R v Evans

[2016] NZHC 2475

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-006779 [2016] NZHC 2475

THE QUEEN

v

PETER WILLIAM EVANS

Counsel:

P K Feltham for Crown

S N Hewson for Defendant

Sentence:

18 October 2016

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Evans, you are to be sentenced this morning in relation to the following charges:

(1)       One charge of possession of a Class A controlled drug for supply

(methamphetamine).1

(2)       One charge of possession of a Class B controlled drug for supply

(fantasy).2

(3)       Two representative charges of supplying a Class B controlled drug

(fantasy).3

1      Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty is life imprisonment.

2      Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty is 14 years’ imprisonment.

3      Section 6(1)(c). Maximum penalty is 14 years’ imprisonment.

(4)       One  charge  of  offering  to  supply  a  Class  B  controlled  drug

(morphine).4

(5)       One charge of possession of a Class B controlled drug (fantasy).5

(6)       One charge of participation in an organised criminal group.6

[2]      You pleaded guilty to those charges after I gave you a sentence indication.  I reached a provisional sentence of four years and four months’ imprisonment.  You accepted this indication on 15 September 2016.

[3]      I noted that further factors may be able to be taken into account at sentencing depending on the contents of any pre-sentence reports and additional submissions. A pre-sentence report, comprehensive alcohol and drug assessment report and your counsel Mr Hewson’s additional submissions are now available to me.

[4]      This morning I shall:

(1)       summarise your offending;

(2)       explain the starting point I have adopted;

(3)       explain the adjustments I will make to the starting point;

(4)       refer to what deductions for personal mitigating factors are available;

and

(5)       explain your final sentence.

Your offending

[5]      Since early 2013, the investigation known as “Operation Fantail” targeted a

large scale methamphetamine,  GHB and  GBL (commonly known as  “Fantasy”)

4      Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty is 14 years’ imprisonment.

5      Section 7(1)(a) and (2)(b). Maximum penalty is six months’ imprisonment.

6      Crimes Act 1961, s 98A. Maximum penalty is 10 years’ imprisonment.

supply network.  You are one of the defendants alleged to have played a significant role in the sale and distribution of Class A and Class B controlled drugs.

[6]      You are the current President of the Capital City Chapter of the Highway 61

Motorcycle Club.  You have a significant shareholding interest in the company that owns the headquarters at Ropa Lane in Maupuia and you have resided at that address for at least 20 years. You have exercised control over the club’s activities.

[7]      You allowed Mr McKinley to live at the headquarters in early 2013 and arrange the supply of methamphetamine to trusted associates.  They would meet at the headquarters or nearby.  On 28 June 2013, the police executed a search warrant and Mr McKinley was arrested for breaking his parole conditions.

[8]      In carrying out your drug dealing, you used a variety of methods such as coded language to attempt to defeat police interception.   You  would meet with people face to face either at your address, the associate’s address or at a pre-arranged location.

[9]      I now turn to your specific offending.

Possession of methamphetamine for supply

[10]     On 26 June 2014 the police executed a search warrant at your Ropa Lane address.  In the exterior bush area of the property were two small canisters concealed and taped to a tree.   Within the canisters was methamphetamine that had been divided up into eight plastic zip lock bags totalling 8.5 grams.

Possession of fantasy for supply

[11]     In the same area, a flask containing 980 millilitres of fantasy was located partially buried in the dirt at the base of a tree.  The bottle held approximately 300 doses of fantasy worth at least $9,800.

Supplying fantasy

[12]     Between 30 March 2014 and 3 May 2014, you supplied Ms Whittington with fantasy on at least four occasions.  You would meet face to face at your Ropa Lane address for approximately 30-60 minutes.  On each occasion you supplied a quantity of the drug up to a total amount of 100 millilitres, which had a value of about

$1,000.

[13]     Between 30 March 2014 and 12 June 2014, you supplied Ms Dowers with fantasy on at least five occasions.   The amount and value you supplied for the purposes of sentencing was 100 millilitres and would have had a street value of

$1,000.

Offering to supply morphine

[14]     On  5  April  2014,  you  called  Ms  Holden.    This  led  to  you  supplying

Ms Holden with 10 100 milligram morphine sulphate tablets with a street value of

$1,000.

[15]     On 1 May 2014, you again called Ms Holden.  Thereafter you again supplied her with 100 milligram tablets of morphine sulphate with a street value of approximately $1,000.

Possession of fantasy

[16]     On 30 May 2014 the police executed a search warrant at your Ropa Lane address.  During the search, 37 millilitres of fantasy was located hidden in a mattress in the warehouse attached to your living quarters.  A number of plastic syringes and small electronic scales were also located in different areas around the premises.  A quantity of cash was found hidden in the office area and other locations within the building and surrounding property.

Participation in an organised criminal group

[17]     You had a management role in the organised criminal group.   You gave advice to Mr McKinley on the management and control of his drug sales.   You

provided him with protection and supervision over the period he was a resident at the Ropa Lane property.  When he moved into other accommodation he would regularly visit you and seek advice or pay you for the debts he owed in relation to previous arrangements.

[18]     You had a “hands off” approach and allowed Mr McKinley to facilitate the purchase of methamphetamine and the on supply of controlled drugs.   On at least one occasion you provided Mr McKinley with advice and direction about where to obtain a bulk supply of methamphetamine.

[19]     Along with the methamphetamine enterprise you continued to supply Class B

controlled drugs to trusted associates.

[20]     During the course of the investigation a total of $107,836.80 in cash was found to belong to you or under your control.   A further $86,565 was seized on

28 June 2013 and $85,065 was forfeited to the Crown.

[21]     You have received significant profits from the sale of controlled drugs.

Personal circumstances

[22]     You are 58 years old.   When spoken to in relation to these charges you declined to answer questions.  You have four adult children who you have contact with. You are currently unemployed and in receipt of an Invalid’s benefit.

[23]     You have previously appeared before the court for various offences, the most serious being common assault.  Your previous drug-related offending includes two offences for possession of cannabis.

Starting point

[24]     The Crown submits the lead offending is the Class B drugs charges, given the quantity of those drugs and your active role in the supply of those drugs.   I will consider your offending for those charges first, and then impose an uplift for the possession of the methamphetamine charge.

[25]     The  Court  of Appeal  decision  in  R  v  Wallace  and  Christie7   is  the  lead decision  involving  Class  B  drugs.     The  Court  of  Appeal  explained  that  for commercial  manufacture  or  importation  on  a  substantial  scale,  although  not involving massive quantities of drugs or prolonged dealing, a starting point in the range of five to eight years is appropriate.   For smaller operations representing commercial dealing, a starting point of up to five years is appropriate.8

[26]     I consider the following features of your offending to be aggravating factors:

(1)Planning and premeditation:9     your offending spanned a period of three months.   You were careful to avoid detection, using coded language to  conduct  deals  and  physical  concealment  of  the drugs hidden on your property.   Your ongoing dealing in controlled drugs was planned and premeditated.

(2)Quantity,  value  and  frequency:10      the  accepted  amount  of  fantasy supplied is 200 millilitres.  The amount of fantasy buried at the base of the tree at your Ropa Lane property was one litre.  The amount of morphine supplied was 20 100 milligram tablets.

(3)Role within the wider operation:11   the Crown accepts you maintained a “hands-off advisory role”.  Mr McKinley carried out the bulk of the operations, with you providing advice and guidance.

[27]     I take account of the quantities involved, the pivotal role you played in the operation and the starting point of your co-offenders.12   I adopt a provisional starting

point of five years’ imprisonment on the lead charge.

7      R v Wallace and Christie [1999] 3 NZLR 159 (CA).

8      At [31] and [32].

9      Sentencing Act 2002, s 9(1)(i).

10     R v Fatu [2006] 2 NZLR 72 (CA) at [34].

11     At [31]:  where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also on the role played by the offender.  Those who are

primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant.

12     R v Murdoch [2015] NZHC 2928; R v Ryan [2016] NZHC 1535; R v Foubister [2015] NZDC

26065; R v Beazley [2016] NZHC 1743; R v Wildman [2016] NZHC 1895; R v McKinley [2016] NZHC 1894; R v Tate [2016] NZHC 1893 and R v Stretch [2016] NZHC 1935.

Uplift

[28]     An uplift for the charge of possession of the 8.6 grams of methamphetamine for supply is necessary.   Your offending in relation to that charge falls within the lower end of band two in R v Fatu, where the quantity of methamphetamine is between five grams and 250 grams and the starting point is generally between three and nine years’ imprisonment.13   Taking into account also the overall operation and the advice and guidance you provided to Mr McKinley for his role in the methamphetamine supply network, I reach a starting point of five and a half years’ imprisonment.

Personal mitigating factors

Rehabilitation

[29]     You have acknowledged you have an issue with drug use which you are willing  to  address  by  attending  alcohol  and  drug  counselling.    You  have  also indicated you are prepared to attend a departmental programme to deal with the other factors driving your offending.

[30]     You have recently completed an initial assessment at the community alcohol and drug service after self-referral.  That report indicates that it would be appropriate for you to have an assessment of your level of drug-reliance to alleviate pain and insomnia.  It is recommended you be offered the chance to look at alcohol and drug rehabilitation either in a custodial setting or as part of any release conditions that may be imposed.

[31]     I am willing to give you a discount of six months to reflect your prospects of rehabilitation.

[32]     Mr Hewson submits that I should allow an additional discount for remorse.

Although you have acknowledged your actions were “wrong”, I do not consider that

the required level of insight and genuine remorse has been demonstrated.14

13     R v Fatu, above n 10, at [34].

14     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Guilty plea

[33]     I am willing to give you a discount which is slightly in excess of 20 percent for your guilty plea.

Result

[34]     This results in a final sentence of three years and 11 months’ imprisonment.

[35]     In my assessment this sentence satisfies the purposes and objectives of the

Sentencing Act 2002 and will:

(1)hold you accountable for the harm you have done to the community by your offending;15

(2)       promote in you a sense of responsibility for your offending;16

(3)       denounce your conduct;17

(4)       deter you and others from committing the same or a similar offence;18

and

(5)is    the    least    restrictive    outcome    that   is    appropriate    in    the circumstances.19

Conclusion

[36]     Mr Evans, can you now please stand.

[37]     On the two representative charges of supplying a Class B controlled drug,

you are sentenced to three years and 11 months’ imprisonment.

15     Sentencing Act 2002, s 7(1)(a).

16     Section 7(1)(b).

17     Section 7(1)(e).

18     Section 7(1)(f).

19     Section 8(g).

[38]     On  all  other  charges  you  are  sentenced  to  three  years  and  six  months’

imprisonment. Those sentences are all concurrent.

[39]     Stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington

Ord Legal, Wellington for Defendant