R v Clarke
[2012] NZHC 2146
•24 August 2012
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2010-088-003872 [2012] NZHC 2146
THE QUEEN
v
WAYNE JOHN CLARKE KELLY RICHARD DODD NICKY BRYAN DODD TREVOR JOHN MCTAVISH MATTHEW KAWENA SMITH NELSON WILLIAMS
CRI-2011-088-004487
THE QUEEN
v
NICKY BRYAN DODD
Hearing: 24 August 2012
Counsel: B O'Connor for the Crown S K Ellis for Mr Clarke HDM Lawry for Mr K Dodd
N G Cooke for Mr N Dodd in CRI-2010-088-003872 and K C Bailey for Mr N Dodd in CRI-2011-088-004487
W D McKean for Mr McTavish
K C Bailey for Mr Smith
M Wharepouri for Mr Williams
Judgment: 24 August 2012
SENTENCE OF WOODHOUSE J
R V CLARKE AND ORS HC WHA CRI-2010-088-003872 [24 August 2012]
[1] Each of you – and I am addressing, of course, the offenders – appears today for sentence for drug offences. The offences relate to methamphetamine, the precursor substance pseudoephedrine and cannabis, although not all of you are to be sentenced for offences relating to all three substances. I will provide the particulars of the offending, to the extent necessary, when I come to deal with the sentence for each of you individually. There are also offences of money laundering, robbery, and unlawful possession of a pistol and explosives.
[2] All of the offending is serious. There are offences of supplying and offering to supply methamphetamine with a maximum penalty of life imprisonment. There are offences of conspiring to supply or conspiring to manufacture methamphetamine with a maximum penalty of 14 years imprisonment. The robbery offence, on which Mr Nicky Dodd is to be sentenced, has a maximum penalty of 10 years imprisonment. The offence of offering to sell cannabis has a maximum penalty of eight years imprisonment. Offences of conspiring to supply a precursor substance, conspiring to supply cannabis, cultivating cannabis and money laundering each has a maximum penalty of seven years imprisonment. The offence of possession of equipment for cultivating cannabis, on which Mr McTavish is to be sentenced, by itself has a maximum penalty of five years imprisonment. The firearms charges, on which Mr Smith is to be sentenced, have a maximum penalty of four years.
[3] All of you pleaded guilty to the offences for which you are now to be sentenced. The charges arose from a Police operation between April and September
2009 primarily directed to the involvement of the Tribesmen gang in methamphetamine and other drug offending in Northland. A large body of evidence was obtained, and in particular from telephone records and intercepted telephone conversations. I do not intend to go into the detail. I take account of the relevant evidence and in particular when I come to fix starting points for the lead offences for each of you. The cannabis cultivation and some of the other offences were discovered when the Police operation was ended in October 2009 with execution of search warrants.
[4] For the offences of supplying and offering to supply methamphetamine there is the Court of Appeal tariff case of Fatu,1 which has been applied for fixing the starting points for those offences. The Court of Appeal decision in Terewi2 is the leading decision on sentences for cannabis cultivation and dealing. The guidelines provided by the Court in that case have been taken into account for the relevant offences.
[5] With the other drug offences there are no specific Court of Appeal tariff or guideline cases. However, the Fatu and Terewi guidelines are of assistance. They assist by way of comparison, with the appropriate adjustments made for the maximum penalties. They also assist whether or not the offence in question, on which the sentence is being imposed, is a completed offence or conspiracy to commit an offence, provided further adjustments are made as necessary. Caution is needed in not simply assessing matters as if this was a mathematical exercise in proportionality, but the broad principles are clear. These are discussed in cases such
as Jarden3 in the Supreme Court, Te Rure4 in the Court of Appeal, and in some High
Court cases. Aspects of this were also discussed in sentencing your co-offender, Mr Hart, last Wednesday. I take account of relevant principles and cases noted on Mr Hart’s sentencing. This applies in particular to the offences of conspiring to supply a precursor substance.
[6] With the exception of Mr Smith, in relation to some charges, and Mr Williams, all of you pleaded guilty after the scheduled commencement date of the trial. The guilty pleas were entered over a period of days through to what would have been the sixth day of the trial. A jury was empanelled towards the end of this period. You, Mr Smith, pleaded guilty to some counts towards the end of 2011 and to the remaining counts, on which you are to be sentenced, after the scheduled commencement date of the trial. In Mr Williams’ case you pleaded guilty to two charges with the trial on those charges to commence at the end of the first trial that I
have just mentioned. The charges you were facing from the then current trial were
1 R v Fatu [2006] 2 NZLR 72 (CA).
2 R v Terewi [1999] 3 NZLR 62 (CA).
3 R v Jarden [2008] NZSC 69.4 R v Te Rure (1997) 23 CRNZ 967 (CA).
dropped. In other words, your guilty pleas were in advance of the commencement of the particular trial.
[7] I have received submissions from the Crown and from each of your counsel as to the appropriate discount for the guilty pleas. I have had regard to the submissions, and in particular as to the reasons why pleas were entered at particular points of time, and in that regard I have applied, of course, the broad principles as stated in the Supreme Court case of Hessell.5
[8] I do note that a number of counts of more serious offending were not in the end pursued by the Crown. This is relevant in the overall circumstances of this case for the purposes of sentencing in a very broad way. It indicates that the drug activities that I am now dealing with are not as serious as originally alleged.
[9] Because I do not intend to outline all of the information taken into account in fixing the sentences for each of you, I do make clear that I have had regard, in particular, to the submissions made on your behalf and the other information provided in support of your submissions on sentence. And I have, of course, taken account of the Crown’s submissions and the pre-sentence reports including, where relevant, details of earlier offending.
[10] Submissions have been made for each of you on personal matters – that is to say, matters relating to you personally rather than matters directly relating to each of your offences. As counsel have acknowledged, generally matters of a personal nature, advanced to reduce the sentence, will not be given much weight, if any. That is not an inflexible rule, but it does apply to numbers of submissions that have been made. Again, I note this without intending to go into the detail when dealing with each of you. This does not apply to reductions for guilty pleas. And it does not apply where an offender has been subject to particularly restrictive bail conditions. And there may be other personal matters of sufficient weight to be brought into the
balance.
5 R v Hessell [2010] NZSC 135; [2011] 1 NZLR 607 (SC); (2010) 24 CRNZ 966 (SC).
[11] In its submissions on each offender the Crown refers to what it submits are aggravating features of particular offences. For example – and these are just examples – there are references to the extent of any loss, damage or harm resulting from the offence and to premeditation. These, and other factors relied on by the Crown, are generally referred to in s 9 of the Sentencing Act. However, with most of the offences I have to deal with, they are not truly aggravating factors justifying an increase in the starting point. The starting point reflects most of the particular matters referred to by the Crown. The Court of Appeal guideline judgments for drug offending, fixing categories or bands, incorporate – or in broad measure incorporate
– the various aggravating factors. In broad terms in this regard, I agree with Mr
Lawry’s submissions.
Wayne John Clarke
[12] Mr Clarke, I now come to your sentence. You are to be sentenced for three offences of conspiring to supply the precursor substance pseudoephedrine, in ContacNT tablets, and one offence of money laundering involving a sum of $10,200.
[13] The conspiracies to supply the precursor substances are the lead charges. There was a total of 33 sets of ContactNT with a potential yield from that total of
1.49 to 2.23 kilograms of methamphetamine. When assessed in relation to the Fatu6
guidelines, this quantity, even at the lower level, puts the offending at the most serious level, and well into the equivalent of band 4 of Fatu with appropriate adjustments for the fact that these are conspiracies, not completed offences, and, of course, taking into account the actual offence and its maximum penalty of seven years imprisonment – that is, compared with the offences and penalties dealt with in Fatu.
[14] I recognise that there are three separate offences. However, two of these were linked in time in large measure. And it would be possible to take those two as the lead offences together and increase the sentence to take account of the third
offence. What these comments are directed to is, essentially, the meaning of the
6 R v Fatu [2006] 2 NZLR 72 (CA).
expressions ‘lead offence’ and ‘starting point’. In this case I consider it appropriate, in effect, to apply the starting point to a group of offences. These observations also apply in relation to starting points for other offenders.
[15] Some relevant cases in respect of the starting point were noted when sentencing Mr Hart. The Crown submits that the starting point should be in a range of five to six years for the three conspiracy charges taken together. Ms Ellis submits that the starting point should be three-and-a-half to four years imprisonment. For reasons indicated in the Hart sentencing, that, with respect, is not realistic. The quantities are large, with correspondingly very large quantities for the potential yield of methamphetamine. And on one of the counts you had $230,000 said to be available to spend on ContacNT. This is offending at a serious level for each of the conspiracies. I should also make clear that a firm starting point of four years was not fixed for Mr Hart.
[16] The starting point, effectively combining the conspiracies for this purpose, is four-and-a-half years imprisonment.
[17] There are some matters which would generally require an increase to this starting point of four-and-a-half years. The first is the money laundering offence. This warrants an increase of three months, or perhaps more.
[18] In addition, these offences were committed by you while you were in prison serving sentences imposed in November 2006. You received a sentence of six years imprisonment for kidnapping. There were some cumulative sentences resulting in a total end sentence of nine years imprisonment. Committing the present offences while in prison is an aggravating factor. Ms Ellis submitted that, and I quote, “offending from within the confines of a prison is at worst neutral and may even slightly mitigate”. Again, with respect, I do not agree. And I have taken full account of the submissions made on your behalf. This would also require an increase in the starting point.
[19] You are aged 30. You have 49 previous convictions. None is for drug offending. However, the previous offences include violence and dishonesty and
there have been sentences of imprisonment before the sentence you are currently serving. These further matters – and mainly the first – would warrant a further increase of at least three further months, taking it to five years imprisonment.
[20] You are entitled to credit for the guilty pleas. Although the actual pleas were entered after the scheduled commencement date for the trial, there were earlier negotiations. The Crown has submitted that you are entitled to a reduction of 7-10%. Ms Ellis submits that it should be 10%. I agree that it should be 10%. There have been some submissions for a higher level but I am satisfied that 10% is a fair allowance in your case.
[21] The end sentence for the offences of conspiring to supply a precursor substance would, on this basis, be four years six months imprisonment. There will be a concurrent sentence of two years for money laundering. These sentences are to be served cumulatively on the sentences you are presently serving. This requires an assessment of totality. An addition of four-and-a-half years imprisonment is too much. The end sentence will be three-and-a-half years imprisonment. I should make clear – and it may already be assumed – I will formally impose the sentences on all of you at the conclusion of these remarks, which inevitably will take some time.
Kelly Richard Dodd
[22] I come to Mr Kelly Dodd.
[23] The offences in your case are as follows:
(a) Three offences of conspiring to supply pseudoephedrine in ContacNT tablets. These are the same offences I have just dealt with for Mr Clarke and the same general observations apply to the offences themselves as opposed to your involvement and your personal circumstances.
(b)There is an offence of conspiring to supply methamphetamine. The amount involved was half an ounce – or around 14 grams.
(c) Eight7 offences of offering to supply methamphetamine. The offers range from a quarter of a gram to one gram. The total is 4.25 grams.
(d)There are nine offences of offering to sell cannabis with the total amount of money involved being $1,200. Individual quantities range from one to two tinnies up to an ounce for $300.
(e) There is one offence of conspiring to supply cannabis in 40 bags for a total of $4,000.
(f) There is the same money laundering offence Mr Clarke pleaded guilty to.
(g)There is one offence of cultivating cannabis. This was the subject of the disputed facts hearing on Monday leading to a minute recording matters agreed between the Crown and defence experts. Although there have been subsequent submissions for the Crown as to the quantity that may have been produced from the smaller plants, if the duration of lighting had been changed, I intend – as I have already indicated – to sentence on the basis of the growing operation as found by the Police. In broad terms, I am satisfied that you and your co- offenders on this charge are entitled to the benefit of the doubt to the essential effect that nothing would have changed over the next few days and things would have had to have changed over the next few days for the yield to have increased to any material extent. The potential yield, as agreed by the experts on the basis I have just referred to, would have produced cannabis with a sale value of
between $52,200 and $80,420. This is based on a total estimated
7 Eight was stated in error. The correct number is seven. This error had no material effect on the sentence and was corrected in the formal documents after the sentence was imposed.
yield, as recorded in the earlier minute, of between 7.4 and 11.4 kilograms of cannabis.
[24] Mr Lawry has submitted that the lead offence could be the cultivation of cannabis or the precursor offences. I consider that the lead offences in your case should be the three offences of conspiracy to supply pseudoephedrine. This is based on the potential yield from the ContacNT which you and the other offenders conspired to supply. The critical consideration in your case is the role you played. I accept that it was a marginally lesser role than that of Mr Clarke but not significantly so. To some extent it was also a lesser role than that of Mr Hart on two of the same conspiracies. I said when sentencing Mr Hart that the starting point could be around four years imprisonment. But that was for a total of 13 sets of ContacNT with a potential yield of 585 to 877 grams of methamphetamine. Here, as I have just said, it is 1.49 to 2.23 kilograms. Taking account of the submissions on your behalf from Mr Lawry, including in relation to the extent to which the conspiracies were put into effect, and your role, but also taking account of the far greater quantity involved compared with Hart’s two offences, I consider that the starting point in your case should be four-and-a-half years imprisonment.
[25] There needs to be an uplift for all of the other offending. In relation to that offending I have also placed a reasonable amount of weight on Mr Lawry’s submissions on your behalf as to the general nature and extent of the offending. Mr Lawry submitted that the overall starting point, or the base starting point increased for the other offences, should not exceed six years. I agree.
[26] You are aged 33. You have 75 prior convictions. Only two of these are for drug offences and they do not justify any increase. However, some of the present offences were committed when you were still subject to a sentence of two years and three months imprisonment imposed in May 2007. That requires an increase of three months imprisonment.
[27] You are entitled to a reduction for your guilty pleas. Mr Lawry has advanced careful and full submissions as to your particular circumstances in relation to all of the charges you originally faced, the difficulties encountered in dealing with the
charges that you denied, and to the final outcome. Much more serious charges have not proceeded as I noted earlier. Some aspects of your difficulties were dealt with by me and recorded in earlier directions or minutes. Mr Lawry has submitted that there should be a reduction, and I quote, “closer to 20%”, compared with the Crown’s submission of 5-7%. There is some force in Mr Lawry’s submissions – and I should emphasise they are, of course, related solely to your circumstances – although not sufficient force in my judgment to produce a reduction of 20%. Giving you the benefit of the doubt in relation to some of the history of case preparation and difficulties encountered, I will in your case allow a reduction close to 15%. That
works out at 11 months.8 I need to make clear that this arises because of particular
circumstances relating only to you, as I have said.
[28] This produces an end sentence on the lead charge of five years four months imprisonment.
[29] Further but shorter sentences will be imposed for the other offending. These will be concurrent sentences.
Nicky Bryan Dodd
[30] Mr Nicky Dodd, the offences you are to be sentenced on are as follows:
(a) Three offences of supplying methamphetamine. Two of the offences, in value, totalled $300. The value for the other offence is unclear and I proceed on the basis that it was similar.
(b)There are 13 offences of offering to supply methamphetamine. For five of the 13 offences the amounts can be determined and are up to
two grams in each case. There are a number of text messages sent to
8 In Court I said eight months. At the conclusion of my sentencing remarks Mr Lawry quite properly raised a question as to whether my arithmetical calculations were correct for the reduction for the guilty plea for Mr Kelly Dodd. Having gone through the arithmetic with Mr Lawry the correct end sentence is five years and four months imprisonment, arising from a reduction of 11 months for the guilty pleas, not eight months, from a total of six years three months.
different phones offering methamphetamine, and I quote, “of any
size”. I assess the total at around 20 to 25 grams.
(c) There is an offence of conspiracy to supply methamphetamine, with an indicated quantity of two grams.
(d)There are two conspiracies to supply pseudoephedrine. The total estimated methamphetamine yield is 540 to 805 grams.
(e) There is a conspiracy to supply cannabis – the one involving a total of
40 bags at $100 each.
(f) You were also involved in the cultivation of cannabis that I have already discussed, with the potential yield of around $52,000 to
$80,000 worth of cannabis.
(g)You are also to be sentenced for robbery. This offence occurred in August 2009. The victim was Boyd Norgrove. Offences were committed against Mr Norgrove by you, a man named Edwards and possibly others were at least present. Edwards has been convicted for wounding Mr Norgrove with intent to injure him. Following this attack, property of Mr Norgrove was stolen by you and your associates, including cars and wheels. You contend, through Mr Bailey, that Edwards’ attack on Mr Norgrove was spontaneous; that it was not part of a plan between you and Edwards. Mr Bailey submits that this is borne out by, amongst other things, the fact that a charge of aggravated robbery against you was changed to one of robbery. It is said on your behalf, in essence, that you simply took advantage of the attack on Mr Norgrove to participate in the theft of the cars and the wheels. The submission was also made that it was in fact your intervention which led to Mr Edwards ceasing his assault. Ms O’Connor submitted that that may in fact be indicative of a degree of control by you over Mr Edwards but, as with other matters, and because the facts are certainly not clear here, you are entitled to the
benefit of the doubt. What you have pleaded guilty to is robbery and robbery is theft accompanied by violence or threats of violence. The maximum penalty, as I have already said, is 10 years imprisonment. This is a serious offence. However, Ms O’Connor did not take issue with the thrust of Mr Bailey’s submission.
[31] I intend to impose cumulative sentences for the drug offences as a whole and separately for the robbery. One will be added to the other. This is because the robbery is quite separate from the other offending. Neither counsel took issue with this proposition when I discussed it with them. I will deal with the robbery first.
[32] The Crown submits that the starting point should be between three-and-a-half to four-and-a-half years imprisonment. Reference was made to the Court of Appeal tariff case of Mako,9 dealing with aggravated robbery, and the adaptation of those guidelines for robbery in High Court sentencing cases. Mr Bailey has submitted that the starting point should be between approximately one year and two years two months using Mako in a proportional way. I assess the starting point for this offence
at three years.
[33] You are aged 36. There needs to be an increase of the starting point because of relevant previous convictions, including one of aggravated robbery. I increase the starting point by three months. And that, Mr Dodd, is probably the absolute minimum.
[34] You entered a guilty plea to the robbery charge at trial and after the robbery charge was substituted for one of aggravated robbery. The reduction for the guilty plea is 5% which takes the sentence back to three years and one month imprisonment.
[35] I will now deal with the drug offences. The three offences of supplying methamphetamine and the 13 offences of offering to supply methamphetamine were
essentially continuous offending in September 2009. The total methamphetamine
9 R v Mako [2000] 2 NZLR 170 (CA).
involved takes this offending into band 2 of Fatu,10 with a starting point range of three to nine years imprisonment.
[36] I assess the starting point at four-and-a-half years imprisonment.
[37] The starting point of four-and-a-half years requires an increase of at least two years for the other drug offences. This would mean a total for the drug offences of six-and-a-half years imprisonment.
[38] In relation to the drug offences I do not consider that there should be any increase for previous offences. I have the submissions of Mr Cooke and Mr Bailey in relation to personal factors and there are supportive letters. Although, for reasons earlier noted, personal factors generally cannot justify a reduction for this type of offending this is not – as I have already said – an inflexible rule of law. The provisions of the Sentencing Act in your case warrant a reduction of six months.
[39] In addition, you were on EM bail for around nine months. That warrants a reduction of five months, which brings it to five years seven months.
[40] There are also your guilty pleas. They justify a reduction of 10%. This would result in an end sentence for the drug offences, subject to one further important consideration, of five years.
[41] If the robbery sentence of three years one month is added to this, the total is eight years one month. A total sentence of that length is too much. Taking account of all relevant matters, the total sentence should not exceed seven years. I will adjust the sentences accordingly.
Trevor John McTavish
[42] Mr McTavish, your offences are as follows:
10 R v Fatu [2006] 2 NZLR 72 (CA).
(a) Cultivation of cannabis. This is the offence already referred to with the yield of between $52,000 and $80,000. This is the lead offence in your case.
(b)Associated with this is an offence of possession of equipment for cultivation of cannabis. The items included transformer boxes, a carbon filter, an insulator, black panel heating systems and a number of other items.
(c) You also pleaded guilty to one offence of offering to supply .25 grams
– quarter of a gram – of methamphetamine and one offence of offering to sell cannabis for $50.
[43] The cannabis cultivation comes within category 2 of the Court of Appeal decision in Terewi.11 The range for the starting point is two to four years imprisonment. You were a principal offender in the cultivation of cannabis. Mr McKean submits that the starting point should be two to three years imprisonment. The Crown submits that this offending is at the upper end of category 2, or the bottom end of category 3, of Terewi. This would mean a starting point of around
four years. I have noted a number of broadly comparable cases. They are, and I will just note the names: Sharp,12 MacNeil,13 Spencer,14 Karetai,15 Tunnell,16 and Hillman.17 The estimated yields in those cases were between $40,000, at the lowest, and $80,000, at the highest. There was no starting point under three years. Taking account of all of the relevant evidence as to the extent of the cannabis cultivation generally, but also applying the matters agreed by the experts as earlier dealt with, I
assess the starting point at three-and-a-half years imprisonment.
[44] There needs to be an increase for the other offences because I will impose concurrent sentences. I recognise that the possession of the equipment is, to an
extent, indicative of your role in the cultivation of cannabis. But it was not on the
11 R v Terewi [1999] 3 NZLR 62 (CA).
12 R v Sharp HC Rotorua CRI-2010-063-004641, 22 July 2011, Woolford J.
13 R v MacNeil HC Auckland CRI 2006-404-6554, 7 November 2006, Allan J.
14 R v Spencer HC Tauranga CRI-2009-070-9161, 5 February 2010, Harrison J.
15 R v Karetai HC Invercargill CRI-2010-025-2751, 13 September 2010, Miller J.
16 R v Tunnell HC Palmerston North CRI-2005-054-4274, 18 May 2006, Ronald Young J.17 Hillman v R [2010] NZCA 337.
property where the cannabis was grown. It was in your home. The increase for the other offences is three months.
[45] You are aged 43. You have no previous convictions of relevance. There are the supportive references and other positive matters but, as noted, the extent of any reduction for these matters is relatively limited. You were on EM bail for eight-and- a-half months. You are entitled to a reduction of five months for all of these matters, but in particular the restrictive bail conditions.
[46] You are entitled to a further reduction of 10% for the guilty pleas. In your case that is fairly generous. The end sentence for the lead offence is, therefore, three years imprisonment.
Matthew Kawena Smith
[47] Mr Smith, your offences are as follows:
(a) Conspiracy to manufacture methamphetamine. The evidence establishes the clear plan and firm intention to manufacture methamphetamine and the assembly of equipment and other ingredients. It also establishes efforts to obtain pseudoephedrine, but there is no evidence that it was obtained.
(b) There are five offences of conspiring to supply methamphetamine.
The total amount is 2.5 ounces or 72 grams of methamphetamine.
(c) There were two conspiracies to supply precursor substances, being conspiracies already referred to with a total of 540 to 805 grams as the estimated yield of methamphetamine.
(d)There was an offer to sell one pound of cannabis offered to 13 different cellphone users.
(e) You were involved in the conspiracy to supply 40 bags of cannabis at
$100 each.
(f) You are also to be sentenced for unlawful possession of a pistol and unlawful possession of ammunition.
[48] I take the lead offence as the conspiracy to manufacture methamphetamine. The guidelines in Fatu18 can be applied in the manner discussed by the Court of Appeal in Te Rure.19 For reasons discussed in Fatu, the completed offence would be within band 2 requiring a minimum starting point of four years and up to 11 years imprisonment.
[49] I assess the starting point for this lead offence of conspiring to manufacture methamphetamine at three-and-a-half years imprisonment. I note that Mr Bailey had no quarrel with a starting point of three-and-a-half to four years being the Crown’s submission.
[50] There must be an increase in that sentence to take account of the other offences. In relation to some of them it is in your case appropriate to consider a starting point if some of these other offences were treated as the lead offence:
(a) The starting point for the five offences of conspiring to supply methamphetamine, if treated as a single offence, or a series of offences with uplifts, would be around three years.
(b)The starting point for the conspiracy to supply precursor substances would be at least three years imprisonment. It is less than the other precursor conspiracies because the conspiracies you were involved in did not get beyond the theoretical plan.
[51] The Crown submits that the sentence for the totality of the offending, before considering personal factors, should be eight to nine years imprisonment. Mr Bailey
challenges this on the basis that it appears that the Crown has simply added together
18 R v Fatu [2006] 2 NZLR 72 (CA).
19 R v Te Rure (1997) 23 CRNZ 967 (CA).
the suggested starting points of each of the main sets of offences. There is some substance in Mr Bailey’s submission, particularly when regard is had to the totality principle. However, the gravity with the different sets of offences does warrant a substantially greater increase than I have dealt with generally in the cases of most other offenders. The sentence is increased to five years, subject to deductions for personal factors.
[52] You are aged 33. You have a number of previous convictions for drug offences, although nowhere near this level of seriousness and with the most recent being in 2004. You are entitled to credit for your guilty pleas. In your case, the credit should be more than 10% to allow for some earlier pleas. The reduction I have assessed at eight months, which is closer to 14%.
[53] The overall sentence will therefore be four years and four months for the conspiracy to manufacture methamphetamine with concurrent sentences of less than that for the other offences.
Nelson Williams
[54] Mr Williams, you are to be sentenced for the two offences of conspiring to supply the precursor substance pseudoephedrine. This conspiracy involved two sets of ContacNT with an estimated yield of 90 to 135 grams of methamphetamine. These are not offences I have already considered for any of the other offenders and they are separate offences from those on which Mr Hart was sentenced on Wednesday.
[55] The broad principles discussed in the sentencing of Mr Hart apply to this offending by you – and I emphasise I am talking about broad principles. But in your case the quantity, based on the potential yield of methamphetamine, is very much lower than any of the other offences of this nature.
[56] Having regard to what I have already said, including on the sentencing of Mr
Hart, and taking account of the submissions from Mr Wharepouri on your behalf,
and the Crown’s submissions I assess the starting point in your case at 18 months imprisonment, which is a submission made on your behalf.
[57] You are aged 37. There are no personal aggravating factors. There are two significant mitigating factors – the conditions of bail and guilty pleas. You have been on EM bail for around 30 months. That is a long time. This justifies a significant reduction. Mr Wharepouri submits that it should be six months to 12 months. I accept that submission. The further reduction for the guilty pleas is at least 10%.
[58] The question then is whether the sentence should be one of home detention – which is available, and there is a home detention report indicating that it is technically possible – or whether there should be a short sentence of imprisonment. Before you were granted bail you were remanded in custody for a period of at least four months. I have been advised that that is the calculation by Police. There is also an indication that it could actually be about five-and-a-half months. It is unnecessary, for reasons I come to, to get the precise figure. The four months equates to a prison sentence of eight months on the basis of release after serving half of that sentence. Eight months is the outer limit of a prison sentence that I would impose on you for these particular offences having regard to all of the matters I have referred to. And in particular having regard to the nature of the offences and then the substantially mitigating factors of EM bail for 30 months and the guilty pleas. There are other factors, but it is unnecessary to go into them.
[59] On your behalf Mr Wharepouri has submitted that you would prefer a short prison sentence than a sentence of home detention depending on the calculations, which I need not go into. The submission in that regard was one of imprisonment for six months. I intend to impose that sentence and that is on the basis of my understanding from the submissions that I have received that you will in fact immediately be released.
Final sentences
[60] If you would all now stand please and I will impose the sentences.
[61] Mr Clarke, for the three offences of conspiracy to supply precursor substances you are sentenced to three-and-a-half years imprisonment. For the offence of money laundering you are sentenced to two years imprisonment. Those two sentences are concurrent but cumulative on sentences you are already serving. You are discharged on all other counts, the Crown offering no evidence on those counts.
[62] Mr Kelly Dodd, for the three offences of conspiring to supply precursor substances, you are sentenced to imprisonment for five years and four months. For conspiracy to supply methamphetamine you are sentenced to 18 months. For the eight20 offences of offering to supply methamphetamine you are sentenced to two years imprisonment on each charge. For the nine offences of offering to sell cannabis, the sentence is six months imprisonment on each. For conspiring to supply
cannabis the sentence is two years imprisonment. For the nine offences of selling cannabis there is a sentence of six months imprisonment for each offence. For the money laundering offence the sentence is two years imprisonment. For cultivating cannabis the sentence is three years imprisonment. You are discharged on all other counts that you were facing.
[63] Mr Nicky Dodd, for each offence of the 13 offences of offering to supply methamphetamine there is a sentence of four years imprisonment. For each of the three offences of supplying methamphetamine the sentence is two years imprisonment. For conspiring to supply methamphetamine the sentence is 18 months imprisonment. For the two offences of conspiracy to supply a precursor substance the sentence is three years imprisonment. One offence of conspiracy to supply cannabis, the sentence is two years imprisonment. For cultivation of cannabis the sentence is three years imprisonment. All of those sentences are to be served concurrently. So the total for those sentences is four years imprisonment. For the offence of robbery, you are sentenced to three years imprisonment. That sentence is cumulative on the other sentence. On all other counts you are
discharged.
20 The correct number is seven. See n 7 above.
[64] Mr McTavish, for cultivation of cannabis you are sentenced to three years imprisonment. For possession of the equipment, the sentence is six months imprisonment. For offering to supply methamphetamine the sentence is 18 months imprisonment. For offering to sell cannabis the sentence is six months imprisonment. You are discharged on all other counts.
[65] Mr Smith, for conspiracy to manufacture methamphetamine the sentence is four years four months imprisonment. For five offences of conspiracy to supply methamphetamine the sentence is 18 months imprisonment on each charge. For two offences of conspiracy to supply precursor substance the sentence is three years imprisonment on each. For offering to sell cannabis the sentence is one years imprisonment. For conspiracy to supply cannabis the sentence is two years imprisonment. On the pistol and ammunition counts the sentence is one years imprisonment on each. And again, you are discharged on all other counts.
[66] Mr Williams, for the charges that you are to be sentenced on in respect of the precursor substances you are sentenced to six months imprisonment. On all other counts you are discharged.
[67] You should stand down.
Woodhouse J
Solicitors / Counsel:
Ms B O’Connor, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Whangarei
Ms S K Ellis, Barrister, Whangarei
Mr HDM Lawry, Barrister, Auckland
Mr N G Cooke, Solicitor, AucklandMr W D McKean, Webb Ross, Solicitors, Whangarei
Mr K C Bailey, Barrister, Mangonui
Mr M Wharepouri, Barrister, Auckland
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