The Queen v Te Nahu - [2006] NZCA 160

IN THE COURT OF APPEAL OF NEW ZEALAND
CA270/05
THE QUEEN
v
EHAU MICHAEL TE NAHU
Hearing:24 May 2006

Court:O'Regan, Arnold and Ellen France JJ
Counsel:D La Hood for Appellant

M Downs and K Salmond for Crown

Judgment:6 July 2006

JUDGMENT OF THE COURT

A Leave to appeal is granted.
BThe appeal against sentence is allowed. The sentence of nine and a half years imprisonment is set aside. We substitute a sentence of eight and a half years imprisonment. All of the concurrent sentences remain as fixed by the High Court.
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REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]       This is an appeal against a sentence of nine and a half years imprisonment imposed by Ronald Young J on the appellant in relation to charges of manufacturing methamphetamine, conspiracy to possess a precursor substance, manufacturing pseudoephedrine, and conspiracy to supply a precursor substance. The appellant was convicted after trial on three of the manufacturing charges and pleaded guilty to the other charges.
[2]       This appeal was heard together with those in R v Bryan and Ors CA239/05. Those appeals also involved a methamphetamine manufacturing operation.
Facts
[3]       Police undertook a surveillance operation in the Hawkes Bay in the course of which interception devices were placed at the appellant’s address. The 12 charges faced by the appellant reflect a series of incidents which came to light as part of this operation.
[4]       The first two incidents, reflected in two charges of conspiracy to possess precursor substances, took place in late October 2003. The appellant was contacted on two occasions to organise the purchase of tablets containing pseudoephedrine. It is not clear what amounts were purchased.
[5]       Although an associate was stopped on 31 October 2003 with a methamphetamine laboratory in his car this did not deter the appellant who then proceeded to re-gather the necessary equipment and materials to resume manufacture. He purchased pseudoephedrine to the value of $600 and about $400 worth of other precursor substances in mid-November 2003. The appellant manufactured methamphetamine on four separate occasions over the period 16 to 21 November 2003. In that period, on 18 November, the appellant agreed to purchase toluene, one of the ingredients for manufacturing methamphetamine. Finally, on 23 November the appellant was manufacturing a precursor substance by extracting pseudoephedrine, a process immediately prior to manufacture. At that point, the operation was closed down by the execution of search warrants.
Remarks on sentencing
[6]       Ronald Young J took the lead charge as that of manufacturing. From the interception tapes, Ronald Young J said it was plain that the appellant was seen as being in charge of the manufacturing operation. The manufacturing took place on a regular basis and pseudoephedrine tablets were regularly purchased throughout the period. Manufacturing persisted despite the discovery of the first laboratory from which the appellant was manufacturing.
[7]       The Judge took as the aggravating features the appellant’s previous history of serious offending which included convictions for possession for supply and the cultivation of cannabis.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Te Nahu

Details

AGLC: The Queen v Te Nahu [2006] NZCA 160
Case: [2006] NZCA 160
Decision Date: 6 July 2006

CaseChat Overview and Summary

In the case of The Queen v Te Nahu, the appellant, Ehau Michael Te Nahu, appealed against a sentence of nine and a half years imprisonment imposed for charges related to methamphetamine manufacturing, conspiracy to possess precursor substances, manufacturing pseudoephedrine, and conspiracy to supply a precursor substance. Te Nahu was convicted on three manufacturing charges and pleaded guilty to the others. The appeal was heard together with others involving similar methamphetamine manufacturing operations. The legal issues centred around whether the starting point for sentencing was appropriate, whether the sentence was excessive, and whether the discount for guilty pleas was adequate. The Court held that the starting point was too high and reduced the sentence to eight and a half years, while maintaining all concurrent sentences as fixed by the High Court. The Court found the appellant's previous history of serious offending and his role as the prime mover in the operation justified a higher starting point than his co-offender, but the discount for guilty pleas was appropriate.

The Court of Appeal considered that the starting point of ten and a half years was excessive, given the lack of evidence about the quantity and financial gain from the offending. The Court found that the offending was within category 2 of the three categories identified in R v Arthur and, therefore, warranted a starting point of eight years. The Court also considered that the appellant's previous convictions warranted an additional year, resulting in a starting point of eight and a half years. The Court found that the discount for guilty pleas was appropriate, given that Te Nahu went to trial on three of the most serious charges. Therefore, the sentence was reduced to eight and a half years.

Orders