R v Gear - [2023] NZHC 432

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-070-1570

[2023] NZHC 432

THE KING

v

JEFFREY MARAENUI GEAR

Hearing: 8 March 2023

Appearances:

D J McWilliam for the Crown

R M Mansfield KC and O W L Troon for Mr Gear

Sentencing:

8 March 2023

SENTENCING BY PALMER J

Counsel/Solicitors
R M Mansfield KC, Auckland
Crown Solicitor, Pollett Legal Ltd, Tauranga

R v GEAR [2023] NZHC 432 [8 March 2023]

[1] Mr Jeffrey Gear, aged 44 and of Te Arawa descent, has pleaded guilty to the offences of:

(a)possession of methamphetamine for supply, which has a maximum penalty of life imprisonment;1

(b)conspiracy to manufacture methamphetamine, which carries a maximum penalty of 14 years’ imprisonment;2 and

(c)unlawful possession of a firearm, which carries a maximum penalty of 4 years’ imprisonment or a $5,000.00 fine or both.3

[2] The Crown seeks leave to withdraw two further changes of unlawful possession of ammunition and cultivating cannabis, which I grant.

What happened?

[3] On 12 February 2021, one co-offender of Mr Gear’s, Mr Demant, told another co-offender, Mr Waitai, that a supplier in Mexico said they had a “couple of kilos” of liquid methamphetamine for them. A third co-offender, Mr Alverado, the New Zealand representative for a Mexican organised criminal group, arranged for two kilograms of liquid methamphetamine to be made available. Mr Demant transported the liquid methamphetamine from Auckland to Mr Gear’s home address in Rotorua. Mr Gear and Mr Demant then attempted to extract the methamphetamine from the liquid. They were not successful, as very little useable methamphetamine could be extracted.

[4] Intercepted communications in February 2021 reveal that Mr Waitai, Mr Demant, and Mr Gear also decided to manufacture methamphetamine. On 24 February 2021, Mr Demant called Mr Waitai to check whether Mr Gear needed ephedrine, a precursor ingredient to methamphetamine. Mr Demant said he was in the process of completing a deal to obtain 20 kgs of ephedrine. On 25 February, Mr Gear

1      Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a); and Crimes Act 1961, s 66(2).
2      Misuse of Drugs Act, ss 6(1)(b) and 6(2A)(a).
3      Arms Act 1983, s 45(1)(b).

told Mr Waitai he needed “water”, which is a term used for an acid which was precursor chemical. Mr Gear was to be the “cook”. He said he could do “probably a quarter” of the amount they were planning on manufacturing. The intercepted communications also indicated that they had iodine, which is required for manufacture. On 27 February 2021, Mr Demant told Mr Waitai he was going to pass 15 kgs of ephedrine to Mr Waitai and Mr Gear to manufacture methamphetamine.

[5] Finally, on 29 April 2021, the Police executed a search warrant at Mr Gear’s home address. Located on the property under a sink on a bus was a lever action
.22 rifle.

Approach to sentencing

[6] Sentencing is conducted for the purposes, and according to the principles, in ss 7 and 8 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gear

Details

AGLC: R v Gear [2023] NZHC 432
Case: [2023] NZHC 432
Decision Date: 8 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, Mr. Jeffrey Maraenui Gear was convicted of possession of methamphetamine for supply, conspiracy to manufacture methamphetamine, and unlawful possession of a firearm. The Crown sought leave to withdraw two further charges of unlawful possession of ammunition and cultivating cannabis, which was granted. The court heard that Mr. Gear and his co-offenders had planned to extract and manufacture methamphetamine, but their attempts were unsuccessful. The Crown and defence agreed on a starting point of five years and six months' imprisonment for the methamphetamine offences and an uplift of six months for the firearm charge.

The court considered various factors in determining the appropriate sentence, including Mr. Gear's personal circumstances, background, and rehabilitative efforts. The defence presented evidence of Mr. Gear's dysfunctional childhood, learning disability, criminal history, and drug addiction. However, the court also heard about Mr. Gear's significant rehabilitation efforts, including completing several rehabilitation programmes, turning in his gang patch, and committing to further rehabilitation through work-based placement and study if granted home detention. The court accepted that Mr. Gear had reduced culpability for his offending and allowed discounts for his personal circumstances, guilty plea, and rehabilitative efforts.

The court concluded that a sentence of imprisonment would be counterproductive given Mr. Gear's significant rehabilitation efforts and leadership in combatting addiction. The court considered home detention to be the least restrictive sentence available in the circumstances, which would enable Mr. Gear to continue with his rehabilitation steps. The court sentenced Mr. Gear to home detention for 11 months, with conditions including attending and completing appropriate counselling/treatment/programme and Tikanga Māori programme, not communicating or associating with any co-offender without prior written approval of a Probation Officer, and completing any of the above programmes as post-detention conditions if not completed while on home detention. The court also ordered forfeiture of the firearm.

In summary, the court sentenced Mr. Gear to home detention for 11 months, taking into account his personal circumstances, background, and rehabilitative efforts. The court considered home detention to be the least restrictive sentence available in the circumstances, which would enable Mr. Gear to continue with his rehabilitation steps. The court ordered forfeiture of the firearm.

Orders