R v Catley
[2017] NZHC 1152
•30 May 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-009435 [2017] NZHC 1152
THE QUEEN
v
DARYN BRUCE CATLEY
Hearing: 30 May 2017 Appearances:
S McColgan and C L Ashton for the Crown
M Goodwin for the DefendantSentencing:
30 May 2017
SENTENCING REMARKS OF WOOLFORD J
Solicitors/Counsel:
Meredith Connell, Auckland
M Goodwin, Auckland
R v CATLEY [2017] NZHC 1152 [30 May 2017]
[1] Daryn Catley, you appear for sentence having pleaded guilty on 28 April
2017 to five charges: one charge of possession of methamphetamine for supply,1 one charge of possession of methamphetamine simpliciter,2 one charge of possession of a methamphetamine utensil,3 one charge of unlawful possession of a pistol being a sworn-off .22 rifle,4 and one charge of possession of a restricted weapon being a taser.5
Background facts
[2] Your charges came as a result of Operation Tea, a police operation investigating the supply of methamphetamine in the Canterbury region by the Rebels Outlaw Motorcycle gang. Police suspected methamphetamine was being sourced in Auckland and either flown or driven to Canterbury.
[3] At about midnight on 14 September 2015, police conducted a vehicle stop on a vehicle driven by your co-defendant, Mr Stephen Harland. The search revealed
1.1558 kg of methamphetamine, $2,930 cash and three cell phones. The Crown says the methamphetamine had an estimated street value of $1.1558 million. You dispute that value. Your counsel refers to evidence given at another recent trial, by the same drug expert relied upon on this case, that a gram of methamphetamine in 2015 was worth between $600-$700 – indicating the street value of the methamphetamine here was between $660,000 and $777,000.
[4] You accept that you gave Mr Harland the bag inside which the methamphetamine was located knowing that he was to drive to Christchurch. There, you were to meet Mr Harland and take delivery of the bag. Mr Harland began the drive early on the morning of 14 September 2015. Around 8.30 pm that evening he took a ferry from Wellington to Picton. The vehicle stop was conducted shortly after the vehicle arrived in Picton. This gave rise to the one charge of possession of
methamphetamine for supply, which is the lead charge for sentencing today.
1 Misuse of Drugs Act 1975, ss 6(1)f) and 6(2), carrying a maximum penalty of life imprisonment.
2 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2)(a), carrying a maximum penalty of six months imprisonment.
3 Misuse of Drugs Act, ss 13(1)(a) and 13(3), carrying a maximum penalty of one year’s
imprisonment.
4 Arms Act 1983, s 45(1)(b), carrying a maximum penalty of four years imprisonment.
5 Arms Act 1983, ss 45(1)(b) and 66, carrying a maximum penalty of four years imprisonment.
[5] On 15 September 2015 the Police executed search warrants at two properties. One was the Rebels Outlaw clubrooms in Christchurch – which also happened to be your Christchurch address. That search uncovered a sawn-off .22 rifle, approximately 0.8 grams of methamphetamine, utensils for the use of methamphetamine (including a pipe), $5,265 in cash and Rebels patches and paraphernalia. This led to two charges relating to the sawn-off .22 rifle and the utensils.
[6] The second search occurred at your ex-partner’s home, which was at that time your Auckland address. There Police located 12.5 grams of methamphetamine, more utensils, indicia of supply including zip-lock bags and scales and a total of
$162,890 in cash, most of which was found in a safe. In addition, a taser was found. This led to two charges relating to the methamphetamine and the taser.
Personal circumstances
[7] You have some previous convictions although none are relevant for present purposes. Largely they are minor and for non-compliance with court orders or community-based sentences imposed for drink driving offences.
[8] According to the pre-sentence report, you are a member of the Rebels Outlaw Motorcycle Club. You suffer from a serious methamphetamine addiction involving daily consumption over the past five years, which positively you say you want to address. You say your addiction was what motivated you to offend and you reported you felt remorseful during your offending, stating that you could relate to what your customers were going through.
Sentencing
[9] I am required to take a two-step approach in sentencing you. First, I will establish what we call the starting point. That requires me to consider the gravity of your offending. I will do this by reference to a guideline judgment, in this case R v Fatu.6 I will then turn to what adjustment should be made to this starting point.
I will then turn to consider matters relating to your personal circumstances, which may increase or reduce your sentence.
[10] I must sentence you today in accordance with the purposes and principles set out in the Sentencing Act 2002. When the court sentences offenders for those convicted of offences relating to the commercial supply of methamphetamine, deterrence and denunciation are primary considerations.7 As you are all too aware, methamphetamine does considerable harm to the community, so deterrence of you and other potential offenders is important. However, this must be balanced against
the requirement that the court is to impose the least restrictive outcome appropriate in the circumstances.8 I must also consider rehabilitation and reintegration.
Relevant case law
[11] The lead offence for sentencing you is the charge of possession of methamphetamine for supply, as that is clearly the most serious of the offences to which you have pleaded guilty. The starting point for offending of this kind is to be determined in accordance with the Court of Appeal’s decision in R v Fatu. In that case the Court identified bands of offending relating to the manufacture, importation and supply of methamphetamine. The highest band of offending, band four, relates to the supply of very large commercial quantities, specified as 500 grams or more.
This carries a penalty of ten years to life imprisonment.9
[12] The Court stated “[w]here an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender.”10
Submissions
Crown submissions
[13] The Crown submits that your offending falls within band four of the tariff case, R v Fatu, and submits a starting point of between 14 and 15 years
7 R v Terewi [1999] 3 NZLR 62 (CA) at [13].
8 Sentencing Act 2002, s 8(g).
9 R v Fatu, above n 6 at [34].
10 At [31].
imprisonment is appropriate. This is due to a number of factors. One is the commerciality of the offending, which involved methamphetamine with a substantial street value.
[14] A second factor is the sophistication of the operation, which involved the separation of tasks and communication in code (whereby the parties referred to the drugs as “sausages”), and the adoption of a relatively anonymous mode of transport as opposed to other methods, such as flying, that would have posed higher detection risks.
[15] A further factor is your role as initiator of the trip: the Crown alleges you sourced the methamphetamine, packaged it, and provided it, along with money to cover travel costs. You then directed Mr Harland to drive to Christchurch. While you may not have been the principal architect, the Crown says you were involved at a sufficient level to be entrusted with the handling of a significant amount of methamphetamine. On this point, the Crown also seeks to make something of the amount of cash located at your Auckland address.
[16] In support of its preferred starting point, the Crown refers the Court to two cases:
(a) He v R:11 The defendant was located (while on parole) with one kilogram of methamphetamine, 3.8 kilograms of ephedrine, a loaded pistol, and ammunition (as well as $274,000 cash). The District Court Judge took a starting point of 14 years imprisonment for the lead offence of possession of methamphetamine for supply. He then uplifted the sentence to take account of Mr He’s previous history, offending on parole and for the ephedrine offending.
The Court of Appeal rejected a suggestion the defendant was a mere middle man, instead finding that while he may not have been an importer, he played an important role and acted as a repository of the
methamphetamine which was to be supplied to others.12 The Court considered there was no uplift for firearms offending because it was taken into account in setting the starting point for the methamphetamine offending – possession of firearms being a common part of commercial drug-dealing activity. The Court held that “there may have been scope to adopt a lower starting point” but it was open to the Judge to take a starting point of 14 years.
The Crown says that you were dealing with a comparable amount of methamphetamine and that you were more than a mere repository. The Crown submits that you were pivotal in the supply chain.
(b)R v Vernon:13 The defendant had been purchasing quantities of methamphetamine, which he would then distribute in smaller quantities to his customers through various drivers. In total, the offending involved 1.35 kilograms of methamphetamine. Lang J took a 16 year starting point, considering the large commercial quantities concerned.
The Crown submits that your role was more comparable to Mr Vernon’s aside from the offending dynamic, Mr Vernon’s having been concerned with 60 charges of ongoing supply.
[17] Balancing the similarities and differences between the two cases, together with the guidance of Fatu, the Crown says a starting point of between 14 and
15 years imprisonment is appropriate.
Defence submissions
[18] Mr Goodwin, for the defence, says:
(a) Your involvement was of limited duration, in that you had possession of the methamphetamine for less time than Mr Harland.
(b)There was an element of sophistication, in terms of the division of tasks between different individuals, but the fact that drugs were transported by a car does not add to the sophistication.
[19] He disputes a number of key facts:
(a) He says the Crown has confused your role. He says you did not hire the car driven by Mr Harland; you did not give Mr Harland the instructions. Rather, a senior member of the Rebels Outlaw Motorcycle Gang did. That person, he submits, was the initiator – not you. While you had a leadership role in the gang, the superior ranked higher than you.
(b)Further, he says that the initial plan did not involve you providing the drugs to Mr Harland. Instead, a third party arrived at your Auckland address and told you he needed your help to transfer the drugs to Mr Harland.
You accepted custody of the drugs and helped yourself to a small amount to feed your addiction. That explains the methamphetamine present at your Auckland property at the time of the search.
(c) He says the cash found in the safe at your Auckland address was unrelated to the present offending.
[20] Mr Goodwin submits that 14 to 15 years imprisonment is too high. He submits that your offending falls at the lower end of band four in Fatu. Accordingly, he submits that a starting point of 10 years, or perhaps 11 years, imprisonment is more appropriate.
[21] He refers the Court to two cases:
(a) R v Hughes:14 The offending related to a methamphetamine importation scheme. A drug courier had flow from Port Moresby to Auckland with luggage containing 1.5 kilograms of methamphetamine. The defendant, along with two others, met the courier in a public location with two others and received the methamphetamine. Along with the others, he drove to another location and handed over the bags to the principal organiser for payment.
Venning J adopted a starting point of eight years imprisonment. He considered the offender’s involvement was limited; he was a link in the chain of offending but no more, and had no organisational role at all. If he had not been available, someone else would have been chosen. He had no idea of the amount of drugs involved.
(b)R v Iwu:15 Ms Leefe was involved in the offending. She was recruited in order to give the principal organisers further distance from the scheme. She observed the courier at the airport, recruited family members to the scheme, and received and passed on instructions to them. Thomas J considered she was an important player with a position of responsibility. However, she was replaceable. For the purposes of parity, Ms Leefe received a starting point of 10 years imprisonment.
Analysis
Setting a starting point
[22] There is no dispute that your offending falls within band four, the top band identified in R v Fatu. This band deals with supply of very large commercial quantities, defined as 500 grams of methamphetamine or more. There is dispute between the parties as to the value of the methamphetamine concerned. Regardless, there is no dispute that the total weight of methamphetamine involved was
1.16 kilograms. This indicates a very high level of commerciality, and is well beyond the quantity specified for band four offending.
[23] More relevant is the question of the extent of your involvement. You were certainly involved in the logistical chain for the supply of methamphetamine transported from Auckland to Christchurch on this occasion. The Crown submits that you were involved in the organisation of the transaction, and were to meet Mr Harland in Christchurch to take delivery of the methamphetamine. Your counsel, Mr Goodwin, submits that you were an intermediary rather than the organiser. He submits that you did not know in advance that you were to help to transfer the drugs to Mr Harland; another gang member arrived unexpectedly with the drugs on
13 September 2015 and informed you that you were to transfer the drugs to
Mr Harland.
[24] Either way, I am satisfied that you played a meaningful role. Your counsel’s submission acknowledge that you did have some leadership role in the gang and were aware of the plan for Mr Harland to transport methamphetamine to Christchurch regardless of whether you were to be involved in Auckland. You were trusted with the control of the drugs. You were aware of the quantity of the drugs; you in fact took some from the package you received, so that you were under no illusions as to the quantity to be transported. While your counsel submits that the fact that you had approximately $150,000 at your address in Auckland was unrelated to the present offending, it presumably relates to involvement in drug offending. Accordingly, you are either profiting considerably from your role, or were trusted with very large sums of money. Either indicates significant involvement in the activities of the gang. That you knew of the operation in advance and were turned to when other plans fell through suggests an important role. I do not accept that you were dispensable in that regard, although you were not a crucial player.
[25] Your counsel points to R v Hughes, in which Mr Hughes received a starting point of eight years imprisonment. In that case, there was no suggestion the defendant had knowledge of the wider scheme. He collected the drugs from the courier with two others, and drove them to a handover with the principal organiser. For this, he was given $200. In the related case R v Iwu, Ms Leefe received a
starting point of 10 years imprisonment. You clearly had far more knowledge of the plan and the quantity of drugs than Mr Hughes and likely Ms Leefe. You were entrusted with more responsibility and independence than both, being left alone with the drugs.
[26] The pre-sentence report notes that prison records identify you as a ranking sergeant of arms with the Auckland chapter of the Rebels Outlaw Motorcycle Club. In your interview you reported that this was incorrect and that you are only a member. However, it does appear from your counsel’s submissions that you do accept that you did have some leadership role in the gang, notwithstanding that you were not the boss, as it were. You were also aware of the plan for Mr Harland to transport methamphetamine to Christchurch. For these reasons, I am of the view that you were less dispensable than Ms Leefe; you could not have simply been replaced by another. Even if more superior members were primarily responsible for planning, they reposed considerable trust and confidence in you.
[27] Mr Goodwin emphasised that your involvement in the offending was of short duration, and that Mr Harland had control over the drugs for a longer period of time. I do not think that that is particularly relevant. The Court of Appeal in Wong v R emphasised that a courier or “mule” will fall at the lowest end of culpability, less than that of an offender who collects or receives a package.16 I do not consider that you are less culpable than a courier merely because you had possession of the drugs for a shorter period of time.
[28] Your offending is closer to that of Mr He in He v R. Mr He played an important role in the illegal drug operation, acting as a repository of the methamphetamine which was to be supplied to others. The Court’s comment in that case that Mr He’s behaviour was “simply one step back in time from actual supply”
is apt here.17 Your behaviour was to enable the supply of methamphetamine to
others, which is the purpose of the crime of possession. Like Mr He, you had access to firearms, part of commercial activity involving illicit drugs, which is an
16 R v Wong [2009] NZCA 332 at [13]. See also R v Nguyen HC Auckland CRI-2008-092-002791,
14 November 2008 at [11].
aggravating feature of that offending.18 Arguably, your offending was not as sustained as Mr He’s. It was not, in my view, as sustained as the offending in R v Vernon, also referred to by the Crown. In my view, your offending lies somewhere between the cases referred to by your counsel and those referred to by Crown counsel. I note that the Court of Appeal suggested that 14 years imprisonment was towards the upper end of the range of starting points open to the Judge in He v R.19
[29] Accordingly, I consider that a 12 year starting point is appropriate.
Adjusting the starting point
[30] The primary mitigating factor that applies to you, Mr Catley, is your guilty plea. The allowance which can and should be given for a guilty plea depends upon an evaluation of all the circumstances in which the plea is entered, including the timing of the plea and the strength of the prosecution case. A reduction of up to
25 per cent is available.20 Although you did not plead guilty until the Friday before
your trial was due to commence, this was the day following the resolution of pre-trial matters, on appeal to the Court of Appeal. Both parties are in agreement that you are entitled to receive a 20 per cent discount for your plea. I accept that is appropriate.
[31] In addition, the pre-sentence report notes that there are “elements of genuineness” in your reflection on your offending. You reported feeling remorseful, and that you can relate to what your drug customers are going through given your own drug habit. As the pre-sentence report identifies, your own drug abuse is one of the key factors relating to your offending. You reported that being arrested had finally allowed you to break your drug habit, and that you are ready and willing to undertake drug counselling to help deal with your serious substance abuse habit. These are positive steps, and I hope you continue with this approach. You have also provided me with a letter this morning, which I have read, and I accept that the
sentiments expressed therein are genuine.
18 At [11].
19 At 12.
20 Hessell v R [2010] NZSC 135 at [74]–[75].
[32] Taking into account your guilty plea and your remorse, I apply a discount of
25 per cent. This brings the starting point of 12 years imprisonment down to nine years.
Minimum period of imprisonment
[33] The Court may impose a minimum period of imprisonment, that is a period of time fixed before the offender becomes eligible for parole, under s 86 of the Sentencing Act. The Court may consider a minimum period of imprisonment necessary if the time to be served before the offender is eligible for parole is insufficient for the purposes of denouncing the conduct, deterring the offender or others from committing similar offences, protecting the community, or holding the offender accountable for the harm done to the victim and the community.
[34] Methamphetamine offending has an enormous impact on society. Accordingly, minimum terms of imprisonment are standard in cases of serious drug offending. The Court of Appeal in R v Wong commented that “in cases of very serious drug offending it will be almost invariable that the criteria for an order [of a minimum term of imprisonment], particularly deterrence and denunciation, will be
made out”.21
[35] At the upper level, methamphetamine offending is characterised by a drive for profit, significant planning, investment and effort to avoid detection, and disregard for the impact on society. The wider offending in which you were involved exhibits all these features. There is a considerable need for deterrence and denunciation. A minimum period of imprisonment may be as high as two-thirds of the full term of the sentence imposed. However, the Crown is not seeking a minimum period of imprisonment for your co-offender, Mr Harland. Parity is an important principle. Furthermore, given the remorse that you have demonstrated and the willingness you have indicated to address your addiction, I am not going to impose a minimum period of imprisonment.
Forfeiture
[36] The Crown also seeks forfeiture of the drug exhibits and paraphernalia. That is governed by s 32 of the Misuse of Drugs Act. I grant an order sought by the Crown for the destruction of the drug exhibits and paraphernalia pursuant to that section.
Decision
[37] On the lead charge of possession of supply I impose a term of imprisonment of nine years. I decline to impose a minimum period of imprisonment.
[38] On the charges of possession of methamphetamine and possession of utensils, I impose a concurrent term of three months imprisonment. Finally, on the charges of unlawful possession of a sawn-off .22 rifle and a restricted weapon, I impose a
concurrent term of six months imprisonment.
Woolford J