R v Haine

[2013] NZHC 66

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-019-2006 [2013] NZHC 66

THE QUEEN

v

KENTON IAN HAINE KYLE LANCE MURPHY BRENDON MURRAY CARLISLE MICHAEL STEPHEN GRAY

Appearances: J Foster for the Crown

B Hesketh for Haine
K Tustin for Murphy
R Laybourn for Carlisle
T Sutcliffe for M J Gray

Sentence:       5 February 2013

SENTENCING NOTES OF PRIESTLEY J

Counsel:

J Foster, Crown Solicitor, Hamilton. [email protected]
B Hesketh for Haine. [email protected]

K Tustin for Murphy. [email protected]

R Laybourn for Carlisle. [email protected]

T Sutcliffe for M J Gray. [email protected]

R V HAINE, MURPHY, CARLISLE, GRAY HC HAM CRI-2010-019-2006 [5 February 2013]

Preliminary comment

[1]      Reading the materials supplied by counsel for Messrs Haine, Murphy and Michael Gray, underlines in a dramatic way the pernicious effect of drug addiction and abuse.  All three of you, and I am referring there to Messrs Haine, Murphy and Michael Gray, have many fine qualities.  All three of you have been users of drugs, in varying degrees, for many years.  You held down good jobs.  You were spoken of highly as workers and, for you, Mr Haine and Mr Murphy, as members of the community.  You have broken the hearts of your parents and/or partners and you, Mr Murphy, can see in a dramatic way the effect your imprisonment has had on your children.  The only positive thing which can be said is that over the past three years or so you have had time to reflect on your drug abuse and take steps to clean yourselves up.  Because any sentence I impose must assist your rehabilitation I shall give you some small credit for that.  But the real challenge for you three will be to keep on a drug-free path once you are released from prison.  It may not be easy but if you revert to where you were in 2009 your future lives will be bleak.

[2]      I cannot say quite the same for you Mr Carlisle.  You have been in the grips of methamphetamine for well over 10 years, or 13 as you say in the letter you put up to me today, and had the audacity to continue dealing with that drug both when you were on bail before your trial and during the trial itself.  I can only assume that your addiction made you reckless.  The letter which you provided me with this morning, however, and also your mother’s helpful comments, suggests that perhaps you too have  taken  stock  of  the  situation  and  are  trying  to  point  yourself  in  the  right direction.  Whether you are successful will be solely for you to sort out yourself.

Background

[3]      All of you were, in one way or another, caught up in an extensive police operation carried out in Waikato in 2009, Operation Cape, which centred on the drug dealing activities of Stephen John Gray and his associates.  For almost five months until mid-October 2009 your telephone conversations were intercepted.  For a nine week period, from mid-August to mid-October, audio devices were placed in Mr

Gray senior’s 53E Exelby Road home.  Although he was tried jointly with you, he will be sentenced at a later date.  Reference to him will, of course, be necessary to paint an accurate picture of the overall offending.

[4]      Kenton Ian Haine, and Kyle Lance Murphy, you were both found guilty by a jury on 13 December 2012 at the conclusion of a trial which ran for just over two months.

[5]      You, Michael Stephen Gray, pleaded guilty to one charge at the outset of the trial.

[6]      You, Brendon Murray Carlisle, pleaded guilty to a charge during the course of the trial following your arrest and being charged with a number of other offences. You have pleaded guilty to those additional charges and are also being sentenced in respect of them today.

[7]      You, Mr Haine, were found guilty of one representative count of supplying methamphetamine, one count of possessing the Class A drug lysergide (LSD) for the purposes of supply, and one count of conspiring with Stephen Gray to cultivate the Class C drug cannabis.

[8]      Mr Murphy, you were found guilty of one representative count of supplying methamphetamine and one representative count of selling cannabis.  You also faced an additional count of cultivating cannabis to which you pleaded guilty part-way through the trial.

[9]      You, Mr Carlisle, pleaded guilty to one representative count of supplying methamphetamine.  That plea came part-way through the trial after the police found you to have been dealing methamphetamine whist remanded on bail, both before and during the trial.   You were then charged with an additional count of supplying methamphetamine and one count of offering to supply methamphetamine.   You pleaded guilty to those additional charges.

[10]     Finally, you, Michael Gray, are to be sentenced on one representative count of selling cannabis to which you pleaded guilty.  On the serious charge of supplying methamphetamine, the Crown offers no evidence.  Accordingly I discharge you on that count under s 347 of the Crimes Act 1961.

Facts

[11]     With drug dealing cases it can often be difficult to establish the precise extent of offending and relevant details such as quantities and monetary exchanges.  This case bears that out to a large extent.  Despite the size of the police operation, some aspects  of  the  offending  need  to  be  “filled  in”  through  interpretation  of  the intercepted conversations the jury heard.

[12]     That said, I am mindful of s 24(2)(c) of the Sentencing Act 2002 which requires the prosecution to prove the existence of any aggravating facts beyond reasonable doubt.   That statutory imperative also applies, in my view, to disputed areas of fact and matters of culpability.   This will be particularly relevant when addressing quantities.  I accept that there will be a degree of inference required from surrounding circumstances, but where there is a reasonable doubt, that doubt must be in your favour.  As a result, the sentences I am going to impose may well be lenient, particularly because the law obliges me to adopt a conservative approach.  You may well know that the quantities of drugs you were dealing with were considerably in excess of the amounts the Crown suggests.  However, for the reasons I stated at the beginning, I regard three of you as being appropriate recipients of leniency.

Haine

[13]     It  is  common  ground  between  counsel  that  during  the  five  week  period between 16 August and 18 September 2009, you purchased 15 grams of methamphetamine from Stephen Gray.  You were a regular visitor to his address, but it is accepted by the Crown that not all of those visits resulted in the purchase of methamphetamine.  Indeed some visits and calls seem to have related to work on Mr Gray’s farm.

[14]     The Crown wants me to infer that the purchases over the five week period can be extrapolated over the entire indictment period, resulting in the total amount you purchased from Stephen Gray over that period being likely to have been in the region of 60-80 grams of methamphetamine.   It says that you were receiving a cutting  agent  during  that  time which  suggests  you  were  cutting the methamphetamine for the purposes of supply.

[15]     Mr  Hesketh,  on  your  behalf,  has  said  that  such  an  extrapolation  is  not supported by the evidence.   He says that you were a regular purchaser of methamphetamine from Stephen Gray, but that these purchases were either for yourself or your friend.  There was no profit derived from on-supply, and the only dealing you engaged in was to a female friend of yours in small quantities for her personal consumption.

[16]     I  repeat  the  comments  I  made  earlier,  that  the  Crown  must  prove  the existence of any aggravating facts beyond reasonable doubt.  I accept that you were a regular visitor to Stephen Gray’s address, but there is insufficient evidence that you were dealing to the extent the Crown alleges.   That said and as your counsel responsibly accepts  I am  quite sure the amount  of methamphetamine  you  were dealing with exceeded the 15 grams, which your counsel accepts.  As Mr Hesketh said, you continued to operate your digger business throughout the entire offending period and seemingly carried on  a normal life,  save  your personal addiction to methamphetamine.   This is not the pattern of conduct one would expect from a consistent user of methamphetamine, and this strengthens the Crown submission against you.  But the extent of your supply is ultimately speculative.

[17]     On the other hand, it is accepted that you purchased 161.5 LSD tabs found in your possession from Stephen Gray which you kept. I note that you were found guilty of possession for supply in relation to those LSD tabs but the jury found you not guilty on the charge of supplying LSD.  The jury was clearly of the view, and rightly so, that you had not rebutted the presumption of supply.  You did not give evidence.

[18]     Finally, you were found guilty of conspiracy to cultivate cannabis by offering to be a conduit between Stephen Gray and an unknown person who you told Stephen Gray would be able to supply cannabis clones.  On that count I convicted you after the jury returned its verdicts.  In the context of your offending, and indeed the long and rambling conversations you had with Mr Gray, I regard the offer to find him clones as being relatively insignificant.  On that count I intend to discharge you.

Murphy

[19]     Mr Murphy, the jury accepted the supplying role the Crown said you played. You were a street-level dealer of methamphetamine supplied from Stephen Gray. The  evidence  establishes  that  on  two  occasions  (16  and  17  August  2009)  you obtained one ounce of methamphetamine from Stephen Gray.  The first ounce was on-sold to an unknown person who you knew well.   That was supposed to be a

$16,000 transaction, but you were never paid.   As we all know one ounce of methamphetamine equates to 28 grams or 280 points which could be sold on the street for anywhere between $22,000 and $28,000.  In methamphetamine terms those quantities are significant.

[20]  That first transaction led to you obtaining the second ounce of methamphetamine from Stephen Gray in an attempt to repay your drug debt to him. That ounce was part pure methamphetamine.   You later tried to return a cut half ounce of methamphetamine to Stephen Gray, but he refused to accept it.

[21]     The   evidence   establishes   a   supply   of   between   42g   and   48g   of methamphetamine (not all of which was pure methamphetamine), although approximately 56g was possessed by you for the purpose of supply.  Your offending may have extended much wider than that, but that has not been established by the evidence.   Further, given the lack of evidence of actual sales, I am prepared to sentence on the basis that your offending involved only two large transactions, rather than continuous supply.

[22]     As to the cannabis charges, at the termination of Operation Cape, on 13

October 2009, the Police discovered an indoor cannabis growing operation that you

were responsible for, which included 12 mature plants and a number of seedlings. The guilty verdict in respect of the selling cannabis count indicates that the jury were satisfied that this cultivation was not simply for personal use, but had a commercial element.

Carlisle

[23]     Mr Carlisle, you were involved in the supply of methamphetamine from Stephen Gray. On at least 20 occasions you visited his address, and during some of those visits you obtained quantities of methamphetamine for the purpose of on- selling.  On one occasion, you purchased 28 grams from Stephen Gray.

[24]     At the conclusion of Operation Cape, you were arrested and remanded on bail.  But your story does not end there, in fact it gets much worse.   Immediately prior to your trial, between 14 September 2012 and 14 October 2012, you used your cellphone to arrange sales of methamphetamine in various quantities.    The text messages identify a total of 82.7 grams was supplied.

[25]     Then,  astonishingly,  during  the  trial  between  15  October  2012  and  5

November 2012, you were found to still be supplying methamphetamine.  Your text messages reveal a total of 22 offers to supply.  In 14 of those offers the quantities cannot be verified, but in the remaining eight the offers totalled 1.4 grams.

Michael Gray

[26]     Mr Michael Gray, unlike your co-offenders you do not appear for sentence on methamphetamine charges. That does not mean your offending is not serious. Quite the contrary.   Selling cannabis is a serious offence, reflected in the fact Parliament has prescribed a maximum penalty of 8 years imprisonment for cannabis

dealing.1

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

[27]     It  would  appear  that  your  involvement  had  its  origins  in  the  familial relationship with your father, Stephen Gray.   You were, in effect, a beneficiary to your father’s growing operation.   Intercepted communications identify that you supplied a total of 66 ounces of cannabis, or 1.87 kg.  The Crown estimates the street value of your dealing at somewhere between $16,500 and $23,000.

[28]     But there were also other occasions where you offered to supply cannabis to associates, at least seven.  In those cases, the extent of the dealing has not been able to be identified.

[29]     The Crown would like me to factor in that figure, that is the seven associates, as part of your on-going involvement throughout the indictment period.  I accept that your involvement is likely to have extended much wider, but I am not going to sentence you upon mere speculation.   I place the most significant weight on the quantities that it is proven you have supplied.

Personal circumstances

[30]     I must now say something about your personal circumstances.  I have been assisted by some quite detailed pre-sentence reports which look at your backgrounds and the contribution to your offending.  I have also read and considered the helpful, often anguished letters and materials submitted on your behalf.

Haine

[31]     Turning to you, Mr Haine. You are 30 years old.  You have no previous drug offences, only some driving and traffic offences.  Until the time of your arrest, you have successfully operated your own earthmoving business.

[32]     Again,  like  your  co-offenders,   your  offending  stems  largely  from   a problematic drug addiction.  Over your life you have used cannabis extensively and appear to have encountered “white drugs” when working overseas in England.  But it is promising to hear that following your arrest, you are no longer using illicit drugs.

[33]     Your  parents  have  written  a  letter  to  the  Court  which  I  have  had  the opportunity to read.  Your parents start by discussing your upbringing, but then go on to express the torment and devastation they have felt from being blocked out from your addiction problems.  There is no doubt in my mind that you too feel the pain they have.   Two additional letters of reference have been provided, including one from a former employer who sings your praises, particularly in relation to your strong work ethic.  Another letter from another employer was received this morning.

[34]     You too have provided me a letter.  That letter expresses the deep regret you have for your actions because of the consequences on your family, friends and the community at large.  This realisation has come now that you have been drug free for three years.  You say that while you once saw your offending as a victimless crime, you saw the devastating effects of methamphetamine on the female friend who you used to supply.  She lost her job and stole money from her family.  You go on to say that the turning point for you was in 2010 when you confessed your addiction and your offending to your parents.

[35]     This show of contrition is backed up by the pre-sentence report provided by the Probation Service.    You have completely accepted the convictions for methamphetamine and LSD offending.  You say that you were involved with these drugs simply to assist friends and do not regard yourself as a dealer.  Your outlook is favourable, being assessed as at a low risk of reoffending and harm to others.

Murphy

[36]     Turning to your personal situation Mr Murphy.   You are 30 years of age. You are in a stable relationship of six years duration and you have strong familial support.   Although you left school at the minimum age, you have maintained employment ever since.  Prior to being remanded in custody, you were employed as a farm manager on your grandfather’s dairy farm.   Your grandfather speaks very highly of your work ethic.

[37]     You do not have an extensive record for offending, and the convictions you do have are for relatively minor matters.  I note you have one previous conviction for possession of cannabis, but that is your only previous drug conviction.

[38]     A familiar pattern is emerging that, like other co-prisoners, your offending stems largely from your long term methamphetamine abuse, over at least 10 years. Unlike many offenders you have had people reach out to you to help with this addiction.  It is saddening to hear of the futile attempts by your father to get you to kick it.  However, it is promising to hear that you ceased using the drug two years ago.

[39]     While you are assessed as being a low risk of re-offending and pose little risk of harm to others, you now accept your responsibility for your offending.  I note that the  maintenance  of  innocence  appearing  in  the  pre-sentence  report  does  not accurately reflect your position.

Carlisle

[40]     Now you Mr Carlisle.  You are 30 years of age and your report speaks of you having a turbulent childhood punctuated by early expulsion from school and the influence of negative peers, which in turn led to juvenile and then adult offending.

[41]     You have a 12 year old son living in Australia from whom you are estranged. Your employment history does not paint you in a particularly good light.   You ceased receiving the unemployment benefit seven months ago for failure to attend scheduled interviews.   I imagine that has placed great strain on your mother on whom you rely on for financial support.  I have been assisted by your mother’s very realistic letter which I have read this morning.

[42]     Again, your offending largely stems from your perceived need to support your methamphetamine habit, an addiction which has extended over some 12 or 13 years.  But you have expressed a desire to rid yourself of drug dependency.  I look at that statement with some scepticism given your inability to offer to the probation officer an assurance that once released, you would not revert to further offending to

underwrite your methamphetamine addiction.   A letter you have given me today expresses remorse in a number of passages and you realistically have identified the problem you have with drug abuse.  Although you say you are highly motivated to change for the better your past track record does not suggest that that is going to be easy for you but the answer to your problems lies in your own hands.

[43]     While you have a substantial criminal history, only two of your previous convictions are drug related.  One in 2002 for possessing methamphetamine and one in 2005 for possessing methamphetamine utensils.   You are assessed, unlike the other co-prisoners as being at high risk of reoffending and posing a medium risk of potential harm to others.

Michael Gray

[44]     Finally, turning to your circumstances Mr Gray.   You are 28 years of age with no children and a sign writer by trade. You have no previous convictions or outstanding fines.

[45]     Given that your father, Stephen, is the central figure in this operation, it would be easy for  you  to  have  attributed  blame on  him  for  your  involvement. However, you accept responsibility, which is admirable, and will accept whatever punishment is handed down by the Court.

[46]     You told the report writer that this experience has been an “eye opener” given the impact it has had on your family.  While you were at one time a drug user, you have had no involvement with drugs since your arrest in 2009. You are assessed as posing a low risk to others and are a low risk of offending further.  You have been on bail since your arrest in 2009 and, as your counsel has pointed out, have complied with all the conditions imposed on you.

[47]     The purposes and principles of sentencing found in the Sentencing Act2  are my overarching considerations in sentencing you today, but I briefly mention only a few of them.  As with any drug offending, the need for denunciation and deterrence is of the utmost importance.  But I must also consider any rehabilitative needs you have, particularly in the presence of chronic addiction.  The sentences that I impose must be consistent with those handed down for similar offending, and I will turn to those cases in a moment.  I am also mindful of s 6(4) of the Misuse of Drugs Act which presumes a custodial sentence for drug dealing.

Tariff cases

Methamphetamine

[48]     I must be guided by the Court of Appeal’s tariff judgment of R v Fatu.3

There is no need for me to spell out the bands which are involved on which counsel agree.   I note band 3 which refers to supply of large commercial quantities (250 grams – 500 grams) stipulates imprisonment from 8 – 11 years.

[49]     The  bands  are  identifiable  by  weight.     But  weight  is  not  the  only consideration in assessing the offending.  The purity of the methamphetamine is also relevant.  These bands are based on methamphetamine which has a purity value that exceeds 60%.  Where purity falls below that, a less stern response is to be expected.4

The role an offender plays in the operation also goes to the assessment of starting points.5

[50]     It is these additional considerations which led the Court of Appeal to set the bands so that they overlap.6

2      Sentencing Act 2002, ss 7 and 8.

3      R v Fatu [2006] 2 NZLR 72.

4 Ibid, at [30].

5 Ibid, at [31].

6 Ibid, at [9].

[51]     There are also cannabis charges faced by some of you.  The Court of Appeal in  R  v  Terewi  set  sentencing  bands  for  cannabis  cultivation  and  supply:7      The amounts  involved  for  the  counts  I  am  dealing  with  suggest,  as  counsel  agree, category 2.

[52]     It is these bands which will guide me when assessing starting points for the cannabis offending.

Sentences

Haine

[53]     Mr Haine will you please stand.   For sentencing you, I take count 2, the supply of methamphetamine, as your lead charge.  The Crown submits that I should take a starting point of 5½ – 6 years imprisonment on the basis that you supplied 60 to 80 grams of methamphetamine over the indictment period.   On a global basis, including the LSD and cannabis charge, the Crown says I should take a starting point of seven years imprisonment.

[54]     Of course, I have already rejected the “extrapolation approach”, and agree with Mr Hesketh that a lower starting point should be taken.   For setting your starting  point  it  is  appropriate  to  be  mindful  of  Mr  Bates  and  the  sentence  he received.  He was charged with one count of conspiring to supply methamphetamine, a charge which carries a maximum penalty of 14 years imprisonment,8 as opposed to life imprisonment as this is the maximum for supply.

[55]     In sentencing Mr Bates, Ellis J took a starting point of three years and nine months   imprisonment   for   transactions   involving   a   total   of   15.1   grams   of

methamphetamine.   Despite pleading guilty to a charge of conspiracy, Mr Bates

7      R v Terewi [1999] 3 NZLR 62.

8      This is compared to the maximum penalty of life imprisonment for supplying methamphetamine.

himself admitted to supplying his partner with methamphetamine, and so Ellis J took a starting point very close to the starting point she would have taken were the charge solely for supply.   She said that if Mr Bates were being sentenced for supply of methamphetamine, she would have adopted a starting point of four years imprisonment.  As it was a charge of conspiracy, she was prepared to give a small three month reduction, bringing it to a starting point of three years and nine months imprisonment.

[56]     Mr Hesketh has said that Mr Bates’ offending is far graver than your own. I disagree.  In fact I find them strikingly similar.  The proven quantities were both 15 grams, and in both cases there was supply to one person.9    I can see no reason to depart from the period of four years imprisonment suggested by Ellis J and I accordingly adopt it in relation to your methamphetamine charge.  In so doing I am mindful of Ms Foster’s submissions that you could well have been supplying a

greater quantity and you probably were.   But to the extent that the four year start point is lenient I am prepared to accord that to you.

[57]     Then there is the matter of your charge of possessing 161.5 LSD tabs for the purpose of supply. LSD, like methamphetamine, is also a Class A controlled drug. The maximum penalty for this charge is life imprisonment.

[58]     Despite what the Crown has submitted to me,10 (a start point of 2½ years) the cases clearly spell out that you could expect a starting point of between three and four years imprisonment on the LSD charge alone, even where there is no evidence of sales.11   However, the jury acquitted you on the count of selling LSD and, despite the large volume of tabs you had, there is little to go on other than the presumption. Intercepts suggest you were trying to sell LSD but to a limited and unsuccessful

extent.  I thus do not propose a significant uplift.

9      Ellis J was not prepared to accept as proven that more than one person had been supplied by Mr

Bates: [17].

10     The Crown submitted that the LSD offending would attract a starting point of 2 and a half years’

imprisonment if it stood alone.

11     R v Watts HC Hamilton CRI-2006-019-7089, 8 April 2008 per Woodhouse J at [11]; R v Love

HC Palmerston North CRI-2009-054-5597, 4 September 2009 per Gendall J.

[59]     As for the charge of conspiracy to cultivate cannabis, I do not consider this particularly aggravating.  Nor do I intend to impose an uplift for it.

[60]     In terms of an uplift from the starting point of four years, I consider the LSD charge to be significantly aggravating and so impose an uplift of 12 months on account of the additional charges.   That brings your sentence to five years imprisonment.

[61]     I now turn to whether there are personal aggravating or mitigating factors relevant to you Mr Haine.  The obvious issue for me to determine is whether you are entitled to a discount for remorse.  You did not plead guilty.  But the Supreme Court has said that remorse is a separate consideration from a plea.12    I am going to take the approach of giving you a small remorse discount despite your plea of not guilty. I  am  satisfied  that  you  have  demonstrated  real  contrition,  exemplified  by  the

understanding you now have of the impact your offending has had on your own family, your friend to whom you supplied, and the community at large.   On that basis, I give you a three month discount, reducing your end sentence to four years and nine months.

[62]     So Mr Haine, on count 2, for supply of methamphetamine, I sentence you to four years and nine months imprisonment.   To be served concurrently with that sentence, I sentence you to three years imprisonment on the charge of possession of LSD for the purposes of supply.  On the charge of conspiracy to cultivate cannabis you are discharged.  So the total term of imprisonment you are going to serve Mr Haine is one of four years and nine months imprisonment.  You can sit down.

Murphy

[63]     Mr  Murphy will  you  stand  please.  I  will  begin  with  your  lead  offence, supplying methamphetamine.  There is no doubt your dealing, in the vicinity of 42-

48 grams of methamphetamine, possibly slightly higher, falls squarely into Band 2

of Fatu, or three to nine years imprisonment.

12     Hessell v R [2011] 1 NZLR 607 at [64].

[64]     The Crown has submitted to me, Mr Murphy, that I should take a global starting point of six  years  imprisonment for  your offending.    That includes the cannabis offending for which you are also being sentenced, and which on its own would normally attract a starting point of 2 – 2½ years imprisonment.

[65]     For you, Ms Tustin has submitted that I should take a starting point of four years imprisonment in relation to your methamphetamine offending and uplift this by six to 10 months to appropriately reflect the aggravating nature of the cannabis charges.

[66]     The cases indicate to me that 4½ years imprisonment is the starting point that properly reflects your methamphetamine offending.13   But there is the matter of your cannabis offending that I need to consider. I intend to impose a concurrent sentence in respect of the cannabis offending.

[67]     On its own, I would set a starting point of two years imprisonment for the cannabis offending, the lowest end of Category 2 of Terewi.  While I accept there was commerciality involved in the cannabis dealing, in the absence of evidence as to actual sales, I would place a starting point at the bottom of the range.   But as an aggravating feature of the methamphetamine offending, I am satisfied that a nine month uplift properly reflects your offending.  That brings me to a sentence of five years and three months imprisonment.

[68]     Ms Tustin has said that I should consider a small deduction for your limited drug history, lack of sophistication in drug dealing generally, the prospects of your rehabilitation and your remorse.

[69]     I also intend to give you are small credit to help your rehabilitation and to reflect that remorse.  I do not regard your 2003 cannabis conviction as relevant and see no need to uplift.  Although some of your convictions point to lawlessness on your part I nonetheless consider you should be given a three month discount to

reflect the low level re-offending risk and to extend leniency.

13     R v Turner [2012] NZHC 521per Heath J; R v Bradley [2012] NZHC 2249 per Woolford J; R v

De Serville HC Auckland CRI-2006-004-18441, 29 August 2008 at [23].

[70]     I do not consider there to be any other mitigating features personal to you that would warrant a discount.

[71]     Thus, in respect of your conviction for methamphetamine Mr Murphy,  I sentence you to five years imprisonment.   In respect of your convictions for cultivating and selling cannabis, I impose concurrent sentences of two years imprisonment on each charge.  So the total term of imprisonment you will be serving Mr Murphy is one of five years imprisonment.  Thank you, you can sit down.

[72]     Although I have no power of direction I recommend to the prison authorities that you serve your sentence in the Waikato region so that you can remain in contact with your supportive family and particularly your children.

Carlisle

[73]     Mr Carlisle will you stand please.  You are being sentenced on what are two very separate sets of drug offending.  The first, which I shall refer to as “phase 1”, is the supply of methamphetamine charge resulting from Operation Cape.  The second, which I shall refer to as “phase 2”, is the later offending occurring in the period immediately prior to your trial and during it.

[74]     I intend to impose cumulative sentences on you.  Both counsel agree that this is appropriate.   That means your total term of imprisonment will be a sum of the sentences handed down for each set of drug offending.  As both counsel have said today, your phase 2 offending is the more serious for which you appear for sentence.

[75]   Two charges arise from your phase 2 offending, one of supplying methamphetamine  and   one  of  offering  to   supply  methamphetamine.     Your culpability in respect of each is much the same, so I intend to impose identical sentences in respect of each, although each will be served concurrently with the other.

[76]     Ms Foster, for the Crown, has submitted that I should take a starting point of

4½ – 5 years imprisonment.  To that, an 18-month uplift should be taken seriously to

denounce the fact that the phase 2 offending was committed in the throes of your trial for the same type of offending.

[77]     For you, Mr Laybourn accepts the appropriateness of a 4½ year starting point plus an 18-month uplift for the phase 2 offending.

[78]     A decision of Justice Woodhouse in R v Brewis14 took a starting point of five years imprisonment for broadly similar offending.  I do the same.

[79]     I now turn to the fact that the phase 2 offending occurred not just while on bail, but for the first part of your trial.   You displayed, Mr Carlisle, unbelievable arrogance and stupidity to continue to offer methamphetamine  and sell it while remanded on bail and during your trial.  This requires significant denunciation and I agree with both counsel that an uplift of 18 months imprisonment is appropriate. That takes your sentence to 6½ years imprisonment.

[80]     I do not consider you need to have your sentence uplifted on account of your previous drug convictions.  This is much more serious offending than what you have been convicted for in the past.

[81]     In respect of your phase 1 offending, the Crown seeks a one year cumulative term of imprisonment.

[82]     For the phase 2 offending an appropriate start point is thus one of 6½ years imprisonment which reflects both supply and offering to supply.  From that, because of your very early guilty plea, you are entitled to a 25 percent discount which would bring  the  sentence,  rounding  down,  to  one  of  four  years   and  10  months imprisonment.  I agree with Ms Foster that a cumulative sentence of one year should be added to reflect your phase 1 offending.  I do not consider, despite Mr Laybourn’s submission, that there should be any discount for your mid-trial guilty plea which was entered not because of any realisation that the writing was on the wall for the one count you faced, but was instead driven by a sensible assessment that the best

way to extricate yourself from the mess your phase 2 offending had landed you in

14     R v Brewis HC Auckland CRI-2009-090-6454, 15 December 2009 per Woodhouse J.

was to plead guilty.  So the end sentence for you will be one of five years and 10 months imprisonment.  And that Mr Carlisle is four years and ten months on your later offending and one year cumulative on your later offending.   Thank you, you can sit down.

Michael Gray

[83]     Please stand Mr Gray.   You are being sentenced for having supplied 66 ounces of cannabis.  The Crown seeks a starting point of 3½ – 4 years imprisonment.

[84]     But Mr Sutcliffe, in his excellent submissions on your behalf, has taken a markedly different  view  of  your  offending.    He  says  that  parity with  your  co- offender, Mr Ross, should be a crucial factor in the sentence I impose.   In the sentencing indication of Mr Ross,15 Lang J indicated that your father, Stephen Gray, would likely receive a starting point of 3½ years imprisonment in relation to the cannabis cultivation.  He was the major player, but his assistant, Mr Ross, received a

starting point of 2½ years.  This, Mr Sutcliffe says, warrants a starting point of 2½

years for you as well.

[85]     Mr Gray, your offending falls around the middle of category two of Terewi. I find your offending to be broadly comparable to cases such as R v Gray,16  no relation, and R v Bhana.17   Those cases involve regular and consistent street dealers in cannabis, with significant financial return resulting.  The starting points were set just above the middle of category two.

[86]     In setting your starting point, I have to be mindful of the sentence imposed on Mr Ross.  He was a secondary party to Stephen Gray, the principal of the operation. Lang J spoke of some 91 ounces of cannabis having been distributed by Stephen Gray as part of this operation.18   I am not in a position to assess the accuracy of that today.  However, it does point strongly to you being one of the major dealers in this

operation.  I intend to set a starting point for you that is higher than the 2½ years set

15     R v Ross HC Hamilton CRI-2010-019-2006, 27 September 2012 per Lang J.

16     R v Gray HC Auckland CRI- 2006-004-3200, 25 September 2007 per Allan J.

17     R v Bhana HC Whangarei CRI-2008-027-3050, 22 July 2009 per Allan J.

18     R v Ross HC Hamilton CRI-2010-019-2006, 27 September 2012 at [4].

for Mr Ross, namely three years imprisonment.  I could, as Ms Foster has urged on me, go higher.  I note her submission that perhaps Lang J was being benevolent but nonetheless, for reasons of parity and consistency, I consider a three year start point for you Mr Gray is appropriate.

[87]     In  adjusting  your  starting  point  for  personal  circumstances,  Mr  Sutcliffe submits that there are a number of mitigating factors which should collectively attract a generous discount.  These include your guilty plea, remorse, previous good character, you are a first offender, and the subordinate role you played in the operation.   But undoubtedly you were comfortable with your father as a regular source of supply of cannabis for you to on-sell to others.

[88]     You have no previous convictions, you generally accept responsibility for your offending, and have been on bail since your arrest without incident. For those personal circumstances, I will afford you a six month discount.  That would bring your sentence to two years and six months imprisonment.

[89]     As for your guilty plea, Mr Sutcliffe points to the fact that you indicated to the Crown your willingness to plead guilty prior to committal provided the methamphetamine charge against you was dropped.  I have had a lengthy discussion with both counsel on this aspect.  Unfortunately, through no fault of your own, an unequivocal offer to plead guilty to the cannabis charge was never made.  When the methamphetamine  charge was  withdrawn on  the morning of the  trial,  you  then pleaded guilty to selling cannabis. Accordingly, Mr Sutcliffe submits that you should receive a full 25% discount for your indication of a guilty plea.   Ms Foster understandably opposes that.

[90]     I am prepared to accept Mr Sutcliffe’s submission that you were prepared to plead  guilty prior  to  committal,  but  were  negotiating  over  the  withdrawal  of  a methamphetamine charge.   However, in my view there are no strong grounds to afford you a full discount.  The two charges were qualitatively different.

[91]     Therefore, I am only prepared to afford you a four month discount (just under

15 percent).  I am aware that brings your end sentence to two years and two months.

This rules out home detention which, even if I had reached a sentence of two years imprisonment, I would  not have imposed, given the scale and duration of your offending, in the exercise of my sentencing discretion.

[92]     So for you Mr Gray, your end sentence on the charge of selling cannabis is two years and two months imprisonment.

[93]     I recommend to the prison authorities, in respect of all four prisoners I have sentenced today, that they be offered the opportunity to attend courses relating to drug rehabilitation and drug addiction.

[94]     I  want  to  thank  both  the  prisoners  and  supporters  for  your  courtesy throughout a long and difficult sentencing.  Thank you too, counsel, for your helpful and focused submissions.  That concludes the exercise.  Take all four prisoners down please.

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Priestley J