R v Bonnar
[2015] NZHC 127
•10 February 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-9711 [2015] NZHC 127
THE QUEEN
v
GAVIN LANCE BONNAR
Hearing: 10 February 2015 Counsel:
D J Dufty for the Crown
S Tait for the DefendantSentence:
10 February 2015
SENTENCING NOTES OF MUIR J
Solicitors: Crown Solicitor, Auckland
Counsel: S Tait, Manukau, Auckland
R v BONNAR [2015] NZHC 127 [10 February 2015]
Introduction
[1] Mr Bonnar, you appear for sentence having pleaded guilty to one charge of supplying the Class A controlled drug methamphetamine, for which the maximum penalty is life imprisonment. You have also pleaded guilty to three charges of supplying a precursor material for the manufacture of methamphetamine (two for the supply of iodine and one for supply of hypophosphorus), for which the maximum penalty is seven years’ imprisonment. Additionally there is one charge of receiving stolen property which exceeds $1,000 in value, the maximum penalty for which is also seven years’ imprisonment; and one charge of forging documents, which has a maximum penalty of 10 years’ imprisonment. These very lengthy potential prison terms reflect society’s condemnation of the offences committed by you. Particularly the drugs related charges do have consequences in untold human misery and despair. You have indicated by your actions a willingness to profit from that misery. That is a matter of which society takes a very adverse view.
Facts
[2] In July and August 2013 the Police carried out an operation investigating the activities of the Manga Kaha Auckland chapter of the Black Power gang. The investigation involved interception and analysis of telecommunications sent and received by members of the gang and their associates, including you. The events that led to the above charges are set out chronologically.
Supplying methamphetamine
[3] On a large number of occasions between 1 June and 28 August 2013, Mr Bonnar, you supplied methamphetamine in amounts varying from 0.1 grams to
1 gram. In total, you supplied 10 grams of the drug.
Receiving stolen property and forging documents (vehicle licence plates)
[4] On 23 July 2013 there was a burglary where a large amount of property was stolen, including electronics, three model cars, two vehicles from the garage, and various tools. One vehicle, a 1985 replica Holden Commodore, was valued at
$20,000. The other vehicle, a 1977 Holden Torana, was valued at approximately
$30,000.
[5] Later the same day and in the days following the burglary you tried to sell the tools. On 30 July 2013 you sold a drop saw for $150 to a store in Panmure. The police recovered that item.
[6] On 30 July 2013 police identified that you communicated with an associate about the need to get fake registration plates made for the stolen vehicles. On
31 July 2013 you offered to sell the Holden Commodore motor vehicle to an associate. The same day you asked your associate, Mr Ward, if he knew anyone who would like to buy the car and that you would accept five grams of methamphetamine as payment. You then sent a text message to Mr Ward instructing him to make registration plates for the Holden Commodore vehicle and provided a number that was almost identical to a similar year Holden Commodore. Later that day the police intercepted a phone call between yourself and your co-defendant, Mr Tua, who informed you there was a buyer for that vehicle.
[7] The next day, 1 August 2013, Mr Bonnar, you sold the vehicle to Mr Wilcox. You sold the vehicle with the false plates attached. Police observed the vehicle leave your address and followed it to a petrol station, where they approached and spoke to the driver. The passenger in the vehicle was another of your co-defendants, Mr McFarlane, who immediately phoned you and informed you of Mr Wilcox’s arrest.
[8] On 8 August 2013 police intercepted a phone conversation between you and Mr Tua, when you discussed having a buyer for the second vehicle, the Holden Torana. Later that day in the course of executing a search warrant the Police discovered that vehicle and other items taken in the burglary at an address in Manurewa. The vehicle had its licence plates removed. At a later date, in a conversation with you, Mr Ward admitted making the false plates.
Supplying precursor material (iodine) – first charge
[9] On 11 August 2013 police intercepted communications between yourself and Mr McFarlane. Mr McFarlane arranged to supply you with iodine, a precursor material used to manufacture methamphetamine. Mr Bonnar, you then drove to Waihi and uplifted the iodine from an address, as instructed by Mr McFarlane. That evening you were stopped by the police while driving. A 200 gram container of iodine was concealed in the boot of the vehicle. When you were later interviewed by the Police, you denied any knowledge of the iodine. After you were released you contacted an associate, Mr Shierney, and told him you were unable to deliver the iodine.
Supplying precursor material (iodine) – second charge
[10] A week later on 18 August 2013 police intercepted further communications between yourself and Mr McFarlane. Mr McFarlane told you he had a kilogram of iodine in Waihi which he would bring to Auckland if you arranged a buyer. You contacted Mr Shierney and arranged for him to buy the iodine for $4,500. You agreed to meet at the Grafton Oaks Hotel in Auckland City. Police observed Mr McFarlane and Mr Shierney leave the hotel following the meeting and the completion of that deal.
Supplying precursor material (hypophosphorus acid) – third charge
[11] On 30 August 2013 the Police intercepted communications between you and an associate, Mr Hyde. In that conversation you informed Mr Hyde that you had more “water” for him, which is a common code name for hypophosphorus acid. You arranged to meet later that day. That evening the Police observed Mr Hyde leaving an ATM and saw you and he exchange money for that precursor material.
Sentencing Act 2002
[12] In any case involving serious drug and property offending issues of deterrence, denunciation and the need to hold the offender accountable are to the forefront. As both counsel responsibly recognise, the only possible sentence in your case is one of imprisonment. The real issue is to ensure that the end sentence
imposed on you is broadly consistent with those imposed in other similar cases, and that the totality principles you have heard your counsel refer to are properly observed.
Starting point
[13] An aggravating feature of the offending is that it was gang related. Although you have not been a patched member of Black Power since 1997, you clearly maintained an involvement with that organisation as evidenced by the fact that your offending was uncovered in the course of an investigation into the activities of the Auckland chapter of Black Power.
[14] Another aggravating feature is the commerciality of the offending. In so far as the methamphetamine charge is concerned, that commerciality is effectively recognised by its band placement. In relation to the precursor and property offences, it is clear that you were involved in a substantial commercial enterprise for personal gain.
[15] I am unable to identify any mitigating factors relating to the offending itself.
[16] I agree with counsel that it is helpful to split your offending into drug related offending and property offending. Although the property offending is undoubtedly related to the drug offending, I propose to select an overall starting point in relation to your drug offending and then to undertake the same exercise in relation to the property offending. I will then apply totality principles in order to ensure that the end sentence imposed on you properly reflects your overall culpability in relation to both sets of offending.
The drug offending
[17] The Crown submits that the lead charge is that of supplying methamphetamine, and suggests a starting point of three and half to four years imprisonment on that charge. Your counsel submits that a starting point between three years three months and three years six months should be adopted.
[18] The Crown contends that an uplift of 12 months should be applied to reflect the three charges of supplying the precursor materials. Your counsel submits that no uplift is required, because the gravity of that offending is broadly subsumed by that relating to the charge of supplying methamphetamine.
[19] I do not agree with your counsel’s submission because the two sets of charges have distinct factual bases. The charges of supplying precursor materials are entirely separate from the charge relating to the supply of methamphetamine. You derived separate profits from those activities, and it is appropriate that an uplift be applied in respect of them.
[20] Your offending involved the sale of more than 10 grams of methamphetamine. As a result, it falls within Band 2 identified in R v Fatu,1 which requires a starting point of between three and nine years imprisonment. I see you as a person fully involved in the sale of drugs and drug-related products. Your offending cannot be viewed as being at the lower end of Band 2. The cases referred to me by counsel suggest that the charge of supplying methamphetamine would attract a starting point of between three and four years imprisonment.2 The charges of supplying precursor materials would warrant a starting point of around two and a half years imprisonment.3 Having regard to totality principles, I consider that an end sentence of four years nine months imprisonment is warranted on all those charges.
The receiving and forgery charges
[21] The receiving charges relate to the receipt of the Holden Commodore and Holden Torana motor vehicles and the drop saw that you sold. As counsel acknowledge, there is no tariff case for receiving property. Nevertheless the cases
that counsel have referred to me demonstrate that a charge of receiving stolen
1 R v Fatu [2006] 2 NZLR 72 (CA); (2005) 22 CRNZ 410.
2 R v Tahana HC Rotorua CRI-2007-63-1030, 21 November 2008; R v Wright HC Auckland CRI-
2008-092-2364, 30 September 2008; R v Kingi HC Whangarei CRI-2010-088-2612, 27 July
2011; R v Bevin HC New Plymouth CRI-2009-443-24, 6 November 2011; R v Savage HC Nelson CRI-2005-042-2018, 26 May 2008; R v Malu HC Auckland CRI-2010-055-1742, 29
November 2011; R v Mikhail HC Wellington CRI-2006-085-5929, 7 July 2008; R v Lawrence &
others HC Auckland CRI-2009-057-001462, 30 October 2009.
3 R v Malu HC Auckland CRI-2010-055-1742, 29 November 2011; R v Rayner HC Blenheim
CRI-2010-006-983, 15 November 2010; R v Reeves HC Auckland CRI-2004-044-6987, 18
November 2005; R v McFarlane [2014] NZHC 2203.
vehicles having broadly the same value as the vehicles that you received would generally attract a starting point in the vicinity of 18 months to two years six months imprisonment.4
[22] It is noteworthy that the Judge who sentenced Mr Tua, one of your co- offenders in relation to the Holden Torana motor vehicle, took a starting point of
18 months imprisonment. He made it clear that he considered this was a generous starting point, and that a starting point of two years imprisonment would be more appropriate.
[23] Having regard to the fact that you received two motor vehicles and also the drop saw, I consider that a starting point of two years and three months imprisonment is appropriate on the receiving charges. However any uplift in relation to the forgery charge should be modest. Although forgery is treated seriously by the Courts even when there is no financial loss,5 the Crown accepts this offending was at the lower end of the spectrum. I would apply an uplift of six months to reflect the fact that you arranged for false license plates to be made for the vehicle.
Totality
[24] It is now necessary for me to stand back and determine whether the end sentence of seven years six months imprisonment (which is where I get to by combining the drugs and property offences) properly reflects your overall culpability in relation to all charges, or whether it is disproportionate to your overall culpability. Having undertaken that exercise, I consider that an adjustment is required. I consider, however, that the deduction should be relatively modest. I therefore adopt an overall starting point of six years six months imprisonment before taking into account aggravating and mitigating factors personal to you. A sentence of that length would, in my view, adequately reflect your overall culpability in relation to all
of the offending.
4 R v Tua [2014] NZHC 3049; R v Aldersley CA 158/05, 17 October 2005; Sinclair v Police [2014] NZHC 1332; R v Shepherd HC Auckland CRI-2006-004-10407, 10 December 2008; Irvine v Police HC Christchurch CRI-2009-409-89, 8 July 2009; Cribb v Police HC Hamilton CRI-2010-419-46, 8 July 2010.
5 R v Merioti CA392/99, 29 October 1999.
Aggravating factors personal to you
[25] It is now necessary for me to consider the extent to which the end starting point I have adopted (which is six years six months) should be increased to reflect aggravating factors which are personal to you. You have a large number of previous convictions, including convictions for drug related offending and dishonesty offences. That persuades me that a modest uplift should be applied to reflect the fact that you have failed to learn your lesson from previous sentences imposed on you. Your present offending is made more serious by the fact that you have failed to take heed of past sanctions.
[26] I consider an uplift of three months imprisonment would be warranted in relation to the drugs charges, and the same uplift is required in respect of the property offences. That produces a sentence of seven years imprisonment before taking into account mitigating factors personal to you.
Mitigating factors
[27] In any case involving serious drug offending personal factors cannot be given the recognition that they might in other areas of the criminal law. You are 45 years of age and as I have already recorded, you have a lengthy criminal history. Although you say that you are now prepared to undertake treatment for the underlying causes of your offending, the extent and duration of that offending does not encourage me that you have a genuine commitment to change. I hope that I am incorrect in that assessment. I consider the only factor in respect of which I can give you a discount is that relating to your guilty pleas.
[28] Your counsel proposes a maximum discount of 25 per cent permitted under the principles enunciated in Hessell v R.6 The Crown considers a discount of up to that amount is appropriate. In my assessment a 25 per cent discount appears generous given that your guilty pleas were not entered until relatively late in the piece and in the context of a plea bargain. In addition, it is likely that you would inevitably have been convicted in respect of at least some of the charges that you
faced.
6 Hessell v R [2010] NZSC 135 at [70].
[29] However allowing a reduction in that approximate amount produces an effective end sentence of five years three months imprisonment.
Sentence
[30] Although it is more a matter of form than substance, I propose to impose the end sentence I have selected on the lead charge which I take to be that of supplying methamphetamine. I will then impose concurrent sentences on all the remaining charges. This also reflects the interconnected nature of the charges. In practical terms this will make no difference to you, because you will end up serving exactly the same sentence.
[31] Mr Bonnar, on the charge of supplying methamphetamine you are sentenced to five years and three months imprisonment. On the charges of supplying precursor materials you are sentenced to concurrent sentences of two years imprisonment. On each of the receiving charges you are sentenced to concurrent sentences of two years imprisonment. On the forgery charge, you are sentenced to a concurrent sentence of six months imprisonment.
[32] Stand down please Mr Bonnar.
Muir J