The Queen v Martin

[2007] NZCA 83

IN THE COURT OF APPEAL OF NEW ZEALAND

CA326/06
[2007] NZCA 83

THE QUEEN

v

SHANNON CHARLES MARTIN

Hearing:6 March 2007

Court:Chambers, Gendall and Heath JJ

Counsel:M J Dyhrberg and J B Wickliffe for Appellant

P K Feltham for Crown

Judgment:20 March 2007     at 3 pm

JUDGMENT OF THE COURT

A        The time for appealing against sentence is extended.

BThe appeal is allowed to the extent that the sentence of six months imprisonment on the receiving charge is quashed and a sentence of two months imprisonment (cumulative on the sentence in respect of the charge of manufacturing methamphetamine) is substituted.  All other sentences stand.

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REASONS OF THE COURT

(Given by Gendall J)

Introduction

[1]       This is an appeal against a sentence of five years six months imprisonment imposed in the High Court at Auckland on 14 December 2005 on charges of manufacturing and possessing methamphetamine and receiving stolen property.  The six months sentence on the receiving charge was cumulative on the five-year sentence imposed in respect of the methamphetamine offences.

[2]       The appellant had pleaded guilty to one count of manufacturing the Class A controlled drug methamphetamine and one count of possessing methamphetamine and receiving a motor vehicle.  Prior to sentencing a disputed fact hearing was heard by Simon France J because the appellant’s disputed allegations as to his role in the manufacturing enterprise. 

Background

[3]       The background facts are that on 2 June 2005 the police had traced a stolen van to an address in Helensville.  There the appellant conducted his business and also rented part of it to others.  At the premises two men were seen to run into the house and were pursued by police constables.  Unfortunately for the appellant officers discovered at the premises a methamphetamine manufacturing clandestine laboratory and a large quantity of chemicals, precursor substances, glassware and material used in the illicit manufacture of methamphetamine.  Twenty-eight grams of methamphetamine was located in one area and five grams and $10,700 cash located in another.  A large amount of white crystals were on an oven tray drying in the oven of the kitchen.  A very substantial quantity of tablets containing pseudoephedrine was found and this was later analysed to be the weight of 1.799 kilograms.  A significant methamphetamine manufacturing operation was in place.  The appellant was present there and when spoken to admitted manufacturing because he was in financial difficulty and had a problem with an addiction to the drug.

[4]       Although the appellant pleaded guilty, a disputed facts hearing proceeded because of his contention that he simply was guilty of allowing the premises to be used for others to manufacture methamphetamine, because he rented them.

[5]       After hearing the appellant and other evidence Simon France J rejected that contention.  His Honour concluded:

[13]     It has been noted that Mr Martin says that he used the premises for his business.  It is accordingly instructive to note what was found in the “office” area:  firearms, tick list, hazardous materials handbook, receipts for glassware, rocksalt, syringes, a lever arch folder containing methamphetamine recipes, and in a space hidden under a safe, bags containing Contac NT.  Also found in this area was Mr Martin’s passport and wallet.

[14]     The clear inference to be drawn from the inventory of the whole of this house – through the kitchen, the bedroom areas, the office area, and the shed – is that the methamphetamine operation was the dominant activity.  This conclusion sits very uncomfortably with the proposition that Mr Martin merely allowed the premises to be used and otherwise had no involvement.  By his own admission he was there often.  He was there on the day when the Police came when manufacturing was taking place.  In the office where his wallet and passport was found, there were numerous items plainly associated with the manufacturing.  It is difficult to conceive that any regular user of the premises could have not been involved in what was happening.

[6]       Once Simon France J had made that finding the appellant adopted a new stance.  He applied to vacate the guilty plea so as to not be sentenced on that basis.  The Judge dismissed that application ruling that the sentencing should proceed.  For completeness we note that an appeal against the refusal to permit the guilty plea to be vacated was dismissed by the Court of Appeal.

[7]       When the appellant was sentenced on 14 December 2005 the Judge sentenced him on the basis of R v Wallace [1999] 2 NZLR 159 (CA) being the guideline decision then in force. (Although by that time this Court had issued its new guideline judgment, R v Fatu [2006] 2 NZLR 72, the Judge correctly did not apply it, as the appellant’s guilty pleas had been entered before Fatu came into effect: see Fatu at [44].) The Judge classified the operation as falling within the middle of category 2 of Wallace and, having regard to re-classification of methamphetamine as a Class A controlled drug, the Judge considered that a sentence of between seven and eleven years was required.  He took a starting point of eight years imprisonment taking denunciation and deterrence as the primary sentencing goals.  He gave a generous allowance of 27 months for the plea of guilty (despite there being an attempt to vacate the plea) and other mitigating factors increased the credit allowance to 36 months.  The result was a final sentence for the drug offending of five years imprisonment.  The appellant had pleaded guilty to receiving, jointly with two others, the stolen van and a sentence of six months cumulative imprisonment was imposed.

Submissions

[8]       Although an appeal against sentence was not earlier pursued when the appeal against conviction was dealt with by this Court, and the appeal is out of time, the Crown does not oppose leave being granted to extend the time for filing the appeal.  Accordingly, time for filing an appeal against sentence is extended.

[9]       Ms Dyhrberg sought leave to file a memorandum annexing a report from a company of Occupational Health Analysts and Consultants.  This stated that on 7 October 2005 an examination of the kitchenette area in the office at the premises was undertaken.  Although methamphetamine was detected in the office area of the storeroom and kitchenette, it was not detected in the main area of the property in which the clandestine laboratory had been set up.  We decline to admit that letter as evidence on this appeal.  It was available at the time of the disputed fact hearing.  It was also available at the time of sentencing by Simon France J.  It relates to an examination of the property four months after the offending.  Its probative effect, as to the scale of the manufacturing operation, is nil.  The scale of the operation can be gauged from the police photographs which we have seen, and the other facts including the amount of methamphetamine and pseudoephedrine and cash located.  Scientific analysis of various sites at the premises, four months after decontamination, has no probative value.

[10]     Ms Dyhrberg on behalf of the appellant accepted the Judge’s findings in the disputed facts hearing, which emphasised that although the appellant had to be sentenced on the basis that he was fully involved in the drug manufacturing as a participant in the actual manufacture, he was neither a peripheral player nor the organiser or kingpin.  To that extent Ms Dyhrberg submitted that the appellant was not the prime offender.  She said that the Judge erred in taking eight years as a starting point in the sentencing exercise.  She said the starting point should be seven years imprisonment.  She accepted that Simon France J had been entitled to find the offending fell within category 2 of Wallace; she further accepted that the range for category 2 following re-classification was 7-11 years as Simon France J adopted.  But, she submitted, the offending did not fall within the middle of category 2, but rather at its lowest end. With a discount of three years to be allowed for the mitigating circumstances personal to the appellant a four year sentence was appropriate.  She submitted that the sentence on the receiving charge should not have been cumulative and, in any event, a term of six months was manifestly excessive.  This was, she said, a “technical receiving” only and a custodial sentence could not have been imposed if the appellant was to be sentenced on that charge alone.

[11]     Ms Feltham, for the Crown, contended that the Judge was correct in his assessment of the offending falling at the very least into the lower end of category 2 of Wallace.  That is, a starting point of eight years imprisonment was unexceptional.  The discount allowed was, counsel said, generous.  The Crown accepted that the receiving matter, if a stand-alone offence, would probably not have been the subject of a term of imprisonment.  But given that the appellant must receive a term of imprisonment for the methampethamine offending, a short prison sentence for the receiving was inevitable.  Ms Feltham submitted the judge had been correct to impose a cumulative sentence in the circumstances of this case, as the receiving was discrete offending.  There was no evidence of its having been connected to the drug offending. 

Discussion

[12]     The Judge was correct to use Wallace as his guideline, with appropriate adjustment of the range to reflect the re-classification of methamphetamine.  This was serious offending involving careful planning and sophistication.  There was a clear intention to continue to manufacture on a large scale given the precursor substances present.  A starting point of eight years imprisonment was fully justified. Beyond doubt the appellant had good personal qualities and strong family support and the prospects of rehabilitation were rather better than in many cases.  These factors were well recognised by the Judge in what was a generous discount given to the appellant.  The sentence of five years imprisonment was fully warranted and could not be said to be manifestly excessive.

[13]     The Judge concluded that a cumulative sentence was appropriate for the receiving charge.  His logic in that regard cannot be faulted.  The problem is, however, that he added a sentence for this discrete offending which cannot be justified.  Ms Feltham accepted that a receiving charge of this sort, if standing alone, would not normally have attracted a sentence of imprisonment.  Probably it would have warranted a community work sentence.  Because the appellant must be imprisoned on the methampethamine offending, community work is not available for the receiving offence.  It must therefore be converted into a short term of additional imprisonment, roughly to reflect the “punishment” of the equivalent community work sentence.  In our judgment, no more than a two months’ uplift can be justified.  We suspect the Judge’s error came about because of his lack of familiarity with sentencing levels for receiving at the lower end: such sentencing is not the normal faire of High Court judges.  Probably counsel’s submissions focused on the much more serious methamphetamine offending.  We suspect the Judge’s error came about because of his lack of familiarity with sentencing levels for receiving at the lower end: such sentencing is not the normal fair of High Court judges.  Probably counsel’s submissions focused on the much more serious methamphetamine offending. 

[14]     To some extent the appellant is somewhat lucky in the outcome of this appeal.  Had the Judge imposed five years four months imprisonment with respect to the methamphetamine offending and added two months imprisonment for the receiving charge, a total of five years six months, we would not have been disposed to interfere.  But we have concluded it would be unjust to increase the methamphetamine sentence to achieve that result. 

Result

[15]     Accordingly, we adjust the cumulative sentence in respect of the receiving charge to a term of two months imprisonment.  Only to that extent is the appeal allowed.  But in respect of the lead sentence of five years imprisonment the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington