R v Gaitau

[2016] NZHC 1155

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-063-3363 [2016] NZHC 1155

THE QUEEN

v

GEORGE GAITAU

Hearing:	31 May 2016
Appearances:	B R Northwood for the Crown R M Mansfield for the Defendant
Sentence:	31 May 2016

SENTENCING NOTES OF MUIR J

Counsel/Solicitors:

B R Northwood for the Crown

R M Mansfield for the Defendant

R v GEORGE GAITAU [2016] NZHC 1155 [31 May 2016]

Introduction

[1]      Mr Gaitau,  you  appear  before me today for sentencing in  respect  of  17 charges to which you have pleaded guilty and which I group as follows:

(a)       those    relating    to    the    supply    or    possession    for    supply    of methamphetamine totalling approximately 58 grams;

(b)those  relating  to  the  offering  to  supply  and  conspiracy  to  supply methamphetamine totalling approximately 56 grams;

(c)       other drug related offending involving both Class B (GHB) and Class

C (Cannabis) drugs; and

(d)      a charge of conspiracy to commit aggravated robbery.1

[2]      Each of the methamphetamine supply, possession for supply and offering to supply charges carry maximum penalties of life imprisonment.  That is a reflection of society’s condemnation of those who traffic in the human misery associated with methamphetamine  consumption  and  of  which  you  are  now  all  too  well  aware yourself.

[3]      Due to the nature of your offending there are no victim impact statements filed with the Court.   However, it is nonetheless appropriate to acknowledge the victims of your offending, who are the members of the community that you either drew into drug use and addiction or whose habit you sustained.  Daily our courts are confronted by the huge human toll in terms of domestic violence, shattered careers, shattered families, shattered mental health and criminal offending which flow from the addictions you serviced for personal profit, albeit that I accept the submission of your counsel that much of the profit seems to have been diverted into sustaining your own unfortunate habit.

Facts

[4]      I traverse, briefly, the facts. You were involved with a number of others in an organised ring that operated between the North Shore area of Auckland and Rotorua, to supply methamphetamine and cannabis and other drugs to retail customers and to other dealers.

[5]      In  2014,  the  police  began  what  came  to  be  styled  as  Operation  Goa, investigating the supply of methamphetamine in Auckland.    They obtained surveillance warrants for your brother, yourself and two other associates from July to November 2014.  The warrants uncovered what the police allege was a wide scale operation for methamphetamine production and supply.  The operation resulted in 44 charges against eight defendants.

[6]      You were involved in the supply of methamphetamine and cannabis in large quantities in a role best described as that of what I call a “high up middle-man”.  The intercepted communications show you supplying; possessing for supply; offering to supply or conspiring to supply approximately 114 grams of methamphetamine, with a total street value of approximately $40,000.  You were also involved in the supply of cannabis and the class B drug GHB.

[7]      In a separate incident that also occurred within the surveillance period, you conspired, via text, with a co-offender to rob an Asian woman, who has not been identified by the police.  Fortunately for her she did not turn up at the expected time and place and the robbery did not eventuate.  You had gone so far as to agree on a

50/50 split of the profits with your co-offender. Your anticipated share was $700.

Purposes and principles of sentencing

[8]      I discuss briefly the purposes and principles that guide my sentencing.

[9]      In any case involving serious drug offending of this nature the pre-eminent purposes are to hold you accountable, to denounce the conduct and to deter you and others from similar offending in the future.  Rehabilitation and re-integration are also relevant in this case considering your relative youth.  In sentencing you today I take

into account the gravity of the offending and the degree of your culpability, and that I

must impose the least restrictive outcome appropriate.

Methodology of sentencing

[10]     When deciding on an appropriate sentence I must, as your counsel will be well aware, first consider your offending in isolation, removed from any features which are personal to you.  That will lead me to what is called a starting point for your sentence.  Secondly, I must make any necessary adjustments for features that are personal to you.  Finally, I need to turn my mind to the appropriate discount to recognise your guilty plea.

[11]     I take as the lead offending the methamphetamine supply and possession for supply charges which I group together.

[12]     In the case of R v Fatu the Court of Appeal set out four sentencing bands

(ranges or starting points) for methamphetamine supply as follows:2

(a)       Band 1 – low level supply (less than five grams) – two to four years’

imprisonment.

(b)      Band 2 – supplying commercial quantities (five grams to 250 grams)

– three to nine years’ imprisonment.

(c)       Band 3 – supplying large commercial quantities (250 grams to 500 grams) – eight to 11 years’ imprisonment.

(d)Band 4 – supplying very large commercial quantities (500 grams or more) – ten years to life imprisonment.

[13]     Determining what band your offending falls into requires me to consider any aggravating or mitigating factors, as identified by the Court of Appeal,  that are

applicable to your particular offending and to assess comparable cases of like- offenders. Your role in the operation is also a relevant factor.3

[14]     You pleaded guilty to multiple charges which are interconnected in both time and circumstance and for that reason what are called concurrent sentences are appropriate under s 84 of the Sentencing Act 2002 for all the drug charges that you face today.  The conspiracy to commit aggravated robbery is, however, in a separate category and I will deal with it as such.

Setting the starting point

Crown submissions

[15]     The Crown submits that your methamphetamine offending, viewed globally, falls  within  Band  2  of  Fatu  due to  the commercial  quantities  you  supplied,  or conspired to supply or possessed for supply. The Crown highlights the following aggravating features:

(a)      The period of your offending which was under investigation from August until November 2014 which showed a consistent pattern of offending throughout.

(b)The sophistication of your operation, including the extensive use of code.

(c)       Your role as a high-end purchaser and supplier in the ring.

[16]     On the basis of those features the Crown submits that a starting point of seven years’ imprisonment is appropriate in respect of the methamphetamine offending.  It then seeks an uplift of 18 months in respect of your other drug related offending and nine months for the conspiracy to commit aggravated robbery.  From that starting point of nine years, three months the only discount that the Crown submits is appropriate is 10 per cent, it says, to reflect a belated guilty plea.

[17]   In his oral submissions this morning, Mr Northwood accepts a further adjustment may be appropriate in relation to the onerous conditions associated with your bail, pending sentence.

Defence submissions

[18]     Mr Mansfield accepts that your offending falls within Band 2 of Fatu and seeks a starting point of five years’ imprisonment on the basis that a large number of the charges relate to possession for supply, offering to supply or conspiracy to supply and therefore do not of themselves establish actual supply of the drug with the deleterious consequences associated with that.

[19]     Mr Mansfield further submits that no uplift is required in respect of your cannabis  and  GBH  offending,  and  only a six  month  uplift  is  necessary for the conspiracy to commit an aggravated robbery.

[20]     He then seeks a 10 per cent discount to reflect variously your efforts at rehabilitation, your remorse and the time spent on restrictive bail conditions in the lead up to the sentencing date.

[21]     Finally, he seeks a discount of between 15 and 20 per cent for your guilty plea on the basis that your plea, although relatively late in the day, was the result of negotiation of offences with the Crown and did save the Crown and the community the expense of what was scheduled to be a six week trial involving up to 50 Crown witnesses.

Analysis

[22]     I agree with both the Crown and your counsel that the offending is best characterised as commercial level supply of methamphetamine falling within Band 2 of Fatu.  I have taken a global starting point across your supply and possession for supply charges of five years’ imprisonment.  I then impose an uplift of one year to reflect the further 56 grams that you either offered to supply or conspired to supply. This results in a starting point of six years across all of your methamphetamine related offending.

[23]     Had all of the offending related to supply or possession for supply I would have agreed with the Crown that a starting point of seven years, for all of your methamphetamine offending was warranted.  However, approximately 50 per cent of that offending relates to offers to supply or conspiracy to do so, the latter attracting a maximum penalty of 14 years’ imprisonment as opposed to the life imprisonment for supply.    Also  one  of  the  conspiracies  was  at  a  relatively  preliminary  level  of

fulfilment.4

[24]     I have also taken into account the sentence imposed on your co-offender, Mr

Young, who was sentenced to four years and three months’ imprisonment on 19 May

2016.      He   faced   far   fewer   charges   than   you   and   the   total   amount   of methamphetamine was just under 62 grams.  Mr Young would often source from and supply to  you  methamphetamine  as  was  indicated  by the  intercepted communications.  Venning J took a global starting point on all the methamphetamine charges of four years and three months.

[25]     In comparison to Mr Young, however, you had a much greater role, including co-ordinating more deliveries and supplies and of course the total number of charges that you face is much higher, as was the total quantity of methamphetamine involved at 114 grams, indicating a significantly higher level of criminality.

[26]     I have also taken into account a number of like cases.5   I won’t refer to these in detail.   They are collected in footnotes to my sentencing notes.   I found the decision in R v Weston to be particularly analogous given the quantities involved and the fact that, like here, there was a mixture of supply and conspiracy charges.

Other offending

[27]     You have also pleaded guilty to three charges in relation to a Class B drug – GHB – and a Class C drug – cannabis.  Were you to be sentenced alone on the GHB supply (50 mls), that would, in my view, attract a starting point of approximately 18

months.  In R v McIvor, where there were 15 supplies of between four and 15 mls, a

4      Charge 40 involving seven grams.

5      R v Clunie [2013] NZHC 2689; R v Paki [2015] NZHC 472; R v Weston [2014] NZHC 3260.

starting point of two and a half years was adopted.6     The offending here is less serious in terms of total quantities supplied but is serious nonetheless.

[28]     In relation to the sale and conspiracy to sell cannabis charges, the Crown quantifies the total amount involved as 532 grams (of which 448 were sold).  That is a commercial quantity in Band 2 of R v Terewi requiring a starting point of approximately two years’ imprisonment.7

[29]     These additional offences, in my view, increase the overall criminality of your actions.  Not only were you supplying methamphetamine but you were in the business of sourcing and supplying drugs generally and in commercial quantities.  I consider that an uplift of one year is appropriate in respect of the other drug related offending.

[30]     In my view a starting point of seven years’ imprisonment therefore reflects the overall culpability of your offending on all the drugs related charges.

[31]     Finally, I must consider the conspiracy to commit an aggravated robbery. This  is  not  sufficiently  connected  to  your  drug  related  offending  to  justify  a concurrent sentence.  You planned the “mission” with associate Mr Taniora who was recently sentenced to 15 months’ imprisonment for his role in the offending.8   Moore J adopted a starting point of 16 months’ imprisonment for Mr Taniora.  You were both  in  my  view  equal  participants,  reflected  in  the  fact  that  you  agreed  via intercepted text to split the profits 50/50.   I would, therefore, have imposed a cumulative sentence of  around 13  months’ imprisonment,  taking  into  account  a

guilty plea discount.  However, on a totality assessment that seems to me excessive and I reduce that to a cumulative sentence of  nine months’ imprisonment.

[32]     In summary, therefore, I adopt a starting point of seven years to reflect your drug related offending, and a cumulative sentence of nine months on the conspiracy

to commit aggravated robbery.

6      Police v McIvor HC Palmerston North CRI-2010-054-2878, 16 February 2011.

7      R v Terewi [1999] 3 NZLR 62 (CA).

8      R v Taniora [2016] NZHC 610.

Aggravating and mitigating factors personal to the offender

[33]     Turning then to consider factors personal to you, you are a patched member of the Head Hunters motorcycle gang.  You are 22 years old.  You are Maori and you are unemployed.   Your criminal history is not extensive.   This offending marks a rapid escalation in that.  Since being arrested you say you have made considerable efforts to address your addiction to methamphetamine, including two weeks at the Auckland City Mission Detoxification Centre.  You say that your downward spiral into addiction began following the death of your younger brother and your grandmother which triggered a period of guilt, in the case of your younger brother, and grief and loss in the case of both.

[34]     However, in considering your personal factors I must be cognisant of the

Supreme Court’s comments in Jarden v R to the effect that:9

[12]     … [W]e emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.

[35]     You do not have a clean criminal record, but nor do you have any sufficiently serious or similar offences that would require me to uplift the starting point I have adopted.  I consider that to be a neutral factor.

[36]     In terms of  your approach to  your offending,  I have read the letter  you addressed to the Court which does indicate to me a level of self-awareness of the factors that lead to your offending, including, as I have indicated, the guilt that you feel in relation to your brother’s death.

[37]     More significant than these expressions of remorse are from my perspective, however, the very tangible steps taken by you towards rehabilitation including participation in the Auckland City Mission Detox and Marae based programmes. Taking into account the fact that you are an addict, your family circumstances and your real efforts at addressing your underlying problems, I agree with Mr Mansfield

that a discount is appropriate, despite the caution expressed by the Supreme Court.

9      Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.

[38]     I   allow   a   discount   for   remorse   and   rehabilitation   of   three   months’

imprisonment.

[39]     Finally,   I   accept   your   counsel’s   submission   that   you   have   spent approximately seven months on highly restrictive bail conditions including a 24 hour curfew and EM bail in the lead up to this sentencing.  For that I allow a five month discount.10

[40]     Before considering the effect of your guilty plea, I therefore make deductions of eight months to reflect personal factors, taking the sentence to one of six years and four months’ imprisonment.

Guilty plea discount

[41]     The Crown says that you entered your plea only four days before trial.  It is common ground between counsel that you are not therefore entitled to the maximum discount of 25 per cent which the Courts allow.  Despite the lateness of your plea there is, however, significant social utility in it having been entered, particularly in the circumstances of a trial of the duration and involving the number of witnesses that would have occurred in this case.  In relation to Mr Young’s offending, Venning J adopted a discount of 15 per cent.  He pleaded guilty somewhat earlier than you have.  I consider that a like discount of 15 per cent is the maximum I can allow in this case.  That results in a discount of approximately 12 months from the sentence that I would otherwise impose.

[42]     The  end  sentence  is,  therefore,  one  of  five  years  and  four  months’ imprisonment on all the drug related offending to which is added nine months’ imprisonment (a level of imprisonment I have already adjusted for guilty pleas and totality), for the conspiracy to commit aggravated robbery charge.

Final sentence

[43]      Mr Gaitau, please stand.

10     Adopting a broadly similar approach to the Court of Appeal in Hohipa v R [2015] NZCA 485 at

[35].

[44]     On  each  of  the  charges  of  supplying  methamphetamine  and  being  in possession of methamphetamine for supply you are sentenced to five years, four months’ imprisonment, all to be served concurrently.

[45]  On the charges of conspiracy to supply and offering to supply methamphetamine, you are sentenced to one years’ imprisonment, all to be served concurrently with the other sentences I am imposing today.

[46]     On the charges of supplying GHB, selling cannabis and conspiring to sell cannabis   you  are  sentenced,  to  one  years’  imprisonment,  all  to  be  served concurrently with the other sentences I am imposing today.

[47]     On the charge of aggravated robbery, you are sentenced to  nine months’ imprisonment, to be served cumulatively on the sentences imposed today on the charges of supply and possession for supply of methamphetamine.

[48]     The effective end sentence is therefore one of six years and one months’

imprisonment.

[49]     Mr Gaitau I wish you and your family well in your recovery from  your addiction.

[50]     In relation to the Charges 1, 8, 13, 29, 33 and 37, which the Crown seeks to withdraw, I dismiss the charges under s 147 of the Criminal Procedure Act 2011.

Muir J

Annexure of Charges in a table

Number of charges	Charge Nos	Offence	Total Quantity	Section / Act	Maximum penalty
3	20, 26, 34	Supplying methamphetamine	An ounce or 28 grams; quarter of an ounce; One gram to Scott.	Misuse of Drugs Act 1975, s 6(1)(c)	Life imprisonment
6	3, 5, 7; 17; 24; 35	Possession for supply	About 1 – 2 grams on each occasion; A quarter ounce or 7 grams; Quarter of an ounce about 7 grams; Four grams.	Misuse of Drugs Act, s 6(1)(c)	Life imprisonment
1	22	Conspiracy to supply methamphetamine	Quarter of an ounce or about 7 grams	Misuse of Drugs Act ss 6(1)(c) and 6(2A)(a)	14 years’ imprisonment
3	12; 3; 38	Offering to Supply methamphetamine	About 14 grams; a quarter pounder; half an ounce.	Misuse of Drugs Act, s 6(1)(c)	Life imprisonment
1	36;	Supplying a class B drug (GHB)	50 mls	Misuse of Drugs Act, s 6(1)(c) and 6(2)(b)	14 years’ imprisonment
1	16	Selling a class C drug (cannabis)	448 grams	Misuse of Drugs Act, s 6(1)(e)	Eight years imprisonment
1	25	Conspiracy to sell Cannabis	3 ounces	Misuse of Drugs Act ss 6(1)(c) and 6(2A)(c)	Seven years’ imprisonment

Number of charges	Charge Nos	Offence	Total Quantity	Section / Act	Maximum penalty
1	42	Conspiracy to commit aggravated robbery	Victim did not turn up	Crimes Act 1961 235(b)	Seven years’ imprisonment