R v Dewar

[2013] NZHC 2010

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-2338 [2013] NZHC 2010

THE QUEEN

v

GARRY ANTHONY DEWAR

Hearing:                   9 August 2013

Counsel:                  C E Clarke for Crown

A Laurenson for Prisoner

Sentence:                 9 August 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]      Mr Dewar you have been convicted by a jury of the following offences: (a)   participation in an organised criminal group;1

(b)     conspiracy to supply cannabis;2 and

(c)     theft (of electricity).3

[2]      I am going to tell you now where you stand in terms of sentence.  By the skin of your teeth,  you  will be sentenced to  home detention for a term of twelve months.

[3]      Some may think that sentence is lenient.  But it is in scale with the sentences imposed on other offenders caught in this police operation.  It reflects the real extent

1      Crimes Act 1961, s 98A.

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

3      Crimes Act 1961, ss 219 and 223(c).

R v DEWAR [2013] NZHC 2010 [9 August 2013]

of your responsibility, which is not measured simply by your nominal title as President of the Taranaki chapter of the Rebels motorcycle gang.  It is calculated to achieve the greatest prospect of your returning to society as a decent family man, as a tradesman and as I say a member of society.

Facts

[4]      You are 41 years old.  You are a qualified electrician and you are currently employed in that trade.

[5]      The charges against you arose out of Operation Puff, an investigation into the sale and supply of controlled drugs in the New Plymouth area between May and September 2011.   Part of that investigation focused on the activities of the New Plymouth chapter of the Rebels motorcycle gang.

Participation in an organised criminal group

[6]      You were, as I have said, President of the Taranaki chapter of that gang.  To call your chapter a “gang” is perhaps grandiose.  It seems to have consisted of three men and one motorcycle.   It was a small start-up enterprise, and in sentencing Mr Couper, the chapter’s sergeant-at-arms, called its drug-related offending rather “mickey mouse”.   That is not to downplay the seriousness of drug offending generally.  But the involvement of Mr Couper, who was a man with a talent for self- advertisement rather than concealment, always doomed this enterprise to early detection and failure.

[7]      The verdicts of the jury suggest that it saw your participation in the organised criminal group as confined to cannabis.  I discharged you on a charge of cultivating that drug.   But the jury convicted you of conspiring to sell cannabis cultivated by others.   I discharged you on the charge of conspiring to supply cocaine.   I was satisfied that no jury could safely have convict you of that.  The jury acquitted you on the most serious charge you face which was conspiracy to supply methamphetamine.   It could not agree on a further charge of conspiracy to supply Class C varieties of ecstasy.  Today the Crown has offered no further evidence on that charge and I have dismissed it.  In these circumstances it is proper that I regard

the relevant scope of the organised criminal gang, so far as you were a member of it, as organised only in relation to cannabis.  That gives rise to a substantial degree of overlap with the next charge, conspiracy to supply cannabis.

Conspiracy to sell cannabis

[8]      You were in contact with Mr Couper and you assisted him in procuring and distributing supplies of cannabis by text and phone.  You also assisted him growing cannabis for resale by using your skills as a linesman to reconnect the electricity at a house he had rented in Carrington Road.   You knew the house was to be used to grow cannabis.

Theft

[9]      In the manner just described, you were party to theft of between $500 and

$1000  worth  of  electricity  in  relation  to  power  diverted  to  grow  cannabis  at

Mr Couper’s Carrington Road property.

Purposes and principles of sentencing

[10]     I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing.  The principles that I have to keep in mind are the same that I outlined a few moments ago in relation to Mr James.   These sentencing remarks should be read in conjunction with those made in relation to Mr James and I am not going to repeat myself.  The same principles apply to you as it it applied to him.

Lead offence

[11]     The lead  charge  for sentencing  purposes  is  participation  in  an  organised criminal group.  Counsel have noted how difficult it is to identify a starting point for this type of offending.   None of the authorities cited are directly on point, and I propose to sentence you consistently with your co-offenders.

[12]     I assess your culpability on this charge as a little lower than Mr Couper, to whom I gave a starting point of three years’ imprisonment.4   You were Mr Couper’s taskmaster, but his forays into other drugs were largely his own.  He was the hub around which the organised criminal group, and the other conspiracies, revolved. When I say that you were Mr Couper’s taskmaster it is perfectly plain from the evidence that that was no easy task given Mr Couper’s own erratic behaviour.  There

is some merit in Mr Laurenson’s submissions on your behalf that this “organised criminal group” was in fact “extremely disorganised”.   Mr Couper was plainly a loose cannon, and dangerous to associate with.   The evidence demonstrated the reality that the criminal organisation was gathered de facto round Mr Couper, rather than around you despite your seniority as President of the chapter.

[13]     Because of that seniority and because of your counselling of Mr Couper, this aspect of your offending was arguably more serious than that of Mr James and Mr Green.5   In their cases I have adopted starting points of two years and 18 months imprisonment respectively.   On the other hand, their activities extended to methamphetamine and ecstasy dealing and yours did not. That is to your credit. As I have said the verdicts of the jury suggest that it saw your participation in the group

as confined to cannabis.   I accept, also, that there is no evidence of any material profit earned by you from any of those activities.

[14]     There is also no suggestion on the evidence that you were associating with Mr James and Mr Green to whom I have given sentences of imprisonment.   You were all “spokes” off Mr Couper’s hub.  In his case, bearing in mind that he was the hub and that his offending included methamphetamine and ecstasy,  I adopted a starting point of three years.

Result on lead offence

[15]     On this charge in relation to you, I adopt a starting point of two years, two

months’ imprisonment.

4      R v Couper [2013] NZHC 1576.

5      R v Green [2013] NZHC 1577.

Other offending

[16]     I turn to you other offending.

[17]     First, conspiracy to sell cannabis.   This would fall to be dealt with at the bottom end of band 2 in the Terewi tariff decision,6 and subject to a modest discount reflecting that we are dealing with conspiracy rather than actual supply.  A sentence of one year and nine months’ imprisonment would be appropriate, subject to adjustment for your personal circumstances.  That is consistent with, but one month shorter  than,  the  sentence  I  imposed  on  Mr  Couper.    There  is  certainly  no

justification for imposing a longer sentence, as your offending was by way of assistance to Mr Couper’s cannabis dealing enterprise.   Rather your sentence is slightly  shorter,  reflecting  that  the  primary  gain  was,  or  would  have  been, Mr Couper’s.    Indeed  its  primary focus  seems  to  have been  to  raise  money so Mr Couper could acquire a motorcycle.

[18]     On the last charge, theft, a sentence of three months’ imprisonment would be

appropriate.

[19]     The conspiracy to sell cannabis and the theft charge substantially overlap with the charge of participation in an organised criminal group whose common purpose was to sell cannabis.   The theft charge is all part and parcel of the same activity.  In these circumstances two things follow.  They are important in terms of the final result I reach today, which is that you are ultimately eligible for home detention.   First, these sentences would be served concurrently (i.e. at the same time).  Secondly, the sentence I have imposed on the lead charge adequately reflects the totality of your offending.  I will not, therefore, increase the sentence on the lead charge to take account of this additional offending, as I justifiably could have done. I am satisfied that all of your offending is covered by the first charge and the

remainder is surplusage.

6      R v Terewi [1999] 3 NZLR 62 at [4].

Totality

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

Aggravating and mitigating features of offender

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

Aggravating features

[22]     I do not think a specific uplift for the aggravating factor of gang involvement is justified, as I have taken it into account in setting starting points.

[23]     You have prior convictions for assault, disorderly behaviour and careless driving.  Apart from the assault conviction in 2005, the other offending was 17 or more years ago.  I do not consider that those matters are relevant to the offending that  you  are  being  be  sentenced  for  today.    In  particular  you  have  no  prior convictions for drug offences.

Mitigating features

[24]     I turn now to mitigating factors.

[25]     You have some previous convictions, as I have said, so I cannot treat you as deserving of a discount for good character.  But equally I will not regard those as an aggravating factor.

[26]     I have limited evidence before me of remorse.  I have no doubt that you are remorseful but what is in front of me cannot be said to be “extraordinary” in the sense contemplated by the Supreme Court in Hessell.7     So I do not give you an additional discount for that.

[27]     What I do focus on is your record, and your conduct since apprehension, demonstrating capacity to rehabilitate.  And the real efforts that you have already

7      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [72].

made to that effect.  Despite all these events you are holding down a stable job as an electrician.   Your employer writes  in  praise  of  you.   Your attendance  has  been impeccable, you have a “contagious attitude to work”, you mentor the company’s apprentices, and customers are said to love having you on their premises.   Your employer says that you have become “a huge part of this company and its continued success”.  I hope that view will be recognised ultimately when you return to work at that place.

[28]     I am prepared to recognise a 10 per cent discount on sentence reflecting prospects and efforts to rehabilitate.

[29]     You did not plead guilty.  So there can of course be no further discount for a guilty plea.

[30]     The end result of all that Mr Dewar, is that if sentenced to prison, you would have been sentenced to two years’ imprisonment for participation in an organised criminal group; one year and seven months’ imprisonment for conspiracy to sell cannabis and three months’ for theft.

Home detention

[31]     But because your sentence is a short-term length of imprisonment, that is two years or less - and you will see why I said at the beginning that you have got home detention  by  the  skin  of  your  teeth  -  you  are  eligible  for  a  sentence  of  home detention.  I am satisfied that the purposes of sentencing, including denunciation and deterrence, can be met by a sentence of home detention.8     Sentencing principles require me to consider what may best result in your rehabilitation to society.  I am required to impose the least restrictive outcome that is appropriate.   The Court of Appeal has said that there are obvious rehabilitative benefits to the offender and to

society  where  the  offender  is  motivated  to  change,  and  the  Court  can  have confidence  in  their  ability  to  do  so.    The  Court  can,  in  your  case,  have  that

confidence.

8      R v Iosefa [2008] NZCA 453 at [41].

[32]     Home detention is no soft option.  The restrictions on your freedom will be real.   In sentencing you to home detention I am denying you almost every liberty, apart from two.  The first is the continued company of your family.  The second is the liberty to work, as I will direct that that may continue.  These two liberties will remain because they are more likely to assist rehabilitation, and avoid you becoming a burden on the state in the future, than if I instead cooped you up inside watching reality television and shopping channel shows all day.  I acknowledge that there may be difficulties continuing with your present employer if you wear an ankle bracelet. As I said I hope you and he will be able to work through that. As I said before, I am not prepared to grant any greater leniency than a sentence of home detention with a work condition for this offending.

[33]     The conditions that I impose on you will be rigorous.   Breach of them is likely to result in revocation of this sentence and in that event you will go to prison for the balance of your sentence.

[34]    The term of home detention is approximately half the equivalent prison sentence.  The reason for that is because there is a release entitlement for prisoners after one half of a short term prison sentence.   But a sentence of home detention must be served in full.

[35]     Your residence in New Plymouth has been assessed as suitable and your wife understands the conditions, consents to them, and has been informed that she may withdraw her consent at any time.   I note that you also consent to the conditions suggested  by the  probation  officer  and  those  conditional  conditions  that  I have indicated already this morning and which, through your counsel you have accepted.

Sentence

[36]     Stand please.

[37]     Mr Dewar, I sentence you to twelve months’ home detention.

[38]     That sentence is to be managed in a way that enables you to continue in employment if at all possible.

[39]     The following conditions are to apply:

(a)      You  are  to  travel  directly  to  the  address  prescribed  in  your  pre- sentence report.   There you are to await the arrival of a probation officer and security officer.

(b)      You are to reside at that address for the duration of your sentence.

That  is  subject  to  exceptions  approved  in  writing  by  a  probation officer, and to the following condition (c).

(c)      Those monitoring your sentence are to permit you to be absent for such time as is essential to enable you to maintain your present employment, or any other employment approved by a probation officer.  Such absences from the detention address are strictly limited to travelling directly to, remaining at and travelling from your workplace or workplaces, unless an exception under condition (b) applies.

(d)You are to be subject to electronic monitoring to ensure compliance on such conditions as are determined by a probation officer.

(e)      You are not to purchase, possess or consume alcohol or illicit drugs for the duration of the sentence.

(f)      You are to submit to such drug tests as are required by your probation officer.

(g)You are to undertake an alcohol and drug assessment, and complete any recommended counselling or treatment for abuse of alcohol and other drugs, to the satisfaction of a probation officer and programme provider.

(h)You are to present yourself at the door of the detention address when called upon to do so by any probation or police officer visiting the address.

(i)You are not to have any contact with your co-offenders during the term of your sentence.

[40]     Standard post-release conditions will apply for a period of six months only.9

[41]     I decline to impose any special post-release conditions because I am not satisfied that there is a significant risk of further offending.10

[42]     Mr Dewar, this is an opportunity to get your life back on track.   You will probably only get one such chance from the Courts.  I suggest you take the chance, and that you respect the chance being given you.   Good luck to you and good morning.

[43]     Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, New Plymouth

Govett Quilliam, New Plymouth for Prisoner

9      Sentencing Act 2002, s 80N(2)(a).

10     Sentencing Act 2002, s 80P(1)(a).