R v Heke

[2017] NZHC 2187

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-Ā-TARA ROHE

CRI-2015-085-1885 [2017] NZHC 2187

THE QUEEN

v

ROLLIE JAMES HEKE

Counsel:

P K Feltham for Crown

M W Ryan for Defendant (via AVL)

Sentencing:

8 September 2017

SENTENCING NOTES OF CLARK J

[1]      Mr Heke, I am to sentence you today on:

(a)       one charge of importing methamphetamine;1 and

(b)      one charge of conspiracy to import methamphetamine.2

[2]      You have pleaded guilty to both charges.

Background to the offending

[3]      In 2013-2014 the Organised and Financial Crime Agency of New Zealand, along with the Department of Corrections and the New Zealand Customs Service,

conducted  an  18  month  investigation  codenamed  “Operation  Gandolf”.     The

1      Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2)(a) (maximum penalty life imprisonment).

2      Section 6(2A)(a) (maximum penalty 14 years’ imprisonment).

R v HEKE [2017] NZHC 2187 [8 September 2017]

operation  targeted  the activities  of an  organised  criminal  group involved  in  the importation and distribution of methamphetamine throughout New Zealand.   You were one of the defendants involved in the group.

[4]      The mastermind was Mr Atta, a co-defendant.   He was serving a full-time custodial  sentence  at  the  Rimutaka  Prison.     From  there  he  coordinated  the importation of methamphetamine by using contacts in Thailand.  The contact would give Mr Atta details as to how the money was to be transmitted by a buyer such as yourself.  The buyer would provide a New Zealand address to which the drugs were to be sent.   The Thai contact provided Mr Atta with the postage track and trace details and Mr Atta passed on those details.  If the delivery succeeded Mr Atta would then be paid $5,000 by the buyer for his efforts. The drugs belonged to the buyer.

[5]      Like Mr Atta, you were a serving prisoner.  And you followed the pattern I

have just outlined for importing a quantity of methamphetamine.

[6]      There was one complete importation and a second planned one which was well  advanced  when  police  intervention  ended  it.    The  second  importation  is captured by the conspiracy charge.

Importing methamphetamine

[7]      In   early   September   2014   you   arranged   with   Mr   Atta   to   import methamphetamine into New Zealand using Mr Atta’s system.  You were in prison at the time and without access to a mobile phone so you could not contact Mr Atta directly. You made indirect contact through Ms Moka, your mother.

[8]      On Friday 12 September 2012 Mr Atta rang Ms Moka and advised her the package containing methamphetamine had arrived in New Zealand and she should expect it the following Monday.  Mr Atta said he needed the $5000 payment from you as soon as possible.

[9]      The  package  arrived  at  Ms  Moka’s  home  on  the  Monday.    You  called Ms Moka on Tuesday and she told you the package was at her home.  It was safe. You told Ms Moka you would give her a bank account number to pay $5,000 into,

the  $5,000  being  Mr Atta’s  fee  for  the  successful  importation  of  100g  of methamphetamine.

[10]     Later you attempted a further importation.  That brings me to the conspiracy conviction.

Conspiracy to import methamphetamine

[11]     Between 16 September and 17 October 2014 further calls and text messages were exchanged between you and Ms Moka, and Ms Moka and Mr Atta to arrange further importations of methamphetamine.  There were delays in getting the names you wanted from Mr Atta because Ms Moka had put the $5,000 owed to Mr Atta into the  wrong  bank  account.    He  refused  to  provide  further  names  of  contacts  in Thailand until he had been paid.

[12]     On 6 October Ms Moka confirmed the money had been paid and the names of two associates in Thailand were provided.

[13]     On 16 October Mr Atta called Ms Moka.  She relayed your instructions to her to deposit the money into Mr Atta’s wife’s account.   Mr Atta warned Ms Moka people had been arrested and advised they should not do anything else for a while. Mr Atta was arrested that night.

Starting Point

[14]     In sentencing you, I have to identify a starting point and then adjust that to reflect any aggravating or mitigating factors personal to you.

[15]     The importation charge is the lead charge for the purpose of setting a starting point.  The Court of Appeal has set guidelines for sentencing for offending involving the  supply,  importation  or  manufacture  of  methamphetamine.3      An  importer  is

regarded as more culpable than a supplier.  On the assumption you imported 100g of

3      R v Fatu [2006] 2 NZLR 72 (CA).

methamphetamine your offending fits within the mid-range of band two,4 attracting a starting point of between three years six months, and 10 years imprisonment.

[16]     The more significant the offender’s role in the importation, the closer the

sentence will be to the top end of the band.5

[17]     Importation  involves  planning.    That  is  obvious.    But  your  importation involved a degree of planning and premeditation beyond the planning that is inherent in arranging importation.  To arrange importation from within prison requires a level of commitment and forethought and care which elevates the premeditation beyond the level that is intrinsic in importation.   And you needed an intermediary.   You found your intermediary in your mother.   The Crown submits the level of premeditation  as  well  as involving  your family are  matters  that  aggravate  your offending.

[18]     I agree with the submissions of your counsel, and the Crown that a starting point  of five  years imprisonment  on  the importing charge is  appropriate.    It  is consistent with the sentence indication given to you by Simon France J in November

2015.

Uplift for conspiracy charge

[19]     The Crown submits an uplift of six months for the conspiracy charge is appropriate. Your counsel agrees.  This too is consistent with the sentence indication you received.

[20]     That  brings  the  starting  point  for  my sentence  to  five  years  six  months imprisonment.

4      At [36], “importing commercial quantities (5g to 250g)”.

5 At [31].

Personal aggravating features

[21]     The fact you were a serving prisoner at the time of these offences is a serious aggravating factor.  I see no basis for departing from the uplift of 15 months which Simon France J indicated.

[22]     Your counsel submits the uplift should be only 9 months because uplifting by

15 months would have the effect of punishing you for your past offending and you have already been sentenced for that.   But the uplift is not for your previous convictions.   It is solely because the offences were committed while you were a serving prisoner. And for that aggravating feature a 15-month uplift is warranted.

[23]     So I reach a starting point of six years nine months’ imprisonment.   I now

turn to consider whether there are personal mitigating factors.

Personal mitigating features

Rehabilitative efforts

[24]     You were granted EM bail in July 2016 upon entry of your plea so that you could attend a drug rehabilitation programme at the Salvation Army Bridge Programme in Wellington.  However, you cut off your EM bracelet and absconded. As a result your involvement in the programme ceased.  So you are not entitled to any reduction for rehabilitative efforts.

Guilty Plea

[25]     You are entitled to a discount for your guilty plea.6    Your plea on 22 July

2016 came comparatively late considering your sentence indication was given on

2 November 2015.  The Crown submits that a discount of 20 per cent is appropriate. Your counsel submits you are entitled to the full 25 per cent discount especially to maintain parity with 25 per cent to two of the co-accused who entered guilty pleas at

a later point than yours.

6      Sentencing Act 2002, s 9(2)(b).

[26]     The explanation for the 25 per cent reduction in those cases, however, is that each of the two accused were given a sentence indication which they rejected.  The Crown amended the charges and a further sentence indication was given.   They entered guilty pleas promptly following amendment of the charges.  The 25 per cent discount given to them was consistent with the principle that a defendant can expect to  receive  the  full  25  per  cent  discount  if  a  guilty  plea  is  entered  at  the  first reasonable opportunity.

[27]     Your plea, entered some eight months following your sentence indication, was  not  entered  as  soon  as  you  had  the  opportunity  to  be  informed  of  the implications of a plea.  In the circumstances a 20 per cent discount is appropriate.

[28]     The end sentence therefore is five years and five months imprisonment.

Sentence

Mr Heke please stand.   On the two charges to which you have pleaded guilty I

sentence you to five years and five months imprisonment.

Karen Clark J

Solicitors:

Crown Solicitor’s Office, Napier

M W Ryan, Auckland for Defendant