R v Bhikoo
[2017] NZHC 3204
•18 December 2017
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 McLellan, he asked you to source it for him, and you did so.
[5] As has been said here in Court earlier, you were all users of drugs, including cocaine and methamphetamine. Most of you say that at least in part, you were supplying class A drugs to supplement the cost of your own drug habit. The fact that you were, at least in part, feeding your own habit, but also willing to feed others’ drug additions, is why the law looks very sternly on those supplying drugs, and particularly class A drugs. As you have each experienced to varying degrees, the drug use ultimately becomes an addiction, with devastating effects, not only for you personally, but your families, your loved ones and society more generally. The seriousness with which the supply of class A drugs is viewed by society is reflected in the fact that maximum penalty for supply offences to which you have pleaded guilty is life imprisonment.
[6] Finally, by way of background, in some of the materials that have been placed before the Court, it has been said that cocaine is somehow viewed as socially acceptable, at least in some circles, and “the thing to do”. Any such views must be dispelled. Parliament has classified cocaine as a class A drug, the most serious drug class. Any suggestion that cocaine is somehow a more acceptable “party drug” which warrants a less stern response must be put aside.
Sentencing methodology
[7] I will now briefly describe the purpose and process of your sentencings today, so that you, and all of those present here in Court today, understand how the Court reaches the sentences it does.
[8] Given the seriousness with which supplying class-A drugs is viewed, the main purpose of your sentencing today is to deter you and to deter others from engaging in
similar drug-related activity,1 and to denounce what you have done.2 As your counsel have also noted, however, I am also required to impose the least restrictive outcome that is appropriate in the circumstances.3
[9] The first stage of your sentence will involve setting a start point; that is what the Court considers to be the appropriate sentence in light of the nature of your particular offending. After setting the starting point for each of you, I will then consider your personal circumstances, and whether that increases or decreases the starting point. Lastly, I will take into account the fact you each pleaded guilty to your charges.
[10] Setting the start point is not straightforward in cases of cocaine-related offending, as there is no tariff or guideline judgment from the Court of Appeal (as there is for methamphetamine offending). There is also a relatively limited number of other cocaine sentencing decisions. However, in a decision called Clarke, the Court of Appeal approved an approach to setting starting points for cocaine-related offending as follows: 4
(a)First, looking at the roles you each played in the drug network, as assessed by reference to a decision relating to heroin (which is also class-A drug).5 Although that case concerned importation, which means any guidance taken from it must be adjusted downwards to reflect the fact importation is more serious than supply or possession for supply.
(b)Second, the starting point can be “cross-checked” against the starting points for methamphetamine offending set out in a case called Fatu by the Court of Appeal, which sets out a number of bands for sentencing methamphetamine-related offending.6
1 Sentencing Act 2002, s 7(1)(f).
2 Sentencing Act, s 7(1)(e).
3 Sentencing Act, s 8(g).
4 Clarke v R [2013] NZCA 473.
5 R v Wickremasinghe HC Auckland TO13408, 28 March 2003.
6 R v Fatu [2006] 2 NZLR 72 (CA).
(c)And, third, if there are comparable cocaine cases, they are to be drawn on for assistance. That is so sentencing is, as far as possible, consistent across similar cases.
[11] Given the heroin-related decision concerned importation of a class-A drug, something quite different and considered more serious than supply, I have found the second and third steps I have just outlined to be the most helpful.
[12] When moving to the next stage, and whether the start point should be adjusted because of factors personal to you, the Crown does not suggest any factors which would warrant an increase in the start point for any of you. So, I will only be looking at whether the start point should be decreased, and if so, by how much. To assist with this, I have received and read reports about each of you from the Department of Corrections. As I said, I have also received and read your own letters to the Court, and as noted, the many other letters and references that family, friends and other supporters have provided. It is important I say to you now, however, and to those in Court, that the Supreme Court in a case called Jarden has emphasised that when sentencing for commercial drug dealing, personal circumstances must be subordinated to the need for deterrence, although this does not necessarily mean they cannot be relevant.7 It does mean, however, that ordinarily, only relatively limited weight can be given to them.
Purity
[13] Before I commence your sentencings, I need to explain some legal matters relating to the purity of cocaine which was supplied in this case, which I have discussed already with counsel.
[14] In a judgment released earlier this month, I ruled that Mr McLellan and Mr Bhikoo were to be sentenced on the basis that they supplied, or possessed for supply, cocaine with a purity of 28 per cent.8 There are aspects of the sentencing submissions that proceed on the basis that the quantities of cocaine listed in the agreed
7 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
8 R v Bhikoo [2017] NZHC 3022. This is except for 13.3 grams found at Mr McLellan’s home, for which the purity is known to be 58 per cent.
summaries of facts should be treated as reduced, via a mathematical approach, to reflect only the amount of “pure cocaine” dealt with.
[15] There appears to be different approaches as to how courts treat cocaine purity at sentencing. For example, in a case called Lay, Mr Lay had supplied 946 grams of cocaine, with a purity of 42.5 per cent. On that basis, he was treated for sentencing purposes as having supplied only 406 grams of “pure cocaine”. However in Hayward, Lang J did not mathematically adjust the quantity of cocaine supplied to reflect its purity.9 Rather, His Honour treated the quantity and purity of cocaine as separate factors affecting of the overall culpability of Mr Hayward’s offending.10
[16] Having considered these different methods of accounting for purity, and as I discussed with counsel earlier, I respectfully prefer the approach adopted in Hayward. In my view, the mathematical approach risks artificially obscuring the overall culpability of an offender by giving too much prominence to the quantity of cocaine, at the potential expense of other aggravating or mitigating factors. Rather, it is preferable for culpability to be assessed broadly and comprehensively, taking into account all the relevant facts,11 including the purity of the cocaine supplied. I consider this approach is particularly appropriate for cocaine offending given there is not, to the Court’s knowledge, a “standard” level of purity for cocaine supplied in New Zealand. Expert evidence presented at the disputed facts hearing before me noted that imported cocaine is generally between 60 to 80 per cent purity, and is sometimes sold uncut, sometimes sold cut. On that basis, it would be unlikely for cocaine with 100 per cent purity to be sold in the market.
[17] This lack of any standard as to purity is different to methamphetamine, where the Court of Appeal in Fatu noted that the market supply of “P” is almost always at least 60 per cent.12 Further, the Court of Appeal in Fatu confirms that quantity and purity are separate factors to take into account when assessing where particular offending sits within the bands set out in Fatu.13 This is also consistent with other
9 R v Hayward HC Auckland CRI-2011-092-4639, 13 September 2011.
10 The 510 grams of cocaine Mr Hayward dealt with had a purity of around 54 per cent.
11 R v Wallace [1999] 3 NZLR 159 (CA).
12 R v Fatu [2006] 2 NZLR 72 (CA) at [28].
13 At [30].
decisions relating to cocaine and other class-A drugs, where purity has been taken into account as one factor (i.e. in conjunction with quantity) when assessing an offender’s overall level of culpability.14
[18]With these broader comments in mind, I now turn to your respective sentences.
Mr Bhikoo
[19] I will start with you, Mr Bhikoo, and you may all remain seated at this time. As a cocaine dealer, you maintained a network of customers to whom you dealt both small and large quantities of the drug. Between 26 January and 31 August 2016, you worked closely with Mr McLellan, obtaining cocaine from him before distributing it to others in your network.
[20] For sentencing purposes, you supplied or had in your possession for supply at least 227 grams of cocaine, with a purity of approximately 28 per cent.
[21] Three of the charges to which you pleaded guilty are representative charges, for which the amount of cocaine supplied and how often is unknown. And although there is a dispute as to the number of customers in some of these transactions, on any measure, the established facts indicate commercial dealing in the drug at a retail level. This is also consistent with the materials found at your home on termination of the operation, including two bundles of cash, totalling just over $10,000. In short, this was organised offending over a significant period of time and through many transactions.
[22] I also note that when the police conducted a covert search of your home on 26 July 2016, they found eight grams of methamphetamine, which you had for your personal use (and you have pleaded guilty in relation to that to one charge of possessing a class-A drug, methamphetamine).
14 R v Liava’a CA175/98, 17 August 2003 at 6; R v Wickremasinghe HC Auckland T01348, 28 March 2003 at [33]; R v Tshisa CA507/05, 31 August 2008 at [23] and [28]; R v Yee CA169/01, 29 November 2001 at [16]; R v Emirali CA177/06, 12 December 2006 at [33] and [35].
[23] Taking into account these facts and the findings in relation to purity, the Crown says a starting point of between five and six years’ imprisonment would be appropriate. Mr Mansfield on your behalf submits a starting point of no more than three years would be appropriate.
[24]In considering these competing submissions, I note the following matters.
[25] It is clear you were at least a key middleman in the drug-network, quite high in the structure. The summary of facts indicates that you not only sold smaller amounts of cocaine to other end users, but also in larger quantities to some. I have considered the guidance given in Fatu. On the basis of supply of at least 227 grams of cocaine, your offending would fall at the upper end of band 2, which establishes a range of between three to nine years’ imprisonment. That is of course a very wide band, and the Court in Fatu says that the purity of the drug supplied (and the offender’s role) are to be taken into account when considering where an offender sits in that particular band.15 In this case, taking into account the overall minimum quantity supplied, its purity and your role, I would assess your offending as sitting somewhere nearer the middle level of that band, around five years. I note, however, that those bands relate to methamphetamine, and cocaine does tend to attract slightly lower starting points.
[26] I have also considered other cases involving cocaine supply, or possession for supply. The case I referred to earlier, Lay, involved an offender whose cocaine distribution was discovered by the same police operation as that which discovered yours.16 Those charges involved 946 grams at 42.5 per cent which as I noted before, the Court assessed as 402 grams of pure cocaine. In that case, Courtney J adopted a starting point of nine years’ imprisonment. The case of Lay obviously involves more cocaine than here. Mr Lay did have a similar role to your own, though perhaps with a greater degree of commerciality. In a 2001 Court of Appeal decision called Yee, involving one charge of possession for supply (in connection of drug importation) of 416 grams of cocaine (at 80 per cent purity), a starting point of eight years was adopted.17 Hayward, which is somewhat more comparable to this case, in terms of the
15 At [31].
16 R v Lay [2017] NZHC 1388.
17 R v Yee CA169/01, 29 November 2001.
nature of the offending, involved a supply of 510 grams at 54 per cent purity, and an initial start point of eight years was also adopted.
[27] There are two other cases involved in the same police operation which led to the discovery of your offending, and they have been discussed by counsel in court today. The first is Logan.18 Over a five-month period, Mr Logan supplied 30 grams of cocaine to others. There is no mention in the sentencing notes of purity. I note, however, that on at least one occasion, Mr Bhikoo, you supplied Mr Logan with 28 grams of cocaine. Police located at Mr Logan’s home evidence of commercial supply, including snaplock bags, approximately $12,000 in cash and digital scales. Some of the cocaine located was agreed to be for Mr Logan’s personal use. For that supply of 30 grams, Downs J adopted a starting point of two years and nine months’ imprisonment.
[28] Another co-offender is Mr Noon. Mr Noon supplied 70 grams of cocaine to close associates (again there is no information as to its purity, though the summary of facts in that case indicates that at least some end users complained that it was not potent enough). The District Court adopted a start point of three years.
[29] Finally, the Crown has also referred me to the case of Kilgour.19 In that case, the defendant purchased 28 grams of cocaine and pleaded guilty to two charges of supply. There were no particular elements of commerciality. The Court considered the appropriate starting point to fall between two and a half and three and a half years’ imprisonment.
[30] Drawing these threads together, and on the basis your offending is less serious than in Lay, Yee and Hayward, but in my view more serious than Logan, Noon and Kilgour, I consider an appropriate starting point is four years, three months’ imprisonment.
[31] As to your personal circumstances, you have no prior convictions of relevance to your sentencing today. The Department of Corrections report advises that you
18 R v Logan [2017] NZHC 994.
19 R v Kilgour HC Dunedin S4/00, 2 November 2000.
became involved in this offending in the context of an acrimonious business split. In my view, that cannot justify or excuse your offending. You chose to become involved in class-A drugs and, more importantly, you chose to deal in class-A drugs.
[32] You have said you are remorseful, and that you have started attending programmes to address your drug use. You also have very strong family support, as well as a supportive network of friends. All these matters are to be commended. However, as I said earlier, the law is clear that these cannot warrant anything other than a relatively modest discount in commercial drug offending. In particular, I do not see a discrete discount for genuine remorse, in addition to your personal circumstances (and your guilty plea), as appropriate. I accordingly discount your starting point by three months (which is slightly over five per cent) for your personal circumstances, which takes it to four years’ imprisonment.
[33] Lastly, I note your guilty plea, on the morning your five-week trial, and in the face of what was a relatively strong prosecution case. Given this, and it is acknowledged by your counsel, it is not appropriate to award a full 25 per cent discount. Nor do I accept a discount in the order of 20 per cent is appropriate. The Crown has suggested a discount of 10 per cent, but in my view that is also too light. I take into account that the full Crown evidence was not available until around July of this year, and there were ongoing discussions regarding quantum and purity. In all of the circumstances, I will reduce your sentence by a further eight months (or just over 15 per cent) to reflect your guilty plea. That brings your final sentence for your cocaine charges to three years, four months’ imprisonment.
[34] You have also pleaded guilty to possessing methamphetamine. That has a maximum penalty of six months’ imprisonment or a fine not exceeding $1,000. You were found with a large quantity (8 grams) of the drug for your personal use. Considering your guilty plea, I impose a concurrent sentence of three months’ imprisonment for that charge. That means your total end sentence is one of three years, four months’ imprisonment.
Mr McLellan
[35] I now turn to you, Mr McLellan. You were a close associate of Mr Bhikoo and you often discussed your drug dealing with him. As I noted earlier, you supplied Mr Bhikoo and others with wholesale quantities of cocaine. You also assisted Mr Bhikoo by compressing the drug into one or 1.5-ounce rectangular blocks or smaller circular discs, for marketing purposes.
[36] Four of the charges of supplying cocaine relate to four specific instances between 27 May and 30 July 2016, in which you supplied a total of 154 grams of the drug to Mr Bhikoo, or in one case, to Mr Logan.20 You also pleaded guilty to a representative charge of supplying in excess of 28 grams of cocaine to numerous other people.
[37] When the police searched your house at the end of their investigation, they found 75.1 grams of cocaine, 26.5 grams of which was packaged into 18 individual bags for sale. The remainder was in a mould, in the throes of being pressed into a one- ounce block. Most of this cocaine had a purity of 28 per cent, though some (13.3 grams) had a purity of 58 per cent. I accept it is possible some of this might have been for your own personal use. Police also found various drug-related paraphernalia, including scales, plastic bags, tick lists, several pressing moulds and $7,570 in cash.
[38] Therefore, the total amount of cocaine you supplied or had in possession for supply across all your charges is at least 257 grams, mostly at a purity of 28 per cent, though some at a purity of 58 per cent. As with Mr Bhikoo, the quantities of the drug you handled (both over time, and in individual transactions), along with the paraphernalia, moulds and the cash found at your home, indicates your offending with a degree of commerciality.
[39] As to your starting point, I view your offending to be broadly similar in scale, nature and quantity to Mr Bhikoo’s. Neither the Crown nor your counsel has suggested anything other than the same starting point as adopted for Mr Bhikoo. I consider that is appropriate. While the quantities of cocaine involved are slightly
20 This quantity was clarified following a disputed-facts hearing.
different than in the case of Mr Bhikoo, I consider your respective roles and the overall nature of your offending to be similar. Ultimately, it is clear you and Mr Bhikoo worked closely together in a coordinated way to supply cocaine to others. For the reasons I gave in relation to Mr Bhikoo’s starting point, I also adopt a starting point for you of four years, three months’ imprisonment.
[40] Your pre-sentence report discloses you have no prior convictions, and you reported becoming involved in drug-dealing to supplement your own growing addiction. But as noted, I consider your offending was relatively commercial – it was larger than somebody just financing their own habit. As with Mr Bhikoo, I consider that in the circumstances, these personal matters cannot warrant anything other than a relatively modest discount, and I adopt the same as in the case of Mr Bhikoo, namely three months’ discount. Again, that takes your sentence to four years’ imprisonment.
[41] Taking into account your guilty plea, made at the commencement of trial and in the face of what was a relatively strong prosecution case, I also discount your starting point by a further eight months, or just over 15 per cent, for the same reasons I have explained in relation to Mr Bhikoo. That brings your end sentence for all your charges also to three years, four months’ imprisonment.
[42] I do want to add, however, Mr McLellan, that your letter to the Court is insightful, and you are to be commended for making such significant life changes in response to your offending. I hope that this sorry episode enables you, and your family, to draw a thick and permanent line under your behaviour and lifestyle which led to your circumstances today.
Mr Misipati
[43] Turning to you, Mr Misipati, you were also a close associate of Mr Bhikoo. He would supply you with cocaine, and you would supply him with methamphetamine.
[44] Between 24 May and 24 July 2016, you supplied Mr Bhikoo with at least 24 grams of methamphetamine, over four separate transactions, for Mr Bhikoo’s
own personal use. For this, you pleaded guilty to four charges of supplying the class- A drug methamphetamine.
[45] On 10 June 2016, you received 28 grams of cocaine from Mr Bhikoo and kept it for the purposes of supplying others. And on 24 July 2016, you and Mr Bhikoo together supplied a further 28 grams of cocaine to an unknown person or persons.
[46] I consider the appropriate approach to setting the start point in your case is to take the four methamphetamine charges as the lead charges, and then uplift the start point to reflect your two cocaine charges.
[47] As you will have heard me say earlier, there is a guideline case for methamphetamine offending called Fatu. Given the quantity of methamphetamine you supplied in this case, you would be nearer the lower end of band 2 in Fatu, which gives a range of three to nine years’ imprisonment. In a case involving similar quantities of methamphetamine called Burton, a start point of four years and three months’ imprisonment was adopted.21 However, I accept Mr Merrick’s submission that the circumstances of that offending were more aggravating than yours. The Crown has referred me to a case called Reid, in which more methamphetamine was involved, namely 42.67 grams, and a start point of five years’ imprisonment was adopted.22 I note however, that the appeal court in that case said that that start point was at the “upper extremity” of the sentencing judge’s discretion. In a case called Brown, there were 12 charges involving the supply of 45 grams of methamphetamine.23 A starting point of five years’ imprisonment was also adopted. Finally, Mr Merrick has also referred me to a case called McPherson, where the Court of Appeal endorsed a minimum start point of four years’ in relation to 40 grams.24
[48] On the basis of all of those decisions, a somewhat lower start point would be appropriate in your case.
21 R v Burton HC Christchurch CRI-2007-009-16721, 13 March 2008.
22 R v Reid [2013] NZCA 89.
23 R v Brown [2016] NZHC 612.
24 R v McPherson [2009] NZCA 487.
[49] Turning to your role and the nature of your supply, it also seems somewhat less sophisticated than in the cases I have referred to. No commercial drug paraphernalia was found at your home or in your possession, and the charges relate to four instances of supply to Mr Bhikoo only. However, I do not consider your supply had no element of commerciality. The Department of Corrections report records your advice that your offending was triggered by a need to make money in order to clear your debts.
[50] Given the amounts involved, the limited instances of supply, the relatively low level of commerciality and your overall role, I consider a start point of three years’ imprisonment is appropriate.
[51] I turn now to consider what appropriate uplift should be given for your two cocaine charges. And, as you have heard Mr Merrick has submitted an uplift of six months. The cocaine totals 56 grams, with a purity of around 28 per cent. Taking into account those cases which I have already discussed, and in particular, Noon and Logan, but reflecting what appears to be lesser commerciality in your case, had the charges been considered in isolation, a start point of around two to two and a half years’ imprisonment would have been appropriate.
[52] Obviously adding two to two and a half years to the start point of three years for the methamphetamine charges would offend against the totality principle. I must also assess your overall culpability as against that of your co-offenders. I consider your overall culpability to be somewhat lower, given the evidence of a more sustained and commercial dealing operation carried out by Mr Bhikoo and Mr McLellan. On this basis, I propose to uplift your start point by a further nine months, to bring your overall start point for all your charges to three years, nine months’ imprisonment.
[53] The pre-sentence report advises that your offending was triggered by your desire to clear debts, and that you now regret your involvement. I do not doubt that. You also had a role in your community as a prominent and successful kickboxer, and have therefore suffered a real fall from grace, both in your community and within your family. A number of very supportive character references have also been provided. You have no relevant prior convictions. Although these matters are to your credit, like your co-offenders, I do not consider anything more than a relatively modest discount
can be given. I therefore also adopt an overall discount for your personal circumstances of three months, taking your sentence to three years, six months’ imprisonment.
[54] Applying the same discount for your guilty plea on the morning of the trial (just over 15 per cent, or seven months), this brings your end sentence to two years, eleven months’ imprisonment.
Mr Montgomery
[55] Mr Montgomery, you pleaded guilty to one charge of supplying 28 grams of cocaine to Mr Bhikoo and one charge of possessing 28 grams of cocaine (but not for supply). As with your co-defendants, you were also an associate of Mr Bhikoo. Around 20 August 2016, Mr Bhikoo was unable to source cocaine from his usual supplier, so he asked you if you could source some. You sourced 56 grams of cocaine, supplying 28 grams to Mr Bhikoo and keeping 28 grams for yourself.
[56] It does not appear from the facts that you were otherwise involved in the cocaine dealing network. Ultimately, and as you yourself accept, you were hopelessly addicted to drugs at that time, and engaged in the offending to feed your own habit. Looking at your supply offending in terms of Fatu, you would be at the bottom end of band two, which has a range of three to nine years’ imprisonment. As the Court noted in Fatu, however, those bands recognise supply of methamphetamine on a commercial scale, which I consider is missing in your case.
[57] You supplied less cocaine than your co-offender Mr Noon, who received a starting point of three years’ imprisonment (in respect of 70 grams). The amount you supplied was broadly similar to Mr Logan, for whom Downs J adopted a starting point of two years, nine months’ imprisonment. But Mr Logan’s offending also disclosed a stronger commercial element, given that he was found with items such as cash, scales and unused snap-lock bags.
[58] Taking into account that there is no evidence that the purity of the cocaine you supplied was around the 28 per cent level, the Crown suggests a starting point of three years’ imprisonment. With reference to a number of the cases to which I have already
referred, your counsel submits a starting point of nearer two years. Taking into account the lack of commerciality in your offending and that it involved a single instance of supply only at the request of Mr Bhikoo, I consider the Crown’s proposed start point to be too high. I adopt a starting point of two years, six months’ imprisonment.
[59] As to your personal matters, you also have no relevant prior convictions. Your offending had its genesis in your ongoing drug-abuse problems, rather than commercial motives. Your pre-sentence report makes for very encouraging reading in that regard. You show real insight into how your addiction affected your actions, and you are undertaking real, practical and difficult steps to address the matters by enrolling in a residential rehabilitative course at Higher Ground. You are now employed there as a mentor to new entrants, and you also volunteer as a supervisor at its West Auckland branch. You have been free of drugs for 13 months. Mr Montgomery, you are to be commended for dealing with your prior drug addiction in this way.
[60] I consider a somewhat greater discount for personal circumstances than your co-defendants is warranted, given the lack of commerciality to your offending and the very real and significant steps you are taking to address your drug habit. In those circumstances, I reduce the start point by a further five months, to bring your sentence to two years, one month’s imprisonment.
[61] As with your co-defendants, you receive a 15 per cent (or approximately a 4 month) discount to recognise your guilty plea that you made at the commencement of trial. That brings your sentence to 21 months’ imprisonment.
[62] This end sentence is within the jurisdictional threshold for home detention. Your counsel has also suggested community detention as a potential outcome.
[63] The pre-sentence report indicates you would be able to continue your rehabilitative programme at Higher Ground should home detention be imposed. With the approval of your probation officer, you would also be able to continue in your role as a mentor at Higher Ground and potentially your volunteering work.
[64] Your offending, involving as it does, class A drugs, was serious and with drug offending of this type, deterrence and denunciation are highly relevant considerations. But I must also keep in mind your need for rehabilitation,25 and the principle that I must impose the least restrictive outcome in all of the circumstances.26 You have already taken substantial ownership of your actions, and your long-term rehabilitation prospects are good. I consider it important that you are able to continue and complete the drug rehabilitation programmes in which you have enrolled. It would also be helpful for you to continue your role as a mentor to new entrants at the Higher Ground. Should you continue with these efforts, I consider it highly unlikely you will appear before the courts for this type of offending again.
[65] I am therefore of the view that 8 months’ home detention is an appropriate end sentence in your case.
Sentencing
[66]Would you all please now stand.
[67] Mr Bhikoo, on your charges of supplying, possession for supply, and offering to supply the class A drug cocaine, I sentence you to three years, four months’ imprisonment. On your charge of possessing the class A drug methamphetamine, I sentence you to three months’ imprisonment. Those sentences are to be served concurrently meaning that your total sentence is three years, four months’ imprisonment. There is also an order for the destruction of the drugs and drug paraphernalia found at your home, as well as forfeiture of the cash in the amount of
$10,200.00.
[68] Mr McLellan, on your charges of supplying and possessing for supply the class A drug cocaine, I sentence you to three years, four months’ imprisonment. There is also an order for the destruction of the drugs and drug paraphernalia found at your home, and forfeiture of the cash in the amount of $7,570.00.
25 Sentencing Act, s 7(1).
26 Sentencing Act, s 8(g).
[69] Mr Misipati, on your charges of supplying the class A drug methamphetamine, supplying the class A drug cocaine, and possessing the class A drug cocaine for supply, I sentence you to two years, eleven months’ imprisonment.
[70] Mr Montgomery, on your charges of supplying and possession of the class A drug cocaine, you are sentenced to eight months’ home detention, to be served at the address and on the conditions set out in the Electronic Monitoring Suitability Report provided to the Court and dated 14 December 2017.
[71]You may all now stand down.
Fitzgerald J
Postscript
These sentencing notes have been re-issued to correct calculation errors at [37] and
[38] above. The correct amounts of cocaine are now shown in those paragraphs. No change in Mr McLellan’s sentence or any other changes to these sentencing notes flow from the corrections.
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