The Queen v Rourke Peter Gregory Crawford-Flett

IN THE COURT OF APPEAL OF NEW ZEALAND

CA108/02

THE QUEEN

ROURKE PETER GREGORY CRAWFORD-FLETT

Hearing:	25 September 2002
Coram:	Blanchard J Morris J Chambers J
Appearances:	P J Kaye for Appellant F E Guy for Crown
Judgment:	25 September 2002

JUDGMENT OF THE COURT DELIVERED BY MORRIS J

This is an appeal against sentence. The appellant was sentenced on 7 February this year to five years’ imprisonment having been convicted on one charge of manufacturing a class B controlled drug namely amphetamine between August 1999 and January 2000. His conviction followed a change of plea by him during the course of his trial.
The appeal is brought upon the ground that a sentence of five years is manifestly excessive. For the appellant it is submitted the starting point adopted by the learned District Court Judge was too high and the effective sentence should have been lower.

The Facts

In August 1998 the appellant was seen in the vicinity of an Auckland chemical company when a quantity of phenylacetic acid was purchased by an associate. He and the associate then returned to an Auckland city address.
Subsequent police inquiries established:
[a] The appellant made a further seven purchases of phenylacetic acid between July 1998 and November 1999. The total quantity purchased was in excess of 25 kilograms and the cost was $9,419.00.
[b] The appellant also purchased formamide from a Napier chemical company on five occasions between February 1999 and November 1999 at a cost of $3,317.19. Formamide is used in the process of converting phenylacetic acid to amphetamine.
The activities of the appellant and others became the subject of a police investigation which culminated in the arrest of the appellant and a number of others. They were charged with various offences against the Misuse of Drugs Act. Nine others were tried along with the appellant. The appellant alone faced the charge of manufacturing amphetamine. The Crown case was that the appellant was the manufacturer of the drug and the others were the distributors of his product.
On 11 January 2000 police issued a search warrant on the appellant’s home address in Wairoa. The appellant was present. At the rear of the house was a small building. Inside, evidence was found strongly suggesting that methamphetamine had been manufactured because of the chemicals spilt on bench surfaces and staining to the walls and ceiling of the building.
Alongside this small sleepout was a large barn containing a quantity of farm equipment and motorcycles. Inside the door was a large haystack containing around 200 hay bails. Inside the haystack was a well concealed corridor leading to the centre of the haystack itself. At the end of the passage was a small compartment in which a complete laboratory for drug manufacturing was located. This included items of glassware, heating mantle, stands and other chemical equipment. Together with this equipment was a quantity of chemicals such as sulphuric acid, sodium hydroxide, toluene, acetone and formamide. The police also found the phenylacetic acid, previously purchased by the appellant.
Also located at his address was documentation and recipes relating to drug manufacture.
The appellant admitted ownership of all the laboratory equipment and chemicals located. He also admitted to being involved in manufacture of methamphetamine for over a year and stated that he had had three successful “cooks”. He claimed the last of these was late November or early December 1999.
The appellant said that each cook got about 2 ounces of pure methamphetamine. He claimed to double the weight by providing it with glucose to make the substance 50% pure. He maintained that on the last occasion he sold the whole four ounces produced at 50% purity for $6,000.00. He said that on the first occasion he produced four uncut ounces of the drug which he then cut to yield eight ounces. He said he sold this for $10,000 and used the money to pay for the chemicals.
On the third week of his trial the appellant pleaded guilty and in February this year the sentence of five years’ imprisonment was imposed. Seven of his co-accused were convicted. Sentences of between four years’ imprisonment and 21 months’ imprisonment were imposed on them.
The Crown did not accept the appellant’s valuation of the methamphetamine he had produced. The Crown at sentence submitted that a competent manufacturer generally produces a product with 80% purity which could conceivably be sold on the street after being cut at $150.00 per gram. It follows that the potential street value is therefore somewhere in the vicinity of $403,000.00. The Crown did not assert that the appellant in fact realised these returns but submitted that the potential figure should cast doubt on the appellant’s claims that he received only $16,000.00.
In sentencing the learned Judge was clearly sceptical of the appellant’s claim as to the return he made on this manufacturing, in particular having regard to the admitted cost of purchase of the chemicals in excess of $12,500.00. We are satisfied the Judge was entitled to be so sceptical and can see no justification for criticism of the sentence on this basis.
Mr Kaye further submitted, having regard to the principles enunciated in R v Wallace and Christie [1999] 3 NZLR 159, that the learned trial Judge should not have accepted the Crown submission that the appropriate category for sentencing was Category 2 with a starting point between five and eight years. Instead, he ought to have considered from the nature of this operation that a starting point of something less than five years would have been appropriate and further a greater deduction than one year should then have been allowed by the Judge having regard to the appellant’s minimal criminal history, his plea of guilty, personal health and circumstances of the appellant.
Mr Kaye further submitted the sentence imposed was incompatible with the sentences imposed upon others involved.
We are satisfied the sentence is within the range available to the sentencing Judge. This was a commercial operation. It clearly involved a significant degree of planning and sophistication in both obtaining the ingredients and concealing the operation itself. Significant quantities of the necessary ingredients were purchased over a period of months. Payment was in cash and certainly the potential yield from such an operation would be very considerable indeed.
The sentencing Judge gave a credit of 12 months based on appellant’s guilty plea and personal circumstances. He was certainly correct in giving only minimal credit for the plea of guilty as the usual reasons for such credit is the plea made at the earliest possible opportunity. This did not apply in the appellant’s case.
The appellant is not assisted by a comparison of his sentence with the sentence imposed on the others. He was charged with manufacturing. They were not. Significantly the sentencing Judge had the benefit of sitting through the whole trial and had the opportunity of assessing the appellant and truly gauging his part he played in the drug dealings. He would know far better than us the relative culpability of each person involved.
Overall, it is well-known sentencing policy in trials involving the manufacture of amphetamine or methamphetamine that the deterrent aspect is significant. The difference between the two drugs was conceded to be immaterial for present purposes. The sentence overall we find was justified. The appeal is accordingly dismissed.

Solicitors:

Peter J Kaye, Auckland for Appellant

Crown Law Office, Wellington

[2002] NZCA 217

25 September 2002