R v Green
[2013] NZHC 1577
•27 June 2013
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI 2011-043-2338 [2013] NZHC 1577
THE QUEEN
v
MICHAEL GEORGE GREEN
Hearing: 27 June 2013
Counsel: J Mooney for Crown
SW Hughes QC for Prisoner
Sentence: 27 June 2013
SENTENCING NOTES OF THE HON JUSTICE KÓS
[1] Mr Green, you appear for sentence on the following charges: (a) conspiracy to supply methamphetamine;1
(b) participation in an organised criminal group;2
(c) conspiracy to supply class C ecstasy;3 and
(d) conspiracy to supply cannabis.4
[2] On 22 May I gave you a pre-trial sentencing indication pursuant to s 61(1) of the Criminal Procedure Act 2011. On 30 May you accepted that indication and you
pleaded guilty before Miller J.
1 Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(a).
2 Crimes Act 1961, s 98A.
3 Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(c).
4 Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(c).
R v GREEN [2013] NZHC 1577 [27 June 2013]
[3] You are 40 years old, Mr Green. You are employed as a factory worker for Fonterra. You are associated with members of the Rebels motorcycle gang. You are not yourself a member or patched. But you were in contact with patched members Nathan Couper and Dallas Hikaka frequently when you needed drugs yourself and for resale purposes.
[4] You have two previous convictions of little consequence. One is for dangerous driving in 1989 and the other is for careless driving in 1994. Both were punished by a fine or disqualification only.
[5] I turn now to the particular charges you face.
Conspiracy to supply methamphetamine
[6] First, conspiracy to supply methamphetamine. On at least seven occasions you asked for methamphetamine to supply to others. You also had another dealer working underneath you whom you referred to as your “girl”. She was recorded as having sold at least one unit.
Participation in an organised criminal group
[7] Secondly, participation in an organised criminal group. You were closely associated with the members of the Rebels and involved in retail dealing in the drugs they offered. You responded to a request by Mr Couper that members of the conspiracy call in their debts in order to provide urgent funds for the Rebels. This demonstrates that your dealing was conducted as part of a group for the benefit of the Rebels.
[8] Thirdly, conspiracy to supply class C varieties of Ecstasy. You texted Mr Couper on at least three times to request a supply of ecstasy for resale. You also attempted to find a buyer when Mr Couper advised you he had stock he wished to dispose of. The largest order was for six pills.
Conspiracy to sell cannabis
[9] Finally, conspiracy to sell cannabis. You supplied at least three ounces to Messrs Couper and James. You also agreed to resell a $50 bag that Mr Couper supplied on another occasion. On a further occasion, you ran a sort of honesty box arrangement giving Mr Couper the code to a locked freezer that contained cannabis and telling him to take what he needed and leaving cash for payment.
Lead offence
[10] It is common ground that the lead charge for sentencing purposes is conspiracy to supply methamphetamine.
[11] If this case was one involving the actual sale and supply of methamphetamine, the guideline judgment in R v Fatu would apply. The Crown says that in that event the appropriate sentence would be in the upper part of band 2:5
Band two – supplying commercial quantities (five grams to
250 grams) – three years to nine years imprisonment.
Your counsel who made written submissions in this matter, Ms Pascoe, acknowledges that the offending falls into band 2.
[12] In her written submissions, Ms Pascoe submits, in reliance on the Court of Appeal decision in R v Te Rure,6 the start point should be reduced not only for the fact that we are dealing with conspiracy rather than actual supply, but also based on how close the involvement the conspirator is to the supplier.
[13] In R v Te Rure the Court of Appeal indicated that the Fatu guidelines apply to cases of conspiracy to manufacture methamphetamine, but the penalty bands require reduction because of the differing maximum penalties. The degree of reduction depends on the level of culpability of the offending.7 As the Court of Appeal said:8
... planning something illegal is logically less serious than actually doing it. However, it is equally logical that, the closer a conspiracy comes to execution, the closer it becomes in seriousness to the actual illegal act being planned.
[14] I do not read that authority as suggesting there is a sentence gradation depending on how far from the hub the conspirator is. But I accept as a matter of principle that a lesser degree of involvement justifies a reduced starting point.
[15] I propose to deal with your matter on the basis that the offending be assessed notionally at just below the mid-point of band 2, bearing in mind that your role was more of a spoke than a hub in the wheel conspiracy. On the other hand, you were actively involved in the supply of methamphetamine to purchasers. I therefore regard your situation as more serious than Mr Whitehead’s, but somewhat less seriously than Mr Couper’s (he being the hub). On that basis I begin with a start point of five years’ imprisonment, but I discount it by 15 per cent reflecting the fact that the conspiracy was at an early stage only (albeit that you were actually dealing in methamphetamine).
Result on lead offence
[16] I adopt, therefore, a starting point of four years and three months’
imprisonment.
Other offending
[17] The Crown submits that the other offending – participation in an organised criminal group, conspiracy to supply class C ecstasy and conspiracy to supply cannabis justify an uplift of between 9 and 18 months’ imprisonment.
[18] In her written submissions, Ms Pascoe submits that the suggested uplift is excessive and does not properly reflect the principal of totality. She suggests an uplift of six months’ imprisonment would be appropriate.
[19] I am satisfied that an uplift of nine months’ imprisonment is the least reasonable uplift that can be justified in this case having regard to your active involvement in transacting the sale of illegal drugs as part of the conspiracy.
Result on other offending
[20] The initial start point of four years and three months’ imprisonment is therefore uplifted by nine months to a total of five years’ imprisonment.
Totality
[21] I am satisfied from the point of view of totality that that does not produce an outcome disproportionate to the gravity of your offending taken as a whole.
Aggravating and mitigating features of offender
[22] I turn now, Mr Green, to the aggravating and mitigating features that concern you personally.
Aggravating features
[23] The Crown submits that aggravating factors personal to you include a degree of premeditation and your connection with an organised criminal group. However, I consider these matters have already been satisfactorily provided for in the starting points adopted and no further uplift is required.
Mitigating features
[24] First, your past convictions are two decades old. They are entirely unrelated to drug activity and I am prepared to extend a discount of 10 per cent to you as if you had no prior criminal record. In my view you have no relevant prior criminal record. That reduces the starting point immediately to four years and six months’ imprisonment.
[25] Secondly, it is accepted by the Crown that a discount for entry of a guilty plea is warranted. The Crown submitted at this stage only a discount of 5 to 10 per cent is appropriate.
[26] In my decision in Rikihana v Police9 I attempted to set out the policy reasons why credit is appropriately given for guilty pleas, even if made at the last minute. Public resources are spared, and there is an important public acceptance of your part of culpability that deserves recognition. In addition in this case, in pleading guilty you have assisted in the prosecution of the remaining accused (given my decision to admit evidence of the guilty pleas of co-accused under s 344A). That being said, it is important there is sufficient incentive preserved by sentencing Judges to ensure that guilty pleas in appropriate cases are entered at the earliest possible opportunity. I do not, therefore, think that a credit of more than 10 to 15 per cent can be extended.
[27] In these circumstances, I am prepared to extend a discount of 15 per cent to you for a guilty plea, despite the lateness of its entry.
[28] Thirdly, at your sentencing indication hearing I reserved leave to Ms Pascoe to advance submissions on a further discrete discount for remorse and rehabilitation.
[29] In her written submissions, Ms Pascoe refers to the fact that the pre-sentence report writer has identified two factors contributing to your offending: involvement with drugs and your poor choice of associates. She submits that it is evident from the report that you have sought to terminate your involvement with both. You have undergone a number of work place drug tests through your employer, all of which have confirmed a negative result. The results have been provided to me and they confirm that assessment.
[30] A former supervisor at Fonterra has described you as reliable and trustworthy. You have risen in the employment hierarchy at Fonterra, and you are also a union representative and health and safety officer. Members of your family have given clearer insight into positive qualities of your character, including your willingness to
care for your elderly mother (who I note is present today and who has been through
9 Rikihana v Police [2013] NZHC 711.
most of the trial of the co-accused), on a full time basis after she had surgery on her spine. These letters and your own to the Court indicate that you have had in the past clinical depression because of unresolved issues from your childhood, the death of your father and the end of a ten year relationship with your partner. You say that that resulted you going to The Powder Room, Mr Couper’s bar, where he befriended you, and you started to become a drug user (using ecstasy and BZP).
[31] You tell me that you are clean from drugs and have been so for the last 20 months. You have found stimulation instead from your workplace success. You accept you will now receive a sentence of imprisonment. While you say you find that prospect daunting, you also say that you appreciate that it is your own doing and a consequence of your own actions.
[32] I accept, Mr Green, the genuineness of these statements, which are corroborated by your lack of prior criminal offending. In these circumstances, reflecting both remorse and your prospects of rehabilitation, which I consider good, I am prepared to extend a further discount of 10 per cent to the starting point.
Minimum period of imprisonment
[33] As on the occasion of your sentencing indication, I reject the equivocal application by the Crown for a minimum period of imprisonment. I am satisfied that given your drug offending-free record prior to your involvement in this offending, and since, no minimum period of imprisonment need be imposed. I would leave it to you to address your own rehabilitation, with the incentive that a Parole Board may grant you the earliest lawful release unconstrained by any decision of this Court.
Sentence
[34] Stand please.
[35] Mr Green, you are sentenced by this Court as follows:
(a) on conspiracy to supply methamphetamine: three years, three
months’ imprisonment;
(b) on participation in an organised criminal group: one year, two
months’ imprisonment;
(c) on conspiracy to supply class C ecstasy: one year, two months’
imprisonment; and
(d) on conspiracy to supply cannabis: one year, three months’
imprisonment.
[36] All these sentences are to be concurrent. You will serve, therefore, a total of
three years, three months’ imprisonment. [37] Thank you. Please stand down.
Stephen Kós J
Solicitors:
Crown Solicitor, New Plymouth
Nicholson’s, New Plymouth for Accused