Wilson v R

[2011] NZCA 197

IN THE COURT OF APPEAL OF NEW ZEALAND

CA780/2010
[2011] NZCA 197

BETWEEN  GREGORY TAMATI WILSON
Appellant

AND  THE QUEEN
Respondent

Hearing:         16 May 2011

Court:             Harrison, Simon France and French JJ

Counsel:         G A Anderson for Appellant
B D Tantrum and F Cuncannon for Respondent

Judgment:      19 May 2011 at 10.15 am

JUDGMENT OF THE COURT

Appeal dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. Gregory Wilson appeals against a sentence of three years and three months imprisonment imposed in the High Court at Auckland on 28 October 2010 on his conviction following trial on charges of possession of equipment capable of being used to manufacture methamphetamine, possession of materials capable of being used for the same purpose and possession of precursor substances.[1]  At the end of the trial Mr Wilson pleaded guilty to charges of possessing methamphetamine and possessing a pipe both for the purposes of smoking methamphetamine.  He was acquitted on a charge of manufacturing methamphetamine. 

   [1]R v Wilson HC Auckland CRI-2009-044-927, 28 October 2010.

2. Mr Wilson’s counsel, Mr Anderson, submits that the sentence imposed by Peters J was manifestly excessive. 

Facts

1. The facts are not in material dispute.  We adopt the Judge’s summary as follows:

   [7]       On 15 December 2008 the Police executed a search warrant at a storage unit in Albany. Although the rental agreement in respect of the unit was in your partner’s name, it was accepted that you largely had the use of the unit. You originally had one unit, then you took over a larger one. In this larger unit the Police located various chemicals, materials and items of equipment commonly used in the manufacture of methamphetamine. Amongst other things:

   a) The Police found equipment, including a steam distiller, an electronic mill, a home brew heater pad, a blender jug bearing pink and yellow residues, a hand beater, and assorted glassware, dishes and containers.

   b) The Police found pre-cursor substances being hydrochloric acid, toluene and pseudoephedrine.

   c) The Police also found materials containing hypophosphorus acid, iodine, and several documents relating to the manufacture of methamphetamine.

2. Additionally, the agreed summary of facts recited that:

   (a)Hypophosphorous acid is highly sought after by methamphetamine manufacturers, with a black market value of about $10,000 per litre.  Mr Wilson had possession of 11 litres.  On that basis, one of his precursors was worth at least $100,000;

   (b)The total amount of hypophosphorous acid was sufficient to manufacture, in conjunction with other chemicals, between 6.5 and 9.36 kilograms of methamphetamine with a street value of between $6.5 and $9.36 million.

3. Mr Wilson’s defence at trial was that he did not know what the items were and that he was simply storing them for a friend.  We agree with Peters J that the only inference to be drawn from the jury’s verdicts is that it rejected his defence.  Nevertheless, Mr Wilson has continued to deny his guilt.

High Court

1. By applying the totality principle, Peters J fixed a base starting point of three years imprisonment on the lead or index charge of possessing materials for the purposes of manufacturing methamphetamine.  She gave particular weight to three factors: namely, that Mr Wilson had been in possession of the equipment, materials and precursor substances for some months; that the materials included hypophosphorous acid which an ESR employee had estimated was sufficient to manufacture up to nine kilograms of methamphetamine; and that some of the equipment had already been used to manufacture methamphetamine.

2. Mr Wilson was not a first-time offender.  In particular, in April 2003 he had been sentenced to a term of three years and three months imprisonment for dealing in methamphetamine and carrying a restricted weapon.  On account of these convictions, Peters J increased the starting point by three months, to a total of three years and three months imprisonment.  She explained that his previous offending aggravated Mr Wilson’s conduct because he consciously ran the risk of being involved in activity of this type, knowing the consequences of conviction. 

3. There were no mitigating personal circumstances which might justify a reduction of the adjusted starting point of three years and three months.

Appeal

1. Mr Anderson does not challenge two critical elements of the Judge’s approach – her adoption of the totality principle and an upwards adjustment of the starting point to take account of Mr Wilson’s previous methamphetamine dealing offences (indeed, he acknowledges that the three months may be viewed as lenient).  However, by reference to a number of decisions in the High Court, Mr Anderson submits that the Judge should have fixed a base starting point of two years and six months imprisonment. 

2. We do not accept Mr Anderson’s submission.  The maximum sentence on each of the three principal charges is five years imprisonment.  A critical element of these offences, as Peters J noted, is that the items are intended for use in manufacturing methamphetamine.  The three factors to which the Judge properly gave particular weight placed Mr Wilson’s offending at the serious end of the spectrum of culpability.  The volume and value of his precursor substances, materials and equipment and the potential profits available from manufacturing nine kilograms of methamphetamine from his stocks of hypophosphorous acid imply a significant degree of commerciality.  A starting point for the totality of Mr Wilson’s offending closer to the maximum term than three years imprisonment would have been justified.

3. Mr Anderson also submits that Peters J should have given some discount for the time spent by Mr Wilson while subject to restrictive conditions pending trial.  He accepts that Mr Wilson’s bail conditions were not electronically monitored and that he was not subject to a 24 hour curfew.  However, we agree with Mr Tantrum that Mr Wilson’s bail conditions were relatively standard and they certainly could not be viewed as so restrictive as to equate roughly to a remand in custody.  This ground must also fail.

Result

1. Mr Wilson’s appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent