R v Harding

• Jurisdiction: New Zealand
• Judge: Moore J
• Judgment Date: 07 April 2017
• Neutral Citation: [2017] NZHC 675
• Docket Number: CRI-2014-088-003309
• Court: High Court
• Date: 07 April 2017

The Queen

and

Brownie Joseph Harding

[2017] NZHC 675

CRI-2014-088-003309

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

Sentencing on 11 charges brought under the Misuse of Drugs Act 1975 and the Crimes Act 1961 relating to manufacturing methamphetamine, conspiring to supply methamphetamine, possession for supply, supplying pseudoephedrine and participating in an organised criminal group (Headhunters Motor Cycle Gang) — guilty pleas had been entered a month before trial — the offender had no previous convictions for drug related offending — seven of the charges carried a maximum penalty of life imprisonment — the offender was considered to be the head of the methamphetamine operation — whether s8(c) Sentencing Act 2002 (principles of sentencing — must impose the maximum penalty if the offending was within the most serious of cases) applied — whether life imprisonment was the correct starting point.

Appearances:

Michael Smith and Richard Annandale for the Crown

Mark Edgar for the Defendant

SENTENCING NOTES OF Moore J

Introduction

1 Brownie Joseph Harding, at the age of 40 you appear today for sentence having pleaded guilty on 2 June 2016 to 11 charges brought under the provisions of the Misuse of Drugs Act 1975 and the Crimes Act 1961. You later applied to vacate some of those pleas. I dismissed that application earlier this week. I shall return to that application and the other application I heard on Wednesday, later in these remarks.

2 The 11 charges relate, directly and indirectly, to the massive methamphetamine manufacturing and distribution network which you masterminded and directed in the latter part of 2014.

3 The details of the charges are set out in a table which will appear in my sentencing notes.

Charge	Particulars	Dates of Offences	Maximum penalty
1	Manufacture methamphetamine	23 to 26 September 2014	Life imprisonment
2	Manufacture methamphetamine	30 September to 1 October 2014	Life imprisonment
3	Manufacture methamphetamine	8 to 9 October 2014	Life imprisonment
4	Manufacture methamphetamine	20 to 23 October 2014	Life imprisonment
5	Manufacture methamphetamine	28 to 31 October 2014	Life imprisonment
6	Supplied Evanda Harding with Pseudoephedrine	30 October 2014	14 years' imprisonment
7	Conspired to supply class A controlled drug	5 November 2014	14 years' imprisonment
8	Manufacture methamphetamine	6 to 14 November 2014	Life imprisonment
9	Possessed a class A controlled drug for supply	14 November 2014	Life imprisonment
10	Conspired to supply methamphetamine	15 November 2014	14 years' imprisonment
11	Participates in an organised criminal group	23 September 2014 to 16 December 2014	10 years' imprisonment

4 The seriousness of your offending is underscored by the fact that seven of the 11 charges carry a maximum penalty of life imprisonment 1 The 11 charges include six of manufacturing methamphetamine, two of conspiring to supply methamphetamine, possession for supply, supplying pseudoephedrine and participating in an organised criminal group. As I am sure Mr Edgar will have explained to you the real issue for me today is whether the extent and seriousness of your offending should be reflected by the imposition of a term of life imprisonment or whether, instead, I should impose a lengthy finite sentence, and if so, of what duration.

5 A sentence of life imprisonment means just that. It means that you would be liable for imprisonment for the rest of your life. You would only be released if the Parole Board decided that you were a suitable candidate for release. Whatever the position, this could not happen before you had served a minimum period of 10 years 2 And if parole was granted you would be subject to monitoring for the rest of your life and could be recalled to continue serving your sentence at any time.

6 I have given long and careful thought to this question. I have reviewed the very helpful submissions filed by your counsel and by the Crown. I have listened carefully to what they have both said to me in their excellent oral submissions. And rather than leave you in a state of suspense and anxiety until the end of these sentencing remarks, which will be necessarily detailed and long, I believe it only fair to tell you now I have decided, by a fine margin, not to impose a sentence of life imprisonment. I shall explain why later in these remarks.

7 However, before I do, it is necessary that I set out the relevant facts and background to your case. Much, if not all, of this will obviously be well known to you but I am, nevertheless, required to set it out. This is because the sentencing process is quintessentially a public function. It is important that sentencing is undertaken in an open Court such as this so that not only you, but also the wider community, knows what the sentence imposed is and the reasons why it has been imposed.

[8] Although counsel attempted to reach agreement on a summary of facts this proved impossible. You were scheduled to be sentenced in early September. But after your previous lawyer, Ms Pecotic, informed me that the unresolved issue on sentence was both the amount of methamphetamine manufactured during the operation and the nature of your role, I had no option but to adjourn your sentencing to accommodate a disputed facts hearing. That was heard by me earlier this week. At the completion of that hearing I delivered my decision on what I found proved by the Crown. I found that you headed the methamphetamine manufacturing operation and that at least 6.5 kilograms of the drug was produced. By “at least 6.5 kilograms” I mean that 6.5 kilograms is the quantity I shall use for the purposes of this sentencing exercise. That is the amount I am satisfied beyond reasonable doubt was manufactured. It is likely a good deal more than 6.5 kilograms was produced but for reasons I will develop later in these remarks any quantity beyond 6.5 kilograms assumes less importance than the role you played relative to your co-defendants especially the principal cooks. I also determined you headed the manufacturing operation. I will return to both these topics later

9 With those preliminary comments I shall now move on to review the facts and then the law which governs your case. After that I will set the sentence. When it comes to formally hand down your sentence I shall ask you to stand. Until then you may remain seated.

Background

10 In July 2014 the Organised and Financial Crime Agency of New Zealand (“OFCANZ”) commenced an investigation into the manufacture and distribution of large quantities of methamphetamine in Northland. The operation was codenamed “Easter”. Its focus was a group of patched members and associates of the Headhunters Motor Cycle Gang (“the Group”). I am satisfied you sat at the apex of the Group and I shall have more to say about the exact role you played later.

11 The initial stages of Operation Easter involved the collection and collating of intelligence. The surveillance and evidence gathering phase began in September 2014 and the operation was terminated about three months later in mid- December 2014.

12 The focus of OFCANZ's attention was an otherwise unremarkable brick and tile bungalow situated in a rural setting at 278 Taipuha Road near Waiotira (“the address”). This is about 30 kms southwest of Whangarei City. That house, apparently, belonged to your sister and her husband who were living in Australia. It was unoccupied and presumably that fact, combined with the remoteness of the location, led you to identify it as a suitable place to set up your methamphetamine factory. I use the word factory deliberately because that is what it turned out to be. Its sole purpose was to provide a clandestine environment to accommodate your sophisticated and well-equipped laboratory to manufacture massive quantities of methamphetamine.

13 OFCANZ's initial surveillance of the address was undertaken using a single movement-activated remote video camera. This scanned part of Taipuha Road and the northern aspect of the side of the house. Due to the limitations of the view a second camera was later installed which scanned the front driveway and eastern profile of the address. This gave much improved and closer views and permitted the investigation team to make positive identifications of people arriving at and moving around the outside of the address.

14 On four occasions during the operation the Special Tactical Group (“the STG”) undertook covert nocturnal entries into the address when no one was in the house. This allowed them to record and photograph the materials and equipment inside. Swabs were also taken from the interior. Within a day or so of the operation starting the STG conducted a covert search and swabs were taken which revealed levels of methamphetamine consistent with a manufacturing operation.

15 Most significantly, on 17 October 2014, after a surveillance device warrant was issued by a Judge of this Court, the Police successfully installed an audio listening device in the kitchen area of the house.

16 Through this combination of investigative techniques, together with intercepted cellphone communications, it was revealed that manufacturing took place on six discrete occasions during the three months of Operation Easter. Those occasions, or phases as I shall refer to them, took place at the following times:

• (a) 23 to 26 September 2014;

• (b) 30 September to 1 October 2014;

• (c) 8 to 9 October 2014;

• (d) 20 to 23 October 2014 (although in relation to 20 October 2014 there is an issue which I shall return to);

• (e) 28 to 31 October 2014; and

• (f) 6 to 14 November 2014.

17 What is of particular significance, and unusual in cases of this sort, is that the recordings from the listening device enabled the Police to roughly calculate the amounts...