R v Apaapa
[2016] NZHC 208
•18 February 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2014-019-004813 [2016] NZHC 208
THE QUEEN
v
VYELLA APAAPA
Hearing: 18 February 2016 Appearances:
J N Foster for Crown
R Barnsdale for PrisonerJudgment:
18 February 2016
SENTENCING NOTES OF WYLIE J
Solicitors:
Crown Solicitors, Hamilton
R Barnsdale, Hamilton
R v APAAPA [2016] NZHC 208 [18 February 2016]
[1] Ms Apaapa you appear for sentence today having pleaded guilty to the following charges:
(a) Supplying methamphetamine. This is an offence pursuant to s 6(1)(c) of the Misuse of Drugs Act 1975, and the maximum penalty is one of life imprisonment;
(b)Offering to supply methamphetamine. This is also an offence pursuant to s 6(1)(c) and again, the maximum penalty is one of life imprisonment;
(c) Supplying lysergide (“LSD”). Again this is an offence pursuant to s
6(1)(c) and the maximum sentence is one of life imprisonment;
(d) Offering to supply LSD. This is also an offence pursuant to s 6(1)(c)
and the maximum sentence is the same;
(e) Selling cannabis. This is an offence pursuant to s 6(1)(e) of the Misuse of Drugs Act and the maximum sentence is one of eight years’ imprisonment;
(f) Offering to sell cannabis. This is also an offence pursuant to s 6(1)(e)
and again the maximum sentence is one of eight years’ imprisonment.
[2] The charges were laid against you and a number of others in April 2014. You entered guilty pleas on 7 December 2015.
[3] On 24 November 2014 Heath J gave you a sentence indication. He indicated that a starting point of eight years and three months’ imprisonment would be appropriate for your offending in total. At the time you were charged with supplying methamphetamine (x 4), offering to supply methamphetamine (a representative charge), possession of methamphetamine for supply, supplying LSD, offering to supply LSD, conspiracy to supply a precursor substance, conspiracy to supply equipment, selling cannabis and offering to sell cannabis.
[4] In the event, you did not accept that sentence indication. I note that since it was given some of the charges against you have been withdrawn.
[5] You entered your guilty pleas on 7 December 2015. By this point all of your various co-offenders had entered guilty pleas and your trial was scheduled to commence in April 2016.
Relevant Facts
[6] The summary of facts which you accepted at the time you entered your guilty pleas records that, in November 2013, the Waikato Police Organised Crime Squad commenced an investigation into the supply of drugs in Hamilton. The investigation was code named Operation Fremont. It focussed initially on the supply of methamphetamine by patched members and associates of the Waikato chapter of the Mongrel Mob gang.
[7] A covert investigation was carried out. It involved the interception of a large number of communications between various people. As a result, the police were able to identify a core group of individuals who were involved in the supply of methamphetamine and other illicit drugs.
[8] As a result of their investigations, the police identified you and a co-offender, a Ms MacDonald, as being amongst the individuals who were associated with the Mongrel Mob gang, and who were working with the gang to supply methamphetamine and, to a lesser extent, cannabis and LSD.
[9] You took a primary role in the sourcing and organisation of the sale of methamphetamine. Sales took place primarily from your home. Methamphetamine suppliers regularly delivered the drug to your address and customers would come to your home and purchase the drug directly from you.
[10] Ms MacDonald worked for you. She supported you by regularly travelling to various locations, uplifting wholesale quantities of methamphetamine to on-sell to customers and assisting in sales undertaken from your home. She was in essence your assistant or lieutenant.
[11] The police have been unable to accurately identify the amount of methamphetamine you supplied from your home address. It is clear that you had access to a steady supply of the drug and that you operated effectively as a retail outlet. Customers could telephone you about a purchase. They were also able to attend at your home address and obtain the drug without first making arrangements by telephone.
[12] While the police cannot quantify the total amount of the drug sold by you, they can refer to intercepted text messages and communications, which illustrate the commercial nature of the supplies undertaken by you. They do not know how much methamphetamine you supplied in the period 1 November 2012 to 31 October 2013. Nor do they know accurately how much methamphetamine you supplied in the period 1 November 2013 to 9 April 2014. They do know that in the latter period you were party to 212 intercepted communications. In those communications you arranged transactions which resulted in the supply of methamphetamine. The police were able to identify that the total amount supplied in 117 of those transactions was
75.1 grams. There were 95 further supplies of methamphetamine organised by you where the police were unable to quantify the amount of the drug supplied. Over the same period, you used the telephone to make offers of supply of methamphetamine on 57 occasions. The police were able to quantify the amount being offered on 32 of those occasions as totalling 54.4 grams. Sales were not however confined to those arranged by telephone. You were prepared to sell to customers previously unknown to you who attended at your home address for the purpose of buying methamphetamine.
[13] This was confirmed when an undercover police officer, unknown to you, went to your house in March 2014. You invited her into your lounge and asked her what she wanted. She asked for a “$2 bag” – a street term for 0.2 grams of methamphetamine. You directed Ms MacDonald to prepare the amount requested. Ms MacDonald used a rolled up bank note to scoop up the amount requested from a large re-sealable plastic bag which was positioned in the middle of your dining room table. The undercover police officer noted that the bag was the size generally used to hold an ounce of methamphetamine. It was approximately a quarter to a third full of the drug. The police officer also observed electronic scales and numerous small
plastic re-sealable bags on the table. When this supply occurred, a baby was sitting on the floor in the lounge. The baby was being looked after by a young female aged approximately 15 years.
[14] There was another transaction with the undercover police officer a few days later in early April 2014. The total amount supplied to the undercover officer was
0.3 grams.
[15] During the course of their investigations the police observed that there was a regular flow of individuals visiting your home.
[16] When you were spoken to by the police, you acknowledged that you had sold methamphetamine for a period of some 18 months before April 2014. As a result the charge of supplying methamphetamine to which you pleaded covers the period 1
November 2012 to 9 April 2014.
[17] The police analysis of captured text messages and intercepted communications also disclosed that, over the period 1 November 2013 to 9 April
2014, you engaged in the sale of both cannabis and LSD. The police identified 17 sales of cannabis by you, totalling 551 grams, along with two offers to supply totalling 84 grams. They also identified the sale of three LSD tablets and an offer to supply a further 100 tablets.
[18] Your address was searched in early April 2014. The police found a small quantity of methamphetamine in your home and a cutting agent. In addition the police found $835 in cash, along with electronic scales, tick lists and numerous empty point bags.
Provision of advice to Courts Report
[19] You are 47 years of age. You have five children and ten grandchildren. You are not currently in a domestic relationship.
[20] You first appeared before the District Court in 1987. Since that time you have accumulated a large number of convictions for drug related offending and for
non compliance with community based sentences. The report writer notes that your previous convictions for similar drug related offending have arisen because of your association with Mongrel Mob members. Indeed you describe your current offending as being committed under instruction. You said that you were told “it was going to happen”, and that you let it happen.
[21] Identified factors which have contributed to your offending are said to be your offending supportive attitudes, your associates and your drug use. It is noted that you have admitted to the use of cannabis, but that you do not have a harmful pattern of alcohol abuse. Your risk of reoffending is assessed as medium, given your previous criminal history, although it is noted that this may be able to be reassessed after rehabilitative programmes have been undertaken by you. Your risk of harm to others is also assessed as medium, given the nature of your offending and the impact it can have on drug users, their families and the wider community.
[22] The report writer has suggested that you would benefit from the additional programmes which can be offered to you in prison and that the same are likely to enhance your motivation to better understand the causes for your offending and to assist you to learn how to make positive changes in your attitudes.
[23] The report writer recommended a sentence of imprisonment.
Your criminal record
[24] As I have noted, you have a number of convictions, including a number of drug related convictions. On 5 August 2011 you were sentenced to a term of imprisonment for procuring/possession of methamphetamine, utensils for use with methamphetamine, possession of a syringe and procuring/possession of a cannabis plant. On 21 April 2009 you were convicted of possessing cannabis for supply and you were sentenced to two years and three months’ imprisonment. You were also convicted of possession for supply of cannabis and possession of a needle or syringe on 30 April 2007. In relation to that offending you received a sentence of 160 hours community work. You were convicted and fined for possessing a needle or syringe in November 2006 and in 2003 you were convicted of possessing a pipe for smoking cannabis.
[25] You also have a number of convictions for breaching release conditions, breaching community work conditions and obstructing or hindering the police.
Submissions
[26] Ms Foster, for the Crown, argued that the estimated quantity of the drugs supplied is conservative. She noted that it does not include transactions completed without telephone contact or any dealing between November 2012 and November
2013. She pointed to the money lost on gambling by you during this period to emphasise the commercial nature of your offending.
[27] Ms Foster submitted that the following are aggravating factors, namely premeditation, scale and gang association. She submitted that the methamphetamine offending falls within the middle to upper end of band two identified in R v Fatu, attracting a starting point of seven to eight years’ imprisonment.1 She argued that that seven and a half to eight years’ imprisonment is appropriate in your case, given your culpability relative to other offenders sentenced as a result of the same police operation. She submitted that that other offending was less serious because it was only committed over a six month period, whereas you have acknowledged that you
offended over an 18 month period.
[28] She submitted that an uplift of 9-12 months’ imprisonment for the LSD and cannabis offending is appropriate, and that a further uplift is required to take into account your previous offending. She submitted that a guilty plea discount of 10 per cent is appropriate given the strong Crown case and the relatively late plea.
[29] Mr Barnsdale, for you, cautioned about the guesswork and speculation involved in estimating the extent of your past offending and the quantities of drugs involved. His submissions proceeded on the assumption that there is no challenge to the summary of facts. If the Crown figures are accepted as accurate, then he submitted than a starting point of seven years’ three months to seven years’ six months’ imprisonment is appropriate. He argued that a guilty plea discount of 15 per cent is appropriate to reflect the same discount given to Ms MacDonald.
The purposes and principles of sentencing
[30] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act 2002. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved. I am also mindful of the need to deter others from committing the same or similar offences. This is a primary factor in drug- related offending. I have taken into account the gravity of the offending with which you were involved, including your degree of culpability. I have considered the seriousness of this type of offending, and, given that your co-offenders have all been sentenced, the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences. I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and I need to consider your rehabilitation in the circumstances which have arisen.
Analysis
[31] It is common ground between counsel that the lead offences are those relating to the supply and offering to supply methamphetamine over the period 1 November
2012 to 9 April 2014.
[32] The guideline judgment for methamphetamine sentencing is the decision of the Court of Appeal in R v Fatu.2 In that case the Court identified four bands for cases which involve the supply of methamphetamine. The bands are as follows:
(a) band one for low level supply – less than five grams – two years to
four years’ imprisonment;
(b) band two for commercial quantities – five grams to 250 grams - three
years to nine years’ imprisonment;
(c) band three for large commercial quantities – 250 grams to 500 grams
– eight years to 11 years’ imprisonment; and
(d) band four for very large commercial quantities – 500 grams or more -
10 years to life imprisonment.
The Court of Appeal emphasised that the sentence identified as being appropriate to each band is to be treated as a starting point only, before taking into account aggravating and mitigating factors relating to the offender, as opposed to the offending.
[33] In your case, the total amount of methamphetamine supplied or which you offered to supply over the period in respect of which you have pleaded guilty is unclear. Between November 2013 and 9 April 2014 you supplied 75.1 grams of methamphetamine. You offered to supply an additional 54.4 grams. This totals
129.5 grams. While the likelihood is that you supplied more than this over the period 1 November 2013 and 9 April 2014, and yet more again in the period 1
November 2012 to 30 October 2013, there is no material available to me to enable me to determine the actual quantity of methamphetamine supplied by you. I decline to speculate on the amount. Nevertheless you were clearly selling commercial quantities of methamphetamine and I place your offending in band two as identified in Fatu.
[34] There were aggravating features to your offending. First, there was a significant degree of premeditation. Your offending was highly organised. It was repetitive. You took the primary role in organising the sales of methamphetamine. You used your home address – effectively as a drugs supermarket. You recruited Ms MacDonald to assist you and you demonstrated the ability to ensure a constant supply of methamphetamine from your sources.
[35] Secondly, there is the scale of your offending. You were involved in the supply of a significant amount of the drug to the community, over a period of 18 months.
[36] Thirdly, there is also the location of your offending. You were selling drugs from your own home. A 15 year old girl and a young baby were exposed both to the drug and to the sale and supply of methamphetamine on at least one occasion.
[37] Finally, there is the gang association. Your involvement in the offending was identified as a result of the police investigation into the involvement of the Waikato Chapter of the Mongrel Mob gang in the supply of illicit drugs in this region. You associate with the gang. I note that one of your previous convictions for drug dealing arose as a result of you operating a tinnie house which sold cannabis, and that the supply of cannabis was organised by patched members of the Mongrel Mob.
[38] In my view your offending falls in the middle to upper part of band two identified in Fatu. As I have already noted, such offending requires a starting point of three years to nine years’ imprisonment.
[39] Before I fix a starting point for your offending (not taking into account your personal mitigating circumstances), I need to consider the sentences imposed on your co-offenders, and on others who have committed the same offence.
[40] One of your co-offenders was a Ms Jeans. She was sentenced by Heath J on
13 March 2015.3 She supplied methamphetamine from her home over the period November 2013 to April 2014. The amount of methamphetamine the police could prove was supplied by her was 112.1 grams – slightly less than the amount the police can prove you supplied or offered to supply. Heath J took a starting point of seven years’ imprisonment for Ms Jeans. Ms Foster argued that your culpability is higher than that of Ms Jeans, because your offending occurred over a period of 18 months, whereas Ms Jeans’ offending occurred over a period of only six months. I accept that submission. Ms Jeans entered a guilty plea to offending between 1 November
2013 and 9 April 2014. You have entered a guilty plea to offending between 1
November 2012 and 9 April 2014.
[41] Heath J also sentenced another of your co-offenders, a Ms Paki.4 She entered guilty pleas to five charges of supplying methamphetamine, one of offering to supply methamphetamine, one of selling cannabis, one of offering to sell cannabis and one of conspiracy to supply pseudoephedrine. She played a central role in the drug
supply business. She also was responsible for organising the purchase of
3 R v Paki [2015] NZHC 472.
4 R v Paki, above n 3.
methamphetamine and distribution to third parties. The police were able to establish that she was involved in the supply of at least 287.55 grams of methamphetamine. Heath J adopted a starting point of nine years’ imprisonment. He placed Ms Paki’s offending within band three identified in Fatu.
[42] Ms MacDonald – your lieutenant – was sentenced by Katz J.5 The police established that she had supplied or offered to supply 26.7 grams of methamphetamine. A starting point of four years and six months’ imprisonment was adopted for her.
[43] Having read the sentencing notes for each of your co-offenders, I am satisfied that Ms Paki’s offending was more serious than yours. Your offending in turn was more serious than Ms MacDonald’s. I consider that it was broadly similar to Ms Jean’s offending, albeit that you offended over a rather longer period, and supplied a little more of the drug.
[44] I have also considered a number of other cases involving broadly similar amounts of methamphetamine.6
[45] In my view, a starting point of seven years and six months’ is appropriate for your methamphetamine offending. That starting point is broadly in line with the starting point adopted for one of your co-offenders, Ms Jeans. I have adopted a marginally higher starting point, because of the different quantities involved and the longer duration of your offending.7
[46] I now turn to consider whether or not that starting point for your methamphetamine offending needs to be uplifted, to take into account your other
offending in relation to LSD and cannabis.
5 R v MacDonald [2015] NZHC 2887.
6 Whare v R [2014] NZCA 354 - 201.8 grams, a starting point of eight years; Chapman v R [2011] NZCA 134 - at least 220 grams – a starting point of eight years; R v Nelson HC Auckland CRI-
2008-092-018743, 3 February 2010 - 220 grams – eight years’ starting point; R v McLaine HC
Rotorua CRI-2009-063-5871, 24 November 2011 - 177 grams – a starting point of seven years’
imprisonment.
7 I also note that in Ms Jeans’ case a sentencing indication had been given by Asher J. Asher J had indicated that a sentence of seven years was appropriate. Heath J took the view that that sentence indication was “conservative”.
[47] A modest uplift is required. LSD is a class A drug and cannabis is a class C drug. You sold three LSD tablets and offered supply of a further 100 tablets. You also sold 551 grams of cannabis over 17 occasions, and offered to supply a total of a further 84 grams.
[48] Ms Foster submitted that the LSD offending, in its own right, would justify a starting point of around two years’ imprisonment or perhaps a little more.8 The cannabis related offending, were it considered alone, would justify a starting point of two or perhaps two and a half years’ imprisonment.9
[49] I consider that an uplift of six months is appropriate to take into account the LSD and cannabis offending. Any greater uplift would offend the totality principle which I am required to take into account. That is particularly the situation here when I consider other cases where terms of eight years’ imprisonment have been adopted as a starting point for methamphetamine related offending. Those cases involved the supply of more than 200 grams of methamphetamine, and I cannot be satisfied on the summary of facts to which you pleaded guilty that your offending involved supplies of that quantity.
[50] The overall sentence I adopt for all of your offending is therefore one of eight
years’ imprisonment.
Aggravating and mitigating factors personal to you
[51] There are no mitigating circumstances personal to you, other than your guilty plea. Although Mr Barnsdale on your behalf suggested otherwise there is no indication of remorse by you that I am aware of.
[52] There is however an aggravating circumstance. You have a long history of drug related offending. Relevantly some of your prior offending has occurred in a
similar situation – namely you have sold drugs on behalf of the Mongrel Mob. It
8 And see Miller v Police [2012] NZHC 1413; R v Wilson [2012] NZHC 2356 and Arlidge v
Police [2014] NZHC 2202.
9 R v Terewi [1999] 3 NZLR 62 (CA).
seems from your criminal record that your offending is escalating in scale. In my view a further uplift of six months is required to reflect your criminal record.
[53] This takes the starting point to one of eight years and six months’
imprisonment.
[54] There are however your guilty pleas. You are entitled to a discount for those pleas. The Crown argued for a 10 per cent discount. Mr Barnsdale argued for a 15 per cent discount.
[55] Your guilty plea was entered approximately five months prior to your trial. It was entered after all of your co-offenders had entered guilty pleas. You were faced with a strong Crown case. Your lieutenant, Ms MacDonald, entered a guilty plea approximately one to two months earlier than you did. She received a 15 per cent discount from Katz J, who took into account the fact that her plea was entered relatively late and the strength of the Crown case.
[56] I do not consider that you are entitled to the same discount as Ms MacDonald. Your plea was entered rather later. Further, your plea was entered in the face of a very strong Crown case against you.
[57] In my view, the appropriate discount is one of approximately 12.5 per cent –
or say thirteen months.
Sentence
[58] Ms Apaapa will you please stand.
[59] In respect of the offence of supplying methamphetamine, I sentence you to a term of imprisonment of seven years and five months.
[60] In respect of the offence of offering to supply methamphetamine, I sentence you to a term of imprisonment of seven years and five months.
[61] In respect of the offence of supplying LSD, I sentence you to a term of imprisonment of two years.
[62] In respect of the offence of offering to supply LSD, I sentence you to a term of imprisonment of two years.
[63] In respect of the offence of selling cannabis, I sentence you to a term of imprisonment of 21 months.
[64] In respect of the offence of offering to sell cannabis, I sentence you to a term of imprisonment of 21 months.
[65] All of the sentences are to be served concurrently.
[66] Ms Apaapa your counsel today, Mr Barnsdale, has indicated to me that you are anxious to turn your life around and that you intend to take advantage of the various rehabilitation programmes which will be offered to you while you are serving your sentence of imprisonment. I hope that you will do that, that you will succeed in turning your life around and that we will not see you before the Courts again.
[67] You may stand down.
Wylie J
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