R v Green
[2016] NZHC 770
•22 April 2016
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-088-003309 [2016] NZHC 770
THE QUEEN
v
JASMINE GREEN
Hearing: 22 April 2016 Appearances:
R Annandale for Crown
J Young for DefendantSentence:
22 April 2016
SENTENCING REMARKS OF LANG J
R v GREEN [2016] NZHC 770 [22 April 2016]
[1] Ms Green, you appear for sentence today having pleaded guilty some five months before your trial to a charge of participating in an unlawful organised criminal group. The maximum penalty for that offence is ten years imprisonment.
[2] I take the facts underlying your offending from a summary of facts that has been provided to the Court. It has been provided to the Court on the basis that you accept the statements made in the summary of facts as being true and correct. That principle assumes some importance today, because some of the submissions made by your counsel in her written submissions are at variance with matters contained in the summary of facts. To the extent that that is so, I must put those submissions to one side and impose a sentence based on the factual circumstances disclosed by the summary of facts.
Background
[3] Your offending arose out of a large police operation, code-named Operation Easter. It was targeted at the manufacture of methamphetamine in the Northland area, and then the distribution of the methamphetamine through a network of dealers. Those needing the enterprise had close gang affiliations.
[4] You were not initially a target of the operation. The police only became aware of your involvement after they obtained warrants authorising them to intercept electronic communications by members of the group. Through these, they discovered that you were involved in the group as a person who held cash on behalf of the leader of the group. At that time you were in a relationship with this person, Mr Brownie Harding. You were in a relationship with him for some four years. You had a daughter by Mr Harding, who is now two years old.
[5] The communications revealed that a large methamphetamine manufacturing operation was being conducted from a rural property in Northland. The police monitored this property for a period of about ten weeks from the end of September
2014 to mid-November 2014. During that time they were able to observe methamphetamine being manufactured on the premises on no fewer than six occasions. Very large quantities of methamphetamine were manufactured.
[6] The summary of facts records that up to nine kilograms of methamphetamine are likely to have been manufactured, which is an extraordinarily large amount by any standards. It is in fact one of the largest, if not the largest, manufacturing cases ever to come before the courts in New Zealand.
[7] There is no suggestion that you had any role at all in the manufacturing side of the operation, or realistically speaking in the distribution of the methamphetamine. Rather, through your association with Mr Harding you became a person trusted to hold large amounts of cash derived from the sale of the methamphetamine. The summary of facts indicates that you stored the cash with others and in particular with two other persons, Mr Paroa and Ms Samuels. It seems that the principal sum entrusted with them was the sum of $80,000. There was considerable discussion about this sum in text messages between and Mr Harding. It became a point of friction between the two of you, because he believed that some of the cash had gone missing. You went out to the address where the cash was being stored and counted it. You then reported to him that the money was all there, and you also confirmed that the amount being held at that time was $49,000.
[8] Two other events are of significance in relation to your offending. The first of these occurred on 30 October 2014. On that date, you drove with Mr Harding to Auckland where you went to a motel. You remained at the motel while he went to a gang headquarters. A short time later he sent you a text message saying that a gang member would be coming around for one of the “little ones”. You acknowledged this message. A short time later the police observed a vehicle to leave the gang headquarters and drive to the motel where you were waiting. The summary of facts records that a supply of either .1 of a gram of methamphetamine or one gram of methamphetamine occurred.
[9] You were originally charged with supplying this methamphetamine, but the Crown has elected to offer no evidence on that charge and I now discharge you on it. Nevertheless, it was agreed that the transaction would remain within the summary of facts and so I am entitled, and indeed obliged, to take account of it in imposing sentence. I proceed on the basis that the supply was of .1 of a gram of
methamphetamine. I must do that, because I cannot be satisfied beyond reasonable doubt that the supply was one of a full gram.
[10] This aspect of your offending raises two issues. First, it demonstrates conclusively that you knew exactly what Mr Harding was involved in. That is important, because you have indicated through your counsel and the pre-sentence report that you believed the sums of cash were coming from Mr Harding’s gambling habit. I have no doubt that you knew exactly what he was involved in.
[11] Secondly, it shows that, on one occasion, your involvement went beyond the mere storage of cash and into the realm where drugs were involved. Having said that, I accept that it was a supply at the bottom end of the range. By withdrawing the charge the Crown must be taken to accept that you were largely acting as the instrument of Mr Harding on the occasion on which it occurred.
[12] The second incident of relevance occurred on the following day, 31 October
2014. On that day you and Mr Harding went to a jewellery shop in Auckland. The two of you selected three items of jewellery having a value of approximately
$14,000. Mr Harding then sent you away to uplift the cash to pay for the items from the place where you were storing it. You returned to the store, and paid for the items. The Crown suggests that this can be construed as you buying the items for Mr Harding. I do not agree. I consider it was Mr Harding buying the items for himself using his own cash that you had stored for him.
[13] One of the submissions made on your behalf today is that you became involved in this offending out of a sense of naivety. It is also suggested by your counsel, and by you in the letter that you presented to me at sentencing, that you were the subject of domination by your partner. I accept that both those assertions may have some truth to them. I accept that Mr Harding is likely to have been a dominating character and that you were probably in a difficult position given your relationship to refuse his requests. I also accept that, because of the disparity in your ages — you at 21 years of age and he was 38 years of age — you may have acted in a somewhat naïve manner. However, the tone of the text message exchanges between you and Mr Harding demonstrates that you were a willing participant in this
enterprise, and you were also not frightened to speak your mind and to stand up to him. So I temper the submission made on your behalf about your naivety with that fact.
[14] Importantly, however, the Crown is unable to point to any material benefit that you gained out of the offending. In particular, it cannot point to the fact that you received money for your services or that you were paid in methamphetamine as is commonly the case in these types of enterprises. You have never become involved in using methamphetamine, so you had no need to receive payment for your services in that form. That being the case, you effectively acted on a voluntary basis in assisting Mr Harding in the ways that you did. The fact that you did not receive any reward, however, is a factor that I consider lessens the culpability of your offending.
Starting point
[15] The first exercise in the sentencing process is to fix a starting point for the sentence to be imposed upon you. That is the sentence that would be imposed having regard to the culpability of the offending itself, but not taking into account any factors that are personal to you.
[16] In fixing that starting point, I am required to take into account the purposes and principles contained in the Sentencing Act 2002. In any case of serious drug offending, issues of deterrence and denunciation are to the forefront. The imposition of deterrent sentences is the only way in which the courts can bring home to the offender and others who may be tempted to become involved in similar activity the seriousness with which the courts regard this type of offending. For that reason the starting point in cases of this type is virtually always a sentence of imprisonment.
[17] Prior to sentencing, counsel provided me with several cases that are of relevance in setting the starting point. The first of these is R v Afakasi, in which three offenders, Messrs Tobia, Polaulu and Laungaue, were sentenced on charges of being part of an organised criminal group.1 That criminal group was involved in the
manufacture of methamphetamine and pseudoephedrine, together with the
1 R v Afakasi [2014] NCHC 2907.
distribution of methamphetamine. The scale of the overall offending in that case was far less than in the present case, however, because it involved the production and distribution of approximately 300 grams of methamphetamine.
[18] The Judge who sentenced offenders charged with being members of an organised criminal group selected starting points of between 15 months and two years imprisonment.2 Another offender from the same group, AK, was involved in a similar manner to you. Her principal role was in the storage of cash produced by the operation. She also, however, assisted the group by disposing of incriminating items when the group suspected that the police were interested in their activities. An overall starting point in her case of two years two months was selected.3
[19] Counsel for the Crown emphasises that in cases of this type, the Court is not restricted to examining merely the role of the individual participant of the group’s endeavour. Instead, each offender in the group must have a degree of responsibility for the wider scale of the offending.4 That is the very purpose of the charge of participation in an organised criminal group. For that reason it is difficult to draw direct comparisons between cases in this area.
[20] I have reached the view, having regard to your role and taking into account the overall undertaking of the group, that a starting point of two years six months imprisonment is appropriate.
Aggravating factors
[21] You have two previous convictions, both of which are for driving offences, and the Crown does not submit that the starting point should be increased in any way to reflect these. It is now necessary, therefore, to consider mitigating factors
personal to you that reduce the starting point that I have selected.
2 At [68]-[97].
3 R v AK [2014] NZHC 1893.
4 Pahu v R [2011] NZCA 269 at [12].
Mitigating factors
[22] I am prepared to give you credit for two mitigating factors. The first of these is that you have expressed genuine remorse to both the probation officer, who prepared the pre-sentence report, and to me in the letter that you presented today. You have cut your ties with Mr Harding, and you have resolved not to have anything further to do with the group that was involved in this offending. The pre-sentence report therefore assesses you of being at low risk of reoffending.
[23] Personal factors count for less in this area than they do in other areas of the criminal law. Nevertheless, in drug-related cases I consider it is important that the courts give concrete recognition to genuine expressions of remorse and expressed desires to rehabilitate and reform. I propose to give you a credit of four months to reflect this factor. This reduces the starting point to 26 months imprisonment before taking into account the final mitigating factors, which is credit to be given for your guilty plea.
[24] Your guilty plea was not entered at the earliest opportunity. Your counsel initially submitted that you should receive a full credit at 25 per cent because you pleaded guilty as soon as the Crown indicated that it would not proceed with the supply charge. That submission overlooks the fact that it was always open to you to enter a guilty plea in respect of the charge of participating in an organised criminal group. The Crown accepts, however, that a discount of up to 20 per cent is available, and that is broadly the discount I propose to apply. I propose to apply a discount of five months, or just under 20 per cent, to reflect your guilty pleas.
Home detention
[25] This leads to an end sentence of 21 months imprisonment, which means I am required to consider whether a sentence of home detention should be imposed rather than a sentence of imprisonment. The discretion to impose a sentence of home detention is one that is fettered by the purposes and principles contained in the Sentencing Act 2002. Counsel for the Crown points out that, in this area of the law, the courts are concerned with issues of deterrence and denunciation. Before
imposing a sentence of home detention the Court would therefore need to consider whether these principles would be adequately met by such a sentence.
[26] Several factors are relevant in this context. The first is the limited role you played in the overall activities of the group. The second is that you derived no gain from the criminal activity that you undertook. The third is that you are not at risk of becoming involved in drugs, because you have never been involved in drugs in the past. The fourth is that, if sentenced to home detention, you would not be serving the sentence at a place where earlier criminal offending occurred. You stored cash on behalf of Mr Harding by depositing it with other persons rather than at your own home.
[27] Finally, I look at the likelihood of you reoffending coupled with your past criminal history. You have never been involved in serious offending before, and there is nothing in the report to suggest that you are likely to be involved in this type of offending again in the future. All of those factors persuade me that it would not be contrary to the purposes and principles contained in the Sentencing Act for a sentence of home detention to be imposed.
[28] You have spent just over two months in prison awaiting sentence. That equates to a sentence of four months imprisonment. I need to recognise that fact, because it cannot be factored into the sentence of home detention in any other way. The starting point of 21 months imprisonment will be reduced by four months to 17 months imprisonment. That would then need to be converted to an appropriate sentence of home detention.
Sentence
[29] On the charge of participating in an organised criminal group, you are sentenced to eight months home detention. You will serve that sentence at your parents’ address. This has already been assessed as being technically feasible and suitable for a sentence of home detention. Your parents have also indicated their consent to you serving the sentence at their home, and indeed they have supported you strongly throughout the criminal justice process.
[30] The conditions on which you are sentenced to home detention are as follows:
(a) You are to travel directly from Court to the nominated address, and you are there to await the arrival of the probation officer or field officer.
(b) You are to reside at that address for the duration of the sentence.
(c) You are to attend and complete any departmental programme that may be directed by your probation officer.
(d)You are to participate in an assessment and complete to the satisfaction of your probation officer any assessments and any treatment programme as directed by the probation officer.
(e) You are not to consume, or be in possession of, alcohol and non- prescription drugs for the duration of the sentence.
[31] Thank you. Stand down.
Lang J
Solicitors:
Crown Solicitor, Whangarei
Counsel:
Julie Young, Whangarei
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