R v Bennett
[2013] NZHC 2708
•18 October 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2012-063-2511 [2013] NZHC 2708
THE QUEEN
v
RANDOLF TERRENCE BENNETT
Charges: Plea: | Supplying methamphetamine (5); Conspiring to manufacture methamphetamine ; Cultivating cannabis Guilty |
Counsel: | CH Macklin for Crown AMM Schulze for Prisoner |
Sentenced: | 18 October 2013 |
SENTENCING NOTES OF BREWER J
Solicitors: Gordon Pilditch (Rotorua) for Crown
Lance Lawson (Rotorua) for Prisoner
R v BENNETT [2013] NZHC 2708 [18 October 2013]
Introduction
[1] Mr Bennett, you appear for sentence today having pleaded guilty on 15 August 2013 to six methamphetamine related charges and one charge of cultivation of cannabis.
Facts
Supplying methamphetamine
[2] The first, third, fourth, fifth and sixth counts are charges of supplying methamphetamine. These counts relate to 11 separate transactions. These offences carry a maximum penalty of life imprisonment.
[3] On three occasions you supplied methamphetamine to Ms Mihaka. Text messages were exchanged between the two of you arranging the supply. The transactions occurred on or between 27 July – 28 July, 24 August – 24 September, and on 24 November, all in 2011.
[4] On or about 19 November 2011, Ms Clark made contact with Ms Mihaka, who referred Ms Clark on to you. You then arranged, via phone and text message conversations, to supply her with methamphetamine. You went on to supply methamphetamine to Ms Clark and her ‘boy’, Mr Ford, after she made contact with you via text message on 26 November 2011. Mr Ford picked up the methamphetamine. He was intercepted on a bus after receiving the methamphetamine and searched. Methamphetamine was found in his clothing and he was arrested.
[5] On 14 August, 27 November, 7 December and 17 December 2011, you supplied methamphetamine to unknown persons. On the occasion of 27 November 2011, you arranged for your wife to pass the methamphetamine on to the buyer.
[6] On 30 November and 14 December 2011, you supplied methamphetamine to Mr Rongonui. On the latter occasion, Mr Rongonui was arrested and searched.
[7] The summary of facts to which you have pleaded guilty states that you supplied over 285 grams of methamphetamine.
Conspiring to manufacture methamphetamine
[8] You were charged along with Mr Fatu and Mr Englebretsen with one count of conspiring to manufacture methamphetamine. This charge relates to two separate time periods, namely on or between 20-28 October 2011 and 22-26 November 2011. This offence carries a maximum penalty of 14 years’ imprisonment.
[9] You and Mr Englebretsen exchanged text messages from 20 October 2011 to 28 October 2011 in order to arrange the manufacture of methamphetamine. Then, between 22 to 26 November 2011, you, Mr Fatu and Mr Englebretsen exchanged text messages and had phone conversations arranging the supply and delivery of precursor substances for the manufacture of methamphetamine.
[10] On 26 November 2011, Mr Englebretsen and Mr Fatu arranged to meet at an unknown location. You then sent a text message to Mr Englebretsen asking how far away the manufacture would be. Mr Englebretsen sent a text message in response, indicating it would be an hour away.
Cultivation of cannabis
[11] Between 1 June 2011 and 22 December 2011, you and Mr Gadsby were involved in cultivating cannabis plants. These were grown at Mr Gadsby’s home.
[12] On 22 December 2011, Police executed a search warrant at Mr Gadsby’s property. At the property the Police located:
(a)22 cannabis seedlings inside small planter bags;
(b)30 cannabis seedlings inside a chilly bin;
(c)An outbuilding containing a grow room where nine juvenile plants, nine cannabis seedlings and 34 medium sized cannabis plants were located;
(d)Seven ‘mother’ plants;
(e)Two bottles of Clonex;
(f)Two surgical blades;
(g)Two spray misters;
(h)60 cannabis clones/cuttings under fluorescent lights.
[13] The Police assess the potential value of the plants found to be $173,000. Further, and I regard this as background, allowing for the ability to turn a crop around eight times a year, the earning potential for that number of plants is over $1m per year. To my mind, that demonstrates that this was not a small and one-off operation.
Approach to sentencing
[14] The accepted general sentencing structure combines the approaches taken in two cases, one called R v Taueki1 and the other called Hessell v R.2 Mr Bennett, I just need to say that one of the reasons why the lawyers did not take a great deal of time talking to me this morning is because the path that you are now treading, so far as sentence is concerned, is a very well trodden path. There have been hundreds and hundreds of people sentenced for similar offending to yours, so the cases are pretty
clear on where we have to go.
[15] I will first set a starting point for the lead offences in your case, the supply of methamphetamine charges. This starting point will incorporate the elements of your offending. I will then assess whether there are any factors personal to you that require me to either discount or uplift your sentence. I will also assess whether there needs to be any adjustment to your sentence to reflect the totality of your offending. Finally, I will assess the appropriate discount for your pleas of guilty.
1 R v Taueki [2005] 3 NZLR 372, confirmed in R v Clifford [2011] NZCA 360 at [57]-[60].
2 Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.
Principles and purposes of sentencing
[16] In order to determine an appropriate sentence for you, I must also take into account the relevant purposes and principles provided for in the Sentencing Act
These include the need to hold you accountable for the harm done to the
community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm of your offending (and in this regard I am encouraged by what you have told me this morning). I also have to denounce and deter your conduct; to protect the community; but also to assist in your rehabilitation and reintegration.
Personal circumstances
[17] This is, of course, not the first time you have appeared before the Court. You have nine drug related convictions. The most recent was in 2009 for cultivating cannabis. The rest are much older, having occurred in 1996 and earlier, and generally relate to cannabis offending. There are, however, two convictions related to possessing and supplying LSD.
[18] I have had the benefit of reading a pre-sentence report prepared by the Department of Corrections. According to the report, and on what you have told me this morning, you accept responsibility for your behaviour.
[19] You are lucky. You have good relationships with members of your family. Many of the people I sentence are virtually alone in the world. You are the father of four children, and while they expressed criticism of you for becoming involved in the drug trade, you intend to return to them upon your release. Your wife has advised that she and your children will remain supportive of you.
[20] You explained to the report writer, and repeated to me a short time ago, that you were made redundant from your work as a stone mason. That led to a sudden drop in your income. You set up your own business but you soon reverted to selling drugs. You became addicted to methamphetamine.
[21] You are remorseful and you have told me that you will use your time in custody to engage with any rehabilitation programmes offered. You will have the opportunity to attend either the prison’s Drug Treatment Unit or Special Treatment Unit Rehabilitation Programme. The writer of the pre-sentence report says that you lack the skills necessary to achieve your goal of remaining drug free once you are back in the community and you need to acquire those skills.
[22] You are assessed at being at a high risk of offending, with a low risk of potential harm to others. If you were to engage in appropriate interventions, the risk would be mitigated. I accept that you would benefit from returning to your marae and engaging in the positive activities you have discussed with me this morning.
[23] The pre-sentence report recognises that you are contemplative and that you would benefit from the opportunity to engage with rehabilitative therapy while in custody.
Starting point
Lead offence: Supplying methamphetamine
[24] The sentencing bands for supply of methamphetamine have been set down by the Court of Appeal in a case called R v Fatu.4 The Crown contends that you fall into the middle of band three of Fatu. Your counsel, in his written submissions, submits that your offending falls within the upper end of band two or the lower end of band three of Fatu. The two bands actually overlap.
[25] The summary of facts records that you supplied at least 285 grams of methamphetamine. The evidence suggests that you may have supplied over 307 grams. I will proceed on the basis that you supplied 285 grams of methamphetamine. This amount does put you within band three of Fatu, which provides that supply at that level should be met with a term of imprisonment between eight and 11 years. With that said, the Court of Appeal made it clear that the amount of methamphetamine supplied is not the only criterion to take into account when assessing the sentencing bands.
[26] I consider that your offending is near the bottom of band three. I have considered the cases that the lawyers have drawn my attention to.5
[27] I find the following decisions useful in determining an appropriate starting point for the level of your offending, and I will just take a moment or two to go through those cases so that you understand what has happened to other people in similar situations to yours in the past:
(a)Chapman v R: In that case, the offender was sentenced on two representative counts of supplying methamphetamine and one count of conspiring to supply methamphetamine. The supply amounted to at least 220 grams of methamphetamine. A starting point of eight years’ imprisonment was adopted. When considering the totality of offending, the starting point came to 10 years’ imprisonment. While the Court of Appeal disagreed with some of the High Court Judge’s findings, the end sentence was held to be within range.
(b)R v Hyde:6 The offender there was sentenced for five charges – being in possession of methamphetamine for supply, supplying methamphetamine, offering to supply methamphetamine, offering to supply Ecstasy and conspiring to be in possession of methamphetamine. In that case, Lang J determined that the level of actual supply was approximately 400 grams. His Honour adopted a starting point that encapsulated the entirety of the offending, namely nine years and six months’ imprisonment.
(c)R v Chou:7 The offender was convicted for supplying methamphetamine. The quantity was 280 grams. Asher J accepted that the offender was not a leader in the operation, and that he was not personally making a large amount of money from the supply. A starting point of eight years’ imprisonment was adopted.
5 Chapman v R [2011] NZCA 134; R v Mosley [2008] NZCA 510; R v Chauval HC Rotorua CRI- 2009-063-5871, 15 October 2010.
6 R v Hyde [2012] NZHC 3355.
7 R v Chou HC Auckland CRI-2007-004-8340, 21 October 2008.
[28] Your lawyer submits that a starting point of eight years to eight years and six months’ imprisonment should be adopted. In his submission, such a start point would encompass the totality of your offending.
[29] I consider that you were the leader of the operation to supply. I consider your culpability for the lead offence to be similar to Chapman and somewhere between the offending in Hyde and Chou, but closer to Chou. I, therefore, adopt a starting point of eight years and six months’ imprisonment for the lead offence. I make it clear that this does not reflect the totality of your offending. I have yet to consider your other offending.
Uplift for other offending
[30] You, along with Mr Englebretsen and Mr Fatu, have pleaded guilty to conspiring to manufacture methamphetamine. When they were sentenced, it was argued that because you had supplied 285.1 grams, that 285.1 grams was also the quantity relevant to the conspiracy. However, Mr Englebretsen and Mr Fatu argued that you could have had other suppliers. Katz J accepted that. Her Honour determined that your co-offenders would fall into the middle of band two of Fatu.
[31] Following this logic, if I were sentencing you for conspiring to manufacture methamphetamine and nothing else, you would receive a sentence somewhere in the realm of six to seven years.
[32] Now to the cannabis charge. A total of 50 cannabis plants, at various growth stages, as well as 61 seedlings and 60 clones were located at Mr Gadsby’s address. You have accepted that you were cultivating cannabis. Had this been the lead offending, it would have attracted a final sentence of between two and three years.
[33] The Crown contends that your sentence should be uplifted by two or three years for the conspiracy charge, and a further year or two years for the cultivation charge.
[34] What you need to understand, Mr Bennett, is that when a person is being sentenced for multiple charges, different sorts of charges, the end sentence is not
reached by simply adding up the sentences that a person would receive if they had offended in each category separately. If that were to happen, hugely long sentences would be reached which would not represent the overall criminality of the offending. What I have to do is make allowances so that the point I get to is not out of all proportion to what you did.
[35] On that basis, for these other charges, I will uplift the starting point by two years and six months. This brings your starting point to 11 years’ imprisonment, and standing back and considering your offending as a whole I consider this reflects properly its totality.
Adjusting the starting point
[36] Your criminal record indicates an escalation in offending. I would, therefore, be justified in uplifting your sentence. However, as the offending is largely old, I will not uplift your sentence on this occasion. Again, I have regard to your overall position.
[37] You have expressed remorse and relief at being caught. You are willing to engage with intervention to assist you in overcoming your addiction. I commend you for your willingness to engage in rehabilitation and I accept as genuine the matters that you have spoken to me about today. The problem is, Mr Bennett, that against the scope and scale of your offending and against an examination of your criminal record, I have very little leeway to reduce the starting point for these factors. I will give you a very small reduction, simply to indicate that I have listened to what you said, and that reduction will be three months’ imprisonment. Once again, I have regard to your overall position.
[38] Now for the guilty plea. Just as your co-offenders’ sentences were discounted for their guilty pleas, I will discount yours by 25%. This is the maximum discount I can give you, pursuant to a case called Hessell v R.8 I have to say that had it not been for what I heard this morning, I would have given a discount of 20%, but
8 Hessell v R [2011] 1 NZLR 607 (SC).
I have been persuaded both by your attitude and by the submissions that I have heard that I would be better off applying the maximum of 25%.
[39] In the round, this brings your sentence to eight years’ imprisonment.
Result
[40] Mr Bennett, on the counts of supplying methamphetamine, you are sentenced to eight years’ imprisonment.
[41] On the count of conspiring to manufacture methamphetamine, you are sentenced to six years’ imprisonment.
[42] On the count of cultivating cannabis, you are sentenced to two years’ imprisonment.
[43] All of these sentences are to be served concurrently with each other, which means that your effective sentence is eight years’ imprisonment. You may stand down.
Brewer J
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