R v Byford HC Palmerston North CRI-2006-054-557
[2007] NZHC 1938
•29 June 2007
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2006-054-557
THE QUEEN
v
TERRY KAWHIAITI BYFORD ANGELA JONNA NGATAKI
Hearing: 29 June 2007
Appearances: P Kaye for the prisoner Byford
P Coles for the prisoner Ngataki
B D Vanderkolk for the Crown
Judgment: 29 June 2007
SENTENCE OF MACKENZIE J
Terry Kawhiaiti Byford and Angela Jonna Ngataki,
[1] You appear for sentence on one count of possession of methamphetamine for supply, five counts of unlawful possession of a firearm and one count of unlawful possession of ammunition. You were found guilty at trial on 14 May 2007.
[2] The facts are that on 30 January 2006 you drove from Auckland to Palmerston North, and in the evening checked into the Pavilion Motel. You took three units, for yourselves and for a number of associates. Police were alerted to your arrival and surveillance of the motel was conducted. In the early hours of
31 January, police stopped a vehicle which you, Mr Byford, were driving, in which
you and several associates were travelling. A search was conducted and a small
R V BYFORD & NGATAKI HC PMN CRI-2006-054-557 29 June 2007
quantity of methamphetamine, 270 milligrams, was found in your wallet, but that quantity does not form part of the charge against you. You also had some $3,400 in cash. Police also conducted, through the armed offenders’ squad, a raid on the motel. You, Ms Ngataki, were apprehended in the course of that, along with a number of associates. You were carrying a backpack when apprehended, and that contained two separate quantities of methamphetamine, four bags contained in a spectacle-type case, being one bag containing 10.7 grams and three point bags totalling 2.934 grams, and three bags in another small case, totalling 624 milligrams. The bag also contained a number of items consistent with dealing in methamphetamine, and some $8,000 in notes. The bag did not contain any personal items which would connect you with the bag. The motel units were also searched. Other items consistent with dealing in methamphetamine were located, and some items of property, such as a laptop computer, and cigarettes, from which the Crown submitted that the inference should be drawn that those items were exchanged for methamphetamine. There was no direct evidence to establish that, and I do not attribute any weight to that possibility in sentencing you. No methamphetamine was discovered in the police search, but after the units had been released back to the motel operators three ounce bags containing a total of 82.9 grams of methamphetamine were located in a bed in the back bedroom of the unit which you both had occupied. The total quantity of methamphetamine involved is therefore some 97 grams, which is assessed as having an approximate street value of $97,000. In the course of the armed offenders’ operation, police also found, in the grounds of the motel, a sports bag containing five firearms, being a Mossberg shotgun, a sawn- off Remington shotgun, a US Carbine M12 rifle, an ER Amantino double-barrel shotgun, and a Jage AP 15 .22 semi-automatic rifle. Three of those firearms were loaded, and there was also in the bag ammunition for some of those weapons. You each denied possession of the drugs and the firearms. You were found guilty on all counts by the jury after a two-week trial.
[3] It is necessary to assess your separate roles in this offending. Mr Byford, I consider that you are the principal offender in this offending. The evidence at trial leads me to that view of the matter, and you through your counsel have maintained that Ms Ngataki had no significant role in the activities that were taking place and on the basis of the jury’s verdict you accept responsibility. I consider that, in the light
of the evidence and of the verdict, you must bear responsibility for possession of the methamphetamine, both in the two locations in the backpack and that discovered in the back bedroom. You must also bear principal responsibility for the firearms and ammunition.
[4] Ms Ngataki, you must be assessed as being in knowing possession of the methamphetamine contained in the backpack. Counsel for the Crown acknowledged in closing that you may not have known about the three ounce bags of methamphetamine in the motel room, and I approach the matter on that basis. You too are to be assessed as being in possession of the firearms and ammunition. Counsel for the Crown submits that you were integral to the drug operation. Your counsel submits that you are to be assessed as being aware of Mr Byford’s activities generally and willing to take possession of items including drugs and firearms to try to remove evidence from the motel unit, but unaware of the full scale of Mr Byford’s offending. Mr Byford through his counsel supports that view of your involvement. I approach the matter on the basis that your participation in the events at the motel, your knowledge of the drug dealing activities which is implicit in the incriminating material which you sought to remove, and your knowledge of the presence of a considerable quantity of firearms, are such that you are to be assessed as actively complicit in this serious offending to a degree which involves significant culpability on your part.
[5] As to the purposes of sentencing, the appropriate purposes are identified by counsel for the Crown as holding you accountable for the harm done by the offending, promoting in you a sense of responsibility for and acknowledgement of that harm, denouncing your conduct, deterring you or others from similar offending and the protection of the community from you. All of those are relevant. In relation to the harm, and the protection of the community, those who deal in this pernicious drug contribute significantly to the enormous damage which its use causes in our community, in so many ways. Denunciation of such activities must be a significant factor in sentencing, and deterrence is an important objective.
[6] I come then to the sentence to be imposed. I approach the matter in the case of each of you by having regard to the totality of your offending. The firearms
offending was directly connected with the drug offending, although it is different in kind. I must consider whether to impose concurrent or cumulative sentences. The individual sentences must reflect the seriousness of each offence, and if cumulative sentences are imposed they must not result in a total which is out of proportion to the gravity of the offending. I consider that in your case the better way to approach the task is to adopt a concurrent approach, and fix a sentence on the lead charge which reflects the totality of your offending. I take as the lead charge that of possession of methamphetamine for supply and take into account, in assessing the appropriate starting point for that offending, the additional criminality involved in the firearms charges.
[7] In the case of each of you, the starting point for your offending must be assessed on the basis directed by the Court of Appeal in R v Fatu [2006] 2 NZLR 72. Your offending falls squarely within band 2. That involves supply, including possession for supply, of commercial quantities, being defined as between 5 and 250 grams. Starting points in the range of three to nine years are indicated. Counsel for the Crown submits that the offending falls at the higher end of band 2, particularly when regard is had to the arsenal of weapons in your possession. The Crown submits that this is a highly organised and significant commercial drug dealing operation, and that the irresistible inference is that you had travelled from Auckland to distribute methamphetamine in the Manawatu region. Taking the drug offending itself into account, and having regard to the total quantity of 97 grams and without at this stage reflecting in that the additional criminality involved in the possession of weapons, I assess the drug offending itself as requiring a starting point of five years. I include in that starting point all the aggravating features of the drug offending itself except the possession of the firearms. That starting point will require adjustment to reflect your respective roles in the total drug offending when I come to consider you individually.
[8] To that starting point, I must add a term which will reflect the additional criminality involved in the firearms charges. The presence of firearms in connection with drug offending is a serious aggravating factor. This was a considerable arsenal of weapons, some of which were loaded and potentially ready for use. They were in your possession in a motel complex, where other people could be expected to be.
They had been taken with you, which suggests that there is a direct connection between the drug offending and the firearms. That adds significantly to the criminality involved, and justifies an uplift to the starting point for the drug offending of two years, giving a total starting point of seven years to reflect the totality of the offending.
[9] Next, I must make adjustments to that starting point to reflect any personal factors relating to you. I include within that an assessment of your different roles, and your different degrees of participation in the offending.
[10] I deal first with you, Mr Byford. You are to be assessed as the principal offender, and no discount to the starting point to reflect a lesser degree of involvement in the offending is called for. As to your personal circumstances, you are 40 years of age. You have one previous conviction, for receiving stolen property, in 1991. I accept your counsel’s submissions that you should be sentenced as a first offender for this offending. You are assessed by the probation officer as having a harmful pattern of drug use. The material which has been made available on your behalf, including the letter from you, confirms that you are a victim of your dependency on this drug. References which you have put before me, and which I have considered, speak highly of you and show that you are a person who, if you can address this problem, has considerable promise. You have expressed a determination to free yourself of your dependency, and I can but express the hope that the shock of your conviction and imprisonment will serve as a catalyst to cause you to take stock of the position and to address your position. You are assessed as at low risk of re-offending. Your pre-sentence report assesses you as suitable for a community-based sentence, and as being motivated to attend rehabilitation programmes such as drug and criminogenic programmes. As your counsel properly acknowledges, the prospect of a community-based sentence is unrealistic, having regard to the seriousness of this offending, and particularly in the light of s 6(4) of the Misuse of Drugs Act. However, I take the probation officer’s assessment into account, and your own profession of determination to deal with the problem, as indicating that a rehabilitative aspect to your sentence is appropriate.
[11] There are no personal aggravating factors. I do consider that some allowance ought explicitly to be made for the fact that you are to be treated as a first offender, and for the other mitigating personal circumstances which I have mentioned. In all the circumstances, I consider that a reduction of six months to the starting point that I have identified is appropriate. That leaves a final sentence of six and a half years.
[12] Ms Ngataki, I have indicated that I accept the submission that you are to be treated as having a lesser role. Counsel for the Crown submits that your culpability is entirely the same as that of Mr Byford in all respects. I do not take that view of the matter. As your counsel has pointed out, the role played by the offender is recognised in Fatu as a relevant factor in determining where an offender fits within any particular band. I apply that also to the firearms offending. I consider that, on the view which I have taken on your role in the matter, a lower starting point, to reflect the totality of the offending, is appropriate. That lower starting point must also reflect the Crown’s concession that you may not have been aware of the three ounce bags of methamphetamine in the bedroom. I consider that an appropriate starting point in your case is five years.
[13] So far as your personal circumstances are concerned, you are 24 years old and have a number of previous convictions, including a series of convictions in 2005 for possession of drugs, including methamphetamine, and possession of a knife in a public place. For those you were sentenced to a term of nine months’ supervision, which was still in force at the time of this offending. You are assessed as having only a moderate level of motivation to truly address your offending, factors in which have been your drug use and your choice of associates. The probation report, as your counsel has said, makes sad reading. You are a person who had considerable promise. You have been unable to fulfil that promise, for reasons which are not all or maybe even primarily of your own making. Your mother has on your behalf written a letter to me in which she acknowledges faults in the upbringing which you received, and that is clearly a factor. I take all of those factors into account. I should say that I had been minded to impose an uplift to the starting point of five years which I had identified, to reflect the serious aggravating factor that this offending occurred while you were serving a sentence of supervision for similar, although less serious, offending. I am, however, persuaded by the other personal circumstances to
which I have referred that I should treat those as balancing that and on balance make no increase to the starting point which I had proposed. That leads, therefore, to an end sentence of five years.
[14] Accordingly, the sentences which I impose on each of you are as follows. Mr Byford, on the charge of possession of methamphetamine for supply, you are sentenced to imprisonment for a term of six and a half years. On each of the remaining counts you are sentenced to imprisonment for two years. All of those terms are to be served concurrently.
[15] Ms Ngataki, on the charge of possession of methamphetamine for supply, you are sentenced to imprisonment for a term of five years. On each of the other counts you are sentenced to imprisonment for a term of 18 months. All of those terms are also to be served concurrently.
[16] An order is also sought for the forfeiture of the cash found. I may make such an order if I am satisfied that the money was received in the course of or consequent upon the commission of the offence of which you have been convicted, or was in your possession for the purpose of facilitating the commission of an offence involving supply. The offence involved in this case is possession for supply; so the question must be whether it was in your possession for the purpose of facilitating the commission of some other offence involving supply. I do not consider that the evidence is sufficient to establish that nexus. Accordingly, I decline to make an order for forfeiture. I have, in considering this aspect, given consideration, as I am required to do by s 6(4A) of the Misuse of Drugs Act, to whether I should impose a fine, as well as imprisonment. I have formed the view that I should not do so. As the Court of Appeal recognised in R v Wilkins (CA 67/91, 21 June 1991), the imposition of a fine will generally make rehabilitation on release more difficult. Section 39 of the Misuse of Drugs Amendment Act 1978 makes it clear that the possibility of profits from previous dealings may be relevant to the issue of fine. As neither of you has any previous history of drug dealing, I consider it inappropriate to impose a fine.
[17] An order for destruction of the drugs and firearms is also sought. That order is appropriate, and I so order.
“A D MacKenzie J”
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