R v Davoren
[2015] NZHC 807
•23 April 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-004-4424 [2015] NZHC 807
THE QUEEN
v
ZEBULIN DAVOREN
Hearing: 23 April 2015 Appearances:
T Refoy-Butler for Crown
S Lance for DefendantSentence:
23 April 2015
SENTENCING NOTES OF TOOGOOD J
R v DAVOREN [2015] NZHC 807 [23 April 2015]
Table of Contents Paragraph
Number
Introduction [1]
Background facts [6] Approach to sentencing [11] Starting point [13] Manufacturing methamphetamine the lead offence [14]
Uplift to reflect other offending [18] Personal circumstances [26] Minimum period of imprisonment [32]
Formal sentences [36]
[1] Zebulin Mario Davoren: you appear for sentence after being found guilty by a jury, on 6 October 2014, of a total of 31 charges relating to your participation in a criminal group which was responsible for the manufacture of the Class A controlled drug methamphetamine; the production of the Class B controlled drug pseudoephedrine; and the distribution of those drugs.
[2] Ten co-offenders were also found guilty of a variety of charges and they were sentenced on 20 November 2014 to sentences ranging from four months’ home detention to 14 years’ imprisonment with a minimum term of seven years.1
[3] You were not sentenced at that time because, after your counsel had addressed the jury on your behalf and shortly before my summing-up to the jury, you breached the terms of the bail which had been granted during the long trial and absconded. You were found guilty and convicted in your absence and not apprehended until 3 March this year. I should add that I do not accept that the Police simply sat by and did nothing while you were on the run. I know that the Police made considerable efforts to locate you and I do not accept any suggestion that they had not worked hard enough at that.
[4] You are not being sentenced today, however, for any charge or charges relating to your breach of bail, and I want to make it clear that I accept it is not appropriate for me to punish you for taking off. But the fact that you breached an order of the Court while on trial, and so demonstrated contempt for orders of the Court, is something I have to consider when I determine the appropriate sentences to be imposed on you for the offences on which you appear. Your attitude is significant to sentencing and it may call for added weight to be given to the need for deterrence, accountability and community protection.
[5] Since you were not present when the verdicts were delivered, I formally discharge you now on the counts in the indictment on which you were found not
guilty.
1 R v Afakasi [2014] NZHC 2907.
[6] After a fire caused by an explosion at a clandestine methamphetamine laboratory in Glendene, West Auckland on 1 December 2011, the Police mounted an extensive operation of surveillance, interception and investigation into what proved to be a major drug-dealing enterprise which continued its activities for a period of
12 months up to November 2012. This was large-scale and persistent commercial manufacturing of, and dealing in, methamphetamine, a drug which causes major harm in our community, and in its precursor pseudoephedrine.
[7] In what might be described as the first phase of the group’s criminal activity, you were responsible for organising and on many occasions actively taking part in the manufacture of methamphetamine in a number of clandestine laboratories in various parts of the Auckland region. You recruited “cooks” and other assistants to help produce a total of over half a kilogram of methamphetamine over a two-and-a- half to three-month period, obtaining equipment, chemicals and pre-cursers. The Police put a wholesale value of at least $500,000 on that quantity of methamphetamine.
[8] You then involved yourself in the distribution of the drug. After a period of some four months between February and the end of June 2012 in which you and the others indulged yourselves in distributing and spending the substantial proceeds of your offending, you led the other members of the group in obtaining and supplying substantial quantities of ContacNT containing pseudoephedrine. Between 30 June
2012 and 1 November 2012, you either supplied or were in possession for the purpose of supply of pseudoephedrine on 10 separate occasions, involving a total quantity of 78 sets of ContacNT. The evidence established that you and the other three co-offenders who were convicted of supplying 20 sets of pseudoephedrine on
1 November 2012 received $160,000 in cash. That means the total quantity of pseudoephedrine you handled between July and November 2012 had a wholesale value of around $625,000.
[9] In gathering around you the co-offenders who assisted you in this enterprise, you compromised friends and other family members. Your conviction for conspiring
to defeat the course of justice concerned your attempts to conceal or remove evidence of the possession and supply of controlled drugs and the proceeds.
[10] I have attached as an appendix to these notes a table setting out the charges on which you were convicted and the quantity of controlled drugs involved, where appropriate.
Approach to sentencing
[11] In sentencing you, I follow the standard approach which requires me to set the starting point for your sentences by looking at the nature and extent of your offending overall, with reference to similar cases and the sentences handed to your co-offenders.2 For methamphetamine offences, this exercise is based on a guideline judgment, which sets out the appropriate sentencing bands ranked according to the amount of the drug involved.3 After fixing a starting point which reflects the circumstances of your particular offending, I must then consider whether there is anything in your personal circumstances that would justify an adjustment to the starting point – either mitigating factors that would reduce the sentence, or aggravating factors that might increase it. Although a separate sentence will be imposed for each offence, I am required to consider the totality of your offending in setting what will be an appropriate effective end sentence.
[12] In that exercise, I must also consider the principles and purposes of sentencing,4 which include the need to hold you accountable for the harm done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, that harm; to denounce your conduct; and to deter you and others from future offending of this kind.
Starting point
[13] Of the eight offenders who participated in the criminal enterprise for varying lengths of time, to varying degrees, and in varying roles, you were by far the most
deeply and actively involved.
2 Set out in R v Taueki [2005] 3 NZLR 372 (CA).
3 R v Fatu [2006] 2 NZLR 72 (CA).
4 Sentencing Act 2002, ss 7 and 8.
Manufacturing methamphetamine the lead offence
[14] The lead offence is manufacturing methamphetamine which carries a maximum penalty of life imprisonment. The amounts involved (on my view, at least
510 grams) put you at the lower end of band four in the guidelines – that is, for supplying very large commercial quantities (500 grams or more) of methamphetamine – for which the starting point is 13 years to life imprisonment. The Crown submits that a starting point of 14 to 15 years’ imprisonment is appropriate in your case, with an uplift of five years to reflect the totality of your offending. A minimum period of imprisonment of at least 50 per cent of the end sentence is sought.
[15] I have considered broadly comparable cases to establish the proper starting point for sentencing you for your role in the manufacture of methamphetamine.5 The quantity of the controlled drugs involved in your offending is a factor in determining the appropriate starting point, but the particular role you played is also relevant.6
Having heard all of the evidence against you, I reject your claim to the probation officer that you were involved only as a middleman. You were a principal organiser and instigator of that offending, and it involved repeated manufacture of commercial quantities over a period of two-and-a-half to three months. Mr Lance submitted that I should treat you as “the hands-on manager” of the enterprise and he says that the evidence indicates that you did not acquire assets from this criminal activity to the same extent as some of your principal co-offenders, particularly Mr Afakasi and Mr Kaukasi.
[16] Having heard the evidence, however, I do not doubt that on those occasions when you offended with Mr Afakasi you received equal proceeds from the crime and that you and he were on the same tier of the hierarchy of people involved in this offending. Moreover, I am satisfied that you were significantly more active than Mr Afakasi in the manufacture, production and distribution of methamphetamine
during the period between November 2011 and February 2012, and that you acted
5 Baird v R [2012] NZCA 430; Gilfedder v R [2013] NZCA 426 at [121]; Van De Ven v R [2014] NZCA 265; R v Corless [2014] NZHC 1211; R v Crompton [2014] NZHC 1563.
6 R v Fatu above, n 3 at [31]: “Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant.”
without Mr Afakasi’s knowledge on occasions. I took a starting point of 11 years six months’ imprisonment for Mr Afakasi on the four manufacturing charges of which he was convicted. You were convicted on twice that number of manufacturing counts.
[17] Taking all of these matters into account, referring back to the guidelines, and comparing the nature and scale of your offending with others, and particularly your co-offenders, I consider that a starting point of 13½ years’ imprisonment on each of the manufacturing charges is appropriate for you, Mr Davoren.
Uplift to reflect other offending
[18] Next, in looking at the other counts on which you were convicted, I must consider the appropriate uplift in sentence to reflect the totality of your offending. The appendix setting out the details of all of your offending includes conspiring to manufacture methamphetamine on two occasions where there was no evidence of actual manufacture; offering to supply methamphetamine; possessing methamphetamine for supply (three counts on each of those); actual supply of methamphetamine on one occasion; producing an unknown quantity of pseudoephedrine on two occasions (one of which was at the time of the fire which led to the police investigation); possessing pseudoephedrine for supply (six counts) and supplying pseudoephedrine (four counts); conspiring to defeat the course of justice; and participating for material gain in an organised criminal group.
[19] The nature of that additional offending proves the depth and breadth of your involvement in serious criminal activity over at least a year. The Crown submits that your offending in respect of the pseudoephedrine was particularly serious, being the distribution of commercial quantities; 78 sets of ContacNT contains an estimated total of 6.98 kilograms of pseudoephedrine, which in turn was capable of producing around 3.5 kilograms or $3.5 million worth, of methamphetamine.
[20] The pseudoephedrine offending alone falls into the category of commercial production and distribution on a substantial scale reflecting sophistication and organisation, with operations extending over a period of time. The quantities of that drug were large, but not massive. The guideline suggests your offending calls for a
starting point in the range of five to eight years’ imprisonment.7 Considered independently of the methamphetamine manufacture, the quantity of pseudoephedrine you dealt with would warrant a starting point of not less than seven years’ imprisonment and arguably more, but I accept that some of the possession and supply charges may have overlapped in the sense that they related to the same batch of drugs. As for the other charges, merely supplying 28 grams of methamphetamine would attract a starting point of four years’ imprisonment.8
[21] Viewed in totality, your drug-related offending was very serious and prolonged. Bearing in mind the need to impose an end sentence which reflects the totality of your offending, I regard an uplift of five years as the very least which is appropriate to reflect your overall culpability.9 Your adjusted starting point for the drug offending, therefore, is 18½ years’ imprisonment.
[22] I address separately your convictions on the charge of conspiring to defeat the course of justice and the charge of participating in a criminal group. The Crown case on conspiracy, which the jury must have accepted, was that an associate, Anna Kaukasi, and you believed, after a Police search of a motel in Christchurch, that there would be follow-up searches in Auckland and that as a result there might be prosecutions if evidence was located. It was said that in order to defeat the prosecution of criminal charges against you and/or others for drug dealing, you agreed with Ms Kaukasi that you would try and get rid of or hide evidence of the possession and supply of drugs and the proceeds.
[23] Conspiracy to defeat the course of justice carries a maximum penalty of seven years’ imprisonment and is normally treated seriously by the courts. In the overall scheme of your offending, however, this conviction means no more than that you agreed with Ms Kaukasi to take steps to prevent the Police from finding
evidence of your drug-dealing. Most criminals behave in a similar way when they
7 R v Wallace & Christie [1999] 3 NZLR 159 (CA) at [31], confirmed by the Court of Appeal in R v Wang [2014] NZCA 409 as appropriate for offending involving class B drugs. These cases were applied, for example, in R v Li [2014] NZHC 2610 where the supply of 10.35 kilograms of pseudoephedrine received a starting point of seven years six months’ imprisonment.
8 See for example R v Bradley [2012] NZHC 848, where the supply of 30 grams of
methamphetamine warranted a starting point of four years’ imprisonment.
9 The uplift for Henry Afakasi’s other offending, which was less extensive, was three years imprisonment: R v Afakasi above, n 1 at [18]-[19].
fear investigation by the Police and there is no evidence that you actually did anything to hide evidence, although that may be inferred.
[24] Although the charge was one which was available to the Crown, and the evidence related to it formed part of the relevant background, it has to be said that the charge adds nothing to the nature and scale of your offending. In my view it presented an unnecessary distraction from the jury’s task of examining the evidence of your serious drug dealing, and might better have been disregarded as a charge. Because the facts leading to your conviction on that charge were inextricably intertwined with the drug manufacturing and distribution enterprise, the conviction does not need to be marked by a further uplift.
[25] It is more understandable why the Crown included a charge of participating in a criminal group, but your conviction on that charge does not add much to the overall criminality of your conduct either. It does not require any further uplift from the five years I have added to reflect the overall drug offending.
Personal circumstances
[26] I turn now to consider your personal circumstances and whether there is anything to suggest that the sentence should be uplifted or discounted from the starting point of 18½ years’ imprisonment. You should understand that the Supreme Court has emphasised that, when sentencing an offender convicted of dealing commercially in controlled drugs, his or her personal circumstances must be secondary to the importance of deterrence.10
[27] You are 28 years’ old. You are of Samoan and Maori descent. You were born and raised in New Zealand predominantly by your mother after your father died when you were five. You left school in your first year of secondary school and have not engaged in any skills training, but you were recently employed to assist in the waterproofing of buildings. Your mother describes you as a “good boy who fell into the wrong company” and says that you are protective of your family members, and there was evidence at trial of your concern for your family. You have two children
but now have little contact with them, and it appears that your girlfriend is pregnant.
10 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
[28] You say you are addicted to drugs and alcohol. Members of your family have done their best to help you, among other things by paying for private treatment but you let them down – and yourself also – by failing to complete the course. It is to the credit of your family, Mr Davoren, that they continue to stand by you, notwithstanding the way you have behaved.
[29] Despite your having an extensive criminal history going back to 2003, the Crown does not argue that it warrants an uplift in penalty. Your record includes convictions for aggravated robbery, burglary and theft of drugs in 2008 for which you were sentenced to 3½ years’ imprisonment. You say your present offending was to support your own drug habit but the scale of it makes it clear that you turned to the production and distribution of harmful, destructive drugs as a way to make easy money. You acted out of greed and you treated yourself well on the proceeds of other people’s misery. Despite having your own addictions, you do not acknowledge the harmful consequences of your offending for others. Expressions of remorse at this stage, Mr Davoren, come far too late. You are simply feeling sorry for yourself for the position you now find yourself in. Since you do not appear to have responded to earlier terms of imprisonment by rejecting criminal behaviour, I would have added an uplift to provide extra deterrence, but I will not do so in light of the Crown’s approach and bearing in mind the already lengthy starting point I have fixed.
[30] I have considered the question of the restrictive bail terms which were imposed on you. As I understand it from Mr Lance, you were subject to a 24-hour curfew over a period of just over four months. But any allowance for that would have to be on the basis that you had complied strictly with those terms and you did not. I allowed six months to Mr Afakasi for the restrictive bail terms that he faced but he was compliant and, in the circumstances, I give you no allowance for the terms of your bail.
[31] Your total effective end sentence, therefore, will be one of 18½ years’
imprisonment.
Minimum period of imprisonment
[32] In ordinary circumstances, you would be eligible for parole after serving one- third of your sentence,11 but the Court may impose a longer minimum period of imprisonment if it is satisfied that the period that would otherwise apply is insufficient for achieving all or any of the relevant sentencing purposes.12 It is almost invariable in the case of serious drug offending that a minimum period of imprisonment is ordered.13
[33] In this case, I accept the Crown's submission that the purposes of sentencing14 would not be met by the normal non-parole period, particularly because of the need to denounce the conduct in which you were involved, to hold you accountable for it, to deter others and you from committing similar offences, and to protect the community. I was satisfied that it was justifiable and necessary to direct minimum periods of 50 per cent of the end sentences imposed for the more serious offending by your co-offenders. I have considered very carefully whether your absconding before the verdicts, and staying on the run for five months, demonstrates
that greater emphasis needs to be given, in your case, to accountability, personal deterrence, and community protection. However, I am persuaded by Mr Lance that I should not impose a greater minimum period although, as I say, I have given it very serious consideration. The Police have elected not to prosecute you separately for absconding. It was open to them to do so and I do not need to inquire into the reasons why they did not. But if your absconding on bail was to be marked separately that would be the way to approach it, in my view.
[34] In those circumstances, I intend to impose a minimum period of imprisonment of 50 percent of the end sentence consistently with your co-offenders.
[35] I am now going to impose formally the sentences which I consider should apply to each of the charges upon which you were convicted. In doing so, I will impose concurrent sentences on the charges of manufacturing methamphetamine
which reflect the uplift I have discussed and produce the total effective end sentence.
11 Parole Act 2002, s 84(1).
12 Sentencing Act 2002, s 86.
13 R v Aram [2007] NZCA 328 at [78].
14 Sentencing Act 2002, s 86(2).
The minimum period of imprisonment will apply to those sentences. The sentences on the other charges are of a shorter duration appropriate to each offence and all of them will be served concurrently, that is, at the same time as the major sentences.
Formal sentences
[36] Mr Davoren will you please stand. The sentences I impose on you are as follows:
(a) On each of the eight counts of manufacturing methamphetamine, you are sentenced to 18 years and six months’ imprisonment. Under s 86 of the Sentencing Act, I direct that you must serve a minimum period of nine years three months’ imprisonment on those counts.
(b) On each of the two counts of producing the class B drug
pseudoephedrine, you are sentenced to six years’ imprisonment.
(c) On each of the three counts of offering to supply methamphetamine you are sentenced to five years’ imprisonment.
(d) On each of the two counts of conspiring to manufacture
methamphetamine, you are sentenced to seven years’ imprisonment.
(e) On each of the three counts of possession of methamphetamine for
supply, you are sentenced to six years’ imprisonment.
(f) On the count of supplying methamphetamine, you are sentenced to
four years’ imprisonment.
(g) On each of the six counts of possessing pseudoephedrine for supply,
you are sentenced to seven years’ imprisonment.
(h) On each of the four counts of supplying pseudoephedrine, you are
sentenced to seven years’ imprisonment.
(i) On the count of conspiring to defeat the course of justice, you are
sentenced to one years’ imprisonment.
(j)On the count of participating in an organised criminal group for material gain, you are sentenced to six years’ imprisonment.
[37] All sentences are to be served concurrently. [38] Stand down please.
………………………………………
Toogood J
APPENDIX Schedule of offending
Count Offence Quantity 1 Produced the class B controlled drug pseudoephedrine between 29/11/2011 and
1/12/2011
Unknown 2 Manufactured methamphetamine between
6/12/2011 and 7/12/2012
56.7 grams 4 Offered to supply methamphetamine on
12/12/2011
Unknown 5 Conspired to manufacture methamphetamine between 13/12/2011 and 15/12/2011 Unknown 6 Manufactured methamphetamine between
29/12/2011 and 30/12/11
56.70 grams 7 Possession of methamphetamine for supply on
30/12/2011
28.35 grams 8 Supplied methamphetamine on 30/12/2011 28.35 grams 10 Manufactured methamphetamine between
6/1/2012 and 9/1/2012
113.40 grams 11 Possession of methamphetamine for supply, on or about 8/1/2012 113.40 grams 15 Manufactured methamphetamine between
19/1/2012 and 24/1/2012
Unknown but not less than 56.70 grams 16 Produced the class B controlled drug pseudoephedrine on 20/1/2012 Unknown 17 Possession of methamphetamine for supply on
19/1/2012
Unknown 18 Offered to supply methamphetamine on
19/1/2012
28.35 grams 19 Offered to supply methamphetamine on 19/1/12 Unknown 20 Manufactured methamphetamine between
27/1/2012 and 28/1/2012
Unknown but not less than 56.70 grams 21 Manufactured methamphetamine between
18/1/2012 and 22/2/2012
Unknown but not less than 56.70 grams 22 Manufactured methamphetamine between
22/2/2012 and 23/2/2012
Unknown but not less than 56.70 grams 23 Manufactured methamphetamine between
22/2/2012 and 23/2/2012
Unknown but not less than 56.70 grams
Count Offence Quantity 24 Possession of the class B controlled drug pseudoephedrine for supply on 30/6/2012 2 and a bit sets of
ContacNT (0.446 kgs) (0.180 kgs of
pseudoephedrine)
25 Supplied the class B controlled drug pseudoephedrine between 1/7/2012 and 5/7/2012 5 sets of ContacNT (1.115 kgs) (0.450 kgs of
pseudoephedrine)
32 Conspired to defeat the course of justice N/A 33 Possession of the class B controlled drug pseudoephedrine for supply on 23/8/2012 15 sets of ContacNT (3.345 kgs) (1.350 kgs of
pseudoephedrine)
37 Conspired to manufacture methamphetamine between 26/8/2012 and 29/8/2012 Unknown 38 Supplied the class B controlled drug pseudoephedrine on or about 31/8/2012 10 sets of ContacNT (2.223 kgs) (0.900 kgs of
pseudoephedrine)
40 Supplied the class B controlled drug pseudoephedrine on or about 3/9/2012 5 sets of ContacNT (1.115 kgs) (0.450 kgs of
pseudoephedrine)
44 Possession of the class B controlled drug pseudoephedrine for supply on or about 4/9/2012 5 sets of ContacNT (1.115 kgs) (0.450 kgs of
pseudoephedrine)
45 Possession of the class B controlled drug pseudoephedrine for supply between 9/9/2012 and 10/9/2012 5 sets of ContacNT (1.115 kgs) (0.450 kgs of
pseudoephedrine)
46 Possession of the class B controlled drug pseudoephedrine for supply on or about
20/9/2012
.9 of a set of ContacNT (0.201 kgs)
(0.081 kgs of pseudoephedrine)
48 Possession of the class B controlled drug pseudoephedrine for supply on or about
10/10/2012
10 sets of ContacNT (2.230 kgs) (0.900 kgs of
pseudoephedrine)
50 Supplied the class B controlled drug pseudoephedrine on 1/11/2012 20 sets of ContacNT (4.4 kgs)
(1.775 kgs of pseudoephedrine)
55 Participated in an organised criminal group N/A
3
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