R v Couper

[2013] NZHC 1576

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-2338 [2013] NZHC 1576

THE QUEEN

v

NATHAN JAMES COUPER

Hearing:                   27 June 2013

Counsel:                  J Mooney for Crown

T Bolstad for Prisoner

Sentence:                 27 June 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]      Mr Couper, you appear for sentence following pre-trial pleas of guilty to the following charges:

(a)       conspiracy to supply methamphetamine;1

(b)      conspiracy to supply cocaine;2

(c)       participation in an organised criminal group;3

(d)      conspiracy to supply class C ecstasy;4

1      Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(a).

2      Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(a).

3      Crimes Act 1961, s 98A.

4      Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(c).

R v COUPER [2013] NZHC 1576 [27 June 2013]

(e)       conspiracy to sell cannabis;5

(f)       cultivation of cannabis6 and

(g)      being party to theft of electricity.7

[2]      On 22 May I gave you a pre-trial sentencing indication pursuant to s 61(1) of the Criminal Procedure Act 2011.  On 30 May you accepted that indication and you pleaded guilty before Miller J.

Facts

[3]      You are 39 years old.  You come from a good family.  They are in farming. You yourself have held responsible positions as a farm manager during your recent life.   You are, I am told, the great great grandson of Te Whiti O Rongomai, the spiritual leader of Parihaka.  You yourself became chairman of the Parihaka X Farm Trust, an election said to reflect your perceived strategic abilities.  You have raised significant money to restore Parihaka Pa.

[4]      Although you have a supporting family, including your wife, your life took three unfortunate turns.   First, you resigned your farm managers’s role in Piopio because of depression at the effects of drought.   Secondly, you returned to New Plymouth, in the expectation of a new farm management role in some iwi-owned farms.  But that did not eventuate.  Thirdly, you purchased a bar called The Powder Room.  It did not prosper.

[5]      It is clear from the intercepted communications in Operation Puff, many of which I have heard at the recent trial of your co-offenders, that your life was out of control  at  this  point.    You  accept  that  during  this  time  you  were  consuming significant quantities of ecstasy and alcohol.  You became estranged from your wife, who plainly has had no involvement in your offending.  When it became clear what

you were doing, she told you to go.  We heard that conversation played at the trial.

5    Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(c).

6    Misuse of Drugs Act 1975, s 9(1).

7      Crimes Act ss 219(a), 223(c) and 66.

Your behaviour was at times bizarre.  It was certainly unguarded, and the unravelling of your life and the associated drug-dealing you fell into was inevitable.  Not least because your behaviour was bound to come to the attention of the police.  And so it did.

[6]      The relevant offending all occurred within a three and a half month period. During the period of offending  you were the Sergeant at Arms of the Taranaki Chapter of the Rebels motorcycle gang.  At that time there were just three members. And for most of the time, just one motorcycle.  On Friday 21 June a jury acquitted the other two members of conspiracy to supply methamphetamine, it could not agree on  conspiracy to  supply ecstasy and  it  convicted them  of conspiracy to  supply cannabis.  I think it is fair to say that to the extent the Taranaki chapter of the Rebels was involved in drug-dealing it was a somewhat Mickey Mouse start-up operation. How far it might have gone we do not know, because termination of the police operation shut it down.

[7]      In part this may have been due to your incompetence as a drug dealer.  You showed an almost complete lack of guile.  Together with a flair for drawing attention to yourself.  However there is no doubt that you were actively involved in sourcing and dealing methamphetamine, ecstasy and cannabis.  This you did in conjunction with your “soldier”, Mr James.

[8]      You had established a moderately sophisticated growing room in the back bedroom of a house in Carrington Road.  I will refer to this again later.  It is however a mark of your lack of talent as a drug dealer that you had the property tenanted, so that you had to make your way past the tenant to access the locked growing room. The police already had the property under surveillance.   They were compelled to intervene when they saw you up a 2-metre ladder against the power pole late one evening trying to reconnect the power.   They were concerned that you would kill yourself in the process.  When asked what you were doing up that ladder, you said you were looking for your cat.

[9]      I turn now to the individual counts against you.

Conspiracy to supply methamphetamine

[10]     First, on the count of conspiracy to supply methamphetamine, you asked your co-conspirator Mr Whitehead whether he knew any manufacturers of methamphetamine, negotiated a price once manufacturers were identified, arranged funds for purchase and arranged a meeting to execute the deal.  You requested 10 ounces a week for two months (280 grams per week).  A huge volume.  Retailing members of the conspiracy also contacted you requesting methamphetamine when they needed to replenish their stocks.  They and you used coded messages.   Even before attempting the larger deal, you offered to supply at least five grams to co- conspirators for resale.

Conspiracy to supply cocaine

[11]     Secondly,   you   tried   to   source   five   ounces   of   cocaine,   again   from Mr Whitehead.   You  said  that  you  had  customers asking  for  it.    Mr Whitehead confirmed  that  he  could  supply it,  although  it  would  be  of  poor  quality.   You negotiated a price but there is no evidence that the cocaine was actually delivered or distributed.

Participation in an organised criminal group

[12]     Thirdly,  as  to participation in an organised  criminal group  you were  the central figure in the conspiracy as Sergeant at Arms of the Chapter.  You accept that you were charged with testing and sourcing illicit drugs and placing orders that would provide inventory for resale for the profit of the Rebels.  You accept also you were also an enforcer of debts owed to the Rebels.

Conspiracy to supply “class C varieties of Ecstasy”

[13]     Fourthly, on conspiracy to supply class C varieties of Ecstasy you attempted to source MDMA, a Class B drug.    It was unavailable, so  you began  locating suppliers of mephedrone, a Class C drug with similar effects to MDMA.   You arranged to purchase 3000 pills from Mr Whitehead.  You arranged to purchase 1000

pills from another co-defendant, Mr Esterhuizen.   You negotiated the purchase of

500 pills from another co-defendant, Ms Moke.   You agreed to purchase 10 pills from yet another co-defendant, your “soldier” Mr James.  You offered to sell some further pills if another co-defendant, Mr Green could find a buyer.  You arranged to buy pills from another co-defendant, Mr Manuel as you received orders from customers. You offered to sell 6 pills to another co-defendant, Mr Blackburn.

Conspiracy to sell cannabis

[14]     Fifthly, on the count of conspiracy to sell cannabis you agreed to sell two ounces of cannabis to Ms Moke and offered to supply more, another ounce to Mr O’Brien.  You offered to supply cannabis to Mr Dewar and also to Mr James.  You arranged for Mr Green to supply you with the code to a locked freezer in which cannabis was stored.

Cultivation of cannabis

[15]     Sixthly,  on the count of cultivation of cannabis  you  admit  you set up a cannabis growing operation with Mr Dewar at the Carrington Road house.   I have mentioned that enterprise already.  This was supposed to fund the purchase of the big block Harley Davidson motorcycle that each Rebels member was required to purchase.  Your house contained 89 plants and seedlings growing under lights, with large extractor fans ventilating the lined and deadlocked growing room.  Additional cannabis seeds were found at your wife’s house, although it is not suggested that she was involved.

Party to theft of electricity (<$1000)

[16]     Finally, on the count of being party to theft of electricity, you arranged for your co-defendant, Mr Dewar (a registered linesman), to divert power from Genesis Energy by modifying wiring to bypass the meter.  The electricity was used to power the cannabis growing lights and fans.

Lead offence

[17]     It  is,  Mr  Couper,  common  ground  that  the  lead  offence  for  sentencing purposes in this case is the count of conspiracy to supply methamphetamine.

[18]     If   this   case   was   one   involving   the   actual   supply   and   sale   of methamphetamine, the guideline judgment in R v Fatu8  would apply.  The Crown says that in that event the appropriate sentence would be in the upper part of band 2:

Band two - supplying commercial quantities (five grams to 250 grams) - three years to nine years imprisonment.

I understand your counsel, Ms Bolstad, to accept that this would be a band 2 case. The amount actually supplied as a consequence of this conspiracy is unclear.  It is proven beyond reasonable doubt that you were directly responsible for supplying at least five grams.  On that basis, by parity of logic, a minimum starting point of three years would be needed.

[19]     However the commercial intentions of this conspiracy were much greater than that small quantity.   The conspiracy was to deal with substantial commercial volumes.   The conspiracy appears to have reached at least a point of preliminary action, and more.  It certainly went beyond a “theoretical plan”.9

[20]     In R v Te Rure10 the Court of Appeal indicated that the Fatu guidelines apply to cases of conspiracy to manufacture methamphetamine, but the penalty bands require reduction because of the differing maximum penalties.   The degree of reduction depends on the level of culpability of the offending.11    As the Court of Appeal said:12

... planning something illegal is logically less serious than actually doing it. However,  it  is  equally  logical  that,  the  closer  a  conspiracy  comes  to execution, the closer it becomes in seriousness to the actual illegal act being planned.

8      R v Fatu [2006] 2 NZLR 72 (CA) at [34].

9      R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [27].

10     R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627.

11 At [25].

12 At [25].

[21]     The Crown submits that an appropriate reduction in this case would be 10 per cent.   Ms Bolstad submits that the “unrealistic prospects of actually obtaining the quantities discussed” justifies a much reduced starting point.

[22]     I do not on this occasion, as I did not at the sentencing indication that I gave earlier this month, accept that submission.  In R v Briaturi the Court of Appeal held that a judge needs to be “alive to the point that the incompetence of [the accused] meant that the conspiracy did not have a high chance of success”.13   In that case the Judge reduced the starting point for the lead offender by one third to reflect the fact that they were “rank amateurs” and would not have been able to extract the cocaine they sought to import  from the drug-soaked clothes that they were planning to smuggle in to New Zealand.   But your situation is far removed from that of Mr

Briaturi.  I do not accept that the summary of facts shows that it was unlikely that the quantities discussed would eventuate.  The required chemicals are available and you had signalled your willingness to manufacture the quantity required if it could not be sourced ready-made.

[23]     In Te Rure the offender had furnished premises for commercial manufacture and was very close to the stages of completion, such that the Court of Appeal described it as “scarcely inchoate”, warranting only a reduction of 5-10 per cent from the Fatu bands.14

[24]     In Ropiha v R,15  the Court of Appeal held that in cases of conspiracy to supply, the focus is not on any quantity of drugs actually supplied, but rather the scope of the supply that the conspiracy contemplated.  Your position in fact seems to be one relatively similar to that of Mr Ropiha, who was in charge of sourcing bulk supplies of methamphetamine, and then supplying smaller quantities to a group of street level dealers.   In that case the Judge adopted a starting point of six years’ imprisonment, which the Court of Appeal described as very “fortunate”.  If anything, it seems to me that you had a more central role than Mr Ropiha.  On the other hand,

the actual extent of supply (to the extent that matters) was less than in Ropiha.

13     R v Briaturi [2008] NZCA 412 at [55].

14     R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [28].

15     Ropiha v R [2013] NZCA 60.

[25]     I will  deal  with  this  matter on  the basis  that  this  offending be assessed notionally at just above the midpoint of band 2 – at seven years’ imprisonment – but discounted by 15 per cent reflecting the fact that it was a conspiracy at an incipient stage only.

Result on lead offence

[26]     I adopt, therefore, a starting point of six years’ imprisonment on the lead offence.

Other offending

[27]     The Crown submits that given the other offending present in this case and the fact that this offending was on behalf of the Rebels, a significant uplift of between one and two years’ imprisonment is required – this is for the other charges you face beyond conspiracy to supply methamphetamine.   Ms Bolstad accepts there would need to be an increase in the start point to reflect the other charges on which you appear for sentence.

[28]     There is no science in this process.   But approaching the matter in various ways, I reach an uplift of between 15 and 21 months’ imprisonment.  I intend to give you the benefit of the doubt and to apply the lesser of those two levels.

Result on other offending

[29]     The initial start point of six years’ imprisonment is therefore uplifted by 15

months to seven years and three months’ imprisonment.

Totality

[30]     I am satisfied from the point of view of totality that that does not produce an outcome disproportionate to the gravity of your offending taken as a whole.

Aggravating and mitigating features of offender

[31]     I now turn to aggravating and mitigating features concerning you personally.

Aggravating features

[32]     Ms  Bolstad  accepts  that  the  connections  between  the  offending  and Mr Couper’s position in the Rebels gang and within the organised criminal group is an  aggravating  factor.16      Counsel  also  accepts  the  high  level  of  premeditation involved and large number of charges.17     But I do not think a specific uplift is warranted on these grounds, because I have taken them into account when setting

starting points.

Mitigating features

[33]     Counsel for the Crown accepts that you deserve some credit for a guilty plea on accepting the sentence indication.  Ms Mooney submits that a discount of only five to ten per cent was appropriate because of the lateness of your plea.  It appears in this case that a sentence indication had been sought by you at an early stage and for various reasons, none of which I regard as substantially mitigating, that request was withdrawn by you.

[34]     In my decision in Rikihana v Police18 I attempted to set out the policy reasons why credit is appropriately given for guilty pleas, even if made at the last minute. Public resources are spared, and there is most of all an important public acceptance of culpability that deserves recognition.  That is to say by pleading guilty you have recognised your responsibility for your own offending.  That is clear also from the material I have seen provided by Ms Bolstad and in the references that was supplied to me and which I have, of course, read.  In addition in this case, in pleading guilty, you have assisted in the prosecution of the remaining accused given my decision to admit evidence of the guilty pleas of co-accused under s 344A.   That being said, however, it is important there is sufficient incentive preserved by sentencing Judges to ensure that guilty pleas in appropriate cases are entered at the earliest possible opportunity.  I do not think therefore that a credit of more than 10 to 15 per cent can

be extended.

16     Sentencing Act 2002, s 9(1)(hb).

17     Sentencing Act 2002, ss 9(1)(i) and 9(1)(j)

18     Rikihana v Police [2013] NZHC 711.

[35]     In these circumstances, I am prepared to extend a discount of 15 per cent for the guilty plea, despite the lateness of its entry.

[36]     Ms Bolstad makes submissions that discrete discounts should be allowed for remorse and for your willingness to address your offending behaviour.   On giving you your original sentencing indication I reserved the possibility of a further discrete discount for remorse and rehabilitation, depending on the quality of the evidence and information before the Court at the time of sentencing.

[37]     I have read your counsel’s submissions, and I have read the supportive letters received from your wife (whose continuing support for you despite estrangement is commendable),  from  Te  Atiawa  kaumatua  Peter  Moeahu  and  from  Councillor Girling-Butcher.   I have not seen anything from you personally, Mr Couper, but prisoners’ letters are generally self-serving and unhelpful in any case.  In this case I accept the observations of others that this offending was out of character, and was induced to a degree by economic stress and depression.  Your record bears that out. All three referees say that to their observation you are genuinely remorseful and committed to rehabilitating yourself through returning to responsible membership of your family,  your community and  your iwi, and through returning to legitimate business activities for which you have genuine aptitude.  I accept that information.

[38]     In these circumstances I am prepared to discount your sentence by 10 per cent  recognising  genuine  remorse  and  intent  to  rehabilitate.     Based  on  the information I have before me I am satisfied that intent is genuine and once you have served your sentence you will return to being a valued member of this community, in the way that you were beforehand and described earlier in this sentencing.

Neutral features

[39]     You have three previous convictions from October 2011 (shortly after the present offending) for receiving, common assault and possession of an offensive weapon (an extendable baton).   For that you were sentenced to three months’ imprisonment. Given the timing of that offending which was concurrent with the present, I put it to one side.  You have no convictions pre-dating this offending.  But

you cannot receive any credit for lack of prior offending, obviously, because you received that credit on the last occasion that you were sentenced.

Minimum period of imprisonment

[40]     I am not certain if this issue is still pursued by the Crown.  It was at the stage of your sentencing indication.  I repeat what I said there.  The Crown had sought a minimum period of imprisonment but in a somewhat equivocal manner.   I did not accept then, and I do not accept now, the necessity for a minimum period of imprisonment in your case.  I am satisfied in this case that given your entirely clean record prior to your involvement in this offending, no minimum period of imprisonment need be imposed.   Rather I leave it to  you to address  your own rehabilitation, with the incentive of the prospect that a Parole Board may grant you the earliest lawful release unconstrained by any decision of this Court.

Sentence

[41]     Stand please.

[42]     Mr Couper, you are sentenced by this Court as follows:

(a)       on conspiracy to supply methamphetamine: five years, five months’

imprisonment;

(b)      on conspiracy to supply cocaine: two years’ imprisonment;

(c)       on  participation  in  an  organised  criminal  group:  two  years,  four

months’ imprisonment;

(d)      on conspiracy to supply class C ecstasy: two years’ imprisonment;

(e)       on    conspiracy     to    sell     cannabis:     one     year,    five     months’

imprisonment;

(f)       on cultivation of cannabis: one year, six months’ imprisonment; and

(g)      on being party to theft of electricity:  three months’ imprisonment.

[43]     All these sentences are to be concurrent.  You will, therefore, serve a total of

five years, five months’ imprisonment. [44]  Thank you.  Please stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, New Plymouth

And to:

T Bolstad, Barrister, New Plymouth