R v Helmbright
[2017] NZHC 1661
•19 July 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-085-3701
CRI-2013-085-11932 [2017] NZHC 1661
THE QUEEN
v
CLINT JOHN TUIRANGI HELMBRIGHT LEWIS CONSTANTINE PADDEN
Hearing: 19 July 2017 Counsel:
E M Light for Crown
E J Forster for Mr Helmbright
L C Padden in Person
B S Yeoman, Counsel Assisting the CourtSentencing:
19 July 2017
SENTENCING NOTES OF THOMAS J
[1] Mr Helmbright and Mr Padden you appear for sentence having been found guilty by a jury in respect of methamphetamine offending discovered as a result of the Police investigation known as Operation Nebraska.
Background
[2] Operation Nebraska was conducted between July and October 2013, extending from Rotorua to Christchurch. The operation involved an interception phase conducted between 26 August and 23 October 2013.
[3] A trial was held in 2016 involving Mr Helmbright, Mr Padden and four co-defendants. Around 12 other co-defendants had pleaded guilty to related charges.
The jury found Mr Helmbright guilty on 38 charges and not guilty on others, but was
R v HELMBRIGHT AND PADDEN [2017] NZHC 1661 [19 July 2017]
unable to agree on verdicts on yet other charges. The jury was also unable to agree on verdicts in relation to all the charges faced by Mr Padden and a co-defendant, Nicholas van der Wiel. The Crown elected to retry Mr Helmbright in respect of some of the charges and retry Mr Padden and Mr van der Wiel. Mr van der Wiel pleaded guilty to certain charges, leaving Mr Helmbright and Mr Padden to face a retrial. At that retrial they were convicted of all charges they faced and on which they are to be sentenced today as follows:
Mr Helmbright
(a) Eleven charges of supplying the Class A controlled drug methamphetamine;1
(b)two charges of offering to supply the Class A controlled drug methamphetamine; and
(c) two charges of possessing the Class A controlled drug methamphetamine for supply.
Mr Padden
(a) Five charges of supplying the Class A controlled drug methamphetamine.
[4] Generally speaking, Mr Padden supplied methamphetamine to Mr Helmbright, and Mr Helmbright then possessed methamphetamine for supply to various people. Mr Helmbright then supplied, or offered to supply methamphetamine to Mr van der Wiel.
[5] Mr Padden played the role of a facilitator, that is, somebody who passed on larger amounts of drugs which were then broken into smaller amounts and on-sold.
The evidence demonstrated a pattern whereby Mr Helmbright would obtain
1 The maximum penalty for all the charges faced by Mr Helmbright and Mr Padden is life imprisonment.
methamphetamine from Mr Padden and then meet his “runners” in Wellington and
Christchurch to supply them.
Amount of methamphetamine
[6] Mr Helmbright was charged with supplying Mr van der Wiel with the amounts specified in the particulars to charges 8, 10, 12, 13, and 15–20, and a further unspecified amount in charge 14. Mr Helmbright was also charged with offering to supply Mr van der Wiel amounts specified in charges 9 and 11. The amount of methamphetamine was established by the evidence in respect of each charge. Reference to chainsaws and chainsaw parts in the communications was really a reference to methamphetamine. Mr Helmbright’s dealings with Mr van der Wiel involved the supply of 46 grams of methamphetamine plus one further unspecified amount supplied on 4 September 2013, and offers to supply five grams.
[7] Mr Helmbright’s two charges of possession of methamphetamine for supply effectively mirror two charges faced by Mr Padden of supplying methamphetamine. The amount involved on each occasion was not specified in the particulars to the charges but, as noted below, the Crown case was that each of these two occasions involved one ounce, or 28 grams. The Crown’s position was established by the evidence.
[8] There were also no specified amounts in the particulars relating to the charges faced by Mr Padden. The Crown case was premised on the basis Mr Padden supplied relatively large amounts to Mr Helmbright, who then broke that methamphetamine down into smaller amounts. The Crown case was that Mr Padden supplied at least one ounce on each occasion and two ounces on one occasion. Again, the Crown position was established by the evidence. This results in a total supply of 168 grams.
Aggravating and mitigating features of the offending
[9] I agree with the Crown that the aggravating features of the offending are:
(a) Premeditation: Premeditation is inherent in this type of offending.
The evidence at trial disclosed clandestine meetings between the two defendants. Mr Padden was particularly cautious in his communications and alive to the possibility of being surveilled. They used codes to discuss the methamphetamine to be supplied. Mr Helmbright then used different codes when discussing his drug dealing activities with Mr van der Wiel and his other runners.
(b)Quantity and value of drugs involved in the offending: The offending involved the supply and possession for supply of 168 grams in the case of Mr Padden. Mr Helmbright has already been sentenced in respect of his supply to others of some of the methamphetamine he acquired from Mr Padden. In relation to the current charges, he supplied or offered to supply more than 51 grams to Mr van der Wiel and possessed 56 grams which he obtained from Mr Padden on 10 and
15 October 2013. There can be no dispute that this was a commercial operation.
(c) Extent of offending: Both Mr Helmbright and Mr Padden were actively involved in a methamphetamine supply network. The charges on which the defendants face sentence cover the period August to October 2013.
(d)The roles of the defendants: As already mentioned, Mr Padden supplied Mr Helmbright with at least some of the methamphetamine which Mr Helmbright then supplied to his runners. The evidence disclosed that Mr Helmbright ran an extensive drug dealing network.
[10] There are no mitigating features of the offending.
Mr Helmbright’s sentence
Existing sentence
[11] In December 2016 Mr Helmbright was sentenced by Clifford J to a term of imprisonment of 12 years and six months.2 This was in respect of 15 charges of supplying methamphetamine, two each of possessing methamphetamine for supply and offering to supply it, nine charges of selling BZP and three of possessing BZP for sale, four charges of selling cannabis and one of offering to sell cannabis. Various charges were representative. Mr Helmbright was also sentenced in respect
of one charge of obtaining by deception and one of unlawfully possessing a firearm.
[12] The end sentence imposed by Clifford J comprised eight and a half years’ imprisonment on all the charges relating to methamphetamine, three years cumulative on the charges involving BZP and cannabis, and one year cumulative but concurrent with each other on the charges of obtaining by deception and firearms. Clifford J had adopted a nine year starting point for the methamphetamine charges, but reduced that by six months to take into account the 18 month sentence Mr Helmbright had by that stage served on the charge of attempting to pervert the
course of justice as a result of an incident at an earlier trial which had to be aborted.3
[13] Clifford J declined to impose a minimum period of imprisonment (MPI).
Starting point
[14] The Crown submits that Mr Helmbright’s offending falls squarely within band three of Fatu and a starting point of 11 to 12 years is appropriate to reflect the overall culpability of his methamphetamine offending.4 The Crown notes that Clifford J sentenced Mr Helmbright on the basis of a known specific amount of methamphetamine of 204 grams but that, when the methamphetamine supplied or offered to Mr van der Wiel is taken into account, this brings the total known specific
amount to at least 255 grams and therefore at the lower end of band three of Fatu.
2 R v Helmbright [2016] NZHC 3087.
3 At [26].
4 R v Fatu [2006] 2 NZLR 72 (CA).
The Crown says the amount of methamphetamine possessed by Mr Helmbright as a result of Mr Padden’s supply on 10 and 15 October increases that amount by
56 grams, accepting some of that was accounted for by other charges. The Crown therefore submits the overall quantifiable amount of methamphetamine in respect of Mr Helmbright is close to 300 grams and a starting point of 11 to 12 years should be taken, reflected by a two to three year cumulative uplift to Mr Helmbright’s existing sentence.
[15] In Mr Forster’s submission, the total amount involved in Mr Helmbright’s methamphetamine offending is a little over 255 grams and therefore only just into band three of Fatu. He notes the sentencing bands overlap and the nine year starting point taken by Clifford J is already one year higher than the bottom of the band three sentencing range. In Mr Forster’s submission any uplift should be incremental only saying that, had Mr Helmbright been sentenced for all the methamphetamine dealing on one occasion, there may not have been a significant difference in the starting point taken by the sentencing Judge. Furthermore, he says totality needs to be addressed.
[16] When viewed overall, Mr Helmbright’s methamphetamine offending involved the 204 grams for which he has already been sentenced, the 51 grams supplied or offered to Mr van der Wiel (plus a further unspecified amount supplied to him on 4 September 2013) and possession of 56 grams supplied to him by Mr Padden on 10 and 15 October 2013. As regards the methamphetamine possessed on 10 and 15 October 2013, however, quite some care is needed. Not only was some of this methamphetamine supplied to Mr van der Wiel on 16 and 21 October (four grams and six grams respectively), but also Mr Helmbright has been sentenced for his supply of two grams to Ms Chapman on 16 October and for the supply on a representative basis to Mr Hemopo between May and October 2013.
[17] For that reason I take a cautious approach in considering the Crown’s submission that I should sentence Mr Helmbright in respect of an overall quantifiable amount of methamphetamine close to 300 grams. In my assessment, the amount involved is somewhere between 255 and 300 grams.
[18] In any event, where an offender fits within a particular band depends not only on the quantity of methamphetamine involved but also on the role played by the offender and to that extent the aggravating features already identified by me are relevant.5 Whether or not Mr Helmbright’s methamphetamine offending overall is considered to be at the upper end of band two or the lower end of band three in fact makes little difference. It is, however, fair to say that Mr Helmbright was involved
in the supply of large commercial quantities. Band three of Fatu covers the supply of 250 to 500 grams of methamphetamine where starting points are from eight to eleven years’ imprisonment. Band four covers very large commercial quantities (500 grams or more) where starting points are from 10 years’ to life imprisonment. On that analysis, the Crown’s submission of a total starting point of 11 to 12 years is out of range given my assessment of the total amount of methamphetamine involved.
[19] When determining the starting point for the 2016 sentencing, Clifford J noted the verdicts in the 2016 trial reflected Mr Helmbright’s involvement with methamphetamine in an amount greater than the known specific amount, saying it would be implausible if that were not the case.6 The starting point was as a result at the higher end of the range.
[20] For these reasons, I conclude a starting point of a little under 10 years’ imprisonment is appropriate when considering all of Mr Helmbright’s methamphetamine offending.
[21] Clifford J sentenced Mr Helmbright’s to eight and a half years’ imprisonment on all the charges relating to methamphetamine, a six month deduction from the starting point. No further deduction is warranted. Applying that six month deduction to my starting point results in a sentence of a little under nine and a half years’ imprisonment.
[22] The pre-sentence report notes there have been few changes to Mr Helmbright’s personal circumstances since he was sentenced in 2016. He does, however, say he takes responsibility for his offending. He is described as doing very
well in custody, being employed, undertaking training and awaiting entry into appropriate programmes.
[23] Standing back and viewing the matter on a totality basis, I am satisfied a sentence of 10 months’ imprisonment cumulative on Mr Helmbright’s existing sentence is appropriate and is imposed on all charges.
MPI
[24] Ms Light acknowledges Clifford J declined to impose an MPI but submits the sentencing exercise has now changed in two important ways. First, the offending now falls within band three of Fatu, meaning there is a higher need to protect the community from harm. Secondly, Mr Helmbright continues to show little remorse. The second observation is not, however, borne out by the pre-sentence report.
[25] I am somewhat troubled at the notion of revisiting a decision of a sentencing
Judge not to impose an MPI when I am imposing a cumulative sentence of only
10 months’ imprisonment.7 In any event, I see no need to interfere with the reasoning of Clifford J and decline to impose an MPI.
Mr Padden’s sentence
Starting point
[26] The Crown submits that Mr Padden’s role was not limited to the five supplies between 28 August and 23 October 2013, saying Mr Padden’s relationship with Mr Helmbright extended to a much longer period. Ms Light suggests the five instances of supply are a “snapshot” of a significant period of methamphetamine dealing. She refers to the evidence of Mr Padden’s involvement in what she says was the supply of two ounces of poor quality methamphetamine to Mr Helmbright which did not attract a separate charge. Ms Light submits Mr Padden’s offending falls towards the upper end of band two of Fatu, saying the amounts supplied were significant and enabled Mr Helmbright’s drug dealing network to continue. In her
submission, a starting point of nine years’ imprisonment is appropriate and this
7 Sentencing Act 2002, s 86(1) allows an MPI only on determinate sentences of imprisonment of more than two years for a particular offence.
accords with the same starting point adopted by Clifford J for Mr Helmbright when sentencing him on a similar quantity of methamphetamine.
[27] Counsel assisting the Court, Mr Yeoman, submits a starting point of five years’ imprisonment is appropriate. He disputes there was evidence that on one occasion Mr Padden supplied Mr Helmbright with two ounces. Furthermore, he raises an issue as to the quality of the methamphetamine. He invites the Court to draw an inference that the product supplied was “cut” or poor quality and to make an allowance in that regard.
[28] However, the issue of quality is addressed in the guideline judgment of Fatu where the Court of Appeal noted that the purity of methamphetamine which is sold as “P” is usually in the range of 70 per cent to 80 per cent and almost always over
60 per cent.8 The Court of Appeal set sentencing bands by reference to weight of
what the market would regard as P, being the form of the drug in which the purity is in the order of or exceeds 60 per cent.9
[29] In this case, there was clearly evidence that Mr Padden was involved in the supply of poor quality methamphetamine which did not attract a separate charge. The evidence suggests the problem was it being burnt rather than its strength. No evidence of any other problems with the methamphetamine was revealed in the evidence. Indeed, there was evidence that some of the methamphetamine was very good quality. For these reasons, I propose to adopt the approach of the Court of Appeal in Fatu. There is nothing to support the proposition that a different approach is warranted.
[30] I decline to draw the inference the Crown asks me to draw and take into account the suggestion Mr Padden was involved in wider supplies of methamphetamine than covered by the charges. This would involve speculation. Mr Helmbright was clearly involved in extensive supplies of a number of controlled drugs, including BZP and cannabis. He must have had more than one supplier as
there is nothing to suggest Mr Padden’s involvement in anything other than
8 At [28].
methamphetamine. I cannot be satisfied Mr Helmbright sourced all of his methamphetamine from Mr Padden. For that reason I am sentencing Mr Padden only on the amounts revealed by the evidence, that is 168 grams. This is less by a significant margin than the 204 grams in respect of which Clifford J took a starting point of nine years’ imprisonment for Mr Helmbright, added to which Clifford J also took into account Mr Helmbright’s involvement with methamphetamine supply in amounts greater than those specified in his charges.
[31] On a strictly mathematical exercise, Mr Padden’s supply of a total of
168 grams equates to two thirds of band two of Fatu and a starting point of around six years’ imprisonment. However, as the Court of Appeal notes, the role played by the offender is an important consideration and those who are primary offenders can expect sentence starting points towards the higher end of the relevant band.10 Given Mr Padden’s role as facilitator, I take a starting point of seven years’ imprisonment.
[32] Although Mr Padden has a criminal history comprising violence and alcohol related offending, I note he has appeared less frequently before the Court in recent years. The Crown does not seek an uplift in respect of his prior convictions and I agree that is appropriate.
[33] Mr Padden’s pre-sentence report notes he accepts his role in the offending and appears genuinely remorseful. He says he plans to use his time in custody productively by getting involved in any work, study or rehabilitation opportunities made available to him.
[34] Mr Yeoman submits Mr Padden should receive a discount for remorse. I am not satisfied that is appropriate in the circumstances. Not only was there no plea of guilty but his not guilty plea was maintained over two trials. That does not suggest any real remorse. It is also difficult to reconcile Mr Padden’s professed abhorrence for methamphetamine with his offending.
[35] Mr Yeoman also submits Mr Padden should receive a discount to reflect the substantial time spent on what he calls restrictive bail conditions since arrest in
October 2013. He notes there were periods when Mr Padden was subject to a curfew. However on my reading of Mr Yeoman’s analysis, the curfew applied sporadically and in fact was only in place during the various trials. In any event, the conditions cannot be described as overly restrictive. Although he was subject to those conditions for a number of years, they were designed to enable Mr Padden to attend to various commitments, such as work. More restrictive electronically monitored bail which allowed a defendant to work has not attracted discounts in
other cases.11 On reviewing relevant Court of Appeal authority, I am not satisfied the
terms of bail were to the extent any discount is appropriate.
[36] This brings me to a final sentence of seven years’ imprisonment which is
imposed on all charges.
MPI
[37] Another sentencing matter I must address is whether to impose an MPI. Where offending attracts a sentence of two years or more, I may impose an MPI if I consider the principles of accountability, denunciation, deterrence and protecting the community would not otherwise be satisfied.12 The decision is discretionary.
[38] There is no doubt Mr Padden has the ability to be a significant contributor to the community. His pre-sentence report suggests he has a positive approach, and I consider a sentence of seven years’ imprisonment is a lengthy one. I am satisfied, therefore, that the sentence meets the principles of accountability, denunciation, deterrence, and protection of the community. No MPI is necessary.
[39] Mr Helmbright and Mr Padden please stand.
[40] Mr Helmbright, on all charges you are sentenced to 10 months’
imprisonment, cumulative on your current sentence.
[41] Mr Padden, on all charges you are sentenced to seven years’ imprisonment.
Thomas J
Solicitors:
Crown Solicitor’s Office, Wellington