R v Allen
[2016] NZHC 445
•15 March 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-005952 [2016] NZHC 445
THE QUEEN
v
GEOFFREY MILTON ALLEN DIONNE VICTORIA POTKINS DHARMENDRA KUMAR NAGHAM JAWAD
Hearing: 15 March 2016 Appearances:
N Fletcher for Crown
T Cooper and F J Igguiden for Mr Allen
C Wilkinson-Smith for Ms Potkins
S Tait for Mr Kumar
M Levett for Ms JawadJudgment:
15 March 2016
SENTENCING NOTES OF GILBERT J
R v ALLEN & ORS [2016] NZHC 445 [15 March 2016]
Introduction
[1] Mr Allen, Ms Potkins, Ms Jawad and Mr Kumar, you all appear for sentence today having been convicted of various drug related offending, principally involving methamphetamine.
Mr Allen
[2] Mr Allen, you are to be sentenced in respect of 38 offences. You were found guilty by a jury in relation to 31 of these and you pleaded guilty to the other seven at the commencement of the trial. The offences are as follows:
(a) Thirteen offences of manufacturing methamphetamine. You were found guilty of these offences by the jury. The maximum penalty for each of these offences is life imprisonment.
(b)Two offences of producing pseudoephedrine. You were found guilty of each of these offences by the jury. The maximum penalty for those offences is seven years’ imprisonment.
(c) One offence of possession of precursor substances for the manufacture of methamphetamine, namely pseudoephedrine, sulphuric acid and hydrochloric acid. You pleaded guilty to this offence at the commencement of the trial. The maximum penalty for this offence is five years’ imprisonment.
(d)One offence of possession of materials for the manufacture of methamphetamine, namely sodium hydroxide, iodine, hypophosphorous acid and calcium chloride. You pleaded guilty to this offence at the commencement of the trial. The maximum penalty for this offence is five years’ imprisonment.
(e) One offence of possession of equipment for the manufacture of methamphetamine, namely a steam distiller, a boiler, glassware, portable heating stoves and parr bombs. You pleaded guilty to this
offence at the commencement of the trial. The maximum penalty for this offence is five years’ imprisonment.
(f) Fourteen offences of supplying methamphetamine. Seven of these offences were representative charges. You were found guilty of these offences by the jury. The maximum penalty for each of these offences is life imprisonment.
(g)One offence of possession of methamphetamine. You were found guilty of this offence by the jury. The maximum penalty for this offence is six months’ imprisonment.
(h)One offence of supplying GBL (jointly with Ms Potkins). You pleaded guilty to this charge at the commencement of the trial. The maximum penalty for this offence is 14 years’ imprisonment.
(i)Two offences of possession of GBL for supply (one jointly with Ms Potkins). You pleaded guilty to these charges at the commencement of the trial. The maximum penalty for each of these offences is a term of 14 years’ imprisonment.
(j)One offence of unlawful possession of a firearm. You pleaded guilty to this charge at the commencement of the trial. The maximum penalty for this offence is four years’ imprisonment.
(k)One offence of unlawful possession of ammunition. You were found guilty of this offence by the jury. The maximum penalty for this offence is four years’ imprisonment
Ms Potkins
[3] Ms Potkins, you are to be sentenced for 41 offences. You were found guilty by a jury in respect of 40 of these and you pleaded guilty to the other one at the commencement of the trial. The offences are as follows:
(a) Thirty eight offences of supplying methamphetamine. The maximum penalty for each of these offences is life imprisonment.
(b) One offence of supplying GBL (jointly with Mr Allen). The
maximum penalty for this offence is 14 years’ imprisonment.
(c) One offence of possession of GBL for supply (jointly with Mr Allen).
The maximum penalty for this offence is 14 years’ imprisonment.
(d)One offence of possession of methamphetamine. This is the offence in respect of which you pleaded guilty at the commencement of the trial. The maximum penalty for this offence is six months’ imprisonment.
Ms Jawad
[4] Ms Jawad, you are to be sentenced for seven offences of permitting premises to be used for the manufacture of methamphetamine. You were found guilty by the jury in respect of each of these offences. The maximum penalty for each of these offences is ten years’ imprisonment:
Mr Kumar
[5] Mr Kumar, you are to be sentenced for seven offences, six of supplying methamphetamine and one, a representative charge, of supplying equipment for the manufacture of methamphetamine. You pleaded guilty to these offences at the end of the Crown case. The maximum penalty for supplying methamphetamine is life imprisonment. The maximum penalty for supplying equipment for the manufacture of methamphetamine is seven years’ imprisonment.
Approach to sentencing
[6] As you may well know, in arriving at an appropriate sentence, I am required to establish what is known as a starting point for the lead offending. This is then adjusted upwards to take account of any aggravating features and discounted to take
account of any mitigating features and any guilty pleas to arrive at an end sentence. I also need to consider, in Mr Allen’s case, whether to impose a minimum period of imprisonment as sought by the Crown. In arriving at the appropriate starting point, I must follow the applicable guideline sentencing judgments of the Court of Appeal. I must take into account the purposes and principles of sentencing set out in the Sentencing Act 2002 and I should seek to impose the least restrictive sentence appropriate in all of the circumstances consistent with sentences imposed on other offenders in comparable cases.
[7] I will now undertake this analysis for each of you in turn.
Mr Allen
Brief facts
[8] Between 15 November 2011 and 1 May 2014, you manufactured methamphetamine and produced pseudoephedrine on a commercial scale at a number of properties. On nine of the 15 occasions, between 30 July 2013 and
1 May 2014, the manufacturing took place at Ms Jawad’s premises and you were assisted by Stevan Korach. He pleaded guilty to these offences, seven of manufacturing methamphetamine and two of producing pseudoephedrine, following a sentence indication given by Keane J in this Court.1
[9] A small amount of the methamphetamine produced at Ms Jawad’s premises was given to her for her personal use as payment for letting you and Mr Korach use her premises to manufacture methamphetamine and produce pseudoephedrine. A further small amount, 105 grams, was taken by Mr Korach for his own use and supply to others. The balance was retained by you for your use and for supply to others, including Ms Potkins.
[10] Between February 2012 and May 2014, you supplied methamphetamine to
13 parties, seven of whom were supplied on multiple occasions. Some supplies were made in return for sex at a storage unit you had rented.
1 R v K [2015] NZHC 2495.
[11] Between February 2012 and May 2014, you supplied Mr Kumar with methamphetamine. Mr Kumar paid for these supplies partly in cash and partly by storing your manufacturing equipment and materials and facilitating your collection of these whenever you required them. Some of the methamphetamine you supplied Mr Kumar was for his own use and he supplied others on six occasions. The total quantity supplied on four of these occasions was 3.6 grams but it is not known how much was supplied by him on the other occasions.
[12] You also supplied methamphetamine to your partner, Ms Potkins. Some of this was for her personal use but much of it was supplied by her to others. Ms Potkins pleaded guilty to possession of 1.5 grams of methamphetamine powder and crystals found in her handbag. The jury found her guilty of supplying methamphetamine on 38 occasions over the period from 28 November 2011 to
20 May 2014. Thirty two of these supplies were to Phillipa Williams, a street level drug dealer.
[13] Your participation in this offending came to light as a result of a major police investigation code named Operation Cronulla. This operation terminated after you were stopped by police in your van which was found to contain equipment, materials and precursor substances for the manufacture of methamphetamine. These included five sets of ContacNT capable of yielding 332 grams of methamphetamine and sufficient quantities of iodine and hypophosphorous acid to make 5.1 kilograms and
3.6 kilograms of methamphetamine respectively. Police also located approximately eight grams of methamphetamine in the van although you were only charged in relation to half a gram of methamphetamine which was located in the centre console of the van. Approximately 20 millilitres of GBL and a loaded pump action shotgun were also found in the van.
[14] Although your associates made efforts to remove any evidence of drug offending from your address, a subsequent search located a bottle containing approximately 95 millilitres of GBL.
[15] As is commonly the case, it is not possible to calculate precisely the total amount of methamphetamine manufactured or supplied. The Crown calculates that
four sets of ContacNT would have been used in each of the 13 manufacture offences yielding 56 grams of methamphetamine per set. This gives a total of over
2.9 kilograms of methamphetamine which the Crown submits is a conservative estimate.
[16] The Crown submits that I should sentence you on the pseudoephedrine offences on the same basis as Mr Korach, namely that you produced between 540 and 900 grams of pseudoephedrine capable of yielding between 270 and 675 grams of methamphetamine.
[17] The Crown accepts that many of your offences involving the supply of methamphetamine would have involved small quantities. However, I accept the Crown’s submission that there were also some commercial transactions involving supplies of between five and 24 grams.
Starting point
[18] The Crown submits that the appropriate starting point for the lead offending of manufacturing methamphetamine would be 16 to 18 years’ imprisonment. It argues that your offending is well into band 4 of the Court of Appeal’s guideline decision in R v Fatu. Band 4 is concerned with the large scale manufacture of commercial quantities of methamphetamine, being 500 grams or more. The guideline sentences range from 13 years’ imprisonment to life imprisonment for offending in this band.
[19] Ms Cooper accepts that your offending does fall within band 4 but she advises that you dispute the Crown’s submission that I should sentence you on the basis that you manufactured 2.9 kilograms of methamphetamine. Indeed, you maintain your denial of any involvement in manufacturing methamphetamine.
[20] I have discussed with counsel the prospect of holding a disputed facts hearing to determine the precise quantity of manufactured methamphetamine. Both agree that such a hearing would not serve any useful purpose because with your ongoing denial of involvement in manufacture, you would not be able to assist the Court as to
the correct quantities involved. The result is that I am left needing to make the determination on the basis of the evidence that the Court has heard, and the submissions of counsel.
[21] I note that the starting point adopted for Mr Korach’s participation in the seven manufacturing offences at Ms Jawad’s premises was 13 years’ imprisonment. A higher starting point is required in your case because of the additional manufacturing in which you were involved, 13 rather than seven, which occurred over a much longer period. Mr Korach did not become involved until mid-2013 whereas your offending stretched back to November 2011. You also played a more significant role than Mr Korach and were effectively the king pin.
[22] Balanced against this, I accept Ms Cooper’s submission that there was no evidence that you accumulated significant wealth in the form of cash or other assets. Your offending, it appears, supported your comparatively expensive lifestyle involving, as it did, heavy use of methamphetamine on an ongoing basis, Ms Potkins’ addiction to methamphetamine also, and the lifestyle that you led bout which I have heard evidence. Taking all of these matters into account, and having regard to the authorities to which I have been referred, I consider that the appropriate starting point for the methamphetamine manufacture offending is 16 years’ imprisonment.
Uplift for other offending
[23] It is common ground that I must apply an uplift to reflect the totality of your offending. The Crown contends that an overall uplift of three years’ imprisonment is required. This is based on an uplift of six months for producing pseudoephedrine, six months for possession of precursor substances, materials and equipment found in the van and for the loaded firearm and a further two years for supplying methamphetamine. Ms Cooper accepts that a substantial uplift is required but submits that an overall uplift of two years’ imprisonment would be sufficient.
[24] I consider that the need to recognise the totality of your offending can be met in this case by applying an overall uplift of two years and six months’ imprisonment.
[25] You are 53 years of age and have numerous previous convictions. Of particular relevance in sentencing you today are your convictions in 2008 for possessing methamphetamine for supply and in 2004 for manufacturing and conspiracy to supply methamphetamine. You received sentences of imprisonment of three years and two months and five years and six months respectively for this offending. The Crown submits that an uplift of two years’ imprisonment should be imposed for this. Ms Cooper submits that the uplift should be restricted to one year. I consider that an uplift of 18 months’ imprisonment should be imposed to reflect this prior offending.
Discounts
[26] Ms Cooper submits that you are entitled to credit for your efforts to address your drug addiction and rehabilitate yourself. While you were on EM bail awaiting trial, you engaged with an addictions counsellor over a nine month period during the course of a residential treatment programme. I have reviewed the positive report you have received regarding your attendance at this programme and acknowledge the progress you appear to have made. This is a factor that reflects well on you and should be recognised. I allow a further discount of three months’ imprisonment for this.
[27] A discount should also be allowed for the fact that you were subject to restrictive bail conditions pending trial. You were on EM bail from January to November 2015 and I allow a discount of six months to take account of this.
[28] I also consider that a modest discount should be allowed to reflect your guilty pleas on seven charges at the commencement of the trial. However, given the strength of the evidence and the lateness of those guilty pleas, I consider that a discount of only three months’ imprisonment can be justified.
[29] With these adjustments, the end sentence is 19 years’ imprisonment.
[30] The Crown submits that a minimum period of imprisonment in terms of s 86 of the Sentencing Act should be imposed. The Crown refers to the observations of the Court of Appeal in R v Aram that minimum terms of imprisonment are commonly imposed when sentences of nine years or greater are imposed.2
Ms Cooper responsibly accepts that the criteria under s 86 for the imposition of a
minimum period of imprisonment are made out in your case. Taking into account your lack of insight into your offending, the high risk of you re-offending and the considerations set out in s 86 (all of which, in my view, apply in your case), I consider that a minimum period of imprisonment of ten years should be imposed.
Ms Potkins
Brief facts
[31] The Crown estimates that you supplied a total of 76 grams of methamphetamine. This is based on their assessment that, on average, two grams would have been supplied in each of the 38 supplies. Mr Wilkinson-Smith submits that the calculation should assume an average supply of only one gram, giving a total of 38 grams. However, he submits (and Mr Fletcher is inclined to agree) that the difference may not be material. Either way, Mr Wilkinson-Smith acknowledges that your offending falls at the lower end of band 2 of the Court of Appeal’s guideline decision in R v Fatu which covers the supply of commercial quantities of methamphetamine up to 250 grams. A starting point between three and nine years’ imprisonment is appropriate for offending within that band.
[32] The Crown submits that the starting point for the lead offending of supplying methamphetamine should be five years’ imprisonment. Mr Wilkinson-Smith contends that the appropriate starting point is three years, although he acknowledges that the authorities would indicate a starting point of four years’ imprisonment. However, he submits that the Court should recognise the need for parity with the sentence imposed on Ms Williams. She received a sentence of eight months’ home
detention indicating that a starting point of between two and three years’
imprisonment must have been adopted.3
[33] I note that you were also convicted of possessing 95 millilitres of GBL for supply and possession of 1.556 grams of methamphetamine.
[34] You are 37 years of age and have no relevant prior convictions other than possession in February and May 2009 of methamphetamine. You received modest fines for each of those offences.
[35] You began using methamphetamine in 2009 after your marriage ended. This was when you met Mr Allen and commenced your relationship with him. I accept that you became involved in this offending as a result of your association with Mr Allen. However, while this explains how you became involved in supplying methamphetamine, your participation in the supply of methamphetamine was regular and persistent and was to benefit you and Mr Allen and feed your addictions. You knew that your principal customer, Ms Williams, was a street dealer supplying her own customers. You supplied methamphetamine to her and others on a regular basis between July 2013 and May 2014. In the latter part of this period, you were supplying methamphetamine almost every other day.
[36] Having regard to the broadly comparable cases to which I have been referred, I consider that the appropriate starting point in your case for the lead offending of supplying methamphetamine is four years, six months’ imprisonment.
Uplift for other offending
[37] The Crown does not seek an uplift for the other offences of possession and supply of GBL and possession of methamphetamine. I accept that this is not required.
[38] Mr Wilkinson-Smith submits that you should receive discounts to reflect the strong support you have received from family and friends, the efforts you have made to become drug free, including your attendance at the CADS drug rehabilitation programme, the time you were on somewhat restrictive bail conditions and for the fact that you have no significant criminal history.
[39] Your rehabilitative efforts are commendable but commenced comparatively recently. These need to be considered in the light of your continuing denial of your offending and of obtaining methamphetamine from Mr Allen. The probation officer reports that you have no insight into your offending and you are assessed as having a medium to high risk of re-offending.
[40] I take into account that for a period of 11 months, you were subject to a curfew from 10.00 pm to 7.00 am on Tuesday, Wednesday and Friday and from
7.00 pm to 7.00 am the other four nights. For a further five months you were subject to 24-hour curfew.
[41] I allow a total discount of ten months to take account of these factors. This
brings your end sentence to three years and eight months’ imprisonment.
Ms Jawad
Brief facts
[42] You are now 40 years of age. Between 21 December 2013 and 1 May 2014, you knowingly allowed your premises to be used for the manufacture of methamphetamine on seven occasions as a result of your association with Mr Korach, your former partner. You were present during five of these manufactures and actively assisted on several occasions by putting away materials that Mr Korach and Mr Allen had mistakenly left outside on one occasion, shepherding away the lawn mowing contractor when he approached the premises on another occasion and tidying up and cleaning the container and house after Messrs Korach and Allen were
arrested. You received quantities of methamphetamine for your personal use in return for allowing your premises to be used for this purpose. There is no evidence that you received any monetary reward.
[43] The authorities to which I have been referred support the Crown’s submission that a starting point of three years’ imprisonment is appropriate in your case. Mr Levett does not take issue with this based on these authorities although he submits that an electronically monitored sentence could be justified in your case once appropriate discounts have been made.
Discounts
[44] Mr Levett advises that you ceased contact with Mr Korach in May 2014 and now, belatedly, accept responsibility for your offending. As a result of your offending, you have lost your employment as a mental health worker and may not be able to regain employment in that field. Mr Levett submits that you are entitled to some credit for the fact that you have made efforts to rehabilitate yourself. I accept his submission but I note that the probation officer assesses you as having a medium risk of re-offending if you resume contact with any of your co-offenders.
[45] I consider that a discount of six months is appropriate to take account of these personal mitigating factors. That brings your end sentence to two years, six months’ imprisonment.
Mr Kumar
Brief facts
[46] You are 31 years of age and have no relevant prior convictions. You supplied methamphetamine on six occasions between mid-February and mid-May 2014. The total amount supplied on four of the six occasions was 3.6 grams. The largest amount supplied on these four occasions was two grams. The quantity supplied on the other two occasions is unknown. These are the lead offences.
[47] This offending falls within band 1 of the Court of Appeal’s guideline decision in R v Fatu which is described as low level supply involving less than five grams. Sentences in the range of two to four years’ imprisonment are appropriate for offending in this band. I consider that the appropriate starting point in your case, having regard to the amount and number of supplies, the short period involved and the fact that you received little reward, is two years, six months’ imprisonment.
Uplift for other offending
[48] I consider that an uplift of six months’ imprisonment is required to reflect the separate offence of supplying equipment for the manufacture of methamphetamine. This relates to your storage of Mr Allen’s manufacturing equipment and materials over a two and a half month period. You assisted Mr Allen to obtain this equipment as and when required by him over that period.
Discounts
[49] The Crown accepts that you are entitled to various discounts such that the principles and purposes of sentencing can be met by a community based sentence of home detention, coupled with community work.
[50] You were on bail for 22 months and subject to a 24 hour curfew for six of those months. However, you breached your bail conditions on three occasions and this must reduce the credit that would otherwise be allowed. I allow a discount of four months for this.
[51] You are also entitled to credit for your prior good record. I allow a further discount of four months for this.
[52] You are also entitled to a discount for your guilty pleas. While the guilty pleas were not entered until the close of the Crown case, it was only then that you were discharged on the charge of manufacturing methamphetamine that you also faced. In these circumstances, I consider that although the guilty pleas were entered late, there is a good explanation for this in that it was only then that you no longer
faced the more serious offence of manufacturing methamphetamine. Mr Fletcher points out that the Crown did propose, shortly prior to the commencement of the trial, that the matter might be resolved on this basis but he fairly acknowledges that you had limited time to consider the implications of that proposal. In all of the circumstances, Mr Fletcher does not resist a further discount of four months to reflect your acknowledgement of your guilt and the guilty pleas that you belatedly entered. I consider that such a discount is appropriate in all of the circumstances.
[53] This brings your end sentence to two years’ imprisonment. I accept Mr Tait’s submission, supported by Mr Fletcher and the probation officer, that a community based sentence is appropriate in your case. I consider that a sentence of 12 months’ home detention is appropriate combined with a sentence of 100 hours of community work to reflect your overall offending and culpability.
Sentence
[54] Mr Allen, would you please stand.
[55] On each of the 13 offences of manufacturing methamphetamine, I sentence you to a term of 19 years’ imprisonment.
[56] On each of the two offences of producing pseudoephedrine, I sentence you to a term of three years’ imprisonment.
[57] For the offence of possession of precursor substances for the manufacture of
methamphetamine, I sentence you to a term of five years’ imprisonment.
[58] For the offence of possession of materials for the manufacture of methamphetamine, I sentence you to a term of three years’ imprisonment.
[59] For the offence of possession of equipment for the manufacture of methamphetamine, I sentence you to a term of three years’ imprisonment.
[60] On each of the 14 offences of supplying methamphetamine, I sentence you to
five years’ imprisonment.
[61] For the offence of possession of methamphetamine, I sentence you to three
months’ imprisonment.
[62] For the offence of supplying GBL, I sentence you to two years’
imprisonment.
[63] For each of the two offences of possession of GBL for supply, I sentence you
to two years’ imprisonment.
[64] For the offence of unlawful possession of a firearm, I sentence you to
12 months’ imprisonment.
[65] For the offence of unlawful possession of ammunition, I sentence you to
three months’ imprisonment.
[66] These sentences are all to be served concurrently. The effective end sentence is therefore 19 years’ imprisonment. I impose a minimum period of imprisonment of ten years.
[67] Ms Potkins, would you please stand.
[68] On each of the 38 offences of supplying methamphetamine, I sentence you to
three years, eight months’ imprisonment.
[69] For the offence of supplying GBL, I sentence you to two years’
imprisonment.
[70] For the offence of possession of GBL for supply, I sentence you to two years’
imprisonment.
[71] For the offence of possession of methamphetamine, I sentence you to three
months’ imprisonment.
[72] All of these sentences are to be served concurrently so that your effective end
sentence is three years and eight months’ imprisonment.
[73] Ms Jawad, would you please stand.
[74] For each of the seven offences of permitting premises to be used for the manufacture of methamphetamine, I sentence you to two years, six months’ imprisonment. These sentences are to be served concurrently.
[75] Mr Kumar, would you please stand.
[76] For each of the six offences of supplying methamphetamine, I sentence you to 12 months’ home detention.
[77] For the offence of supplying equipment for the manufacture of methamphetamine, I sentence you to 100 hours’ community work.
[78] Mr Kumar, the special conditions of your sentence of home detention are:
(a) You are not to possess, consume or use any alcohol or drugs not prescribed to you.
(b)You are to attend an assessment for alcohol and drug programme as directed by a probation officer.
(c) You are to attend and complete any counselling, treatment or programme as directed and to the satisfaction of a probation officer.
(d)You are not to undertake any type of employment, voluntary work or training without prior written approval of a probation officer.
(e) You are not to communicate in any way or associate with your co- offenders without the prior written approval of a probation officer.
[79] Your sentence of home detention is to be served at the home detention residence of 3/51 Landscape Road, Papatoetoe.
[80] Mr Kumar, you are directed to travel directly from the Court to the home detention address which is 3/51 Landscape Road, Papatoetoe, to remain there and await the arrival of either a probation officer or a security officer.
[81] In your case Mr Allen I make orders, which are not opposed, for the forfeiture of cash of $714.40 and for the destruction of drug paraphernalia, the shotgun and the ammunition.
[82] Please stand down.
M A Gilbert J
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