The Queen v Anderson

[2007] NZCA 288

IN THE COURT OF APPEAL OF NEW ZEALAND

CA464/06
[2007] NZCA 288

THE QUEEN

v

KYLE JOHN ANDERSEN

Hearing:20 June 2007

Court:O'Regan, Harrison and Heath JJ

Counsel:S J Gill for Appellant

S B Edwards for Crown

Judgment:11 July 2007 at 12 noon

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]        Mr Andersen pleaded guilty to one count of manufacturing a Class A controlled drug, methamphetamine.  The offending occurred between 1 July and 4 December 2004.  The maximum penalty for the offence is life imprisonment.

[2]        On 24 November 2006, Lang J sentenced Mr Andersen to a term of imprisonment of eight years and six months.  The Judge also imposed a minimum non-parole period of one half of that term, four years and three months.

[3]        Mr Andersen appeals against the sentence imposed on the grounds of manifest excess.  There is no challenge to the imposition of a minimum non-parole period or to the proportion of the sentence adopted for the purpose of that period.  However, were the appeal to be allowed, it would be necessary to adjust the length of that period.

The sentencing process

[4]        A disputed fact hearing was held before sentencing.  Mr Andersen elected not to give or call evidence.  We take our summary of the facts from Lang J’s sentencing remarks which followed the disputed facts hearing. 

[5]        In December 2004, Mr Andersen was renting a property at 380 Te Atatu Road, Te Atatu North.  He was living there with his partner, her 18 year old son and their two year old twin children.  Two boarders also resided at the property.

[6]        A dispute arose between Mr Andersen and his partner on Saturday 4 December 2004.  As a result, his partner left the address.  She telephoned the Police to advise them of suspicions regarding the activities that had been taking place in a shed on the property.  Attempts had been made by Mr Andersen to prevent her from telephoning the Police.

[7]        Once Mr Andersen realised that his partner had telephoned the Police, he returned to the house.  He told his partner’s son and others present to leave because the Police were coming to the property.

[8]        A search of the property took place on the arrival of the Police.  The Judge found that a “reasonably sophisticated methamphetamine laboratory” was located in the shed.

[9]        The Police located 13 containers in the shed, each of which contained quantities of waste liquid totalling 52 litres.  Many were two layer liquids containing methamphetamine.  Those liquids were consistent with waste produced during the manufacture of methamphetamine.

[10]     A variety of chemicals used in the manufacture of methamphetamine were also discovered; including toluene, hydrochloric acid and hypophospherous acid.  Glassware, beakers and a hot plate, all items used in the manufacture of the drug, were found.

[11]     As part of the sentencing process the Crown produced a brief of evidence from Ms Ashleigh Meyn, a forensic scientist employed by ESR.  She described the laboratory as “medium scale” but opined that the volume of waste liquid indicated that significant amounts of methamphetamine had been manufactured.  She said, in a passage of her written brief upon which the sentencing Judge placed reliance:

There are many factors that would influence the amount of liquid used to manufacture methamphetamine, such as the recipe being followed and the experience of the operator.   It is impossible to determine the exact amount of methamphetamine that was produced at this laboratory.   However, an estimate can be made based on research done in our laboratory, using a method that required approximately 600 millilitres of various liquids to convert 20 grams of ephedrine to 10 to 15 grams of methamphetamine.   Based on the method used in our laboratory and on the liquids found at the address, in my opinion the amount of methamphetamine that would have been manufactured over time could have been in excess of 0.8 kilograms.

[12]     Oral evidence was also given by Ms Meyn.  Her evidence was that between 0.08 of a kilogram and 1.2 kilograms was likely to have been produced.  The actual amount would depend upon variables, including the experience and skill of the “cook”.

[13]     Ms Meyn was cross-examined.  She accepted her range might not be “completely accurate”.  She deposed that the most reliable method for predicting likely yields of methamphetamine was through analysis of precursor substances.  That was not possible in this case because only a limited amount of such material had been found in the shed during the Police search.  The Judge was satisfied that the small amount of precursor material located on 4 December did not represent the totality of the manufacturing operation. 

[14]     Lang J was aware of the problematic nature of Ms Meyn’s assessment of the quantity of methamphetamine manufactured.  His Honour said:

[14] The issue that I need to determine, bearing in mind the fact that the onus of proof is on the Crown throughout, is the likely output that I should select taking into account all of the evidence.

[15] There are a number of factors that assist me in this regard.   The first is that you have been in occupation of the property for some months and the evidence of your partner’s son is to the effect that you began using the shed for your clandestine activities some months prior to the date of the police visit.   I therefore proceed on the basis that you and others had been using the shed for three to four months for the purpose of manufacturing methamphetamine.

[16] Next, there is the fact that there appear to have been regular visits by other persons who were also involved in the manufacturing process.   This does not appear to have been an unusual occurrence and I therefore proceed on the basis that methamphetamine was manufactured at the address on a number of occasions.

[17] Taking into account the evidence of Ms Meyn regarding the ranges that she used, I consider that it is most likely that between 250 and 500 grams of methamphetamine was produced in the shed.   I accept that the figure that Ms Meyn used at the lowest end, namely .83 of a kilogram, needs to be adjusted further to take into account the matters that Mr Winter exposed during cross-examination.   I do not, however, see that the amount that was produced could possibly be as low as 250 grams.   I consider that the most reasonable inference to draw from all of the evidence is that it was at least 375 grams and probably up towards 500 grams.   I take those figures as being the most conservative that I could possibly take and giving you the benefit of the doubt.   I am therefore satisfied that the Crown has proved beyond reasonable doubt that approximately 375 grams of methamphetamine was manufactured in the shed.

[18] It is also clear that the operation was reasonably sophisticated.   It contained a large quantity of equipment and the waste materials themselves speak volumes about the scale of the manufacturing operation.  [our emphasis]

[15]     The sentencing Judge was unimpressed with Mr Andersen’s contention that he merely permitted others to use the shed for manufacturing purposes.  While accepting that others may have been involved, Lang J was satisfied that Mr Andersen was present on several occasions when methamphetamine was manufactured and that he provided active assistance “not only in the form of the shed itself, but also in the form of equipment and probably chemicals”.

[16]     Lang J applied the principles set out in R v Fatu [2006] 2 NZLR 72 (CA). In particular, the Judge referred to [22] in which William Young and Chambers JJ, for the Court, said:

All other things being equal, a manufacturer is more culpable than an importer and an importer is more culpable than a supplier. A drug manufacturer (or importer for that matter) is responsible for bringing the drugs in question into circulation in New Zealand and will usually be more culpable than a dealer in drugs. This is consistent with the approach taken in R v Aramah (1982) 4 Cr App R (S) 407. Another way of looking at it is that a drug manufacturer or importer can be regarded, at least normally, as being at the top of the supply chain. This was the approach taken in Cabassi v R [2000] WASCA 305 at para [10].

[17]     In Fatu, this Court set out the bands within which sentencing should be approached for primary offenders involved in methamphetamine manufacturing operations. The Court said at [43]:

In those circumstances we consider that appropriate sentencing bands for those who are the primary offenders in methamphetamine manufacturing operations should be based on uplifts of 10 per cent – 20 per cent on those applicable in the case of importers:

(a) Band one – not applicable for reasons given in para [42].

(b)Band two – manufacturing up to 250 g – four years’ to 11 years’ imprisonment.

(c)Band three – manufacturing large commercial quantities (250 g to 500 g) – ten years’ to 15 years’ imprisonment.

(d)Band four – manufacturing very large commercial quantities (500 g or more) – 13 years’ to life imprisonment.

The sentence imposed must reflect not only the quantity of the drug involved, but also the role of the particular offender in the manufacturing ring in question. Findings of fact in this area must, of course, be made in accordance with s 24(2)(c) of the Sentencing Act.

[18]     Lang J took the view that the level of offending fell within the middle of band three of Fatu, meaning a sentence of about 11 years imprisonment could be expected for a principal.  To reflect his conclusion that Mr Andersen was not a principal, but someone who provided significant assistance, the Judge adopted a starting point of nine years imprisonment.  He regarded aggravating features of the offending as subsumed within the starting point selected.

[19]     Having referred to a number of Mr Andersen’s drug related convictions, both in New Zealand and in Australia, the Judge imposed an uplift of one year to reflect aggravating features relevant to the offender.  Accordingly, a final starting point of ten years imprisonment was taken.

[20]     In mitigation, the Judge took account of a plea of guilty, albeit one entered at “a very late stage”.  The plea was indicated on the last working day before trial and entered on arraignment on the day fixed for the trial to begin.  In addition, the Judge had regard to expressions of a desire to rehabilitate and some evidence suggesting that Mr Andersen’s association with and consumption of drugs had ceased since his arrest in 2004.  To reflect those mitigating factors, the Judge reduced the sentence by 18 months, leading to an end sentence of eight years and six months imprisonment.

Competing submissions

[21]     Mr Gill, for Mr Andersen, concentrated on what he submitted was the unreliable nature of the evidence of Ms Meyn.  He submitted that, because the quality of the methamphetamine “cook” and the nature of the recipe used was unknown, her calculations were so unreliable that the Judge ought not to have placed any weight on her assessment of the quantity manufactured.

[22]     Mr Gill submitted that, if we were to accept that Ms Meyn’s evidence was flawed, the starting point of nine years imprisonment selected by the sentencing Judge was too high.  He also submitted that too little credit was given for the guilty plea, albeit that the plea was entered at the last possible moment before trial.

[23]     For the Crown, Ms Edwards submitted that the Judge was entitled to find that the minimum quantity of methamphetamine manufactured was approximately 375 grams.  That, she submitted, brought the case plainly within band three of the classifications set out in Fatu.  In those circumstances, notwithstanding that the Judge treated Mr Andersen as a secondary offender, the selection of a nine year starting point (one which fell at the upper range of band two in Fatu) was appropriate. 

[24]     Ms Edwards also submitted that there was no basis to interfere with the credit given for the late guilty plea.  Taking account of the factors discussed by the Judge in mitigation, Ms Edwards submitted that the credit amounted to 10 percent.

Analysis of competing submissions

[25]     There is no doubt that Lang J was alert to the problems encountered by Ms Meyn in calculating the quantity of methamphetamine manufactured, having regard to the need to work backwards from the waste materials located.  The absence of significant pseudoephedrine products commonly used in the extraction process also caused problems.

[26]     The nature of the evidence found at Mr Andersen’s property reflected the particular stage of the manufacturing cycle that had been reached.  In sentencing the offender, the Judge was entitled to take account of Ms Meyn’s evidence together with all other evidence, physical and photographic, that might impact on the assessment of quantity.

[27]     The Judge was cautious about his reliance on Ms Meyn’s evidence.  He assessed it in light of other evidence available to him, including the existence of a large quantity of equipment and waste materials which, he said, spoke “volumes about the scale of the manufacturing operation”.

[28]     Ms Meyn’s opinion that the manufacturing operation was “medium” sized is consistent with the impression gained from viewing photographs taken of the clandestine drug laboratory when ESR personnel attended at the beginning of the search.  Those photographs show the items located in situ and “close up”.  We see no basis to interfere with Ms Meyn’s description and Lang J’s assessment of the size and nature of the manufacturing operation.

[29]     During the course of cross-examination of Ms Meyn, much emphasis was placed on her inability to provide an “exact” quantity manufactured.  That will rarely be possible, perhaps only in cases where a manufacture has been completed and the product is still in situ when the Police arrive to search.

[30]     In order to sentence, applying Fatu principles, it was necessary for the Judge to be satisfied, beyond reasonable doubt, that the quantity of the drug manufactured came within a specific band identified in [43] of Fatu.  In order to come within band three, a minimum of 250 grams had to be manufactured.  In [17] of his sentencing notes, the Judge expressly held that he could not accept that the quantity involved “could possibly be as low as 250 grams”.  We are not prepared to disturb that finding.  It was a finding open to the Judge on the evidence as a whole.

[31]     The next issue is whether, on the basis of the findings made by the sentencing Judge, the sentence was within the range available to him.

[32]     On the basis of a manufacture falling within band three of Fatu, the Judge was entitled to use a starting point, including aggravating factors relevant to the offence, of between 10 and 15 years imprisonment.  Ordinarily, for a principal offender, one would have expected a starting point of about 11 or 12 years to have been applied, given the finding was the mean of the two quantities specifically mentioned in band three, 250 grams and 500 grams.  The Judge chose a starting point of nine years imprisonment.  We are satisfied that fairly reflected Mr Andersen’s role as a secondary party. 

[33]     The Judge added to that starting point a further period of one year to reflect aggravating features relating to the offender.  Was that uplift justified?  Mr Andersen is no stranger to the criminal justice system.  After having served a lengthy term of imprisonment in Australia for non-drug related offending, Mr Andersen was deported to New Zealand in 2000.  He began to offend again soon thereafter.  He has appeared before the Courts regularly, primarily for drug related offending, since 26 November 2002.  In those circumstances, we have no doubt that the uplift selected by the Judge was open to him.

[34]     The final point concerns the credit given for mitigating factors.  The Judge allowed a period of 18 months to be deducted from the final starting point of ten years imprisonment.  As part of the credit related to attempts at rehabilitation, it is reasonable to infer that the credit for the late guilty plea was something in the order of 10 to 12 percent.

[35]     Recently, in R v Fonotia [2007] NZCA 188 at [50], this Court considered the credit to be given to a late guilty plea in these terms:

We now finally turn to consider the reduction for the guilty pleas.  This court has yet to deliver a guideline judgment on reductions for guilty pleas, although reference has previously been made to the excellent work which has been done on this topic by United Kingdom’s Sentencing Guidelines Council and the New South Wales Court of Appeal in R v Thomson (2000) 49 NSWLR 383: see R v Hannagan CA396/04 18 July 2005 at [25], R v Growden CA67/05 25 October 2005 at [50], and R v Marsters (2005) 22 NZTC 19,649 at [27].  This court has regularly approved discounts of between 10% and 33%.  The extent of the discount primarily reflects when the guilty pleas were entered: the earlier the plea is entered, the greater the discount.  That accords with the position under the United Kingdom and New South Wales guidelines.

[36]     In a case such as this, where conviction was almost inevitable and the plea was entered at the last possible moment before trial, we consider that the credit given by the sentencing Judge for the guilty plea was adequate, though at the lowest end of the range available.  However, the overall credit for mitigating factors can be seen as more generous.  That allowance took account of personal factors, based on attempts at rehabilitation, of which other Judges may have been more sceptical.

Result

[37]     For the reasons given, the appeal against sentence is dismissed.

Solicitors:
Gill & McAsey, Lower Hutt for Appellant
Crown Law Office, Wellington