Nathan v R - [2011] NZCA 284

IN THE COURT OF APPEAL OF NEW ZEALAND

CA627/2010
[2011] NZCA 284

BETWEEN DEAN WAKA NATHAN
Appellant

AND THE QUEEN
Respondent

Hearing: 13 June 2011

Counsel: T W Fournier for Appellant
K A L Bicknell for Respondent

Judgment: 22 June 2011 at 9.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.
B The sentences are quashed, and a sentence of 17 years imprisonment is imposed on the supply charge, with a concurrent sentence of eight years imprisonment on the conspiracy charge.
CA minimum period of imprisonment of nine years is imposed on the supply charge.

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REASONS OF THE COURT
(Given by Miller J)

Introduction

Mr Nathan appeals against his sentence of 20 years imprisonment, with a minimum non-parole period of nine years, for supplying methamphetamine and conspiracy to supply methamphetamine.

The narrative

Mr Nathan is, and was at the time of the offending, serving a sentence of life imprisonment, imposed in 2001 for murder. When sentenced for that crime he was a member of the Highway 61 Gang. He is said to have severed his connection with the gang, and he evidently had some capital as a result of the sale of a property owned by the gang. It seems to have occurred to him while in prison that he ought to put the money to work. His decision to do so was motivated in part by desire to help his family, who are under financial stress.
Using the contacts that he had made in prison and connections outside it, Mr Nathan set up a methamphetamine dealing operation in which he organised purchase of substantial quantities of the drug in Auckland and had it brought to Christchurch for distribution. There were at least eight such transactions, each involving eight ounces (227 grams) of methamphetamine, between October 2008 and January 2009, when he was apprehended following a surveillance operation. All but one of them involved a Mr Lu as the Auckland wholesaler. The exception, the last, involved a Mr Thorne in the same role. The courier in all cases was a Ms Hurring.
The conspiracy charge immediately preceded the supply involving Mr Thorne. Mr Nathan planned to buy $130,000 worth of methamphetamine from Mr Lu, but Mr Lu believed he was under surveillance so the transaction did not proceed. Instead, Mr Nathan organised the final purchase of 39 grams from Mr Thorne, using some of the money that he had available to fund the purchase from Mr Lu. Mr Nathan had wanted this transaction to involve four ounces (112 grams) of methamphetamine but Mr Thorne was unable to supply that quantity.
Had the conspiracy involving Mr Lu been completed instead of the Thorne transaction, the total amount of methamphetamine supplied would have been slightly in excess of 2 kg. As it was, the total supplied was 1.8 kg.
Mr Nathan was charged on 5 February 2009. Guilty pleas were entered on 25 September 2009, shortly before depositions, which were scheduled for 5 October. He had been negotiating a…

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 Nathan v R

Details

AGLC: Nathan v R [2011] NZCA 284
Case: [2011] NZCA 284
Decision Date: 22 June 2011

CaseChat Overview and Summary

Dean Waka Nathan appeals against his sentence of 20 years imprisonment with a minimum non-parole period of nine years for supplying and conspiring to supply methamphetamine. The Crown contends that the sentence was appropriate and fair, given the nature and extent of the offending. The court was required to determine whether the sentence imposed was manifestly excessive, particularly focusing on the starting point, the cumulative versus concurrent nature of the sentences, and the discount for the guilty pleas.

The court found that the starting point of 18 years for the supply charge was appropriate, considering the quantity of methamphetamine involved and Mr Nathan's central role in the transactions. However, the court determined that the conspiracy charge should not have been treated as a cumulative sentence but rather as an aggravating feature of the supply charge. The court also found that the guilty plea discount should have been calculated in accordance with the principles set out in R v Hessell, and that the disputed facts hearing warranted a reduction in the discount, albeit to a lesser extent than the sentencing judge had determined. Ultimately, the court concluded that the sentence on the supply charge should be 17 years imprisonment, and the sentence on the conspiracy charge should be eight years imprisonment, to be served concurrently.

The appeal is allowed, and the sentences are quashed. A new sentence of 17 years imprisonment is imposed on the supply charge, with a concurrent sentence of eight years imprisonment on the conspiracy charge. A minimum period of nine years imprisonment is imposed on the supply charge.

Orders