R v Broughton

[2017] NZHC 523

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-088-3587 [2017] NZHC 523

THE QUEEN

v

BRONSON HARLEY BROUGHTON

Hearing:	22 March 2017 (heard at Auckland)
Appearances (viaAVL):	J Scott for Crown AB Fairley for Defendant
Sentence:	22 March 2017

SENTENCING NOTES OF TOOGOOD J

R v Broughton [2017] NZHC 523 [22 March 2017]

[1]      Bronson Harley Broughton: on 16 March 2017, you pleaded guilty to one charge of supplying a Class A controlled drug,1 being seven grams of methamphetamine; one charge of conspiracy to supply a Class A controlled drug,2 that was one gram of methamphetamine; and one charge of offering to supply a Class A controlled drug,3 that was one further gram of methamphetamine.

[2]      You now appear for sentence.

Factual Background

[3]      In July 2015, the Northland Organised Crime Unit of the New Zealand Police commenced  Operation  Atlas,  an  investigation  into  the  large  scale  manufacture, supply and  distribution  of the Class A controlled  drug methamphetamine.   The operation focused on the members of the Headhunters Motor Cycle Gang and their associates who were identified as being responsible for the manufacture and distribution of methamphetamine in the region.

[4]      Although you are said to have been a patched member of a gang, you did not generally operate within the syndicate.   Information from intercepted phone conversations and text messages, however, identified you as a supplier of methamphetamine.   You  are  said  to  have  commanded  and  supplied  street  level dealers who operated beneath you.

[5]      On   3 November   2015   at   Whangarei,   you   supplied   seven   grams   of methamphetamine to an associate.  On 9 November 2015 you conspired or agreed with an unknown person to supply a third party with one gram of methamphetamine but the deal did not proceed because the drugs were underweight.   The offer to supply methamphetamine occurred on 10 November 2015 when you sent a text

message to an associate offering to supply one gram of the drug. The total amount of

1      Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a); maximum penalty life imprisonment.

2      Section 6(2A)(a); maximum penalty 14 years’ imprisonment.

3      Sections 6(1)(c) and 6(2)(a); maximum penalty life imprisonment

methamphetamine involved, therefore, was nine grams, of which there is proof that seven grams were actually supplied.

Personal circumstances

[6]      You have been in custody since 21 December 2015.   Because of your understanding of the likely sentence you will receive, you have waived your right to a pre-sentence report.  I do not know a great deal about your personal background, therefore, except that you are 27 years old and you have two daughters and a loving and supportive partner.  I have received a number of references, not only from family members but others also including people who have known you since school days and who have worked with you.  They speak positively about your qualities.  You have  previous  convictions  but  none  of  them  involve  drug  offending.    I  accept Mr Fairley’s submission that I should ignore them for sentencing purposes.

Sentencing purposes and principles

[7]      The relevant sentencing purposes are to hold you accountable for harm done to the community by this type of offending,4  and it is serious harm; to promote in you a sense of responsibility for, and acknowledgement of, that harm;5 to denounce your conduct and deter you, and others, from drug offending;6 to protect the community;7 and to promote your rehabilitation and reintegration.8

[8]      The gravity and culpability, that is the blameworthiness of the offending,9 the seriousness of the type of offence,10  and consistency with appropriate sentencing

levels,11 are relevant principles I must apply.

4      Sentencing Act 2002, s 7(1)(a)

5      Section 7(1)(b).

6      Section 7(1)(e) and (f).

7      Section 7(1)(g).

8      Section 7(1)(h).

9      Section 8(a).

10     Section 8(b).

11     Section 8(c).

[9]      For the Crown, it is accepted that the amount of methamphetamine and the nature of the offending puts the appropriate sentence starting point within the lower part of Band Two in the guideline judgment.12   Whether I treat the supply charge as the lead offence and uplift for the other offending, or look at the amount of methamphetamine and the transactions as a whole, I consider a starting point of three years' imprisonment to be an adequate reflection of the nature of the offending and

your culpability.  You were not charged with belonging to a criminal organisation, nor with being involved in the manufacturing.  You were a relatively minor player in the overall scheme of the broader operation.

Personal aggravating and mitigating factors

[10]     You have not previously received a sentence of imprisonment.  This suggests that the term of imprisonment I impose need not be lengthy in order to achieve the purposes of sentencing I have mentioned, particularly deterrence and denunciation.

[11]   While you have been on what has been a lengthy remand, you have demonstrated significant efforts to learn from your mistakes and you are remorseful and apologetic about your offending. You have attended rehabilitation and education programmes, which is commendable.  Moreover, you appear to have a good support network to offer guidance and encouragement upon your release.  I have read, and been impressed by, your certificates and references.

[12]     I understand why young men with your background and in your position join gangs.  But as so often happens that choice leads to crime and prison.  It seems to me you should stay close to your whanau and away from those who got you into this criminal activity.  As Mr Fairley may have told you, personal circumstances carry only limited weight in sentencing for this type of offending, but I am going to make an exception for you, Mr Broughton.  To acknowledge what seems to be a change in your approach to life and to encourage you to continue on a path which will see you

making better choices about how you live your life, I discount your sentence by three

12     R v Fatu [2006] 2 NZLR 72 (CA).

months.  You should take the good options available to you, Mr Broughton.  I can assure you that if you drift back to your former associates and your former lifestyle, and that brings you back to Court in the future, you will not receive any leniency of this kind and your family will suffer the consequences.   I assume you understand that.

Discount for guilty pleas

[13]     I also take your positive attitude and rehabilitation efforts into account in agreeing with counsel that, although some time has passed since your arrest you should receive a further discount of eight months, which is just under the maximum available discount of 25 per cent for your guilty pleas.13   Those discounts reduce the sentence from the starting point to one of two years and one month imprisonment.

Sentences

[14]     Would you please stand, Mr Broughton

[15]     On the charge of supplying methamphetamine, I sentence you to a term of imprisonment for two years and one month.

[16]     On   each   of   the   charges   of   conspiring   and   offering   to    supply

methamphetamine, I sentence you to 18 months’ imprisonment.

[17]     These sentences shall be served concurrently, that is at the same time. The effective total end sentence, therefore, is one of two years and one month’s imprisonment.

[18]     Mr Fairley will explain to you the implications for your release from prison. I direct that these sentencing notes be sent to the Parole Board.

13     R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.

[19]     You are discharged on the two remaining charges on which the Crown offers no evidence.

[20]     I direct that the cash seized by the Police shall be forfeited to the Crown, apart from the sum of $1,600.

[21]     Please stand down.

...................................................

Toogood J