R v Demant
[2023] NZHC 2403
•30 August 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2021-070-1570
[2023] NZHC 2403
THE KING v
TANGAROA DAVID DEMANT
Hearing: 30 August 2023 (Heard at Hamilton) Appearances:
D McWilliam for the Crown M Jenkins for the Defendant
Sentencing:
30 August 2023
SENTENCING REMARKS OF WOOLFORD J
Solicitors: Pollett Legal Ltd (Office of the Crown Solicitor), Tauranga Counsel: Jenkins Law, Rotorua
R v DEMANT [2023] NZHC 2403 [30 August 2023]
Introduction
[1] Mr Tangaroa David Demant appears for sentence on charges of conspiracy to import cocaine,1 importation of cocaine (x2),2 possession of methamphetamine for supply,3 and conspiracy to manufacture methamphetamine.4 On 10 November last year, I gave a sentence indication of 10 years and five months’ imprisonment,5 a copy of which is annexed to these notes. The factual background to your offending was canvassed in detail at that hearing, so I will only briefly cover the facts.
Background
[2] In September 2020, Police commenced an investigation, codenamed Operation Tarpon, into an anticipated large scale cocaine importation by your group. This is the subject of charge 1. As the investigation progressed, the Police intercepted the private communications of several members of the group, including yourself and your co- offender, Mr Waitai, pursuant to surveillance device warrants issued by this Court. These communications established that you were involved in various other serious class A drug offences.
Charge 1 - Conspiracy to import cocaine
[3] This charge relates to the proposed importation of 200 kilograms of cocaine in a shipping container to be offloaded from a vessel at the Port of Tauranga. The plan involved the cocaine being removed from the container before it could be inspected by Customs officials.
Charge 2 - Importing cocaine
[4] On or about 27 December 2020, a parcel arrived in New Zealand from Guatemala. It was delivered to a residential address in Rotorua occupied by Mr Dickson, another member of the group. The parcel was labelled as containing a power steering pump having a value of $58.11. An unknown quantity of cocaine was
1 Misuse of Drugs Act 1965, s 6(1)(a) and (2A)(a), maximum penalty 14 years’ imprisonment.
2 Section 6(1)(a) and (2)(a), maximum penalty life imprisonment.
3 Section 6(1)(c) and (2)(a), maximum penalty life imprisonment.
4 Section 6(10(b) and (2A)(a), maximum penalty 14 years’ imprisonment.
5 R v Demant [2022] NZHC 2954.
concealed within the package. You offered to provide buyers for the cocaine, and arranged for it to be tested for purity.
Charge 5 - Importing cocaine
[5] During January 2021, you discussed with Mr Waitai the importation of further cocaine using the same method. You provided him with encouragement and advice as to how to deal with the suppliers about issues relating to price and quality, as well as the general trade craft needed to import the drug into New Zealand.
[6] The package arrived in New Zealand the same day and was intercepted by the New Zealand Customs Service. Like the first, the parcel was labelled as containing a power steering pump having a value of $58.11. Approximately 300 grams of cocaine was found concealed within the package.
Charge 8 - Possession of methamphetamine for supply
[7] This charge involves the importation of an unknown quantity of methamphetamine in liquid form. On 12 February 2021, you told Mr Waitai that you had been talking to the suppliers in Mexico and they had "a couple of kilos of liquid" for him, clarifying that you meant "meth". You said that you would deliver it to Mr Waitai in Rotorua.
[8] You picked up the liquid methamphetamine from the New Zealand based representative of the Mexican syndicate, Mr Manuel Gonzales, in central Auckland on
14 February 2021. On 17 February, you travelled to Rotorua and handed the methamphetamine over to Mr Waitai.
Charge 9 - Conspiracy to manufacture methamphetamine
[9] Intercepted communications during February 2021 reveal that you, Mr Gear and Mr Waitai had decided to manufacture methamphetamine. There was a discussion of the precursor materials and substances that would be produced, and the potential yield of methamphetamine those quantities could produce. On 27 February 2021, you told Mr Waitai you were hoping to receive approximately 15 kilograms of ephedrine in the coming weeks, which could then be used to manufacture methamphetamine.
Sentencing indication
[10]At a sentence indication hearing on 10 November 2022, I adopted:
(a)A starting point of seven years’ imprisonment for the lead charge of conspiracy to import 200 kilograms of cocaine.
(b)An overall starting point of 11 years’ imprisonment to reflect the additional cocaine related offending.
(c)An uplift of two years to account for the methamphetamine related offending, resulting in a global starting point of 13 years’ imprisonment before taking into account aggravating and mitigating features personal to you.
(d)A discount of 20 per cent for guilty pleas.
[11] Therefore, the indicated sentence after a discount for guilty pleas was one of 10 years and five months’ imprisonment.
[12] At the hearing, I noted that further mitigating factors would be considered at sentencing if additional information could be put before the Court.
[13]On 7 October 2022, you accepted this sentence indication.
Approach to sentencing
[14] Mr Demant, in sentencing you today, I am required to take into account the purposes and principles of sentencing as contained in the Sentencing Act 2002.6 In particular, I must impose a sentence that holds you accountable for your offending, denounces your conduct, and deters others from committing the same or similar offending.
6 Sections 7 and 8.
Personal circumstances
Pre-sentence report
[15] The Court has been provided with a pre-sentence report on your personal circumstances, background and attitude to the offending. The report describes the lead up to your offending as follows:
Regarding the events leading up to the offending, Mr Demant stated about 10 years prior he was working and running the "family business" on a fishing boat, exporting seafood, which his father had started before him. He said he lost almost $1 million in investments which in turn resulted in him losing his business, his home and eventually his marriage. Due to numerous reasons including a failure on his part to keep up with the book keeping and COVID 19 lock downs, his assets were then seized. He said this left him feeling embarrassed and depressed … He said when the opportunity to commit the offending arose, he felt alone and in a vulnerable state and made the decision to participate.
[16] The report notes that while you have no significant criminal history, you have been the subject of a fisheries investigation and prosecution and you do receive some sort of sanction. The report notes that the sanctions were completed without incident or breach.
[17] While the report assesses you as being at a low risk of re-offending, the nature of serious drug offending poses an inherently high risk of harm to the community. The report states that you do not use drugs yourself and that monetary gain was your primary motivation for the offending.
[18]The report recommends imprisonment.
Affidavit from Mr Demant
[19] You provided an affidavit in which you describe coming from Omaio, a small town approximately 60kms east of Opotiki, where you have lived for your whole life. You say that prior to the offending, you had a fulfilling life with your wife of 30 years and your six children together. You describe being a hard worker and family provider, running the family-owned business which involved catching, marketing, and selling rock lobster into China. You were also involved in your community, saying:
a)You were the Chairman of the Board of Trustees of the local school, Omaio School.
b)You were the Chairman of your local Marae committee at Otuwhare Marae in Omaio.
c)You managed the local Kapa Haka National team, Te Roopu Kapa Haka O te Whanau a Apanui, and were a founding
member of the Kapa Haka group 'Tauiramaitawhiti'.
d)You say you played an active role in all your children’s lives until things started to go wrong.
[20] You then describe losing a significant amount of money in failed investments, which led to you losing the four properties which you owned. You separated from your wife and had to move into your parent’s house, which impacted your mental health. Your work boat was seized by the Ministry for Fisheries, and you were unable to work, which left you with “an overwhelming sense of embarrassment and failure.” You say that your relationships with your children also broke down, which was very difficult. Further, your father was diagnosed with terminal cancer, and you cared for him until his passing. At this time, you describe being very low and using drugs and alcohol to “overcome the pain of it all”.
[21]You then describe the shift into drug offending as follows:
Because my life had bene [sic] turned completely upside down, I chose to try and make money through drugs. I thought that what money I earned from this would get me back some of what I lost and how wrong I was. I was arrogant and misguided and was looking for the easy money. I knew it was wrong, but my life had completely unraveled and I had well and truly lost my moral compass.
I used to be very well centered morally and emotionally. I was connected to my Maori Tanga, community and family but, because I chose to go down a dark road, I lost all connections with my Maori tanga, community and family. I was weak and gave into the temptation to try and get back everything I had lost. I ignored the side of me that knew what I was doing was wrong.
[22] You then say that you wish to attend the Puwhakamua programme to rehabilitate, in order to reconnect with your whanau and community, and regain your mana and your moral compass. You state that you are resolved to the fact that you will serve time in prison and that you have accepted this as a consequence of your wrongdoing.
Submissions
Crown submissions
[23] The Crown acknowledges that your previous sanctions are not an aggravating factor requiring an uplift on sentence, as they are not relevant to the present offending. However, they submit that no discount should be available for previous good character.
Defence submissions
[24]Your counsel seek discounts as follows:
(a)Five per cent for genuine remorse;
(b)Ten per cent for your prospects of rehabilitation; and
(c)Ten to 20 per cent for previous good character.
[25] On remorse, your counsel says that you have developed meaningful insight into the offending and display genuine remorse for your actions, noting that remorse must be shown by more than a mere guilty plea or assertions. They say that you have shown genuine remorse by seeking a sentence indication early, with delay being due to you having limited contact with previous counsel. Counsel state that your conduct in prison, where you have maintained a low security classification and have been employed in different trusted positions at both Mt Eden and Manawatu, show that you are taking seriously your offending and the need to take responsibility for your actions.
[26] In terms of rehabilitation, counsel point to Berkland v R where the Supreme Court confirmed that where a defendant demonstrates a commitment to rehabilitation, there will be sufficient grounds to apply a discount.7
[27] Your counsel provided the Court with two affidavits, one from yourself and another from Mr Billy McFarlane, the Director of Tikanga Aroro Charitable Trust. Mr MacFarlane’s affidavit sets out the cultural factors that you will need to overcome because of the offending, saying:
[Tangaroa Demant] is different to other participants in that he has held a prestigious position with his iwi and hapu. However, this makes the journey of reintegration for Tangaroa a far more complicated and arduous one… In my opinion, Tangaroa Demant has undoubtedly committed serious criminal offending and must bear the consequences of the N.Z Justice system. It must however be taken into account that he has a blood connection to Te Whakatohia and Te Whanau a Apanui lwi who have in the past bathed in his glory as a contributing member of the lwi but must also now wear the shame that Tangaroa's offending has caused his people.
[28] Your counsel point out that you, having previously played an active role in your community and iwi organisations, have suffered “a very significant fall from grace” in the eyes of your family and community, and that the restoration of your mana will be a long journey. Mr MacFarlane has indicated that he intends to assist on that journey through the Puwhakamua Programme once you are eligible for parole.
[29] Counsel also say that you have reconnected with your adult children as a result of being in custody. I understand that they are here today to support you. Counsel submit that this represents a shift in your whanau relationship and speaks well to your prospects of rehabilitation, as does the “cultural imperative” to redeem yourself.
[30] Finally, your counsel seek a discount on the basis of your previous good character. They point to Davidson v R in which the Court of Appeal confirmed that previous good character may be highly relevant in terms of mitigating a sentence.8 They submit that while your offending is serious, it represents a departure from what has otherwise been “a life of good character” as a committed family man and business owner.
7 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [133].
8 Davidson v R [2011] NZCA 356.
Discussion
[31] At this stage of the sentencing process, I am to consider whether any discounts are available on the basis of the factors set out in s 8 of the Sentencing Act 2002. I will address the submissions from your counsel on discounts for remorse, rehabilitation, and good character.
[32] First, as I said at your sentence indication, you are entitled to 20 per cent discount for your guilty pleas.9
[33] I also accept that a five per cent discount is available to you for remorse. I have read the letter which you provided to the Court, which I consider is genuine. You say that being in custody has provided you with an opportunity to “take on board” the negative impact of drug offending on the community. You acknowledge that your offending was driven by greed and done without regard to the harm your actions caused. In both your letter and affidavit, you acknowledge the shame that you feel over your actions, and that your whanau and iwi hold as well. You say that your remorse has led you to seek out help to “change [your] mindset” and that you have put in place goals to prevent you from re-offending, including seeking legitimate employment, changing your associations, and finding positive ways to serve your whanau, iwi and the New Zealand public. You are supported by Mr MacFarlane and plan to attend the Puwhakamua Programme once you are eligible.
[34] I consider that in addition to your demonstrated remorse, those positive steps, as well as your positive engagement while in the prison environment where you have been given trusted positions and maintain a low-security status, speak well to your capacity for rehabilitation. Your lack of previous relevant convictions, and imperative to regain your mana are also positive indications. A discount of 10 per cent is, therefore, available for rehabilitative prospects.
9 Sentencing Act 2002 s 9(b).
[35] The Crown do not oppose a discount for previous good character, but submit it should be modest to reflect the sanctions imposed for Fisheries infringements. Of the mitigation for previous good character, the Court of Appeal said in Davidson:10
… this Court identified two things as underpinning this feature of mitigation: recognising a fall from grace as punishment in itself, and recognising the greater potential for rehabilitation where community involvement and good character bears witness to a reduced probability of re-offending.
[36] The discount for previous good character therefore has two parts: recognition that the position of an offender has shifted drastically from their previous social status, which causes shame and distress in itself; and separately that the offender has good prospects of rehabilitation where their community provides support.
[37] Your affidavit and submissions confirm that your life circumstances have indeed changed significantly, both leading up to and as a result of the offending. You have also shown that your whanau, including your children who you have re- connected with as a result of these proceedings, and community are willing to support you and your rehabilitation. This, combined with your relatively unblemished record, provide the basis for a modest discount of 10 per cent for your previous good character.
[38] Therefore, a 25 per cent mitigation on your sentence is applied, further to your 20 per cent for guilty pleas. That leaves you with a final sentence of seven years and two months’ imprisonment.
Result
[39] Mr Demant, on the charges of charges of conspiracy to import cocaine, importation of cocaine, possession of methamphetamine for supply, and conspiracy to manufacture methamphetamine, you are sentenced to seven years and two months’ imprisonment.
[40] I also make an order for the forfeiture and destruction of items contained in the list annexed to the Crown submissions.
10 Davidson v R, above n 8 at [16], referring to R v Findlay CA393/07.
[41]You may stand down.
Woolford J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2021-070-1570
[2022] NZHC 2954
THE KING v
TANGAROA DAVID DEMANT TAMA WAITAI
Hearing: 10 November 2022 (Heard at Rotorua) Appearances:
P F Lee for Crown
A Hill and J Jenkins for Mr Demant D J Allan for Mr Waitai
Judgment:
10 November 2022
JUDGMENT OF WOOLFORD J
Solicitors: Pollett Legal Ltd (Office of the Crown Solicitor), Tauranga
Counsel: A Hill, Rotorua
J Jenkins, Rotorua D Allan, Auckland
R v DEMANT [2022] NZHC 2954 [10 November 2022]
Introduction
[1] Mr Demant and Mr Waitai each face charges of conspiracy to import cocaine,1 importation of cocaine (x 2),2 possession of methamphetamine for supply,3 and conspiracy to manufacture methamphetamine.4 Mr Waitai faces an additional charge of conspiracy to import methamphetamine.5
[2] Mr Demant and Mr Waitai now seek sentence indications. This is an indication of the sentence each would receive if he was to enter guilty pleas to the charges in the near future. If the sentence indication is not accepted and Mr Demant and/or Mr Waitai are convicted at trial, the trial judge will sentence him on the facts as he or she determines them to be.
Background
[3] The sentence indication is given on the basis of a summary of facts that has been accepted for today’s purposes.
[4] This records that Mr Demant and Mr Waitai are members of a group of persons involved in the importation of cocaine and methamphetamine into New Zealand from a Mexican-based syndicate. The leader of the group is alleged to be Mr Demant.
[5] Between September 2020 and February 2021, Mr Demant led his friends and family to believe he was overseas sailing for an extended period. In fact, Mr Demant was in ongoing communications with the syndicate in Mexico in relation to a range of proposed drug importation and supply activities – at one point enquiring about travel to USA and on to Mexico inferentially to meet with the drug syndicate. Mr Demant was also in regular contact with Mr Waitai and other members of the group regarding the logistics of the operation.
1 Misuse of Drugs Act 1975, s 6(1)(a) and (2A)(a), maximum penalty 14 years’ imprisonment.
2 Section 6(1)(a) and (2)(a), maximum penalty life imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a), maximum penalty life imprisonment.
4 Section 6(1)(b) and (2A)(a), maximum penalty 14 years’ imprisonment.
5 Section 6(1)(a) and (2A)(a), maximum penalty 14 years’ imprisonment.
[6] The Crown allege that Mr Waitai was second only to Mr Demant in the group hierarchy. Mr Waitai’s role was to liaise with Mr Demant and other members of the group to formulate and implement the group’s plans. From time to time he also dealt directly with members of the syndicate in Mexico.
[7] In September 2020, Police commenced an investigation, codenamed Operation Tarpon, into an anticipated large scale cocaine importation by Mr Demant’s group. This is the subject of charge 1. As the investigation progressed, the Police intercepted the private communications of several members of the group, including Mr Demant and Mr Waitai, pursuant to surveillance device warrants issued by this Court. These communications established that the defendants were involved in various other serious class A drug offences. These are reflected in the remaining charges. Operation Tarpon terminated in mid-February 2021.
Charge 1 – Conspiracy to import cocaine
[8] This charge relates to the proposed importation of 200 kilograms of cocaine in a shipping container to be offloaded from a vessel at the Port of Tauranga. The plan involved the cocaine being removed from the container before it could be inspected by Customs officials.
[9] Intercepted communications establish that Mr Demant was in contact with Mr Waitai and other members of his group for a considerable period of time leading up to 27 March 2021, the date on which the shipment was expected to arrive in New Zealand. The plan included the recruitment of a stevedore who worked on the Mt Manganui side of the port. This person agreed to use his position and knowledge of the port to remove the cocaine from the shipping container before it was inspected. Mr Waitai was also involved in the attempted recruitment of another person who worked on the Tauranga side of the port. This was to guard against the possibility that the vessel may berth on that side of the port.
[10] For reasons unknown the shipment did not arrive. On 23 March 2021, Mr Demant communicated to Mr Waitai that everyone should “stand down”. On 11 April 2021, Mr Waitai confirmed to Mr Demant that he was still communicating with the Mexican suppliers.
Charge 2 – Importing cocaine
[11] On or about 27 December 2020, a parcel arrived in New Zealand from Guatemala. It was delivered to a residential address in Rotorua occupied by Mr Dickson, another member of the group. The parcel was labelled as containing a power steering pump having a value of $58.11. An unknown quantity of cocaine was concealed within the package. Mr Waitai organised this importation through encrypted communications with the Mexico-based suppliers. He also liaised during this period with Mr Demant, who offered to provide buyers for the cocaine when it arrived. Mr Demant also arranged for the purity of the cocaine to be tested.
Charge 5 – Importing cocaine
[12] During January 2021, Mr Demant and Mr Waitai discussed the importation of further cocaine using the same method. Mr Demant provided Mr Waitai with encouragement and advice as to how to deal with the suppliers about issues relating to price and quality, as well as the general trade craft needed to import the drug into New Zealand.
[13] On 2 February 2021, Mr Waitai contacted Mr Dickson to discuss the impending delivery of cocaine at his address in Rotorua. Mr Dickson advised him he had moved address.
[14] The package arrived in New Zealand that same day and was intercepted by the New Zealand Customs Service. Like the first, the parcel was labelled as containing a power steering pump having a value of $58.11. Approximately 300 grams of cocaine was found concealed within the package.
[15] Unaware that the package had been intercepted, Mr Waitai made enquiries about its whereabouts, and was involved in finding an alternative address for its delivery. Another member of the group, Mr Dos Santos, subsequently instructed the courier firm to deliver the package to an address in Auckland. Customs officials then arranged for a controlled delivery of the package to that address.
Charge 8 – Possession of methamphetamine for supply
[16] This charge involves the importation of an unknown quantity of methamphetamine in liquid form. On 12 February 2021, Mr Demant told Mr Waitai that he had been talking to the suppliers in Mexico and that they had “a couple of kilos of liquid” for him, clarifying that he meant “meth”. He said he would deliver it to Mr Waitai in Rotorua. Mr Waitai agreed with this proposal and said that selling methamphetamine is like selling “hotcakes”.
[17] Mr Demant picked up the liquid methamphetamine from the New Zealand based representative of the Mexican syndicate. Mr Gavito Alvarado, in central Auckland on 14 February 2021. Mr Demant arrived in Rotorua on 17 February and handed the methamphetamine over to Mr Waitai.
[18] Mr Waitai then enlisted the services of another member of the group, Mr Gear, to assist him in extracting methamphetamine crystals from the liquid. These attempts were unsuccessful. Mr Waitai and Mr Gear informed Mr Demant that they thought someone else had already extracted some of the methamphetamine before they had received it. Mr Demant said he would return it to the suppliers and made the necessary arrangements with Mr Gavito Alvarado. As it turned out, Mr Waitai sent photographs of the liquid methamphetamine to Mr Gavito Alvarado to let him know he was holding on to it in lieu of its return.
Charge 9 – Conspiracy to manufacture methamphetamine
[19] Intercepted communications during February 2021 reveal that Mr Waitai, Mr Demant and Mr Gear had decided to manufacture methamphetamine. There was discussion of the precursor materials and substances that would be required, and the potential yield of methamphetamine those quantities could produce. On 25 February 2021, Mr Waitai told Mr Demant that they already had the iodine required for the manufacture. On 27 February 2021, Mr Demant told Mr Waitai he was hoping to receive approximately 15 kilograms of ephedrine in the coming weeks. He said he would pass this on to Mr Waitai and Mr Gear so it could be used to manufacture methamphetamine.
Charge 10 – Conspiracy to import methamphetamine (Mr Waitai only)
[20] During April 2021 Mr Waitai was involved in arrangements to import a package containing methamphetamine from Mexico to a residential address in Rotorua. On 24 April 2021, Australian Border Force officials intercepted the package while in transit to the address in Rotorua nominated by Mr Waitai. Concealed within the parcel was approximately 198.7 grams of methamphetamine.
Mr Demant
Crown submissions
[21] Ms Lee, for the Crown, submits that the lead charge is the conspiracy to import 200 kilograms of cocaine (charge 1).
[22] There is no guideline judgment for cocaine offending. However, the guidelines provided by the Court of Appeal in Zhang v R6 for methamphetamine offending are helpful as a point of reference in cocaine cases.7 The Crown also refer to the Court of Appeal’s comments in Cavallo v R, to the effect that like quantities of cocaine should generally be sentenced slightly below comparable methamphetamine starting points, engaging a discount of around five per cent.8
[23] The Crown submits that the conspiracy was at a relatively advanced stage in that Mr Demant was monitoring a specific vessel and container. The closer the conspiracy is to execution, the more serious it will be.9 However, it cannot be established that the cocaine was in fact on the vessel in question, or whether the vessel even entered New Zealand waters. As such, the Crown accepts that the starting point cannot be towards the higher end of seriousness.
[24] The Crown nevertheless submits that the offending engages several aggravating factors, including:
6 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
7 Wilk v R [2020] NZCA 172 at [27]; Yongkwa-Dingom v R [2021] NZCA 603 at [21].
8 Cavallo v R [2022] NZCA 276 at [63].
9 R v Te Rure [2007] NZCA 305 at [25].
(a)Scale: the operation involved a high degree of commerciality and expected financial gain. Though the offending in the Crown charge notice relates to a period of five months, the Crown contend that data from Mr Demant’s communication devices showed that he had been planning a class A drug importation for more than 12 months.
(b)Close links with organised criminal group: Mr Demant was in regular contact with the supplier, an international drug smuggling syndicate based in Mexico.
(c)Sophistication/premeditation: the defendant went to significant lengths to plan the importation of 200 kilograms of cocaine, including recruiting multiple port employees to circumvent New Zealand Customs. The Crown accepts, however, that the modus operandi of the remaining charges was less sophisticated.
(d)Harm to the community: commercial drug offending results in significant social harm. The Crown submits there is a particular need in the case of such offending to deter others from committing similar offences and to denounce the defendant’s conduct.10
[25]The Crown further submits that the following cases may be of assistance:
(a)Zhang v R:11 Ms Hobson imported 300 grams of methamphetamine and conspired to import a further 290 grams that was intercepted by Customs. Her role was described as at the lower end of “leading”, being a management function and contact with the overseas supplier, though the operation itself was “relatively unsophisticated”.12 The Court of Appeal held that a starting point of nine years’ imprisonment was appropriate to reflect the successful importations, and an uplift of nine months to reflect the conspiracy. Had Ms Hobson executed the
10 R v Davis CA440/04, 20 October 2005 at [67].
11 Zhang v R, above n 6, at [238]-[239].
12 At [238].
conspiracy, the Court said the starting point would have been 10 years and six months’ imprisonment.
(b)Wratt v R:13 the appellant imported a total of 452 grams of methamphetamine through the “Dark Web”. He played a leading role in his own, albeit unsophisticated operation, sending packages under false names to his own or nearby addresses. The sentencing Judge held that a starting point of 11 years’ imprisonment would ordinarily be appropriate, but adopted a starting point of nine years due to an issue over the purity of the drug. This was upheld on appeal.
(c)Gao v R:14 the appellant conspired to import and supply 10 kilograms of methamphetamine. Intercepted communications also revealed discussions about making $200,000 a week, having “dozens of kilos” and making a net profit of $2 million. The conspiracy would have been executed but for a hold up overseas and the appellant’s subsequent arrest. A starting point of 10 and a half years’ imprisonment was adopted and upheld on appeal.
(d)Banaba v R:15 the appellant conspired to import between six and 10 kilograms of methamphetamine. These were contained in three consignments that were intercepted by Customs. The appellant’s role was “essential” as the “man on the ground”. A starting point of 13 years’ imprisonment was held to be appropriate on appeal.
[26] The Crown submits that the present offending is broadly comparable to the case of Ms Hobson in Zhang and Wratt in terms of quantity and role. It says that Mr Demant played a leading or significant role in the operation, with direct links to the Mexican based supplier and substantial influence on other associates lower down in the chain. The Crown submits that a starting point of eight years’ imprisonment would be warranted on the conspiracy charge on a standalone basis. It notes that a
13 Wratt v R [2021] NZCA 128.
14 Gao v R [2018] NZCA 69.
15 Banaba v R [2016] NZCA 122.
sentence indication of five and a half years was given to Mr Demant’s co-defendant, Mr Dickson, who played a significantly lesser role as a “catcher”.
[27] As to the remaining cocaine charges, the first importation (charge 2) involved an unknown quantity of cocaine, while the second charge (charge 5) involved 300 grams. The Crown submits that an available inference is that the import in charge 2 would have been of a similar quantity. If this is so, the quantity of cocaine imported by Mr Demant would total approximately 600 grams. On quantum alone, this would bring the offending within the lower end of band 4 in Zhang, attracting a starting point of between eight and 16 years’ imprisonment (in the case of methamphetamine).
[28] Taking into account totality, the Crown submits an overall starting point of 13 to 14 years’ imprisonment is appropriate for Mr Demant on the cocaine charges. It then proposes to apply a modest uplift to reflect the methamphetamine offending.
[29] The Crown notes that the liquid methamphetamine that is the subject of charge 8 could not be quantified, but says that the intercepted communications referred to a “couple of kilos”. If accurate, this would place the offending in band four of Zhang (eight to 16 years’ imprisonment). The Crown acknowledges, however, that there were issues extracting methamphetamine from the liquid. Furthermore, it accepts that in the sentence indication given to Mr Demant’s co-defendant, Mr Gavito Alvarado, this charge was very much treated as secondary.
[30] Charge 9, the conspiracy to manufacture methamphetamine, relates to a plan to extract methamphetamine from five kilograms of ephedrine. The Crown notes that this together with the possession charge could have attracted a significant term of imprisonment on a standalone basis. Taking into account totality, however, the Crown submits that a two year uplift is appropriate for the methamphetamine offending.
[31] The Crown therefore submits that a global starting point in the range of 15 to 16 years’ imprisonment is appropriate for the totality of Mr Demant’s offending.
Defence submissions
[32] Mr Hill, for Mr Demant, accepts that the conspiracy to import 200 kilograms of cocaine is the lead charge. However, he submits that the conspiracy never went beyond the point of mere discussion. He says there is no evidence of any cocaine on the vessel, the vessel docking in New Zealand, or money changing hands. In addition, he submits that Mr Demant called the conspiracy off.
[33] Mr Hill contends that Mr Demant has a generally boastful and delusional manner of behaving and speaking, and that the conspiracy is an example of this – there being no realistic prospect of importing 200 kilograms of cocaine into New Zealand.
[34] Mr Hill also submits that the fact the conspiracy was far from completion distinguishes the present case from those referred to by the Crown. He submits that the offending is closer in seriousness to the following cases:
(a)R v Naupoto:16 the defendant conspired to import 400 kilograms of methamphetamine, acting as the “bridge” between the Tongan and New Zealand ends of the operation. He took some steps to plan the importation, but in fact he was being scammed by his Tongan associates and there was no possibility of importing the drugs. A starting point of four years’ imprisonment was adopted.
(b)R v Briaturi:17 three appellants conspired to import cocaine between one and 10 kilograms of cocaine, every three months, and then to export it. At least three plans were devised as to the importation method they would use, and active steps were taken to implement the first and second, albeit with no success. The ringleader of the operation received a starting point of 10 years’ imprisonment, while the individuals who played secondary roles received starting points of six and five years respectively.
16 R v Naupoto [2012] NZHC 3188.
17 R v Briaturi [2008] NZCA 412.
[35] By way of contrast, Mr Hill refers to R v Te Rure, in which the defendants charged with conspiracy to import methamphetamine had gone to the lengths of leasing and fitting out of premises, and actually starting to cook methamphetamine, before Police intervened.18 Despite this, the starting point adopted was only four and a half years’ imprisonment.
[36] Mr Hill therefore submits that an appropriate starting point for Mr Demant on the conspiracy charge alone would be six years’ imprisonment.
[37] As to the remaining cocaine charges, Mr Hill accepts that an available inference is that the importations amounted to approximately 600 grams across the two consignments, placing the offending in the lower end of band four in Zhang. However, Mr Hill emphasises that cocaine is to be treated less seriously than methamphetamine.
[38] Mr Hill further submits that Mr Demant’s role in these two importations is not as high as suggested by the Crown. While Mr Demant provided encouragement and advice, and offered to try and find buyers, the deals were between Mr Waitai and the Mexican syndicate. Mr Hill says there is nothing to suggest that Mr Demant personally profited, nor had possession of the cocaine. Mr Hill also point out that the Crown has charged Mr Demant as a party to this offending (charges 2 and 5). In Mr Hill’s submission, Mr Demant’s culpability on these charges is less than that of Mr Waitai, and closer to that of Mr Dickson, who received a starting point of five and a half years’ imprisonment.
[39] As to the methamphetamine offending, Mr Hill submits that Mr Demant’s overall culpability this offending is low, given that his role was merely a “go between” and because very little, if any, methamphetamine was produced.
[40] Regarding charge 9, that is the conspiracy to manufacture methamphetamine, Mr Hill submits that this was merely at the discussion phase, there being no evidence that Mr Demant was in fact going to obtain and supply the ephedrine. In Mr Hill’s
18 R v Te Rure, above n 9.
submission, this is just another example of “boastfulness” or “wishful thinking” on Mr Demant’s part.
[41] Mr Hill accepts that the Court must consider the appropriate starting points on a standalone basis, but submits that the most appropriate consideration when reaching an overall starting point is the adjustment for totality. Mr Hill submits that a global starting point of around 12 years’ imprisonment is appropriate for Mr Demant on all charges.
Setting a starting point
[42] There is no dispute that the conspiracy to import 200 kilograms of cocaine is the lead charge.
[43] As the Crown responsibly acknowledge, the starting point for this charge cannot be towards the higher end of seriousness, given the uncertainties surrounding how close it was to execution. However, I do not accept Mr Hill’s submission for Mr Demant that the conspiracy was a mere exaggeration or an impossibility. Mr Demant clearly went to great lengths over several months to plan the importation. Matters such as which side of the port the vessel would dock at, and where exactly the shipping container would be offloaded, were carefully considered and plans were put in place – not least of all the recruitment of port employees. There were discussions of the anticipated arrival date and of the specific ‘box number’. Furthermore, while it is true Mr Demant told the group to “stand down”, it appears that the importation did not come to fruition due to matters at the Mexican end of the operation.
[44] Though none of the cases relied on by counsel is on all fours, I consider the present offending to fall somewhere in between R v Naupoto19 and R v Briaturi.20 The quantity is closest to that in Naupoto than in any other case to which I have been referred, but the nature and stage of the conspiracy bears greater similarity to Briaturi. In contrast, the conspiracies in Gao and Banaba were at a very advanced stage and would have been executed but for the intervention of Customs or the Police.21 I would
19 Above n 16.
20 Above n 17.
21 Gao v R, above n 14; Banaba v R, above n 15.
adopt a starting point of seven years’ imprisonment for Mr Demant on the conspiracy charge on a standalone basis.
[45] As to the balance of the cocaine offending, I accept that it is likely the second consignment contained a similar quantity to the first, meaning that the total amount imported was approximately 600 grams. Starting points of nine years were adopted in Zhang and Wratt for slightly lower quantities of methamphetamine, in accordance with the sentencing bands in Zhang.22 A five per cent reduction to reflect the fact that the present case involved cocaine would give a starting point of approximately eight years and six months’ imprisonment.23 It is however necessary to examine Mr Demant’s particular role in this offending and also to make an adjustment for totality.
[46] While Mr Demant performed a primarily advisory function in respect of these two transactions, it is clear he retained an overall leadership role – directing Mr Waitai in relation to arrangements for the importations, even if it was Mr Waitai who was communicating with the Mexican syndicate. Mr Demant also provided payment for the cocaine to the New Zealand based representative, Mr Gavito Alvarado. In these circumstances, I do not accept Mr Hill’s submission that Mr Demant’s culpability is closer to that of Mr Dickson, the recipient of the packages, who received a starting point of five and a half years’ imprisonment.
[47] Taking into account totality principles, I consider an overall starting point of 11 years’ imprisonment is appropriate to reflect the cocaine offending.
[48] Turning to the methamphetamine offending, I consider Mr Demant played a leading role in procuring the liquid methamphetamine and facilitating its extraction, and did not merely act as a “go between”. The intercepted communications also suggest that Mr Waitai and Mr Gear were required to report to Mr Demant as to the outcome of the extraction process, which, as it turned out, was far from satisfactory. As the Crown acknowledge, however, the potential quantity of methamphetamine is unknown, making it difficult to place in terms of the sentencing band in Zhang.
22 Zhang v R, above n 6; Wratt v R, above n 13.
23 Cavallo v R, above n 8.
[49] As to the conspiracy to manufacture methamphetamine, I accept this was at a relatively early stage, though active steps had been taken to secure precursor materials in late February 2021. I note that the conspiracy may have been at a more advanced stage but for the arrests of Mr Demant and members of his group in late April 2021.
[50] Taken overall, I propose to apply an uplift of two years’ imprisonment to reflect the methamphetamine offending. This leads to a global starting point of 13 years’ imprisonment before taking into account aggravating and mitigating features personal to Mr Demant.
Adjusting the starting point
[51] The Crown submits that Mr Demant has previous convictions, but none of relevance for present purposes. I am not aware of any other aggravating features that require an uplift.
[52] As to guilty pleas, the Crown accepts that a discount of up to 20 per cent is available. While Mr Demant was charged in April 2021, disclosure did not occur until December 2021. Furthermore, his entry of guilty pleas would reduce the trial duration by as much as 20 per cent.
[53] Mr Hill submits, nonetheless, that the full 25 per cent discount for guilty pleas may still be appropriate. Mr Hill acknowledges that any guilty pleas would not be at the earliest opportunity, but points out that he has only recently been assigned as counsel and that up to this point, Mr Demant did not have any opportunity to discuss his case in detail with counsel. In addition, Mr Hill only requested the sentence indication after constructive dialogue with the Crown, in which the Crown agreed to materially amend the summary of facts on the conspiracy charge. These changes, in Mr Hill’s submission, significantly reduce Mr Demant’s overall culpability.
[54] I acknowledge that a change in counsel and amendment of the summary of facts can be material. That said, Mr Demant still had the opportunity to plead guilty much earlier in the piece. The charges have now been afoot for a year and a half, and disclosure occurred almost 12 months ago. On the other hand, guilty pleas at this stage would still significantly reduce the time and expense of prosecuting the charges. In
these circumstances, I accept the Crown submission that a discount of 20 per cent remains available. This would result in a reduction of approximately two years and seven months.
[55] It follows that the indicated sentence for Mr Demant is one of 10 years and five months’ imprisonment.
[56] If the indication is accepted, Mr Hill intends to make further submissions at sentencing regarding remorse, rehabilitation, s 27 cultural factors, and prior good character.
[57] In the Crown’s submission there is no discount available for previous good character. As there is not sufficient information before me to make that assessment, I leave that for sentencing.
Mr Waitai
Crown submissions
[58] The Crown submissions for Mr Waitai repeat almost verbatim those for Mr Demant, with only minor changes to reflect Mr Waitai’s role in the offending and the additional charge of conspiracy to import methamphetamine that he faces. I propose therefore to focus primarily on these points of difference to avoid unnecessary repetition.
[59] The Crown contends that Mr Waitai, second only to Mr Demant, played a significant/leading role in the operation, albeit over a shorter period of four to five months. He communicated directly with the Mexican supplier, assisted Mr Demant in the logistics of the operation, and had substantial influence over other members of the group.
[60] In respect of the lead charge, the conspiracy to import 200 kilograms of cocaine, the Crown submits that a starting point in the mid-range of the maximum penalty is appropriate to reflect Mr Waitai’s role and the quantum discussed, while taking into account the difficulties in ascertaining how close to completion the
importation was. It therefore contends for a starting point of five to six years’ imprisonment on this charge.
[61] The Crown repeats its submissions in respect of the remaining cocaine charges, being the two importations of approximately 600 grams, noting that this would fall within the lower end of band four of Zhang, attracting a starting point of eight to 16 years’ imprisonment (if it were methamphetamine).
[62] Taking into account totality, the Crown submit that an overall starting point of 10 to 11 years’ imprisonment is appropriate for Mr Waitai on the cocaine offending.
[63] Turning to the methamphetamine offending, the Crown submits that the lead charge in this category is charge 10, the conspiracy to import 198.7 grams of methamphetamine. Had the importation been completed, the quantum would place it within the upper end of band 2 of Zhang, attracting a starting point of between two and nine years’ imprisonment. Applying a reduction to reflect the lower maximum penalty, the Crown submits that this charge would result in a standalone starting point of three to four years’ imprisonment.
[64] The Crown repeats its submissions in respect of charge 8, namely that there are issues ascertaining the quantity of liquid methamphetamine that Mr Waitai had in his possession. As to charge 9, the Crown submits that the conspiracy to manufacture methamphetamine was near completion, but accepts that it will attract a nominal sentence on a totality basis.
[65] The Crown submits, taking into account totality, that an uplift of three years’ imprisonment is warranted on the methamphetamine offending. It follows that the global starting point contended for by the Crown is one of 13 to 14 years’ imprisonment on all charges before taking into account aggravating and mitigating features personal to Mr Waitai.
Defence submissions
[66] Mr Allan, for Mr Waitai, accepts that a starting point of five to six years’ is appropriate on the lead charge, that is the conspiracy to import 200 kilograms of cocaine.
[67] Mr Allan reinforces that there is no evidence that the drugs were put on the vessel nor that any money changed hands. He submits that unlike Gao v R,24 a case referred to by the Crown, Mr Demant and the various people he directed had no prior experience with the importation of drugs by ship, and the plan changed several times.
[68] Mr Allan submits that Mr Waitai was not a leader in respect of any of the charges, but rather Mr Demant’s “feet on the ground”. He notes that Mr Waitai did not get involved with the group until approximately two and a half months after the surveillance device warrant was issued in respect of Mr Demant in September 2020. Mr Allan says that Mr Waitai’s motivation for doing so was financial, to support his whanau, and that when he was arrested on 29 April 2021, he had no cash or assets to speak of.
[69] Mr Allan submits that an overall starting point for Mr Waitai’s role in the cocaine offending, taking into account totality, is eight to nine years’ imprisonment. This in Mr Allan’s submission takes into account the five per cent reduction from comparable methamphetamine sentences, in accordance with the Court of Appeal’s decision in Cavallo.25
[70] Mr Allan accepts that an uplift of three years’ imprisonment is appropriate to reflect the methamphetamine offending.
[71] The global starting point contended for by Mr Allan is therefore one of 11 to 12 years’ imprisonment.
24 Above n 14.
25 Cavallo v R, above n 8.
[72] Mr Allan then submits that the full discount of 25 per cent for guilty pleas is appropriate. He bases this submission on Hessell v R,26 the volume of disclosure in the present case, the range of charges, counsel’s prior “resolution focused” correspondence with the Crown, and the substantially reduced starting points proposed in the amended Crown submissions. Mr Allan explains that a previous sentence indication sought by Mr Waitai did not proceed because the Court considered it could lead to a manifestly unjust result for either the Crown or the defendant, as the respective positions were so far apart.
[73] Mr Allan also notes that if the sentence indication is accepted, Mr Waitai will seek a s 27 cultural report.
Setting the starting point
[74] I see no reason to depart from the agreed starting point of five to six years’ imprisonment on the lead charge of conspiracy. Mr Waitai was actively involved in the logistics of the conspiracy, joining Mr Demant in communicating directly with the Mexican suppliers and remaining in contact even after Mr Demant told everyone to “stand down”. Mr Waitai also played a significant role in recruiting individuals to facilitate the safe passage of the cocaine through Tauranga Port, and was the main point of contact with these individuals (as Mr Demant wished to minimise the amount of direct contact he had personally).
[75] That said, it appears that Mr Demant had been planning the importation for several months prior to Mr Waitai becoming involved, and Mr Waitai remained under his instruction. I consider a starting point of five years’ imprisonment to be appropriate on this charge on a standalone basis.
[76] Turning to the charges of importing cocaine, I consider Mr Waitai played a more significant role in these transactions compared to the conspiracy charge. Although Mr Demant provided him with guidance, Mr Waitai arranged the importations directly with the Mexican syndicate and was responsible for ensuring their safe delivery to New Zealand. Mr Waitai also exercised influence over other
26 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
associates lower down the chain, such as Mr Dickson, and made payment for the drugs to the New Zealand based representative of the Mexican syndicate, Mr Gavito Alvarado.
[77] Taking into account totality, I consider an overall starting point of eight years’ imprisonment to be appropriate for Mr Waitai in relation to the cocaine offending and I accept that an uplift of three years is warranted for the methamphetamine offending.
[78] The additional charge of conspiracy to import 198.7 grams of methamphetamine necessitates a greater uplift than that which was given to Mr Demant. In addition, the conspiracy was close to completion, intercepted only by Australian Border Force officials while in transit to New Zealand.
[79] The global starting point on all charges is therefore one of 11 years’ imprisonment before taking into account aggravating and mitigating features personal to Mr Waitai.
Adjusting the starting point
[80] Mr Waitai has previous convictions but none of relevance for present purposes, the Crown accepts. There is therefore no uplift for aggravating features.
[81] As to mitigating features, the only factor I can give a discount for at this stage relates to guilty pleas. However, for similar reasons to those I gave in respect of Mr Demant, I am not persuaded that the full 25 per cent discount remains available to Mr Waitai.
[82] Mr Waitai has had ample time to enter guilty pleas since he received disclosure in December 2021. I have no doubt that in the 11 months that has elapsed, a considerable amount of time and expense has already gone into preparing for trial in February 2023. As the Supreme Court emphasised in Hessell, the benefit that a guilty plea delivers to the administration of justice and to those who must otherwise participate in the trial process is the core rationale behind giving credit for this factor
at sentencing.27 A discount of 20 per cent adequately reflects the savings that Mr Waitai’s guilty pleas would bring at this stage in the proceeding. I therefore accept the Crown submission on this point and would reduce Mr Waitai’s sentence by 20 per cent, or approximately two years and three months.
[83] It follows that the indicated sentence is one of eight years and nine months’ imprisonment.
Result
[84] For Mr Demant, the indicated sentence is one of 10 years and five months’ imprisonment.
[85] For Mr Waitai, the indicated sentence is eight years and nine months’ imprisonment.
[86] Further discounts may be available at sentencing based on additional information that is before the Court at that time.
[87] Counsel for Mr Demant and Mr Waitai are to file and serve memoranda no later than Thursday 17 November 2022 at 5:00 pm advising whether the indication for their client is accepted.
Woolford J
27 Above n 26, at [45].
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