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.  The Judge accepted that the appellant gained little financial benefit as the manufacturing was of small amounts although frequent.

[8]       From a ten and a half year starting point, Ronald Young J reduced the sentence to nine and a half years imprisonment giving a one year reduction overall for the guilty pleas.

Appellant’s submissions

[9]       The appellant says the sentence of nine and a half years imprisonment is manifestly excessive.  Three grounds, broadly, are advanced in support of that submission.

[10]     First, the starting point (ten and a half years) was too high.  At its highest, given the lack of evidence about quantity and financial gain, this offending was within category 2 of the three categories identified in R v Arthur [2005] 3 NZLR 739 and so warranted a starting point of eight years.

[11]     Mr La Hood developed this submission by reference to the Crown’s submissions on sentencing.  Those submissions anticipated that this Court in Fatu (R v Fatu [2006] 2 NZLR 72) would uplift sentences for manufacturing methamphetamine. These submissions must have influenced the sentencing Judge. If that is so, Mr La Hood submits, the starting point adopted is unfair as inconsistent with proper sentencing practice as reflected in s 25(g) of the New Zealand Bill of Rights Act 1990 and s 6(1) of the Sentencing Act 2002. Section 25(g) provides that those charged with an offence have the right, if convicted of an offence “in respect of which the penalty has been varied” between the date of offending and sentencing, to the benefit of the lesser penalty. Section 6(1), similarly, provides for the right of the offender if convicted of an offence “in respect of which the penalty has been varied” between the offending and sentencing, to the benefit of the lesser penalty. Mr La Hood places some reliance on academic commentary suggesting that to apply the sentencing guidelines for serious violent offending in R v Taueki [2005] 3 NZLR 372 to offending which had occurred prior to the delivery of Taueki could amount to “increased retrospective punishment.” (Ip, “Sentencing guidelines post-Sentencing Act” [2005] NZLJ 397 at 400).

[12]     Finally, under this head, the appellant also relies on the fact the indication in Arthur at [27] that manufacturing may justify much higher sentences post-dated this offending. The guideline judgments applicable at the time this offending took place (R v Stanaway [1997] 3 NZLR 129 and R v Wallace and Christie [1999] 3 NZLR 159) made no distinction between manufacturing and other drug-related offending.

[13]     Second, the appellant submits that the sentence imposed is not on a par with the four years nine months term imposed on the appellant’s co-offender, Che Timu.  The starting point adopted for Mr Timu was six years imprisonment.  Mr La Hood initially also sought to make a disparity argument based on the sentence imposed on another co-offender, Sarah List.  But Mr La Hood properly accepted the real comparison was with Mr Timu as Ms List’s offending was much less serious.

[14]     Finally, the appellant says a discount for the guilty pleas of about 9.5% was inadequate.

Submissions for the Crown

[15]     The Crown submission is that the starting point and discount given for the guilty pleas were within the available range.

[16]     Mr Downs says that the principles of retrospectivity are not engaged in this case because there has been no change to the penalty.  In any event, there has been no unfairness in the approach adopted.

[17]     On the question of parity, the submission is that the Judge after the trial has made the factual finding that the appellant was the captain of this enterprise.  That is the primary distinguishing feature between the appellant and Mr Timu and explains the distinction in sentencing.

Discussion

[18]     The first issue to be resolved is the appropriate sentencing guideline.  The appellant’s offending occurred after the reclassification of methamphetamine as a Class A controlled drug on 30 May 2003 but pre-dated this Court’s decision in Arthur which was delivered on 17 March 2005.  Both the appellant’s guilty pleas and the convictions after trial pre-dated Arthur.  The sentencing, however, took place on 19 April 2005, that is, after Arthur.

[19]     There is no express reference to Arthur in the sentencing remarks.  It appears however that the sentencing Judge has either treated the offending as at the top end of category 2 in Arthur with an increase because manufacturing was involved or at the top end of category 2 in R v Wallace and Christie with a similar increase.  R v Wallaceand Christie of course applied to methamphetamine as a Class B drug.  Category 2 in Arthur reflects commercial offending for which sentences in the range of three to nine years can be expected.  Category 2 in Wallace deals with a similar level but the sentencing band was five to eight years.  There is no issue that the offending is category 2, not category 3 under either decision.

[20]     This Court in Fatu expressly said the guidelines in that case applied to guilty pleas or convictions after Fatu (at [44]). In view of that, we do not apply the Fatu guidelines in the determination of this appeal. 

[21]     In terms of the present case, the approach of the majority of the Supreme Court in Morgan v The Superintendent, Rimutaka Prison [2005] NZSC 26 and the observations of the majority judgments in R v Mist [2005] NZSC 77 support the view that s 25(g) and s 6(1) are not directly engaged here. That is because a change to a guideline decision does not alter the penalty provided for by the legislation. Rather, what may have been affected is the exercise of the sentencing discretion in an individual case, not the penalty for the offence of a generic kind. Practical considerations may suggest that the Morgan approach applies equally to sentencing guidelines because it is well recognised that sentencing is not an exact science.

[22]     In Arthur at [27], the Court made it clear that the suggested starting points were only for cases involving the supply of methamphetamine and that higher sentences may be required for manufacturing methamphetamine. So the Court did not set out suggested starting points for manufacturing. In those circumstances there can be no criticism of an approach based on Wallace, with an increase to reflect the reclassification of methamphetamine.  Taking that approach, we consider that the starting point adopted by the Judge was too high.  Category 2 in Wallace encompassed commercial manufacturing on a substantive scale attracting sentences of five to eight years.  This offending would have fallen towards the top end of category 2 in Wallace but not at the highest level.  Even with an increase for the reclassification of methamphetamine from Class B, the starting point adopted was beyond the available range.  The appellant was the prime mover and this was regular offending but was not so significant as to warrant the starting point taken.

[23]     We do accept, however, the role of the appellant is what marks out his offending from that of Mr Timu.  Gendall J in sentencing Mr Timu accepted he was not at the top of the operation although a vital part of it.  A starting point of eight and a half years was, in our view, appropriate.

[24]     The addition of one year to this starting point was appropriate to reflect the appellant’s previous convictions, giving an overall figure of nine and a half years. 

[25]     We are not satisfied there is any basis for interfering with the Judge’s assessment that a modest reduction for the guilty pleas was appropriate given the appellant went to trial on three of the most serious charges.  A reduction of about the same proportion from nine and a half years produces a final figure of eight and a half years.

[26]     The appellant also sought leave to appeal out of time.  The Crown took no objection to that and we consider leave is appropriate.  The delay was not lengthy and was explicable given a change in solicitor.

Result

[27]     For the reasons given, leave to appeal out of time is granted and the appeal against sentence is allowed.  The sentence of nine and a half years imprisonment is set aside.  We substitute a term of eight and a half years imprisonment.  All of the concurrent sentences remain as fixed by the High Court.

Solicitors:
Sladden Cochrane & Co, Wellington
Crown Law Office, Wellington