R v Griffiths
[2023] NZHC 2371
•28 April 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-6031
[2023] NZHC 2371
THE KING v
MARK ANTHONY GRIFFITHS
Hearing: 28 April 2023 Counsel:
J Hamilton for Crown
S Mills and B Gloyn for Defendant
Sentence:
28 April 2023
SENTENCING NOTES OF ISAC J
Introduction
[1] Mr Griffiths, you appear for sentence having pleaded guilty to charges of supplying methamphetamine (a representative charge),1 possession of methamphetamine for supply,2 importing methamphetamine,3 supplying the Class B controlled drug GBL,4 and possession of that substance for supply.5
1 Misuse of Drugs Act 1975, s 6(1)(c) and Crimes Act 1961, s 66(1); maximum penalty life imprisonment.
2 Misuse of Drugs Act, s 6(1)(f); maximum penalty life imprisonment.
3 Misuse of Drugs Act, s 6(1)(a) and Crimes Act, s 66(1); maximum penalty life imprisonment.
4 Misuse of Drugs Act, s 6(1)(c) and Crimes Act, s 66(1); maximum penalty 14 years’ imprisonment.
5 Misuse of Drugs Act, s 6(1)(f); maximum penalty 14 years’ imprisonment.
R v GRIFFITHS [2023] NZHC 2371 [28 April 2023]
[2] The most serious charges are those relating to importation and the supply and possession for supply of methamphetamine. Those charges carry a maximum sentence of life imprisonment. The remaining charges carry a maximum sentence of 14 years’ imprisonment.
Background
[3] You are a senior member of the Mongrel Mob Waikato Kingdom Chapter and identify yourself as second in charge. You were arrested following the termination of a police investigation known as Operation Oakville. This focused on the supply of Class A and Class B controlled drugs in the Waikato, Auckland and Wellington regions. During the operation, which lasted for approximately 12 months, the police obtained surveillance device warrants that enabled them to intercept the communications of a number of individuals.
[4] The police discovered you were involved in obtaining and supervising the supply of large quantities of Class A and Class B drugs. You were identified as a leading individual in the drug distribution network who oversaw the majority of the criminal activity undertaken by the wider group. You were directly involved in obtaining wholesale quantities from several sources and providing those to individuals within your network to facilitate the wider distribution of the drug into the community. The network included your brother John and your former partner, Ms Sharon Marfell, who worked closely with you and generally accompanied you on trips to source Class A and B drugs. She was engaged in a prolific supply of methamphetamine, providing it to other members of the group for on-supply as well as dealing to her own customers. She was also involved in collecting drug debts owed to you.
[5] Below your partner were Ms Keyte, Mr Iakopo, and Mr Cole. Two other individuals—one based in Auckland and another in Wellington—also sourced wholesale quantities of methamphetamine for you. This was, as the Crown describes, large scale commercial dealing.
[6] The representative charge of supplying methamphetamine spans the twelve-month period between October 2019 to October 2020, which covered a period of “back-captured” telecommunications and later communications from August 2020
when Police began live monitoring. The total quantity identified was at least 540 grams of methamphetamine, although this is undoubtedly an underestimate because there were numerous supplies where it was not possible to ascertain the quantity of drugs involved.
[7] The charge of importing methamphetamine was discovered by Police as a result of a number of communications between you and a co-defendant, Mr Elliot. These communications concerned the importation of a package from Mr Elliot’s son. You orchestrated the import of the drug from overseas through an intermediary to an address in Hamilton. The package contained 2.04 kilograms of methamphetamine concealed within printer toner cartridges. You enlisted Ms Marfell and those below her to make sustained efforts to retrieve the consignment over a period of approximately a week.
[8] You and Ms Marfell were arrested at the termination of the operation on 12 November 2020. On this day the police observed the two of you driving back to Hamilton from Auckland, where you had acquired a quantity of methamphetamine. This resulted in a police pursuit after you refused to stop your vehicle and endeavoured to escape. Police officers involved in the pursuit saw a cardboard box being thrown out of your vehicle. This was later found to contain just over 124 grams of methamphetamine.
[9] When the police searched your home address, they found eight one-litre bottles filled with the Class B controlled drug GBL and two further five litre bottles that contained residual quantities of the same drug.
[10] The charge of being in possession of methamphetamine for supply relates to the box containing 124 grams of methamphetamine that the police saw being thrown from your vehicle on the day of your arrest.
[11] As part of the police investigation the police carried out an analysis of financial records relating to you and Ms Marfell. This revealed that over a period spanning almost four years—between January 2017 and November 2020—you both had access to an unknown source of income totalling approximately $713,000.
Starting point
The methamphetamine charges
[12] I take the lead, or most serious, charges as those relating to the importation, supply and possession for supply of methamphetamine. Starting points for this type of offending are governed by the judgment of the Court of Appeal in Zhang v R. In that case the Court identified five bands within which methamphetamine offending will occur.6 Counsel agreed that your offending falls within Band 5, which relates to offending involving quantities greater than two kilograms of methamphetamine. The bottom end of the starting point range is 10 years with of course life imprisonment being at the highest end. It is also relevant that band four, which applies to dealing quantities between 500 grams and less than two kilograms—that is a good deal less than what you have been charged with—warrants an upper end starting point of up to 16 years.
[13] Importantly, however, the Court of Appeal has also stressed that it is necessary for sentencing courts to identify the role played by offenders who are to be sentenced for methamphetamine-related offending. It divided these into three categories: leading, significant and lesser.7 The nature of the offender’s role will determine where the appropriate starting point will lie. Both counsel appear to agree that you played a leading role in this particular drug dealing network. Their point of difference is this. Mr Mills on your behalf submits that your culpability is really the same as that of Ms Marfell, in what he describes as “low level” dealing. He argues a starting point of no more than 12 years’ imprisonment is appropriate based on parity to the starting point adopted in her case by the sentencing judge.8 By contrast, the Crown submits a global starting point in the vicinity of 14 years is warranted but, the Crown says, conservative having regard to your lead role and the overall quantity of 2.704 kilograms of methamphetamine.
[14] I consider you can properly be described as the leading figure in the drug distribution network, although I accept that Ms Marfell was also a leading member.
6 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
7 At [126].
8 In R v Marfell [2022] NZHC 2227 at [15], Lang J adopted a starting point of 11 years’ imprisonment for Ms Marfell, describing her role as “only slightly less senior to Mr Griffiths”.
But I am unable to accept your counsel’s submission that she was the prime mover or the “brains” behind the operation. You appear to have sat at the top of the pyramid and she was your principal lieutenant. I consider the appropriate starting point is one of thirteen years and six-months’ imprisonment on the methamphetamine-related charges.
Uplift for other offending
[15] It is also necessary to apply an uplift to reflect the remaining charges of the possession for supply and supply of the Class B controlled drug GBL. The Crown suggests a global uplift in the vicinity of two years is called for by these remaining charges, while Mr Mills suggests an uplift of no more than 18 months is appropriate given that Ms Marfell, who received an uplift of two and a half years’ imprisonment, faced an additional charge of participation in a criminal group.
[16] Lang J considered that on a standalone basis the GBL charges would easily justify a starting point of between three and four years imprisonment.9 I agree with his assessment. Given this, I consider an uplift of at least two years’ imprisonment is appropriate. A starting point six months higher might easily have been justified given that Ms Marfell received a discrete uplift of two and a half years on essentially the same charges.
[17] This means an overall starting point of 15 and a half years’ imprisonment on all charges. That is appropriate when I compare the starting point with that arrived at for Ms Marfell and your co-defendants, especially having regard to your principal role in the operation.
Mitigating factors
Guilty pleas
[18] You entered guilty pleas on 25 October 2022, just less than a week before trial. There was a very strong body of evidence to support the charges, consisting principally of intercepted communications. However, both counsel acknowledge that a reduction
9 At [17].
of 15 per cent is still warranted to reflect your guilty plea, and I accept that that is an appropriate discount in your case.
Addiction, depravation, and remorse
[19] Your counsel has provided a range of information to the Court. This includes two reports under s 27 of the Sentencing Act 2002, one by Dr Jarod Gilbert and another by Patrick Mendes, and an assessment by Dr Andrew Immelmann, a psychiatrist, who prepared a report with the assistance of a neuropsychologist.
[20] It is clear Mr Griffiths that you had a terrible upbringing. You grew up in a violent and neglectful household. You came to the attention of the Department of Social Welfare in 1978—when you were eight years old—following a complaint from a concerned person that you and your four siblings were left at home alone while your parents were drinking at a local hotel. Records show that a year later you were still living at home where the electricity had been disconnected for two months and neighbours had expressed concern again about injuries they thought you had received as a result of beatings from your father. In 1980 you were removed into State care. Sadly for you the violence and neglect you experienced at home did not stop. You were subjected to various forms of violence as a child and young person. I have no doubt that these experiences have shaped your life ever since. You never attended high school, and your primary education was marked by instability and truancy.
[21] Unsurprisingly you turned to drugs and alcohol at an early age. You started stealing and breaking into houses with other children, and then you found a gang at the age of 14 or 15. It was within a gang that you found the support, structure and camaraderie that you had been deprived of as a child.
[22] Your addiction to methamphetamine began in your 20s. It has blighted your adult life. For a period beginning in 2015 you gave up all substances but following a traumatic incident began using again in 2018.
[23] While I accept there is a connection between your cultural dislocation, childhood deprivation and your offending, the real question is whether any causal connection between background and the particular offending that is being sentenced
is sufficient to warrant a discount.10 This, as the Court of Appeal has recognised, is an evaluative decision for the sentencing judge.
[24] In this case, while I accept a discount is required to reflect a reduced level of culpability due to addiction and childhood neglect, your offending was commercial drug dealing on a significant scale and therefore difficult to excuse. While no doubt your addiction was part of the motivation for you to engage in dealing, the level of commerciality is such that a primary aim must have been profit taking. While it is encouraging that there are signs of insight into your drug dependence and the need to take steps to address it, you do not appear for sentence as someone who is able to point—yet—to significant steps on your rehabilitative journey.
[25] For these reasons, I am satisfied that a discount of 20 per cent to reflect personal factors is at the upper end of the range you could be entitled to. I am not persuaded that a further discount for remorse is warranted. I do not doubt that you are sorry for what you have done, but the duration and sophistication of the offending against a previous history of drug dealing does not persuade me that your remorse is beyond that which anyone in your predicament might feel.
[26] Combined, this means you are entitled to a discount of 35 per cent to reflect your plea and mitigating factors personal to you.
Personal aggravating factors
[27] The Crown submits that a discrete uplift to reflect your previous criminal history is needed. You have a history of commercially driven drug dealing beginning more than 25 years ago.
[28] I have concluded that an uplift is unnecessary in your case Mr Griffiths. Another judge might have considered that an uplift of six months or more was warranted on account of recidivism. However, the last drug related offending was 12 years before your current convictions, which in my view is historic.
10 Pomale v R [2022] NZCA 343 at [25].
[29]It follows that the end sentence is one of 10 years’ imprisonment.
Minimum period of imprisonment
[30] The final question however is whether I should impose a minimum period of imprisonment pursuant to s 86 of the Sentencing Act. A court may do so if it is satisfied that the standard parole eligibility period is insufficient to hold an offender accountable, to denounce their conduct, to deter them and others from committing similar offences, or to protect the community.11
[31] It is deterrence, denunciation and accountability that are likely to be at the forefront of decisions in drug cases involving the imposition of a minimum period of imprisonment. That in turn means that, as a general rule, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing.12
[32] Given your previous history for commercial drug dealing, the scale of the current offending—which involved national distribution and international links—and your leading role within it, I consider that deterrence, denunciation and protection of the community require the imposition of a minimum period of imprisonment of five years.
Sentence
[33] On the charges of importation, supplying and being in possession of methamphetamine for supply you are sentenced to 10 years’ imprisonment.
[34] On the charges of supplying and being in possession of GBL for supply you are sentenced to three and a half years’ imprisonment.
[35] All sentences are to be served concurrently. This means that you will serve an effective sentence of 10 years’ imprisonment.
11 Sentencing Act 2002, s 86(2); and Parole Act 2002, s 84(1).
12 Zhang v R, above n 6, at [171].
[36]I also impose a minimum period of imprisonment of five years.
[37]Thank you Mr Griffiths. You may stand down.
Isac J
Solicitors:
Crown Solicitor, Hamilton
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