R v Collett
[2021] NZHC 1658
•6 July 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-3685
[2021] NZHC 1658
THE QUEEN v
ASHLEY EUGENE COLLETT
Hearing: 6 July 2021 Appearances:
K Whyte for the Crown
R Boot (on behalf of G Walsh) for the Defendant
Sentence:
6 July 2021
SENTENCE OF GAULT J
Solicitors / Counsel:
Mr K Whyte, Hamilton Legal, Office of the Crown Solicitor, Hamilton Mr G Walsh, Barrister, Hamilton
Mr R Boot, Gavin Boot Law, Hamilton
R v COLLETT [2021] NZHC 1658 [6 July 2021]
[1] Mr Collett, you appear for sentence today following guilty pleas on 27 April 2021 on five charges:1
(a)offering to supply methamphetamine (a representative charge);2
(b)possession of a .22 calibre rifle without lawful purpose;3
(c)possession of a 12-gauge shotgun without lawful purpose;4
(d)possession of .22 calibre ammunition without lawful purpose;5 and
(e)possession of 12-gauge shotgun shells without lawful purpose.6
[2] The Crown indicated it would not be calling evidence on two remaining charges.7 I dismiss those two charges.
The offending
[3] On 20 January 2020, the Waikato Police Organised Crime Squad began an investigation (Operation Kingsville) into the manufacture and supply of methamphetamine in the Waikato and Auckland regions. That investigation uncovered what Police characterise as a “highly organised and lucrative drug dealing business”.
[4] Police arrested 29 people in connection with Operation Kingsville, including you Mr Collett. You occupied the “third tier” of the group hierarchy, operating directly below co-defendant Ray Tyler-Waugh (second tier). That is, you had a lesser degree of involvement than that of your co-defendants who had leading roles in the operation, but a greater degree of involvement than that of your co-defendants occupying the fourth (bottom) tier.
1 R v Collett HC Hamilton CRI-2020-019-3685, 27 April 2021 (Minute of Wylie J) at [2].
2 Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty: life imprisonment.
3 Arms Act 1983, s 45(1)(b). Maximum penalty: four years’ imprisonment or a $5,000 fine.4 Section 45(1)(b). Maximum penalty: four years’ imprisonment or a $5,000 fine.
5 Section 45(1)(b). Maximum penalty: four years’ imprisonment or a $5,000 fine.
6 Section 45(1)(b). Maximum penalty: four years’ imprisonment or a $5,000 fine.7 Charges 34 and 46 in the Crown Charge Notice dated 20 November 2020.
[5] You, along with two co-defendants, are said to have been responsible for conducting general day-to-day tasks required to ensure the manufacture of methamphetamine could occur. Those tasks included purchasing equipment and materials and assisting with the manufacturing process. You and they are also said to have acted as carriers and as drug debt collectors.
[6] The summary of facts to which you entered guilty pleas records that in the course of Operation Kingsville, Police intercepted communications show that you offered to supply an unspecified quantity of methamphetamine on at least two occasions.
[7] On 7 July 2020, Police executed a search warrant at an address on Pukemoremore Road. Officers located a .22 calibre pump action rifle behind a standalone mirror in your bedroom. The rifle was loaded with a single .22 round of ammunition. Over 130 further rounds of .22 ammunition were located within the bedroom. In an adjacent room, Police found a sawn-off pump action shotgun loaded with four shotgun shells. There were over 50 further compatible shotgun shells found inside the property.
Approach to sentencing
[8] The Court takes a two-stage approach to sentencing. First, the Court fixes a starting point for the offending. That includes identifying the aggravating and mitigating features of the offending.8 Secondly, the Court takes into account all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, calculated as a percentage of the starting point.9
[9] The Court has regard to the statutory purposes and principles of sentencing.10 Of particular relevance in this case are the purposes of holding the offender accountable for harm, promoting in the offender a sense of responsibility, denunciation of the offender’s conduct, deterrence of the offender and others from committing
8 R v Taueki [2005] 3 NZLR 372 (CA).
9 Moses v R [2020] NZCA 296 at [46]-[47].
10 Sentencing Act 2992, ss 7 and 8.
similar offences, protection of the community and assistance in the offender’s rehabilitation and reintegration.11
[10] The Court must consider the gravity and seriousness of the offending in comparison with other types of offences.12 The sentence must take into account the desirability of consistency in sentencing.13 The Court must impose the least restrictive outcome appropriate in the circumstances.14
Starting point
[11] Although offering to supply methamphetamine is the most serious charge with a maximum penalty of life imprisonment, Mr Whyte for the Crown acknowledges that the extent of your involvement in the supply of methamphetamine is unclear and therefore submits that I should treat the firearms offending as the lead offending with your involvement in the supply of methamphetamine treated as an aggravating feature. Mr Whyte submitted your culpability is most reflected in the firearms offending. That approach was also taken with a co-defendant.
[12] Your counsel, Mr Walsh and Mr Boot on his behalf, acknowledged that approach. I agree that is appropriate in the circumstances of this case, involving an unspecified quantity of methamphetamine. It is not open to the Court to infer the amount to be offered for supply, except perhaps less than five grams.15
[13] The aggravating features of your firearms offending are that you had two firearms, both loaded, and their possession in the context of drug offending involving the supply of methamphetamine.
11 Sentencing Act 2002, s 7(1); and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [58].
12 Section 8(a)-(b).
13 Section 8(e).14 Section 8(g).
15 R v Stephenson [2018] NZHC 2628. Less than five grams is band one in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648, with a starting point from a community-based sentence to four years’ imprisonment.
[14] Having regard to other similar cases including the case cited by Mr Walsh,16 I consider the appropriate starting point for your offending is 22 months’ imprisonment.
Adjustment for personal factors and guilty plea
[15] I turn to consider any factors personal to you justifying any uplift or discount from the starting point.
[16] As Mr Whyte points out, you have 14 previous convictions, including multiple convictions for unlawful possession of a firearm, possession of methamphetamine and possession of cannabis. You also have relevant previous convictions for possession of an offensive weapon and possession of utensils. You have previously breached home detention conditions. You were on bail at the time the charges in this case arose. Given the repeat nature of your offending and offending having occurred while on bail, the Crown submits an uplift of five to six months’ imprisonment is appropriate.
[17]Mr Boot acknowledges an uplift of four months is appropriate for these factors.
[18] I consider an uplift of 20 per cent is warranted – 10 per cent or just over two months for your previous convictions, and 10 per cent or just over two months for offending while on bail.
[19] I turn to your mitigating personal circumstances. First, Mr Boot says you have drug addiction issues and are motivated to address them. I accept that is the case. Your previous convictions and the pre-sentence report indicate your offending was intertwined with your drug addiction. This somewhat reduces your culpability for the offending. The pre-sentence report also indicates your progress while on
16 McMillan v Police [2019] NZHC 3323 (starting point of 20 months’ imprisonment for an offender who had been located in a vehicle with a usable quantity of cannabis and methamphetamine, a stolen .22 calibre rifle and a loaded 12-gauge shotgun); Smith v Police [2014] NZHC 2196 (starting point of 18 months’ imprisonment was appropriate in circumstances where an offender had possession of a Beretta pistol and a .22 Ruger rifle, both loaded and stored in an unsecure manner); Moore v Police [2015] NZHC 3113 (12 month starting point for possession of .22 calibre firearm and ammunition, said on appeal to be very fortunate as the adjusted starting point of 16 months could have been taken just for the possession of firearm and ammunition charges). See also R v Richardson CA450/02, 25 March 2003 (upheld a starting point of 18 months’ imprisonment in the circumstances where an offender was found in unlawful possession of a pistol, 12-gauge shotgun and an AK-47 assault rifle).
electronically monitored bail. Although you cut off your bracelet and absconded on 14 December 2020, you voluntarily returned, and I readmitted you to EM bail. You have since complied well with home detention, EM bail, and community work. The pre-sentence report writer considers your recent compliance can be explained by the steps you have taken to combat your methamphetamine addiction. You have distanced yourself from the associates and environment in which you offended, and instead surrounded yourself with supportive family members. You have completed He Waka Oranga, an addiction-focused rehabilitative programme, and are attending weekly counselling sessions. The report writer assesses your risk of reoffending as low. I also acknowledge your letter and the letters on your behalf.
[20] I consider your addiction, the steps you have taken to rehabilitate, and your good prospects of continuing to do so justify a discount of 20 per cent.
[21] You are also entitled to a discount for over 10 months spent on EM bail.17 Some of that was serving another sentence and I consider that a 15 per cent (that is, over three months) is appropriate.
[22] Finally, you are entitled to a discount for your guilty pleas. Your counsel seeks 25 per cent, submitting that other defendants who have pleaded at a similar stage have been given a 25 per cent reduction, although I have not been referred to specific cases. The Crown acknowledges that you pleaded guilty relatively promptly after the bulk of formal statements were filed and submits that 20 per cent may be an available discount. Mr Whyte said that others pleading at a similar time have received 20 per cent. I consider a 20 per cent discount is appropriate.
[23] This means you are entitled to a net discount of 35 per cent, reducing the starting point of 22 months’ imprisonment to 14 months’ imprisonment.
Home detention
[24] That means the Court may consider imposing a sentence other than imprisonment.
17 Sentencing Act 2002, s 9(2)(h).
[25] As the Crown notes, your repeat offending counts against the imposition of such a sentence. But your progress since the breach of bail in December leads me to conclude that home detention at your existing EM address would be appropriate.
[26] As Mr Boot acknowledges, given the gravity of your offending and your circumstances, I consider home detention is the least restrictive sentence that is appropriate.
[27] Given a further reduction for your two months spent in custody, a sentence of six months’ home detention is appropriate.
Result
[28]Mr Collett, please stand.
[29] On each of the charges, I sentence you to six months’ home detention, to be served concurrently.
[30]I make an order for destruction of the firearms and ammunition seized.
[31]Please stand down.
Gault J
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