R v Gear
[2023] NZHC 432
•8 March 2023
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 the Sentencing Act 2002. In terms of the principles of sentencing, I have regard here to: the gravity of the offending and Mr Gear’s culpability; the seriousness of the offence compared with others; the need to ensure the sentence is consistent with other sentences for this type of offending; Mr Gear’s particular circumstances and background; and the requirement to impose the least restrictive outcome appropriate in the circumstances.
[7] In terms of the purposes of sentencing Mr Gear, I have particular regard to: the need to hold him accountable for the harm his offending has done to the community; the need to promote in him a sense of responsibility for, and acknowledgement of, that harm; the need to denounce the conduct with which he was involved; and the need to protect the community from his offending in future.
[9] The methodology of sentencing is first to set a starting point reflecting the seriousness of the offending, then to make adjustments for the offender’s personal circumstances and guilty plea, and finally to stand back to check the sentence reflects the totality of the offending.4
4 Moses v R [2020] NZCA 296 at [46].
Starting point
[8] In 2019, the New Zealand Court of Appeal provided guidelines for sentencing methamphetamine offenders in Zhang v R.5 However the guidelines do not alter the requirement for the sentencing judge to exercise “flexibility and discretion in setting sentences”.6 For example, the most serious band of offending, band five, requires anything more than two kilogram of methamphetamine to attract a starting point of between ten years and life imprisonment.7 In 2022, the Supreme Court, in Berkland v R, confirmed and modified some aspects of the approach in Zhang.8 Placement within a band will be affected by whether the role of the offender is lesser, significant or leading.9
[9] Mr McWilliam, for the Crown, acknowledges the potential quantity of methamphetamine arising from the liquid here is unknown. He submits the Court must take into account the co-offenders’ sentences. He emphasises the scale of the offending, Mr Gear’s significant role as the cook, the high degree of commerciality and financial gain, the high degree of planning and pre-meditation, and the significant social harm to the community of commercial-scale drug offending. Having regard to what we know about the amount of methamphetamine, and Mr Gear’s role as cook, he submits the starting point should for both methamphetamine offences together should be five years’ imprisonment.
[10] Mr Mansfield KC, for Mr Gear, agrees that the five-year starting point proposed by the Crown is appropriate for the two methamphetamine offences. That is because it takes into account the unknown amount of methamphetamine that could be extracted from the liquid and the plan to manufacture more methamphetamine from the ephedrine, which did not eventuate. It correctly reflects the offending being between bands 2 and 3 of Zhang, and Mr Gear’s role being at the upper end of “lesser” or lower end of “significant”. And it is consistent with the sentences of Mr Gear’s co- offenders.
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
6 At [120].
7 At [125].
8 Berkland v R; Harding v R [2022] NZSC 143.
9 At [126].
[11] I also agree. I add that such a starting point appears consistent with the few cases that have some similarity with this one.10 Mr Gear was not at the top of the operation but would have played a key operational function in the group if he had all the required materials. But the conspiracy was in its relatively early stages. I set the starting point for the two methamphetamine offences at five years’ imprisonment.
[12] Mr McWilliam submits an uplift of six months is justified for the firearm charge and an overall starting point “in the range of six years’ imprisonment”. Mr Mansfield agrees it should be no more than six months. Again, I agree. The overall starting point is five years and six months’ imprisonment.
Adjustments for personal circumstances
[13] Mr Gear, the Department of Corrections has provided me with a pre-sentence report assessing your likelihood of reoffending as low but the risk of harm as medium given the harm methamphetamine causes. It refers to your rehabilitative efforts. It assesses a proposed address as technically suitable for home detention and recommends that sentence be imposed.
[14] Mr McWilliam submits there should be an uplift of six months for your significant previous 27 convictions dating back to 1992. He acknowledges that may be at the higher end. But your only previous drug-related offence was for cultivating cannabis in 2002 and you have no firearm convictions. Mr Mansfield submits no uplift for your previous convictions is justified. I agree there should be no uplift for previous convictions.
[15] You were charged in late April 2021, provided a formal written statement in December 2021, and pleaded guilty on 21 December 2021. Mr McWilliam submits a discount of up to 20 per cent may be available for your guilty plea. Mr Mansfield agrees, as do I. Your plea is responsible and has saved time and expense for the Crown and the Court.
10 R v Grant HC Christchurch CRI-2008-009-1219, 4 December 2008; R v Kupkovic [2022] NZHC 1980; and Philip v R [2022] NZSC 149.
[16] Mr Mansfield provides me with a useful report on your personal background by Dr Chris Gallavin, an Adjunct Professor at Massey University, under s 27 of the Sentencing Act.11 Your mother had you when she was 16 and your father was in prison. The report traverses a dysfunctional childhood, an undiagnosed learning disability, and physical discipline by getting thrashings. That led you to leave school at 13 after a month of secondary school, to live on the streets. You joined gangs, engaged in criminal activity, and became addicted to drugs, smoking cannabis at 13, taking LSD at 15 and, introduced by your father, you have smoked methamphetamine virtually every day for the last 25 years until recently. Mr Mansfield submits there is a clear and direct nexus with the offending. There was. You were a member of the Filthy Few for 10 years and became President in Rotorua. Through them, you met Mr Waitai who introduced you to Mr Demant. Mr Mansfield submits a discount of no less than 15 per cent to your sentence is appropriate. Mr McWilliam does not take issue with that. I consider the information before me about your personal background amply demonstrates you have reduced culpability for your offending and justifies a discount to the sentence of 15 per cent.
[17] Mr Mansfield submits there should be a further 15 per cent discount for your rehabilitative efforts. Significantly, as verified by the Police, you turned in your gang patch. While on EM bail you completed three rehabilitative courses. You were clean for a month before enrolling in Te Whare Oranga Ngakau’s 90-day inpatient programme from July to September 2022. You completed the Tu Taua harm reduction programme. You have become involved with the Te Ahi Kikoha, the White Ribbon Riders Domestic Violence Awareness group and presented as a key speaker on rehabilitation in November 2022. You have completed a number of rehabilitation programmes and have committed to do more. You are now a member of NA, AA and STOP. You have been offered the possibility of a scholarship, for 15 hours paid work a week, to train as a facilitator for the mana-enhancing programme “STOP-METH”. I have seen a letter from the Operations Manager there attesting to your success so far and further pathways for rehabilitation through work-based placement and study if you are granted home detention. An accompanying report says that you meet 11 of
11 See Berkland, above n 8, at [148]–[150].
the 11 criteria for severe cannabis and methamphetamine use disorders but have not touched either for 12 months. I congratulate you for that.
[18] Although you grew up close to a marae and your Nan was a respected kuia, you did not learn about your culture until recently. You say you feel disassociated from your culture and are now committed to learning te reo Māori. Kia kaha. You are married and have been with your partner for 23 years, with three tamariki, two mokopuna and another on the way. You are committed to your family and they are committed to you. You own your own lifestyle block with your partner. There, you have both helped to establish Hapū Collective, which helps provide wrap-around services focussing on rehabilitation and support for recovering addicts. You and one of your sons have made a two-way commitment to each other to stay clean of addiction, which is important to you and no doubt to him, and if I may say so, impressive. Your rehabilitation goes well beyond your own recovery and extends to the community and your son’s rehabilitation. I consider your efforts are sincere. You are well-known in the community and seen as a leader and a role model. I allow a discount of 15 per cent, which I consider well-justified, for your rehabilitative efforts.
[19] Mr Mansfield submits there should be a discount of 10 months for the 20 months you have spent with a 24-hour curfew. For 17 of those months you were of on EM bail with a 24-hour curfew and for another three months, under a variation to bail, you were at the residential rehabilitation programme but also subject to a 24- hour curfew. Mr McWilliam acknowledges an adjustment may need to be made to the sentence for that time and does not take issue with the level suggested by Mr Mansfield. You were also in prison for 56 days. Taking all that into account, I agree a discount of 10 months is appropriate.
[20]That results in an end sentence of 23 months’ imprisonment.
Home detention?
[21] Mr Mansfield acknowledges that this is serious offending and the Court usually takes a hard line on drug offending. But he submits, given your rehabilitation and leadership now in combatting addiction, that after all those discounts the end sentence
should be 23 months’ imprisonment, which should be converted to home detention with a reduction of two months due to the 56 days you spent in prison in 2021.
[22] Mr McWilliam acknowledges home detention should be considered. He says the Courts should take a hard line on drug offending but given what you have achieved over the last two years, a sentence of imprisonment would be counterproductive.
[23] Home detention is a difficult sentence,12 as almost all New Zealanders discovered during Covid lockdowns; and they were able to leave their homes. But home detention would enable you to continue with the significant rehabilitation steps you have already made. Your time on EM bail since June 2021 has not caused any concerns about your compliance with a sentence of home detention. By contrast, a sentence of imprisonment is likely to expose you directly to the sort of gang environment that got you into this offending and your old lifestyle in the first place.
[24] I do not consider the period of home detention should be directly reduced by your 56 days in prison. I took that into account in discounting the period of being on EM bail. But home detention does not allow the possibility of parole. So, it is conventional to impose home detention for half the length of time of the equivalent sentence of imprisonment. Viewing the totality of the sentence against your offending, I consider home detention for 11 months is the least restrictive sentence available in the circumstances, which is what I am required to impose.
Sentence
[25] Mr Gear, could you please stand. I sentence you to home detention for 11 months at the address referred to in the pre-sentencing report, on the conditions that you:
(a)Attend and complete an appropriate Counselling/Treatment/ Programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
12 R v Edmands [2022] NZHC 246 at [4].
(b)Attend and complete an appropriate Tikanga Māori Programme to the satisfaction of a Probation Officer. The specific details shall be determined by the Probation Officer.
(c)Do not communicate in any way or associate with any co-offender, without the prior written approval of a Probation Officer.
(d)Complete, as post-detention conditions, any of the above programmes you have not completed while on home detention.
[26]I also order forfeiture of the firearm.
[27]Mr Gear, I wish you well.
Palmer J
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