R v Cavanagh
[2015] NZHC 2498
•9 October 2015
ORDER PROHIBITING PUBLICATION OF PARAGRAPH [15] OF THIS JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-004-5509 [2015] NZHC 2498
THE QUEEN
v
MICHAEL JOSEPH CAVANAGH
Hearing: 9 October 2015 Appearances:
R M A McCoubrey for Crown
S J Bonnar QC and C S Fredric for DefendantSentence:
9 October 2015
SENTENCE OF KEANE J
Solicitors:
Crown Solicitor, Auckland
THE QUEEN v MICHAEL CAVANAGH [2015] NZHC 2498 [9 October 2015]
[1] Michael Cavanagh you appear for sentence for 11 offences, which in their order of seriousness are these:
(a) supplying the class B controlled drug (in excess of two kilograms of ephedrine), and materials capable of being used to manufacture (iodine and hypophosphorous acid), on 23 April 2014;
(b) money laundering on five occasions between 7 May 2012 - 11 March
2014, to purchase your home and four cars, using drug offending proceeds;
(c) possessing a 9mm Ruger pistol on 26 March 2014 and a .35mm Baby
Browning on 21 May 2014;
(d) fraudulently obtaining a driver’s licence under a false name on 7 July
2011 and making a false statement to obtain a New Zealand passport under a false name on 20 May 2013.
[2] These offences were established, as you have accepted by your plea, during Operation Genoa, an investigation the police commenced in 2011 into the manufacture and supply of methamphetamine in Auckland, which culminated in May 2014. I sentenced your wife, whom you involved in your offending, earlier this week. Two others have gone to trial. One has still to be sentenced.
[3] You pleaded to these offences on 21 August 2015, the week before your trial was to begin. But, as the Crown accepts, you had intimated that plea some time earlier. Once I have sentenced you, the Crown will seek leave to withdraw six other charges, as has been confirmed today.
Fact summary
[4] The fact summary, which you do not dispute, amplifies the offences for which you are for sentence, in date sequence.
[5] On 7 July 2011 you applied for a New Zealand driver’s licence using a false identity giving the false date of birth 21 May 1973. You gave an Oratia address and described your birth place as Katikati. You used that driver’s licence to purchase property, register motor vehicles, open safety deposit boxes and bank accounts in order to conceal cash and assets.
[6] In 2012 – 2014 you money laundered the proceeds of drug offending by making five purchases.
(a) On 3 April 2013 you and your wife purchased your present home for
$535,000, you using your false name and she using a false name also.
(b)On 7 May 2012 you purchased a Holden car valued at $28,000, for a price that has not been established, in the name of your wife’s mother.
(c) On 4 September 2012 you bought a Porsche Boxster car valued at
$32,000 for a price still to be established, first registering it under
your false name and later under the name of your wife’s mother.
(d)On 14 June 2013 you purchased a Maserati car valued at $65,000, for a price not established, again registering it in your wife’s mother’s name.
(e) On 11 March 2014 you and your wife purchased an Audi Q3 car valued at $59,000 for a price not established, again registering it in the name of your wife’s mother.
[7] On 26 March 2014 the police covertly searched a unit in Parnell in the name
of your wife’s mother, in which you and your wife stored items. These included a
9mm Ruger pistol. With the pistol was a large amount of cash and a police shirt.
[8] On 17 April 2014 the police also searched covertly a storage unit in Panmure, rented by your wife on 7 April 2014 under a false name, and found four plastic bags of the class B controlled drug ephedrine, weighing approximately two kilograms and capable of yielding in excess of one kilogram of methamphetamine. Also found
were several five litre containers of iodine and hypophosphorous acid, capable of being used in the manufacture of methamphetamine.
[9] When Operation Genoa was terminated on 5 May 2014 this unit was found to be emptied out and the police obtained video footage confirming that you and your wife had emptied it on 23 April 2014; the day on which you supplied the ephedrine, iodine and hypophosphorous acid to your co-offenders, as you accept by your plea. Other contents of the unit were later found in a storage unit in Nelson rented by your wife’s brother.
[10] After you were apprehended on 5 May 2014 the police continued to monitor you and on 17 May 2014 you and your wife discussed how the police had gained access to the two storage units and been able to get video footage of the Parnell unit being emptied. That was a compromising conversation.
[11] On 5 May 2014 also, at a Glenfield storage unit, the police located a New Zealand passport containing your photograph but carrying an unrelated name, which had been issued to you on 20 May 2013.
[12] On 21 May 2014, the police again searched your address under warrant and found a floor safe in the hallway under the carpet in which there was a .35 mm Baby Browning pistol and ammunition, as well as cash and ingots and medallions which are not immediately in issue.
Pre-sentence report
[13] Your pre-sentence report recommends that, to reflect the gravity of your offending, you be sentenced to imprisonment, more especially taking into account your earlier indistinguishable offending.
[14] As your report says, you committed these offences while on parole, part-way through a 12 year term imposed on you on 20 May 2005 for offending very similar to that for which you are now for sentence. You have, since you were apprehended, been recalled to complete that sentence. You say, in fact, that when you were on parole you were living off the proceeds of that previous offending. You had money
left over which you had not spent. That sum also formed the basis of the loan for which you retained the ephedrine as security.
[15] [This paragraph has been redacted].
[16] A more aggravating feature of your offending, identified in your pre-sentence report, to my mind, is that you offended with your 2002 co-offenders. You have a six year old daughter with one of your co-offenders and you were once engaged to another. Of still greater concern is that in this present offending you involved your wife, her mother and her brother.
[17] You are assessed in your pre-sentence report as at medium risk of re-offending. Your risk of harm to others is also assessed to be medium given the nature of your offending and the effect on the wider community. Your ability to comply with a community based sentence is assessed as low. But that is academic. You have still to complete your existing sentence and you must be sentenced cumulatively.
[18] Since your recall, your report says, you have completed a large number of sessions to counter alcohol and drug abuse, and relapse, and also other programs. You have been negatively tested for alcohol and drugs four times between 25 July
2014 – 1 September 2015. That stands to your credit.
[19] Your pre-sentence report says, finally, that you accept responsibility for your
offending and express remorse. You say that you have been “clean” for nine years.
Letters
[20] In a letter to me for the purpose of sentence you again express remorse and accept complete responsibility. Furthermore, you describe in detail the effects such offending can have, in part drawing on your own experience. You again contend that you have been free of drugs, if not alcohol, for in excess of nine years.
[21] You say also that your life changed in 2012 when you met your wife and accepted responsibility for her son. You are intensely ashamed that you then
exposed them to the offending for which your wife has now been sentenced, and you have now to be, the result of which will be that during your sentences her four year old son and yours will be in the care of an aunt.
[22] I have as well a letter from a woman with whom you stayed for a year in
2010 when you were released on parole, who speaks very well of you. Also letters from your aunt and brother and a friend living with a disability, and those who have employed you, who speak equally well of you.
[23] I accept those letters at face value. But the fact remains that you offended on parole after you ceased to be electronically monitored, if not before. You lived off the proceeds of your previous offending. You involved your wife and her family. That is not to be minimised.
Possession for supply offence
[24] Your lead offence for sentence, as counsel agree, has to be your supply of ephedrine offence, which attracts a maximum sentence of 14 years imprisonment, in contrast to your other offences which attract maxima lying between five – 10 years.
[25] The issue as to that lead offence is where your offending lies when set against the three bands of offending that the Court of Appeal identified in R v Wallace and Christie,1 which apply equally to possession and supply of ephedrine, as the Court of Appeal recently confirmed in R v Wang.2
[26] For commercial offending on a major scale Wallace and Christie sets starting points in the range eight – 14 years. For sophisticated and organised commercial offending on a substantial scale over a period of time, which does not involve massive amounts of drugs or prolonged dealing, it sets starting points in the range five – eight years. For smaller operations with a commercial dimension, it sets
starting points up to five years.
1 R v Wallace and Christie [1999] 3 NZLR 159; R v Wang [2014] NZCA 409.
2 R v Wang [2014] NZCA 409.
[27] The Crown contends that your offence, and that of your wife, lie within the second of those bands; and that your offending requires a starting point of seven – eight years. Your counsel contends for a starting point lying in the third least serious band, five years.
[28] Your counsel contends that you were not a principal offender. Four others were, he submits, and there is a notable lack of evidence as to any ongoing offending by you or contact with them. You were to the periphery. Moreover, the ephedrine belonged to a man who owed you money and you held it as security. (That indeed is the basis on which I sentenced your wife.)
[29] Your counsel contends, moreover, that assuming on the Crown’s estimate that you did supply two kilograms of ephedrine worth $200,000, that equates with the supply of an equivalent quantity of ContacNT. The Crown’s starting point, he contends, relies on cases involving much greater quantities,3 or possession of other drugs and instruments.4 He relies, by contrast, on cases involving the supply of ContacNT, which he suggests are consistent with a five year starting point.5
[30] In sentencing your wife I held that the four – six year starting point range contended for by the Crown and by her counsel adequately reflected the quantity of ephedrine in issue; in that case relying on the authorities to which the Crown referred me from which I see no need to depart.
[31] I took a five year starting point for your wife on the basis that you were the primary actor. You had taken the ephedrine as security for a debt. Her offence was for possession and I fixed her starting point on the basis that she had been more than a passive custodian. On the same logic, and as a matter of parity, I must take a starting point for you which makes you accountable as the primary offender, more
especially because your offence was one of supply.
3 R v Wang [2014] NZCA 409.
4 Bell v Police [2014] NZHC 3052.
5 R v Ha [2014] NZHC 2621; R v Afakasi & Ors [2014] NZHC 2907; Tilialo-Staples v Police
[2013] NZHC 1255.
[32] Even if you held the ephedrine as security for a debt, you knew its value and purpose. That was why you must have known it was good security. You knew what it was going to be used for when you returned it. The money you were owed, as I have been told, arose from prior drug offending and was a species of laundering. The starting point in your case I adopt is seven years imprisonment.
Other offences uplift
[33] The Crown seeks a further uplift of 18 -24 months to reflect your additional offending. Your counsel contends for an uplift of no more than 12 months having regard to those imposed on your co-offenders, who have already been sentenced.
[34] In the case of your wife, whose offending was considerably less than yours, I imposed a 12 month uplift. Your further offending, I consider, would warrant a 24 month uplift, but as a matter of totality I reduce it to 18 months.
Previous related offending uplift
[35] Quite distinctly, the Crown submits that your sentence should be further uplifted by 12 months to recognise the fact that the offences for which you were on parole involved very similar offending.
[36] That earlier offending, which emerged as a result of Operation Illusion in August 2002, involved the manufacture and distribution of methamphetamine on a large scale. You were described on sentence as a significant participant. The 12 year sentence imposed on you confirms how significant your role was.
[37] Your counsel concedes that there must be an uplift but, having regard to your co-offenders already sentenced, contends that it ought to be no greater than nine months. The Crown’s uplift appears to me to be fully justifiable but I will adopt your counsel’s submitted figure as a matter of totality.
Discounts
[38] The result is that, subject to the discounts to which I find you are entitled, your offending warrants a sentence of imprisonment of nine years, three months.
The Crown accepts you are entitled to a 20 per cent discount for plea. You contend, however, for a 25 per cent discount and claim two others, which the Crown does not oppose in principle, though questions as to scale. I will deal with them first.
Personal circumstances discount
[39] First your counsel seeks a one month discount to reflect your personal circumstances, relying particularly on your positive response to your sentence since recall, most especially the extent to which you have undertaken intensive counselling and programs.
[40] I hesitate to allow you any discount for personal circumstances, even on that incontestable basis, because you have not merely re-offended with the same people, you involved your wife and family. I allow it, however, and only because it is as modest as it is.
Recall discount
[41] You seek a distinct discount for the time you spent in custody on recall, which does not count administratively towards the sentence you are to serve. That is a period of 17 months. As to that, you seek an equivalent discount.
[42] The authorities on which your counsel relies support in principle the discount you seek.6 The Crown accepts that to be so but contends that they do not support a strictly equivalent discount.7 It is a matter of assessment. I have decided that in your case the preponderance of authority favours in your case a full 17 month discount.
Guilty plea
[43] The Crown, as I have said, concedes that you are entitled to a 20 per cent discount for plea but not a full discount because you did not plead until just before
your trial.
6 R v Paul CA409/05, 4 April 2008; R v Baynes-Carter [2014] NZCA 285; Te Aho v R [2013] NZCA 47.
7 R v Repia CA12/95, 26 May 1995.
[44] Your counsel says, by contrast, that you are entitled to a full 25 per cent discount because you pleaded at the first reasonable opportunity and the Crown was fully aware of your position well before trial.
[45] After your arrest in May 2014 you were represented by counsel who became unwell and the possibility that you might plead was not explored until your present counsel assumed responsibility late in 2014. In early 2015 your counsel advised the Crown that in principle you might well plead to the offences for which you are now for sentence if the Crown withdrew a charge of methamphetamine manufacture you then faced.
[46] The Crown’s case as to manufacture turned on the outcome of a propensity argument on which it did not succeed. When that happened the Crown withdrew the methamphetamine charge. That was in early August 2015, not long before your trial was to begin, and within a short time after that you pleaded guilty to these offences.
[47] The date on which you pleaded was close, as the Crown says, to the date your trial was to begin. But that timing was dictated by the dates when the propensity decision was given and the Crown withdrew the methamphetamine charge. I conclude, therefore, that you pleaded at the first reasonable opportunity and will allow you a full 25 per cent discount.
Sentence
[48] In the result I sentence you for your lead offence, the supply of ephedrine, to imprisonment for five years, 10 months. I sentence you concurrently for each of your other offences to imprisonment for two years. Your effective sentence is five years, 10 months. As I have said already, I impose those sentences on you cumulatively on your existing sentence.
Minimum term
[49] The Crown contends for a minimum term of half your sentence, submitting that if you were eligible for release at the statutory minimum, that would not suffice
to hold you accountable for the harm you have done, to denounce your conduct and deter you and protect the community.
[50] Serious drug offending, the Crown contends, often, if not invariably, requires a minimum term to be imposed,8 in this relying especially on such cases as Anslow.9
Your counsel contends that a minimum term is not called for because your sentence lies below the nine year threshold Anslow identifies.
[51] Your counsel contends also that, if the statutory minimum term applies, the Parole Board is likely to be conservative. You were not released from your prior sentence before your half point. He contends, furthermore, that by the time of your statutory minimum eligibility date you will have effectively served half your sentence taking into account your present sentence.
[52] Despite that latter possibility, which I have met in part by allowing you a 17 month discount, a minimum term, I consider, is called for because your present offending occurred while you were on parole for indistinguishable offending. You were sentenced to 12 years for that offending and you were plainly not deterred.
[53] I am satisfied, therefore, that the statutory minimum would not sufficiently serve the purposes I have identified, particularly deterrence, general as well as personal. I impose on you a minimum term of imprisonment of one half of the five year, 10 month, sentence I have imposed on you.
Withdrawal of charges
[54] Finally, I record that the other charges which you faced at the time you entered pleas to your present offences are withdrawn by leave.
P.J. Keane
8 R v Aram [2007] NZCA 328; R v Anslow CA182/05, 18 November 2005.
9 R v Anslow CA182/05, 18 November 2005.
5
8
0