R v Griffen

[2024] NZHC 1802

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-088-2754

[2024] NZHC 1802

THE KING

v

MARCELLA GRIFFEN

Hearing:	3 July 2024
Appearances:	B O’Connor for the Crown B Hunt for the Defendant
Sentence:	3 July 2024

SENTENCING NOTES OF BECROFT J

Solicitors/Counsel:

Marsden Woods Inskip & Smith, Whangarei B Hunt, Hobson Chambers, Auckland

R v GRIFFEN [2024] NZHC 1802 [3 July 2024]

The charges

[1]                  Marcella Patricia May Griffen you appear for sentencing in respect of the following three charges.

(a)Importation of methamphetamine, a single charge, carrying with it a maximum penalty of life imprisonment.1

(b)Conspiracy to import methamphetamine relating to two separate importations, which carries a maximum penalty of 14 years’ imprisonment.2

(c)Participation in an organised criminal group, relating particularly to two separate importations of methamphetamine, with a maximum sentence of 10 years’ imprisonment.3

Facts

Overview of the operation

[2]                  Ms Griffen your offending 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.

[3]                  The investigation commenced in March 2020, and it ended in November 2021. Thirteen people were identified as being the main offenders.

[4]                  The group’s primary drug of choice was methamphetamine. But, on occasions, it involved the Class B-controlled drug MDMA and pseudoephedrine.

1      Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a).

2      Section 6(1)(a) and 6(2A)(a).

3      Crimes Act 1961, s 98A.

[5]                  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.

[6]                  For your part in the operation, you were not arrested until January 2022 as Auckland was in a Covid-19 lockdown during the previous November and December.

[7]                  Twenty different illegal importations were identified as part of the operation. You have pleaded guilty to one specific importing charge and in respect of the other two charges, there were two individual importations for each.

[8]                  The essential means of importation from overseas was that a number of false or artificial email addresses and identities were created, often involving very professional looking, but fake driver licences.

[9]                  There was email contact by members of the group with overseas suppliers and with the freighting companies. Packages and parcels (containing hidden drugs) were sent to recipients who all had false names, although they had apparently used their 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 and the freight forwarding companies, they uplifted the goods, and they transported them—at least on the single importing charge to which you have pleaded guilty—to Takahiwai Road, Ruakākā.

[10]              You lived at one of the addresses that was provided—[Redacted] Ayrton Street, Te Atatu—with your then-partner and co-defendant, Mr Gillett. As it happened, your address was searched, it seems almost by accident, because of an unrelated shooting of your partner. During that search, the police located a number of false driver licences, a phone, and documentation that implicated you, as well as Mr Gillett, in the offending.

Importing methamphetamine

[11]              As to the specific importation charge, on 14 June 2021, Customs intercepted a parcel addressed to “Quade Cooper” at [Redacted] Takahiwai Road, Ruakaka. I observed in the previous sentencing of Mr Gillett that using the name of a controversial Australian rugby player, just about guaranteed the attention of Customs. It was a foolhardy and a stupid choice in my view. That parcel contained five kilograms of methamphetamine concealed inside plastic spools of ribbon tape. Its country of origin was South Africa.

[12]              Communication took place between the freight company and “Quade Cooper” via the provided email address. The freight company advised that a customs duty needed to be paid in order to receive the parcel and a freight broker would need to be engaged.

[13]              On 9 June 2021, the customs fee for that importation was paid by cash at the Kiwibank branch at the Westfield shopping centre in Albany. I have seen the relevant CCTV footage. You can be seen paying the fee inside the bank whilst three of your co-defendants waited nearby, including your then partner whom I have previously sentenced, Mr Taioma Gillett.

[14]              Sometime later, on 16 June, the freight brokers were paid by a cash transaction at the Otaika Kiwibank in Whangārei. You are shown entering the Kiwibank shop. It is all visible on CCTV footage. Soon afterwards, Mr Gillett entered the shop after you.

[15]              On 24 June, Mr Gillett went to the Air New Zealand freight depot to uplift the parcel that had not yet been released. He was asked to return the next day.

[16]              On that next day Mr Gillett was observed driving to a carpark at the airport, apparently with you but, at any rate, you were seen at the carpark with others near to another car. Mr Gillett, by himself, drove to the depot, was observed loading the package into the boot of his car and driving back to the carpark. The box was transferred to another car—a silver Subaru. Mr Gillett got in that car with you and at least one other defendant, said to be the ringleader, and you all drove to the Ruakākā

address, being followed and photographed all the while by a police surveillance team. They were “onto you”, and you were being carefully followed throughout the upper North Island. 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.

Conspiracy to import methamphetamine

[17]              As to the conspiracy charge, there was one incident where a package to “Quade Cooper” was addressed to [Redacted] Takahiwai Road. That was the name appearing on one of the false driver licences incidentally with Mr Gillett’s photo on it. That package contained 1.056 kilograms of methamphetamine. By your plea you accept involvement in that importation.

[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 and Mr Gillett had access. In fact, in one conversation about this importation, a male, thought to be Mr Gillett, is heard calling out to someone he called “Babe” in the background, asking for details as to the identification details for the package etc. The inference is that it was Mr Gillett who was calling out to “Babe” and that “Babe” was you. And you provided all the necessary details.

Participation in an organised criminal group

[19]              As to the final charge, 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. Two specific importations are included in that charge, consisting of 755 grams and 1.013 kilograms of methamphetamine. That charge almost completely overlaps with the other two charges.

Disputed facts hearing

[20]              A disputed facts hearing was held in relation to these charges in December 2023. At that hearing I was required to determine the quantum of methamphetamine

involved in your offending, and the extent of your role in the commercial methamphetamine operation.

[21]              As a result of agreement, the quantum of methamphetamine, given that it may have been of a 69 per cent purity, the Crown accepts, fairly, it should be assessed at

5.5 kilograms. Only one of the five quantities was analysed. That recorded 69 per cent purity. But the Crown accepts, proceeding on that basis, that all of them were at that level or should be treated as if they were.

[22]              That puts you squarely in the most serious band that you have heard talked about for classifying methamphetamine dealing and importation—as between 10 years to life imprisonment.4 That’s how serious it is.

[23]              Having heard all of the evidence at the disputed facts hearing, I concluded that although your involvement could fall within the “middleperson” or “significant” category, it more probably shaded into the “lesser” or “lowest” category of involvement. That was because I accepted you were in a violent, abusive, and manipulative relationship with Mr Gillett, as I set out in detail in that decision—that I need not repeat here.

[24]              In that decision, I observed that the, what turned out to be, 13 year starting point that I imposed for Mr Gillett, self-evidently could not apply to you. I also noted that the starting point probably could not be as low as the eight years adopted for   Mr Hokai, another co-defendant already sentenced, given that the amount that was involved in your case significantly outweighed his 1.9 kilograms.

Principles of sentencing

[25]              You know Ms Griffen, you do not need me to tell you that methamphetamine is an insidious, pernicious, and corrosive drug. It can and does destroy lives and families. You would know this better than most, given your own long-standing, raging methamphetamine addiction.

4      Referred to the bands identified in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

[26]              That is why the courts take a strong view and need to denounce offending like this; and it is why courts have to send a strong deterrent message that there will be consequences and people will be held to account. I need to promote community safety. You say in your letter, effectively, that methamphetamine is a scourge on the Northland community.

[27]              All that said, your sentencing also needs to acknowledge your own unique personal circumstances, your background, and to assist in your rehabilitation.

Starting point

[28]              Firstly, I am required to set a starting point. As I have said, one of your co- defendants, Mr Hokai, was given a starting point of eight years’ imprisonment. He was at the very bottom of the hierarchy with much less methamphetamine involved than you.

[29]Mr  Gillett’s  starting  point  was  13  years. He was assessed, in respect of

8.1 kilograms of methamphetamine, as having had a “significant” role in the offending.

[30]              The lead charge and most important charge in your case is the importation of methamphetamine which, as I have explained, puts you squarely in the 10 years to life band.

[31]              But the law is clear that your role in the offending is an important consideration alongside the amount of methamphetamine in assessing your overall culpability.5 It is possible, but rare, that I can go below that 10 year starting point for the most serious band.

[32]              Ordinarily, you know,  your starting point would be roughly the same  as    Mr Gillett. The Crown advocates for a starting point of 10 years’ imprisonment with a further uplift maybe to 11 years. Although in sentencing Ms O’Connor has, in my

5      Zhang v R, above n 4, at [123]; and Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [34].

view responsibly, conceded that nine years would be the absolute lowest that a court should reach.

[33]              Ms Hunt, your counsel, has argued very ably and persuasively that there should be a starting point of eight years’ imprisonment, with a further reduction of one year to reflect what, she says, is your addiction which caused the offending. That would result in a seven-year starting point.

[34]              With respect, as I observed to Ms Hunt, that is a bold if not, in my view, a slightly misplaced submission. While your addiction is generally relevant, and has influenced my assessment of your role, the real reduction for addiction comes later.

[35]When it comes to assessing your particular role, I emphasise the following:

(a)First, your involvement in the offending must be viewed in the context of a violent and controlling relationship with Mr Gillett, where you were considerably influenced and directed by him to provide assistance and support. However, I am not sure, as I reflect on the earlier hearing, that your position was what might be called a classic result of “battered woman syndrome”. And there was certainly no expert evidence of that. You had not lost your own individual agency completely. Nevertheless, I am prepared to accept your account of what were the dynamics of the relationship. A relationship you were eventually prepared, thankfully, to leave following your arrest. That was the essence of the disputed facts hearing. I accept that those facts considerably reduce your role. But for your relationship with Mr Gillett, it is doubtful whether you would ever have been involved.

(b)Secondly, you were motivated strongly by your own addiction to methamphetamine. That was not explicitly covered in the disputed facts hearing. While I take this into account in assessing your role—I mainly consider it later in terms of a mitigating factor.

(c)Thirdly, there is no evidence you received financial gain as a result of your involvement. You say you were paid only in methamphetamine to support your addiction.

[36]             In light of those factors, and as I reflect on your role, I assess your overall involvement in the offending as being in the “lesser” role described in the cases.

[37]              I consider that a starting point for the lead importation charge of eight years is appropriate. But I need to uplift that starting point on account of the remaining two charges, but only by a further year. In my view, nine years’ imprisonment as a starting point adequately reflects the totality of all your offending and your involvement in a relatively sophisticated conspiracy to import a very destructive drug.

[38]              That starting point recognises the greater amount of drugs involved in your offending compared to Mr Hokai, and that you had contact with high up levels of the operation, and is in respect of five separate importations. But it reflects the reality that you played a much lesser role given the hold that Mr Gillett had over you. But let it be said, you did take some significant and important steps in the importation, and you involved yourself in the wider conspiracy.

Consideration of personal circumstances and mitigating factors

[39]From that nine years, I reduce your sentence in the following specific ways.

Guilty pleas

[40]              Firstly, your guilty plea for which you are entitled to receive a reduction. We could argue for hours as to whether it should be 15 or 12.5 per cent reduction. It just seems a little technical. But I agree with the Crown that a discount of 12.5 per cent would be appropriate.

[41]              In the sentencing of Mr Hokai, Downs J said, and I think this is decisive in your case:6

6      R v Hokai [2023] NZHC 2113.

[17] I add this observation, which may be relevant to others: if people receive unduly generous discounts for guilty pleas, that is not fair on those who plead guilty genuinely early, including when the strength of the Crown case may not yet be known. That approach also encourages people to plead guilty late, which is not in the interests of the justice, especially when the system is under strain.

[42]              Mr Hokai received a 15 per cent discount for pleading guilty. He was charged in November 2021. He signalled a guilty plea in March 2023, and pleaded guilty in June 2023.

[43]              By way of comparison, you were arrested in January 2022, and notified the Court in September 2022 that resolution was possible. In the end, you did not plead guilty until 29 September 2023.

[44]              Mr Gillett, approximately in the same way, pleaded guilty in December 2023. He was given a 12.5 per cent discount for the guilty plea. So should you.

[45]              I accept the point made by Downs J that there must be fairness and parity between discounts provided for guilty pleas by co-defendants in the same conspiracy.

Your addiction

[46]              This is a very personal factor that clearly contributed causatively to your offending. The materials before me make it clear that you have struggled with addiction for most of your life. You grew up with a recovering addict father in the 12- step programme of Alcoholics Anonymous with your mother who was part of the group supporting them. You found school difficult and were diagnosed with ADHD and learning difficulties. Although in some respects you are clearly very intelligent, but you also find processing difficult. As a result, you dropped out of school early.

[47]              In your last year of intermediate you report that you had started smoking cigarettes. That soon progressed to marijuana and alcohol use in your early high school years. You were 15 years old when you first smoked “meth” after you were exposed to the drug by a group of anti-social and criminal young friends. You say in your letter that in meth “I thought I’d found the answer to all my problems”.

[48]              As your addiction spiralled downwards, you had difficulty holding down a job and you fell into a pattern of unstable and violent relationships. In that way, Mr Gillett certainly wasn’t your first violent, abusive, and manipulative partner. You also report having previously turned to theft to fund your addiction. Your previous convictions all seem to relate to drug and/or alcohol abuse and/or failing to comply with court rehabilitation orders.

[49]              You met Mr Gillett when you were 21 years old and begun a romantic relationship with him. He was initially charming, fun and loving. After his release from prison in 2020 you reconnected with him. Your letter details how Mr Gillett was controlling and violent towards you during the relationship. And how he introduced you to the drug operation in Northland.

[50]              Ms Hunt suggested that a reduction of one year would reflect the relationship between your offending and addiction. As I have outlined, I have already generally taken your addiction into account and the fact that you made no profit from your offending in setting the starting point.

[51]              However, Ms Hunt’s submissions are persuasive. I am prepared to provide a reduction of 10 per cent to recognise the clear causal connection between your addiction and your offending. Any more than that would be “double counting”.

[52]I record that Ms O’Connor agrees that reduction is appropriate.

Rehabilitation and remorse

[53]              Before me I have an extremely comprehensive, well written and insightful letter that you wrote to the Court. Ms Griffen it is the most impressive I have ever read. There are also two reports by psychologists detailing your progress since commencing treatment; certificates of completion of rehabilitative programmes; letters from counsellors; from the Gracegate church; and letters of support written by your mother, brother and his partner, your friends, and those you met during treatment programmes, and from your current employer. There is a powerful pre-sentence report that I have to say, unrealistically, advocates home detention.

[54]              There are upwards of 40 people here in court today. I have never seen such a collective show of strength and support for one member of the community. I formally record that it is heartening, if not a little inspiring, to see that there is a group in the community who are so committed to assisting you in your rehabilitation. And you are very lucky and can be very thankful that they are available. I hope that irrespective of the decision today, that they continue working with you for the rest of your life— because you will need it.

[55]              Since your arrest, it is clear you have made significant strides towards rehabilitation. You have completed the Higher Ground Residential Programme, you are on the Narcotics Anonymous programme, completed the 12-week Matauranga Māori Programme, the 14-week Te Ira Tangata Programme, and you have gained a qualification in floristry. And that is only highlighting some of your progress. You have been drug and alcohol free and lets pause, all of us, to reflect on this, as from the 26 June 2024, for two years, five months and 21 days. That is quite an achievement. That is to you and your supporters’ enormous credit. Given your past, it is a magnificent step forward. Now you are in independent living accommodation and have employment and training as a florist, where you are well spoken of.

[56]              Ms Hunt submits that a 30 per cent discount would be appropriate to reflect and recognise your rehabilitative efforts. That would be more than I have ever given. But in your very unique circumstances, a 30 per cent reduction is justified. And it recognises your significant rehabilitative efforts.

[57]              I need to say the remorse that you show, frankly, is tied up with that rehabilitation. You see the world and yourself from new eyes. And your remorse is clearly evident. I accept it. But I include it within that 30 per cent figure, contrary to Ms Hunt’s submission, who wants it recorded separately. In my view it would be unrealistic to make that separation.

[58]              I also record that Ms O’Connor for the Crown has specifically advocated for the 30 per cent reduction as well, before she knew my view on the matter. That is a responsible approach by the Crown which clearly takes into account and accepts your very significant rehabilitation.

Other reductions sought

[59]              Ms Hunt also seeks a particular reduction of 10 per cent for family and wider support which adds credibility, she says, to your rehabilitation, and is the next best thing to guaranteeing that it will continue. Again, I think in your case, that is reflected in the 30 per cent reduction for rehabilitation. These people here have had a role in your rehabilitation. It doesn’t need to be counted again separately in this case.

[60]              I have also factored the domestic violence situation you experienced into assessing your role. To further consider it now would count it a second time. I agree with the Crown on that point.

[61]              Ms Hunt wanted a 65 per cent reduction. She says only that reflects fully evaluating all your circumstances. I have to say I do not agree. When all the component parts are added together, as she advocates, that reduction would simply be too great and unrealistic, and would take the sentencing exercise out of perspective. But I do accept that when you add the 10 per cent, the 30 per cent, the 12.5 per cent for your already guilty plea, that a 52.5 per cent reduction is appropriate.  Indeed,  Ms O’Connor has said exactly that. And I record that is the Crown’s explicit view, and I am influenced by that. In, itself, this is a very big reduction Ms Griffen. So from the nine years, that reduction results in a four year, three month sentence.

Time spent on electronically monitored bail

[62]              I am prepared to further deduct three months for your time spent on electronic monitoring. You have been on EM bail for nearly two-and-a-half years. You were initially on a strict 24-hour curfew for some months before the curfew was relaxed to allow you to attend recovery programmes and then it has steadily been relaxed thereafter.

Final sentence

[63]              That results in a final sentence of four years’ imprisonment. When I cross- check that with Mr Gillett’s nine years’ imprisonment, that is fair as between the two of you.

[64]              I conclude Ms Griffen by saying this. It may not seem like it to you, but given that the drug imported here was methamphetamine and its amount, the four year end sentence must be regarded as a merciful result. It takes into account your unique situation of involvement in an abusive and controlling domestic relationship with your co-offender; your severe drug addiction; and your profound commitment to rehabilitation.

[65]              Your offending need not define you for life. I recommend that the authorities specifically aid and assist you to continue with your rehabilitation and treatment services, so that you can leave prison with your past behind you, ready and fit to begin life as a productive member of the community.

[66]              That is your sentence. You can stand and I will formally pronounce that you are sentenced to four years’ imprisonment on all charges.

[67]You may stand down.

Becroft J