R v Bhikoo - [2017] NZHC 3204

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-8720

[2017] NZHC 3204

THE QUEEN

v

MOBEEN BHIKOO

BENJAMIN ALEXANDER MCLELLAN TAFA MISIPATI

SAMUEL JAMES MONTGOMERY

Hearing: 18 December 2017

Counsel:

BD Tantrum and A McConachy for Crown

RM Mansfield for BA McLellan, SJ Montgomery and M Bhikoo CCK Merrick for T Misipati

Sentenced:

18 December 2017

Reissued:

1 February 2018

SENTENCING NOTES OF FITZGERALD J

R v Bhikoo [2017] NZHC 3204 [18 December 2017]

Solicitors: Meredith Connell, Auckland
Dominion Law, Auckland

Introduction.

[1] I would like to start by acknowledging the presence in Court today of the defendants’ family, friends and supporters. There are obviously a lot of you here today and I know it will have been of great support to each of the defendants to have you here today to support them. As I have also said, I have received and I have read all of the references and other materials that have been submitted on behalf of the defendants, many of which have been very moving. And also the very eloquent words that have been spoken in Court here today on behalf of Mr Misipati.

[2] Mr Bhikoo, Mr McLellan, Mr Misipati and Mr Montgomery, you each appear for sentence here by me today having pleaded guilty to charges relating to the supply, the possession for supply, and possession of class-A drugs, namely cocaine and in some cases methamphetamine. The charges arise from involvement in a cocaine- distribution network, discovered following a police operation known as “Operation Ceviche.”

General background

[3] Now, that investigation centred on an allegation that Mr Bhikoo, together with others, was involved in the distribution of the class A controlled drug cocaine. That investigation ultimately identified a number of people to whom Mr Bhikoo regularly dealt cocaine, over the period January 2016 to 31 August 2016. As I have alluded to earlier in discussions with counsel, there is a dispute as to the precise number of people to whom Mr Bhikoo supplied during this period; the Crown says at least 37 different people on a regular basis; Mr Bhikoo, you accept you supplied to 20 people over 34 occasions. Irrespective of the actual number of people to whom you supplied and on how many occasions, I am satisfied this was a commercial supply operation, albeit in the context that Mr Mansfield has outlined earlier today.

[4] The investigation also identified that Mr McLellan supplied Mr Bhikoo with cocaine which Mr Bhikoo then on-supplied to those other persons. Mr McLellan, you

would also supply cocaine to others. Mr Misipati, your involvement was that Mr Bhikoo would supply you with cocaine, and you sourced and supplied Mr Bhikoo with methamphetamine. As to your involvement Mr Montgomery, as you say yourself, you were at the time seriously addicted to drugs. One of Mr McLellan’s charges relates to him supplying you with cocaine, and on one occasion when Mr Bhikoo was unable to source cocaine from Mr…

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 R v Bhikoo

Details

AGLC: R v Bhikoo [2017] NZHC 3204
Case: [2017] NZHC 3204
Decision Date: 18 December 2017

CaseChat Overview and Summary

Bhikoo, McLellan, Misipati, and Montgomery were all involved in a cocaine distribution network, discovered following a police operation known as “Operation Ceviche.” The defendants pleaded guilty to charges relating to the supply, possession for supply, and possession of class-A drugs, namely cocaine and in some cases methamphetamine. The court needed to decide the appropriate starting points for the defendants' sentences, considering their roles in the drug network, the quantity and purity of the drugs supplied, and other relevant factors. The court also needed to determine whether any discounts should be applied for personal circumstances, guilty pleas, or other mitigating factors.

The court considered the roles of each defendant in the drug network and the quantity and purity of the drugs they supplied. For Bhikoo and McLellan, the court found their roles to be similar and adopted a starting point of four years, three months’ imprisonment for both. For Misipati, the court considered the methamphetamine charges as the lead charges and adopted a starting point of three years, nine months’ imprisonment, uplifted by nine months to account for the cocaine charges. For Montgomery, the court adopted a starting point of two years, six months’ imprisonment due to the lack of commerciality in his offending. The court then applied discounts for personal circumstances and guilty pleas, resulting in final sentences of three years, four months’ imprisonment for Bhikoo and McLellan, two years, eleven months’ imprisonment for Misipati, and eight months’ home detention for Montgomery. The court also imposed orders for the destruction of drugs and drug paraphernalia found at the defendants' homes, as well as forfeiture of cash amounts.

Orders