R v Chapman HC Auckland CRI 2008-004-17488
[2010] NZHC 1597
•25 August 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-004-17488
THE QUEEN
v
QUINTIN BRUCE CHAPMAN
Hearing: 25 August 2010
Appearances: Mr B Northwood for Crown
Ms R Thomson for Prisoner
Sentence: 25 August 2010
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Auckland
Ms R Thomson, Auckland
[1] Mr Chapman, you appear today for sentence having pleaded guilty in this Court to one representative count of supplying methamphetamine and one count of conspiring to supply methamphetamine. You pleaded guilty in the District Court to a single representative count of supplying methamphetamine and you were
committed to this Court for sentence.
R V CHAPMAN HC AK CRI-2008-004-17488 25 August 2010
[2] Both charges of supplying methamphetamine carry a maximum sentence of life imprisonment. The charge of conspiring to supply methamphetamine carries a maximum sentence of 14 years imprisonment.
The facts
[3] The charges against you arise from two separate police operations, one of which was known as Operation Leo and the other of which was known as Operation Moremi. One of the representative charges of supplying methamphetamine arises out of Operation Leo. The other two charges arise out of Operation Moremi.
Operation Leo
[4] Operation Leo involved the interception by the police of a very large number of cellphone communications and text messages. You were not initially a target in this operation, but very quickly the police ascertained from monitoring the activities of other persons that you were in regular contact with them. For that reason the police sought an extension of the interception warrants so that they could intercept your telephone calls and text messages. Over a period of 84 days, the police intercepted just over 7000 communications from your cellphone. Of these, the police consider that 2,295 were related to drug dealing in one way or another.
[5] During this period you were a very regular dealer in small amounts of methamphetamine, generally between .5 of a gram and up to a single gram. On occasions, however, you dealt in larger amounts. On one occasion, on 20 February
2008, you arranged for others to supply one of your co-accused, Mr Nelson, with an ounce, that is, 28 grams of methamphetamine, for the sum of $21,000. On another occasion, on 16 March 2008, you confided to an associate that you had recently supplied six ounces, around 176 grams of methamphetamine, at a price of $12,000 each. You accept that the conversations demonstrate that you completed supplies of at least 220 grams of methamphetamine during this period.
Operation Moremi
[6] Operation Moremi was a separate operation that took place between 18 June
2008 and 14 August 2008. This was, of course, after the termination of Operation
Leo, which occurred on or about 5 May 2008.
[7] In Operation Moremi, the police intercepted the communications of a number of persons, including a Mr Nguyen and his associates. The police found that you were in contact with this group and others, and that you were continuing with your supply activities. The police enquiry established that you were involved in the actual supply of 2.45 grams of methamphetamine, as well as two other supplies of an unknown quantity. You were also involved in conspiring to supply 49.4 grams of methamphetamine to other people. It is not known, however, just how much methamphetamine was actually supplied in the end.
[8] So far as you are concerned, the police operation came to an end on 4 August
2008 when you and an associate were followed into the City travelling in a Nissan Bluebird motor vehicle. You were stopped at about 6 pm in Great South Road, and the police searched your vehicle. They found in the vehicle a bag containing 1.1 grams of methamphetamine. The police also located four point bags which contained residue of methamphetamine, together with two glass pipes used to smoke methamphetamine and a straw of the type that is commonly used to scoop methamphetamine from larger bags to make up smaller bags. The police also located in excess of 50 snaplock plastic bags of the type that are commonly used to sell .1 of a gram of methamphetamine.
Sentencing principles
[9] In sentencing you I need to bear in mind the principles set out in the Misuse of Drugs Act 1975 and the Sentencing Act 2002. In your case, however, the level of your dealings in methamphetamine is such that your counsel realistically acknowledges that a significant sentence of imprisonment is inevitable. That is going to be the case in any situation where a significant dealer in methamphetamine comes before the Court. Lengthy sentences of imprisonment are really the only way in which the Court can contribute in any way to dealing with the scourge that methamphetamine has now become.
Approach
[10] The real issue in your case is to assess a proper starting point having regard to all of your offending. The next issue is to determine the discount that I need to give to reflect your guilty pleas.
[11] I propose to treat your offending as realistically comprising a single series of incidents. In saying that, I acknowledge that the Operation Moremi charges occurred slightly later than the charge that relates to Operation Leo. You also dealt with slightly different people. In reality, however, it was simply an expanded form of the type of offending in which you had been involved during the period covered by Operation Leo. I therefore propose to fix an overall starting point that reflects the totality of all of your offending.
Starting point
[12] The leading case in fixing the starting point is, of course, the judgment of the Court of Appeal in R v Fatu [2006] 2 NZLR 72. In that case the Court identified offending within various bands that would attract specified starting points. The starting point is the sentence that would be imposed after a defended hearing and before taking into account factors that are personal to the offending. Band 1 in Fatu relates to the supply of up to five grams of methamphetamine. This will generally attract a starting point of between two and five years imprisonment. Supplies of methamphetamine involving between five and 250 grams will result in a starting point of between three and nine years imprisonment.
[13] The fact that the charge relating to Operation Leo involved a quantity of 220 grams of methamphetamine places you firmly at the top end of Band 2 in Fatu. That fact is confirmed by the extent to which you were engaged in drug-dealing activity. You were obviously dealing on a very regular basis at both street level and also in larger quantities. You are, therefore, both a retailer and a wholesaler of methamphetamine. In my view that easily puts you at the top end of Band 2, and both your counsel and counsel for the Crown accept that a starting point in relation to that offending of eight years imprisonment is appropriate.
[14] I consider that a starting point of four and a half years imprisonment would ordinarily have been appropriate in relation to the remaining two charges. It, too, involved regular dealing in methamphetamine. It has added seriousness because it discloses that you had additional sources of supply. This means that you could operate on a greater scale than the Operation Leo offending had identified. I accept, however, that it would be completely unrealistic to impose a sentence of 12 and a half years imprisonment because that would greatly outweigh the gravity of your offending.
[15] I am satisfied, however, that the Operation Moremi offending meant that you were involved in the supply of methamphetamine of more than 250 grams. The other factors that I have identified in relation to the scope of your offending mean that you move from the top end of Band 2 in Fatu to the bottom end of Band 3. I consider that an overall starting point of ten years imprisonment is appropriate to take into account the totality of your offending.
Aggravating factors
[16] You have previous convictions involving methamphetamine, but nothing relating to supply and certainly nothing on the scale of your current offending. For that reason I do not apply an uplift to recognise your previous offending.
[17] Obviously, Mr Chapman, from now on you will be marked out as a significant drug dealer. If you ever appear on charges like this again, you need to be under no apprehension that the Court will apply a significant uplift. That will reflect the fact that the sentence you receive today has not deterred you from offending, and future offending will be made all the more serious by that fact.
Mitigating factors
[18] I now need to determine the extent to which I should reduce the starting point that I have selected to reflect factors that are personal to you. I have a pre-sentence report that indicates that drugs have been a large part of your life for a long time now. You decided to become involved in dealing drugs because you saw it as an
easy way of making money and providing you with the material possessions that some of your associates had. It also enabled you to acquire drugs for your own use.
[19] You say that you have now seen the error of your ways and that you are determined to remain drug-free in the future. That really has to be the case, Mr Chapman, if you are going to avoid spending very lengthy periods in prison.
[20] In reality, the only factor for which I can give you credit is the fact that you have pleaded guilty. The issue is the extent to which those pleas should be recognised.
[21] The leading case in this regard is a decision of the Court of Appeal in R v Hessell [2009] NZCA 450. It suggests that a very early guilty plea should attract a discount of 33 per cent. That reduces to 20 per cent following committal and then down to ten per cent when the plea is entered on the day of trial. Once the trial begins very little discount, if any, can be given.
[22] In your case the pleas came late so far as the trial date was concerned. For that reason the Crown contends that a discount of just ten per cent is warranted. Your counsel suggests that a discount of 30 per cent is warranted having regard to a number of factors.
[23] First, she points out that both sets of offending involved complex factual matters and the extent of the Crown’s allegations did not become clear until relatively late in the piece. I acknowledge that that is the case, but I was the Judge who presided over a callover of all of the accused who were committed to this Court for trial on the Operation Leo charges. I told all accused that if they entered pleas of guilty at the next callover, by which stage a detailed summary would be available to them, they would receive a discount of 30 per cent. Some of your co-accused elected to take advantage of that offer. It would be wrong in principle, and unfair to those persons, if I was to give you the same discount as I gave to persons who pleaded guilty a long time ago.
[24] Your counsel also points out that the police initially laid a charge against you in relation to the unlawful conversion of the motor vehicle in which you were found on 4 August 2008. Eventually that charge was withdrawn, but it appears that you had an idea in your mind that it was a significant factor in the chain of events that gave rise to your arrest. For that reason you initially challenged the evidence of the Crown in relation to the methamphetamine that was found in your car. Ultimately, however, your counsel was able to persuade you that the argument was fruitless and you abandoned the application. That challenge, of course, related to the Operation Moremi charges.
[25] By this stage the Operation Leo charges had been transferred back to the District Court for trial. You and the Crown were at odds over the amount of methamphetamine involved in the Operation Leo offending. The Crown contended that it was more than 220 grams. That was the sum that was ultimately settled on in the case of your co-offender, Mr Nelson. The issue was set down for a disputed facts hearing before His Honour Judge Wilson QC in the District Court on 28 May 2010. Shortly before the hearing, however, the Crown accepted that 220 grams accurately reflected the extent of your offending in relation to the Operation Leo charges. For that reason the Judge was not required to determine the amount.
[26] Your counsel advises me from the bar that, during that hearing, submissions were also made to the Judge regarding the extent to which you should receive a discount for your guilty plea. The Crown at this stage was saying that you should receive a discount of around ten per cent, and your counsel was arguing that it would be around 30 per cent. The Judge was never required to finally determine that point.
[27] Your counsel also refers me to the discount imposed in the case of your co- offender, Mr Nelson (R v Nelson HC Auckland CRI-2008-092-018743, 3 February
2010). In that case the sentencing Judge noted that the Crown accepted that a discount of 30 per cent was appropriate. The difference between Mr Nelson’s case and your case, however, is that Mr Nelson had told the Crown at an early stage that he would not be contesting the charges against him. For that reason the Crown always knew from a very short time after committal that it would not need to prepare for a trial in relation to Mr Nelson. The Crown says that that was not the case as far
as you are concerned, and that your offer to plead guilty arose relatively late in the piece.
[28] I am satisfied that negotiations began shortly after March 2010 when your challenge to the search and seizure evidence in relation to the Operation Moremi charges in this Court was abandoned. Once you pleaded guilty in the District Court to the Operation Leo charge, those discussions continued in earnest in relation to the Operation Moremi charges.
[29] I have also been referred to the case of R v Paki-Edwards HC Auckland CRI
2008-092-17198, 4 February 2010 in which another of your co-offenders received a discount of 25 per cent. Again, the difference between the circumstances in that case and those in your case is the fact that an indication that guilty pleas would be entered arose much earlier in that case than was the case in relation to the charges that you faced.
[30] Viewing those matters in the round, I am satisfied that a greater discount of ten per cent is warranted because guilty pleas were intimated in relation to both sets of charges earlier than the date of trial. I am not satisfied, however, that it would be appropriate to grant you the same level of discount that was given in either the case of Mr Paki-Edwards or that of Mr Nelson. I propose to allow a discount of 20 per cent to reflect your guilty pleas.
Sentence
[31] On the representative charge of supplying methamphetamine that arises out of Operation Leo, you are sentenced to eight years imprisonment.
[32] On the charge of conspiring to supply methamphetamine that arises out of
Operation Moremi, you are sentenced to three years imprisonment.
[33] On the representative charge of supplying methamphetamine that arises out of Operation Moremi, you are sentenced to three years imprisonment.
[34] All sentences are to be served concurrently. This means that you will serve an effective sentence of eight years imprisonment.
Lang J
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