R v Hines
[2017] NZHC 769
•24 April 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-007734 [2017] NZHC 769
THE QUEEN
v
WILLIAM HINES
TE HERE MAIHI MAAKA TRAVIS JAMES SADLER
THOMAS GORDON EDWARDSON FALCO BROUQ CELLAH MAAKA JOHN GERARD VIJN
PETER FRANCIS ATKINSON
Hearing: 24 April 2017 Counsel:
BR Northwood and FMT Culliney for Crown
AJ Holland for defendant Hines
S Lack for defendant T Maaka
Q Duff for defendant SadlerME Goodwin for defendant Edwardson SNB Wimsett for defendant F Maaka DG Young for defendant Vijn
MP Hislop for defendant Atkinson
Judgment:
24 April 2017
SENTENCING NOTES OF DOWNS J
Solicitors/Counsel:
Meredith Connell, Auckland. A J Holland, Auckland.
S Lack, Auckland.
Q Duff, Wellington.
M E Goodwin, Auckland. S N B Wimsett, Auckland. D G Young, Auckland.
M P Hislop, Auckland.
R v HINES & ORS [2017] NZHC 769 [24 April 2017]
William Hines
[1] Mr Hines, you appear for sentence on 10 charges: (a) Manufacturing methamphetamine;
(b) Possessing that drug for the purpose of supply;
(c) Possessing materials in relation to the manufacture of methamphetamine;
(d)Possession of a firearm except for some lawful, proper and sufficient purpose (x 5);
(e) Possession of ammunition except for some lawful, proper and sufficient purpose; and
(f) Participation in an organised criminal group.
[2] You were found guilty by a jury after a five-week trial before me. You were found not guilty of two money laundering charges. I put those to one side, as I do the other charges in relation to which you were discharged at the conclusion of the prosecution case.
[3] The most serious of your offences is the manufacture of methamphetamine. On 18 April 2015 a large amount of methamphetamine was made at a semi-rural Auckland property. You dispute the amount made. So too your co-defendants. Neither you nor any other defendant wishes to adduce evidence on this issue. The matter has been dealt with by way of submission.1
[4] I am sure at least one kilogram of methamphetamine was made. I reach this conclusion for eight reasons. First, manufacture occurred eight days after Mr Jia Sun
supplied 4.46 kilograms of Contac-NT to Mr Sadler, your second-in-charge. This
1 Even though sentencing proceeded sequentially, all counsel were given an opportunity to be heard on this issue before Mr Hines was sentenced.
figure is known because the intercepted communications refer specifically to 20 sets of Contac-NT. Second, Mr Sun dealt in large amounts of that substance. Third, much time and effort were dedicated to this operation, in turn implying manufacture on a substantial scale. So too personnel vis-à-vis gang members under your direction. Fourth, Mr Atkinson, an experienced cook, was enlisted as an independent contractor. Fifth, there was nothing in the intercepted communications to imply dissatisfaction with his work. Sixth, conversion of 20 sets or 4.46 kilograms of Contac-NT to methamphetamine would typically produce between 900 grams and
1.3 kilograms of methamphetamine. Mr Atkinson was an experienced cook. Seventh, 136.5 grams of methamphetamine was found in a storage unit in early June
2015. Whereas you (and other defendants) submit this was all that was made, it is inherently unlikely the bulk of the methamphetamine had not already been disposed of. I reach this conclusion notwithstanding the absence of specific communications in relation to distribution. Relevantly, that unit was rented on 18 April, the same day as the manufacture. Eighth, the case against Mr Sadler was that he was a party to manufacture largely because of his role in obtaining 20 sets of Contac-NT from Mr Sun.
[5] You instigated this offence as a leader of the Head Hunters’ East Chapter. You were its architect. Eight days earlier, you met with Mr Sun to negotiate the supply of 4.46 kilograms of Contac-NT worth approximately $170,000. Your second-in-charge, Mr Sadler, was present. In a related telephone conversation intercepted by the Police, Mr Sadler told Mr Sun this was your operation. I am sure that is correct. Between 10 and 18 April, other defendants reported to you in relation to the anticipated manufacture. They kept you informed of progress. As observed, the methamphetamine was made on 18 April. You were not present. You did not need to be. Others did the work for you.
[6] On the same date, a person acting on your behalf, or at least on behalf of the group, rented a storage unit. The unit was later searched by the Police. In the storage unit was a black van. The van had darkened reinforced windows. In the back of the van was a metal cage. Inside the cage was a total of 136.5 grams of methamphetamine divided into five one-ounce bags, almost 33 litres of hypophosphorous acid worth $65,000, nine kilograms of iodine worth between
$9,000 and $45,000, five firearms including a pistol, and a large amount of ammunition. All of the firearms worked. The pistol was wrapped in a bandana. Your DNA was recovered from the bandana.
[7] Arrangements in relation to the storage unit had been reported to you. When Mr Sadler, a co-defendant, was incarcerated, you wanted to know who would pay the rent for the unit. You stressed to him you did not want Police taking what was inside.
[8] Everything in the back of the van was neatly packed away. The five bags of methamphetamine were in a plastic container surrounded by rice, presumably to keep them dry. Two of the firearms were in a large sports bag. Another was in its own special case. The three remaining firearms, including the pistol, were in a second firearms case. The ammunition was in its own dedicated bag. This careful packaging, the nature and collection of articles, and the rental of the unit on the same day as the manufacture of methamphetamine imply this was the work of an organised criminal enterprise. You led that enterprise. And although you were careful to act from behind the scenes, I am sure you directed this offending.
[9] The remaining charge is participation in an organised criminal group between
20 June 2014 and 28 July 2015. The facts of this charge I have already mentioned as the Crown alleged the manufacture of methamphetamine and storage unit offences were the work of an organised criminal group. They were.
[10] The starting point for your offending is largely determined by a decision of the Court of Appeal called Fatu.2 Given my factual finding, your offending falls firmly within band four of that case, which governs the manufacture of very large commercial quantities of 500 grams of methamphetamine or more. The band is a broad one, 13 years to life imprisonment. Placement within the band depends not just on the amount of methamphetamine made, but on the defendant’s role in relation
to the manufacture. As I have said, you were the architect of this offence. This was
your operation.
2 R v Fatu [2006] 2 NZLR 72.
[11] The Crown emphasises three aggravating factors: scale of manufacture, commerciality, and gang involvement. The first two are embedded in Fatu’s highest bands and so already accounted for. The third is not.3 The Sentencing Act 2002 recognises gang-related offending can constitute an aggravating factor.4 It is in your case for the reason this was organised criminal offending perpetrated by members of
the Head Hunters gang—and led by you as one of the East Chapter’s leaders.
[12] The Crown advances a starting point of approximately 17 years. My assessment of the case law suggests that is a little high, and of an order reserved for larger quantities of methamphetamine.5 Having regard to the amount made, which as I have said was at least a kilogram, your apex role and the gang dimension of which I have just spoken, I adopt a starting point of 16 years’ imprisonment.
[13] The balance of your offending must now be assessed. The methamphetamine in the van falls within band two of the Fatu supply bands, which is a very broad band between three and nine years’ imprisonment. The Crown submits in isolation, this offence would warrant a starting point of approximately six years’ imprisonment. Care is required here. It is not clear when the methamphetamine was placed in the van. It is reasonably possible it was some of the batch made on
18 April rather than a separate amount that came into your possession, or your co-defendants’ possession. Indeed, that is likely.
[14] There were five firearms in the van. A Smith and Wesson pistol, a Springfield Armory semi-automatic rifle, a Heckler and Koch military style .223 rifle, a Lapua military style tactical rifle, and a Heckler and Koch military style semi-automatic rifle. All worked. One alone was worth $13,000. There was a large amount of ammunition too. This anodyne description does not capture the sinister
nature of this cache. The trial booklet of photographs did.
3 There is an indirect reference to gangs in R v Fatu, above n 2, at [11].
4 Sentencing Act 2002, s 9(1)(hb).
5 See R v Rhodes and others [2009] NZCA 486 and R v Mehrtens [2013] NZCA 275; cf R v Webb
[2008] NZCA 487.
[15] The Courts have long denounced unlawful possession of firearms in connection with dealings in controlled drugs, for obvious reasons.6 Each of the firearms charges carries a maximum penalty of four years’ imprisonment. Possession of these weapons is a serious offence in its own right. It is particularly so in the context of commercial methamphetamine offending, and when perpetrated by an organised criminal enterprise. To this mix must be added possession of almost
33 litres of hypophosphorous acid and nine kilograms of iodine. Again, it is reasonably possible each was leftover from 18 April. But each could be used to make more methamphetamine—a lot more methamphetamine. It is implicit to your conviction that was your purpose, even if, as is likely, others would do the work. The organised criminal enterprise charge adds little because that charge largely replicated the Crown case as expressed in the other charges.
[16] The Crown submits this offending should result in an uplift of four years’ imprisonment. Mr Holland advocates an uplift of two to two and a half years. In light of the pernicious combination in the storage unit; the large quantities of iodine and hypophosphorous acid; their intended use in the manufacture of yet more methamphetamine; and your leading role in this offending, I uplift the starting point by three and a half years.
[17] Your criminal history is extensive. Two sequences stand out. In 1996 this Court imposed a cumulative sentence of two years’ imprisonment on you for an offence contrary to the Misuse of Drugs Act 1975, the exact nature of which is not entirely clear from your record. More importantly, in 2003 this Court sentenced you a term of seven years’ imprisonment for manufacturing a Class B controlled drug and conspiring to deal in that drug. You committed the offending in 1999. The controlled drug was methamphetamine; it was then a Class B controlled drug. The nature and length of sentence imply commercial offending. Williams J’s sentencing
notes confirm as much.7 The Crown seeks an uplift of 12 months’ imprisonment.
Mr Holland submits six months is adequate to mark this aggravating feature. I
agree. I uplift the starting point by six months.
6 Perez v R [2015] NZCA 267 at [51] citing R v Henwood [2008] NZCA 248 at [23].
7 R v Allison & Ors HC Auckland T002481, 31 July 2003.
[18] Mr Hines, you are 64 years old. You are the second oldest of seven children. You have six children of your own. You are described as a good father. You have long been a gang member. You acknowledge being the “boss” in relation to the Head Hunters gang, but continue to deny this offending.
[19] You are unwell. You have type two diabetes and end stage renal failure. You also suffer heart disease. You require regular dialysis. That meant we did not sit every second afternoon during the trial.
[20] Ill-health can operate to mitigate a sentence, particularly when the defendant would suffer more in prison because of their condition. You are best treated with dialysis every second day. But at the moment that regime is limited to Mondays, Wednesdays and Fridays, and is not available on the weekends. It may be some weeks, perhaps even months, before a second day regime can be accommodated within prison. In any event, you find travelling the short distance between the prison and hospital tiring. That is unsurprising. I am also informed that your incarceration means it is unlikely you will be eligible to receive a kidney transplant. That is likely to affect your lifespan.
[21] Mr Holland seeks a significant deduction having regard to these circumstances. He invites my attention to a period of at least two years. Mr Northwood accepts that you should be afforded some “latitude”, “but not very much”.
[22] The law in this area suggests my discretion is reasonably broad.8 There are competing objectives. On the one hand, compassion suggests the need for significant adjustment. On the other, deterrence, denunciation and community protection also remain relevant. You sat atop an organisation which made a very large amount of methamphetamine, and which intended to make more. You also possessed a cache of firearms and ammunition. In these circumstances I settle upon a discount of 18 months’ imprisonment.
[23] There are no other mitigating features.
8 See R v Luce [2007] NZCA 476 and discussion in Mehmood v R [2015] NZCA 338 from [38].
[24] The Crown seeks a minimum period of imprisonment of at least 50 percent of your finite term. Minimum periods are common in the context of serious drug offending, but that is not decisive. The test is whether parole eligibility after one-third of your sentence would be insufficient for the purposes of accountability, denunciation, deterrence and community protection.
[25] I am satisfied a minimum period of imprisonment is necessary having regard to the nature and seriousness of your offending, your apex role in an organised criminal enterprise, your criminal history and risk of harm to the community. However, your ill-health requires some downward adjustment of the otherwise applicable period. I settle upon 45 percent. But for your ill-health, I would have imposed a minimum period of 55 percent.
[26] Mr Hines please stand. On the charge of manufacturing methamphetamine you are sentenced to a term of 18 and a half years’ imprisonment. In relation to every remaining offence you are sentenced to a term of three and a half years’ imprisonment. All terms are concurrent. You must serve a minimum period of eight years and four months.
[27] You may stand down.
Te Here Maaka
[28] Te Here Maaka, you were found guilty following a trial before me of: (a) Manufacturing methamphetamine;
(b) A suite of charges in relation to a storage unit:
(i) Possession of methamphetamine for the purpose of supply;
(ii)Possession of materials in connection with the manufacture of methamphetamine;
(iii)Possession of a firearm except for some lawful, proper and sufficient purpose (x 5);
(iv)Possession of ammunition except for some lawful, proper and sufficient purpose; and
(c) Participation in an organised criminal group.
[29] Your most serious offence is the manufacture of methamphetamine. As with Mr Hines and the other defendants, you dispute the amount made. I am sure at least one kilogram of methamphetamine was made on 18 April 2015. I explained to Mr Hines my reasoning. You are entitled to it too.
[30] First, manufacture occurred only eight days after the supply of
4.46 kilograms of Contac-NT. This figure is known because the recorded conversations refer specifically to it. Second, the supplier dealt in large amounts of the substance. Third, much time and effort were dedicated to this operation, in turn implying manufacture on a commercial scale. So too personnel. Fourth, Mr Atkinson, an experienced cook, was brought in as an independent contractor. Fifth, there was nothing in the recorded conversations to imply dissatisfaction with his work. Sixth, conversion of 20 sets, or 4.46 kilograms, of Contac-NT to methamphetamine would normally produce between 900 grams and 1.3 kilograms of methamphetamine. Mr Atkinson was an experienced cook. Seventh, 136.5 grams of methamphetamine was found in a storage unit in early June 2015. It is inherently unlikely the bulk of the drug had not already been disposed of given the unit was rented on 18 April.
[31] To this list I add another factor. The case against Mr Sadler as a party to manufacture was brought specifically on the basis he obtained 20 sets of Contac-NT for manufacture. He was found guilty.
[32] As to your role, you were present when the drug was made, at least for a period. You provided some supervision of the manufacturing process, but you had another role as well. You provided a mobile phone dedicated to the offence and used
by the cook, Mr Atkinson. For reasons of operational security, you then destroyed the phone. In summary, you were a party to manufacture, and one who had two roles.
[33] Your storage unit offending can be described briefly. On 4 June 2015 Police searched a storage unit. In it was a van containing a total of 136.5 grams of methamphetamine, almost 33 litres of hypophosphorous acid worth $65,000, nine kilograms of iodine worth between $9,000 and $45,000, five firearms including a pistol, and a large amount of ammunition. Your role in relation to these offences was significant. You were one of two defendants who paid rent for the unit. You assumed responsibility for that when Mr Sadler was incarcerated. Like Mr Sadler, you are a patched member of the Head Hunters’ East Chapter. You played an important role in ensuring the unit’s sinister contents remained hidden. And you were in joint possession of its contents.
[34] Your remaining charge is participation in an organised criminal group. The facts of this charge are embedded with those I have already discussed.
[35] The starting point for your offending is largely determined by a decision called Fatu. Your lawyer contends you come within band two of that case on the basis only 136 grams of methamphetamine was manufactured. I reject that submission because I am sure you were a party to the manufacture of at least a kilogram. It follows your offending falls squarely within band four, which governs the manufacture of very large commercial quantities. The band is a broad one,
13 years to life imprisonment. Placement in it turns not just on the amount of the methamphetamine made, but the defendant’s role.
[36] The Crown contends you shared the position with Mr Sadler of being Mr Hines’ second-in-charge. I am not sure about that. It is reasonably possible you occupied a lesser role in relation to the manufacture, and I proceed on that basis. However, you did play an important role. You supervised the manufacture for a period, an hour or so, and you delivered to Mr Atkinson a dedicated phone, which you then destroyed. Mr Atkinson used that phone to request a piece of equipment and seek advice in connection with the offending.
[37] Courts must not lose sight of the fact that offending of this nature often requires the work of many. You helped in a material way. I adopt a starting point of
13 years’ imprisonment, which lies at the bottom of band four. Your lawyer accepted this figure would be appropriate if I concluded you were party to manufacture of a kilogram.
[38] I increase that starting point by three years for the balance of your offending. As observed, you played an important role in keeping hidden the cache of weapons, methamphetamine and other articles. Here, your role was similar to that of Mr Sadler. I do not accept your counsel’s submission an 18 month uplift would be appropriate. That figure fails to capture the gravity of this offending. And, the totality principle operates to prevent grossly disproportionate sentences; it does not
permit a defendant to commit additional crimes without punishment.9
[39] You are 36 years old. You have five children, albeit I am told you have no contact with three. You self-describe as an active father. You describe also an unstructured lifestyle which revolves around the Head Hunters gang. I agree with your assessment.
[40] You have not insignificant criminal history, albeit you have no earlier convictions in relation to methamphetamine. You did, however, unlawfully possess two firearms in 2012 for which you received a term of four months’ imprisonment in
2013. The Crown seeks an uplift of three to four months’ imprisonment in relation to a conviction of possessing cannabis for the purpose of supply, an offence committed back in 2012. That offending must have been serious for it resulted in a cumulative term of 18 months. However, I regard your firearms convictions as more relevant given cannabis is a Class C controlled drug. An uplift of two months is appropriate.
[41] The Crown seeks a minimum period of imprisonment of at least 50 percent. The test is whether parole eligibility after one-third of your sentence would be
9 The best discussion of the principle remains that of Cooke J in R v Bradley [1979] 2 NZLR 262 (CA).
insufficient for the purposes of accountability, denunciation, deterrence and community protection.
[42] I am satisfied a minimum period is necessary having regard to the nature and seriousness of your offending, your senior role in an organised criminal enterprise, and your criminal history. A minimum period at 50 percent would overstate your role relative to others. I settle on 45 percent.
[43] Mr Maaka please stand. On the charge of manufacturing methamphetamine you are sentenced to a term of 16 years and two months’ imprisonment. On every other charge you are sentenced to a term of three years’ imprisonment. All terms are concurrent. You must serve a minimum period of seven years and three months.
[44] You may stand down.
Mr Sadler
[45] Mr Sadler, you appear for sentence on 10 charges: (a) Manufacturing methamphetamine;
(b)A number of charges in relation to a storage unit, which are these: (i) Possession of methamphetamine for the purpose of supply;
(ii)Possession of materials in connection with the manufacture of methamphetamine;
(iii)Five charges of possession of a firearm except for some lawful, proper and sufficient purpose;
(iv)Possession of ammunition except for some lawful, proper and sufficient purpose; and
(c) Participation in an organised criminal group.
[46] Your lawyer Mr Duff has helpfully explained you now understand I have concluded at least one kilogram of methamphetamine was made. You are entitled to know my reasoning in relation to that.
[47] The manufacture occurred shortly after 4.46 kilograms of Contac-NT was supplied to you. Your supplier, Mr Sun, dealt in large quantities of that substance. In my view, much time and effort were dedicated to this operation, in turn implying manufacture on a substantial scale. So too personnel. An experienced cook was brought in as an independent contractor, and nothing in the recorded conversations implied dissatisfaction with his work. Conversion of 4.46 kilograms of Contac-NT to methamphetamine would normally produce between 900 grams and 1.3 kilograms of methamphetamine. As I have said, the cook was experienced. Finally,
136.5 grams of methamphetamine was found in a storage unit in early June 2015. It is inherently unlikely the bulk of the drug had not already been disposed of given the unit was rented on 18 April.
[48] To this I add another aspect. The case against you was that you were a party to manufacture. Your primary role was to supply 4.46 kilograms of Contac-NT that you had received from your supplier, Mr Sun. You were convicted.
[49] You had three roles in relation to this offence:
(a) As foreshadowed, you negotiated the purchase of 4.46 kilograms of
Contac-NT from Mr Jia Sun on 10 April.
(b)Between then and 18 April, you reported to Mr Hines in relation to the anticipated manufacture. For example, on 11 April you assured Mr Hines progress was being made. Of course, you did not say on the telephone what was being discussed. As with the rest of the defendants, you were careful about what was said in case Police were listening. They were.
(c) You had a lesser logistical role in locating, or taking steps to locate, necessary equipment.
[50] In addition to disputing the amount of methamphetamine made, you also dispute being Mr Hines’ second-in-charge. I am sure you were, given the intercepted communications and trial evidence more generally. For example, you were entrusted with obtaining the very large quantity of Contac-NT required for this offending. Another example I will come to shortly. Generally, Mr Hines came to you first. He trusted you to carry out his orders. And you did.
[51] On 4 June 2015 Police searched a storage unit, thereby detecting your other offending. In the unit was a van containing 136.5 grams of methamphetamine, almost 33 litres of hypophosphorous acid, nine kilograms of iodine, five firearms including a pistol, and a large amount of ammunition. In relation to this offending, again, you were Mr Hines’ second-in-charge. You were initially responsible for paying the rent on the unit. You could no longer do so when you were imprisoned from 25 May 2015. You assured Mr Hines, in a telephone conversation, that you had made arrangements for that to occur in your absence, and Police would not find what was in the unit. Of course because you were in prison, you could not access its contents directly. But you remained in possession with others in that you had a voice in what was to happen to those contents. And, as I have said, you were initially responsible for paying the rent in relation to the unit.
[52] No elaboration is required in relation to the remaining charge of participation in an organised criminal group. Its facts are captured by those I have already discussed.
[53] You probably now appreciate the starting point for your offending is largely determined by a decision called Fatu. Your offending is within band four of that case, which governs the manufacture of very large quantities of 500 grams of methamphetamine or more. Placement within the band depends not just on the amount of the methamphetamine made, but the defendant’s role in relation to the manufacture.
[54] The Crown seeks a starting point of 16 years’ imprisonment. Your lawyer advances a starting point of 13 years’ imprisonment. That does not reflect your significant role. That said, I consider the Crown’s starting point to be too high by a
year. But for you, doubt attaches to whether this offending would have occurred. You played a pivotal role in negotiating the purchase of 20 sets of Contac-NT, the key ingredient. And as observed, you had a lesser logistical role in relation to equipment. Importantly, you were Mr Hines’ trusted lieutenant.
[55] I adopt an uplift of three years for the balance of your offending. It is serious in its own right.
[56] Mr Sadler, you are 38 years old. You report a dysfunctional family background. That is unfortunate but also unsurprising given your current circumstances. You have a son. You acknowledge being a patched member of the Head Hunters gang, but say that has no influence on your behaviour. I doubt that very much. You may want to reflect on this feature.
[57] You have a long criminal history, particularly for someone of your age. But you have not dealt in controlled drugs before. In 2011 you committed an aggravated robbery in which a firearm was used. The Crown has not sought an uplift for this offence, but it does aggravate your possession of firearms and ammunition in relation to the storage unit. A two month uplift is appropriate. I regard that as modest.
[58] Sadly, there are no mitigating features.
[59] The Crown seeks a minimum period of at least 50 percent. The test is whether parole eligibility after one-third of your sentence would be insufficient for the purposes of accountability, denunciation, deterrence and community protection.
[60] I am satisfied a minimum period is necessary having regard to the nature and seriousness of your offending, and your very senior role in an organised criminal enterprise. I impose a minimum period of just less than 50 percent.
[61] Please stand. On the charge of manufacturing methamphetamine you are sentenced to a term of imprisonment of 18 years and two months. On every other
charge you are sentenced to a term of imprisonment of three years. All terms are concurrent. You must serve a minimum period of nine years.
[62] Please stand down.
Mr Edwardson
[63] Mr Edwardson, you were found guilty of: (a) Supplying methamphetamine;
(b) Procuring, which means getting, the same drug; (c) A suite of charges in relation to a storage unit:
(i) Possession of methamphetamine for the purpose of supply;
(ii)Possession of materials in connection with the manufacture of methamphetamine;
(iii)Five charges of possession of a firearm except for some lawful, proper and sufficient purpose;
(iv)Possession of ammunition except for some lawful, proper and sufficient purpose; and
(d) Participation in an organised criminal group.
[64] All but two of your offences were committed in the context of a gang hierarchy. You are an associate of the Head Hunters’ East Chapter. You had a much lesser role than your son, Mr Sadler, who was Mr Hines’ second-in-charge. Your lawyer closed to the jury on the basis you only did what you were told. That is largely correct, albeit two of your offences you committed without reference to or supervision by others. You were acquitted of a number of charges. I put those to one side.
[65] On 16 April 2015 you supplied half an ounce of methamphetamine. Related intercepted conversations imply this was a commercial transaction as the recipient said the purchaser was “fussy” and would weigh the drug. I am sure this was an instance of commercial dealing.
[66] On 6 May 2015 you obtained the same amount of methamphetamine. The recorded conversations imply you paid $300 for the drug.
[67] Your storage unit offending comes next. You jointly possessed 136.5 grams of methamphetamine, approximately 33 litres of hypophosphorous acid, nine kilograms of iodine, five firearms and ammunition. The evidence established you had been to the storage unit at least once. You told your son, Mr Sadler, that in a conversation on 28 May. However, you were a junior member of the enterprise. I accept you were not a decision maker.
[68] Your remaining charge is participation in an organised criminal group. Its facts are those for the storage unit offences because the Crown identified these as the work of an organised criminal group.
[69] The Crown contends your offending should attract a global starting point of seven or seven and a half years’ imprisonment. Your lawyer, Mr Goodwin, contends five to five and a half years is more appropriate. The large amount of methamphetamine in the van falls within band two of the Fatu supply bands, which is a very broad band between three and nine years’ imprisonment. Placement within the band turns on the quantity of drug and role of the offender. A six-year starting point was adopted by this Court for an unrelated offender who possessed almost the
same amount of the drug, but who played a primary role.10 You had no such role. If
this offending were for sentence in isolation, I would adopt a starting point of four
years’ imprisonment because of your modest secondary role.
[70] The balance of your offending must now be considered. You supplied half an ounce of methamphetamine and obtained the same quantity of the drug. Under Fatu,
10 R v Macfarlane [2014] NZHC 2203.
supplying half an ounce calls for a starting point of not less than three years’ imprisonment. And, you possessed—albeit as a junior member of the enterprise— valuable materials in connection with the manufacture of methamphetamine, five firearms including a pistol, and ammunition. As I said, you went to the storage unit at least once.
[71] I settle on a global starting point of six years’ imprisonment. A higher
starting point is easily reached, even for someone with your lesser role.
[72] You are 57 years old. You have two adult children, including Mr Sadler, who I have just sentenced to a very long term of imprisonment. You say you became a prospect for the Head Hunters in an attempt to reconnect with him. You acknowledge that decision was a mistake. Plainly it was. Your criminal history is extensive, but nothing in it aggravates this offending. As with the other defendants, you continue to deny the offending.
[73] As to mitigating features, Mr Goodwin invites attention to what he describes as “post-arrest rehabilitation”. He submits you have begun to distance yourself from the gang, and that there is hope. However, there is little tangible before me, at least at the moment. And frustratingly your alleged remorse is inconsistent with your denial of the offending to the probation service. On balance, I conclude there are no mitigating features.
[74] Mr Edwardson please stand. On the charge of possession of methamphetamine for the purpose of supply, you are sentenced to a term of six years’ imprisonment. All remaining charges attract a sentence of three years’ imprisonment. All terms are concurrent, meaning your effective sentence is six years.
[75] You may stand down.
Falco Maaka
[76] Mr Falco Maaka, unlike the other defendants in this case, you faced only one charge. You were found guilty of that by a jury. The charge alleged manufacture of at least one kilogram of methamphetamine on 18 April 2015.
[77] You supervised the manufacturing process. You were present when the drug was made. You were there as the East Chapter’s representative, and as I have said, supervisor. You were, for example, concerned about operational security. In the early hours of 19 April, you expressed concern more was being said on the phone than necessary. It follows you were a party to the offending. You are a patched member of the Head Hunters’ gang. Your role reflects that.
[78] You will now appreciate that the starting point for your offending is determined by a decision called Fatu. In relation to a lower yield Mr Wimsett had submitted that you fell within band two of that case on the basis 136 grams of methamphetamine had been manufactured. It has now been explained to you by Mr Wimsett that I have concluded a much greater amount was made. As I have explained to the other defendants, I am sure at least one kilogram was made on
18 April. I have reached that view for a number of reasons.
[79] The manufacture occurred only eight days after the supply of 4.46 kilograms of Contac-NT; the supplier dealt in large amounts of that substance; and much time and effort were dedicated to this operation, and there was similar devotion in terms of personnel. An experienced cook was brought in as an independent contractor. There was nothing in the recorded conversations to suggest dissatisfaction with his work. Conversion of 20 sets of Contac-NT would normally produce between
900 grams and 1.3 kilograms of methamphetamine. Mr Atkinson, the cook, was an experienced cook. It is inherently unlikely the bulk of the drug had not already been disposed of by 4 June 2015, when 136.5 grams of methamphetamine was found by the Police in a storage unit. And, the case against Mr Sadler was that he was a party to manufacture largely because of his part in securing 4.46 kilograms of Contac-NT for use in that offence. Your offending is therefore within band four of the case. Placement within the band, however, turns not just on quantity but an offender’s role.
[80] As I have said, you supervised the manufacturing process. And you did so as a member of the Head Hunters gang. You were alive to the need for operational security. Your role was not unimportant. I adopt a starting point of 13 years’ imprisonment, which lies at the bottom of band four.
[81] You are 29 years old. You have three children. I gather, sadly, a fourth passed away. You have an extensive criminal history particularly for your age, but nothing in it specifically aggravates this offending, which you continue to deny.
[82] There are no mitigating features. Your lawyer, Mr Wimsett, responsibly accepts as much.
[83] The Crown seeks a minimum period of at least 50 percent. The test is whether parole eligibility after one-third of your sentence would be insufficient for the purposes of accountability, denunciation, deterrence and community protection.
[84] I am satisfied a minimum period is necessary having regard to the nature and seriousness of the offending, and your role as a party to it. You played a lesser role than Mr Hines, Mr Sadler and Mr Atkinson, but your role was not unimportant. Offending of this nature often requires the work of many. Your lesser role warrants amelioration of the minimum period to just over 40 percent.
[85] Mr Falco Maaka, please stand. On the charge of manufacturing methamphetamine you are sentenced to a term of 13 years’ imprisonment. You must serve a minimum period of five years, two months and two weeks, which is just over
40 percent.
[86] You may stand down.
Mr Vijn
[87] Mr Vijn, you are for sentence on four charges:
(a) Possession of precursor substances (x 3); and
(b)Possession of materials in connection with the manufacture of methamphetamine.
[88] On 18 April 2015, at least one kilogram of methamphetamine was made. The cook, Mr Atkinson, called you to ask for a piece of equipment in connection with that. You offered to supply him 20 litres of toluene. You were found guilty of possessing that substance with the intention it be used to make methamphetamine. You were found not guilty of being in possession of the equipment Mr Atkinson had sought from you. I put the latter out of mind.
[89] Five days later, Mr Atkinson contacted you again in connection with the manufacture of methamphetamine. He asked you for toluene. You were found guilty of having an unknown amount of that substance in your possession intending it be used to make methamphetamine.
[90] Police searched your home and a related storage unit on 28 July 2015. They found a variety of things in connection with methamphetamine manufacture including 60 millilitres of acetone, two litres of hydrochloric acid, 78 grams of phosphorous acid, 85 millilitres of hypophosphorous acid, 166 grams of iodine, just less than two kilograms of sodium hydroxide, two-layered liquids containing methamphetamine and its by-products, and relevant literature.
[91] You are not a gang member. Nor do you have any gang affiliation. Your offending was detected only because of your connection to Mr Atkinson, who in turn was used by the Head Hunters’ East Chapter to manufacture methamphetamine. But your offending is still serious. And, you have an unfortunate criminal history.
[92] There is no guideline judgment in relation to your offending. The typical range lies between 15 months and four years’ imprisonment.11 Terms of two to three years’ imprisonment are common, but much turns on circumstance including the
nature and number of substances and articles, and proximity to actual manufacture.12
11 R v Saundercock HC Wellington CRI-2005-085-3489, 8 February 2007 at [22].
12 For example, see Wilson v R [2011] NZCA 197.
[93] The Crown advocates a starting point of three and a half years’ imprisonment. Your lawyer submits two and a half years is more appropriate. I adopt a starting point of three and a half years’ imprisonment in relation to all charges because you possessed a large quantity of toluene, a multitude of things for use in connection with methamphetamine manufacture, and all in circumstances of close proximity to actual manufacture.
[94] You have a significant criminal history. In 2002 you possessed methamphetamine. In 2005 you graduated to manufacturing that drug and possessing equipment with the intention it be used to make methamphetamine. You twice manufactured methamphetamine in 2006, and you committed two separate batches of possessing equipment with the requisite intent. You were sentenced to a term of three and a half years’ imprisonment in 2007 for that offending. In 2011 you made more methamphetamine and possessed related equipment, materials and precursor substances. The sentencing Judge considered your offending to be commercial in nature, but you avoided prison.
[95] You are a user of methamphetamine.
[96] The Crown seeks an uplift of between nine and 12 months’ imprisonment for your previous offending. I am satisfied an uplift of 12 months is appropriate having regard to its frequency and similarity to your instant offending.
[97] Mr Vijn, I have read your letter to me. You are 47 years old. You have two children. I gather you successfully completed a residential drug and alcohol treatment programme at Odyssey House. Sadly, whatever you learnt there, you have not put to good use. You work as a roofer.
[98] The only mitigating feature raised today concerns restrictive bail conditions while you awaited trial. I am told you spent three months on a 24-hour curfew, and a further 12 months on the same curfew but with the possibility you could work. I am also informed that you were charged with committing an offence of driving while under the influence, but you were acquitted of that charge. The alleged offending arose while you were on bail.
[99] Because this issue has arisen late, there is little information before me in relation to bail compliance. However, having regard to the length and restrictive nature of your bail, I am prepared to give you a deduction of three months.
[100] There are no other mitigating features.
[101] While the possibility of your intimidation by other defendants was raised at trial, nothing in the evidence implies you committed these offences other than freely and voluntarily. Indeed, the recorded conversations reveal you as an enthusiastic participant. Moreover, your dealings were exclusively with Mr Atkinson, who appears to be a friend.
[102] Mr Vijn, please stand. You are sentenced to a term of four years and three months’ imprisonment on each charge. All terms are concurrent, so your effective sentence is four years and three months’ imprisonment.
[103] You may stand down.
Mr Atkinson
[104] Mr Atkinson, you appear for sentence on charges of manufacturing methamphetamine and attempting to manufacture that drug. You made at least one kilogram of methamphetamine on 18 April 2015. The drug was not for you. It was for members of the Head Hunters gang. But you were the cook. You were retained by them as an independent contractor.
[105] Five days later, and so on 23 April, you attempted to make more methamphetamine. On this occasion the evidence implies the product was to be yours. But things went awry. You splashed hydrochloric acid into your eye. Relevantly, that substance is normally used towards the end of the manufacturing process. This turn of events was relayed to Mr Vijn, who was to provide toluene. Hence the charge of attempted manufacture.
[106] Like Mr Vijn, you are not a gang member and nor do you have any gang affiliation. As observed, you are an independent contractor. You have a long and serious criminal history. More about that later.
[107] The starting point for your offending is largely determined by a decision called Fatu. Your offending falls squarely within band four of that case. The band is a broad one, 13 years to life imprisonment. Placement within the band turns not just on the amount of the drug made, but the defendant’s role in relation to the manufacture. As I have said, you were the cook.
[108] You dispute making a kilogram. As the cook, you could have given evidence on this topic. You chose not to. In any event, I am sure you made at least a kilogram because the manufacture occurred only eight days after the supply of 20 sets of Contac-NT; the supplier dealt in large amounts of that substance; and much time and effort were dedicated to this operation, in turn implying manufacture on a substantial scale. Ditto personnel. You were brought in as an experienced cook. There was nothing in the recorded conversations to imply dissatisfaction with your work or the product. Conversion of 4.46 kilograms of Contac-NT to methamphetamine would normally produce between 900 grams and 1.3 kilograms of that drug. It is inherently unlikely the bulk of the drug had not already been disposed by 4 June 2015, when
136.5 grams of methamphetamine were found by the Police in a storage unit. And finally, Mr Sadler was charged as being a party to manufacture largely on the basis of his role in securing the use of 4.46 kilograms of Contac-NT.
[109] The Crown seeks a starting point of 17 years’ imprisonment. Your lawyer, Mr Hislop, advances a lesser starting point of 14 years’ imprisonment. I adopt that lesser starting point. This reflects your culpability relative to Mr Hines, Mr Sadler, Mr Te Here Maaka and Mr Falco Maaka. Unlike Mr Hines, you were not the architect. And unlike Mr Sadler, you were not a significant organiser. But, you played a more important role than the Maaka brothers. You were the cook. Your expertise was integral to the operation’s success.
[110] Uplift is required for your attempted manufacture of yet more methamphetamine only days later. I am sure you would have made that drug but for
misadventure. As I have said, hydrochloric acid is normally used late in the manufacturing process. This is an instance of an attempted crime that falls just shy of commission of the full offence. Having regard to totality, I proceed cautiously by increasing the starting point by two years.
[111] There are no mitigating features.
[112] You are 72 years old. By your age even the most hardened offenders have stopped committing crime. You are exceptional. In 1981 you were sentenced to a term of six years’ imprisonment for possessing heroin for the purpose of supply. In
2000 you were convicted of manufacturing a Class B controlled drug and possessing that drug for the purpose of supply. That drug was methamphetamine. You were sentenced to a term of 12 years’ imprisonment. On appeal, you may recall this, the Court of Appeal reduced your sentence to 10 years’ imprisonment. It referred to your previous record as “very bad”.13
[113] In 2006 you procured or possessed methamphetamine. You were sentenced to a term of imprisonment of three months. In 2010 you possessed equipment intending it be used in the manufacture of methamphetamine. And then in 2012 you manufactured methamphetamine and possessed more equipment intending it be used to make that drug. You were sentenced to a term of four years and three months’ imprisonment.
[114] Your record in relation to controlled drugs is, as the Court of Appeal has described, very bad. Indeed, troubling. The Crown seeks an uplift of 18 months’ imprisonment. Care must always be taken not to punish an offender twice, but in your case a significant uplift is mandated. Twelve months is appropriate having regard to the nature, frequency and seriousness of your previous offending.
[115] I have already said there are no mitigating features. Mr Hislop notes the pre- sentence report refers to you as suffering from Hepatitis C. There is no evidence before me about that, and certainly no evidence your incarceration will adversely
affect any treatment in relation to it. Mr Hislop also refers to your placement within
13 R v Atkinson CA546/99, 28 March 2000 at [23].
a rehabilitative programme within the context of prison. There is little tangible to see yet.
[116] The Crown seeks a minimum period of 50 percent of your finite term. Parole eligibility after one-third of your sentence would not satisfy the imperatives of accountability, denunciation, deterrence and community protection. Your offending is serious. And as I have said—and as the Court of Appeal has said—your record is very bad. You pose risk to the safety of the community. A 50 percent minimum period would mean you could not be released before your 81st birthday. Mr Hislop submits that “you are running out of steam”. Regrettably, there is no evidence to suggest that is correct.
[117] I have paused to consider whether a minimum period would make an otherwise appropriate sentence manifestly excessive. I remain satisfied a minimum period is required, but with some modest adjustment for your age. You are an exceptional offender whose longevity has not diminished your appetite for serious drugs offending. Mr Northwood for the Crown describes you as “a professional criminal”. He is correct. And methamphetamine is an evil drug. In these circumstances, community safety is paramount.
[118] I impose a minimum period of seven years, which represents just over
41 percent of your 17 year sentence. But for your age, that period would have been
50 percent.
[119] Mr Atkinson please stand. On the charge of manufacturing methamphetamine I sentence you to a term of 17 years’ imprisonment. On the charge of attempting to manufacture methamphetamine you are sentenced to a term of two years’ imprisonment. These terms are concurrent. You must serve a minimum period of seven years.
[120] Please stand down.
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Downs J
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