R v Dunn HC Auckland CRI 2008-404-000076

[2008] NZHC 2625

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000076

THE QUEEN

v

DAVID JAMES DUNN DWAYNE ALLAN MARSH WENDY HUIA MARSH MAREE ELIZABETH HAIR LIONG TUNG TANG

TUNG SENG CHANG SUSANNA JOANNA TEO

Hearing:         14 October 2008

Appearances: B Tantrum and S Earl for the Crown

D Jones QC and D M  Cross for the Prisoner

Judgment:      14 October 2008

SENTENCING NOTES OF ANDREWS J [S J Teo]

Solicitors:

Meredith Connell, PO Box 2213, Auckland 1140

Counsel:

D P H Jones QC, PO Box 1750, Shortland Street, Auckland 1140

R V TEO AND ORS HC AK CRI 2008-404-000076  14 October 2008

[1]      Ms Teo you appear for sentencing today having been found guilty by a jury on a charge of conspiracy to manufacture methamphetamine, five charges of supplying methamphetamine and one charge each of offering and conspiring to offer to supply methamphetamine.  As you will know the jury’s verdicts were given on

16th  July 2008.   On each of the charges on which you have been convicted the

maximum sentence that may be imposed is either 14 years imprisonment or, in the case of conspiracy to manufacture, life imprisonment.

[2]      You  were convicted  along  with  your co-offenders  David  Dunn,  Dwayne Marsh, Wendy Marsh, Maree Hair, Liong Tung Tang and Tung Seng Chang – all of whom were sentenced on 21 August 2008.

[3]      Because I am sentencing you apart from the others, I will go through very briefly  the  relevant  facts  disclosed  in  the  trial  and  the  process  I  undergo  in sentencing.

Relevant facts

[4]      In respect of Mr Dunn, Mr Marsh, Ms Marsh, Ms Hair, Mr Tang and yourself the offending was detected during the course of a Police investigation known as “Operation Twickers” carried out from June to October 2005.  Further offending by Mr Tang, and Mr Chang’s offending, was detected during the Police investigation known as “Operation Hop” from late 2005 until March 2006.  In addition, Ms Hair was found guilty of a further offence detected during the period late May and early June 2006.

[5]      In respect of the convictions for the offence of conspiracy to manufacture methamphetamine the jury in convicting you and Mr Marsh, Mr Tang and Ms Hair accepted the Crown’s case which was that the precursor ContacNT was supplied primarily by Mr Tang to Mr Marsh, and moved by Mr Marsh through intermediaries, that is Ms Hair and  yourself, to methamphetamine cooks.     Finished methamphetamine product was then channelled back from the cooks to Mr Marsh through Ms Hair and yourself.

[6]      The  convictions  on  the  charges  of  supplying,  offering  to  supply  and conspiracy to supply methamphetamine all resulted from intercepted text and cellphone communications and audio surveillance.

Sentencing process

[7]      I turn to explain the sentencing process.  In sentencing, I first talk generally about sentencing and the sentencing law that  I must  apply,  and  then  about  the process of sentencing.

Sentencing purposes and principles

[8]      In sentencing you I have to take into account what the law sets out as the purposes of sentencing.  In particular I have to hold you accountable, to make you responsible for what you have done.  I have to consider deterrence and protection of the community.  I also have to denounce your offending. This means to tell you, as clearly as I can, that the offending on which you have been convicted is unacceptable in New Zealand society.  At the same time the purpose of sentencing is to help you to get back into the community as a useful member of it.

[9]      There is also a need to protect the community from methamphetamine.  You must, by now, understand that the social cost to families and to the community that follows from the use of methamphetamine is destructive.  It is devastating and sadly we see its effects in the Courts every single day.

[10]     There are also some general principles of sentencing that must be considered. In your case I consider the gravity of your offending, including your own personal culpability, and the seriousness of that offending in comparison with other types of offences.

[11]     It is generally desirable to maintain consistency in appropriate sentencing levels and in your case in particular I have to consider parity with the sentences imposed on your co-offenders.  As well, I am directed to impose the least restrictive outcome that is appropriate in the circumstances.

[12]     The Sentencing Act 2002 provides that it is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community. However, the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant to your case.  For the offences on which the jury convicted you, the Misuse of Drugs Act 1975 provides that there is a presumption that a sentence of imprisonment will be imposed.

Sentencing steps

[13]     In order to determine the appropriate sentence for you the first step is to establish what we refer to as the starting point.  That is the appropriate sentence to be imposed for the most serious charge on which you have been convicted.   In your case this is the charge of conspiracy to manufacture methamphetamine.

[14]     The  second  step  is  to  take  that  starting  point  and  decide  what  is  the appropriate sentence for you for the totality, that is all of your offending.  I do this by considering whether there is anything about your offending that makes it more or less serious. These are aggravating or mitigating factors that  would  lead  me to impose a sentence that is greater, or less, than the starting point.

[15]     I also consider matters that relate to you personally, because these may also lead me to adjust your final sentence either upwards or downwards.

[16]     In sentencing on methamphetamine charges this Court is guided by the Court of Appeal decision in Fatu1.  In the case of Fatu the Court of Appeal set four levels (or bands) for sentencing for supply and manufacture of methamphetamine.  These bands  depend  on  the  quantity of  methamphetamine  involved.    You  have  heard counsel this morning talking about level 3 or level 2 or band 3 or band 2, that is what they are referring to.  The lowest band is less than 5 grams of methamphetamine, the second band is 5-250 grams, this third band is 250-500 grams and the fourth and highest band is 500 grams or more.

1           R v Fatu [2006] 2 NZLR 72 (CA)

[17]     For manufacture, the Court of Appeal has set the starting point for Band 2 at is imprisonment for 4 to 11 years, for Band 3 it is 10-15 years imprisonment, and for Band 4 it is 13 years up to life imprisonment.

[18]     For supply the sentencing ranges are lower.   In Band 1 it is 2 to 4 years imprisonment, for Band 2 it is 3 to 9 years imprisonment, for Band 3 it is 8 to 11 years imprisonment and for Band 4 it is 10 years to life imprisonment.

Pre-sentence report

[19]      I understand you are 38 years old and you have a close and supportive family environment. You are married, you have three young children and Mr Jones has told me today that they are now 3, 5 and 7.  Mr Jones also told me that your children are now in the care of your husband and he spoke more about that aspect this morning.

[20]     You have a very high-achieving history.  You have completed two University Degrees, I understand a Bachelor of Arts Degree and a Business Studies Degree and clearly you have been successful in your career.

[21]     You have expressed remorse for your offending.  You identified as a source of considerable stress in your life the fact that you had your mother-in-law living with your family for an extended period.   Then when discussing your offending you said that you felt very bad for your family and you acknowledged that your involvement in the offending was stupid.

[22]     You have no previous convictions of any kind.

[23]     You did not, and do not, use methamphetamine yourself.   In your case there is no need for any direction that you undertake treatment for methamphetamine use. The only rehabilitative need identified by the Probation Officer was your susceptibility to the influences of associates who supported your offending at that time.   The Probation Officer is of the view that you are unlikely to reoffend in a similar fashion and that you present no risk to others in the community.

[24]     The Probation Officer recommended imprisonment as your sentence because of the seriousness of the offending but also canvassed the possibility of home detention.  As Mr Jones referred to, there is a home detention report attached to the pre-sentence report.

Starting point

[25]     I therefore now consider the starting point on the most serious charge which is the conspiracy to manufacture methamphetamine.

[26]     You supplied ContacNT to methamphetamine manufacturers and received methamphetamine product in return.  The evidence disclosed at trial that you dealt with three methamphetamine cooks, a Mr Morris, Mr Stewart and Mr Collins.  You sold the methamphetamine product that you received.

Submissions

[27]     The Crown’s submissions note that the total number of packets of ContacNT supplied by you is unclear.  What is clear is that at least 700 packets were supplied by you.   According to the evidence given by the ESR Scientist at the trial, that quantity  of  ContacNT  would  yield  between  312  and  468  grams  of methamphetamine.   There was evidence that you received about 3 ounces and 20 grams, or something in the order of 104 grams of methamphetamine in exchange for the precursors you supplied.

[28]     In their written submissions provided to me earlier, the Crown submitted that the potential yield of the ContacNT supplied by you places your offending on the border between bands 3 and 4 in Fatu.  If you recall my discussion of the starting points earlier you would note that that would lead to an initial starting point of 12 to

15 years imprisonment.

[29]     As I did with your co-offenders, I intend to follow the course of allowing a

30% discount from the initial starting point, in the light of the fact that your conviction  is  for  conspiracy  to  manufacture,  not  actual  manufacture.     After

adjustment for a lower maximum term for conspiracy the Crown submitted that the appropriate starting point would be in the range of 9 to 11 years imprisonment.

[30]     Mr Jones, on your behalf, submitted that the starting point suggested by the Crown is grossly excessive and unjustifiable.   He submitted that you should be sentenced on the basis that your offending fell at the bottom of band 3, or the top of band 2 in Fatu.  He noted the distinction between your case and that of Ms Hair, in respect of whom the evidence established that she had supplied approximately 1,500 packets of ContacNT to a methamphetamine cook, enough to manufacture between

669 grams and 1 kilogram of methamphetamine.  That is, as he submitted, more than twice the amount established in your case.  On that basis he submitted that Ms Hair had a significantly greater  culpability that  you did.   Mr Jones submitted that a starting point of 6 to 7 years imprisonment would be appropriate.

[31]     I do accept that your culpability should be set at a lower level from that of Ms Hair on the basis of the lower potential methamphetamine yield.   I note that Mr Jones also referred to the sentence imposed on Ms Marsh but I have to bear in mind that she was not convicted on a charge of conspiracy to manufacture.  In fact, that charge  was  not  put  to  the  jury.    As  you  will  recall  she  was  discharged  on  it. Although I do take into account that Ms Marsh was convicted on a larger number of supply of methamphetamine and conspiracy or offer to supply methamphetamine charges, I do not consider that Ms Marsh’s sentencing is comparable in your case.

[32]     But bearing in mind the difference between your case and that of Ms Hair, I adopt an initial starting point of six years imprisonment for which I will make the same 30% deduction to reflect the fact that this is a conviction for conspiracy rather than actual manufacture.

[33]   Accordingly, in respect of the charge of conspiracy to manufacture methamphetamine I adopt a starting point of four years and three months imprisonment.

[34]     Mr Jones then submitted that there are further mitigating factors relating to your offending that I should take into account in your sentencing.  I will go through

these reasonably briefly.   These are that you were under the considerable influence of Mr Marsh  who,  he submitted,  pressured  and  intimidated  you,  particularly in relation to your accounting to him for money and the manufactured methamphetamine, and exerted control over and organised the distribution of the methamphetamine.   In that respect Mr Jones submitted that  you did not take a primary or organising role at all, being simply an intermediary used to move ContacNT in one direction and manufactured methamphetamine in the other.   He described you as a “fetcher and carrier”.

[35]     There is evidence to support Mr Jones’ submission as to pressure in the various recorded discussions of money you were said to owe to co-offenders so I can accept that submission, and I can accept Mr Jones’ submission that you were under the control of Mr Marsh in relation to transferring ContacNT and methamphetamine.

[36]     Mr Jones also submitted that your role and how you were viewed and treated by other co-offenders is shown in the manner in which you spoken about, treated as an outsider and discussed in a derogatory and abusive way.   He put it to me that you accept your involvement, but you were not as closely involved as say Ms Marsh, nor as closely involved as Ms Hair.

[37]     Then in respect of mitigating factors relating to you personally Mr Jones referred to the absence of any previous convictions of any nature, the personal stress you were under at the time of your offending, and he submitted that that continued during the trial, your expressions of remorse and contrition and the Probation Officer’s view that you are at a low risk of offending and present no risk to others or the community.   He also spoke today of the impact that your offending, and the results of that offending in the form of your conviction, has had on your family. These matters, Mr Jones submitted, also distinguished you from your co-offenders. Mr Jones also noted that during your period of remand, from being first arrested until the time of trial, you have undertaken parenting courses and relationship counselling.

[38]     Taking all of the matters that I have mentioned into account my conclusion is that  the  appropriate  starting  point  on  the  charge  of  conspiracy  to  manufacture

methamphetamine, that is adjusted for those factors, is a sentence of three years imprisonment.

[39]   I turn to the remaining offending.    The five charges of supplying methamphetamine involved a total of 44 grams. The charge of offering to supply involved one ounce and the charge of conspiring to supply involved three ounces.  If I understand the mathematics this is a total of some 156 grams of methamphetamine. That places your offending in about the middle of Fatu band 2, for which the starting point is in the range of 3 to 9 years imprisonment.

[40]     Looking at those offences for the moment, separately from the lead offence of conspiracy to manufacture, the Crown submitted that the appropriate starting point on that offending is imprisonment for 6 to 7 years.   I have concluded that the appropriate sentence on each of these charges, and again this is in isolation from the conspiracy to manufacture, is one of 18 months imprisonment.

[41]     However, your offending is a connected series of offences of the same or a similar nature and occurring at much the same time so it is appropriate for your sentences to be concurrent that is, that they are all served at the same time.  But the sentence on the lead charge of conspiracy to manufacture methamphetamine must be increased so as to reflect the totality of all of your offending.   There must be an uplift.  I have concluded that the appropriate uplift is six months imprisonment.

[42]     In the case of Ms Hair I applied an uplift of 12 months but in her case that had to take into account her offence committed after the termination of Operation Twickers and while she was on bail on charges arising out of Operation Twickers. That aspect is not present in your case so a lower uplift is justified.

[43]     That leads me to a final sentence of three years and six months imprisonment.

[44]     Mr   Jones   submitted   that   a   sentence   of   home   detention   rather   than imprisonment would be appropriate.   You will have heard my discussion with Mr Jones in relation to the authorities on home detention.  As your offending occurred before 1st October 2007, and as you are subject to a sentence of imprisonment, under

s 57  of  the  Sentencing  Amendment  Act  home  detention  may  be  an  available sentence.  I refer there to the Court of Appeal’s judgment in R v Hill2.

[45]     I am conscious of the principle of sentencing that I should impose the least restrictive outcome that is appropriate in all the circumstances.  That is the basis on which a sentence of home detention is sought.  I am conscious of the hardship your family is facing.  I have listened to you very carefully today Ms Teo and I have been moved by your own submissions as to what you have done, that you have a full sense of understanding as to what occurred and you know what has to happen in the future. I am, as I say, conscious of the hardship your family is facing.  Sadly, that is not a situation that is unusual in this Court.  I readily accept that the imprisonment of any parent will result in severe hardship for the family concerned.

[46]     However, I must also take into account the purposes of sentencing that I have referred to and the other principles of sentencing including parity of sentencing between co-offenders, and I accept Mr Tantrum’s submission on that point.   Having considered all of the factors very carefully, I cannot conclude that a sentence of home detention would be appropriate in your case.   A sentence of imprisonment must be imposed.  I urge you, Ms Teo, to do what you can so that you are considered appropriate for release on parole at the earliest opportunity.

Sentence

[47]     Ms Teo would you please stand.

[48]    On the charge of conspiracy to manufacture methamphetamine, you are sentenced to three years and six months imprisonment.

[49]     On each of the charges of supplying methamphetamine, offering to supply methamphetamine and conspiring to supply methamphetamine, you are sentenced to eighteen months imprisonment.

2           R v Hill CA 559/07 29 February 2008

[50]     All sentences are to be served concurrently so your effective sentence is three years and six months imprisonment.

[51]     Would you please stand down.

Order for destruction of property

[52]     Now that all of the persons convicted in this matter have been sentenced it is appropriate to consider the order for destruction sought by the Crown.  Accordingly, an  order  is  made  pursuant  to  s 32  of  the  Misuse  of  Drugs  Act  1975  for  the

destruction of all utensils and other drug paraphernalia.

Andrews J