R v Dunn HC Auckland CRI 2008-404-000076
[2008] NZHC 2520
•21 August 2008
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: 21 August 2008
Appearances: B D Tantrum and S Earl for the Crown
G C Gotlieb for the Prisoner David James Dunn M S Gibson for the Prisoner Wendy Huia Marsh P E Dacre for the Prisoner Tung Seng Chang
M A Kennedy for the Prisoner Dwayne Allan Marsh
M J Dyhrberg for the Prisoner Liong Tung Tang
D S Niven for the Prisoner Maree Elizabeth Hair
Judgment: 21 August 2008
SENTENCING NOTES OF ANDREWS J
[D J Dunn, D A Marsh, W H Marsh, M E Hair, L T Tang, T S Chang]
[1] Mr Dunn, Mr Marsh, Ms Marsh, Ms Hair, Mr Tang and Mr Chang – I am now going to be addressing you. You may all remain seated until such time as I ask
you to stand, you are not required to stand for the whole time and I don’t require you
R V DUNN AND ORS HC AK CRI 2008-404-000076 21 August 2008
to stand while I am addressing you generally, it is only while I actually impose sentence that I ask you to stand.
[2] You appear for sentencing today having been found guilty by a jury on a number of charges under the Misuse of Drugs Act 1975. The jury’s verdict, as you know, was given on 16 July 2008. On each of the charges on which each of you have been convicted the maximum sentence provided under the Misuse of Drugs Act is either 14 years imprisonment or life imprisonment.
[3] The offending in respect of Mr Dunn, Mr Marsh, Ms Marsh, Ms Hair and Mr Tang was detected during the course of the 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. Ms Hair has been found guilty of a further offence detected during late May and early June 2006.
[4] In respect of the convictions on the offence of conspiracy to manufacture methamphetamine I accept that the jury, in convicting Mr Marsh, Mr Tang and Ms Hair generally accepted the Crown’s case which was that the precursor substance ContacNT was supplied primarily by Mr Tang to Mr Marsh, and moved by him to intermediaries Ms Hair and Ms Teo (who will be sentenced later) to methamphetamine cooks, with finished methamphetamine channelled back to Mr Marsh through Ms Hair and Ms Teo.
[5] The convictions on charges of supplying, offers to supply, conspiracy to supply methamphetamine and MDMA or ecstasy all resulted from intercepted text and cellphone communications and audio surveillance.
Process of sentencing
[6] The process of sentencing is that I first talk generally about sentencing and the sentencing law that I must apply and about the process of sentencing. Then I will deal with each of you individually, that is, summarise the offences on which you
have been convicted, the submissions that were made in respect of sentencing, and then impose sentence.
Sentencing purposes and principles
[7] In sentencing you, I have to take into account what the law has set out as the purposes of sentencing. In particular I have to hold you accountable, that is, 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 – that means to tell you, clearly, that that offending is unacceptable in New Zealand society. At the same time the purpose of sentencing is to help you with getting back into the community as a useful member of it.
[8] There is also a need to protect the community from methamphetamine. We say this every time in sentencing for methamphetamine but it is still true. The social cost to families and to the community that follows from the use of methamphetamine is destructive, it is devastating and we see its effects in the Courts every day.
[9] Pseudoephedrine, which is the active substance in ContacNT, is one of the main precursor ingredients for the purposes of manufacturing methamphetamine. It must be recognised, and the law does recognise, that those who supply the ingredients for the manufacture of methamphetamine enable the trade in it to continue.
[10] There are also some general principles of sentencing that must be considered. I consider the gravity of your offending including (for each of you) your own responsibility, and the seriousness of your offending in comparison with other types of offences. It is generally desirable to maintain consistency in appropriate sentencing levels and I am directed to impose the least restrictive outcome that is appropriate in the circumstances.
[11] 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 cases. For the offences on which the jury convicted each of you, the Misuse of Drugs Act provides that there is a presumption that a sentence of imprisonment will be imposed.
Sentencing process
[12] Turning to the process of sentencing. When determining the appropriate sentence for each of you the first step is to establish what we refer to as the starting point. You will have heard counsel when they were addressing me this morning, all referred many times to starting points. The starting point is the appropriate sentence to be imposed for the most serious charge on which you have been convicted.
[13] The second step is to take that starting point and decide what is the appropriate sentence for each of you, for the totality of your offending. I do this by considering whether there is anything about the offending itself 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.
[14] I also consider matters that relate to you personally, because these may also lead me to adjust the final sentence upwards or down.
[15] In sentencing on methamphetamine charges this Court is guided by the Court of Appeal’s decision in Fatu1. In that case the Court of Appeal set four levels (or bands) for sentencing for the supply and manufacture of methamphetamine. The bands depend on the quantity of methamphetamine involved. The lowest band is less than 5 grams, the second band is 5 to 250 grams, the third band is 250 up to 500 grams, and the fourth (and highest) band is 500 grams or more.
[16] For manufacture, the starting point in Band 2 (i.e. 5 to 250 grams band) is imprisonment for 4 to 11 years. For Band 3 the range of sentencing is 10 to 15 years imprisonment and for Band 4 it is 13 years up to life imprisonment.
1 R v Fatu [2006] 2 NZLR 72
[17] For the supply of methamphetamine the sentencing ranges are a little lower. In Band 1 (up to 5 grams), the range is 2 to 4 years imprisonment. In Band 2, the range is 3 to 9 years imprisonment. In Band 3, the range is 8 to 11 years imprisonment and for Band 4, the range is 10 years to life imprisonment.
[18] I am now going to consider each of you separately. I will be dealing first with Mr Dunn, Ms Marsh and Mr Chang and I deal with you first because none of you has been convicted on the conspiracy to manufacture charge.
David James Dunn
[19] Mr Dunn you were found guilty on three charges of offering to supply methamphetamine and one charge of offering to supply MDMA or ecstasy.
[20] The lead charges, for the purposes of your sentencing, are the charges of offering to supply methamphetamine and they carry a maximum penalty of life imprisonment. The Crown accepts that all of the offers related to amounts that can be described as being for personal use.
Pre-sentence report
[21] I have read the pre-sentence report. It informs me that you are 43 years old. Prior to your remand you were living with your partner in Massey. You have a 15- year old daughter. You told the Probation Officer that you had a traumatic upbringing; you left home at 15 and have not had any contact with your family since. You completed a building apprenticeship and have been a self-employed builder since your early 20s. It appears from the letter that you wrote to me that in fact you have a well-established building business.
[22] You say that you have not used any drugs since your arrest and you have not consumed alcohol since a serious motorcycle accident in 1990. The report writer recorded you as saying that you had used drugs frequently during the period of the Police surveillance.
[23] The Probation Officer recorded factors assessed as contributing to your offending as including your use of drugs, and an association with people who either used drugs or encouraged that sort of behaviour. The report writer said that your entire support network appeared to be either actively involved in offending or completely unaware of it. It is said in the report that your associates who were interviewed for the preparation of the report rather took the view that you are a victim of the system.
[24] In the circumstances, the Probation Officer assessed your motivation to address your offending as being negligible and assessed you as having a high risk of re-offending and therefore posing a high risk to the community.
[25] I note that you have three previous drug-related convictions. In 2003 you were convicted of manufacturing a Class B drug or conspiring to deal with Class B drugs, and those facts related to offending that had occurred in 1999. Later in 2003 you were convicted on a charge of possessing methamphetamine. I note that you have been sentenced to a number of terms of imprisonment over the years.
[26] The pre-sentence report considers the pros and cons of imprisonment and home detention as sentencing options. You put forward your home address for home detention but the Probation Officer assessed that as not being a suitable address for home detention. Further the Probation Officer did not consider that you yourself would be an appropriate candidate for home detention. A sentence of imprisonment was recommended with special release conditions.
Submissions
[27] In submissions, both in written submissions and today, the Crown submitted that your methamphetamine offending falls at the lower end of the first Band, that is the lowest band in the Fatu judgment. The Crown suggests a starting point of 18 months to 2 years imprisonment for the methamphetamine offending. As I said earlier, the Crown accepted that the amounts you offered were for personal use, but went on to say that there was nothing to suggest that you were not in a position to complete the supply. The Crown then submitted that the starting point should be
increased to reflect the totality of your offending, and then further increased to take account of aggravating factors of your previous convictions and the fact that the latest offending occurred while you were on parole from a previous sentence.
[28] On your behalf Mr Gotlieb noted that you have spent six months in custody in relation to the charges you faced at trial, excluding the period since the conviction, and submitted that I should take this into account in determining the sentence to be imposed. However, I cannot do that. Section 82 of the Sentencing Act 2002, together with s 91 of the Parole Act 2002, prevents me from taking into account any of the time spent in custody, either before or after your conviction. Mr Gotlieb also noted that when not in custody you were subject to restrictive bail terms and I consider those later.
[29] In relation to the offences, Mr Gotlieb submitted that offering to supply is not as “serious” or “pernicious” an offence as actually supplying, and he submitted that your offers were to others who are in your social circle, not to strangers. He also submitted that the offers were non-commercial.
[30] Mr Gotlieb took issue with some of the statements in the pre-sentence report. In particular he challenged the statement that your offending occurred while you were on home detention. He challenged the statement that you had associated with gang members while on home detention in the past and that your partner has been associating with gang members. He challenged the statement that you have made little attempt to rehabilitate and noted that you have been accepted into a Community Alcohol and Drug Services programme. On the strength of that he submitted that I should place little weight on the pre-sentence report.
[31] Mr Gotlieb also put before me letters from your daughter, your former wife and your partner and letters from two friends. There is, as I already referred to, the letter from you yourself. I have taken the time to read all of these.
[32] In your own letter you clarify some matters from the pre-sentence report in respect of which you feel many of your answers have been misunderstood. You confirm that you do accept responsibility for the offences on which you have been
convicted but you did not accept the summary of facts document that the Probation Officer had. You do not agree with the Probation Officer’s interpretation in that it was said that you had used drugs frequently with Mr Marsh and I record that you say, in your letter, that you the Probation Officer that you had been accepted into the CADS programme.
[33] The other letters show the support that you have from your family and friends. You will have heard Mr Tantrum’s reference to the Probation Officer’s concern as to whether those people were aware of your offending, but I take the letters at their face value as expressing their support for you.
Comparable sentences
[34] I have considered sentences imposed in cases where the circumstances were similar to yours and whilst no two cases are ever exactly the same it appears clear, from the sentences in the cases that I will refer to, that the appropriate starting point for your convictions for offering to supply methamphetamine is 2 years
imprisonment. I refer to the cases of Leger2, Edwards3, and Joseph4.
[35] The Court of Appeal took the same totality base approach in setting a starting point of 2 years in the case of Tanner5. On the basis of that I consider it appropriate to adopt a starting point of 2 years imprisonment as encompassing the totality of
your offending.
[36] I turn then to consider whether the starting point should be adjusted to take account of the various matters that I have referred to. I do not accept that offering to supply is not as “serious” or “pernicious” as actual supply and I will not reduce the starting point on that basis. As I said earlier, the time you spent in custody cannot be used to reduce the sentence that I impose, I recognise it is taken into account by
other authorities. I do accept that I may take into account the period of six months
2 R v Leger HC WHA CRI 2005-092-1310 15 December 2006, Andrews J
3 R v Edwards HC WHA CRI 2005-029-1304 13 June 2006, Potter J
4 R v Joseph HC GIS CRI 2005-016-145 1 March 2006, Potter J
5 R v Tanner CA 4/2008 7 July 2008
during which you were subject to a 24-hour curfew. In that respect I refer to the
Court of Appeal’s judgment in Faisandier6 and the sentence imposed in Potoru7.
[37] Your previous convictions are an aggravating factor and your final sentence must reflect that, as it must also reflect the fact that the offending on which you have now been convicted occurred while you were on parole. Mr Gotlieb referred me to a sentence that I imposed in the case of Underwood8 where I accepted a submission
that I should not put particular weight on that offender’s convictions. Having re-read
that sentence, I am satisfied that there were particular circumstances in that case that led to my accepting that submission. Those factors are not applicable here.
[38] Taking all of these factors into account I have concluded that the appropriate sentence is 18 months imprisonment, and I accept the Probation Officer’s recommendation that home detention is not an appropriate sentence.
[39] Would you please stand.
Sentence
[40] On each of the charges of offering to supply the Class A controlled drug methamphetamine, you are sentenced to 18 months imprisonment.
[41] On the charge of offering to supply the Class B controlled drug MDMA, you are sentenced to 9 months imprisonment.
[42] All sentences are to be served concurrently.
[43] I accept the recommendation of the Probation Officer that in order to reduce your risk of re-offending it is necessary to impose special conditions on your release. In accordance with that recommendation I impose the following special conditions to apply until your sentence expiry date:
6 R v Faisandier CA 185/00 12 October 2000
7 R v Potoru HC AK CRI 2006-092-3877 14 September 2007, Rodney Hansen J
8 R v Underwood HC TAU CRI 2007-070-3929 2 August 2007, Andrews J
a) To reside at an address approved by a Probation Officer and not move from that address without the prior written consent of a Probation Officer;
b)To undertake and complete any drug and alcohol treatment including residential as directed and to the satisfaction of the Probation Officer. The details of the treatment to be determined by the Probation Officer;
c) To not associate with any person or persons associated with any gang or gang-related activity unless given the express written permission of the Probation Officer;
d) To not participate in any gang-related activity;
e) To undertake and complete any other counselling or programme to address your offending as and if directed by the Probation Officer; and
f) To abstain from consuming or possessing illegal drugs for the duration of the sentence.
[44] Thank you. You may sit down.
Wendy Huia Marsh
[45] Ms Marsh, you were found guilty on a total of 17 charges – 9 charges of supplying methamphetamine, 6 of conspiring to supply and 2 of offering to supply methamphetamine.
[46] According to the Crown summary of facts the total amount of methamphetamine supplied was 59.75 grams. The amount offered for supply was at least 2 grams, and the total quantity referred to in the conspiracy charges was
146 grams plus a deal for $3,300 worth. I note that Mr Gibson in his submissions accepted the amount put forward by the Crown.
Pre-sentence report
[47] I refer now to the pre-sentence report. You are 46 and have three children who are 27, 22 and 17. You are one of seven siblings and you described your family as very close. Your father died suddenly in 2002 and I understand it had a devastating impact on the family.
[48] As Mr Gibson says, you worked for NZ Post for 12 years and then unfortunately had to retire from that in 2003 following injuries to your leg. Obviously since then it has been a struggle financially and you have relied on a benefit. You told the Probation Officer you have no outstanding debts.
[49] Apart from the present convictions, you have convictions for receiving, possession of a syringe (or needle for drugs), and failing to answer District Court bail entered in 2007. I note that is after the offending on which I am now sentencing you.
[50] You told the Probation Officer that you are angry with yourself for what you put your family through. You did not consider the effects of methamphetamine or “P” on the community at the time of your offending because you did not recognise it as having such negative effects on yourself.
[51] The Probation Officer considered that the factors contributing to your offending included difficulties with your relationship with your partner, your own drug use and the people you were associating with. I am told that you stopped using “P” after your arrest, but remain open to attending an alcohol and drug rehabilitation programme. I am told also that you have already completed a short motivational course since your remand in custody. You are assessed as being at a low risk of re- offending and you stated your intention to undertake programmes as an inmate, including training to rejoin the work force once you are released.
[52] Because of the scale and seriousness of your offending the Probation Officer could only recommend imprisonment.
[53] Ms Marsh I note that your mother and sister have been here in Court to support you and your brother.
Submissions
[54] Taking the supply and the offer to supply Counts together, the Crown submitted that your offending falls within the second Band of the Fatu bands. The Crown submitted that an appropriate starting point for that offending is in the range of 4 to 6 years imprisonment.
[55] The conspiring to supply offence is significant and it falls in the mid to upper range of Band 2. After adjustment to reflect a lesser maximum penalty for conspiracy the Crown submitted that this offending on its own would attract a sentence in the range of 4 to 5 years imprisonment.
[56] On a totality basis, that is looking at all the offending as a whole, the Crown submitted that the appropriate starting point for your total offending is 7 to 8 years imprisonment.
[57] On your behalf, Mr Gibson submitted that your offending was concentrated over a period of three weeks. He acknowledged that there was offending after that but he submitted that in those instances you were not the initiator of it. He submitted that you were dependent on Ms Teo for the supply of methamphetamine and, as he put it, his submission was that you were relatively low on the ladder of offenders. He said the position was as the Crown described it to the jury in their opening. You were obtaining drugs for yourself, and hopefully there would be enough to on-sell. He described you as a stranger to the offending, enthusiastic at the start, naïve and limited by a lack of working capital. I have to say Ms Marsh, Mr Gibson’s description seems to be to be entirely apt.
[58] Mr Gibson calculated the starting point for the supply charges from the precise amount supplied, and he arrived at a starting point of imprisonment for 4 years and five months. He suggested that perhaps no uplift was required for the other offences, especially because you have no previous convictions. He suggested
that you should be given credit for coming close to pleading guilty, although you ultimately did not enter that plea. However, as you did not enter that plea, I cannot give you the credit that would normally follow from a guilty plea.
Comparable sentences
[59] Reviewing cases for other sentences imposed in cases like yours does not assist me as they show a range of starting points. I will just refer to two. In the case of Williams9 there was a guilty plea for supplying methamphetamine and possession of methamphetamine for supply. Twelve grams of methamphetamine was found in a Police search of the house. There was a further 3.1 grams found, snaplock bags, scales, and tick list which indicated that there had been supplies of around 43½
grams in quantities that range from ¼ of a gram to 3½ grams. There, the supply was in the second Band of Fatu and attracted a starting point of five years imprisonment.
[60] In the case of Goldsbury10 there was a guilty plea to possession for supply of methamphetamine; the offender was found with a glass pipe, two butane burners, a set of digital scales, a lot of money ($2,700) and 71.5 grams of methamphetamine. In that case the starting point was 5½ years.
[61] There is a range of starting points. The offending in Goldsbury was clearly of a more serious commercial scale than your offending and possibly the offending in Williams was too, in that Mr Williams had a tick list and had supplied, it appeared, to 10 different people.
[62] However, I have to recognise that the total amount supplied by you was nearly 60 grams and it was supplied in amounts up to half-ounces. In my view a starting point of around five years imprisonment is appropriate.
[63] The conspiracy to supply offending was also on a significant scale. However, it is clear to me that your motivation was mainly to supply your own addiction. Furthermore, the bulk of your offending occurred over a period of a few
9 R v Williams HC AK CRI 2007-044-3059 29 July 2008, Keane J
10 R v Goldsbury HC Tauranga CRI 2006-470-7328 13 July 2006, John Hansen J
weeks. In the circumstances, I have concluded that an uplift of six months would adequately reflect the totality of your offending.
[64] Against that you are entitled to be given credit for your strong motivation to address your offending, and the steps you have already taken towards that end. Further, you are entitled to a further reduction to recognise the fact that you have no previous convictions. I have concluded that a total reduction of 12 months is appropriate and that has the effect of reducing your overall sentence to 4½ years imprisonment.
[65] Would you please stand Ms Marsh.
Sentence
[66] On each of the charges of supplying methamphetamine and offering to supply methamphetamine, you are sentenced to 4½ years imprisonment.
[67] On each of the charges of conspiring to supply methamphetamine, you are sentenced to 18 months imprisonment.
[68] All sentences are to be served concurrently. [69] Thank you Ms Marsh, you may sit down. Tung Seng Chang
[70] Mr Chang, the jury found you guilty on one charge of supplying methamphetamine. The Crown case was that on the morning of 7 October 2005 you delivered 10 ounces to methamphetamine to Mr Tang at his bar in Symonds Street for on-supply to Kenneth Ridout.
[71] There was a dispute as to whether you brought 10 ounces or 10 grams of methamphetamine. The jury was not required to decide how much methamphetamine you brought, only that there was a supply to Mr Ridout and that
you participated in it. However, the amount of methamphetamine you brought does have some relevance to your sentencing.
[72] Having reviewed the evidence given at the trial, and listened carefully to the submissions made by counsel for the Crown and on your behalf, I am not satisfied that I can infer as a fact, beyond reasonable doubt, that you brought 10 ounces of methamphetamine. I factor into your sentencing, as a fact, that the quantity you brought to Mr Tang’s café was in the order of 10 grams.
Pre-sentence report
[73] I refer first to your personal circumstances, as they are set out in your pre- sentence report.
[74] I am told you are 31 years old, born in Malaysia, and moved to New Zealand in 1997 to study English. You also completed a qualification as a Microsoft certified software engineer. You are married with a daughter and, as we all know from the trial, she was born during the course of that trial so she is now about two months old.
[75] You started a mobile phone accessory store in 2002. That company was dissolved in 2005, as I understand it to cover debts. You subsequently opened another mobile phone repairs and accessory store in Henderson. Your family members have continued to run that since you were remanded in custody.
[76] You say you do not use alcohol and you told the Probation Officer that you have only tried methamphetamine once and that was about two years ago.
[77] You have no previous convictions. You told the Probation Officer you were under financial stress at the time of your offending. You wanted to borrow some money from Mr Tang but he would not lend you anything unless you agreed to store drugs for him at your home. You maintain that you did not know that what you were storing was a controlled drug until after it left your possession.
[78] You have expressed deep remorse for your actions. You say you never intended to harm the community by selling drugs, you just returned them to the
person to whom they belonged, and that is Mr Tang. You told the Probation Officer you do not wish to maintain contact with any of your co-offenders and you are determined not to re-offend.
[79] You are assessed as being at a low risk to the community and having a low risk of re-offending.
[80] The Probation Officer’s recommendation is for a sentence of home detention but with specified conditions.
Submissions
[81] Turning to the submissions. As I said earlier the Crown case is that you supplied 10 ounces of methamphetamine. On that basis the Crown submitted that your offending falls near the top of the third Band set out in the Fatu judgment. In the light of my finding that you brought 10 grams the Crown submitted that you nonetheless were part of the supply of a substantial quantity of methamphetamine. You had, it is submitted, an essential role in the distribution of methamphetamine. The Crown compared your involvement to that of Mr Ridout, who was sentenced in May this year and in his case Mr Chang, a starting point of 10½ years imprisonment was adopted. It is noted that you are for sentence on one charge only, while Mr Ridout was convicted of possession of methamphetamine for supply and also another charge of supply of methamphetamine but on the basis of what occurred with Mr Ridout and the scale of the supply to Mr Ridout, the Crown submits that a starting point of 9 to 10 years imprisonment is appropriate.
[82] On your behalf Mr Dacre submitted that if it was significant that your contribution, or what you brought to the café, was around 10 grams of methamphetamine. He submitted that the reality of the situation was that you supplied 10 grams to Mr Tang, and he supplied the much larger amount to Mr Ridout. On that basis Mr Dacre submitted that your offending falls at the lower end of the second Band in Fatu. In that scenario home detention becomes a consideration. Mr Dacre submitted that you have complied faithfully with the bail conditions you have been subject to since 2005 and he submitted that that gives me
an indication and confidence that you will comply with the conditions of home detention. Attached to Mr Dacre’s submissions are letters from your wife and your mother and they testify strongly to your character, their support for you and the effect that your offending has had on the family. I can assure you Mr Chang that I have carefully read those letters.
[83] I am sentencing you on the charge on which you were found guilty by the jury. That is that you, with Mr Tang, supplied Mr Ridout with 16 ounces of methamphetamine. However, I am required to determine your place in that offending and in that respect I take into account my finding that you brought around
10 grams of methamphetamine to the café. But I cannot ignore the fact that you were part of a substantial deal.
[84] In all the circumstances the relevant Fatu band for the supply is, I think, of limited assistance to me. A substantial amount was supplied, and that would place your offending in the third band of the Fatu bands, as Mr Tantrum submitted. However, that is not the end of the story, as I have to consider your own culpability. I accept that your offending was not motivated by commercial gain but by the desire to help your friend and to obtain the loan to secure your financial situation. I also accept that you were, to a large extent, led into the offending by Mr Tang.
[85] I have concluded that the appropriate starting point for your offending is imprisonment for 3½ years, but you are entitled to some discount to take account of the unique circumstances of the offending and the fact that you have no previous convictions. In taking account of those matters the appropriate term of imprisonment would be for 3 years.
[86] That then raises the question of home detention. I record that because your offending occurred before the 1st October 2007, under s 57 of the Sentencing Amendment Act 2007 I may consider home detention if I could sentence you to imprisonment, and if home detention is an appropriate sentence. I have received a report discussing a possible sentence of home detention.
[87] The proposed address is your home in Henderson. You and your wife own the house. It is currently occupied, I am told, by your wife and daughter, and other family members. The house is assessed as suitable for home detention with electronic monitoring.
[88] I am told that all of the adult occupants of the address were interviewed and they consent to your serving a sentence of home detention there. I have to assume that all of the implications of a person serving a sentence of home detention have been explained to them and they have accepted them. None of the occupants has a history of any criminal offending.
[89] There is no information before me to suggest that you would not comply with a sentence of home detention. You advised the Probation Officer that a sentence of home detention would provide the opportunity for you to remain at home and care for your young daughter while your wife goes to work in your store. You told the Probation Officer that you would be grateful for the opportunity to work yourself if your Probation Officer permitted you to.
[90] Having given this long and careful consideration, I have concluded that it is appropriate to sentence you to home detention, and coupled with that will be an order that you undertake community work.
[91] Would you please stand Mr Chang.
Sentence
[92] On the charge of supplying methamphetamine, you are sentenced to 12 months home detention together with 150 hours of community work.
[93] The conditions that I must also impose are:
a) When you are released from this Court today you are to travel directly to the address at 2 San Pablo Way, Henderson, Auckland and remain there to await the arrival of the Probation Officer and the monitoring company;
b)You are to remain at the address of 2 San Pablo Way, Henderson, Auckland for the duration of the home detention sentence unless you are given expressed permission to leave that address by the Probation Officer;
c) You are to undertake any programmes and/or counselling as directed by the Probation Officer;
d)You are to abstain from the consumption of alcohol and/or illicit drugs for the duration of the home detention sentence.
[94] Thank you Mr Chang, you may sit down.
Dwayne Allan Marsh
[95] Mr Marsh, you were found guilty on 18 charges in total. The charge of conspiracy to manufacture methamphetamine, three charges of supplying methamphetamine, three charges of conspiracy to supply methamphetamine, 10 charges of offering to supply methamphetamine and one charge of conspiracy to supply the Class B drug MDMA.
[96] I accept that on the Crown case you were a key player in the conspiracy to manufacture. Your involvement included sourcing the precursor ContacNT and you had some control over the distribution of methamphetamine that was manufactured from it.
Pre-sentence report
[97] I turn first to the pre-sentence report; the one that I have is largely based on one prepared in 2005. You are now 40 years old; you are the youngest in your family of seven. You have teenage daughter from a previous relationship, although she lives with her mother you see her regularly. I am told you left school at 15 and worked casually for your father until his death in 2002. Since then you have supported yourself by doing odd mechanical jobs.
[98] You admitted to the Probation Officer using about one gram of methamphetamine a day but told the Probation Officer you do not have a problem with that drug. However, the Probation Officer assessed you as having an issue with it.
[99] You have acknowledged the convictions and, to your credit, you expressed your disappointment that your sister had become involved.
[100] The Probation Officer said in the report that you have an offending supportive attitude, offending supportive associates and an unhelpful lifestyle balance. You are assessed as having a low level of motivation to address the factors that contributed to your offending and you are therefore assessed as being at a moderate risk of further offending. The comment was made in your report that unless you are able to recognise the need to change your chosen lifestyle, and association with illegal drugs, your risk of further offending is likely to increase significantly. The Probation Officer however said that you may be a candidate for a short motivational programme, after which you may be suitable for other rehabilitation programmes. The Probation Officer, unfortunately, made the assessment that you are unlikely to respond to any attempts at rehabilitation.
[101] You have 22 previous convictions, of which seven relate to drugs (methamphetamine, ecstasy and cannabis). I note that your previous drug offending is at a low level.
[102] The Probation Officer, in the light of the serious offences on which you have been convicted, recommended imprisonment.
[103] As I have already noted, and as Ms Kennedy pointed out to me today, your mother and sister have been here in Court today to support you.
Submissions: Conspiracy to manufacture methamphetamine
[104] I turn first to the conviction for conspiracy to manufacture methamphetamine. The Crown submitted that you were involved in sourcing and supplying a large
quantity of ContacNT. A list of transactions from the evidence is included in the Crown’s submissions. If I exclude the transactions involving Mr Dunn, as I will, the total is some 3,200 packets of ContacNT. On the evidence given by the ESR scientist at trial, this quantity of the precursor substance could yield somewhere between 1½ and 2.9 kilograms of methamphetamine. The Crown submits that your part in the conspiracy to manufacture methamphetamine, based on those quantities, clearly falls within the fourth band set out in the Fatu judgment. The Crown submits that the appropriate starting point is in the range of 12 to 14 years imprisonment.
[105] On your behalf, Ms Kennedy submitted that the jury’s finding that you were guilty on the conspiracy charge does not necessarily mean that each of the alleged transactions relied on by the Crown was proved beyond reasonable doubt – in particular those related to Mr Dunn, who was found not guilty on the charge of conspiracy. As you will have heard me say this morning to Ms Kennedy, what the jury was required to find was whether there was an agreement to manufacture and if so, whether you participated in the agreement. The jury’s verdict means that they answered “yes” on both of those issues. The jury was not required to reach a verdict in respect of each transaction the Crown referred to. However, they are relevant for sentencing, in my assessment of what is described as your overall criminality.
[106] Having reviewed the evidence, I am satisfied that there is evidence in support of each transaction, and that they are proved beyond reasonable doubt. I accept that those involving Mr Dunn should not be taken into account. I also accept that quite apart from the quantities involved I still have to make an assessment of your overall culpability.
[107] Ms Kennedy also disputed other facts relied on by the Crown. Again, there is evidence in respect of each matter but again I accept that I have to make an overall assessment.
[108] Ms Kennedy submitted that your offending falls in band two of the Fatu bands, rather than band four as the Crown submitted. She noted that there is no evidence that you were ever found in possession of large quantities of methamphetamine and/or money by the Police, and to the contrary, as she pointed
out, there was evidence of you complaining many times that you were broke – the inference being that you were not making any money out of the conspiracy. Also, there was no evidence of your having a lavish lifestyle. Further, she submitted that the distribution of methamphetamine was within a close circle, and not to the public at large.
[109] Ms Kennedy submitted that the appropriate starting point was in the range of
7 to 8 years imprisonment.
Comparable cases
[110] Turning to comparable cases, I refer first to the judgment in Savage11 where it was held that where a charge is of conspiracy the range set out in the Fatu judgment should be reduced by 30% to reflect the fact that the maximum sentence for conspiracy is 14 years, as against the maximum sentence for actual manufacture.
[111] The Court of Appeal then said in a judgment in Te Rure12 that while a reduction in the Fatu bands is appropriate where the charge is conspiracy, the discount must depend on how close the conspiracy has come to being executed. If it goes no further than a theoretical plan, then there could be a substantial reduction. However, when the conspiracy goes as far as possession of precursor substances and manufacture, the Court of Appeal said the discount should be very small indeed. In the case of Te Rure the Court of Appeal allowed only a 5-10% discount where equipment had been obtained and methamphetamine had actually been manufactured.
[112] The Crown in their submissions had referred me to the sentences imposed on Mr Al Hachache13and Mr Holloway14, who were originally charged with you in relation to this conspiracy arising out of the “Operation Twickers”.
11 R v Savage HC WHA CRI 2005-029-1267 21 July 2006, Lang J
12 R v Te Rure CA374/06 20 July 2007
13 R v Al Hachache HC AK CRI 2006-004-5881 25 September 2007, Keane J
14 R v Holloway CA365/07 16 November 2007
[113] Mr Al Hachache was sentenced on charges of conspiring to manufacture methamphetamine and supplying methamphetamine. He obtained equipment and materials required for manufacture of methamphetamine in commercial quantities. Intercepted communications showed discussions to purchase between 100 and 1500
ContacNT capsules at a time. He had admitted possession of 300mls of hypophosphorous acid. The Judge placed his offending in the third band of Fatu where the starting point is to be in the range of 10-15 years. Allowing a discount of
30% the Judge adopted a starting point of around 10-11 years imprisonment.
[114] Mr Holloway had appealed against his sentence of 6½ years imprisonment, that is a final sentence, on convictions of conspiring to manufacture methamphetamine and conspiring to supply methamphetamine. Mr Holloway had arranged with co-conspirators to purchase 1000 packets of ContacNT for $37,000. He later arranged to obtain first 500 and then 400 boxes of ContacNT and arranged for Mr Collins to manufacture methamphetamine. The sentencing Judge adopted a starting point of 10 years imprisonment (and that is after making the allowance of
30%). The Court of Appeal dismissed the appeal against sentence.
[115] In sentencing you for conspiracy to manufacture the first step is to decide what the starting point would be in terms of the bands set out in the Fatu judgment. Even after disregarding the transaction involving Mr Dunn the quantity of ContacNT involved, in your case, suggests that your offending still fits within band four of Fatu. The amount of methamphetamine that could be manufactured from 3,200 packets of ContacNT would be well more than 500 grams.
[116] Your position as a key player in the scheme also supports placing your offending in band four. However, I have to assess your overall culpability in terms of the Fatu bands. I consider this must be set at a somewhat lower level from that of Mr Al Hachache and Mr Holloway and that the appropriate Fatu band is somewhere towards the top of the third band. The initial starting point, before any adjustment, would be in the order of 14 years imprisonment.
[117] If I am up apply the judgment in Te Rure, the next step is to consider the level of criminality reached in this conspiracy. In the light of the evidence that
manufactured methamphetamine came back from the manufacturers through you, that would mean there would be little discount available from the Fatu scale. However, I am concerned about the effect of applying Te Rure in your case and that is because Mr Holloway and Mr Al Hachache were both sentenced on the basis that a 30% discount should be applied to the Fatu starting points.
[118] Parity in sentencing between co-offenders is important. As I said earlier, I see your culpability as being a little lower than that of Mr Holloway and Mr Al Hachache. I have concluded that it is appropriate to apply the same 30% discount from your initial starting point and that leads me to an adjusted starting point of nine years imprisonment for the charge of conspiracy to manufacture methamphetamine.
Remaining charges
[119] As to the remaining charges, you have been convicted on ten Counts of offering to supply methamphetamine, three Counts of supplying methamphetamine and three Counts of conspiracy to supply.
[120] As set out in the Crown submissions the total quantity of methamphetamine, you offered for supply was in the vicinity of 90 grams. The quantity actually supplied is said to be at least 3 grams. The conspiracy to supply methamphetamine is said to involve a total of 34.5 grams. According to the Crown the total of methamphetamine involved in this offending is over 125 grams. That would place your offending at the middle of band two in the Fatu bands. The Crown seeks a starting point, on all these offences, of 6-7 years imprisonment. Ms Kennedy suggests that a starting point of 3-4 years imprisonment is appropriate.
[121] Ms Kennedy pointed to some of the matters asserted by the Crown that, she said, are open to dispute. Again, even if those matters were to have been resolved in your favour, your offending still falls into the second Fatu band. I have concluded that the appropriate starting point, bearing in mind the large number of Counts and the length of time over which the offending extended, is a total of 4½ to 5 years imprisonment.
[122] In relation to your conviction on the charge of conspiracy to supply MDMA, the Crown and Ms Kennedy are agreed that 18 months imprisonment is an appropriate starting point.
Totality
[123] I turn now to consider totality. This is a connected series of offences of a similar kind so the sentences will be concurrent. However, in order to reflect the totality of your offending, an increase from the starting point for the lead charge of conspiring to manufacture methamphetamine will be necessary. The Crown submitted to me that the appropriate starting point for the totality of your offending is 15 to 16 years imprisonment. On the basis of my starting point for the conspiracy to manufacture (nine years imprisonment) I have concluded, after careful consideration, that an uplift of 18 months is appropriate to reflect the totality of your offending.
[124] Ms Kennedy submitted that after applying the totality principle your final sentence should be no more than 8 to 9 years imprisonment, and that is after taking into account mitigating factors. There were two particular matters that she asked that I take into account. The first, is that you have been on restrictive terms of bail for approximately 18 months, and she referred to the delay of approximately 2½ years in bringing this case to trial.
[125] In relation to the bail conditions Ms Kennedy referred in her written submissions to the Court of Appeal’s judgment in Aram15 where it was held that the sentencing Judge was correct to reduce the sentence because the appellant had been on restrictive bail conditions over the remand period. In that case a one-year discount was given to recognise the time spent by Mr Aram on restrictive bail conditions. Those conditions were indeed strict, they allowed him to move only
between his home and his work and only at certain times. There is nothing that suggests to me that you were as restricted as Mr Aram; your curfew was 7pm to 7am and I am told that there were frequent house checks – at times two to three times a night. Other than that you were free to come and go. In my view your bail
conditions were not so restrictive as to justify a substantial reduction in your sentence but I will apply a reduction of six months.
[126] Ms Kennedy also seeks a reduction in sentence because this case took approximately 2½ years to come to trial. She referred me to the judgment in Williams.16 There, there was a delay of five years before the case came to trial. In fact an application had been considered to stay the trial because of the delay. The Judge had held that the delay was undue and indicated that it might warrant a reduction in sentence if the offenders were found guilty. The offenders had been
subject to reporting and curfew conditions over some of the five-year delay period. Eighteen months was deducted off the sentence of each of the offenders.
[127] In your case the time taken for the case to be heard is nowhere near five years. I am not satisfied that the delay was undue, it does not warrant a reduction in sentence.
[128] Would you please stand Mr Marsh.
Sentence
[129] On the charge of conspiracy to manufacture methamphetamine, you are sentenced to 10 years imprisonment.
[130] On each of the charges of supply, offering to supply and conspiracy to supply methamphetamine, you are sentenced to 2½ years imprisonment.
[131] On the charge of conspiracy to supply MDMA, you are sentenced to 18 months imprisonment.
[132] All sentences are to be served concurrently.
Minimum period of imprisonment
[133] The Crown sought an order imposing a minimum period of imprisonment and I may impose that if I consider it is necessary. The Crown submitted that releasing you after one-third of your sentence, which would be the earliest possible release date under the Parole Act 2002, would not represent sufficient denunciation, punishment and deterrence for your offending. It is submitted that I should impose a minimum term which would require you to serve half or 60% of your sentence.
[134] I have imposed, Mr Marsh, a significant term of imprisonment. I have concluded that that term, in itself, is sufficient for the purposes of denunciation, punishment and deterrence. I decline to impose a minimum period of imprisonment.
[135] Thank you Mr Marsh, you may sit down.
Liong Tung Tang
[136] Mr Tang, you were convicted on the charge of conspiracy to manufacture methamphetamine, one charge of supplying methamphetamine (that is the supply to Mr Ridout on 7 October 2005), one charge of offering to supply methamphetamine, and one charge of having possession of the Class C drug MDMA for supply.
Personal circumstances
[137] I have not received a pre-sentence report for you but Ms Dyhrberg has confirmed that your sentencing may proceed in the absence of a report, and in fact I do have a substantial amount of information.
[138] I am aware from the trial that you are Malaysian born, married, and have a child, and that you owned and operated your own business (that is the Symonds Street café) before you were arrested on these charges. I have had the opportunity to read the judgment on your bail appeal in November 2005 and the affidavit you filed in support of that appeal. Those also gave me some background information about you.
[139] I understand from Ms Dyhrberg that you accept and acknowledge the jury’s verdict and that you are determined to make positive use of the term of imprisonment that you understand will be imposed. She told me that you have expressed extreme regret to her and to two other counsel, for the position you have put your family and yourself in as a result of your offending. You have assured them, and through them me, that there is no risk that you will ever be in this position again. I know also from the trial that you have no previous convictions.
Submissions: Conspiracy to manufacture methamphetamine
[140] I turn first to the conspiracy to manufacture methamphetamine. As the Crown submits you were involved in the supply and distribution of very large quantities of ContacNT. I accept that you were, as the Crown put it, predominantly one or two steps removed from the methamphetamine cooks but the Crown submitted that you dealt directly with Mr Michael Morris on occasions. You supplied a large ContacNT to Mr Marsh, who on-supplied it to the cooks via Ms Hair and Ms Teo. The Crown calculates that you supplied around 4,000 packets of ContacNT which would yield a substantial amount of methamphetamine, in the order of 1.8 to 2.7 kilograms.
[141] The Crown submits that the potential yield of methamphetamine places your conspiracy to manufacture offending within Band 4 of the Fatu bands with an appropriate starting point of 12 to 14 years imprisonment.
[142] On your behalf Ms Dyhrberg submitted that the fact that you were one or two steps removed from the manufacturer, is a mitigating factor of your offending. She said there is very little evidence suggesting that you had any actual interest or knowledge of the end product of the conspiracy, beyond the supply of ContacNT for cash except for one conversation suggesting you were to meet with the manufacturer Mr Morris. We know from the evidence that that meeting never took place because Mr Morris was arrested by the Police before it happened. Therefore Ms Dyhrberg disputes the assertion by the Crown that you had a direct association with Mr Morris. She said that any association with manufacturers was through Mr Marsh.
[143] Ms Dyhrberg also submitted that the Crown had wrongly taken into account evidence relating to ‘Operation Hop’ in assessing quantities of ContacNT supplied by you. I accept that transactions from Operation Hop should not be taken into account for this charge but having reviewed the evidence referred to by the Crown I am satisfied that only one transaction of 100 packets noted in the Crown’s submissions is to be disregarded. However, I have to note that the evidence from Operation Hop indicates that you had a continuing involvement with methamphetamine after the Twickers period.
[144] Finally, Ms Dyhrberg submitted that your less direct involvement in the manufacturing process means your offending should attract a lower starting point from that of Mr Holloway or Mr Al Hachache and you remember I talked about them in my sentencing of Mr Marsh.
[145] Mr Tang, I propose to follow the same course with you as I did in sentencing Mr Marsh. I do not accept the submission that the part you played was less significant than his. Mr McNaughton said to the jury in his closing address that precursor substances are the lifeblood of methamphetamine manufacture. Without them manufacture cannot occur. You supplied ContacNT in quantities that were sufficient for manufacture on a reasonably large scale. Further, the evidence was clear, in my judgment, that you did have an interest in the methamphetamine finished product. As with Mr Marsh, I place your offending at the border of the Fatu Bands 3 and 4 which leads to an initial starting point of 14 years imprisonment.
[146] As with Marsh, I will also apply a 30% discount from that starting point to reflect the fact that this is a conviction for conspiracy to manufacture, not manufacture. The adjusted starting point is 9 years imprisonment.
Supply of methamphetamine
[147] I turn to the supply of methamphetamine conviction. This relates to the supply of 16 ounces of methamphetamine to Mr Ridout on 7 October 2005. The Crown submitted, in my view absolutely appropriately, that you had the central role in the deal. For this charge, together with the charge of offering to supply
methamphetamine which was to Mr Marsh in July 2005, the Crown submits that the appropriate starting point is 10 to 11 years imprisonment.
[148] The amount that you supplied, Mr Tang, is well into – in fact, near the top of
– the range for the third of the Fatu bands. Sixteen ounces was supplied, which is almost 500 grams, which is the top of the Band 3. For that quantity, the appropriate starting point must be near the top of the suggested range. I accept the Crown’s submission that 9 to 10 years imprisonment is an appropriate starting point on those two charges.
Possession of MDMA for supply
[149] The conviction for possession of MDMA for supply relates to a large quantity – there were about 3,000 ecstasy pills that you had Mr Chang store for you at his home. The Crown submits that this charge warrants a starting point of 3½ to 4 years imprisonment.
Totality
[150] Again, I must stand back and look at the totality of your offending. As was the case with Mr Marsh, this is a connected series of offences of a similar kind, and the sentences will be concurrent. Again, in order to reflect the totality of your offending an increase from the starting point for the lead charge of conspiring to manufacture methamphetamine is required. The Crown submitted to me that for the totality of your offending, that is looking at it as a whole, the appropriate starting point should be in the range of 17 to 18 years imprisonment. Ms Dyhrberg submitted that it should be 10 to 12 years imprisonment.
[151] The supply of methamphetamine to Mr Ridout, and the quantity of ecstasy pills involved in the possession charge, must be regarded seriously. There is no way they can be seen as a non-commercial supply within a close circle. In that respect they are different from the additional offences I considered in respect of Mr Marsh.
[152] I have concluded that the appropriate course is to uplift, that is to increase, my starting point for the conspiracy charge by three years, to reflect the totality of your offending.
[153] Against that, I have been made aware that you were for a long period of time subject to electronic bail, and restricted bail conditions. As I have done with Mr Mash, I am prepared to apply a discount against your sentence to take account of that, and to take account of the fact that you have no previous convictions.
[154] Mr Tang, would you please stand.
Sentence
[155] On the charge of conspiracy to manufacture methamphetamine, you are sentenced to 11 years imprisonment.
[156] On the charge of supplying methamphetamine, you are sentenced to 7 years imprisonment.
[157] On the charge of offering to supply methamphetamine, you are sentenced to
18 months imprisonment.
[158] On the charge of possession of MDMA for supply, you are sentenced to three years imprisonment.
[159] All of your sentences are to be served concurrently.
Minimum period of imprisonment
[160] Again, the Crown seeks an order that you serve a minimum of 50 to 60% of your sentence in order to meet the purposes of denunciation, punishment and deterrence. Ms Dyhrberg accepts that your offending was serious, but submitted that a minimum period of imprisonment would result in a disproportionately severe final sentence.
[161] I take the same view in your case as I did with Mr Marsh – I have imposed a lengthy period of imprisonment. I consider that that sufficiently meets the principles and purposes of sentencing you on the offences on which you have been convicted. I decline to impose a minimum period of imprisonment.
[162] Thank you Mr Tang. You may sit down.
Maree Elizabeth Hair
[163] Ms Hair, I am sorry you have had to wait until the end.
[164] You were convicted on the charge of conspiracy to manufacture methamphetamine and one charge each of supplying, offering to supply and conspiracy to supply methamphetamine.
Pre-sentence report
[165] The pre-sentence report tells me you are 39 years old. You left school at 15 and qualified as a hairdresser at 18. You owned your own hairdressing salon for eight years. You have a young daughter who currently lives with your former partner.
[166] You told the Probation Officer that you first became involved with methamphetamine in social situations but became addicted to the drug. You took it to fit in and also to cope with stress in your life from starting up a shoe business.
[167] You see your role in the offending as minor. You were motivated to keep up your own supply of the drug and that of your friends. The Probation Officer understood you to realise that what you had done was wrong and that you are now willing to take responsibility for your actions.
[168] Factors seen as contributing to your offending included your offending supportive attitude, your dependence on drugs and the influence of associates who colluded in the offending. The report tells me that you were using
methamphetamine daily in 2004 but you say you have not used it since your arrest for this offending. You say you have dissociated yourself from your co-offenders.
[169] The Probation Officer notes that you have addressed the factors contributing to your offending. You are seen therefore as posing a low risk of re-offending and a low risk to the community. You do not have any relevant previous convictions. Again, because of the serious nature of your offending the Probation Officer can only recommend a sentence of imprisonment.
Submissions: Conspiracy to manufacture methamphetamine
[170] In relation to the conspiracy to manufacture methamphetamine you were an intermediary between Mr Marsh and a methamphetamine manufacturer. Mr Marsh supplied ContacNT to you and you on-supplied it to a methamphetamine cook referred to as “Mitchell”. You then supplied manufactured methamphetamine back to Mr Marsh who organised further distribution of it. The Crown memorandum refers to evidence showing in the order of 1500 packets of ContacNT supplied by you.
[171] The Crown referred to evidence given at trial as to the possible methamphetamine yield from that amount of ContacNT, and submitted it would yield between 669 grams and 1 kilogram of methamphetamine. On that basis it is submitted that your offending, that is your involvement in the conspiracy, comes within Band 4 of the Fatu band attracting a starting point in the range of 13 years imprisonment to life imprisonment. Adjusting this range to reflect the lower maximum sentence available for a conspiracy comes to a range of 9 to 14 years imprisonment. The Crown submits that the appropriate starting point would be in the range of 10 to 12 years imprisonment.
[172] On your behalf Mr Niven submitted that your involvement in the conspiracy was not on the scale submitted by the Crown. He submitted that you were not an essential link in the process of manufacturing methamphetamine but rather provided occasional assistance on an irregular basis. Mr Niven also told me that you dispute that any of the evidence referred to by the Crown in its submissions related to your
supplying ContacNT. I have reviewed that evidence. I am satisfied that that evidence does prove beyond reasonable doubt the dealings with ContacNT as alleged by the Crown. I also accept that the jury, in reaching its verdict of guilty on the charge of conspiracy to manufacture, will have accepted the Crown’s case in respect of that evidence.
[173] Comparing you with Mr Holloway and Mr Al Hachache, Mr Niven submitted that your offending was less serious than that of Mr Holloway because he was arranging the supply for larger amounts of ContacNT and he was found in possession of a substantial amount of methamphetamine. He also submitted that your offending was less serious than that of Mr Al Hachache because he obtained larger amounts of precursors and supplied more methamphetamine, on more occasions.
[174] I accept that the amount of ContacNT supplied is not the only consideration in assessing your offending. Nonetheless your offending must be placed in Band 3 of the Fatu bands. Your role was an effective one, channelling ContacNT to a manufacturer and the manufactured methamphetamine back to Mr Marsh. I can accept that your role did not reach the level of that of Mr Marsh, Mr Holloway or Mr Al Hachache and for that reason I adopt an initial starting point of 9 years imprisonment, where I adopted 14 years for the initial starting point for Mr Marsh.
[175] Applying the same 30% discount as I have applied for Mr Marsh and Mr Tang (and as you have heard was applied for Mr Holloway and Mr Al Hachache), I adopt an adjusted starting point of 6 years imprisonment.
Remaining offending
[176] I turn therefore to the remaining offences. Two of the charges were based on matters detected during the Operation Twickers surveillance. The supply of methamphetamine involved 1 gram of methamphetamine supplied to Ms Marsh on
13 June 2005, the offer to supply (again to Ms Marsh) on 14 June 2005 involved 10 grams. The Crown submitted that a starting point for these offences (considered together) should be 3 to 4 years imprisonment.
[177] The conspiracy to supply charge arose out of surveillance in late May 2006 – after you had been arrested and released on bail for the Twickers offences. On the Crown case it involved commercial quantities (in grams) of methamphetamine. Considering this offence separately the Crown submitted that the starting point should again be 3 to 4 years imprisonment.
[178] Ms Hair I have read in your letter to me, your explanation in relation to that period in your life.
[179] Mr Niven submitted that the two “Twickers” offences were small, one-off transactions which do not significantly increase your culpability. As to the later offence he submitted that there was very little proven offending, such that only a small uplift from the conspiracy to manufacture offending would be required. He acknowledged that it did occur while you were on bail.
[180] Mr Niven asked that I take into account, when determining your sentence, the factors that you were working throughout the period of the surveillance, so you were not dependent on drug dealing to support yourself or your family, that there was no evidence of your having a lavish lifestyle, there was little evidence of drug dealing found in the Police searches (although I have to note the notebooks with tick lists in them), and that there was no evidence of any commercial drug dealing in relation to the storage unit.
[181] Mr Niven also referred me to the letters from yourself and from your father. I have read those letters. I note particularly your father’s expression of your parents’ continuing love and support. I carefully read your own letter and particularly noted your own statements about the effect of methamphetamine on your life. It shows an insight that I am sure you now wish you had had when you were first introduced to the drug.
Totality
[182] Again, I must consider your offending as a whole. Certainly the conspiracy to manufacture and the supply and offer to supply are a connected series of offences,
and the sentences imposed from them should be served concurrently. I have given considerable thought to whether your sentence on the later charge of conspiracy to supply should be served concurrently, and have concluded that it is appropriate, in your case, that it should be. However, there will have to be an uplift to the sentence on the lead charge of conspiracy to manufacture, which I have concluded should be
12 months imprisonment.
[183] Ms Hair would you please stand.
Sentence
[184] On the charge of conspiracy to manufacture methamphetamine, you are sentenced to seven years imprisonment.
[185] On each of the charges of supplying methamphetamine, offering to supply methamphetamine and conspiracy to supply methamphetamine, you are sentenced to
18 months imprisonment.
[186] All of your sentences are to be served concurrently. [187] You may all now stand down.
Andrews J
Solicitors/Counsel:
Crown Solicitors, PO Box 2213, Shortland Street, Auckland 1140
G C Gotlieb, PO Box 47369, Ponsonby, Auckland 1001
P E Dacre, PO Box 47963, Ponsonby, Auckland 1001
D S Niven, PO Box 109227, Newmarket, Auckland 1001
M A Kennedy, PO Box 6955, Auckland 1001
M S Gibson, 34 London Street, St Marys Bay, Auckland 1001
M J Dyhrberg, PO Box 47867, Ponsonby, Auckland 1001M Ryan, PO Box 941, Shortland Street, Auckland 1001
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