The Queen v Harkins

[2008] NZCA 540

IN THE COURT OF APPEAL OF NEW ZEALAND

CA396/2008
[2008] NZCA 540

THE QUEEN

v

STEPHEN EARLE HARKINS

Hearing:24 November 2008

Court:Ellen France, Potter and MacKenzie JJ

Counsel:P J Kaye for Appellant

D G Johnstone for Crown

Judgment:8 December 2008 at 2.30 pm 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant was sentenced by Courtney J on 5 June 2008 on a number of drug-related offences to an effective sentence of seven years six months imprisonment: HC AK CRI-2006-044-006243.  A minimum period of imprisonment of three and a half years was imposed.  He appeals against the sentence on the basis that it is manifestly excessive.

[2]       The appellant says the sentence is manifestly excessive for three reasons.  The first is that the starting point of seven years imprisonment adopted by the Judge was too high.  Secondly, the appellant says that the Judge erred in imposing the maximum sentence on the charge of possession of methamphetamine.  Finally, the appellant submits that the offending did not warrant the imposition of a minimum period of imprisonment.

Factual background

[3]       The sentence in issue relates to two groups of offences.  The first occurred in August 2006 at premises in Porana Road and the Silverfield Estate.  The second group of offences took place in December 2006 in Queen Street, Auckland, when the appellant was on bail in relation to the first group of offences.

[4]       In the first group of offences, the appellant was found guilty of:

(a)       One representative charge of manufacturing methamphetamine;

(b)Two charges of possession of equipment for the purposes of manufacturing methamphetamine;

(c)Two charges of possession of precursor substances for the purposes of manufacturing methamphetamine; and

(d)Two charges of possession of materials for the purposes of manufacturing methamphetamine.

[5]       The appellant subsequently pleaded guilty to one charge of possession of a firearm and one charge of possession of an explosive, namely, ammunition.

[6]       The second group of offences relating to the Queen Street address to which the appellant pleaded guilty comprised:

(a)       One charge of possession of methamphetamine;

(b)One charge of possession of LSD; and

(c)One charge of possession of a drug instrument.

[7]       The Judge described the Porana Road and Silverfield Estate offending in these terms at [9]:

These convictions resulted from the execution of a search warrant by the police in August 2006 in the commercial premises located at Porana Road and Silverfield Estate in Glenfield.  [The appellant was] the lessee of both premises and [was] in fact living at the Silverfield address with [his] then partner and her young son.  The ground floor of both premises had been set up as a methamphetamine lab.  There was substantial equipment, blacked out windows, surveillance cameras fitted at both entranceways.

[8]       The Judge described the second group of offending at [14] as follows:

[These offences] arose from a search warrant executed at [the appellant’s] apartment in Queen Street in December 2006.  At that stage, [the appellant was] on bail awaiting trial on the Silverfield Estate/Porana Road offending.  When the police searched [the appellant’s] apartment they found a snaplock bag containing methamphetamine, a glass P pipe, $3,500 in cash in the pocket of a vest, four snaplock bags containing a total of four grams of methamphetamine at an estimated value of between $3,500 and $4,000.  There were eight LSD tablets as well.

Sentencing remarks

[9] Courtney J treated the two groups of offending as separate in time and “somewhat” separate in nature: at [6]. For that reason the Judge ordered the sentences for each group of offences to be served concurrently as against the other sentences within each group but imposed the sentences in relation to the second group of offences cumulatively on those for the first group.

[10]     In terms of the first group of offences, the Judge took the manufacturing of methamphetamine as the lead offence.  Her Honour noted that it was agreed this offending came within band two of R v Fatu [2006] 2 NZLR 72 (CA) warranting starting points in the range of four to eleven years imprisonment. The Judge noted there was no evidence as to how much methamphetamine was manufactured but said that manufacturing had occurred on at least two occasions and the nature of the enterprise made it clear this was commercial offending “of some substance”: at [10].

[11] In setting the starting point, the Judge took into account three factors. The first was that this was a “reasonably sophisticated and substantial operation maintained over two separate premises”: at [11]. Secondly, the operation was producing dangerous and toxic fumes which caused illness to some of the nearby occupants. The Judge treated that aspect with “even greater seriousness” because of the presence of the appellant’s partner and child at the Silverfield Estate address: at [11]. Finally, a firearm and ammunition were located in the master bedroom at the Silverfield Estate address.

[12]     Considering the overall circumstances of the offending, Courtney J said that a starting point of six and a half years imprisonment would be appropriate.  That figure in Her Honour’s view needed to be increased slightly to reflect the overall offending, particularly, the possession of the firearm.  The Judge also paid some regard to the appellant’s 2005 drug-related offending but did not take into account offending from the appellant’s youth which dated back more than 20 years.  The starting point was increased by six months to seven years imprisonment to reflect these factors.

[13]     Courtney J said that there were no real mitigating features.  While the appellant had pleaded guilty to the firearms offences, the Judge did not consider that made any difference to the overall offending.

[14] In terms of the second group of offences, the Judge took the lead charge as possession of methamphetamine and imposed a term of six months imprisonment which was “intended to reflect both the seriousness of that charge and the overall offending” at the Queen Street address: at [15]. On the possession of LSD charge a term of one month’s imprisonment to be served concurrently was imposed and a further sentence of two months imprisonment was imposed (concurrently) for possession of a pipe.

[15] In imposing a minimum period of imprisonment of three and a half years, the Judge took the view that the overall seriousness of the offending warranted denunciation and deterrence to a level that the Judge did not consider could be obtained through the term of imprisonment that would otherwise be served. The Judge said she was particularly influenced by “the extent and sophistication of the manufacturing operation, regardless of the lack of evidence as to yield, and the fact that [the appellant was] prepared to continue offending while on bail”: at [17].

The term of imprisonment

[16]     In the written submissions, the appellant said the starting point was too high given the absence of any evidence as to the value or quantity of drugs manufactured.

[17]     In oral argument, Mr Kaye focused on two aspects.  First, he raised the possibility the Judge had double counted or, at least, placed too much weight on the presence of the firearm.  Second, Mr Kaye submitted that the possession of methamphetamine count did not warrant the imposition of the maximum term.  Because of these two factors, the appellant says that the sentence was manifestly excessive.

[18]     On this aspect, we accept the submissions for the Crown that the starting point adopted was open to Courtney J.  The appellant does not take issue with the Judge’s characterisation of the offending as a sophisticated, commercial enterprise involving two working laboratories at two separate premises.  The latter point is emphasised by the fact there was evidence some neighbouring residents felt the effect of the fumes.  Given these factors, the starting point adopted was within range.

[19]     We do not consider there has been double counting with respect to the firearm.  Rather, the Judge was simply saying that on stepping back and viewing the matter overall, given the involvement of a firearm and ammunition, six and a half years was an insufficient starting point.

[20]     As to the imposition of the maximum term for possession, Courtney J was looking at the totality aspect.  In addition, while the amount of methamphetamine was small, this was offending whilst on bail, with the appellant in possession of LSD tablets and some $3,500 cash.  Given these other factors, again, a six month term was open.

The minimum period of imprisonment

[21]     The appellant challenges the determination that the sentence was not sufficient to achieve the purposes of sentencing particularly punishment, denunciation and deterrence as well as protection of the community.  The appellant argues that the aggravating features relied on by the Judge are in fact typical of this type of offending, for example, the production of toxic fumes.

[22]     The appellant made two key submissions on this aspect.  First, in assessing whether to impose a minimum period Mr Kaye argued that the Judge has looked at the same factors as in determining the term.  While there is some overlap, the submission is that there is a risk of doubling up.  Second, it is submitted that this is reasonably middle order drug-dealing which does not warrant a minimum period.  The appellant pointed in this respect to R v Anslow CA182/05 18 November 2005 where this Court noted that minimum periods of imprisonment have seldom been ordered for offences under the Misuse of Drugs Act 1975 when the finite term of imprisonment has been less than nine years.

[23]     The Crown says that the extent of the offending and the fact that the appellant was willing to continue offending whilst on bail were sufficient factors to warrant the imposition of a minimum period of imprisonment. 

[24]     This Court in R v Taueki [2005] 3 NZLR 372 discussed the test that is applied under s 86 of the Sentencing Act 2002 in determining whether to impose a minimum period. The Court said:

[52]     … Now the Court must simply satisfy itself that the one-third period provided for in s 84(1) of the Parole Act [2002] is insufficient for the purposes of accountability (punishment), denunciation and deterrence, or to protect the community from the offender.  Parliament has therefore given legislative force to the test set out in this Court’s decision in Brown, [[2002] 3 NZLR 670], but has also added a new factor: protection of the community. … Parliament has removed altogether the requirement in the original s 86(2) and (3) that offending be out of the ordinary range of offending.

[25]     That excerpt reflects the approach taken by Courtney J.  Essentially, the Judge has concluded that the existence of two functioning laboratories at the two separate locations underscored the appellant’s determination to persist with this sort of offending.  When that is considered, along with the relatively recent previous conviction for drug dealing and the offending whilst on bail, it was open to the Judge who had presided over the trial to conclude that there was a particular need for deterrence and denunciation.

[26]     As to the imposition of a minimum period for drug-related offending where the finite term is less than nine years, we can only reiterate what this Court said in R v Richardson CA85/06 16 August 2006 at [26]:

Anslow should not be understood as holding that a minimum period of imprisonment is inappropriate unless the term is nine years or more.  The observations in Anslow merely reflect the reality that offending which is serious enough to warrant the imposition of a minimum period of imprisonment will generally attract a prison sentence of nine years or more.

Conclusion

[27]     For these reasons, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington