to a substantial degree in cases of serious Class A offending.

Parity

[23] I referred to your co-offender Mr Harries, and I said I would come back to him, and I do so now. He was the subject of a rather different set of charges. There was one count of manufacturing methamphetamine, two of possession of methamphetamine for supply, and two of possession of a precursor substance. He was sentenced on the basis that he  had manufactured approximately one kg of methamphetamine and was found in possession of $157,000 in cash, and a large amount of precursor materials and other substances.

[24]  At sentence, Heath J adopted a starting point of 16 years imprisonment for the manufacturing charge, and uplifted that by two years six months to take into

account other offending. There were other further adjustments related to Mr Harries’ personal circumstances, both aggravating and mitigating.

[25] Mr Harries was the manufacturer in this operation and plainly at the very heart of it because he was found on Karangahape Road with substantial quantities of methamphetamine and all the other usual indicia of supply, so he was clearly involved in the supply side as well. Moreover, the quantities of precursor substances with which he was apprehended in February 2011 vastly exceeded those with which you were involved.

[26] In addition, I regard you as sitting slightly below Mr Harries in the chain and therefore it is proper to fix a starting point significantly below that adopted by Heath J in R v Harries.[1]

[1] R v Harries 28 February 2013 [2013] NZHC 359.

[27] Having said that, it is almost  impossible in most  cases to endeavour to calculate an appropriate sentence starting point simply by reference to arithmetical calculations and it is not attempted here.

The tariff case

[28] For offending of this type, the Court must have regard to the guideline judgment of the Court of Appeal in R v Fatu.[2] There, the Court prescribed four sentencing bands for cases involving the sale or supply of methamphetamine. Band four covers the supply of very large commercial quantities (greater than 500 grams) for which the starting point is between ten years and life imprisonment. Counsel are agreed that having regard to the figure of one kg, which I am prepared to accept, this

case falls within band four.

[2] R v Fatu [2006] 2 NZLR 72 (CA).

[29] In Fatu, the Court acknowledged that precisely where an offender should be fitted within a particular band will depend not just on the quantity or purity of the drugs involved, but also the offender’s role. Principal offenders can expect starting points towards the higher end of the relevant band, while the converse is true for those with a more limited involvement.

Discussion

[30] I accept that Mr Harries was at the heart of this offending. I am aware that others have also been apprehended and have since been dealt with by the Court. But although Mr Harries was perhaps the principal offender, you were not far behind. You were plainly heavily involved in obtaining precursor materials and equipment. You have accepted by your guilty plea that you were involved also in the supply of methamphetamine, and you were found in possession of a very substantial quantity of cash which is an indicator of that.

[31] Having said that, I accept that the starting point that ought to be adopted should be significantly less than Heath J adopted in Harries. Counsel have referred me to the sentencing notes of Asher J in R v Li.[3] There, after trial, Asher J fixed the quantity involved in the offending at one kg, which was a figure somewhere between that contended for by the Crown and the defence.  Having discussed Fatu and the

offending in some detail, Asher J concluded that the appropriate starting point ought to be 12½ years imprisonment.

[3] R v Li HC Auckland CRI 2006-019-84585 August 2009

[32] Mr Douch submitted that that case is a reasonably close comparator to this one, and Mr Leabourn does not take issue that that assessment. I have considered one or two other authorities as well, and reached the conclusion that a starting point of 12½ years is appropriate. From that figure it is necessary to make adjustments.

[33] I first take into account aggravating factors, and then mitigating factors. Within those adjustments one needs to distinguish between factors relating to the offending, and those relating to you.

[34] I start with aggravating factors, those which make the offending worse. In relation to the offending itself, I need to add something for the fact you have pleaded guilty not only to the supply of methamphetamine for which a 12½ year starting point is appropriate, but also to the possession of precursor substances in some considerable quantities. That is an aggravating factor relating to the offending.

[35] There are two aggravating factors relating to you personally. The first is a disappointing list of prior offences, including a conviction for supplying methamphetamine for which you received three years imprisonment in 2008, and also that this offending occurred while you were on bail which took some time to obtain, and which was no doubt was the subject of careful consideration and analysis. Having obtained the privilege of 24 hour EMbail, you abused it in the most serious way possible.

[36] I bundle up those aggravating factors and impose an uplift of 18 months, taking me to 14 years imprisonment.

[37] That is the point at which we now make deductions for mitigating factors. The first mitigating factor is really a series of overlapping matters which are personal in character. Mr Leabourn has emphasised the degree of genuine remorse which exists in this case. Arguments of that sort are often approached with some care by sentencing Judges in cases involving Class A drug offending, but I have explained why I have accorded Mr Leabourn’s submissions some weight. I think you are genuine in your intention to make a new life for yourself, and therefore your family, once you have served your sentence, and that the rehabilitation initiatives you have taken indicate your prospects for a successful life once you have completed your sentence are good.

[38] Another relevant factor is the impact all of this is having on your family. They need to see for themselves some measurable result of the fact they are standing beside you and when you are released. Because it is difficult to make any allowance at all for personal circumstances in cases like this, any allowance must be limited, and three months is the limit of what the Court can do. That reduces the 14 year figure to 13 years nine months.

[39]   The other mitigating factor is the plea of guilty which will generally entitle an offender to a discount based upon the speed with which that plea is entered, once the offender is apprehended.

[40]    I need to mention something in this regard about the delay that has occurred in this case. You were apprehended in 2012, and it has been more than 18 months since then. You were initially represented by Mr Barry Hart, no longer in practice. He was an extremely busy practitioner, but regrettably not the best organised of lawyers. When it became clear he would not be able to continue to represent you, Mr Leabourn took up the cudgels but as had happened in several cases in which Mr Hart was previously engaged, it has taken months for him to obtain the files from Mr Hart, and Mr Leabourn found they were incomplete. He has had to engage with the police and the Crown to a considerable extent before obtaining a grip on this case, to advise you and to make progress in it. Over the last months he has spent time reviewing all the material and making sense of a somewhat complicated situation from a legal point of view.

[41] There have been numerous charges in this and the District Court and as a result of negotiations between defence and Crown, it has been possible to reduce the indictment to the two charges to which you have pleaded guilty. Formerly there were numerous charges, and the quantity of drugs specified was at a much higher level. I have accepted from Mr Leabourn that there were good reasons for much of the delay, and you should be treated as having pleaded guilty at an early stage.

[42] Accordingly, the discount figure of 20% Mr Douch has accepted as reasonable is one I consider as representing a proper assessment. You are therefore entitled to a reduction of 20% from the figure of 13 years and nine months, bringing the sentence to 11 years imprisonment.

Minimum period of imprisonment

[43] That brings us to a consideration of a minimum period of imprisonment. In cases involving serious offending, generally serious sexual or high level drug offending, the Courts routinely consider and often impose a minimum period of imprisonment, because the minimum period that would expire before you would ordinarily be entitled to parole is insufficient properly to reflect the level of the offending. The jurisdictional basis for that is well established and is not in dispute this morning.

[44]  In Harries, Heath J imposed a minimum period of imprisonment of 60% of the end sentence. Counsel in your case each mentioned a figure of 50%. I accept there is room for a different approach here. For one thing I consider the prospects of rehabilitation in Mr Harries’ case are considerably less promising than in your case, and the scale of your offending was less serious, as is demonstrated by the ultimate outcome.

[45] Nevertheless, it is necessary to impose a minimum period of imprisonment which I fix at 50%, which means you must serve a minimum of five years six months, having regard to the end sentence I have already indicated to you.

Sentence

[46] On the count of supplying methamphetamine, you are sentenced to 11 years imprisonment. On the charge of possession of precursor substances you are sentenced to three years imprisonment, to be served concurrently, so the effective sentence is 11 years imprisonment.

[47] In respect of the charge of supplying methamphetamine, I impose a minimum period of imprisonment of five years and six months imprisonment.

C J Allan J