R v Cameron
[2018] NZHC 81
•9 February 2018
ORDER PROHIBITING PUBLICATION
OF IDENTIFYING PARTICULARS OF CO-DEFENDANTS PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-219 [2018] NZHC 81
THE QUEEN
v
JAMIE CAMERON
Hearing: 9 February 2018 Appearances:
D G Johnstone for Crown
G B Morison and D S Niven for PrisonerJudgment:
9 February 2018
SENTENCING BY PALMER J
Solicitors/Counsel:
Meredith Connell, Auckland
B G Morrison, Barrister, Auckland
R v CAMERON [2018] NZHC 81 [9 February 2018]
Introduction
[1] Mr Jamie Cameron has pleaded guilty to four drugs charges: one representative charge of importing, two representative charges of selling, and one charge of possessing for the purposes of sale, the Class C controlled drug that is difficult to pronounce but is known as 4-MEC. This is a controlled drug analogue of methcathinone which mimics the effects of ecstasy. The maximum penalty for each charge is eight years’ imprisonment.
[2] After a four-month trial in 2014, Mr Cameron was originally found guilty of a greater number of similar charges relating to the same conduct and events. In February
2015, he was sentenced to eight years’ imprisonment by Woodhouse J.1 But his
convictions were overturned on appeal and a retrial ordered on the basis of the Supreme Court’s clarification of the legal elements of those offences.2 Two weeks before the retrial was scheduled, he pleaded guilty to the current charges, on the basis of an agreed statement of facts. Now I sentence Mr Cameron for them.
Approach to sentencing
[3] Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002. I have particular regard to: the purposes of holding Mr Cameron accountable for the harm done to the community; promoting in him a sense of responsibility for, and acknowledgement of, that harm; and denouncing his conduct and deterring others from committing similar offences. I take into account: the need to recognise the gravity of the offending including the degree of Mr Cameron’s culpability, the seriousness of his offending; the importance of consistency with other sentences; the legal requirement that I must impose the least restrictive sentence appropriate in the circumstances.
[4] In relation to consistency, I regard Woodhouse J’s 2015 sentence as consistent with the sentences of Mr Cameron’s co-defendants, whose convictions were upheld by the Supreme Court. I have regard to it accordingly. But the differences between
the circumstances now and then mean the 2015 sentence does not determine the
1 R v Chase [2015] NZHC 317 [2015 Sentence] at [101]–[103].
2 Cameron v R [2017] NZSC 89, (2017) 28 CRNZ 166.
sentence today. I note also that I suppress the identities of Mr Cameron’s co- defendants who are still to face trial.
What happened?
[5] Mr Cameron, these charges arise out of your involvement with the marketing and distribution of drug products by an organisation known as the London Underground, established by the lead offender. The Police conducted surveillance of these activities, by interception devices and physically, from June to November 2011.
[6] The agreed summary of facts recounts your involvement in the offending. In
2009 you were a substantial wholesale customer of London Underground. From 4
June 2010 to 16 November 2011, you were a party to importing 254.8 kilograms of powders containing 4-MEC, enough to press 1,274,000 4-MEC pills.
[7] You were involved in the sale of 1,244,000 4-MEC pills with a street-value of
$49,760,000. Your role included introducing a major distributor. It also included indirect assistance and encouragement of the broader offending of the London Underground:
(a) You introduced an associate to the London Underground who agreed to receive packages of 4-MEC (though it was thought by those involved to be another controlled drug analogue, 4-MMC). For doing so, you were paid a commission on each such pill sold.
(b)When the London Underground encountered unwelcome attention from a gang, you negotiated payment to the gang of $10,000 per week to leave London Underground alone. You were the gang’s point of contact and the cash was paid through you.
[8] You were a secondary party to possession of 27,000 pills and 10.2 kg of 4- MEC powder, with a street value of $3,120,000.
Starting point
[9] First, I set a starting point for the sentencing.
2015 starting point
[10] In 2015, Woodhouse J used a starting point for sentencing the lead offender, of
11 and a half years’ imprisonment. Two other co-offenders, who were judged to be more culpable than you, had starting points of nine and a half years’ imprisonment.3
Their sentences were not disturbed on appeal.4 The other co-offenders were less
culpable and had lower starting points. Woodhouse J set a starting point for you, for all offences, at nine years’ imprisonment, based on the facts before him. I am satisfied that was consistent with the other starting points. However, the circumstances here are now somewhat different.
[11] Your 2015 sentence was based on the offending being “at the highest level” of
Class C offending “by a long way”.5 That has not changed.
[12] The 2015 sentence was also based on the assumption you knew the drug dealt with from the start, and knew it was a controlled drug by early to mid-2011, so you were guilty on the basis of actual knowledge.6 The Supreme Court subsequently held these offences regarding analogue drugs required either knowledge or recklessness of the illegality of the drug, or of its substantial similarity with a controlled drug.7 The Court considered it was “open to inference” that you knew the chemical composition of 4-MMC was substantially similar to that of a controlled drug, and “even more strongly open to inference” that you were at least reckless in that regard.8 However,
it concluded that it was “not inconceivable” you could have presented a different and successful defence if faced with correct directions.9 That is why the Supreme Court
directed a retrial.
3 2015 Sentence at [55], [60] and [65],
4 Cameron v R [2016] NZCA 48, (2016) 27 CRNZ 700.
5 2015 Sentence at [5].
6 R v CARC [2015] NZHC 219 at [1] and [38].
7 Cameron v R, above n 2, at [13] and [67].
8 At [139].
9 At [140].
Differences from 2015
[13] In relation to your knowledge, the summary of facts to which you have now agreed in pleading guilty, is that:
(a) You knew of the search and seizure of pills by the Police from your major sub-distributor, shortly after that occurred on 30 September
2010.
(b)You knew the Police arrested and charged your major distributor and another distributor shortly after that occurred on 15 June and 15 July
2011.
(c) Despite that, you facilitated London Underground’s powder-importing and pill-selling and your own pill sales, from 4 June 2010 to 16
November 2011. You used guarded language, seeking to disguise the topic of conversation, when discussing pill sales by telephone. You avoided conducting pill sales in public or where the Police might be present. Your dealings with pills sourced from London Underground were conducted only for cash and you kept no accounting records.
(d)You knew, or were at least reckless, as to whether the substance being imported and sold was a controlled drug.
Submissions on starting point
[14] Mr Johnstone, for the Crown, submits your culpability and the overall gravity of your offending is not substantially different to that assessed in 2015. He submits your unreasonable conduct, in the face of awareness the drug may be controlled informs your blameworthiness. He submits you ran unacceptable risks. He submits the distinction between the basis on which you were sentenced in 2015 and now would support a lesser starting point, by around one year, of eight years’ imprisonment.
[15] Mr Morison, your counsel, submits a starting point of six years’ imprisonment is appropriate given your lesser role in the offending relative to your co-offenders and
lesser culpability of recklessness relative to the basis on which you were sentenced in
2015. He also submits the quantity and value of the 4-MEC seized are not clear cut, but that is not consistent with the agreed summary of facts.
Decision on starting point
[16] I agree the nine-year starting point adopted in 2015 needs to be reduced to reflect the greater uncertainty about the extent of your culpability, which is clearly relevant in setting a starting point.10 But I do not consider that reduction should be as large as Mr Morison submits.
[17] The agreed facts I have mentioned contain clear indications of a high possibility that the drug you were dealing in was controlled, as the Supreme Court suspected. I conclude you were aware of, and took, an obvious and significant risk which was not reasonable in the circumstances known to you. Your actions had no social utility. You have agreed you were, at least, reckless as to whether the substance being imported and sold was a controlled drug. I consider the culpability of your recklessness was less, but not significantly less, than that of the knowledge Woodhouse J found you had in 2015. I accept a reduction from the 2015 starting point of one year is appropriate. That would be in line with your co-offenders. I adopt a starting point of eight years.
Personal circumstances
[18] Next I consider adjustments for aggravating or mitigating factors based on your personal circumstances.
[19] Mr Johnston submits no change is justified to the one year discount granted for your personal circumstances by Woodhouse J though the Crown recognises your activities after arrest are to your credit and a further discount may be available. Mr
Morison submits a discount of more than the one year allowed previously is justified.
10 R v Parahi [2005] 3 NZLR 356, (2005) 21 CRNZ 754 (CA) at [80].
[20] I consider the one year discount Woodhouse J gave for your personal circumstances, Mr Cameron, was justified then. And I consider your circumstances now do justify a slightly greater discount than that.
[21] Since your original sentencing you have taken advantage of every counselling and other course available to you in prison, despite not being assessed as requiring any. Corrections assesses you as being at low risk of re-offending and harm to others. While on bail you have found employment as a manager, you have become engaged and got married and are now expecting a child. I have seen a very positive reference from your employer and a very positive letter of support from a former Assistant Director at Auckland South Corrections Facility attesting to your leadership role in establishing physical education programmes in prison, running events, supporting others and setting positive behavioural expectations. She says she has never given such a reference before in her 15 years in the criminal justice system. All that is corroborated by another letter from a volunteer working at the Facility. These factors suggest to me you have genuine remorse about your offending and you are making a genuine effort at rehabilitation. At 42 I agree there is a real prospect you are getting your life back on track. I encourage you in this.
[22] I discount the starting point of your sentence by 18 months for your personal circumstances.
Guilty plea
[23] Finally you have pleaded guilty, which usually attracts a discount in sentence. The Crown submits your plea reflects the strength of the case against you and you pleaded only two weeks before trial, justifying a discount in the order of 10 per cent. Mr Morison submits you conveyed your intention to resolve matters earlier, and the delay was due to negotiations over the summary of facts and the charges. He submits a 20 per cent discount for guilty plea is appropriate.
[24] A discount is justified given your plea has saved the cost and time involved in a three-week trial. But while steps may have been taken towards such a plea earlier, it was only forthcoming two weeks before trial. I consider that justifies a discount of eleven months.
Totality
[25] Finally, I stand back and consider the sentence overall, in light of the totality of the offending. It is in this context I consider Mr Morison’s submission I should allow an additional discount to reflect that you would have been eligible to apply for parole in October 2017, had you not appealed your original conviction and sentence. He submits that, had you been aware of the timing, you may not have appealed. He relies on Vaine v R, to submit your sentence should be reduced to a non-custodial sentence.11
[26] However, you did appeal your conviction, twice. It was considered over a period of nearly two and a half years by the Court of Appeal and by the Supreme Court. That was your right. But I do not consider the possibility that you could have elected not to do so means your sentence would be disproportionately severe under s 8(h) of the Act. This situation is not uncommon where there is a retrial. Section 79 of the Parole Act 2002 provides for the start date of the new sentence to be the start date of the original sentence. It is not a reason for a further discount to sentence. And a non- custodial sentence would not appropriately reflect the seriousness of your offending.
[27] I consider the totality of the offending is properly reflected in the sentence I have arrived at. When and whether you get parole, given the time served of your previous sentence, is for the Parole Board, not me. I am sure the Parole Board will consider your circumstances as soon as it reasonably can.
Sentence
[28] Mr Cameron, please stand. For each of the four charges to which you have pleaded guilty, of importing, selling, and possessing, a Class C controlled drug, I sentence you to five years and seven months’ imprisonment, to be served concurrently with (at the same time as) each other. Please stand down. All other charges are withdrawn.
………………………….
Palmer J
11 R v Vaine [2011] NZCA 283.
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