R v Elliott
[2023] NZHC 528
•16 March 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-6031
[2023] NZHC 528
THE KING v
JOHN MAXWELL ELLIOTT
Hearing: 16 March 2023 Counsel:
J Hamilton for Crown
C Surridge for Defendant
Sentence:
16 March 2023
SENTENCING NOTES OF HINTON J
Solicitors: Hamilton Legal, Hamilton
R v ELLIOTT [2023] NZHC 528 [16 March 2023]
Introduction
[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 methamphetamine and GBL.
Charge 21 – possession of methamphetamine for supply
[9] On 13 November 2020, the police executed a search warrant of your home in Lower Hutt. The police located two plastic bags containing methamphetamine in your garage, each being identical in appearance and weight. A forensic analysis of one of the bags confirmed that it contained 145.7 grams of methamphetamine with a purity of 77 per cent. The combined total of the two packages found equated to 291.4 grams of methamphetamine.
Charge 24 – participating in an organised criminal group
[10] Police intercepted a number of communications between you and Mark Griffiths regarding the importation of a package from your son. Your son shipped this package from the United States to New Zealand through DHL New Zealand to an address in Hamilton supplied by Mark Griffiths.
[11] On 9 October 2020, you received a text message from DHL advising that a package from “Big Blue Supplies” was expected to arrive on 19 October 2020. On 12 October 2020, you received a further text message stating that the package was
expected to arrive that day, before a final message that delivery was unsuccessful as no one was at the nominated address to receive it. After you advised Mark Griffiths of this, he instructed you to take what steps were required to recover the package which you did by contacting DHL to retrieve it.
[12] That same day, the package which had fictitious consignee details with your contact number was intercepted by Police and New Zealand Customs. It was found to contain approximately 2.04 kilograms of methamphetamine within printer toner cartridges.
[13] Between 13 October 2020 and 19 October 2020, Ms Marfell, Camille Keyte and Mose Iakopo all became involved in Mark Griffiths’ and your attempted retrieval of the package. When the package was still not delivered, Mark Griffiths instructed you to advise DHL that Ms Keyte was authorised to uplift it from the DHL courier department on your behalf. Ms Keyte, supervised by Ms Marfell, attempted to do this several times. They in turn employed Mr Iakopo to make enquiries to locate the package as well. As Ms Marfell updated Mr Griffiths about their lack of success, Mr Griffiths relayed these updates to you. The group ceased their efforts to retrieve the package when DHL advised on 19 October 2020 that it was no longer in possession of it.
Charge 26 – supplying GBL
[14] During discussions regarding the difficulties the group was having obtaining the intercepted methamphetamine, you informed Mark Griffiths that your son had also sent another package from an unknown origin. You told Mark Griffiths that the package was being delivered to your home address in Lower Hutt and you both agreed to travel and meet halfway in Taupō once the package was received.
[15] On 27 October 2020, you made numerous calls to Fedex. On 28 October you booked a room at Gables Motor Lodge, Taupō. You advised Mark Griffiths directly and your son over Signal. On 30 October 2020, you travelled from Wellington to Taupō by vehicle, arriving at the Gables Motor Lodge. Mr Griffiths and Ms Marfell drove from Hamilton and arrived at the motel on the same day. During Mark Griffiths’
and Ms Marfell’s commute, Ms Marfell informed Ms Keyte that she was travelling to get GBL in Taupō.
[16] After going out to dinner together, Mark Griffiths retrieved a red bag from your vehicle containing an unknown but commercial quantity of GBL. You then parted ways and returned to your respective addresses.
Charge 30 – possession of GBL for supply
[17] As part of the search warrant executed at your home address on 13 November 2020, the Police located three 5L plastic fuel cans identical in appearance to cans located at Mark Griffiths’ and Ms Marfell’s address. The three plastic fuel cans contained approximately 13.5 litres of GBL. A forensic examination of one of the fuel cans found it contained 5.1 litres of GBL with a purity of approximately 91 per cent.
[18] Your phone was also examined by Police who found a number of encrypted communications regarding the importation of GBL into New Zealand and supply of it to Mark Griffiths.
Approach to sentencing
[19] I now turn to the approach to sentencing. I am required to follow a two-stage process for your sentencing.5 The first is to set a starting point which reflects the nature and circumstances of your offending, adjusted up or down to incorporate any aggravating or mitigating features specific to your offending. The second stage is then to consider any aggravating or mitigating factors personal to you, as well as your guilty pleas.
[20] I must also have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002.6 In sentencing you, Mr Elliott, I have particular reference to the need to hold you accountable for the harm done to the community, to promote a sense for and acknowledgment of that harm in you, to denounce your conduct and to deter you and others from committing the same or similar offences. I must also bear
5 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
6 Sentencing Act 2002 ss 7 and 8.
in mind the need for consistency between sentences for similar offending, particularly as you are one out of a group of defendants, and the need to impose the least restrictive sentence that is appropriate in the circumstances.
Starting point
[21] I turn to set a starting point for your offending. While I begin with the most serious charge, which is for the possession of methamphetamine for supply, the associated offences will also be taken account of in arriving at an overall starting point.
Methamphetamine offending
[22] The Court of Appeal’s guideline judgment Zhang v R sets out five bands of starting point ranges related to the quantity of the drug involved.7 Under Zhang, a starting point is taken, first, by reference to that quantity and therefore the relevant band range. Secondly, the starting point is adjusted according to whether an offender’s role is best characterised as leading, significant or lesser,8 as defined in Zhang.9
[23] As the relevant quantity for your offending is 291.4 grams, the appropriate Zhang starting point for your offending is band three, that is, less than 500 grams. I note, however, that the amount involved is not much above the upper limit for band two which is less than 250 grams. For band three the sentencing range is six to 12 years’ imprisonment.
[24] Both counsel categorise your role as lesser. I agree. You performed a limited function under direction. You had no influence on anyone else involved in the operation. There is no evidence you were aware of the scale of the operation except that you knew your son, who you knew to be a serious drug offender and a fugitive overseas, was involved and you knew Mark Griffiths was a member of the Mongrel Mob.
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
8 At [104].
9 At [115], and Berkland v R [2022] NZSC 143 at [71].
[25] In terms of what caused you to be engaged, I do not accept that you were directly placed under pressure or coerced to offend, nor were you an unwilling participant during the offending. However, you had as the Crown acknowledges, been subject to substantial and ongoing pressure from others, including other gang members, between March and late May 2020 as the result of your son’s previous criminal activity. Your elderly wife and your daughter (in her mid-forties) were both living with you and faced the same severe pressure. Your wife was extremely unwell and you were close to being a 24-hour carer for her. Your daughter worked long hours starting at about 5.00 am each day and working through until about 6.00 pm. The pressure included threats, intimidation, people knocking on the door demanding payment of a $250,000 debt apparently owed by your son, torching of one of your cars in the driveway and setting the deck of your property on fire.
[26] There was an extensive history of complaints by you and your daughter to the Police, even to Police Headquarters. This is entirely undisputed on the part of the Police. While the Police responded to all complaints, their response did not cause the severe harassment to stop. They were unable, for example, to identify or arrest the offenders.
[27] According to Police evidence during the disputed facts hearing, in early April 2020, Mark Griffiths became aware of the issues you were facing. At some point he took on the role of your protector. The harassment stopped and a relationship was established where you worked together on the supply of methamphetamine and GBL that is the subject of the charges made against you. You acted largely, if not solely, at his direction. You said in your oral testimony during the disputed facts hearing that you felt a sense of obligation to do that in exchange for what Mark Griffiths had done for you. This would have also have significantly benefitted your wife and daughter whose safety were a major subject of your concern.
[28] Despite the fact that much of your sworn testimony, and your affidavit and associated brief, is plainly wrong and dishonest, I accept based on the above that your repaying Mark Griffiths was the primary motivator for your offending. I accept that were it not for the severe actions against you in March to end-May 2020, you would
not have got involved in the offending. I agree with Mr Surridge that this is a very unusual case in that sense.
[29] You are not a drug user. It seems clear from a message from your son that somewhere along the line you were promised $15,000 by him from one transaction. However, there is no reference by you (as opposed to the one reference by your son) in any of the numerous intercepted communications drawn to my attention, of a financial reward. I doubt that is how you came to be involved and I consider it was in no way your primary motivator.
[30] Although many of your communications seem very naïve, I accept the Crown’s submission that you could not have been naïve given your previous cannabis drug dealing activities in 2011 and 2015, to which I return. I note, however, that commercial growing and dealing in cannabis is a very different enterprise to that in which you became involved with Mr Griffiths. There is no sign of activity similar to the present offending prior to October 2020. I also note that prior to your cannabis dealing charges, you had no previous drug or other offending other than at a minor level, over the rest of your life. You had received no prison sentence prior to the 2016 cannabis conviction.
[31] Ms Hamilton submits that there are four aggravating features in your offending. First, commerciality, given the amount of methamphetamine in your possession. Secondly, involvement in a criminal organisation, given your knowledge of Mr Griffiths’ role within the Mongrel Mob and your association with him. Thirdly, premeditation and planning, given your offending spanned several months and utilised encrypted software, and finally, the social harm of methamphetamine.
[32] In light of both the band range and lesser offending role, the Crown submits a starting point in the vicinity of six years’ imprisonment is appropriate.
[33] I do not consider these four aggravating features to be properly taken into separate account. The amount of methamphetamine already determines the band and is well towards the bottom of the band. The criminal organisation is the subject of a separate charge and an uplift is sought for that. I accept there was some premeditation
and planning but at a very basic level. The social harm of methamphetamine is unquestionable, but it is a generic factor featuring in every Class A drugs case.
[34] Mr Surridge says a starting point of six years is excessive given the circumstances, and the appropriate starting point is between three to three years six months’ imprisonment.
[35] I note as affirmed by the Supreme Court in Phillip v R that the presence of other factors can mean someone falls outside the quantum-driven bands.10 Mr Surridge argued to that effect, relying on Phillip. Here, significant weight is put by your counsel on the fact that, at least indirectly, you offended because of threats to your family’s safety as a result of your son’s debts, therefore making it arguable that you fall below the bottom of band three.
[36] I agree and taking all of the above considerations into account, for your lead offence I set a starting point of four years six months’ imprisonment
[37] I now turn to the GBL offending which, given the quantity involved, it is appropriate to address separately. The Crown submits that a distinct uplift is required to reflect the GBL offending which it contends involved commercial quantities for supply. Ms Hamilton submits that on a stand-alone basis a starting point in the region of three years six months’ imprisonment would have been appropriate, relying on Steffe v Police.11 Recognising the need for totality, Ms Hamilton submits that an uplift of 12 to 15 months’ imprisonment is warranted.
[38] Mr Surridge disputes the offending in relation to GBL would attract a starting point of three years six months’ imprisonment on a stand-alone basis because of the role you played and the same factors I have already addressed above.
[39] Taking into account all of the factors discussed with regard to the lead charge and the need for totality, I consider an uplift of six months’ imprisonment appropriate for your GBL offending.
10 Phillip v R [2022] NZSC 149.
11 Steffe v Police [2014] NZHC 980.
[40] The Crown seeks a further uplift to reflect the participation charge. It does not mention your charge for supply of GBL. An uplift of six months was adopted for your co-defendant, Ms Keyte, for her involvement in attempting to retrieve the package. The Crown submits by analogy that it is appropriate the same uplift applies to you. However, for the same reasons discussed, I consider a much smaller uplift than that applied to Ms Keyte is appropriate and I uplift the starting point by three months’ imprisonment. This makes your adjusted starting point five years, three months’ imprisonment.
Personal aggravating and mitigating factors
[41] I now turn to the second stage of your sentencing, considering whether the starting point should be adjusted to recognise any aggravating and mitigating factors personal to you.
[42] Looking at your aggravating factors, you have a number of previous convictions. The most relevant, as I have said – in fact, in my view, the only relevant convictions - are the significant cannabis offending (cultivate, manufacture and possession for supply) in 2011 and 2015. You ran a commercial cannabis-growing operation. In 2016, you were sentenced on both those sets of offending to a term of four years, six months’ imprisonment.
[43] The Crown submits that in light of your repeated and, it suggests, escalated drug offending within a relatively short time of your 2016 sentence, an uplift of six months’ imprisonment is warranted. It would appear though that there was a period of some years after your release from prison where you did not offend at all. I do not know the date of your release but I understand it was at the earliest possible opportunity.
[44] Because I consider the present offending is quite different to the cannabis offending and you would not have engaged in the present offending were it not for the harassment in early 2020, I have decided not to uplift for your criminal history.
[45] I now assess your mitigating factors, your guilty pleas and your personal background.
Guilty Pleas
[46] You are entitled to credit for your guilty pleas. Any credit that the Court gives must reflect all the circumstances in which your plea was entered, including whether it is truly to be regarded as an early or late plea, the strength of the prosecution’s case and the time and stress saved by avoiding a trial.12 However, the biggest factor in this case, as the Crown acknowledges, is consistency. Co-defendants who pleaded guilty in June and July 2022 were afforded a 15 per cent discount at sentencing.13 More relevantly, a further co-defendant who pleaded guilty just before the trial, received a discount of 15 per cent.
[47] As Ms Hamilton points out, the three-day trial was avoided but in your case it was replaced by a one-day disputed facts hearing. However, I did find that hearing in some way relevant and helpful in assessing the background to this offending. I therefore allow a discount of 15 per cent for your guilty plea.
Personal Background
[48] I turn now to your personal background detailed in the PAC Report. You are a retired 73-year-old living on superannuation. You live (now) with your daughter. You give the majority of your superannuation income to her as your contribution to rent and board. She is the lessee of the property you live in.
[49] In June 2022 your wife of 48 years passed away. She had been unwell for some time and as noted you were her main caregiver for the last few years of her life. While she died after you were charged with the offences to which you have now pleaded guilty, these circumstances can still be relevant as a mitigating factor on the basis of purely compassionate grounds.14 In Jarden v R, the Supreme Court recognised that a reduction of six months was appropriate from a three-year starting point, due to the appellant’s loss of his partner who, tragically, took her life and the life of her unborn child while seven months’ pregnant.15 While this case is much less tragic, the loss of
12 Hessel v R [2010] NZSC 135; [2011] 1 NZLR 607 at [74].
13 The Crown refers to the sentences for Mr Iakopo and Ms Marfell in R v Iakopo [2022] NZHC 1915 and R v Marfell [2020] NZHC 2227 respectively.
14 Jarden v R [2008] NZSC 69; [2008] 3 NZLR 612 at [14].
15 At [15].
a spouse is extremely difficult. I believe it would have been particularly so here where your wife’s illness and the pressure on you and her were contributing factors in your offending.
[50]I consider it appropriate to take these matters into account.
Old age
[51] As mentioned, you are currently 73. Where old age would make an otherwise appropriate term of imprisonment disproportionately severe, a reduction can be warranted. However, as a stand-alone factor, advancing age is unlikely by itself to justify a discount. Whether old age is a mitigating factor depends on the individual defendant. As Cooke J observed, in Buchanan v R,16 any such reductions should be limited.17
[52] I am required to consider discounts given in previous cases to assess what you should receive. I note at the top end R v Soles, where Courtney J applied a 30 per cent discount for the defendant’s old age and ill-health, the defendant having been found guilty of one charge of importing methamphetamine.18 In the mid-range are KHP v R and M v R where 10 per cent and 12 per cent discounts were applied to an 85-year-old and 78-year-old offender respectively.19 All of these people had health difficulties.
[53] In your case, Mr Elliott, while I recognise your age, your PAC report records that you consider yourself to be in good health and that you enjoy long walks and gardening. Your daughter, on the other hand, worries that you will not cope at all well in prison. I do consider your old age to be a small mitigating factor. I also consider it relevant that, in my view, you are most unlikely to repeat offending of this kind. That is to say, deterrence is not a significant factor here, particularly given your age and your history.
16 Buchanan v R [2019] NZHC 2283 at [44].
17 At [44].
18 R v Soles [2014] NZHC 2665 at [10].
19 KHP v R [2015] NZHC 452 and M (CA91/12) v R [2013] NZCA 325 at [54].
[54] You will also receive a small discount for the few months spent on bail under a 24/7 curfew. The subsequent two years were on a 9.00 pm to 7.00 am curfew. That is not factored into the assessment.
[55] Overall, I will allow a discount of 10 per cent for your personal background factors. Combined with the guilty plea discount, there is an overall discount of 25 per cent which brings me to a sentence of three years, 11 months’ imprisonment
Sentence
[56]Mr Elliott, please stand.
[57] For the possession of methamphetamine for supply, you are sentenced to three years, 11 months’ imprisonment.
[58] For participating in an organised criminal group, you are sentenced to two years’ imprisonment.
[59]For supplying GBL, you are sentenced to two years’ imprisonment.
[60] For possession of GBL for supply, you are sentenced to two years’ imprisonment.
[61] All sentences are to be served concurrently. That is, overall you are sentenced to three years, 11 months’ imprisonment.
[62]Please stand down.
Mr Elliott’s transport to Rimutaka Prison
[63] Unusually, Mr Surridge has requested that I allow him to escort Mr Elliott to Rimutaka Prison. The Crown and Corrections officers present do not oppose. Given that Mr Elliott has been on ordinary bail for a very long time and has fully complied with his bail terms in all respects and given that Mr Surridge has already on three occasions driven Mr Elliott up from Lower Hutt to Hamilton and back, I am prepared to make a direction as sought.
[64] I therefore direct that Mr Surridge escort Mr Elliott to Rimutaka Prison immediately following this hearing and he must deliver Mr Elliott to the prison by
7.00 pm today. That is an order of the Court. There may be some formalities that are required to be attended to before Mr Surridge and Mr Elliott depart. A warrant will need to be signed. What I have said will need to be reflected in the warrant and is subject to correction following my checking with the Registry.
Following a brief adjournment Court resumed at 10:24:03
[65] I add to the direction already given that I grant Mr Elliott bail for the express purpose of travel to Rimutaka, on the terms already stated. That will mean Mr Elliott will need to sign the bail bond before he goes but it will be prepared immediately. The bail bond will include a condition not to consume alcohol or drugs.
Hinton J
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