R v Harland

[2017] NZHC 1226

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-9435 [2017] NZHC 1226

THE QUEEN

v

STEPHEN JAMES HARLAND

Hearing:	7 June 2017
Appearances:	S McColgan for Crown R Harrison for Defendant
Sentence:	7 June 2017

SENTENCING NOTES OF FOGARTY J

Solicitors:

Meredith Connell, Crown Solicitors, Auckland

Copy to:

R Harrison, Blenheim

R v HARLAND [2017] NZHC 1226 [7 June 2017]

[1]      Mr Harland, you appear for sentence having pleaded guilty to one charge of possession of methamphetamine for supply.  The maximum penalty for this offence is  life  imprisonment.    You  were  arrested  as  part  of  the  termination  of  a  drug operation, known as “Operation Tea”.   It was an investigation into the supply of methamphetamine into the Canterbury region by the Rebels  Outlaw Motorcycle Gang.  Methamphetamine was being sourced in Auckland and transported into the Canterbury region by the use of air travel and by vehicles.

[2]      On 13 September, you met with a co-defendant who gave you a rental car to drive to Christchurch.  The co-defendant put a bag that contained a Nike shoe box in the back seat of the vehicle and informed you, you were to drive the car to Christchurch where he would meet you and take delivery of the box.   The box contained 1.1558 kilograms of the class A controlled drug methamphetamine.  This has been estimated to have a street value of $1.558 million. You were intercepted by the police as you came off the Inter-Islander Ferry at Picton.

[3]      You have accepted that you were wilfully blind as to what was contained in the package.  You are not, it would seem, a methamphetamine user yourself.  You have no previous convictions.   Because of the quantity of methamphetamine your level  of  offending is  regarded  as  fitting  within  band  4  of  the Court  of Appeal decision settling the bands for sentencing.  That is you were supplying a very large commercial quantity. That band triggers at 500 grams, let alone 1 kilogram.

[4]      As I have said, you have no previous convictions. You have sent the Court an apology which I regard as a genuine apology and which I wish to read most of it out and put in the record. You say:

I would firstly like to express my sincerest apologies and remorse to the wider community for the impact these drugs would have had on its victims and their families.

I would also like to take this opportunity to apologise to my family for humiliating the family name and causing undue stress on my parents and siblings.

I know that there is no excuse for my actions over this time and if I was ever put in this position again I’d take the appropriate steps to find out what I have in my possession and why I have it in my possession.

[5]      You have heard argument this morning whereby your counsel invited me to follow a few decisions which drop below band 4.  I should emphasise that normally the sentencing involves a starting point of ten years once it is more than 500 grams.

[6]      As y ou have seen this morning from the exchanges of counsel, I have been persuaded  that  the  decision  of  R  v  Hughes1   a  decision  of Venning J  has  some similarities to this case.  The main difference being that, there Hughes had the drugs for a very short period of time, whereas you were driving the drugs the length of New Zealand, both a long journey and time-wise a lengthy journey.

[7]      I should also observe that your counsel has also relied on the recent decision of Moore J in R v Pene2 where Moore J also sentenced within what we call band 3, rather than the bottom of band 4.

[8]      I consider the facts of that case is significantly different than here.  That was a case involving participating in the manufacture of methamphetamine.  However, I agree that it is a decision which supports the willingness of Judges in particular cases on the facts not to apply the R v Fatu3 bands in a mechanical way, but to reflect the differences in facts.

[9]      I have been referring to the argument of your counsel, Mr Harrison.

[10]     Mr Harland, you will have seen that Crown counsel, Mr McColgan, has confirmed the merit of the argument put forward by Mr Harrison and as you have seen I have placed weight on his judgment and it is for that reason that I am satisfied that the appropriate starting point in this case is nine years.

[11]     In an earlier hearing, after you had entered your plea of guilty, it was agreed that  you  were  entitled  to  a  20  per  cent  discount.    For  technical  reasons  as Mr McColgan recognised at the time, you could not be reasonably expected to enter

your plea at an earlier date, so you were entitled to the full 20 per cent discount.

1      R v Hughes [2015] NZHC 22.

2      R v Pene [2016] NZHC 2787.

3      R v Fatu [2005] CRNZ 410.

[12]     Mr  McColgan  has  also  submitted  that  given  the  fact  that  you  have  no previous convictions and your history of good character to date it is appropriate that there be a further discount of six months for good character.

[13]     You have heard an exchange between counsel and I as to at what point you take the discount in.  The difference changes the sentence by about one month, but when I granted the 20 per cent discount I had in mind deducting it from the ten years.  So I have followed the process of deducting 20 per cent from the now starting point  of  nine  years,  and  then  allowing  for  the  six  months  for  good  character, resulting in an end sentence agreed between counsel of six years eight months.

[14]     Before  I  formally  sentence  you  to  that  I just  wish  to  make  some  other remarks.

[15]     Mr Harland, you have arrived at this point in your life because you became socially involved with members of this Christchurch or Canterbury gang.   I have received and taken into account the fact that these are not your normal associates. You have some very valuable friends who have written to the Court speaking up on your behalf and I cannot take that into account.  It reaffirms, however, what Crown counsel said to  you  about  your good  character hitherto and  I do take that into account, although I had already relied on that.  But it does give me some comfort that there is a very good prospect on your release that you will never offend again and I think you can be sure they will be there for you on your release.

[16]     If you would now stand.

[17]     Mr Harland, on the charge of possession of methamphetamine for supply, you are sentenced to imprisonment for six years and eight months.

[18]     There will be no forfeiture order.  The funds of cash taken by the police at the time will be returned to Mr Harland.