R v Chauval HC Rotorua CRI-2009-063-5871
[2010] NZHC 2331
•15 October 2010
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2009-063-5871
THE QUEEN
v
LEON EDWARD CHAUVAL
Hearing: 15 October 2010
Counsel: A Gordon for Crown
RM Mansfield for the Prisoner
Judgment: 15 October 2010
SENTENCING NOTES OF WYLIE J
Solicitors: Crown Solicitor, P O Box 740, Rotorua 3040
RM Mansfield, P O Box 2674, Shortland Street, Auckland 1140
R V CHAUVAL HC ROT CRI-2009-063-5871 15 October 2010
[1] Mr Chauval, you appear for sentence today having pleaded guilty to six charges under the Misuse of Drugs Act 1975. The details are as follows:
[1] That between 15 September 2009 and 24 October 2009, you supplied the Class A drug, methamphetamine. This is a representative charge. The maximum penalty is life imprisonment;
[2] That between 16 September 2009 and 9 October 2009, you offered to supply methamphetamine. Again, this is a representative charge and the maximum sentence is life imprisonment;
[3] That between 22 October 2009 and 26 October 2009, you conspired with two others to supply methamphetamine. The maximum sentence is 14 years imprisonment;
[4] That on 22 October 2009 you were in possession of methamphetamine for supply. The maximum sentence is one of life imprisonment;
[5] That you were in possession of precursor substances, namely ContacNT, between 28 and 30 September 2009. The maximum sentence is one of five years imprisonment; and finally,
[6] That together with another individual you supplied precursor substances (ContacNT) between 13 October 2009 and 15 October
2009. The maximum is one of seven years imprisonment.
[2] You pleaded guilty on arraignment to an amended indictment on 12 August
2010. Following your plea, you were convicted by Priestley J in relation to these offences.
[3] You were subject to a further nine charges, all dated 27 October 2009. These charges were laid summarily by way of summary informations. They included possession of the Class C controlled drug, cannabis and diazepam; the cultivation of
cannabis; possession of the Class B controlled drug, morphine; possession of methamphetamine; possession of a methamphetamine pipe; possession of a firearm; and possession of explosives. You have today entered a plea of guilty to the charge of cultivating cannabis. You elected summary jurisdiction. The other charges have been withdrawn by the Crown.
[4] I sentence you today in relation to all charges in respect of which you have pleaded guilty.
Background facts
[5] I briefly summarise the background facts. The six methamphetamine and precursor substance charges arise from a single police operation and they cover the period 16 September 2009 to 26 October 2009.
[6] In May 2009, Bay of Plenty police began investigating the activities of two persons, a Mr W and a Mr P. The investigation involved surveillance and the collection of cell phone data. The data revealed that a methamphetamine syndicate was operating in the Rotorua region. This syndicate was a loose organisation, committed to furthering the methamphetamine trade in the area, and cementing its place within the wider region. Data suggested that those involved were purchasing large quantities of methamphetamine effectively on a wholesale basis and that it was then being on-sold.
[7] On 4 September 2009, a warrant was obtained to intercept the private communications of a number of those allegedly involved. On 1 October 2009, a further warrant was obtained permitting the police to intercept the private communications of a number of people, including your private communications.
[8] Subsequent analysis revealed the role of each participant and the scope of the methamphetamine trade being carried on. This “business” was akin to a commodity brokering firm. Those involved dealt in all aspects of the methamphetamine trade. Cash and commodity flowed freely up and down the organisation. The “business” included the brokering of deals for large quantities of precursor product, the
manufacture of methamphetamine, the supply of equipment needed for its manufacture, the organisation of methamphetamine manufacturers, and ultimately, the sale of the drug. The group was largely amorphous, with members taking different roles and having different degrees of involvement, depending upon the circumstances.
[9] Each member of the group not only fulfilled a role in the wider organisation, but also had their own drug enterprise, comprising customers and other dealers. This ensured that methamphetamine could be readily sourced by any person at any time.
[10] There were various players in the organisation. It seems that you initially were a methamphetamine courier for one of the main players, transporting methamphetamine from an Auckland supplier to others involved. Subsequently you assisted another of the major players, as the deals involving methamphetamine became progressively larger. You also acted as an agent in a deal brokered by one of the major players for the sale of a commercial quantity of precursor substances.
[11] You also had your own separate methamphetamine business. You would uplift methamphetamine from an Auckland supplier and then make deliveries to consumers around the countryside between Auckland and Levin.
[12] You were generally quite open in your dealings over the phone. You frequently communicated the amounts of methamphetamine you were supplying, and police have been able to establish that the minimum amount that you were supplied, or had in your possession for supply, between 16 September 2009 and 26 October
2009, was 265.5 grams of methamphetamine.
[13] You have pleaded guilty to a representative charge of selling methamphetamine to various individuals. In this regard there were a number of individual supplies of at least 148.5 grams in total between 22 September 2009 and
2 October 2009. Intercepted communications also revealed various offers to supply methamphetamine. On occasion quantities were discussed. The total amount offered was at least 33 grams. You purchased large quantities of ContacNT from one of the others involved – apparently some $75,000 worth. This was for six “sets”
of the precursor substance. You assisted in the brokering of a deal for the sale of six “bricks” of ContacNT valued between $60,000 and $72,000. When you were stopped in your motor vehicle on 26 October 2009, three individual bags of methamphetamine were found in your car. Each one contained one ounce of high quality methamphetamine. In the course of a month and a half, you had at your disposal somewhere between $66,000 and $160,000 worth of methamphetamine. It is also clear from intercepted communications that the methamphetamine in your possession and which you supplied was generally of a high quality. This is indicated by the fact that on more than one occasion, an ounce of methamphetamine was sold by you for either $17,000 or $18,000, which is a high price for that quantity of the drug.
[14] You were stopped in your car by police on 26 October 2009. On the following day the police executed a search warrant at your address. One of the bedrooms had been converted to a dedicated cannabis growing room. The room was sophisticated in its setup. The walls were lined with reflective lining. Grow lights were being used as well as stands, timers, a thermometer and liquid fertilizers. Six mature cannabis plants were located growing in the room. The plants were approximately one week away from being fully mature and they exhibited a large amount of good quality head material.
Personal circumstances
[15] I now turn to your personal circumstances. I have received a helpful pre- sentence report and comprehensive submissions on your behalf from Mr Mansfield.
[16] You are a 44-year-old male of European descent. Your childhood was relatively settled and you enjoyed a close relationship with both of your parents. After leaving school, you became an apprentice to your father and were learning his trade. Unfortunately, your father died at an early age of melanoma, and you quickly lapsed into alcohol, and subsequently cannabis, abuse. This appears to have been the genesis for your current offending.
[17] You were first married in 1986. You and your first wife had three daughters, all of whom are now in their twenties. The marriage came to an end after some seven years, but you and your former wife have remained in regular contact. You also maintain a good relationship with your daughters. Indeed, each of them has written me a letter. All speak of you in affectionate terms and it is clear that you enjoy their support and love.
[18] You have since been in another long-term relationship, which lasted for some
15 years, but which ended acrimoniously. For much of the last five years, you have been single.
[19] You have mostly lived in the Manawatu area, but have moved to Tokoroa. You have worked as a painter and decorator, and have mostly been self-employed. Recently, you have worked as a tattoo artist. Your mother, who has also written to me, and your daughters, praise your artistic talent.
[20] You suffered a serious motorcycle accident in November 2008. At the time you used methamphetamine and cannabis to ease the pain. You have since become addicted to methamphetamine. When you were first remanded in custody, you underwent a significant period of withdrawal. You now advise that you are in excellent physical and mental health. Financially, you have no assets or income. Indeed, you have outstanding fines of some $11,000.
[21] You advised the probation officer that prior to 2008 you had never used methamphetamine. Once you became addicted to the drug, you ceased using other drugs. You told the probation officer that you initially purchased methamphetamine from some of your associates, and that you accumulated a large debt with them. You say that you were drawn into the net, and that some of your associates used the debt to maintain leverage over you. You have maintained this stance in a letter you have written direct to me.
[22] You told the probation officer and you have told me that, in large part, you were simply a “mule” for the organisation. You have stated that you had simply collected drugs and money, without ever being really aware of the amounts involved.
You doubted that you had handled a total of some 266 grams of methamphetamine and you claim that you were only involved in the operation for some five weeks.
[23] The probation officer considered that you have expressed significant and genuine remorse. Indeed, this is apparent from the letter you have sent me. You have expressed relief at being apprehended, and I am told that you appreciate the detrimental impact that the drug has had on your life. You are grateful that your family has stood by you.
[24] Although you did a drug and alcohol programme following your release from custody in 2004, you have not been involved in other rehabilitative interventions.
[25] Factors considered to contribute to your offending are drug abuse and your association with criminal elements. You have now overcome your methamphetamine addiction. You tell me in your letter that you have been clean for
345 days. The probation officer considered that you are highly motivated to remain free of methamphetamine. You tell me that you would welcome the chance to undertake a relapse prevention programme, and that you intend to undertake tertiary study if possible. You are nevertheless assessed as being at medium risk of reoffending.
[26] The probation officer recommended that you should be sentenced to a term of imprisonment. Indeed, as you accept, that is inevitable.
Criminal history
[27] Turning to your criminal history, you have an extensive criminal history. You accumulated some 35 convictions over the period 1984 to 2008. Most have been for relatively minor offences, including assaults, thefts, disorderly behaviour, dishonesty offences, wilful damage, and driving offences. More significant offences relate to burglary in 1986 and 1990, and receiving property in 1990.
[28] You also have several convictions for drug-related offending, including the possession of cannabis, the possession of utensils, possessing equipment, two (now
three) convictions for cultivating cannabis for supply, supplying cannabis oil, supplying cannabis leaves and selling opium.
Submissions
[29] I have received helpful submissions from Ms Gordon, for the Crown, and from Mr Mansfield on your behalf.
[30] Both counsel referred to the leading decision of the Court of Appeal in R v Fatu[1]. In that case, the Court of Appeal dealt with the appropriate tariffs for those involved in the methamphetamine trade.
[1] R v Fatu [2006] 2 NZLR 72 (CA)
[31] Ms Gordon submitted that your offending fell within what is known as Band 3 in Fatu – supplying large commercial quantities of the drug between 250 grams and 500 grams. She noted that the Court of Appeal have suggested that offending within Band 3 should generally attract a term of imprisonment of between eight and eleven years. She acknowledged that the quantity of drugs that the police can prove were supplied by you fell at the lower end of Band 3, and submitted that a starting point of between eight and nine years would be appropriate for your offending. She then submitted that an uplift in this starting point was required, given that you have also pleaded guilty to the possession and supply of precursor substances. She submitted that a starting point of between nine and ten years imprisonment was appropriate. She also suggested that a further small and discrete uplift is appropriate, given your previous convictions. She acknowledged your early guilty plea, and accepted that practically, it was entered at the first available opportunity. She accepted that you should receive a discount of one-third of the sentence which would otherwise be imposed to recognise that plea.
[32] Mr Mansfield agreed that a starting point of eight to nine years imprisonment is appropriate, although he urged me to adopt a starting point at the lower end of that step.. He suggested that little or no uplift was appropriate, and further that a reduction from the starting point is required to take into account that, in his
submission, you were primarily a courier. This morning he acknowledged that your role did go beyond that of a courier per se and that the summary of facts suggests that you had at least some active involvement in the organisation. He accepted that your previous convictions were an aggravating feature but argued that there were a significant number of mitigating factors personal to you which I need to take into account. He suggested that an appropriate end sentence would be between five and five and a half years imprisonment.
Purposes and principles of sentencing
[33] Turning to the purposes and principles of sentencing, I have taken into account a number of the purposes of sentencing set out in s7 of the Sentencing Act
2007. In particular, I must hold you accountable for the harm that you have done to the community and I must hold you responsible for the harm that you have caused. I need to denounce the conduct in which you were involved, and seek to deter you and others from committing the same or a similar offence. Moreover, I have to protect the community from you, while assisting in your rehabilitation and reintegration insofar as I am able to do so.
[34] The relevant principles of sentencing are set out in s 8 of the Act. I am required to take into account the gravity of your offending and your culpability, the seriousness of the types of offence to which you have pleaded guilty, and ensure that such sentences that I pass are generally consistent with appropriate sentencing levels for other similar offenders committing similar offences. I am mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.
Analysis
[35] I now turn to my analysis. The leading decision in relation to the supply of methamphetamine is the decision of the Court of Appeal in R v Fatu. As I have already noted, the Court in that case detailed sentencing bands for the sale and supply of methamphetamine. Band 3 relates to the supply of large commercial
quantities of the drug – between 250 grams and 500 grams, and suggests that a term of imprisonment of between eight and eleven years is appropriate in such cases.
[36] The total amount of methamphetamine involved in your offending was approximately 266 grams. That amount, though significant, falls towards the lower end of Band 3 in Fatu. I am mindful that this total amount relates to quantities involved in all of your methamphetamine related offending, including supply, offering to supply, possession for supply and conspiracy to supply. These are clearly the lead offences for sentencing purposes.
[37] However, where an offender fits within a particular band depends not just on the quantity of the drugs involved but also on the role played by the offender. Here I accept from the summary of facts, to which you have pleaded, that you were not one of the primary offenders in the organisation. However, I am not convinced that you were simply a courier or a “mule”. The summary of facts suggests that you played a more significant role, particularly as quantities became larger. In my view, it is clear that you had an active involvement in the overall organisation of which you were a part.
[38] There was clearly premeditation by you and significant commerciality involved in your offending. While there was no evidence to suggest that you profited directly, the level of sophistication within the organisation was high. You usually dealt in ounces and you supplied the drug in bulk. Further, the product you supplied was generally of high quality.
[39] Moreover, you supplied direct to various customers effectively on your own account.
[40] Your offending will have caused significant harm in the community. Methamphetamine is a scourge and in recent years there has been a huge increase in its supply and manufacture. As you know to your personal cost, it is a highly addictive drug responsible for much harm in society.
[41] Taking into account your role in the organisation, the quantity and purity of the drugs supplied by you, and the other aggravating features which I have mentioned, in my view, a starting point of eight years and six months is appropriate for the lead offence – namely the supply of methamphetamine.
[42] In fixing this starting point, I have had regard to a number of other cases, such as R v Moore[2] where the amount of methamphetamine involved was some 252 grams. The starting point adopted by the Judge in that case was six years imprisonment because the offender played a relatively minor role. I have also considered R v Peri[3] where the amount involved was some 266 grams. The Judge adopted a starting point of eight years and six months imprisonment. I have also considered R v Chou[4] where the amount involved was 280 grams, and a starting point of eight years imprisonment was adopted. I also referred to R v Gray[5] where the amount involved was 297 grams and the Judge adopted a starting point of nine years imprisonment.
[2] R v Moore HC Hamilton, CRI 2008-019-3663, 23 April 2010, Woodhouse J
[3] R v Peri HC Auckland, CRI-2006-019-8458, 9 December 2008, John Hansen J
[4] R v Chou HC Auckland, CRI-2007-004-8340, 21 October 2008, Asher J
[5] R v Gray, HC Auckland CRI-2006-004-3200, 25 September 2007, Allan J
[43] I now consider whether the starting point I have adopted should be uplifted.
[44] In this regard I need to take into account the totality of your offending. There is force in Mr Mansfield’s submission that the total quantity of methamphetamine supplied or dealt with by you comes from a review of all methamphetamine related charges, and that the total has been used, in part, to determine the starting point. Nevertheless, you were involved not only in the supply of methamphetamine, but also in the supply and possession of ContacNT, which is the main precursor ingredient used in the manufacture of methamphetamine. These are separate and identifiable offences. It is clear that you were involved in all aspects of the methamphetamine trade, and that the quantities of the precursor ingredient that you were involved in supplying were significant. As I have noted, you had in your possession approximately $75,000 worth of ContacNT, and you assisted in the brokering of a deal for the sale of six bricks of ContacNT valued at somewhere between $60,000 and $72,000.
[45] There is also the cultivation of cannabis charge to which you have pleaded guilty to this morning.
[46] In my view, an uplift of a further nine months is appropriate to recognise the totality of your offending. Accordingly, I adopt as my initial starting point a term of imprisonment of nine years and three months.
Aggravating and mitigating factors personal to you
[47] I now look at aggravating and mitigating factors personal to you. There is one significant aggravating factor personal to you. As I have already mentioned, you have a number of previous convictions for drug related offending. While that offending occurred some years ago, it is clear that you have not learnt your lesson from your past mistakes. In my view, it is appropriate to uplift the starting point by a further three months to recognise this aggravating feature.
[48] There are also mitigating features personal to you.
[49] First, there is your remorse. That is apparent not only from your pleas but also from your letter addressed to me. I accept that it is appropriate to allow you a minor discount to recognise this factor.
[50] Secondly, I refer to your guilty plea. I accept that you are entitled to a full one-third discount for your guilty plea. Although it was not entered at the first opportunity in the true sense, it was entered at a very early stage, in the context of the particular charges you face. There was a significant amount of material that had to be reviewed by your lawyer before he could give you the appropriate advice. Ms Gordon, for the Crown, accepted that, in a practical sense, your guilty plea was entered at the first available opportunity. It is appropriate to allow you a full discount of one-third of the sentence which I would otherwise have imposed.
[51] Mr Mansfield submitted that your desire to rehabilitate yourself, and the family support you enjoy are mitigating factors. I do not accept this submission. You have had the opportunity to rehabilitate yourself on previous occasions. You
have failed to take it in the past. I accept that you are now motivated to turn your life around but that does mitigate in any significant way the serious offending which you have been involved. You are fortunate in the extreme to still enjoy the support of your family. They will be able to help you in the future and to assist in your reintegration, but again this is not a mitigating factor as such. Personal factors such as these generally play little part in sentencing for drug related offending.
Sentence
[52] Mr Chauval, will you please stand.
[53] In respect of the offence of supplying methamphetamine between
15 September 2009 to 24 October 2009, I sentence you to a term of imprisonment of five years and ten months.
[54] In respect of the offence of offering to supply methamphetamine between
16 September 2009 and 9 October 2009, I sentence you to a term of imprisonment of three years.
[55] In respect of the offence of conspiring to supply methamphetamine, I
sentence you to a term of imprisonment for two years.
[56] In respect of the offence of possession of methamphetamine for supply, I
sentence you to a term of imprisonment for two years.
[57] In respect of the offence of possession of precursor substances, I sentence you to a term of imprisonment for three years six months.
[58] In respect of the offence of supply of precursor substances, I sentence you to a term of imprisonment of four years.
[59] In respect of the offence of cultivating cannabis, I sentence you to a term of imprisonment of three months.
[60] All sentences are to be served concurrently.
Other matters
[61] The probation officer recommended that your outstanding fines should be remitted. Mr Mansfield also raised this on your behalf.
[62] In my view, I do not have jurisdiction to remit your fines. The power to remit fines is contained in s 88(3)(h) of the Summary Proceedings Act, and the procedure detailed in s 88 of that Act must be complied with. An application will have to be made to the District Court on your behalf if you want the fines to be remitted.
[63] The Crown did not seek that a minimum term of imprisonment should be imposed. I have considered the issue briefly. I do not think that a minimum term is either required or necessary.
[64] By consent I make an order for the destruction of any of the drugs and other associated equipment and items seized from you.
Conclusion
[65] Mr Chauval, you have expressed a strong desire to remain free of your methamphetamine addiction. It has obviously caused considerable difficulties in your life, and I suspect that it has been a major factor contributing to your offending. You impressed the probation officer as being highly motivated to remain free from the addiction for the rest of your life, and you have indicated that you will welcome the opportunity to undertake a relapse prevention programme. You have also advises that you intend to use your time in prison productively by undertaking tertiary studies if that is possible.
[66] I trust that you will be successful in your endeavours, and that you will return to society and fulfil the high expectations your daughters and other family have for
you.
Wylie J
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