R v C HC Auckland CRI 2006-004-25638

[2007] NZHC 2009

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR PARTICULARS IDENTIFYING PRISONER UNTIL FURTHER ORDER OF THE COURT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-25638

THE QUEEN

v

C

Prisoner

Hearing:         17 August 2007

Appearances: A R Burns and S McColgan for Crown

J Faleauto for Prisoner

Sentence:       17 August 2007

SENTENCING REMARKS OF LANG J

Solicitors:

Meredith Connell, Office of the Crown Solicitor, Auckland

Mr J Faleauto, Barrister, Auckland

R V C HC AK CRI 2006-004-25638  17 August 2007

[1]      Mr C you appear for sentence today having pleaded guilty in the District Court to 20 charges of supplying the Class A controlled drug methamphetamine.  In addition you have pleaded guilty to a further charge of being in possession of that drug for supply on 12 December 2006.  You have been committed to this Court for sentence.  As you are aware, the maximum penalty for each of the charges to which you have pleaded guilty is one of life imprisonment.

Background

[2]      It is necessary for me, first, to  briefly outline the circumstances of your offending.  Your arrest arose as a result of six interception warrants that the Police obtained  between July and November 2006.   These  interception warrants led  to intercepted communications that revealed a large scale and well compartmentalised drug distribution network.  The network was being run and staffed by Chinese and Vietnamese members of the community.   In addition, Police obtained security surveillance  film  footage showing  the  network in operation  in gaming  premises situated in Auckland.

[3]      You were identified as one of the members of the organisation through your participation in numerous telephone discussions that  were intercepted during  the period of the interception warrants.  During these discussions, which at some stages occurred on virtually a daily basis, you demonstrated that you were heavily involved in the distribution of methamphetamine in the Auckland area.  You spoke regularly by telephone with several other members of the organisation.   In particular, you spoke often with a person who is described as a “little brother” in the methamphetamine ring.   You were a wholesaler who purchased methamphetamine by the ounce from this person in response to requests made to you by other people.

[4]      During  the  telephone  conversations  you  and  your  associates  used  codes designed to disguise the true nature of what you were talking about.  You referred to methamphetamine as being fruit in the form of mangoes or oranges and later lollies. You also referred to it as being in cash, whereby $500 would be taken to denote a certain quantity of methamphetamine and $1,000 would be taken to denote another.

[5]      The prosecution estimates that during the period of surveillance you bought approximately  37  ounces  of  methamphetamine.     This  obviously  had  a  very significant value, estimated by the prosecution of being close to $1 million.

[6]      When the Police searched your property on 12 December 2006, they located three ounces  of  methamphetamine  there,  together  with  $29,000  in  cash.    Upon analysis the methamphetamine was found to be 78% pure, which is at the higher end of the scale in purity.  The inference to be drawn from this is that the other supplies of methamphetamine that occurred prior to 12 December 2006 also involved methamphetamine of that purity.

[7]      When the Police discussed their findings with you, you admitted that you owned the three ounces that had been found in your apartment.  You also accepted that it was you who was speaking in the intercepted telephone communications.  You also  admitted that  the telephone conversations  had led  to  numerous  supplies  of methamphetamine  being completed.    You also  confirmed  to  the  Police  that  the telephone conversations involved the use of code, and that that code was changed from time to time for security purposes.

Sentencing Act 2002

[8]      In sentencing you I need to bear in mind a number of principles to be found in  a  law  in  this  country called  the  Sentencing  Act  2002.    The  most  important principles for present purposes are the need to denounce and deter drug dealers who deal in large quantities of Class A drugs.   The sentence that  I impose must  be sufficient to deter not only  you  but  others from being  tempted to  commit  such offences in the future.  At the same time, however, I must endeavour to ensure that I impose a sentence that is consistent with sentences imposed in other casaes that are broadly similar.  I must also impose a sentence that allows for your rehabilitation and reintegration into the community, and I must impose a sentence that is the least restrictive outcome in the circumstances.

[9]      In your case, Mr C, that really  means that  I  must  impose a sentence of imprisonment that is the least that is appropriate to reflect the seriousness of your offending.

Starting point

[10]     I must now select a starting point in relation to the sentence to be imposed upon you in relation to your offending.  This is the sentence that would ordinarily be imposed before taking into account factors that make your situation more serious or less serious.

[11]     As both counsel acknowledge, I am bound in sentencing you by a decision of our Court of Appeal in R v Fatu (2005) 22 CRNZ 524.  That case is now accepted as the binding authority in relation to sentences to be imposed in relation to dealing in methamphetamine.  It is clear, and your counsel accepts, that your level of dealing falls well within band 4 in Fatu, which relates to the supply of more than 500 grams of methamphetamine.  The starting point for sentences within that band is a sentence of between 10 years and life imprisonment.

[12]     The issue to be determined in your case is the extent to which the starting point should be in excess of 10 years imprisonment.

[13]     In the particular circumstances of your case, it is difficult to find other cases that  are broadly comparable.    Many of the cases  involving Class  A  drugs  also involve the importation of drugs.  I have, however, been assisted by the decision of Justice Fogarty in R v Sui (HC CHCH, CRI 23005-009-13774, 5 May 2006).  In that case the offender was sentenced for conspiring to supply and  for  the supply of around 900 grams of methamphetamine.  He had been found in possession of several ounces of methamphetamine  and  $25,000  in cash.    Like  you,  the  offender  was clearly involved in commercial dealing at a significant level and for considerable profit.   Justice Fogarty adopted a starting point of 14 years imprisonment in that case.

[14]     I take your offending as being towards the very upper end of the scale of distribution.   You were clearly a wholesaler who was dealing with persons at the very top of the tree and then selling drugs to retailers.  Very large sums of cash must have been involved and it is clear that your involvement was purely for commercial purposes.

[15]     Taking into account those factors, as well as the nature and quantity of the drug that was involved, I consider that a starting point of 15 years imprisonment is appropriate.

Aggravating factors

[16]     Aggravating factors in relation to your offending are already contained within the starting point that I have selected.  You have no previous convictions and there are no other aggravating factors that would operate to increase the starting point that I have selected.

Mitigating factors

[17]     There are, however, a number of mitigating factors that both counsel accept that I may take into account in selecting an end sentence.  The first of these is that you appear for sentence at the age of 29 years and you have no previous convictions at all.  Secondly, you have pleaded guilty at a very early stage and thereby saved the State the cost of a trial.  In addition, you have accepted full responsibility for your offending and you frankly acknowledged your responsibility to the Police at the point at which you were arrested.

[18]     I have received extensive written submissions from the Crown, and also from your counsel, regarding the extent to which your sentence should  be reduced to reflect the unusual features of your case.  I do not propose to traverse those in detail here, but I conclude from them that it is important that I reduce your sentence by more than would generally be appropriate for somebody in your position.

[19]     For that reason the end sentence I select in respect of each of the charges of supplying methamphetamine is one of six years imprisonment.   On the charge of being in possession of methamphetamine on 12 December 1996, you are sentenced to four years imprisonment.   All of those sentences are to be served concurrently with each other.  This means that you will serve an expectant sentence of six years imprisonment.   Lest there be any misunderstanding regarding the matter, I record that the Crown accepts that the starting  point  and the end sentence that  I have selected are within the range that is properly available to me.

Minimum term of imprisonment

[20]     Given the fact that I have imposed a sentence of six years imprisonment, it is open to me to direct that you serve a minimum term of imprisonment.  The nature and circumstances of your offending are such that ordinarily I would have no hesitation in making such an order.  The order would be that you serve somewhere between one-half and two-thirds of your sentence.  Again, however, the factors that counsel have identified render the making of such an order inappropriate.  I consider that this is truly a case in which the Parole Board alone should have the ability to determine the point at which you are released.  In this regard I adopt the reasoning of Justice Williams in R v Phuan (HC AK, CRI 2006-004-13431, 19 July 2007).  For that reason I do not make any order that you serve a minimum term of imprisonment.

Suppression of name

[21]     The final issue that I need to deal with is that of suppression of name.  Your name has been suppressed to date and your counsel asks that that continue.  As I am sure you understand, an order for suppression of name is generally lifted at the point at which an offender is finally sentenced.  In your case, however, there are a number of factors to be taken into account.  To the foremost of these is the fact that your co- offenders are yet to stand trial.  Given the extent to which I have described the drug dealing network in these sentencing remarks I propose to continue your name suppression until such time as the  charges against  your  co-offenders have  been

finally determined.  I direct that the Crown is to file a memorandum at that point so that I can make an order lifting the name suppression in your case.

Sentence

[22]     The formal sentence of the Court is therefore as follows:

a)       on  each  of  the  charges  of  supplying  methamphetamine  you  are sentenced to six years imprisonment;

b)       on the charge of being in possession of methamphetamine for supply you are sentenced to four years imprisonment;

c)        all sentences are to be served concurrently;

d)the interim order for suppression of your name is to continue until such time as the charges against your co-offenders have been finally determined.

[23]     Finally,  I  make  a  direction  that  the  sum  of  cash  that  was  found  at  the premises on 12 December 2006 is forfeited to the Crown.

Lang J