R v Frewer HC Auckland CRI-2009-404-000384
[2011] NZHC 1041
•24 June 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-404-000384
THE QUEEN
v
MATTHEW FREWER RICHARD RINALDI
Hearing: 24 June 2011
Appearances: M Wharepouri and B Hawes for Crown
R Mansfield for Prisoner Frewer
T Simmonds for Prisoner Rinaldi
Judgment: 24 June 2011
Frewer – Eight years and nine months’ imprisonment. Minimum
term of imprisonment of four years three months.
Rinaldi – Two years four months’ imprisonmentSENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Crown Solicitor, PO Box 2213 Shortland Street Auckland 1140
Copy to: R M Mansfield, PO Box 2674 Shortland Street Auckland 1140
K P Brosnahan, PO Box 3051 Shortland Street Auckland 1140
T A Simmonds, PO Box 3815 Shortland Street Auckland 1140
R V FREWER HC AK CRI-2009-404-000384 24 June 2011
[1] Mr Frewer, you are discharged in relation to counts 1, 2, 3, 5, 7, 10 and 11 in the indictment before me. Mr Rinaldi you are formally discharged in relation to counts 1to 6 in the indictment.
[2] Matthew Frewer and Richard Rinaldi, you both appear for sentence this morning having pleaded guilty, in your case Mr Frewer, to three counts of supply of the Class B controlled drug MDMA Ecstasy and, in your case, Mr Rinaldi, one count of supply of the drug. The maximum penalty for each count is 14 years’ imprisonment.
[3] You were caught and charged following a careful and lengthy police investigation which involved the interception of telephone calls and texts, surveillance and the execution of search warrants.
[4] Mr Frewer, your involvement in the offending is significantly more serious than that of Mr Rinaldi. You became involved initially through contacts you had in the United Kingdom. First you collected money from a third party for an acquaintance from the UK and you were paid some cash for that. You then became involved in receiving and delivering MDMA to others and taking payment for that. It is submitted on your behalf that you received only about $30,000 for your involvement in this offending. You travelled about New Zealand, but were under surveillance for considerable periods of time. During the course of the operation the police intercepted conversations between 4 March and 15 April 2008 which confirmed you supplied another accused, Mr Keown on three occasions a total of
24,000 tablets at $21 a tablet.
[5] The MDMA tablets were smuggled into New Zealand. Sometimes they were concealed within gift hampers. There were four such importations between late January and mid April 2008 which provided the drugs that you then became involved with Mr Frewer. The group with whom you became involved had been active in the importation and distribution of the drug in New Zealand and throughout in New Zealand, in Auckland, Wellington and Christchurch for some time. As I have said you were initially a courier with money but then you became involved in supplying the MDMA directly. You were fully involved in the operation and an integral and
important part of it. You knew obviously what you were doing was illegal. You were secretive about it. You successfully covered up your offending, even from your partner. You received the drugs and you then supplied wholesalers, Mr Keown, Mr Bowyer and Mr Voerman. You supplied tablets in multiples of thousands. You were involved at a high level in this operation.
[6] The intercepted conversations underlying the charges you pleaded to confirm sales by you of approximately 29,000 MDMA tablets. The value of the sales exceeded $600,000.
[7] Quite apart from those sales, there was also evidence in the summary of search warrants the police executed at ASB vaults operated by you. On 9 April 2008
US$240,000 and NZ$100,000 was located in the vaults.
[8] On 8 May further search warrants located NZ$335,500 and US$60,000. On 9
June a further search warrant located approximately NZ$200,000. On 22 July 2008 when the police executed a search warrant at your home, and at the ASB vault again under your control they seized $150,000 in cash from the vault. When arrested you declined to make a statement.
[9] While I accept immediately that you are to be sentenced only for the proved offending in relation to the 29,000 MDMA tablets, I refer to the amount of money found in the vaults that you controlled because that evidence is evidence of the scale of the operation you were involved in. Your offending must be assessed in its overall context: R v Schnellinger & Ors1.
[10] Mr Rinaldi you operated at a much lower level in the chain. You received the MDMA tablets from Mr Bowyer, one of Mr Frewer’s three main wholesalers. You accept you purchased up to 3,000 tablets between late March and mid July 2008. You maintain you only supplied one other person with the tablets during that time. When the search warrant was executed at your home in September 2008 one MDMA tablet was found in your bedroom drawer which was consistent with at least some personal use on your behalf. However you are to be sentenced for supply in relation
to the charge you have pleaded guilty to. The summary of facts records that you supplied up to 3,000 tablets which had a value in excess of $60,000.
[11] In sentencing you both I am required to take into account the purposes and principles of the Sentencing Act. In this case the particularly relevant purpose is to hold you both accountable for the harm done to the community by drug offending of this scale and nature and your particular involvement in the selling and distribution of MDMA which made the drug available to other members of the community. The Courts are confronted every day with criminal offending and tragic personal circumstances associated with the consumption of illegal drugs. In your case Mr Frewer you have recently helped someone who was addicted to drugs overcome that addiction. You will know from that contact and involvement just how pernicious such addiction is. It has the potential to destroy lives.
[12] The sentence must also promote in you responsibility for and acknowledgement of that harm. It must also denounce your conduct and deter you, and importantly others, from committing similar offending in the future. I also take into account the desirability of consistency with other sentences for similar offending.
[13] The leading case for sentencing of Class B drug offending of this nature is the
Court of Appeal decision of R v Wallace2 you have heard referred to.
[14] In Wallace the Court of Appeal identified that for commercial dealing on a major scale the starting point, before allowing for mitigating factors will be in excess of eight years and in bad cases up to 14 years. Where repeat offending is involved and for major offending with numerous separate offences the 14 year maximum will have little direct relevance to the total sentence. Where there is a commercial operation extending over a period of time but not involving massive quantities of drugs or prolonged dealing the start point will be between five and eight years. For smaller operations, which still represent commercial dealing, starting points of up to five years is appropriate.
[15] I propose to deal firstly with your case Mr Frewer.
[16] You are a 38 year old English national. You came to New Zealand in late
2006 initially when you met your current partner. You then returned in 2008. You are in good health and have no issue yourself with drugs or alcohol. Your pre- sentence report is a positive one. Your family and partner are understandably distressed and particularly affected by your offending. I have seen the DVD your parents made and the letter that your partner has written. The effect of your offending on those close to you will be very real and apparent to you now. I have also seen the other letters written in your support.
[17] As I have discussed with counsel, I accept you were not the mastermind or the brains behind the operation and that you received payment for your services rather than a share of the profits as such. As I have said also, however, your role was an important one. You were effectively a principal wholesaler. You then on-sold or supplied the drugs to Keown, Boywer and Voerman. You had access to the bank deposits. Those wholesalers then in turn supplied people at lower levels such as Mr Rinaldi and Mr Purchase.
[18] The Crown argue for a start point of just below 14 years’ imprisonment. Mr Mansfield argues for a start point of between 10 and 12 years. In relation to the other people involved in the offending I note that starting points of seven years in each case were taken for the cases of Mr Voerman and Mr Keown. As noted, your offending is more serious than theirs and your role was at a higher level. That has to be reflected in the starting point. I have also had regard to a number of other cases that counsel have referred to for sentencing of serious drug offending such as this,
including R v Van Lent,3 R v McGaw,4 and R v De Bruin and Sorby.5
[19] In your case Mr Frewer I take a start point of 11½ years’ imprisonment.
[20] There are no personal aggravating factors. There are however, a number of positive and personal mitigating factors in your favour. You have no previous
3 R v Van Lent CA166/99, 29 September 1999
4 R v McGaw (2000) 18 CRNZ 236 (HC).
5 R v De Bruin and Sorby HC Auckland CRI-2005-404-342, 9 August 2006 (Cooper J).
convictions. You have, as I have acknowledged, the support of your family, friends, and your partner. You have a number of positive attributes. You have gone to great lengths to assist a person you met in prison whilst on remand to cope with his drug addiction and you played an important role in turning his life around. You have his support and the support of his parents both of whom are professional people. You have assisted with volunteer work while awaiting the outcome of this. You have taken a number of steps to turn your life around. I accept you have an extremely positive pre-sentence report. You have real insightful into your offending. You are genuinely remorseful. You have set that out in your letter to the Court and your actions confirm it.
[21] I also acknowledge the conditions you have been under and that the service of the sentence will be hard on you in that you will be some distance from your parents in particular.
[22] Taking into account as much as I can those positive personal features, remorse and your circumstances, I apply a reduction of 18 months. The remaining factor is the credit for your guilty plea. The Supreme Court have made it clear in R v Hessell6 that the extent of the discount for a guilty plea is discretionary, but even when entered at an early stage should not exceed 25 per cent. Your guilty plea was not entered at the earliest possible stage. It was entered just over a week or so before trial. The circumstances of it have been explained to the Court. I accept that while you had an unresolved challenge to the search warrants, on the basis of the evidence the Crown case against you was overwhelming. However, I take into account the
explanation for the timing of the entry of the plea and accept that a discount of between 10 and 15 per cent is appropriate.
[23] That leads to the issue of a minimum term of imprisonment. The Crown argue for a minimum term of imprisonment. Mr Mansfield has argued strongly that having regard to your personal mitigating circumstances in particular and the other factors I have referred to that a minimum term of imprisonment is not required in
this case.
6 R v Hessell [2010] 2 NZLR 298.
[24] In considering whether to impose a minimum term of imprisonment the Court
is directed to consider the need to:
hold you accountable for the harm done to the community by the offending;
denunciation of your conduct;
deterrence; and
the protection of the community.
[25] The last consideration, protecting the community, is not in issue in the present case in so much as on your release it is accepted you will be deported. However, as the Court of Appeal observed in R v Anslow7 it is almost inevitable that in cases of serious drug offending where the lead sentence is around nine years a minimum period will be required to address the principles of the Act that I have referred to.
[26] I note that in a recent case of R v Choi8 the Court of Appeal imposed a minimum period of 50 per cent in the case of a foreign national who was involved in drug dealing.
[27] While I take into account the strong mitigating factors in your favour I accept the Crown submission that a minimum non-parole period in excess of the standard is required in order to properly hold you accountable for the harm done to the community by serious drug offending of this nature that you were actively involved in over a long period and also to denounce your conduct and, even if it is unnecessary to deter you, to deter others from such offending.
[28] Mr Frewer, please stand. On the three counts you have pleaded guilty to, you are sentenced to imprisonment for eight years and nine months. You are to serve a minimum term of imprisonment of four years three months, which is just under 50
per cent. You can be seated.
7 R v Anslow CA182/05, 18 November 2005.
[29] Mr Rinaldi I turn to you. You are 39 years old. You were born in Serbia but largely raised in England. You have attended and obtained university qualifications and you were formerly employed as an information technology salesperson. Until your offending you were employed at IBM.
[30] You were married for a short time. Following the breakdown in that relationship you turned to the club and party scene and became involved in drugs. Only recently have you felt able to tell your parents and siblings about your offending and your situation. You have undergone counselling and are taking medication for stress but are otherwise in good health. You have now ceased using drugs. The questionnaires used by the Probation Service confirm they do not detect any harmful pattern of alcohol or drug use at this stage. You have expressed your remorse for the offending you became involved and have taken steps to address your drug use. You have accepted full responsibility for your offending and expressed the hope to your former lifestyle as soon as possible. You are assessed as being at a low risk of re-offending. A recommendation of home detention is made in the pre- sentence report.
[31] You have heard what I have had to say about the leading cases and authority for sentencing of this nature. I put your offending towards the top of the lowest category identified by the Court of Appeal in Wallace. Particularly relevant to your sentence are the sentences of Mr Whitehead and Mr Purchase. Both of them were involved in the same operation that you were and at a lower level of supply like you, underneath Mr Voerman, Mr Keown and Mr Boywer. Mr Whitehead received and supplied between 7,000 and 10,000 MDMA tablets. A start point of six years was
adopted for him.9 Mr Purchase was sentenced on the basis he had been involved in
the supply of approximately 5,000 MDMA tablets.10 The Judge took a start point of four years nine months reducing it from the start point of five years he initially considered appropriate because Mr Purchase was not disseminating drugs directly to
users but rather supplied them on to Mr Whitehead.
9 R v Whitehead HC Auckland CRI-2008-004-013858, 17 September 2010, Lang J.
[32] The Crown argues that on a parity basis, having regard to Mr Purchase’s position, the start point should be four years’ imprisonment. Mr Simmonds has argued strongly for a start point in the range of three years. He relies on the case of R v Campen.11 In Campen the prisoner was involved in the supply of up to 1,500 tablets. The Judge on that charge took a start point of three and a half years. On my review of the authorities and the level of your involvement Mr Rinaldi I do not seek
a significant difference between your culpability and that of Mr Purchase save that a lesser amount of tablets was involved. I take as a start point four years.
[33] There are no personal aggravating factors. I then take into account your personal mitigating factors. You are to have credit for your lack of previous convictions. I also accept that you genuinely remorseful. Your letter to the Court shows insight on your part. You also have a very positive pre-sentence report. Mr Simmonds has also argued strenuously for a reduction in sentence to take into account the restrictive bail conditions you were subject to over 30 months, 24 hour curfew and e-bail.
[34] I take account of your personal circumstances as much as I am able to. A
reduction of approximately 15 months is appropriate.
[35] The last factor in your favour is the credit for your guilty plea. Mr Simmonds has argued for a reduction approaching 20 per cent to reflect what was, in his submission, a plea entered as soon the Crown agreed to abandon the balance of the counts that you face. He notes the effect that facing the number of counts in the indictment has had on you financially, personally and in other ways.
[36] However, as the Supreme Court made clear in Hessell guilty pleas are often the result of negotiations and understandings reached by the accused and prosecutors on the charges faced and the facts admitted. What is required is an evaluation of the circumstances in which the guilty plea was entered.
[37] In your case again I consider that more than the usual discount that would apply to a guilty plea entered a week before trial is appropriate but I am not prepared
11 R v Campen HC Auckland CRI-2007-004-018646, 27 August 2010, Stevens J.
to accept the submission made by Mr Simmonds it should be as much as 20 per cent. Somewhere 10 and 15 per cent is appropriate.
[38] The end result Mr Rinaldi is a sentence over two years. Home detention is not available. In any event I have to say that in my judgment home detention would not have been an appropriate response to the seriousness of your offending in this case.
[39] Mr Rinaldi would you please stand. On the charge that you have pleaded guilty to you are sentenced to imprisonment for two years four months. Stand down.
Venning J
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