R v Hayward HC Auckland CRI-2011-092-4639

[2011] NZHC 1249

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-4639

THE QUEEN

v

JENE CHE TEWANA HAYWARD

Hearing:         13 September 2011

Appearances: M Williams for Crown

F Godinet for Prisoner

Judgment:      13 September 2011

SENTENCING REMARKS OF LANG J

R V HAYWARD HC AK CRI-2011-092-4639 13 September 2011

[1]      Mr Hayward, you appear for sentence today having pleaded guilty in the District Court to three charges of being in possession of cocaine for supply.  As you now know, the maximum sentence for each of those charges if life imprisonment. That is why the District Court declined jurisdiction and committed you to this Court for sentence.

Facts

[2]      The charges against you follow two police operations aimed at intercepting cocaine being imported into New Zealand and distributed here.   The operations targeted the importer and those persons who received the cocaine once it arrived in New Zealand.  During the course of the operation, they became aware that you were one of the people who was purchasing cocaine in relatively large amounts from the people who received it once it arrived in New Zealand.

[3]      You  face  three  separate  charges.     The  first  relates  to  an  incident  on

18 December 2009, when you acquired, on your version of events, eight ounces of cocaine at $6,500 per ounce.   This meant that you paid $52,000 for that cocaine. Then, just three days later on 21 December 2009, you obtained a sample of two to three grams and then returned to purchase eight ounces of cocaine for the sum of

$40,000.  Then, three days later on 24 December 2009, you obtained a further two ounces of cocaine for the sum of $5,000 per ounce.  In total, therefore, you obtained

18 ounces of cocaine and you spent $102,000 in acquiring it.  You say that you then passed that cocaine on to others at no commercial profit.

Sentencing Act 2002

[4]      In any case involving dealing in Class A drugs, issues of deterrence and denunciation are to the forefront.  The only weapon the Court has at its disposal to deal with issues like this is the imposition of significant sentences.  Those who are prepared to import and become involved in the distribution of any form of Class A drug must know that if they are caught severe penalties will follow.   That is why Parliament has declared that life imprisonment is the maximum penalty for offending

such as this.  It wants the courts to send out the message that dealing in drugs will not pay in the event that drug importers and dealers are caught.

Starting point

[5]      I need first to select a starting point that reflects the culpability of your offending  viewed  overall.    This  means  the  blameworthiness  of  your  offending, putting to one side factors that relate to your personal circumstances.   That is not particularly easy in the field of dealing in cocaine, because our courts have not yet developed a tariff system, or guideline judgment, as they have done in relation to methamphetamine.  For that reason the best guide towards the starting point to be selected is the sentence imposed in other broadly similar cases.   I use the words “broadly similar” advisedly, because the circumstances of no two cases are ever exactly the same.

[6]      The Crown has referred me to a decision of the Court of Appeal in R v Yee1. In that case the offender had been found guilty of being in possession of 416 grams of 80 per cent pure cocaine for the purposes of supply.  That is a lesser amount than you were prepared to acquire. You have pleaded guilty to being in possession of 510 grams of cocaine for the purposes of supply.

[7]      One factor that was formerly in dispute in your case was the purity of the cocaine in question.   The police never obtained the cocaine that was in your possession, so they were unable to test it for purity.  They took the stance that it was likely to have been of similar purity to other cocaine that they did acquire and analyse during the operation.  This was generally found to be more than 60 per cent in purity and up to about 80 per cent. You maintain that the purity of the cocaine that you dealt with was around 54 per cent.  You point to the fact that one of your co- offenders was in possession of cocaine and cutting agents, thereby indicating that cocaine that you received from that source was likely to be of a lesser purity than

that found elsewhere in the operation.

1 R v Yee CA 169/01 29 November 2001 (CA).

[8]      Originally this issue, together with a minor dispute regarding the quantity of cocaine involved, was due to be the subject of a disputed facts hearing.  That was resolved,  however,  when  Potter  J  concluded  that  whatever  determination  was reached in relation to the quantities and purity involved would not make a significant difference to the outcome.2     I am prepared to sentence you on the basis that the purity of the cocaine that passed through your possession was indeed around 54 per cent as  you  say.   This  means that  you were in possession of cocaine that  was significantly less pure than was the offender in Yee.

[9]     In Yee the sentencing Judge had taken a starting point of eight years imprisonment.    The  Court  of  Appeal  noted  that  it  was  difficult  to  assess  the culpability of the offender in that case because it was impossible to ascertain whether he was high up in the distribution chain or merely a courier.  In your case, I take you to be a wholesaler, who was prepared to purchase cocaine in significant quantities for onward distribution to others.

[10]     Given the relative purity of the cocaine that you dealt in, and the amount, I would therefore have ordinarily have assessed the culpability of your offending as warranting a starting point of around eight years imprisonment in accordance with Yee.  It also broadly accords with the starting point prescribed by the Court of Appeal in R v Fatu3 in relation to methamphetamine.  Counsel for the Crown suggests that a comparison with the sentences imposed in methamphetamine-related offending provides a useful cross-check when considering the starting points to be applied in relation to cocaine offending.

[11]     There are, however, factors relating to your offending that I need to take into account when fixing the starting point, because they affect the gravity of your offending.

[12]     Your counsel has placed before me a large amount of material setting out the manner in which you came to be involved in the acquisition of cocaine.  This is to

the effect that you did not set out voluntarily to become a dealer in cocaine.  Rather,

2 R v Hayward HC Auckland CRI-2001-092-4639, 2 August 2011.

3 R v Fatu [2006] 2 NZLR 72.

you were placed in that position by an unfortunate set of circumstances arising out of your dealings with other people in business.

[13]     In 2007 you set up a café and you operated that successfully.  Side by side with the café you operated a successful firewood business.  You then came to know another person, who offered to buy your firewood business for the sum of $120,000. You agreed to sell the business to him, but he failed to make payment in full. Ultimately, you were left owing the sum of $20,000 from the sale of this business. This was a matter of some stress for you because you dealt regularly with this person, and he continually promised to pay you the balance outstanding.

[14]     The pressure intensified when this person started up a restaurant across the road from your café.  He renovated that restaurant, obviously at some cost, whilst maintaining that he had no money to pay you for the firewood business.  You then had the misfortunate to become involved with another associate, who owed the person across the road the sum of $10,000. You became involved in this dispute, and the person across the road sent associates to visit you.  They required you to pay the sum of $30,000 to meet the debt owing by your friend and also a tax.  You were physically assaulted and the windows of your business were smashed.  I accept that at this point you were under a significant degree of stress.

[15]     This led you to make a mistake that was to have tragic consequences.  Rather than go to the police, you endeavoured to find another way out.  When a customer came into your café and asked if you knew anyone who might be interested in acquiring cocaine, you eventually suggested that the people across the road might be interested.   You say that you thought that you would simply be an intermediary whose role was to introduce buyer to seller.   That was not what happened.   You ended up becoming the person who acquired the cocaine and then passed it on to the persons across the road.  You say that you made no profit out of this, because the persons across the road provided you with the cash to acquire the cocaine.

[16]     I have no means of knowing whether or not that is correct, and that issue may well be tested in other proceedings where the Crown is asking the Court to make orders that you forfeit property to it.  For sentencing purposes, however, I proceed on

the basis that you were an intermediary between two groups rather than a dealer in your own right.  I therefore accept that that reduces your culpability to some extent.

[17]     The issue of duress is much more difficult.  The courts unfortunately often see people who become involved in criminal offending of one sort or another by virtue of duress placed  upon them by others.    People in particular positions of vulnerability are often selected.

[18]     The problem with providing a significant reduction in penalty for persons who offend in those circumstances is that it encourages such behaviour.  If people who prey on vulnerable people know that those persons will receive light sentences, then it will encourage them to carry on that type of behaviour.   People in your position also need to know that the only proper way to deal with such a situation, difficult as it may be, is to disclose what is happening to others.

[19]     In this case you chose to hide what was happening, even from your wife, who had  no  idea  what  was  going  on  until  such  time  as  the  police  arrived  at  the termination of the operation to arrest you.  As I have said, that was a mistake that will now have major consequences for you.

[20]     Having regard to all of those factors I am prepared to go below a starting point of eight years imprisonment.  For the reasons I have given, however, I cannot go far below it.  People who ultimately choose to become involved in offending such as this must know that, to a large extent, the courts will regard them as dealers in their own right.   For that reason I have selected a starting point of seven years imprisonment in your case.

Aggravating factors

[21]     Although you have some traffic convictions, you have no other aggravating factors personal to you that would operate to increase the starting point that I have selected.

Mitigating factors

[22]     In terms of mitigating factors there is the obvious factor of your guilty pleas that the Crown accepts were entered at the earliest opportunity.  The Supreme Court in R v Hessell4  has said that the maximum discount for early guilty pleas is 25 per cent.5    The Crown accepts that that is an appropriate discount to give in your case, and I propose to reduce your sentence by one year nine months to reflect that factor.

[23]     Ordinarily  in  serious  drug-related  offending  it  is  difficult  to  justify  any further discount to reflect factors personal to the offender.  The courts generally take the view that people who become involved in offending this serious effectively lose the right to put forward further mitigating factors of a personal nature.

[24]     I accept, however, that there are two further factors for which I can justify a greater discount.  The first of these is the fact that I accept that you are genuinely remorseful about your offending.   Prior to the decision of the Supreme Court in Hessell, the Court could only give recognition for remorse through the discount that it gave for guilty pleas.  The Supreme Court in Hessell said that that approach was wrong, and that in appropriate cases the Court could provide an additional discount

to reflect genuine remorse.6   It noted, however, that the Court is not bound to accept

that remorse is genuine because, quite often, the offender will only be feeling sorry for himself or herself.

[25]     In your case I accept you realise the enormity of what you have done.  You have let down your family, your friends and everybody dear to you.  You have left your wife in a particularly difficult position, because she had a very newborn baby at the time that you were arrested.  It was a total shock to her, as I have said, to see the police arrive and then to discover what you had done.

[26]     I have read the many references that your friends and family have provided to me.  They show that you are a person with genuine talents and qualities, who should

4 R v Hessell [2011] 1 NZLR 607.

5 At [75].

6 At [65].

not be sitting where you are now.  So I accept that the remorse that you display is genuine, and that it deserves recognition.

[27]     The  second  factor  is  that  you  have  suffered  from  a  significant  medical condition since you were 22 years of age.  This has manifested itself in a number of forms since that time.  Your counsel has placed before me medical evidence relating to the difficulties that this condition provides you with.  I have no doubt that your time in prison is going to be more difficult because of that.

[28]     Taking those two factors into account, I am prepared to provide a further discount of six months, which leads to an end sentence of four years nine months imprisonment.

Minimum term of imprisonment

[29]     Normally  when  the  Court  sentences  an  offender  to  imprisonment  for offending of this type, it will give consideration to imposing a minimum term of imprisonment.   This means the minimum term that a prisoner will be required to serve before being eligible to apply for parole.   Normally a person is eligible to apply for parole after serving one-third of his or her sentence.   The Court can increase that to up to two-thirds to take into account the need to impose a deterrent sentence and to reflect factors such as denunciation and accountability.   I have no doubt that those factors are properly reflected in the sentence that I will impose, so I see no need in your case to impose a minimum term of imprisonment.

Sentence

[30]     On each of the charges to which you have pleaded guilty you are sentenced to four years nine months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

F Godinet, Auckland