R v Gray HC Auckland CRI 2006-004-3200
[2007] NZHC 2127
•25 September 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-004-3200
THE QUEEN
v
MARK ANTHONY GRAY, RODERICK SYDNEY HARRIS, JANE ALISON LAWFORD, QUAN HOANG LE, MICHAEL JAMES MORRIS, ROBYN ANN MOSES, CHRISTOPHER JAMES MOSLEY, DEBORAH LUCILLE WHITLEY
Hearing: 25 September 2007
Appearances: B Northwood, D McNaughton and S Symon for Crown
R Mansfield and K Brosnahan for Gray
M Gibson for Harris
M Kennedy for Lawford
M Dyrberg and T S M Spencer for Le
S Bonnar for Morris
S D Cullen for Moses
P Kaye for Mosley
S D Cassidy for Whitley
Sentence: 25 September 2007
SENTENCING REMARKS OF ALLAN J
Solicitors: [email protected] [email protected] [email protected]
Murr[email protected].nz
[email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
R V GRAY & ORS HC AK CRI 2006-004-3200 25 September 2007
[1] Mr Gray, Mr Harris, Ms Lawford, Mr Le, Mr Morris and Mr Mosley: you appear for sentence today having been found guilty by a jury on a number of drug related charges. The jury’s verdicts on 22 June 2007 followed a long trial which commenced on 12 February.
[2] Ms Moses and Ms Whitley, you likewise appear for sentence, having pleaded guilty to related charges in early February, just prior to the commencement of the trial.
[3] In the course of this long hearing I have been greatly assisted by counsels’ written and oral submissions, both for the Crown and for the defence. I have been further assisted in each case by the provision of helpful pre-sentence reports.
Factual background
[4] This offending was detected in the course of a long police investigation known as Operation Leningrad, conducted in the latter part of 2004. You were each arrested at the conclusion of that operation on 30 November 2004, or within a short time thereafter. During the course of that operation, the police carried out electronic surveillance, first on Mr Gray’s residence, and then in respect of a significant number of mobile telephones. Some of the charges relate to more recent offending, committed while some of you were on bail.
[5] Police investigations revealed a loose network of offenders, each connected to one or more co-offenders. This was not a single, tightly controlled group. Rather, each of you took opportunities to engage in drug-related transactions as the occasions presented themselves. Some of those transactions occurred between two or more of you. Some involved persons who are not before the Court. But each of you was connected to all of the others, either directly or indirectly. While you were not tightly organised as a group, and indeed some of you knew few of the others, you all had one thing in common, namely a high degree of energy and dedication to what
you were doing. It is proper to infer that, at least in most cases, your drug offending was the primary activity in your lives.
[6] First I propose to discuss each of you in turn, with particular reference at this point to the pre-sentence reports and to your personal circumstances. I will then move to a discussion of sentencing principles and guidelines, and will conclude by imposing sentence on each of you in turn. At that last stage, I will deal as necessary with the submissions for the Crown and for the defence.
Personal circumstances: pre-sentence reports, previous convictions
Mr Gray
[7] Mr Gray, you were found guilty by the jury on a single count of selling cannabis to persons unknown (count 17). That charge carries a maximum penalty of eight years imprisonment. You are 46 years of age, and single, although you have a number of children by several different women. Your early background was unremarkable. On leaving school you worked in a variety of positions, but never for particularly long, because you prefer to work for yourself. You have not had a full- time employment position for some considerable time. It appears that you have had some child rearing responsibilities in recent years.
[8] You say you no longer drink alcohol and have not done so for 10 years or so. But you have a long standing cannabis habit, which to some extent seems to underpin this offending. You say also you were a user of methamphetamine until about three years ago, that is until about the time of Operation Leningrad.
[9] You have some 14 previous convictions dating back to 1988. They include driving offences and offending involving breaches of Court orders. In addition, there are some drug offences, including possession of Class B and Class C drugs in 1997, and a minor drug offence in 2003.
[10] There is no indication in the pre-sentence report that you are minded to give up smoking cannabis. The report seems to suggest that you regard this present offending as relatively minor. It is not. While regarded by Parliament as less serious than Class A offending, the maximum penalty of eight years imprisonment for selling cannabis is evidence enough that this is by no means minor offending.
Mr Harris
[11] Mr Harris, you were convicted by the jury on three counts in the indictment. Count 2 was a charge of offering to supply methamphetamine to persons unknown. The penalty for that is life imprisonment. Count 3 alleged the manufacturing of methamphetamine. Again the maximum penalty is life imprisonment. Count 13 alleged a conspiracy to supply ecstasy to persons unknown. The maximum penalty for that is 10 years imprisonment.
[12] You are 50 years of age; and of Ngapuhi descent. You were brought up in the Far North, and appear to have had the advantage of a stable and supportive family background. You left school with University Entrance, and then for a lengthy period were involved in the charter game fishing industry. Plainly you are man of some ability, but you started using cannabis at the age of 18 and had progressed to heroin by the time you reached 21. Your cannabis use continued until 2004, and during that year you also smoked P or methamphetamine on a number of occasions. You say since 2004 you have not taken any drugs at all. However, it appears that your drug habit has taken toll of your private life. You are currently estranged from your wife of 20 years, with whom you had five sons. There are two grandchildren.
[13] You have expressed a degree of remorse for your offending to the writer of the pre-sentence report and that is repeated today by your counsel. More recently it seems you have been suffering from depression, in the light of your current offending and its consequences. Whether you are able to avoid offending in the future is debatable, but I note you propose to return to your fishing activities in the Bay of Islands when you have served your sentence, so that may assist. It is pleasing to note that you have responded to community based sentences responsibly in the past, and that overall you have a good record of compliance with court orders. But
you have some 47 previous convictions, including for driving offences and for violence. In the field of illicit drugs you have a number of convictions involving cannabis, although none for supply. You were however convicted of supplying heroin in 1990 and received a lengthy prison term for that.
Ms Lawford
[14] Ms Lawford, you were convicted by the jury on four counts, namely count 1, which alleged supply of methamphetamine; count 2 which alleged an offer to supply methamphetamine to persons unknown; count 5 which charged possession of methamphetamine for supply – all of these three counts carry a maximum penalty of life imprisonment – and finally count 18 which charged possession of cannabis for sale, for which the maximum penalty is eight years imprisonment.
[15] You are 45 years of age, come from a stable family background and received a good education, leaving school in the 6th form. You have had two long term stable relationships, and have one adult son. Several years ago you suffered a series of personal and financial misfortunes which it is unnecessary to detail here, except to say that they led to a greater dependence by you on a drug habit which goes back many years. In particular, I note that you have been on a methadone programme for some 15 years, and that your limited list of previous convictions includes minor drug related offending.
[16] Since being apprehended on these charges, you have moderated your drug use to some extent by attending a detox clinic with the community alcohol and drug service.
[17] The pre-sentence report suggests that you deny any significant culpability in respect of these offences, and the writer of the report doubts that you have the ability to extract yourself from drug related offending, given your long history of drug use and association with others who are similarly addicted.
Mr Le
[18] Mr Le, you were found guilty by the jury on count 13 which charged a conspiracy to supply ecstasy to persons unknown. Messrs Mosley and Harris were likewise convicted on that charge, the maximum penalty for which is 10 years imprisonment.
[19] Your position is markedly different from most of your co-offenders. You are just 23 years old. You came to New Zealand in 2001 from Vietnam, where you were born, to study English. Your travel and study costs, and those of a twin brother who has already been deported, were met primarily by your parents. You supplemented your income by part-time work. You told the probation officer that you spent two years studying English in Auckland and that you had intended enrolling in another English school but were unable to do so because your visa had expired. You are a single man, although you have a Vietnamese girlfriend in this country. You say you have never taken drugs or consumed alcohol or gambled. I infer you have engaged in this offending purely and simply to make money.
[20] You have been served with a removal order and will be deported to Vietnam when you have served your sentence. Your record of previous offending discloses several convictions, including receiving and a number for minor traffic offences.
Mr Morris
[21] Mr Morris you were found guilty by the jury on five counts, namely count 1, supplying methamphetamine, count 3, manufacturing methamphetamine – each of these charges carries a maximum penalty of life imprisonment – count 10, possession of precursor substances, count 11, possession of equipment and count 12, possession of material. Each of these last three counts, laid under s 12A of the Misuse of Drugs Act, carries a penalty of five years imprisonment.
[22] You are aged 41 years. After an unremarkable and apparently settled childhood you left school at the age of 16 and thereafter acquired practical skills which enabled you to become a self-employed builder. You have a 14 year old son
of a previous relationship, and now have a partner who is standing by you, and with whom you propose to relocate out of Auckland once you have served your sentence for this current offending.
[23] It appears you have been associated with drug use for a long time. There is a conviction for cultivating cannabis in 1991, more recent convictions for possessing cannabis and methamphetamine in 2002, and a yet more recent conviction for possession of utensils in respect of methamphetamine use in 2004. In total there are
15 prior convictions including some for dishonesty. On the credit side, there is a great deal of information before the court about your personal qualities and your business and practical skills.
[24] The probation report discloses your advice that you began smoking methamphetamine in about 2003, although of course your list of convictions suggests that methamphetamine related activities go back a little further than that. You say also you have not smoked it since the beginning of this year, and you are now opposed to its use in the light of what it has done to your friends and family. There is an indication in the report that you do not accept the jury’s verdict, but it must be said that the jury’s findings were well open to them on the evidence. I accept however, that you are genuine in your desire to put your drug related offending behind you. Your partner appears to be a positive influence in that respect.
Ms Moses
[25] Ms Moses, just prior to the commencement of the trial, you pleaded guilty to five counts, namely supplying methamphetamine, offering to supply methamphetamine, and manufacturing methamphetamine, all of which carry maximum sentences of life imprisonment, and conspiracy to manufacture and conspiracy to supply methamphetamine, each of which carries a maximum sentence of 14 years imprisonment.
[26] You are aged 45 years. had a conventional upbringing and come from a stable family background. You left school in the 6th form and thereafter worked in
several positions. For a considerable time you were in a steady relationship and a son was born. You have been responsible for his upbringing in recent years. For an extensive period you were heavily involved in the care of your elderly parents and of your sister’s children. Your family is reported to be shocked at this offending. That is perhaps not surprising because, quite remarkably, you have no prior criminal record at all.
[27] You told the probation officer that prior to 2004 you had had no involvement whatever with alcohol or drugs, that you were introduced to methamphetamine at a party and rapidly became addicted. Your involvement in drug dealing arose from the need to support your own habit. You told the probation officer also that while under the influence of methamphetamine, you were unable fully to appreciate the consequences of what you were doing because your behaviour was totally driven by your addiction.
[28] You were arrested in November 2004 as part of the termination phase of Operation Leningrad, but disappointingly, you went back to your earlier lifestyle. The two conspiracy charges to which you have pleaded guilty are the result of offending while on bail in 2005. You now say that you are remorseful and determined to take advantage of every opportunity to avoid future offending, including participation in any recommended treatment programmes.
Mr Mosley
[29] Mr Mosley you were found guilty by the jury on six counts in the indictment; namely count 1, supplying methamphetamine, count 2, offering to supply methamphetamine – the maximum penalty for those offences is life imprisonment – count 13, conspiracy to supply ecstasy – the maximum penalty for that is 10 years imprisonment – count 15, supplying ecstasy to Lisa Mill, for which the maximum penalty is 14 years imprisonment, and finally counts 20 and 21, which charge respectively unlawful possession of a pistol (under s 50 of the Arms Act), and carrying a pistol in a public place (under s 51 of the Arms Act), for which in each case the maximum penalty is three years imprisonment.
[30] You are a single man aged 25 years. You came to New Zealand from England when you were nine years old and seem to have encountered difficulties here from the outset. You left school at the age of just 13 years, fell in with a “bad crowd” as you put it, and were soon using alcohol, cannabis and LSD. You have a limited work record, perhaps unsurprisingly given that background. For the past five or six years you have not worked at all, your only income, apart from earnings from criminal activity, being a sickness benefit.
[31] The pre-sentence report puts your inability to work down to depression, anxiety and drug addiction. But you say you are not a methamphetamine user and your use of other drugs has been sporadic. Since your remand in custody you have, you say, been drug-free.
[32] The report writer is somewhat ambivalent about your prospects. On the one hand there is favourable comment about your increasingly positive attitude towards the issues that confront you. You have undertaken courses in prison to address lifestyle matters, alcohol and drug education issues and anger management. You have expressed a determination to turn your life around. On the other hand, there is an element of concern about your denial of some aspects of the offending.
[33] You say when you have served your sentence you intend to become a useful member of the community. It is pleasing to see that. You have the advantage of parents who remain devoted to your welfare and will be a source of on-going support for you. I note your mother attended Court on many occasions during the trial.
[34] On a more negative note, your previous criminal record is of concern. There are 36 previous convictions dating back to 2001. They comprise driving, dishonesty, property, drug and firearms offences. There is a conviction for possession of a precursor substance in 2002 and another for possession of cannabis in 2004. There is also a conviction for possession of an offensive weapon in 2003.
Ms Whitley
[35] You appear for sentence having pleaded guilty to six counts, namely of supply of methamphetamine and offering to supply methamphetamine, each of which carries a maximum sentence of life imprisonment, and of conspiracy to manufacture methamphetamine, which carries a maximum sentence of 14 years imprisonment. Then there are later offences committed while you were on bail, namely possession of methamphetamine for supply, which carries a maximum sentence of life imprisonment, conspiracy to manufacture methamphetamine which carries a maximum sentence of 14 years imprisonment, and offering to supply ecstasy which carries a maximum of 14 years imprisonment also.
[36] You are 45 years of age. You had a broadly satisfactory upbringing, but left school in the 5th form, and from an early age commenced using cannabis, a habit you have maintained throughout your adult life. Later you became a heavy user of both alcohol and valium, perhaps to enable you to deal with two violent personal relationships which lasted for some years.
[37] In 1993, as a solo parent to two children, you met your future husband. The period of your marriage was a much more stable time, but he became ill and you were obliged to nurse him through a terminal illness which culminated in his death. You also played a key role in caring for your sick parents.
[38] In 2003 you secured a cleaning contract with Housing New Zealand. That involved the management of a small staff. Initially you were introduced to methamphetamine by friends, following the death of your husband and the sudden death soon thereafter of your sister. You became associated with those dealing in methamphetamine, and from there it was a short step to dealing with it yourself. Those dealings included sales to members of your cleaning team.
[39] Apparently you have displayed some insight into your offending since your remand in custody, although of course, like Ms Moses, you committed further serious offences while on bail, following your initial apprehension.
[40] Although you have indicated that you are ready and willing to engage in suitable programmes while in prison, aimed at eliminating drugs from your life, it remains to be seen whether you are capable of achieving that objective. You allowed yourself to return to a drug dealing life following your initial apprehension and remand on bail, and so far your response to proffered treatment programmes has been only token. You did approach two separate alcohol and drug treatment providers, but you did not maintain your involvement in those programmes for any length of time.
[41] You have a criminal record comprising some 25 convictions spanning 27 years. The list discloses offences which are only moderately serious, including aggravated assault, theft, disorderly behaviour and a single rather elderly conviction for cultivating cannabis. There is nothing in your previous record which approaches the severity of the offences for which you now appear for sentence.
General sentencing principles
[42] I have taken into account those matters to which I am required to have regard under ss 7 and 8 of the Sentencing Act 2002. Provisions in those sections which are of particular importance today are:
a) The need to hold an offender accountable for the harm done to the community by his or her offending;
b)The desirability of promoting a sense of responsibility in the offender for that harm;
c) The need to denounce the conduct of an offender;
d)The need to deter that offender and others from committing the same or a similar offence.
[43] Of particular importance in drug-related offending is the desirability of consistency in sentencing, so that similar offenders receive similar sentences for
similar offences. I do not overlook the requirement that the Court impose the least restrictive outcome that is appropriate in the circumstances. That consideration must, however, be read in the light of s 6(4) of the Misuse of Drugs Act 1975, which requires that I impose a sentence of imprisonment on those of you involved in dealing with Class A prohibited substances, unless, having regard to any particular circumstances of the case, I am of the opinion that you should not be so sentenced.
[44] I need to say in that context that the fact that an offender may be an addict and has committed offences in order to feed his or her habit, is not a mitigating factor. The Court of Appeal has emphasised the need to hold such people accountable to the same extent as those who offend solely for commercial gain.
[45] The standard approach to sentencing is that set out by the Court of Appeal in R v Taueki [2005] 3 NZLR 372. The first step is to consider the offence itself including aggravating and mitigating factors relevant to the offending. That leads to the fixing of a starting point; then aggravating and mitigating factors relating to the offender (rather than the offending) are considered and an adjustment made from the starting point to reach a final sentence.
[46] It is as well to mention also the need to impose sentences in accordance with the totality principle. That means that the final sentence must reflect the totality of the offending. Although there is no binding requirement as to the way in which a final sentence is built up (R v Xie & Ors CA397/05 8 August 2006), I propose to follow the conventional approach which involves the selection of a lead offence, and the imposition of a penalty on that count, then an adjustment for totality and finally an assessment of aggravating and mitigating factors relating to the offender.
Sentencing authorities
[47] Sentencing for the supply and manufacture of methamphetamine is governed by the tariff case of R v Fatu [2006] 2 NZLR 72. In respect of methamphetamine supply, the Court identified four sentencing bands, namely:
a) Band 1, involving low level supply (less than 5 grams) and attracting a starting point of two to four years imprisonment;
b)Band 2, involving the supply of commercial quantities (5-250g) and attracting a starting point of three to nine years imprisonment;
c) Band 3, involving the supply of large commercial quantities (250-
500g) and attracting a starting point of eight to 11 years imprisonment;
d)Band 4, involving the supply of very large commercial quantities (500g or more) and attracting a starting point of between 10 years and life imprisonment.
[48] The Court also provided guidelines for offending involving the manufacture of methamphetamine; an exercise which can be problematic given that there will often be no evidence as to the precise quantities involved. That being so, as the Court noted, the sentencing Judge may take into account evidence such as intercepted communications, cash movements, tick lists, and the quantities of associated chemicals found by the police, in the course of making findings of fact as to the scale of the offending.
[49] The Court noted also that offences involving the manufacture of methamphetamine will almost always involve significant commerciality. That is because the difficulty, expense and risk involved in manufacturing methamphetamine render it inherently unlikely that such an operation would be set up to produce drugs purely for personal consumption.
[50] The Court’s categories in respect of methamphetamine manufacture relevant to this case are:
a) Band 2, involving manufacturing up to 250 grams and attracting a starting point of four to 11 years imprisonment;
b) Band 3, involving the manufacture of large commercial quantities –
250-500g and involving starting points of between 10-15 years imprisonment;
c) Band 4, involving the manufacture of very large commercial quantities (500g or more) and attracting a starting point of 13 years imprisonment to life imprisonment.
[51] Given the detailed guidelines laid out in Fatu there is limited utility only in referring to other cases, although some attention must be given to them in order to ensure overall consistency in sentencing. Having considered a number of authorities, I propose to mention only one or two. R v Bryan CA239/05 6 July 2006, is of particular assistance in that it underscores the need, remarked upon at [43] of Fatu, to take into account not only quantity and likely yield, but also the place of an individual offender in the hierarchy of offenders. It is appropriate also to refer to R v Vitali HC AK CRI 2005-004-20376 29 August 2006. That is because Mr Vitali was apprehended in the course of Operation Leningrad, and in some respects is a co- offender of some of you now appearing for sentence. Mr Vitali pleaded guilty to charges of supplying methamphetamine and of manufacturing methamphetamine between August and November 2004, that is during the course of Operation Leningrad itself. Moreover, as is the case in respect of certain of you who appear today, Mr Vitali re-offended while on bail. As a result he faced further charges, both of supplying and manufacturing methamphetamine, between 30 March and
22 November 2005.
[52] The total weight of methamphetamine supplied in that case was in the region of 170 grams, the Judge holding that the case came near the top end of band 2 of the Fatu categories. Although the quantities involved in the manufacturing offending could be the subject only of a broad assessment following the drawing of appropriate inferences, the Judge held that the manufacturing offending fitted within band 2 and possibly band 3 of the Fatu categories. Mr Vitali pleaded guilty. The Judge took a starting point of 10 years imprisonment, reduced by three years for the guilty plea, so resulting in a finite sentence of seven years imprisonment on the lead manufacturing
charge. The remaining charges attracted lesser concurrent sentences. The court declined to impose a minimum period of imprisonment.
[53] In addition, I have considered a number of other recent authorities on the supply and manufacture of methamphetamine. They include R v Murphy CA198/05
23 November 2005, R v Sui HC CHCH CRI 2005-009-13774 5 May 2006, R v Clark
HC HAM CRI 2005-019-9332 5 September 2006, R v Pitts HC CHCH CRI 2005-
009-13766 11 September 2006, R v Arthars and Torpy HC WHA CRI 2005-011-
238 26 October 2006, R v Anderson HC AK CRI 2004-090-11438 24 November
2006, R v Curlett HC AK CRI 2007-044-619 17 April 2007 and R v Phuan HC AK CRI 2006-004-13431 19 July 2007.
Conspiracies
[54] In determining culpability in conspiracy cases it is necessary to take into account the nature and scope of the conspiracy and the extent to which the individual offender has participated and persisted in it: R v Henry [1997] 1 NZLR 150 at 152. I propose to follow the approach adopted in R v Walters HC AK CRI 2005-488-013
17 May 2005, and in R v Savage HC WHA CRI 2005-029-1267 21 July 2006. I start in the case of conspiracy offences by taking the appropriate starting point for the substantive offence, and adjusting that starting point downwards to reflect the lower maximum sentence for conspiracy offending.
Ecstasy (MDMA)
[55] Sentencing for offences involving Class B drugs is governed by the Court of Appeal decision in R v Wallace and Christie [1999] 3 NZLR 159. The court there indicated that only in special circumstances would a non-custodial sentence by justifiable for Class B drug offending, personal circumstances being relegated in importance to the need to deter dealing in drugs. Three broad categories of offending were identified; for smaller commercial operations but representing commercial dealing, starting points of up to five years imprisonment are warranted. Commercial manufacture or importation on a substantial scale with operations
extending over a period of time can be expected to attract a starting point of between five and eight years imprisonment, whilst commercial activity on a major scale will involve starting points of between eight and 14 years imprisonment.
[56] Again, I have considered a number of authorities: R v Hooker CA184/03
28 August 2003; R v Mataa CA174/03 25 September 2003; R v Waterworth HC AK CRI 2005-004-14461 2 November 2006, R v Harriman HC AK CRI 2005-004-
14921 22 February 2007; R v Brown HC AK CRI 2005-004-14921 23 March 2007;
and R v McGregor HC AK CRI 2003-044-2778 4 February 2005.
Cannabis
[57] The tariff case for cannabis offending is R v Terewi [1999] 3 NZLR 62. That case concerned the cultivation of cannabis but it has since been applied by analogy to cases involving the sale of cannabis. There, three categories were discussed; category 1 involves the cultivation of a small number of plants for personal use only. That will ordinarily attract a non-custodial sentence. Category 2 encompasses small scale cultivation for a commercial purpose. The starting point there will ordinarily be between two and four years imprisonment, although where sales are infrequent and of very limited extent a lower starting point might be justified. Category 3, the most serious class of offending, involves large scale commercial growing requiring a considerable degree of sophistication and organisation. The starting point in that category will generally be four years imprisonment or more.
Preliminary remarks
[58] In a moment I propose to deal with each of you in turn. I will in each case deal with the issues which are relevant to the determination of an appropriate sentence, and indicate to each of you what that sentence will be. At the conclusion of the process, I will ask you all to stand and at the end of the hearing I will formally impose sentence. But before I do any of that I want to speak for a moment about the important issues that underlie today’s hearing.
[59] All of you have been found guilty of, or pleaded guilty to, serious drug offending. For most of you that involves methamphetamine, a Class A drug. Sentencing for methamphetamine offences has become a depressingly regular routine for the Judges of this Court. Over and over again we have pointed out the dangers that hard drugs, and methamphetamine in particular, represent to our society. The word “pernicious” is often used to describe it. I have sometimes called it a “scourge” on our community. But however it is described, one thing is certain; methamphetamine has been responsible for untold human misery in this country. It has ruined lives both directly and indirectly. We are dealing here with a substance that so often provides the fuel that leads to some of the most violent crimes imaginable. I need to point out to you that I am bound to take those considerations into account in the sentencing process, both because the community expects it, and because the maximum penalties laid down by Parliament demand it.
Mr Gray
[60] Mr Gray, you are for sentence on a single count only, namely that of supplying cannabis. The Crown case is that you were a regular and consistent dealer in cannabis, purchasing significant quantities and either reselling that for a profit or for the most part, selling smaller quantities to your associates. You traded from your home. The Crown has referred to a number of passages in the transcripts of recorded conversations which, it contends, establish that the quantity of cannabis sold by you exceeded two pounds. As part of the Crown calculations reference is made by you to “four and a half” as the purchase price for one particular sale (p 827). The Crown says this is more likely to be a reference to $4,500 for a pound, but counsel accepts that it could refer also to $450 for an ounce.
[61] Mr Mansfield submits that for present purposes the Court must adopt the alternative most favourable to the prisoner. I agree. To do otherwise would be to engage in impermissible speculation.
[62] The Crown relies also on your debt collecting activities. Specific reference is made by the Crown to your having at one stage, $20,000 in outstanding debts and to evidence of actual collections of some $6,600. Mr Mansfield points out however,
that there is evidence that you were engaged in the buying and selling of various commodities and that some of your trading was lawful. In your favour I infer that some at least of the debt collecting must have related to such trading, but I am satisfied that at least a significant portion of the debt collecting related to your cannabis business, because that is precisely what it was. The regularity of your references throughout the transcript to having made supplies to a range of people, provide justification for the Crown submission that you were engaged in a consistent drug dealing exercise.
[63] Mr Mansfield agrees with the Crown submission that this offending falls within the second category in Terewi which encompasses small scale commercial offending with a starting point of two-four years imprisonment. However, he submits that because Terewi is primarily concerned with cultivation which self- evidently adds to the total amount of the drug available for supply, there ought to be some reduction where the charge is selling cannabis.
[64] The cases on cannabis offending do not reflect that approach. It is to be remembered that, without a market and without dealers who operate in the market, the commercial cultivation of cannabis would be pointless. I accept that the distinction has been made in the context of more serious drug offending, but I am bound to apply the principles now well accepted in sentencing for cannabis related offences. In my view, this case falls at about the mid-point of the available range for category 2 offending, and the appropriate starting point is three years imprisonment.
[65] This was relatively small scale offending, but plainly commercial in character and plainly regular and consistent. Counsel for the Crown submits that the starting point ought to be closer to four years imprisonment, but it is to be remembered that although your house was searched on two occasions, no significant quantity of cannabis was found. In my view the Crown is unable to demonstrate that the case should be placed towards the top of category 2 of Terewi.
[66] I am unable to identify any relevant mitigating factor. Earlier I referred to your criminal history. There is previous drug offending, although nothing involving drug dealing. Mr Mansfield submits that you ought to be treated as a first offender,
and that a discount should be allowed on that account. I am not prepared to do that. You have convictions in 1997 for possession of both Class B and Class C drugs, and there was a further minor drug offence in 2003. Mr Mansfield refers also to the fact that you have an established place in the community, and he mentions your considerable business activities and range of contacts. While that distinguishes you to some extent from those whose lives are wholly devoted to unlawful drug related activities, it is not a factor which justifies a discount.
[67] Moreover, and importantly, there is no meaningful expression of remorse and no indication that you are taking any steps to alter your lifestyle. Indeed, you continue to maintain your innocence. Accordingly, there is nothing on that score to justify a reduction in your sentence from the starting point of three years imprisonment.
Mr Harris
[68] Mr Harris, you present something of a sentencing problem, because there are some features of your offending which are relatively unusual. The Crown says that the lead offending is the guilty verdict on the manufacturing count. Ordinarily that would be so, and Mr Gibson does not object. The difficulty arises from the fact that it is common ground that the jury’s guilty verdict relates to a single instance of manufacture at Kupe Street, on or about 31 October 2004. That was a limited exercise. It seems you were attempting to rework the residues of a past manufacturing operation in the hope that it might result in a further few points of methamphetamine. There is however a suggestion in the evidence that you had obtained a supply of pseudoephedrine pills and were embarking on a second cooking operation.
[69] The actual yield from your manufacturing activities is uncertain. There may have been very little, although you did say at one point that the ultimate outcome had been 100% successful. There is evidence that the equipment you used belonged to others, and so no inference of continuing manufacturing activity can be drawn from your possession of equipment. Moreover, although a clan lab team inspected the
premises, no detailed investigations were carried out and no evidence of significant manufacture was identified.
[70] In those circumstance, it is appropriate, as Mr Gibson submits, to treat this offending as a single instance of methamphetamine manufacture involving limited quantities, and indeed, that is the Crown position also. But that is not to say that the offending ought not to be classified as commercial in character. You were plainly involved throughout the relevant period in significant drug related activity, and of course the guilty verdict in respect of offering to supply methamphetamine reflects that.
[71] In R v Fatu the Court of Appeal observed that there is almost always a commercial element to an offence of manufacturing methamphetamine. In this case a 10 litre plastic drum associated with you, Mr Harris, was found at Kupe Street. It contained pseudoephedrine. That tends to suggest that manufacturing involving somewhat greater quantities had either occurred or was contemplated. While it would not be proper to sentence you on the basis of quantities calculated by reference to precursor substances, the presence of the plastic drum and its contents does confirm the commercial character of what was going on.
[72] In my view, the appropriate starting point in respect of the manufacturing charge is four years imprisonment, that being the lowest starting point identified by the Court of Appeal in Fatu in respect of category 2.
[73] It is necessary then to consider the remaining offending, and to determine what uplift ought to be added, in order to reflect the totality of the offending. I refer first to the offering to supply count. The jury acquitted you on count 1 which alleged an actual supply or supplies of methamphetamine, but convicted you on the offering charge. It is a reasonable inference that the jury concluded there was insufficient evidence to establish beyond reasonable doubt that you had actually supplied anyone with methamphetamine during the period of the representative count, but that, as was undoubtedly the case, you had made offers to supply, intending that those offers be taken seriously. The offers were of very substantial quantities indeed. For example, there was a great deal of evidence relating to one particular occasion upon which you
said you had one ounce of methamphetamine for sale for $14,000. On another occasion you appear to have been looking for a customer for some five ounces of methamphetamine.
[74] But as Mr Gibson submits, there is a real doubt as to whether in reality you were able to supply anything. On the face of it the quantities involved are large, but where the offender has no ability to fulfil an order, a lower starting point than that prescribed by R v Fatu will be justified: R v Paul HC AK CRI 2006-404-571 20
June 2006.
[75] I must take into account also your ecstasy offending. It is not possible to determine precisely what quantities were in issue on the conspiracy charge. Another complication is that there must be a doubt as to whether you were in a position to carry through in any event, your part in the conspiracy, having regard to what Mr Gibson calls your limited ability to make good on your promises.
[76] It is appropriate I think to add one year for totality, and to add a further six months to recognise as an aggravating factor your poor previous record, which includes a number of drug related convictions, including one for supplying heroin. That makes a total of five and a half years imprisonment. There are no mitigating features and so that will be the sentence.
Ms Lawford
[77] Ms Lawford you were convicted of both supplying and offering to supply methamphetamine, and of possession of methamphetamine for supply. The lead offending is the supply charge, but there is little accurate evidence of quantities. The examples relied upon by the Crown are problematic in that it is not possible to deduce the quantity involved on any particular occasion. However, counsel are agreed that you were engaged in methamphetamine supplies at a commercial level. Ms Kennedy submits that you were a street level dealer, and I think that accurately sums up the position. When apprehended by the police you were in possession of a quantity of methamphetamine, but not enough to attract the statutory presumption.
You had a number of point bags, a set of scales bearing traces of methamphetamine, a quantity of cash and other similar indicia of relatively low level trading.
[78] In my opinion, the case falls at the lower end of band 2 of the Fatu categories. The appropriate starting point is four years imprisonment, but that will take account of the other methamphetamine based offences. In other words, it includes an allowance for totality. That approach simply reflects the reality of what was occurring. You were a highly active member of this group, having close links with Mr Vitali and with Ms Moses, and engaging in a great many communications with a wide range of persons, aimed at securing methamphetamine supplies. The jury’s verdicts are a reflection of those activities, but I think that a starting point of four years imprisonment sufficiently takes into account all of your methamphetamine related offending.
[79] There is a further conviction for possession of cannabis for sale. That finding was inevitable given the statutory presumption. Ms Kennedy submits that, given you were acquitted on a charge of selling cannabis, it would be proper to regard the
49 grams with which you were found as representing a stock to which you proposed to resort for your own needs and those of associates, but not on a significantly commercial footing. I doubt whether that necessarily is a logical consequence of the acquittal, but in any event I have decided that the cannabis offending can be dealt with by way of a concurrent sentence.
[80] There are no significant mitigating features. In the result, the overall sentence will be four years imprisonment.
Mr Le
[81] Mr Le you were found guilty by the jury on a single count of conspiracy to supply ecstasy. That conspiracy involved your dealings with Mr Mosley. The precise quantities of ecstasy pills contemplated during the course of the offending is uncertain but there is evidence that you intended to supply 1000 Mitsubishi pills to Mr Mosley, if he wanted them. A figure of about $30 per pill was discussed, so this was clearly commercial offending. There were other occasions upon which you
discussed with Mr Mosley the possibility of obtaining supplies from your own source, and in that context you agreed to see what could be done about obtaining prior samples.
[82] You do not take drugs yourself, and there was no suggestion that you were involved in any other drug related activities. This appears to have been opportunistic offending, driven simply by financial motives. You had your sources but overall the operation was not highly organised. Substantial quantities were contemplated, but on the other hand, you appear to have been something of a go-between and not a source in your own right.
[83] In my opinion the offending falls within the lowest of the three categories identified in Wallace and it calls for a starting point of three and a half years imprisonment. From that I am prepared to deduct six months to take account of the remorse which you have expressed through your counsel, and the fact that until now you have not been involved in drug related crime. I do not accept that it is appropriate further to reduce the sentence to take account of the fact that you will be deported when you have served your sentence. Nor do I accept that you should be treated differently by reason of your Vietnamese nationality, or because you will have limited family support in prison: R v Ahlquist [1989] 2 NZLR 177 at 179; R v Zhang CA437/03 3 June 2004, and R v Zhang CA56/05 24 May 2005.
[84] The end result will be a sentence of three years imprisonment.
Mr Morris
[85] Mr Morris, the jury found you guilty on both manufacturing and supply charges in respect of methamphetamine. The transcript evidence is replete with discussions between you and others about your manufacturing activities. Notable among those conversations is your discussion with Ms Whitley on 10 November
2004 in which you say you have 3000 Contact NT pills, and that you would be able to make $24,000 from them in a single day. The Crown places significant reliance on that. Counsel for the Crown says that a conservative methamphetamine yield
from that quantity of pills would be 135 grams, although a different calculation based on different assumptions would produce a figure of 270 grams.
[86] Given the surrounding evidence which demonstrates your involvement in continuing methamphetamine activities late in 2004, the Crown says it is proper to draw the inference that you did actually manufacture methamphetamine using the Contact NT pills, and that it is appropriate to proceed on the basis that the quantities manufactured by you were no less than 135 grams.
[87] Beyond that, there is evidence that you were engaged throughout the period in manufacturing operations on a consistent and regular basis. The jury’s verdict suggests that they were satisfied that you were manufacturing with Mr Vitali at McPike Road. No precise figures are available of course, but given the scale of the operation which you yourself described, the Crown says that the evidence viewed overall, justifies the view that the total produced by you would have been significant and sufficient to place you in band 3 of Fatu. Mr Bonnar argues that the episode involving the 3000 pills relates to the production of pseudoephedrine and that the dollar figures bear that out. There is substance in that argument. Mr Bonnar also takes issue with certain other episodes relied on by the Crown. Any doubts about that however must be resolved in your favour, and accordingly I place you for sentencing purposes at about the middle of band 2 of the Fatu categories for manufacturers which reflects Mr Bonnar’s submissions. A starting point of seven years imprisonment is appropriate.
[88] Then there is the supply offending. The Crown analysis suggests that you supplied a total amount of about 127 grams of methamphetamine. Certain aspects of the Crown analysis might be open to dispute, but the jury’s verdicts indicate that they accepted that you were engaged, as the Crown contended, in the making of commercial supplies. On your behalf, Mr Bonnar accepts a supply of 14 grams to Ms Whitley and limited other supplies to her. But for the most part the Crown’s figures are disputed. The supply offending is, in my view, properly placed at the lower end of Band 2 of Fatu.
[89] I need to take into account also the guilty verdicts in respect of equipment and materials at Trig Road. That offending occurred of course while you were on bail for the Operation Leningrad offending, so that is an aggravating factor. But I bear in mind your acquittal on the later manufacturing charge. Your previous record includes some drug offences, although none approaching the seriousness of the charges now before the Court. I put your previous record aside for present purposes.
[90] In my opinion the seven year starting point appropriate on the lead charge, manufacturing, must be supplemented by a further 12 months imprisonment to take account of the 2005 offending, and of the fact that those offences were committed whilst you were on bail. The uplift does not take into account the supply count, which I view as part of the overall 2004 offending.
[91] I appreciate that you were under a certain amount of pressure to continue offending during 2005, but that offending was quite distinct from the Operation Leningrad matters, and requires separate recognition. I am prepared to deduct nine months however, in recognition of your remorse and the determined efforts you are making, supported by your partner, to resurrect a life characterised in the past by a certain level of achievement. So the sentence will be seven years three months imprisonment.
Ms Moses
[92] Ms Moses, the lead offending is the charge of supplying methamphetamine. Counsel have agreed that the weight to be taken into account for present purposes is
320 grams. That places you towards the lower end of band 3 of Fatu and in my view should attract a starting point of nine years imprisonment.
[93] It is necessary to consider an appropriate uplift in order to take account of the totality of your offending. Of importance is the fact that you pleaded guilty to manufacturing methamphetamine, as I understand it as a party, but nevertheless, as Mr Northwood submits, as someone who was close to the actual cook. I must also take account of the fact that the conspiracy charges arose from offending that
occurred in 2005, after your initial apprehension as part of Operation Leningrad. The appropriate uplift to reflect all of that is a further two years imprisonment.
[94] That leads to a starting point of 11 years imprisonment. From that figure I accept there must be a significant reduction to reflect your guilty plea, finally entered on 7 February 2007, but signalled to the Crown much earlier, in about April 2006. Procedural considerations have prevented the formal entry of a plea until much later. I regard the guilty plea as having been entered at the earliest reasonable time, and accordingly deduct three years from the starting point to recognise both the guilty plea and the remorse you have expressed and the insight you have displayed into your offending.
[95] I propose to deduct a further six months as well, in order to recognise the complete absence of any prior offending. That is an unusual circumstance in cases such as these, and to some degree bears out your claim that your involvement in the drug world and in criminal offending is of recent origin. In the result, I propose to deduct a total of three and a half years from the starting point of 11 years, so producing a total 7 and a half years imprisonment.
Mr Mosley
[96] Mr Mosley, in your case the lead offence is plainly that of supplying methamphetamine. At trial there was transcript evidence of a very substantial number of transactions in which you were involved. The Crown has submitted a schedule by reference to which it is submitted that actual supplies, totalling at least
322 grams, have been proved beyond reasonable doubt. Mr Kaye does not challenge the evidence to which the Crown has referred, but points out that for the most part, actual supplies can be established only by drawing appropriate inferences, and that at least in some cases, what the Crown regards as evidence of supply, may be no more than evidence of an offer to supply.
[97] On the other hand, the Crown says that it has left out of account a significant number of smaller transactions which, taken together, appreciably increase the total quantity involved over the period of the offending. It is impossible to reach any
concluded view as to the precise quantity of drugs actually supplied, but counsel are not far apart as to the correct approach to Fatu classification. The Crown says the offending fits the upper range of band 3 of Fatu on the footing that you sold well in excess of 322 grams of methamphetamine. On your behalf Mr Kaye, while disputing some of the supplies relied on by the Crown, says the acknowledged level of drug related sales activity places the case at the top of band 2.
[98] I am satisfied that the evidence referred to by the Crown establishes actual supplies of an order justifying a starting point of nine years imprisonment, which places the case at the top of band 2. But it is necessary to increase that term in order to reflect the totality of your offending.
[99] The Crown has not dealt separately with count 2 which covers offers to supply. I take it that the Crown’s approach is this offending is subsumed in count 1, and should attract a concurrent sentence. However, there is a need for an uplift in respect of the remaining charges. In my view you were the leading figure in the ecstasy conspiracy. You dealt with both Mr Harris and Mr Le and played an active role in promoting possible ecstasy sales. You had at least one associate who was prepared to take such pills as you could source, and as I have mentioned in relation to Mr Le, the contemplated quantities were substantial. In one case 1000 pills were available, at about $30 per pill.
[100] Then there are the firearms offences. No doubt the firearms were kept for protection. But the court customarily recognises as an aggravating factor the carrying of firearms since that adds an appreciably increased risk of serious violence to the overall offending. In all I think that there must be an increase of 18 months to recognise the totality of your offending, making a total penalty of 10 and a half years imprisonment.
[101] There are no further aggravating features. Your criminal record, although disappointing, contains nothing which would warrant a further increase to the overall penalty. Neither however, are there any significant mitigating factors. Having said that, I have read with care the documents in the folder handed up today. There are letters from you and your parents which suggest that you may well have a positive
future. I am impressed in particular by the level of your determination to put behind you this unhappy period in your life.
Ms Whitley
[102] Ms Whitley, the lead offending here is that of supplying methamphetamine. To some extent you are in a similar position to that of Ms Moses. Following discussions between counsel it is agreed that the amount supplied by you was 297 grams. That places the offending at the lower end of band 3 of Fatu and so attracts on my view a starting point of nine years imprisonment.
[103] To that it is necessary to add something for totality, in order to recognise the other offending. That consists of offering to supply methamphetamine and conspiracy to manufacture it during the Operation Leningrad period, and then further offences committed while you were on bail, namely: possession of methamphetamine for supply, conspiracy to manufacture methamphetamine and offering to supply ecstasy. There must be express recognition of the fact that the last three offences were committed while you were already on bail for Operation Leningrad offending, and of course they are offences committed on a discrete occasion. The appropriate uplift in my view is 18 months, which produces a total starting point of 10 and a half years imprisonment.
[104] From that you are entitled to a significant reduction to recognise your guilty plea, and a degree of contrition. Although the guilty plea was formally entered only on 7 February 2007, just a few days prior to the commencement of the trial, you had signalled your intention to plead guilty by April 2006. For procedural reasons it was not possible for a formal plea to be entered until February of this year. I treat you as having entered a guilty plea at the earliest feasible time, and therefore allow a discount of three years, which produces an overall sentence of seven and a half years imprisonment.
Minimum period of imprisonment
[105] On behalf of the Crown, Mr Northwood submits that the imposition of a minimum period of imprisonment is warranted in respect of Mr Morris, Ms Moses, Mr Mosley, and Ms Whitley. I have carefully considered the provisions of s 86(2) of the Sentencing Act, which provides that the Court may impose a minimum period of imprisonment if satisfied that the minimum period of one-third otherwise applicable under the Parole Act 2002, will be insufficient for any, or all, of the following purposes:
a) holding the offender accountable for the harm done to the victim and the community by the offending;
b) denouncing the conduct in which the offender was involved;
c) deterring the offender or other persons from committing the same or a similar offence;
d) protecting the community from the offender.
[106] The Crown’s submissions on this point are responsibly made and there is a certain amount of substance in them. However, after reflection, I have concluded that the objectives of s 86(2) will be sufficiently met by the imposition of the sentences of imprisonment to which I now turn.
Sentencing
[107] Mr Gray, on count 17 you are sentenced to three years imprisonment.
[108] Mr Harris, on count 3, manufacturing methamphetamine, you are sentenced to five and a half years imprisonment. On count 2, offering to supply methamphetamine you are sentenced to three years imprisonment. On count 13, conspiracy to supply ecstasy you are sentenced to three years imprisonment. All
sentences are to be served concurrently. The overall result is a sentence of five and a half years imprisonment.
[109] Ms Lawford, on count 1, supplying methamphetamine, you are sentenced to four years imprisonment. On count 2, offering to supply methamphetamine, you are sentenced to two years imprisonment. On count 5, possession of methamphetamine for supply, you are sentenced to two years imprisonment. On count 18, possession of cannabis for sale, you are sentenced to 12 months imprisonment. All sentences are to run concurrently. The effective sentence is four years imprisonment.
[110] Mr Le, on count 13, conspiracy to supply ecstasy, you are sentenced to two and a half years imprisonment.
[111] Mr Morris, on count 3, manufacturing methamphetamine, you are sentenced to seven years three months imprisonment. On count 1, supplying methamphetamine, you are sentenced to four years imprisonment. On each of counts
10, 11 and 12 which relate respectively to the possession of precursor substances, equipment and materials, you are sentenced to 18 months imprisonment. All sentences are to be served concurrently, so the effective sentence is seven years three months imprisonment.
[112] Ms Moses, the counts upon which you appear for sentence do not appear in the most recent version of the indictment. I therefore refer to the offences themselves rather than to the relevant count in the indictment. The same situation applies to Ms Whitley. On the count of supplying methamphetamine, you are sentenced to seven and a half years imprisonment. On the count of offering to supply methamphetamine you are sentenced to three years imprisonment. On the count of manufacturing methamphetamine you are sentenced to four years imprisonment. On the count of conspiracy to manufacture methamphetamine you are sentenced to two years imprisonment. On the count of conspiracy to supply methamphetamine you are sentenced to two years imprisonment. All sentences are to run concurrently. The effective sentence will be seven and a half years imprisonment.
[113] Mr Mosley, on count 1, supplying methamphetamine, you are sentenced to
10 and a half years imprisonment. On count 2, offering to supply methamphetamine, you are sentenced to three years imprisonment. On count 13, conspiracy to supply ecstasy, you are sentenced to four years imprisonment. On count 15, supplying ecstasy to Lisa Mill you are sentenced to 12 months imprisonment. On count 20, unlawful possession of a pistol, you are sentenced to 12 months imprisonment. On count 21, carrying a pistol in a public place, you are sentenced to 12 months imprisonment. All sentences are to be served concurrently. The effective sentence is 10 and a half years imprisonment.
[114] Ms Whitley, on the charge of supplying methamphetamine you are sentenced to seven and a half years imprisonment. On the charge of offering to supply methamphetamine you are sentenced to three years imprisonment. On each of the two charges of conspiracy to manufacture methamphetamine you are sentenced to two years imprisonment. On the charge of possession of methamphetamine for supply you are sentenced to two years imprisonment, and on the charge of offering to supply ecstasy you are sentenced to two years imprisonment. All sentences will be served concurrently. The effective sentence is accordingly seven and a half years imprisonment.
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