R v Caffery
[2025] NZHC 203
•14 February 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-009-007536
[2025] NZHC 203
THE KING v
CALEB ANTHONY PASIONE CAFFERY
Hearing: 14 February 2025 Appearances:
C R Stuart for Crown
D J Matthews for Defendant
Sentencing Notes:
14 February 2025
SENTENCING NOTES OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
R v CAFFERY [2025] NZHC 203 [14 February 2025]
Introduction
[1] Caleb Caffery, you appear for sentence having pleaded guilty to one charge of possession of methamphetamine for supply1 and two charges of unlawful possession of ammunition.2
The offending
[2] Your offending arises from a police investigation code-named Operation Italian Sky. The operation identified members of the Tribesmen Motorcycle Gang operating a multi-million-dollar methamphetamine and cocaine supply network based in Christchurch between September 2021 and October 2023. Members of the gang involved in the supply network were sending large amounts of cash to Auckland and transporting large quantities of methamphetamine and cocaine to Christchurch on commercial flights or on tow-trucks.
[3] You have pleaded guilty to being a party to one of those supplies, a supply in July 2023. Jordan Rapana, a member of the Tribesmen gang, was involved in transporting methamphetamine from Auckland to Christchurch, often through the smaller regional airports where there was no luggage screening. On 18 July 2023, he was arrested at Christchurch airport after he arrived from Hamilton with 1.971 kilograms of methamphetamine. Mr Rapana’s phone was seized, and subsequent analysis established that the intended destination of that methamphetamine was your personal address. You had agreed to allow your address to be used, performing the role that is colloquially referred to in drug dealing networks as a ‘catcher’.
[4] During a search of your address on 28 July 2023, the police located 18 live shotgun cartridges and a Tribesmen jersey. On a further search of your address on 29 September 2023, police located another five shotgun rounds.
1 Misuse of Drugs Act1975, s 6(1)(f) and (2)(a); and Crimes Act 1961, s 66 — maximum penalty life imprisonment.
2 Arms Act 1981, s 45(1)(a) — maximum penalty four years’ imprisonment or $5000 fine.
Personal Circumstances
[5] Your personal circumstances are set out in a pre-sentence report and in an affidavit sworn by your mother. That report tells me you are 26 years old. You have no previous convictions.
[6] It records that at the time of your offending you were going through a difficult marriage separation. You were primarily caring for your three children, who were then aged two, four, and six years. You also reported that in the period leading up to your offending you were using cocaine and MDMA quite heavily and you were staying at a house that you described as a “party house”.
[7] You explained to the pre-sentence report writer that the separation from your wife took a significant toll on your mental health, and you turned to the Tribesmen gang associates for support. At the time, both of your parents were living in Australia. Your mother has since returned from Australia to Christchurch to support you and it is very clear from the material I have read that you have a very strong relationship with her.
[8] The primary causative factors of your offending are said to be your association with negative peers and attitudes supportive of offending. The report writer considers that you require additional insight into your poor problem-solving and decision-making abilities.
[9] You told the report writer that you no longer have contact with persons associated with the gang. You say you have been abstinent from alcohol since your arrest in November 2023 and report that you are motivated to live a lifestyle free from alcohol and drugs.
[10] In her affidavit, your mother deposes that you have been living with her on electronically monitored bail since December 2023 following her relocation to Christchurch. She talks of your good character, your love as a father to your three children and also to others, and how you strive to see the best in people. She has outlined your childhood and your early struggles with mental health, the strains you faced following your parents’ separation. Your mother speaks at length in her affidavit
about the relationship you have with your ex-wife, the birth of your children – two sons and a daughter - and the struggles you face post separation, that she sees as ultimately leading to your isolation and then your association with the Tribesmen gang. In her opinion, and it is a considered opinion, she says that reflects the search that you were making for support, for brotherhood during a traumatic time in your life. Your mother offers you her unwavering support. You are very fortunate to have that level of support notwithstanding the extent of this offending. So many defendants who appear in this Court do not have that support and very easily give up. I sense that you are one of the lucky ones.
Approach to sentencing
[11] The Sentencing Act 2002 sets out the purposes and principles of sentencing that I am required to take into account in sentencing you today. Relevant purposes include accountability, denunciation, deterrence and rehabilitation. I must consider the gravity of your offending, the degree of your culpability, the seriousness of the offending and the general desirability of imposing a sentence on you that is consistent with the sentences imposed on others who have offended in a like manner. I am required to impose the least restrictive sentence that I consider appropriate in the circumstances.
[12] I must impose a sentence that is commensurate with the seriousness of your offending, in accordance with sentencing guidelines for Class A drug offending provided by the appellate courts.3 Broadly, your culpability is to be assessed by the quantity of the drug involved and the role you played in the drug dealing offending.4 I then must consider matters that are personal to you that could aggravate or mitigate in arriving at an end sentence.
[13] Importantly, in sentencing you today I must recognise the harm that is caused by serious drug offending, particularly that of Class A drugs. Because, Mr Caffery, the distribution of methamphetamine has countless victims within the community, people who often experience the very worst outcomes. That includes adverse mental
3 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509; Zhang v R [2019] NZCA 507, [2019] 3
NZLR 648.
4 Zhang v R, above n 3, at [104], [106]—[117] and [126]—[127].
health, criminal offending to feed addictions, the breakdown of personal and employment relationships, all of which often lead to social deprivation.5 There is no question that society as a whole is harmed by such drug activities and particularly involving the pernicious drug that is methamphetamine.
Starting point
[14] The methamphetamine charge is the most serious you face. It carries a maximum penalty of life imprisonment as I am sure Mr Matthews has told you. I take this as the lead offence.
[15] Mr Stuart, on behalf of the Crown, proposes that I should take a starting point in the region of four to five years’ imprisonment for that offending. Mr Matthews, on your behalf, submits I should take a starting point that does not exceed four years. Generally, he describes your offending as involving a limited function, acting under the direction of others and he highlights that you were not motivated by personal reward.
[16] The Court of Appeal in Zhang v R provided guidelines for sentencing in relation to Class A controlled drugs.6 The Court identified sentencing bands that relate to the quantity of drug involved and the characteristics of the different roles played by offenders.
[17] You were a party to the supply of 1.971 kilograms. That places the offending towards the upper end of what is described as band four in Zhang. Band four applies to quantities of between 500 grams and two kilograms. The guideline sentencing for band four offending is between eight- and sixteen-years’ imprisonment.7
[18] The Court must also have regard to the role you played in the network’s operations. The Supreme Court in Berkland v R updated the factors relevant to
5 Zhang v R, above n 3, at [78]—[79].
6 Zhang v R, above n 3.
7 At [125].
assessing role to distinguish between what are now characterised as the “lesser”, “significant” and “leading” roles an offender might play.8
[19] Although the quantum is relevant to setting the starting point, it has been acknowledged by the Supreme Court in Berkland v R that role could:9
…drive movements both within and between the quantum driven bands. In other words, there is no reason in principle why role cannot be even more impactful than quantum, if justified in the circumstances. This may well be the case, for example, if the circumstances demonstrate that, irrespective of quantum, the offender’s role in relation to it falls within the lower end of lesser.
[20] In your case Mr Caffery, the Crown accepts that your role is ‘lesser’. Indeed, Mr Stuart says in his submissions it “cannot be described as anything other than lesser”. There is no evidence you ever handled methamphetamine. Your liability arises from the limited assistance you provided on 28 July 2023, by offering your address, operating as a ‘catcher’. Mr Matthews supports that description and categorisation of your role.
[21] So, I accept you are in a different category to your co-defendants. You were acting under the directions of other members of the organisation. There is no evidence that you were aware of the broader scale of the operation with which you became involved. Your function was purely operational. I agree it is properly described as akin to what is known a ‘catcher’, albeit the drugs did not ever arrive at your address. I accept you were not acting for financial reward, rather out of naivety and perhaps isolation.
[22] The Crown submits your involvement is similar to that of Mr Ikuia in R v Fangupo.10 Mr Ikuia provided an address for a package containing 449 grams of methamphetamine and was described by the Judge as being “nothing more than a pawn”.11 The sentencing Judge adopted a starting point of five years’ imprisonment.12 What distinguishes that case from yours is that the importation in that case was completed.
8 Berkland v R, above n 3, at [71].
9 At [64].
10 R v Fangupo [2019] NZHC 2896.
11 At [23].
12 At [32].
[23] Your involvement is similar to that of the defendant in R v Alfonso.13 Ms Alfonso was placed in the upper register of band four of Zhang, as she allowed her address to be used for the import of at least 1.8 kilograms of cocaine across three separate deliveries. The sentencing Judge took a starting point of five years and six months’ imprisonment, having regard to her reduced role and her lack of insight into the amount of drugs that were being imported.14 I would assess your offending as being less serious than Ms Alfonso as your culpability arises from a single intercepted delivery rather than spanning successful multiple deliveries.
[24] Having regard to the lesser role you played, I consider it appropriate to place your offending, not in band four of Zhang, but in band two of Zhang, which attracts a sentence of two- to nine- years’ imprisonment. Given the higher quantity of drugs involved, I do not think I can adopt a starting point any less than four years and six months’ imprisonment for the methamphetamine charge.
Possession of ammunition
[25] In their written submissions, counsel did not expressly address how I might deal with the ammunition offending. In total the police found on two separate searches, 23 shotgun cartridges at your address. But there was no firearm and there is no suggestion the ammunition was in your possession for a nefarious purpose. But for the methamphetamine offending, as a first offender I rather think the police would have confiscated the cartridges and perhaps issued you with a warning rather than charging you.
[26] For that reason, I am satisfied there is no need to impose an uplift for that particular offending, but I order the destruction of the cartridges.
Personal mitigating factors
[27] There are no personal aggravating factors that apply to you. So, I turn then to deal with the personal mitigating factors Mr Matthews has raised on your behalf.
13 R v Alfonso [2024] NZHC 1868.
14 At [29].
Guilty plea
[28] Mr Matthews seeks a 25 per cent deduction for your guilty pleas. You pleaded guilty after the Crown agreed to dismiss additional charges that you faced. But the most serious charge you faced has not changed. In those circumstances I cannot find that you entered your guilty plea at the first reasonable opportunity. But I will give you a generous deduction for your guilty plea – that of 20 per cent.
Other factors
[29] Mr Matthews seeks further deduction of 15 to 20 per cent to reflect your relative youth, your background, your rehabilitative prospects and your previous good character. You have no previous convictions, and this does operate as a mitigating factor.15 The Crown accepts that given your age and your lack of criminal history, some recognition can be given for your prospects for rehabilitation.
[30] As a 26-year-old, you fall outside what is regarded as an age whereby an offender’s youth might be factored into the sentencing process but on the flip side, that does allow you to call on a discount to reflect that you have otherwise, until now, conducted yourself as a person of good character. It is significant that you have no previous convictions and, I accept, that is worthy of recognition.
[31] Your pre-sentence report and affidavit that I have summarised both speak positively of the manner in which you have responded to this prosecution. I accept what you said about severing ties with the Tribesman. I accept that you have been abstinent from alcohol and drugs, which have been so problematic for you in the past. I accept that you have lived a very isolated life since your arrest, enjoying the support of your mother and the close relationship that you have with your three children. You have participated in a community support group for men. I acknowledge that. I am confident that you do appear as an offender with very good rehabilitative prospects, such that you are unlikely to appear in this Court again.
15 Taylor v R [2017] NZCA 574 at [24]–[25]; Sentencing Act 2002, s 9(2)(g).
[32] Mr Matthews has identified factors addressed by your mother relating to your childhood and development that are said to have a causal link to your offending. But I think compared to so many people who appear before this Court, you had a relatively stable upbringing. I take from your mother’s affidavit that your struggles really followed after the separation from your wife, the mother of your children, then aggravated by the death of your dog. That led to you falling into a very dark space and ultimately embarking on unhealthy relationships. I accept it was those relationships, particularly with those persons associated with the gang that led to your involvement in this offending. So, I am satisfied there is a causal connection between your background and your offending.
[33] Finally, I accept that you are remorseful. That is clear from the material I have read.
[34] Each of the various factors that I have just outlined in mitigation I consider to be intertwined; they all relate to each other. In my view, each of them on their own warrants a small deduction in the sentence. When I stand back and view it as a whole, I consider a further deduction of 20 per cent, over and above the guilty plea credit is appropriate.
Parental incarceration
[35] Mr Matthews seeks a discrete deduction of five to 10 per cent to reflect the impact on your three children if you were to be incarcerated. He highlights the evidence of the very strong relationship you have with your children coupled with the care that you have been providing to them every second weekend. He submits your children are at a vulnerable age in terms of their relationship with you. Mr Matthews relies on your mother’s assessment of the risk that if you were imprisoned your ex-wife may not be cooperative in arranging prison visits, for obvious and understandable reasons.
[36] The Court of Appeal in C v Police considered that the impact of a sentence of imprisonment on a defendant’s children is a mandatory consideration at sentencing,
both under the Sentencing Act and New Zealand’s international obligations.16 The Court of Appeal in Philip v R17 considered it was not helpful to characterise a discount for parental incarceration as “rare” or “to emphasise, to the exclusion of other factors, whether the defendant is the primary caregiver or the seriousness of the offending”.
[37] Taking those factors into account, I do agree a modest deduction is appropriate to reflect the impact that your incarceration would have on your children. I assess the appropriate deduction as one of five per cent.
[38] The overall deductions I have determined to be appropriate equate to 45 per cent. From a starting point of four years and six months’ imprisonment that leads to a sentence I round down to two years and five months’ imprisonment.
Time on EM bail
[39] The final factor I must consider is whether an allowance should be made for the time you spent on electronically monitored (EM) bail. You were subject to the restrictions of EM bail from 19 December 2023. That amounts to some 14 months. There is no fixed formula by which a sentencing Judge calculates the credit that might be allowed to reflect the time an offender has spent on EM bail. Relevant considerations are the length of time you have spent on EM bail, your compliance with the conditions of EM bail and the extent of the restrictions that you faced while you were on EM bail. As Mr Stuart has confirmed this morning, you were wholly compliant with the conditions of your EM bail throughout a prolonged period. Over time you were permitted absences, but you were not having extended absences. This was not the most restrictive EM bail, but it was certainly restrictive. I consider a five-month deduction is appropriate.
Home detention
[40] What that means Mr Caffery is I have arrived at an end sentence of 24 months’ imprisonment. As I am sure you are aware, that is a short-term sentence, one that requires the court to consider whether the sentence ought to be commuted to one of
16 C v Police [2024] NZCA 136 at [39], [42] and [54].
17 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [56].
home detention. That is the sentence that has been recommended in the pre-sentence report. That is the sentence that Mr Matthews seeks on your behalf. The Crown position is that if the court reached the view that a short-term sentence was available and appropriate, that a sentence of home detention is not opposed. That is based on the material that has been provided about your rehabilitative prospects.
[41] In my view, home detention is the least restrictive appropriate sentence for you. It is a sentence that provides a real deterrence. It is a tough sentence. It is a sentence that will encourage your rehabilitation. It is a sentence that will encourage and assist you to maintain healthy relationships and to avoid adverse influences. It is a sentence that will allow you to continue on the path that you have embarked on since your arrest but still recognises that you were involved in very serious drug offending. The term of home detention that I impose will reflect that you spent about seven weeks in custody following your arrest.
Result
[42]Mr Caffery, will you please stand.
[43] On the charge of possession of methamphetamine for supply you are sentenced to 10 months’ home detention to be served at the address recorded in the pre-sentence report and with the three special conditions that are recommended in that report. I also impose, for a period of six months, the post-detention conditions that have been recommended in the pre-sentence report.
[44] On the two charges of unlawfully possessing ammunition, you are convicted and sentenced to one month home detention. Both sentences are concurrent.
…………………………..
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
D J Matthews, Barrister, Dunedin
6
0