R v Ellis
[2023] NZHC 2015
•31 July 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2020-070-002303
[2023] NZHC 2015
THE KING v
ALBERT ELLIS
Hearing: 31 July 2023 (Heard at Hamilton) Appearances:
J L Manera for Crown
M W Ryan for Defendant
Sentencing:
31 July 2023
SENTENCE OF EDWARDS J
Solicitors/Counsel:
Pollett Legal (Office of the Crown Solicitor), Tauranga M W Ryan, Auckland
R v ELLIS [2023] NZHC 2015 [31 July 2023]
[1] Mr Ellis, you appear for sentence on one charge of manufacturing methamphetamine1 and one charge of money laundering.2
[2] You accepted a sentencing indication I gave on 26 April 2022 and entered a plea of guilty to those charges. However, sentencing did not proceed at that time because you applied to vacate your guilty pleas and set aside your convictions. That application was declined in a judgment dated 2 May 2023.3
[3] Although you have heard much of what I have to say in the sentencing indication hearing, I will say it again because that hearing was some time ago, and sentencing takes place in a public forum.
Approach to sentence
[4] In determining your sentence today, I will first outline the alleged offending and then set what we call a “starting point”. That starting point reflects the circumstances of your offending. Next, I will consider whether the starting point should be adjusted for any matters that are personal to you and apply the discount for your guilty plea.
[5] Your sentence is determined in light of the purposes and principles of sentencing. Those that are relevant to your case include: the need to hold you accountable; promote in you a sense of responsibility for your actions; and to denounce and deter your conduct. I must also treat you consistently with others who have offended in a similar way and impose the least restrictive sentence in the circumstances.
Alleged offending
[6] The charges you face arise out of “Operation Emoji”. This was a police operation commenced in late-2019 into the manufacture and supply of methamphetamine by Calebh Simpson in the Bay of Plenty area.
1 Misuse of Drugs Act 1975, ss 6(1)(b) and (2); Crimes Act 1961, s 66: maximum penalty life imprisonment.
2 Crimes Act 1961, s 243(1): maximum penalty seven years’ imprisonment.
3 R v Ellis [2023] NZHC 1016.
[7] The operation uncovered a large-scale network for the manufacture and distribution of methamphetamine. The police also identified individuals who were dealing in firearms and cannabis. The operation was terminated in mid-2020.
[8] The two charges you face relate to your alleged role in the methamphetamine operation. Although the summary of facts refers to the manufacture of at least 10 kilograms, the Crown agrees that this sentencing should proceed on the basis that you were involved in the manufacture of at least eight kilograms of methamphetamine.
[9] Your role involved extensively renovating the garage at Mr Simpson’s address, including construction of a separate bedroom, toilet and shower, foyer and a fourth small room used exclusively for the manufacture of methamphetamine.
[10] You also purchased items to assist with the manufacture. These included the purchase of ice on numerous occasions which was used as a cooling agent for part of the manufacturing process. You transported a 50-kilogram drum of iodine to the address. Iodine is a precursor substance for the manufacture of methamphetamine. It is estimated that this amount of iodine is capable of making a total of 37.5 kilograms of methamphetamine.
[11] An analysis of closed-circuit television footage also shows you transporting two large plastic containers of glassware and equipment back and forth between the manufacturing address and a storage shed in Whakatāne.
[12] The money laundering charge arises out of the purchase of a 2009 Holden Colorado for $15,000 in cash. The car was registered in your name. The cash used to purchase the car was sourced from Mr Simpson and was the proceeds of sale of illicit drugs.
[13] Although the summary of facts refers to other, more generalised, activities in which you are alleged to have concealed assets for Mr Simpson, it is agreed that the money laundering charge only relates to the purchase of the car.
Starting point
[14] Turning to the starting point, I take the manufacture of methamphetamine charge as the lead offence.
[15] In my sentencing indication, I indicated a starting point of eight years’ imprisonment. That starting point was adopted in accordance with the Court of Appeal’s guideline judgment in Zhang v R.4
[16] The manufacture of eight kilograms of methamphetamine places you within band 5 of the Zhang guidelines based on quantity alone. That band attracts a starting point of 10 years to life imprisonment. However, an assessment of your role is also important. The role an offender plays can affect not only where they fall within a band but can also result in movement between bands.5
[17] Your offending allowed a large-scale methamphetamine operation to take place. That operation involved the manufacture of large quantities of methamphetamine, the presence of firearms, and money laundering activities. The renovations to the house, and the delivery of supplies, including large volumes of iodine, allowed Mr Simpson to manufacture from home.
[18] However, you were not directly involved in the manufacture. There is no suggestion that you knew about the presence of firearms at the house or played any part in the supply of the methamphetamine. Mr Simpson was the lead offender in the operation and called all the shots. No doubt you acted in accordance with his direction, and that is certainly the case in relation to the purchase of the car which is the subject of the money laundering charge.
[19] It is not clear from the summary of facts whether you were aware of the scale of the methamphetamine operation. Indeed, in a pre-sentence report received after the sentencing indication was given, you told the report writer that you were not completely naïve, but that you had turned a blind eye to what was going on. In light
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
5 At [118] and [123]. See also Berkland v R [2022] NZSC 143 at [64].
of that statement, I cannot be confident that you had actual knowledge of the large- scale, sophisticated, nature of the methamphetamine operation you were enabling.
[20] Another factor not clear in the summary of facts is how you were paid for your role. The Crown says that you derived benefits in terms of access to vehicles and cash. But you told the pre-sentence report writer that you were not paid for the work on the house and “got nothing” for the part that you played. It seems fairly certain that you did not offend for commercial gain, and greed is not a factor in your offending.
[21] Further information received after your sentencing indication suggests you were in the throes of substance dependency at the time you offended. You fell into heavy methamphetamine use after the tragic death of your sister. You bonded with Mr Simpson in your grief, as he had also lost a sibling in tragic circumstances. Your counsel has sought a discount for this factor, and I will return to that shortly, but it is also relevant in assessing role.
[22] Since my sentencing indication was given, the Supreme Court has issued two judgments affecting methamphetamine sentencing.6 I have had particular regard to Philip v R. In that case the Supreme Court upheld a starting point of six years’ imprisonment for five charges of possessing methamphetamine for supply and two charges of possession of cannabis. The amount of methamphetamine involved was six kilograms. Mr Philip’s role was held to be on the cusp of the lesser and significant categories. While your offending involved a greater quantity of methamphetamine than Philip, your role was not as significant as in that case.
[23] The information before me paints a picture of someone lost in grief and using methamphetamine to numb the pain. You did what you were told to do by a friend you had bonded with over your loss. That is entirely different to being an active and willing participant in the manufacture of methamphetamine for commercial gain. Everyone agrees that your role falls towards the bottom of the lesser category described in Berkland. This is key in determining your culpability and the starting point.
6 Berkland v R [2022] NZSC 143; Philip v R [2022] NZSC 149.
[24] For completeness I note I have had regard to the sentence of 12 years’ imprisonment received by Calebh Simpson, the principal offender in the operation.7 While parity is important, his offending was at an altogether different scale and so his sentence is of limited assistance.
[25] Taking into account these factors, and particularly the new information received after the sentencing indication was given, I consider a starting point of seven years, six months properly reflects your culpability for the methamphetamine related offending.
[26] It is also sufficient to capture your money laundering offending. That offending was unsophisticated and broadly consistent with your overall role in the operation. A further uplift for the money laundering charge is not required.
[27] Accordingly, I adopt a starting point of seven years, six months’ imprisonment for both charges.
Personal aggravating and the mitigating factors
[28]The next stage is to consider personal aggravating and mitigating factors.
[29] You have a criminal history but none of the convictions are relevant to the charges you face today. The Crown does not seek an uplift for your prior criminal history, and I decline to apply one.
[30] Your counsel seeks a discount for personal background factors, addiction and remorse. I have considered the s 27 report before the Court. It describes parental separation and family violence in the early years. Early and ongoing exposure to substance abuse is also reported. The tragic passing of your sister in 2018 is identified as a significant event for you, and one which led to a heavy period of methamphetamine use, and ultimately, the offending.
7 R v Simpson [2022] NZHC 1902.
[31] These background factors are intricately intertwined. Operating together, they causally contributed to your offending and consequently diminish your culpability. Your counsel seeks discrete discounts for background factors and addiction, but I consider it to be an artificial exercise to try and separate these factors out in your case.
[32] I have taken into account the cases cited by your counsel in determining the quantum of the discount to apply. I have also taken into account that, to some extent, some of these factors are already reflected in the starting point. Assessing all these factors in the round, I apply a discount of 20 per cent for background and addiction factors.
[33] As for remorse, I accept that statements in the pre-sentence report and cultural report suggest you are remorseful for your offending. You have recognised and taken responsibility for the impacts of your offending on the community. You have shown insight into the root causes of your offending and demonstrated a determination to address them. While you have been unable to engage in rehabilitation programmes while on remand, you are motivated to take the necessary steps to address your methamphetamine addiction and grief trauma.
[34] Your expressions of remorse are relevant to your rehabilitative prospects. In that respect, I acknowledge the support of your pro-social partner, and your mother. I also accept that the children in your life provide a reason to change. Remorse and rehabilitative prospects lessen the need for deterrence and accountability to be reflected in your end sentence. I apply a discount of 10 per cent for these factors.
[35] Finally, everyone agrees that the guilty plea discount of 15 per cent indicated last year should still apply despite your subsequent application to vacate that guilty plea and have the convictions set aside. Faced with a lengthy sentence of imprisonment, I accept you were entitled to explore your concerns about counsel competency. Nevertheless, the agreed position on the guilty plea is one which is extremely generous to you, Mr Ellis. In the unusual circumstances of this case, I am prepared to afford you that credit.
[36] Accordingly, that brings the total discounts for personal mitigating features to 45 per cent. This leads to an end sentence of four years and one month imprisonment. I am satisfied that this is the least restrictive sentence in the circumstances.
Result
[37]Mr Ellis, please stand.
[38] For the charge of manufacturing methamphetamine, I sentence you to four years’ and one month imprisonment.
[39] For the charge of money laundering, I sentence you to six months’ imprisonment.
[40] The sentences are to be served concurrently, meaning that the effective end sentence is one of four years and one month imprisonment.
[41] The Crown agreed to withdraw charges 44 and 52 and I grant leave to the Crown to do so.
[42]Thank you, Mr Ellis. Please stand down.
Edwards J
0
4
0