R v Blance
[2018] NZHC 1518
•22 June 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CRI-2017-091-000902
[2018] NZHC 1518
THE QUEEN v
STEVEN ALBERT BLANCE
Counsel; E M Light for Crown E A Hall for Defendant Sentence:
22 June 2018
NOTES ON SENTENCE OF COLLINS J
Introduction
[1]Mr Blance, you appear for sentence on the following charges:
(1)one representative charge of supplying methamphetamine;1
(2)one representative charge of possession of methamphetamine for supply;2
(3)two charges of possession of methamphetamine for supply;3
1 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a); and Crimes Act 1961, s 66(2); maximum penalty life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); and Crimes Act 1961, s 66(2); maximum penalty life imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); and Crimes Act 1961, s 66(2); maximum penalty life imprisonment.
R v BLANCE [2018] NZHC 1518 [22 June 2018]
(4)two charges of conspiracy to supply methamphetamine;4
(5)one representative charge of unlawfully possessing a firearm;5
(6)one representative charge of unlawfully possessing ammunition;6
(7)one representative charge of unlawfully possessing a taser;7 and
(8)one charge of receiving stolen property.8
[2] You pleaded guilty to these charges after I gave you a sentence indication on 20 April 2018.9
[3]This afternoon I will:
(1)set out your offending;
(2)outline the appropriate starting point for that offending;
(3)explain the adjustments that will be made to that starting point; and
(4)give you your final sentence.
Offending
[4] The charges result from a police operation code-named “Operation Walnut” which commenced in November 2016. That investigation targeted the commercial supply of methamphetamine in the Wellington region.
[5] A surveillance device warrant allowed police to intercept private communications and carry out visual surveillance of two principal targets, you and
4 Misuse of Drugs Act 1975, s 6(2A)(a); maximum penalty 14 years’ imprisonment.
5 Arms Act 1983, s 45; and Crimes Act 1961, s 66(2); maximum penalty four years’ imprisonment.
6 Arms Act 1983, s 45; and Crimes Act 1961, s 66(2); maximum penalty three years’ imprisonment.
7 Arms Act 1983, s 50; and Crimes Act 1961, s 66(2); maximum penalty four years’ imprisonment.
8 Crimes Act 1961, ss 246 and 247; maximum penalty seven years’ imprisonment.
9 R v Blance [2018] NZHC 752.
Mr Berkland. You were purchasing kilogram quantities of methamphetamine from Auckland-based suppliers. You and Mr Berkland would then on-supply the methamphetamine to a number of associates in your distribution networks. Most of the offending took place at an address in Coates Street, Tawa. Associates would then on-supply the methamphetamine to others.
[6]You were in charge of this operation.
[7] The Coates Street address was heavily fortified. It included reinforced street doors, purpose made hiding cavities and a sophisticated CCTV system. There was also an electric beam sensor installed to alert you of any visitors on the car pad outside the address. You regularly operated a drone as part of your surveillance measures. You also had a network of informants in the wider Tawa area, to alert you to any police activity.
[8] During the period police were intercepting communications, over 700 people visited the Coates Street address. It is estimated that you and Mr Berkland supplied an average of approximately one kilogram of methamphetamine per week. Individual supplies ranged from less than a tenth of a gram to multiple units of 28 grams at a time. The methamphetamine was sold for between $500 and $600 per gram, or between $12,000 and $14,000 per 28 gram unit.
[9] The police investigation established that you and Mr Berkland purchased at least 15 kilograms of methamphetamine, worth at least $5,250,000.10 This amount was then supplied to your customers during the investigative period. That resulted in an estimated profit of more than $1,575,000. Police identified over 100 separate supplies of methamphetamine at the Coates Street address during the undercover phase of the operation.
[10] Some of your customers were drug dealers in their own right, and purchased methamphetamine for the purpose of on-supplying it. Interactions with these customers, who were your co-defendants form the basis of the conspiracy charges.
10 The Crown alleged that a further five kilograms of methamphetamine was involved, however, that relates to the period before the beginning of the investigation, and is not taken into account for the purposes of sentencing.
[11] The summary of facts provides details of specific instances of your offending, namely:
(1)on 3 March 2017, you came into possession of no less than two kilograms of methamphetamine after purchasing it from two persons who are still awaiting trial; and
(2)on 16 March 2017, you came into possession of no less than four kilograms of methamphetamine after purchasing it from the same two defendants.
[12] At the termination of the police investigation on 11 and 12 April 2017, search warrants were executed at several properties related to the drug operation. During those searches, police found the following:
(1)approximately three kilograms of methamphetamine;
(2)numerous firearms, including two pistols, two rifles and four shotguns (along with nine air rifles, nine air pistols and a home-made pen gun);
(3)ammunition of various calibres, including blank rounds adapted to fire projectiles;
(4)one taser; and
(5)a stolen Harley Davidson motorcycle (which gives rise to the receiving of stolen property charge).
Previous offending
[13] You have 37 previous convictions (one of them from the Youth Court), including ten related to drug offending, all of which only concerned possession, although seven of them related to methamphetamine. Your most recent drug offending took place in 2014. The remainder of your convictions mostly consist of violence offending, including a three-month prison sentence for possessing a pistol in 2004.
Starting point
Methamphetamine charges
[14] There is a presumption in favour of imprisonment for Class A drug dealing offending.11
[15] The Court of Appeal’s decision in R v Fatu is the leading sentencing guideline judgment for offending involving the supply of methamphetamine.12 Your offending fits within sentencing band four, which provides that the supply of very large commercial quantities of 500 grams or more warrants a starting point of between ten years’ and life imprisonment.13
[16] In setting the appropriate starting point, I have taken into account the following aggravating features of your offending:
(1)Premeditation and planning.14 A significant degree of premeditation and planning is inherent in your activities. The summary of facts indicates that you were running a thoroughly sophisticated operation, including surveillance and fortifications at the Coates Street address, the possession of weapons and a network of associates acting as informants and on-suppliers of methamphetamine.
(2)Number and frequency of supplies/sales.15 I have outlined your numerous instances of offending, uncovered throughout the investigation. You supplied methamphetamine on more than 100 separate occasions during the undercover phase of the operation alone. Your offending occurred during a period of over six months, with over 700 people having visited the Coates Street address during this time. This includes repeat customers, many of whom visited on several occasions a day.
11 Misuse of Drugs Act 1975, s 6(4)(a).
12 R v Fatu [2006] 2 NZLR 72 (CA).
13 At [34].
14 Sentencing Act 2002, s 9(i).
15 Sections 8(a) and (b); 9(d).
(3)Amount of methamphetamine.16 The Crown says that much more methamphetamine was involved, but for the purposes of your sentencing, I am proceeding on the basis of your being involved in dealing in 15 kilograms of methamphetamine. That amount sits at the extreme end of band four of R v Fatu, and appears to be one of the largest cases involving the supply of methamphetamine to date, at least in the Wellington area.
(4)Commercial gain.17 It is clear from the summary of facts that you sold and supplied methamphetamine for profit. Police estimate your profit at over $1,575,000 for the period of the investigation. Commercial gain is a relevant aggravating factor in your circumstances.
[17] In terms of your overall role, you are said to have been the mastermind behind this operation.
[18] To ensure consistency in sentencing,18 I note that three of the other co- defendants from Operation Walnut have been sentenced:
(1)Mr McGoldrick-Savaii was sentenced for methamphetamine offending involving accepted quantities of 119 grams. Mr McGoldrick-Savaii was considered a mid-level dealer and a starting point of five years and six months’ imprisonment was adopted.19
(2)Ms Waiariki was sentenced for methamphetamine offending involving
36.1 grams. She was considered a street level dealer and a starting point of four years’ imprisonment was adopted in her case.20
(3)Ms Svenson was sentenced for methamphetamine offending involving
15.45 grams. She was considered to be a middleperson between drug
16 Sentencing Act 2002, s 8(a) and (b), R v Fatu, above n 12.
17 R v Fatu, above n 12, at [32].
18 Sentencing Act 2002, s 8(e).
19 R v McGoldrick-Savaii [2018] NZHC 233.
20 R v Waiariki [2017] NZHC 2771.
dealers and the retail market and a starting point of three years’ imprisonment was adopted.21
[19] Counsel have not been able to find me comparable cases that did not involve the importing or manufacturing of methamphetamine. The closest cases that have been found involving supply are:
(1)Murray v R – Ms Rose was sentenced for methamphetamine offending involving a quantity which I understand to have been 8.44 kilograms over a period of four years, together with firearms offences. A starting point of 18 years’ imprisonment was adopted, and upheld on appeal.22
(2)R v Rodgers – Mr Rodgers was sentenced for methamphetamine offending involving 1.68 kilograms of pure methamphetamine, alongside cannabis, money laundering and dishonesty charges. He was the leader of the operation and a starting point of 17 years’ imprisonment was adopted with respect to the methamphetamine charges.23
(3)R v Zhou – Mr Zhou was sentenced for methamphetamine offending involving 3.77 kilograms. He was a major distributor who purchased from the “main linchpin” of the group and a starting point of 20 years’ imprisonment was adopted and upheld on appeal.24
(4)R v Huang – Mr Wei (a co-accused of Mr Zhou) was sentenced for methamphetamine offending involving a quantity of 4.3 kilograms. He was partially responsible for initiating a New Zealand operation for a drug lord in China and a starting point of 20 years’ imprisonment was adopted.25
21 R v Svenson [2017] NZDC 22165.
22 Murray v R [2014] NZCA 189.
23 R v Rodgers [2012] NZHC 2296.
24 R v Zhou [2009] NZCA 365.
25 R v Huang HC Auckland CRI-2006-019-8458, 8 May 2009.
[20] Ms Hall has previously referred me to two cases involving the importation of methamphetamine, which involved quantities closer to those involved in your case:
(1)R v Le’Ca – Mr Le’Ca was sentenced for importing 14.9 kilograms of methamphetamine, alongside charges of possession of methamphetamine and cocaine for supply. He played a senior importation role. Possession of methamphetamine was treated as the lead charge, with a starting point of 18 years’ imprisonment being adopted, with a two-year uplift for the importing charge.26
(2)R v Uputaua – Mr Uputaua (a co-accused of Mr Le’Ca) was sentenced for possessing 14.9 kilograms of methamphetamine for supply, alongside charges of attempting to import methamphetamine and possession of cocaine. Mr Uputaua was not a main player in the organisation. He was described as being a “catcher”. A starting point of 15 years’ imprisonment was adopted for the possession of methamphetamine charge in his case.27
[21] The Crown has previously submitted a starting point of 22 to 24 years’ imprisonment is appropriate in your case. Ms Hall has previously submitted a starting point of 15 years’ imprisonment is warranted.
[22]I consider that your offending is more similar to that of Ms Rose in Murray
and that of Mr Le’Ca.
[23] Methamphetamine is a dreadful drug, which causes significant harm to individuals and the community. The courts have consistently adopted starting points which reflect the social harm caused by methamphetamine. Consistent with this approach and with other authorities,28 I consider that a starting point of 18 years’ imprisonment is appropriate for the methamphetamine charges.
26 R v Le’Ca [2018] NZHC 274.
27 R v Uputaua [2017] NZHC 2320.
28 R v Le’Ca, above n 26; Murray v R, above n 22; R v Rodgers, above n 23; and R v Huang, above n 25.
Other charges
[24] The Crown submits that an uplift of one year is appropriate to account for the firearms and dishonesty charges, and have supported that submission by reference to the Rose case.29
[25] In Mills v R, the Court of Appeal explained that uplifts of 12 to 18 months are appropriate for firearms offending associated with drug dealing.30
[26] Ms Hall accepts that an uplift is appropriate. I am satisfied that an uplift of one year appropriately reflects society’s condemnation of the unlawful possession of such weapons, and such an uplift would not in my assessment offend the totality principle.
[27]This results in a total starting point of 19 years’ imprisonment.
Adjustments to the starting point
Personal aggravating factors
[28] The Crown does not seek an uplift for your previous convictions given the scale of your present offending.
Personal mitigating factors
[29] When providing you with my sentence indication I left room for a discount for personal mitigating factors.
[30] I have now had the benefit of Mr Brooking’s comprehensive report concerning your addiction to alcohol and illicit drugs. He notes you meet the criteria for addiction in DSM-5 although you are currently in remission. There is also other evidence of your poor health, including cognitive impairment. Your health issues by themselves do not impact on your ability to serve a prison sentence.
29 R v Rose [2013] NZHC 1380 at [43]-[46].
30 Mills v R [2016] NZCA 245 at [18].
[31] It has been said on occasions that personal mitigating factors count for little when sentencing serious drug offenders.31 Section 9 of the Sentencing Act 2002, however, requires the Court to take into account a number of personal mitigating factors when sentencing a defendant, even those convicted of serious drug offences. Factors that can be taken into account, include a defendant’s poor health, and their steps towards rehabilitation.
[32] The reports before me show that in addition to your poor health and cognitive difficulties, you are a candidate for rehabilitation and that you have taken the initial steps to embark upon rehabilitation. Mr Brooking’s report also provides some insight into your challenging childhood, your upbringing and the factors that have contributed to you becoming a major drug dealer.
[33] The challenge for me is in striking the right balance between giving you some credit for your personal mitigating factors and giving recognition to the gravity of your offending. In my assessment that is achieved by providing you with a small discount to reflect your personal mitigating factors. That discount will be six months.
[34] Ms Hall also urges me to give you credit for your approach to the forfeiture steps being taken by the Commissioner of Police. You contest the legitimacy of the Commissioner’s steps in relation to three vehicles, and there is an issue about another person’s interest in the Roberts Street property.
[35] I have given careful consideration as to whether or not it is possible for me to give you a discount to reflect your approach towards the forfeiture applications. Ms Hall’s submissions on this point, however, are difficult to reconcile with the Court of Appeal’s decision in Henderson32 and I find myself therefore not able to give you a further discount on account of this factor.
Guilty plea
[36] You did not enter a guilty plea at the earliest possible opportunity, with disclosure having been completed in October 2017. Before I provided my sentence
31 See, for example, R v Wang [2014] NZCA 409 at [28].
32 Henderson v R [2017] NZCA 605.
indication, Ms Hall submitted that you should be entitled to the full 25 per cent discount because of the enormous amount of material involved in this case, and because of your literacy issues. I accepted then that there was still three months to trial. Accordingly, I indicated that I would be prepared to give you a discount of four years from the starting point of 19 years, which is a discount of a little over 20 per cent, to reflect the challenges that have been encountered in getting to the point where you could enter a guilty plea.33 I adhered to that discount and take that into account in setting your final sentence.
Minimum period of imprisonment
[37] The Crown submits that a minimum period of imprisonment of 50 per cent is appropriate in your case, in order to denounce your conduct and to deter others from committing similar offending. The Court of Appeal has repeatedly stated that the criteria for imposing a minimum period of imprisonment will invariably be made out in cases of very serious drug offending.34
[38] I agree that the criteria for imposing a minimum period of imprisonment has been clearly established. I will therefore impose a minimum period of imprisonment of seven years and three months in order to denounce your conduct, protect the community from you and to hold you accountable for the harm caused by your offending.35
Result
[39]Mr Blance please stand.
[40] I am sentencing you to 14 years and six months’ imprisonment on the one representative charge of supplying methamphetamine, the one representative charge of possession of methamphetamine for supply and the two charges of possession of methamphetamine for supply. They all carry life imprisonment maximum sentences. I am sentencing you to 10 years’ imprisonment in relation to the two charges of
33 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
34 R v Zhou, above n 24, at [19]; R v Wong [2009] NZCA 332 at [21]; R v Aram [2007] NZCA 328 at [78]; and R v Anslow CA182/05, 18 November 2005 at [27].
35 Sentencing Act 2002, s 86(2)(a), (b) and (d).
conspiracy to supply methamphetamine and I am sentencing you to one year imprisonment in relation to the firearms offences and the one charge of receiving stolen property. All sentences are to be served concurrently.
[41] I am also imposing a minimum period of imprisonment of seven years and three months on the representative charge of supplying methamphetamine.
[42] There is one other matter that concerns the destruction orders sought by the Crown. I make orders for the destruction of all drug-related utensils and paraphernalia and items including the cell phones and CCTV systems used to facilitate the drug offending. I also order the destruction of all controlled drugs seized and any firearms and airguns and ammunition that cannot be returned to their rightful owners.
[43]You may now stand down.
D B Collins J
Solicitors:
Crown Solicitor, Wellington
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