R v Gillett
[2024] NZHC 1221
•15 May 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2021-088-002754
[2024] NZHC 1221
THE KING v
TAIOMA ROBERT GILLETT
Hearing: 13 December 2023 Appearances:
A Goodwin for the Crown
J Moroney on behalf of S Thode for the Defendant
Judgment:
15 May 2024
SENTENCING NOTES OF BECROFT J
This judgment was delivered by me on 15 May 2024 at 9 am Registrar/Deputy Registrar
Solicitors/Counsel:
Marsden Woods Inskip & Smith, Whangarei Thode Utting, Albany
R v GILLETT [2024] NZHC 1221 [15 May 2024]
The charges
[1]Taioma Robert Gillett, you appear for sentencing in respect of four charges.
(a)Importation of methamphetamine, relating to a single incident.1
(b)A representative charge of importing methamphetamine which relates to four other separate importations.2
Both these charges carry with them a maximum sentence of life imprisonment.
(c)Participation in an organised criminal group, carrying with it a maximum penalty of 10 years’ imprisonment.3
(d)A failure to carry out obligations in relation to a computer search, carrying with it a maximum penalty of three months’ imprisonment.4
[2] You pleaded guilty to these charges after accepting a sentencing indication I gave you on 13 December 2023.
Facts
Overview of the operation
[3] Your offending, Mr Gillett, was uncovered as part of a joint Police and Customs investigation codenamed “Freya”, which was commenced after a number of illegal drug importations destined for the same Northland address were intercepted by Customs.
[4] Overall, the detected offending spans from March 2020 through to 3 November 2021. It involves offending committed by a group of people, of which you were a part, who were all linked—either through family contacts or association with the
1 Misuse of Drugs Act 1975, ss 6(1)(a) and (2)(a).
2 Sections 6(1)(a) and (2)(a).
3 Crimes Act 1961, s 98A.
4 Search and Surveillance Act 2012, s 178.
Head Hunters motorcycle gang. Thirteen defendants were identified as being the main offenders.
[5] The primary drug of choice was methamphetamine. But, on occasions, it involved the Class B-controlled drugs MDMA and pseudoephedrine.
[6] Without going into all the details, it appeared to be a reasonably sophisticated operation. It was not just confined to importation, which is the subject of your sentencing, but also, it is said, included the production and manufacture of methamphetamine and its distribution.
[7] Operation Freya concluded on 12 November 2021 with a number of search warrants being executed. However, you were not arrested until January 2022 as Auckland was in a COVID-19 lockdown during the previous November and December.
[8] Twenty different illegal importations were identified. The essential means of importation from overseas was that a number of false or artificial email addresses and identities were created. I note that they included identities such as Quade Cooper— which I must say, in passing, is just the most foolhardy choice of name imaginable that must have aroused the suspicions of officials—as Quade Cooper as you would know is a well-known, sometimes controversial, and high-profile Australian rugby player.
[9] There was email contact by members of the group with overseas suppliers and with the freighting company. Packages and parcels (containing hidden drugs) were sent to recipients who all had false names, although they had apparently used correct addresses. It was done in this way to preserve anonymity as best as possible. The leader of the group kept a distance, but he was clearly the ringleader. Members of the group contacted the Customs officials, the freight forwarding companies, they uplifted the goods, and transported them—at least on the single importing charge to which you pleaded guilty—to Takahiwai Road, Ruakākā.
[10]Mr Gillett, you lived at one of the addresses that was provided –
[REDACTED] Ayrton Street, Te Atatu—with your then-partner, Marcella Griffen.
As it happened, your address was searched, it seems by accident, arising from an unrelated shooting as a result of which you were injured. During that search the Police located a number of false driver licences which all bore your photograph but had different names, including Quade Cooper, and at least two other names.
[11] A phone was seized to which you had access, and which included your name as one of four user accounts. Much documentation was also discovered. The devices seized showed emails in relation to the single charge of importation, communications in relation to other importations, emails to the Easy Freight Company, and emails with attachments showing documents that were used for some of the four importations. The phone had autofill entries for Quade Cooper and the address at Takahiwai Road, Ruakākā. Search terms on the phone included a number of highly suspicious entries including a search for “drug bust” news in New Zealand and the conversion of South African Rand to New Zealand Dollars.
The single charge of importation
[12] In respect of the single charge of importation to which you pleaded guilty, the name Quade Cooper was given as the recipient. There were emails between the freight company and “Quade Cooper” (which you accept as being you) advising Mr Cooper (you) that a customs duty was required to be paid, together with the necessity of engaging a freight broker to release the parcel.
[13] The Customs fee for that importation was paid by cash at the Kiwibank branch at the Westfield shopping mall in Albany. I have seen the relevant CCTV footage. Ms Griffen, your then-partner, paid the amount. You were there in the background— clearly captured on CCTV. You are depicted, with all the others, leaving the mall entrance together.
[14] Sometime later, on 16 June, the freight brokers were paid by a cash transaction at the Otaika Kiwibank in Whangārei. Ms Griffen is shown entering the Kiwibank shop. You are shown following her inside very soon after. The clear inference to be drawn is that you were involved in, and perhaps overseeing, that transaction also.
[15] On 24 June, you went to the Air New Zealand freight depot to uplift the parcel that had not yet been released. You thought it contained methamphetamine (agreed to be 5.1 kilograms) originating from South Africa. In fact, the drug had been intercepted and had been removed. You were required to come back the next day. You were placed under Police surveillance. I have seen the photographs showing you, on the next day, driving to the depot, loading the package into the boot of your blue hatch-back car and driving to a nearby carpark. The box was transferred to another car—a silver Subaru. You got in that car with Ms Griffen and Mr Kauri Kerr and you drove to the Ruakākā address, being followed all the while by a Police surveillance team. The Police did not arrest you or the other occupants of the car at the time, because the Police wanted to ascertain the extent of the operation and if further importations were planned.
Representative charge of importation of methamphetamine
[16] In respect of the four instances of importation included in this charge, you are clearly tied to them all—primarily by the names appearing in the false driver licences in your possession with your photo on them.
[17] There was one incident where a package to Quade Cooper was addressed to 529 Takahiwai Road. That was the name appearing on one of the false driver licences. That package contained 1.056 kilograms.
[18] On 18 June 2021, a further package was intercepted of 478 grams of methamphetamine. In respect of that importation, phone calls were made to UPS, the freight company, using a phone to which it is clear you had access and had used on other occasions together with your co-defendant, Ms Griffen. In fact, in one conversation about this importation, a male is heard calling out to someone he called “Babe” in the background, seeking details as to the identification details for the package et cetera. The inference is, that it was you who was calling out to “Babe” and that “Babe” was your then-girlfriend, Ms Griffen. In that call, you give your name as Cody Hilton of [REDACTED] Ayrton Street, Te Atatu. Cody Hilton is one of the names of the driver licences carrying your image. And you were living at Ayrton Street.
[19] The third importation, on 19 July 2021, of 755 grams of methamphetamine originated from Thailand. The name of the person to receive the package, Wayd Johnston, is one of the false driver licence names found at your house.
[20] Finally, on 20 July 2021, a parcel of 1.013 kilograms of methamphetamine was found concealed inside exercise equipment. Again, the parcel was addressed to Wayd Johnston—one of the names on the false driver licences, and his address is specified as being [REDACTED] Ayrton Street, Te Atatu—which is your address.
Participation in an organised criminal group
[21] In terms of your participation in the organised criminal group, by your plea you can be taken as being one of that group. You played a role in the group, as I have outlined. Self-evidently, the charge almost completely overlaps with the importing charges.
[22] Suffice to say, you were considered as a mid-level member of the group and were based in Auckland. It is said you provided the defendant, Mr Kauri Kerr, the ringleader, with an ability to import large amounts of drugs and you removed from him the risk of him getting his hands “dirty” mainly by assisting in the importation, attending to the necessary details, and acting as a “catcher” of the drugs.
[23]The total weight of the drugs attributed to your offending overall is
8.3 kilograms of methamphetamine. This is in the context of the total amount of drugs attributed to the operation as being 20 kilograms of methamphetamine—valued at between $5 million and $5.5 million. It is unknown how much money you made from your activities, but the Police advise you were unlikely to be reaping the same level of profit as the ringleader and his wife.
Failure to carry out obligations in respect of a search of your computer
[24] And I understand, when the Police asked for you to provide a number to access the phone or computer, you did not provide it, leading to the fourth charge.
[25] I have set that out in some detail Mr Gillett just so you are clear what it is you are being sentenced on.
Principles of sentencing
[26] As for sentencing, Mr Gillett, you do not need me to tell you that methamphetamine is a scourge. It is an insidious, pernicious, and corrosive drug, that can and does destroy lives from the inside out. You know this yourself, which is why you have recently been undertaking treatment. And you know that the courts take a strong view and need to denounce offending like this, and send a strong deterrent message and also promote community safety.
[27] I need to make clear in sentencing, that it is simply unacceptable to be involved in the sort of large-scale importation you were involved in. And those that are, as you admitted in your letter to the Court, can expect long sentences. You know in Northland, in particular, the damage that it does to individuals and to families and communities. All of this, I know, you would understand better than most.
[28] That said, this sentence also needs to acknowledge your personal circumstances, your background, and to assist in your rehabilitation and, hopefully, Mr Gillett, so that you can be fully integrated, one day, back into the community.
Key aggravating factors of your offending
[29]The key factors of your offending are, firstly, the amount at slightly over
8.1 kilograms. That is significant.
[30] Secondly, you had a level of participation, and involvement in an organised criminal group, that puts you at least in the middle of it. Ms Thode, and Mr Moroney today, called you a “middleman”. I think that is right. You had active knowledge of the five importations I mentioned. You contacted freight companies. You held fake driver licences to collect the imports. You were involved in paying the Customs duty. And on one occasion, at least, you collected the package from the airport and were the occupant of the car in which it was transported to Ruakākā.
[31] The third aggravating factor is that you seemed to have a close association with the leader of the group who spearheaded the organisation. As I understand it, he was a one-time friend of yours and you provided him with an ability to import large amounts of drugs and removed from him the risk of being directly involved.
Approach to this sentencing
[32] It is conventional to identify a lead charge. Here, there is no obvious choice. I propose to treat the single charge of importation as the lead charge, mainly because it is the largest by far, in terms of weight, at 5.1 kilograms, but also your involvement in this importation is far clearer and more comprehensive. Whether the starting point for that charge is uplifted, or whether I set a starting point in respect of both the importation charges, probably matters little. I will take that latter approach. It would be artificial to separate the two charges given the clear similarities in the “modus operandi” between them.
Starting point
[33] One of your co-defendants, Mr Hokai, was given a “starting point” of eight years’ imprisonment. He was at the bottom of the hierarchy. His charges related only to 1.9 kilograms of methamphetamine. So, on any analysis Mr Gillett, the starting point for you has to be significantly higher than that because your case is more serious.
[34]You must be in what is called “Band 5” set out in the case of Zhang v R.5 The
8.1 kilograms puts you there and that is a band of 10 years’ imprisonment to life imprisonment. That will have been explained to you, but I need to be frank with you.
[35]When it comes to assessing your particular role, I emphasise the following:
(a)You had ongoing involvement in multiple importations rather than as a “catcher”, as is the Police jargon, of a single importation.
(b)You had advanced knowledge of the importations.
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
(c)You had permanent false identification documents—the driver licences to enable the collection of the importations. I heard in another hearing that they were very good fake licences that would easily have been passed off as the real thing.6
(d)You had ongoing contact with the freight companies regarding the importations.
(e)You had involvement with the payment of Customs/freight fees for the importations and I have seen that involvement twice on CCTV.
(f)You had direct contact with the leader of the organised criminal group regarding the importations and following at least one importation.
[36] When I add these factors together, your lawyers are responsible to say you were a “middleman”. You must be in that category of involvement that is described in the Zhang case as “significant”. There is no evidence that you received any money. You must have received something. It might have been drugs themselves. There is no evidence that you had authority over any other people in the organised criminal group. But you have played a significant role, Mr Gillett, and there is no getting around that.
[37] At the sentencing indication I said that, in my view, the starting point would not be more than 13 years, but it would not be less than twelve-and-a-half years. Ms Thode had advocated for 11 and a half years, the Crown for 12 to 13 years. I said that indication I gave you had to be fair, bearing in mind Mr Hokai’s sentence. On reflection, given the number of importations, even given that four of them—when treated separately do not individually put you in the Zhang band 5—13 years must the minimum starting point.
6 See the disputed fact hearing in respect of your then partner, Ms Griffen; R v Griffen [2023] NZHC 3800.
[38] There is another case of R v Zagros,7 which had a 15-year starting point—for quite a different operation. But that case is even more serious than yours.
[39]13 years is a fair and realistic starting point.
[40] There will be no further uplift in any way for your many previous offences— even given that you have spent at least two sentences of 18 months and then three years or so imprisonment. Almost all of your offending is not directly related to this offending.
Consideration of personal circumstances and mitigating factors
Guilty pleas
[41] You are entitled to an agreed 12.5 per cent reduction for your guilty plea, as specified in my sentencing indication, and accepted by counsel today, given the timing of your pleas.
There have been developments since the sentencing indication
[42] I need to say that on 28 February 2024, while on electronically monitored bail at Odyssey House, Auckland, you cut off your ankle bracelet and absconded. You had been at the rehabilitation facility for about three months. You were apprehended by the Police on 8 March 2024, while a passenger in a stolen car which was understandably stopped by the Police.
[43] Your explanations for the absconding are perhaps understandable: you were finding it tough, you say, at the rehabilitation programme; the discipline was inflexible, there was a black and white approach; and, you were with others suffering from mental health issues. But in the end Mr Gillett, they are rather feeble explanations. And we need to be frank: you left, with your sentencing looming, to enjoy some last minute freedom. You participated in the Auckland Round the Bays run, connected with old girlfriends, knowing that you had a long lag to serve. And you nod in realistic acceptance of that.
7 R v Zagros [2022] NZHC 2874.
An allowance for remorse?
[44] Those events, frankly, throw into question the genuineness of what might be called remorse and your professed commitment to rehabilitation. That behaviour rules out any additional allowance for remorse.
Upbringing and s 27 matters
[45] However, I do accept that the very detailed and helpful cultural report about your family background, your history and your drug dependency must be taken into account. I can only summarise it.
[46] The first thing to say is that you have been exposed to gangs for most of your early life, your teenage years and into your twenties. Your father was a founding member of the King Cobras gang in the Grey Lynn area. Your parents never lived together as I understand it, for any length of time, but your father’s reputation and status in the criminal world grabbed your attention and you looked up to him as a role model. You wanted to be like him and indeed, you joined the King Cobras when you were 22 years old. A path that you saw as inevitable.
[47] After your father’s death, for a little while you became entrenched in the gang lifestyle, perhaps to deal with your grief and the realisation that you never had a decent relationship with your dad. You were also exposed to drugs and gangs, and it was a tough life for your mother, who is in court today, in bringing you up.
[48] Your grandparents on your mother’s side, and your mother, have all suffered from substance addiction. You began drinking alcohol and using other drugs when you were 12 years old, and that is a very common age for that sort of experimentation to start. You turned to methamphetamine when you were 14 years of age. And since the age of 24, methamphetamine has been your drug of choice, worsening after your father’s death.
[49] You have carried that addiction for more than 20 years. Clearly your previous history related to your addiction and substance abuse.
[50] Mr Moroney and Ms Thode put it this way. You were born into a whānau with a heavy gang influence and an intergenerational history of substance abuse. You adopted the patterns of some of your older family members resulting in gang association, crime, and substance addiction from a very young age. Your tendency to engage in anti-social behaviour continued throughout your adult life.
[51] Like so many men that are seen in the courts, Mr Gillett, you are a part of a cycle. In your case: grandparents, parents and now you. It does not excuse your offending. You make your own choices and as you said in your letter, “you do the crime, you do the time”. But it does explain why you are sitting where you are.
[52]The Crown says there should be little or no allowance given for that.
[53] I agree with Mr Moroney, however. Virtually from birth you were on a road that drew you into offending. Perhaps made worse by your diagnosed ADHD. You self-report the most raging methamphetamine addiction—at its worst you said you smoked seven grams of P a day. Mr Moroney said that was “herculean”. The Crown doubt it. And you say that you needed, at your worst, a gram and a half of methamphetamine to get out of bed.
[54] The cultural report quotes you as saying, “an opportunity was presented and because of my high drug use and not thinking straight, an addict mindset, I took it. I was just thinking about the next fix. But I also know you do the crime, you do the time.”
[55] It would be artificial of me not to take all that into account. I cannot ignore it. It could be calculated a number of ways. Your drug addiction in my view is causative of the offending. We could debate whether it was “operative” or “proximate”, there are all sorts of words that are used in the cases, but it at least indirectly caused you to offend and to be sitting where you are—even though it was sophisticated, long-term offending, way beyond what you would ever have needed to support your addiction.
[56] In my view, whether it is a 10 per cent allowance for your background and five per cent for the drug addiction, or the other way around or a combination of that, does
not really matter. I am prepared to give you a further 15 per cent allowance for all the factors that we have talked about. Which, I have to say Mr Gillett, is probably generous in the circumstances and it is much more than the Crown were suggesting at about five to seven per cent maximum. But I cannot read about your background and come to any other conclusion.
Rehabilitation factors
[57] Mr Moroney has made a plea to make an allowance for prospects of rehabilitation.
[58] Your absconding from Odyssey House hardly speaks of unflinching commitment to rehabilitation. But I know you attempted rehabilitation, and then you succumbed, and you ran. But you had been there for three months, so at least there is something in what your lawyer says, that you made a fist of it to start with, but then gave it away. Perhaps there can be a small allowance for the prospect of rehabilitation, because this side of heaven, Mr Gillett, if you do not beat this addiction you are ruined for life. If you do not do it this time, you never will. If nothing else in sentencing, there has got to be some hope for you.
[59] So, given the 12.5 per cent allowance for your guilty plea, the 15 per cent for the matters I have already taken into account, I am prepared to look at a small amount for rehabilitation that would bring the total allowance to 30 per cent, but that is the maximum. I am prepared to round that down to an end sentence of nine years’ imprisonment. As I say, that is a terrible price for your offending.
Minimum period of imprisonment
[60] The Crown is asking for a minimum period of imprisonment. It was not something that was discussed one way or the other at the sentencing indication.
[61] In the Crown’s view, given the high amount of methamphetamine, given that this was sophisticated, well-organised commercial importation, the ordinary parole eligibility rules would simply be inadequate here and would be insufficient to deter others, to protect here the Northland community and to clearly denounce the
behaviour. The Crown wants a 50 per cent, or four and a half year, minimum period of imprisonment.
[62] I have thought about this at some length. If it had been on the table at the sentencing indication, I think a 50 per cent minimum period of imprisonment would have been appropriate. However, there are still aspects of your offending which I think mean that parole eligibility or the parole eligibility period is insufficient, particularly because of the seriousness of this offending, and the need to protect the community. You do have to be held accountable.
[63] So, a minimum period of imprisonment in my view, is justified. In this case it is four years’ imprisonment.
Final sentence
[64]I will go through the sentences now and impose them:
(a)In respect of the first two charges of importation, you are convicted, and you are sentenced to nine years’ imprisonment.
(b)In respect of the organised criminal group involvement, you are sentenced to five years’ imprisonment.
(c)In respect of the failure to carry out obligations, you are sentenced to one month’s imprisonment.
[65] These sentences are all served concurrently. The sentence is nine years’ imprisonment and there is a minimum period of imprisonment, in your case, for the reasons I have explained, of four years.
[66]I can say no more Mr Gillett. Your sentence starts now. You may stand down.
Becroft J
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