R v Dennis
[2023] NZHC 169
•10 February 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-3188
[2023] NZHC 169
THE KING v
JANE DENNIS
Hearing: 10 February 2023 Appearances:
C Macklin for the Crown
A Schulze for the Defendant
Sentencing:
10 February 2023
SENTENCING NOTES OF WOOLFORD J
Solicitors: Gordon Pilditch (Office of the Crown Solicitor), Rotorua Counsel: A Schulze, Barrister, Rotorua
R v DENNIS [2023] NZHC 169 [10 February 2023]
Introduction
[1] Ms Jane Dennis, you are for sentence today having pleaded guilty to manufacturing methamphetamine,1 and possessing gamma-butyrolactone (GBL), a Class B controlled drug, for supply.2
Facts
[2] The charges arise out of your participation in a criminal network that was uncovered by a Police operation codenamed “Schultz”. The network consisted of a number of individuals involved in the manufacture and supply of methamphetamine in the Rotorua area. The principal offender in the network was Mr William MacFarlane. Other members included Mr McMeeking, who played a coordinating role; Mr Andrei Kupkovic, who facilitated the importation of ephedrine; and Ms Charlotte Ward, who tracked consignments and arranged money transfers.
[3] Mr MacFarlane referred to you as his “cook”. He would supply you with ephedrine and other chemicals required to manufacture methamphetamine. He would also supply you with GBL to sell.
[4] Sentencing is to proceed on the basis of the summary of facts to which you have pleaded guilty. I will now traverse the facts of your offending.
The GBL charge
[5] On 25 August 2020, Mr MacFarlane supplied you with 3.8 litres of GBL. Mr MacFarlane noted that at $2,000 per litre, the price came to $7,600. However, he owed you $3,000, so he was prepared to accept $4,600 as payment for the GBL.
The manufacturing charge
[6] Sometime prior to 7 September 2020, Mr MacFarlane arranged for the key ingredients of methamphetamine to be transported to you in Paeroa. Between 7 and 8 September the statement of facts discloses that you either manufactured
1 Misuse of Drugs Act 1975, s 6(1)(b) and (2)(a): maximum penalty of life imprisonment.
2 Section 6(1)(f) and (2)(b): maximum penalty of 14 years’ imprisonment.
approximately 730 grams of methamphetamine or arranged for an unknown associate to do so for you. Another associate then collected and distributed that product to the wholesalers.
Personal circumstances
[7] Ms Dennis, you are 52 years old. You have 17 previous convictions, including convictions for manufacturing methamphetamine in 2012 and 2017.
[8] According to your PAC reports you began using drugs more than 20 years ago. You amassed a large debt to gangs. Since that time, you say they have harassed and bullied you into helping them manufacture methamphetamine. You feel that you have had no choice but to comply. I note that you made similar claims in your 2017 PAC report.
[9] Despite your guilty plea, you deny actually manufacturing the methamphetamine yourself on this occasion.
[10] You have taken some steps to address your drug use, including, completing residential rehabilitation at the Grace Foundation while on electronically monitored (EM) bail for these charges. But I note that you previously completed a period at Odyssey House prior to being imprisoned in 2017.
Sentencing approach
[11] Ms Dennis, I am required to take a two-step approach in sentencing you.3 For the first step, I will set what we call the starting point. That requires me to consider the gravity of your offending. I will do so with reference to the Court of Appeal’s guideline judgment for methamphetamine offending, Zhang v R.4 That case sets out five different bands of offending, each defined by reference to a specified quantity of methamphetamine and each correlating to a suggested sentencing range. While the quantity involved in your offending will determine what band you fall in, the role you
3 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
played in the offending will determine where I place you within that band. I note that a full assessment of role can result in an offender moving between bands.5
[12] For the second step, I will turn to consider any aggravating or mitigating factors relating to your personal circumstances. These factors may increase or reduce your final sentence.
[13] The Crown is seeking a minimum period of imprisonment (MPI) on your sentence. A MPI is the period of time of which you must serve before you become eligible for parole. Accordingly, after I have decided your final sentence, I will need to consider whether to impose an MPI, and if so, for how long.
[14] I must sentence you in accordance with the purposes and principles set out in the Sentencing Act 2002. I make particular reference to the need to hold you accountable for the harm your methamphetamine dealing has done to the most vulnerable in our communities; to promote in you a sense of responsibility for that harm; and to deter others from committing similar offences.6 I also consider as especially relevant the need to impose sentences that are consistent with those given to your co-offenders.7
Starting point
[15] The Crown and your counsel agree that manufacturing methamphetamine is the lead change.
[16] As you arranged for the manufacture of 730 grams of methamphetamine, your offending falls within Zhang band four. Band four applies where the quantity of methamphetamine is between 500 grams and two kilograms. The suggested starting point for band four offending is between eight and 16 years’ imprisonment.
[17] Mr Macklin, counsel for the Crown, submits that in terms of Zhang, you had a “significant” role in the offending. He emphasises that you had some awareness of
5 At [118].
6 Sentencing Act 2002, s 7(1)(a), (b) and (f).
7 Section 8(e).
the scale of the operation and discussed sourcing precursor substances with Mr MacFarlane.
[18] At his sentence indication, Mr MacFarlane received a starting point of 10 years and six months’ imprisonment for his role in the same manufacture of 730 grams of methamphetamine.8 Mr MacFarlane was assessed as playing a leading role in that offending. As your role was less serious, Mr Macklin acknowledges that a lower starting point between nine and 10 years’ imprisonment is appropriate.
[19] Instead, your counsel, Mr Schulze, submits that a starting point between eight and eight and a half years’ imprisonment is appropriate. He says that you were merely a conduit for the actual manufacture and reiterates your denial of being the actual cook on this occasion. He argues that you were in a vastly different position to Mr MacFarlane who was the head of the operation, provided the precursor chemicals and directed manufacture, collection and supply.
[20] In those circumstances, I consider the appropriate starting point to be eight years’ imprisonment.
[21] The Crown and Mr Schulze agree the charge of possessing GBL should lead only to a concurrent sentence, and not an uplift to the starting point.
Adjusting the starting point
[22] I turn now to consider any aggravating or mitigating factors which are personal to you.
Prior offending
[23] Mr Macklin submits that your sentence should be uplifted to account for your previous convictions. In 2017 you were sentenced to four years’ imprisonment for manufacturing methamphetamine, meaning that you must have been on parole or recently released at the time of your present offending. This is your third conviction for manufacturing methamphetamine.
8 R v MacFarlane [2022] NZHC 2571 at [39].
[24] The Crown points to the 12 month uplift applied to Mr Kupkovic for prior offending. Mr Kupkovic had 12 relevant previous convictions, occurring in three “sets” of escalating seriousness. For the most recent set of offending, he was sentenced to 15 years’ imprisonment. He was still on parole for this offending at the time he participated in Mr MacFarlane’s criminal enterprise.9 The Crown submits that you should receive a similar uplift, of six to 12 months.
[25] I agree that an uplift is required to meet the principle of deterrence. Your starting point will be uplifted by four months to reach a revised starting point of eight years and four months’ imprisonment.
Section 27 report
[26]Your counsel has provided me with a s 27 cultural report on your background.
[27] You were born in Auckland and spent your childhood living in Greenhithe. At age four, your parents separated. You and your brother went to live with your father, who you described as emotionally manipulative. Some years later, you went to live with your mother, the CEO of a large charitable foundation. According to the report your unstable upbringing impacted your self-regulation skills. You left school at 15 and went on to work in a department store and later as a receptionist. You then worked as a nurse aid for five years.
[28] From age 14 you had begun to consume marijuana and alcohol. However, your methamphetamine use only started when you met Steve, the father of your second child. You say that Steve got you involved in a methamphetamine deal which left you owing $20,000. You had to pay the money back, so you started selling methamphetamine. In short time, however, you started using which meant that you were paying back less. This caused you to turn to manufacturing which fuelled your habit. In your words you got “stuck”.
9 R v Kupkovic [2022] NZHC 1980 at [48]–[52].
[29] You have taken some steps to rehabilitate yourself, most recently completing a programme with the Grace Foundation in 2021. You self-report being clean for two years now, smoking only cigarettes.
[30] You have two children and one grandchild. You daughter and grandson live with you and you have been helping care for your grandson. Both of your children express their support and say that you have taken concrete steps towards improving yourself.
[31] Mr Schulze says the matters raised in your s 27 report warrant a discount between 10 – 15 per cent.
[32] The s 27 report does not, however, disclose a severely deprived childhood which may have left you with limited choices in life. You also have a reasonable work history since leaving school. However, I am prepared to give you 10 per cent discount for the part your own drug use and intimidation by the gangs played in your offending as well as your own rehabilitative efforts.
Guilty pleas
[33] Mr Schulze submits that you are entitled to a 25 per cent discount for your guilty pleas.
[34] Your guilty pleas arrived at a late stage. The Crown acknowledges, however, that the volume of data in this case slowed disclosure and that other delays were caused by the COVID-19 pandemic. Given those circumstances, I will give you the full 25 per cent discount.
[35] These discounts total 35 per cent. In addition, you are entitled to a further discount for the two years you have spent on electronically monitored bail. I will therefore deduct a further 10 months from your sentence.
Minimum period of imprisonment
[36] The Crown then submits I should impose an MPI of 50 per cent on your final sentence.
[37] The Court may impose an MPI under s 86(2) of the Sentencing Act if it is satisfied that the default non-parole period of one-third prescribed by the Parole Act 2002 is insufficient to hold an offender accountable, to denounce their conduct, to deter them and others from committing the same or similar offence, or to protect the community.
[38] Importantly, the imposition of an MPI is not a matter of routine but must result from a reasoned analysis both as to whether an MPI should be imposed and, if so, how long it should be.10
[39]In Chai v R the Court of Appeal observed that:11
A minimum period of imprisonment may be expected in cases of recidivist or commercial methamphetamine dealing. That is because in such cases its imposition is not merely deserved, but necessary to hold the offender accountable, denounce drug dealing of this kind with the most grievous social harm it causes the community, protect that community and to deter repetition.
[40] Mr Macklin submits an MPI is appropriate because your offending was motivated by profit. He emphasises that after shortly being released from prison for other offending, you took on an important role within a large-scale drug dealing enterprise. He also notes that, for similar reasons, Muir J applied a 50 per cent MPI to Mr Kupkovic’s sentence.12
[41] I am, however, of the opinion that an MPI is not required in your case. The prison sentence I am about to impose is, in my view, sufficient to hold you accountable and to deter you from further offending.
10 Zhang v R, above n 4, at [169].
11 Chai v R [2020] NZCA 202 at [39] (footnote omitted).
12 R v Kupkovic, above n 9, at [78].
Result
[42]Ms Dennis could you please stand.
[43] Ms Dennis, on the charge of manufacturing methamphetamine I sentence you to four years and seven months’ imprisonment. On the charge of possessing GBL for supply I sentence you to two years’ imprisonment to be served concurrently.
[44]You may stand down.
Woolford J
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