[1] John Elliott, you appear for sentencing having pleaded guilty to the following four charges: possession of methamphetamine for supply (charge 21);1 participating in an organised criminal group (charge 24);2 supplying gamma-butyrolactone (GBL) (charge 26);3 and possession of GBL for supply (charge 30).4

[2] Your trial was to take place at the end of October 2022 for three days. You entered your plea one week before trial on the basis of resolution and an agreed summary of facts.

[3] Sentencing was to take place in early February 2023 but was adjourned to 28 February because your counsel, Mr Surridge, was unwell. Just before the 28 February sentencing hearing, your counsel filed submissions taking issue with some aspects of the agreed summary of facts, saying in particular that you were coerced by Mr Mark Griffiths and/or others into your offending.

[4] At the beginning of day two of a subsequent disputed facts hearing before me, you instructed your counsel to withdraw the objections and for sentencing to proceed on the agreed summary of facts.

Facts

[5] I set out the general background of your offending, before moving to the facts that relate to each of those four charges. I will later address how you came to be involved in the offending and the claim of coercion on which you no longer rely at least in that form.

Background

[6] Your offending was uncovered by Police Operation Oakville which commenced in July 2020. This became a covert investigation into individuals based

1      Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty life imprisonment.
2      Crimes Act 1961, s 98A. Maximum penalty 10 years’ imprisonment.
3      Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty 14 years’ imprisonment.
4      Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty 14 years’ imprisonment.

in the Waikato Region, Auckland and Wellington, who were involved in a highly organised and lucrative enterprise for the distribution of methamphetamine and GBL. The covert operation included an analysis of back-captured text messages, intercepted communications, surveillance and searches undertaken at its termination.

[7] As a result of Operation Oakville, Mark Griffiths, second in charge of the Mongrel Mob Waikato Kingdom Chapter was identified as the leader of the enterprise. Working closely with his partner, Sharon Marfell, they obtained and distributed (both personally and through co-defendants under their management) significant quantities of Class A and B drugs from several different sources. Ms Marfell was engaged in prolific supply of methamphetamine on a regular basis, including supplying it to other members of the group for on-supply.

[8] You were based in Wellington and worked together with Mark Griffiths to supply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Elliott

Details

AGLC: R v Elliott [2023] NZHC 528
Case: [2023] NZHC 528
Decision Date: 16 March 2023

CaseChat Overview and Summary

The case of R v Elliott involved the sentencing of John Maxwell Elliott who had pleaded guilty to four charges related to drug offenses. The charges included possession of methamphetamine for supply, participating in an organised criminal group, supplying gamma-butyrolactone (GBL), and possession of GBL for supply. The legal issues the court had to decide were the appropriate starting point for sentencing and the adjustment of this starting point based on aggravating and mitigating factors. The court had to consider the nature and circumstances of the offenses, the offender's role, and personal factors such as age and health.

In determining the starting point, the court identified the most serious charge as possession of methamphetamine for supply, and used the guidelines set out in Zhang v R to set a starting point within a specific band range. The court found that Elliott's role was lesser, as he performed a limited function under direction, and did not have significant influence over others involved in the operation. The court also acknowledged that Elliott's involvement was primarily motivated by the severe harassment he and his family faced, which was a mitigating factor. Considering all these aspects, the court set a starting point of four years and six months for the methamphetamine charge and adjusted this starting point for the other charges, resulting in a total starting point of five years and three months.

After assessing personal mitigating factors, including Elliott's age, health, and the impact of the loss of his wife, the court applied discounts for his guilty plea and personal background. The court concluded that an overall discount of 25% was appropriate, leading to a final sentence of three years and 11 months' imprisonment, to be served concurrently. The court also granted a special direction for Elliott's counsel to escort him to prison following the hearing, subject to certain conditions.

Orders