R v Ilton
[2022] NZHC 3400
•14 December 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-009-3724
[2022] NZHC 3400
THE KING v
TRENT MICHAEL FRANCIS ILTON
Hearing: 14 December 2022 Appearances:
C C White for Crown
A M S Williams and K Bucher for Defendant
Judgment:
14 December 2022
Reissued:
14 December 2022
REDACTED SENTENCING REMARKS OF OSBORNE J
Introduction
[1]Mr Ilton, I am going to ask you to stand.
[2] Trevor Michael Francis Ilton, you appear for sentence in relation to the following charges to which you pleaded guilty on 13 May 2022:
(a)first, possession of methamphetamine for supply;1
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2) – maximum penalty of life imprisonment.
R v ILTON [2022] NZHC 3400 [14 December 2022]
(b)secondly, obstructing or hindering a medical officer of health or a person assisting the medical officer;2 and
(c)thirdly, failure to carry out obligations in relation to a computer search under the Search and Surveillance Act.3
[3] As counsel have mentioned, I provided you with a sentencing indication on 4 May 2022, following which you entered your guilty pleas. I will now be sentencing you in the light of that indication, which will be attached as Schedule A to the typed version of these sentencing remarks.
[4] Now, Mr Ilton, I am shortly going to ask you to sit again while I explain the sentence I will be imposing on you. This will take some time and I will indicate towards the end when you need to stand again. So, please be seated now.
The offending
[5] You agreed with the summary of facts presented by the Crown and I now summarise those facts.
The methamphetamine operation
[6] In October 2019, the Canterbury Organised Crime Unit commenced an investigation into the drug dealing activities of members and associates of the Tribesmen Motorcycle Club (Tribesmen) gang in Canterbury. It was revealed Tribesmen members and associates were regularly involved in the purchase and distribution of significant quantities of methamphetamine. You were an associate of the Tribesmen and Mr McMeekan was a prospect of that gang.
[7] You were involved in organising logistics for the methamphetamine operation, such as travel bookings, cash and gear storage. You also counted money collected by the gang prior to its transportation to Auckland on at least three occasions four to five weeks apart. The quantity of money was such that it was counted in bundles of
2 Health Act 1956, s 72(d) – maximum penalty of six months’ imprisonment and/or a fine of $4,000.
3 Search and Surveillance Act 2012, s 178 – maximum penalty of three months’ imprisonment.
$10,000 and significantly exceeded $100,000 each time. Further, you were involved in transporting the money that had been counted. On one occasion, you went to Christchurch Airport with two others and entered the security screening area separately, you carrying a backpack. After 13 minutes, you left the departure lounge without attempting to board a flight and without the bag you had been carrying.
[8] However, the agreed summary of facts records that there was no evidence you had influence on those above you in the chain of command or that you directed other members of the operation. You worked under the direction of those above you in the operation but were trusted with money and drugs. There was also no evidence you were a significant drug user or had an addiction. Rather, you received some financial compensation for your role.
The search warrant
[9] At 5.14 pm on 4 May 2020, police executed a search warrant on your property in Bryndwr, Christchurch, and on a vehicle.
[10] Mr McMeekan was located seated in the front passenger’s seat of the vehicle. At his feet in the footwell was a cardboard box containing three large vacuum-packed plastic bags. These bags contained a total of 2,996.07 grams (that is just under three kilograms) of methamphetamine, a Class A controlled drug, with an estimated street value of between $2 million and $3 million. You were inside the address. You were found in possession of a set of keys for the vehicle.
[11] A total of $38,834.40 in cash was seized during the search of the property and the vehicle, including $6,025 located in a drawer inside your bedroom, Mr Williams has confirmed this morning that that money belonged to you. A further $22,400 was located concealed behind a computer server in the garage, and $1,320 located in a wallet belonging to you. Located on the floor of the garage were two sets of scales, a bag of rubber bands and a box of ziplock bags. Thirty-five used Prezzy Cards (a non- traceable credit card payment form usable in person or online) were located in the address with a value of $8,500.
[12] During the search of your address, your cell phone was located in your bedroom under the bed. Police formally requested you provide the PIN code for your cell phone but you refused to do so. That gave rise to a charge of failing to carry out obligations in relation to a computer search.
[13] At the time of the alleged offending, Alert Level 3 lockdown restrictions were in place nationwide in response to the COVID-19 pandemic. Police were legally authorised to assist a medical officer of health to ensure compliance with Ministry of Health directives.4 You gave no explanation for associating with Mr McMeekan, who does not reside at your address, in breach of COVID-19 lockdown restrictions.
Submissions
Crown’s submissions
[14] The Crown’s submissions remain, as they did for the sentencing indication, that your offending fell comfortably within band 5 of the Court of Appeal guideline judgment in Zhang v R,5 and that your role had aspects of both “lesser” and “significant” categories. For the Crown, it was recognised that your level of control and influence on others was limited and your financial gain small compared to the quantity of methamphetamine involved. However, it was submitted you were aware of the scale of the operation, were clearly trusted to collect methamphetamine, and knowingly played a crucial role to enable the offending to occur over a period of time and in different aspects of the operation.
[15] The Crown had submitted at your sentencing indication that yours was not an appropriate case in which to move below the bottom level of band 5 (10 years’ imprisonment) because of your knowledge of the scale of the operation and its commerciality. For those reasons, the Crown supported a starting point between 10 and 11 years’ imprisonment.
4 Health Act, s 71A.
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[16] Mr White, referring to information now provided in reports relating to you, submitted that matters in your background do not support an adjusted starting point. In particular, he referred to three topics:
(a)personality and tendency to form dependent relationships — Mr White submitted there is a lack of evidence to support any concept of a personality disorder causally linked to your offending;
(b)personal problems (financial/health and relationship-based) — Mr White submitted that your personal and family issues, while challenging and distressing, are of a nature commonly experienced by many people and do not reflect a background of deprivation appropriately recognised as a material contribution to offending. In this regard he distinguished the situation with that of your co-offender, Mr McMeekan; and
(c)low self-worth — Mr White again submitted that conclusions reported as to your low self-esteem and fear of rejection do not establish a causative contribution to your offending.
[17] Overall, Mr White submitted that your history has not been marked by levels of deprivation or abuse which can be shown to have contributed causatively to your methamphetamine dealing in particular. That said, Mr White has recognised today that a modest discount on account of the personal difficulties you were going through at the time of your offending may warrant some small recognition. The Crown’s case is that with the serious and carefully orchestrated offending involved, there has to be an emphasis on the choices you made.
Submissions on your behalf
[18] For the purposes of your sentence indication, before reports were received and there were other subsequent developments, Mr Williams submitted that the quantity of methamphetamine which you had for supply placed your offending within band 5 of Zhang and that your role fell somewhere between the upper end of the “lesser” category and the very lower end of the “significant” category.
[19] It was emphasised for you that you were neither a patched member nor a prospect of the Tribesmen gang, you had befriended others within the Tribesmen, had no influence or authority over anyone in the organisation and worked under the direction of those higher up the chain. It was submitted your role was largely restricted to logistical organisation and that there was no evidence you were personally involved with drugs on any occasion other than the day of your arrest. Mr Williams identified that the financial compensation you received was significantly disproportionate to the level of cash and drugs involved and the level of risk involved. Mr Williams identified that you were neither a significant drug user yourself nor motivated to offend by an addiction, a matter that has been subsequently confirmed in reports.
[20] As your sentencing today follows your acceptance of the earlier sentencing indication, I am going to refer both to the submissions made by your counsel on that occasion and to legal developments that have occurred since.
The decision in Berkland v R
[21] Zhang v R is the Court of Appeal’s tariff decision applicable to your main offence (that is, possession of methamphetamine for supply).6
[22] The decision in Zhang now has to be read in light of the judgment of the Supreme Court in Berkland v R, delivered last week.7 That judgment was released after the Crown filed its submissions for this sentencing hearing but was issued in time for Mr Williams to take it into account in his sentencing submissions. The guidelines identified by the Supreme Court in Berkland for sentencing in methamphetamine dealing, which involve a slight modification of the Zhang guidelines, are to be applied to your sentencing.
[23] In Zhang, the Court of Appeal provided guidelines for banded starting points for a sentence, based on the quantity of drug involved.8
6 Zhang v R, above n 5.
7 Berkland v R [2022] NZSC 143.
8 Zhang v R, above n 5, at [125].
[24] Band 4 relates to quantities less than 2 kg, for which a sentence of eight to 16 years’ imprisonment is indicated. Band 5 refers to quantities of more than 2 kg, for which a sentence of 10 years to life imprisonment is indicated.
[25] The quantity of drug involved is the first determinant of sentencing for this type of offending, reflecting as it does the harm done or potentially done and the scope for illicit gain or potential gain.9
[26] In Zhang, the Court of Appeal further subdivided each of the five sentencing bands into role-based categories. The “lesser” role belongs to the bottom of each band, the “significant” role to the mid-range, and the “leading” role to the upper end.10 It was recognised that it is possible that the role could take a starting point outside the band dictated by the amount of drug alone.11
[27] In Zhang, the Court of Appeal set out a table of indicia or indications of activities and involvement associated with the three roles — lesser, significant and leading. The description of the “significant” role has been modified since my sentence indication by the Supreme Court’s judgment in Berkland. I will attach the updated role profile table to these sentencing remarks as Schedule B. It is that updated role profile that now needs to be taken into account in relation to both the “significant” role and the “lesser” role. The Supreme Court in Berkland drew a distinction between management in an operation and those who carry out operational roles. Formerly, management and operational roles were combined for the purpose of assessment, but must now be considered separately. The upper end of a significant role can be expected to involve management. A purely operational role, with which I associate your offending, will typically be at the middle to lower end of the significant band.12
[28] Mr Williams submitted that it was not necessary to uplift the starting point on account of your remaining charges. He submitted further that a credit in the range of 20 per cent for guilty pleas would be appropriate.
9 Wan v R [2020] NZCA 328 at [18], citing Zhang v R, above n 5, at [103]–[104].
10 Zhang, above n 6, at [126].
11 At [126]. See also, Berkland, above n 7, at [34].
12 Berkland, above n 7, at [67]–[69].
[29] Against that background, the sentence indication I gave you, you will recall, was:
(a)a starting point of nine-and-a-half years’ imprisonment in relation to the methamphetamine offending;
(b)no uplift for the remaining charges (on a totality basis);
(c)no uplift to reflect personal aggravating factors, there being no such factors justifying uplift; and
(d)a credit of 20 per cent to reflect your guilty pleas.
[30] The indicated sentence became one of seven years and seven months’ imprisonment, with a concurrent sentence of two months’ imprisonment on the search and surveillance charge and a conviction and discharge on the Health Act breach.
[31] For the purposes of your sentencing today, Mr Williams submits four particular matters should lead to a sentence substantially below the seven years seven months’ imprisonment provided on the sentence indication:
(a)a reassessment of your role in the offending, to view it at the higher end of the “lesser” category, warranting a starting point of around seven- and-a-half years’ imprisonment;
(b)a discount of 20 per cent for your guilty plea; and
(c)a discount of five per cent for genuine remorse and willingness to undertake rehabilitation; and
(d)a discount of 20 per cent for matters of personal history which Mr Williams described as not at the level of deprivation identified in relation to Mr McMeekan but nevertheless causative aspects of your offending.
The starting point sentence — the assessment of your role
[32] I concluded in my sentence indication that your role contained elements of both the “lesser” and “significant” categories. I noted that it appeared you had become involved through your personal association with a patched member of the Tribesmen, although it was difficult on the evidence to evaluate whether the involvement was a consequence of your naivete (that is, as against a more considered and calculated approach to reward, including financial reward). I noted that there was no evidence that you were engaged by pressure, coercion or intimidation. That said, there was nothing to suggest you had influence over anyone in the operation or had authority to direct others — it was clear you were working under the direction of those higher up in the chain of command.
[33] On the other hand, while not carrying out management functions, you had a crucial role in logistical organisation within the Tribesmen’s operation. You dealt with travel arrangements, cash and gear storage, and accounting of substantial sums of money collected by the gang prior to its transportation to Auckland. Your involvement spanned several aspects of the operation from its beginning (organising the purchase money), through to the middle (organising transportation of money) and to fruition (receiving the methamphetamine). You facilitated what amounted to the organised sourcing of methamphetamine for supply by a gang. I inferred you were well aware of the scale of the operation, given the significant sums of money you counted for transportation.
[34] I inferred further that your involvement was motivated by financial gain for both yourself and the gang. It was not motivated by a causative methamphetamine addiction. But the financial compensation I recognise was not proportionate to the quantity of cash and drugs involved.
[35] Against that background you could be seen to have at least two characteristics of playing a significant role. You had a significant operational function and you had some awareness and understanding of the scale of the operation. That said, as I accepted, the predominant features of your drug offending were properly to be viewed in the “lesser” category. Hence my conclusion, which remains my conclusion, that
your role contained elements of both the “lesser” and “significant” categories. I observe that the Supreme Court decision in Berkland, as I have summarised aspects of it, does not affect my categorisation — it remains appropriate to view your offending as sitting at the lower end of a “significant” role and at the higher end of a “lesser” role.
[36] For your sentencing, Mr Williams invited me to reconsider the culpability of your offending in view of further information now before the Court.
[37]There are three reports before me:
(a)a psychological report from Craig Prince dated 30 November 2022;
(b)a report provided under s 27 Sentencing Act by Ms Kelly Lopas-King, dated 27 July 2022; and
(c)a pre-sentence report provided by the Department of Corrections dated 23 June 2022.
[38] Mr Williams relies on a number of matters drawn variously from those reports which I will now summarise.
Naivete
[39] Mr Williams suggests that there is now evidence before the Court to suggest that your involvement in the drug offending was triggered by your naivete. I have carefully read all the reports and I do not find them to indicate that you have a particularly unusual level of naivete. The way in which you described to Mr Prince your decision to get involved initially in a very substantial money operation reflects a conscious, although ill-judged, decision to undertake, as you put it to him “low-risk, easy work” at a time when you were experiencing financial difficulties.
Pressure or coercion
[40] Mr Williams has submitted that there was a reasonable degree of pressure from senior gang members. He referred to your existing relationship with a member of the
Tribesmen and your indication to the probation officer that you have received threats (to yourself and members of the family) flowing from some allegedly lost or stolen cash. I accept that there may have been some real pressure on you to continue carrying goods for the gang but the degree of pressure has to be measured against your willing involvement in the money laundering of very substantial sums and in the logistical organisation you provided for a substantial methamphetamine operation, even before carrying the drugs themselves.
Cultural report — your hardships and stressors, your personality and tendency to form dependent relationships and your low self-worth
[41] Mr Williams places emphasis upon matters reported by the s 27 report writer. He refers also to very serious criminal offending that affected one of your children, which I accept may have been simply too painful for you to talk about, as Mr Williams submits. Support you have obtained from one of the gang members would I accept explain some sense of indebtedness to that gang member.
[42] That said, it is clear from reading the s 27 report that it is substantially an attempt to provide psychological insights from a person not having expertise in psychology. I refer particularly to the report writer’s identification of factors in your offending which she opines are indicated by “possible dependent personality disorder”. Mr Prince, as the clinical psychologist providing his expert opinion, has identified that you do not meet the criteria for a dependent personality disorder. To the extent the s 27 report writer refers to weaknesses in your make-up, such as being taken advantage of by others, Mr Prince identified that you were not totally submissive and were able to stand up for yourself at times. Mr Prince identifies a probable degree of gullibility at times, and observes that you were probably lured into “easy” money.
[43] Those conclusions of Mr Prince I can properly take into account in reconfirming that your offending was primarily to be viewed in the “lesser” role but with some aspects of the “significant” role. They do not establish any strong causative explanation for your offending. That said I recognise that there are, in the circumstances, outlined some personal mitigating factors of a strength which would justify a modest discount. The matters I particularly take into account were that you were affected around the time of your offending as a solo father with personal tragedies
in your life and faced a difficult family and financial situation. A modest discount of five per cent will be allowed for those personal factors.
Parity
[44] It is a principle of sentencing that there is a general desirability that co- offenders be sentenced consistently in respect of similar circumstances.13 This consideration, as Mr Williams submits, has to be applied in your case to the sentencing of your co-offender, Tamal McMeekan.14 Mr McMeekan also pleaded guilty to an offence of possession of the same quantity of methamphetamine for supply.
[45] The starting point for Mr McMeekan’s end sentence on that charge which ended up at five years and five months’ imprisonment was seven-and-a-half years’ imprisonment.
[46] Mr Williams has submitted, as you have heard, that there is very little, if any, factual basis on which to distinguish your role from that of Mr McMeekan “within the organisation” by which I took him to mean predominantly within the methamphetamine-dealing arrangements but also within the broader gang. Mr Williams referred to the direction of other gang members, the receipt of relatively modest financial compensation and the lack of influence within the chain of command as matters common between you and Mr McMeekan.
[47] I cannot view your offending as at the same level as Mr McMeekan’s. For the reasons identified in his sentencing, his role was more truly in the classic category of a “catcher”. In relation to Mr McMeekan, I drew an analogy between his offending and that in the case of Singh v R.15 Mr McMeekan’s sentencing, as Mr White has observed, has to be seen as flowing out of a very different set of accepted facts. The facts that you have accepted involve distinctly more culpable behaviour.
[48] In your case, for the reasons I identified in the sentence indication, I view your offending as significantly more serious because of your greater knowledge and
13 Sentencing Act 2002, s 8(e).
14 R v McMeekan [2022] NZHC 2557.
15 Singh v R [2020] NZCA 211; and R v Fangupo [2019] NZHC 2896.
understanding of the commercial nature of the operation, the quantities involved and your illegitimate operational involvement — all of those stemming back significantly earlier than your involvement on the day the drugs were seized. In Mr McMeekan’s case there was also a history of matters of disadvantage which contributed causatively (albeit indirectly) to Mr McMeekan’s offending and required a significant discount.
[49] I do not consider that on the different facts relating to the involvement of yourself and Mr McMeekan that a starting point in your case of nine-and-a-half years’ imprisonment represents an inconsistent approach.
[50] I therefore continue to view the appropriate starting point to be nine-and-a-half years’ imprisonment.
Personal aggravating factors
[51] There is nothing in your criminal history nor personal aggravating features that requires an uplift from the starting point.
Personal mitigating factors
[52] As previously indicated, I intend to allow you a credit of 20 per cent for your guilty plea.
[53] Mr Williams submitted that there should be a further credit given to you for remorse and rehabilitation on the basis that you have taken full responsibility for your actions, through your pleas of guilty. Mr Williams referred to your indication to the report writer that you regret your actions and are keen to engage with whatever rehabilitative course of action is available to you.
[54] I recognise, as indicated by Mr Williams, that the Court of Appeal in Moses v R identified that remorse is a personal mitigating factor that may justify a discount separately from any guilty plea discount.16
16 Moses v R [2020] NZHC 296, [2020] 3 NZLR 583 at [24].
[55] For my part, I have been unable to discern in the reports any level of genuine remorse on your part that would justify an additional discount. I have not been looking for an extraordinary level of remorse but rather for something that is more than a bare acceptance of responsibility inherent in your guilty plea.17 In my view, your guilty plea represents the only acceptance that you have shown. Significantly, in your discussions with the report writers you have retreated from a full acceptance of your offending by denying knowledge of the fact that it was drugs in your possession.
[56] I also find no scope for a discount relating to your rehabilitation. I accept Mr Williams’ indication from the bar that you may have accepted whatever courses have been available to you within the time you have been in custody. That said, I have no substantial evidence before me to indicate that you have taken rehabilitative steps which would justify a significant discount.
Final calculations
[57] Accordingly, my calculation for your sentence will be on the methamphetamine charges:
(a)a starting point of nine-and-a-half years’ imprisonment;
(b)a credit of 20 per cent for your guilty plea; and
(c)a credit of five per cent on account of your personal circumstances.
[58] As a result of those calculations, I find the appropriate sentence you should serve on the methamphetamine charge is seven years and three months’ imprisonment.
[59] In accordance with the sentence indication I gave you, a concurrent sentence of imprisonment will be imposed on the search and surveillance charge, with no additional sanction on the Health Act charge.
17 Moses v R, above n 16, at [24].
[60] I do not consider a minimum period of imprisonment is required under s 86 Sentencing Act.
Conclusion
[61]Mr Ilton, stand please.
[62]Trent Michael Francis Ilton, I sentence you on the following charges:
(a)on the charge of possession of methamphetamine for supply — to seven years and three months’ imprisonment;
(b)on the charge of failure to carry out obligations in relation to a computer search, to two months’ imprisonment, to be served concurrently with the sentence on the methamphetamine charge; and
(c)on the charge of obstructing or hindering a medical officer of health or person assisting a medical officer, you stand convicted and are discharged.
[63] I order in addition to the sentence imposed on Mr Ilton that there is a destruction order made in respect of any drugs seized at the property at [REDACTED], Christchurch and in any other associated vehicles on 4 May 2020 and any other items associated with drugs including drug paraphernalia as seized that day.
[64]Please stand down, Mr Ilton.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
A M S Williams and K Bucher, Barristers, Christchurch
ADDENDUM
[65] At paragraph [58] above, there was a calculation error — the sentence calculation should have referred to a sentence of seven years and one month’s imprisonment. The above judgment is therefore recalled and reissued with the following sentence:
(a)on the charge of possession of methamphetamine for supply — to seven years and one month’s imprisonment;
(b)on the charge of failure to carry out obligations in relation to a computer search, to two months’ imprisonment, to be served concurrently with the sentence on the methamphetamine charge; and
(c)on the charge of obstructing or hindering a medical officer of health or person assisting a medical officer, you stand convicted and are discharged.
Schedule A
(a) first, possession of methamphetamine for supply; '
(b) secondly, obstructing or hindering a medical officer of health or person assisting the medical officer;' and
(c) thirdly, failure to carry out obligations in relation to a computer search under the Search and Surveillance Act.'
[3] Mr Ilton is to be tricd together with his co-defendant, Mi Tamal McMeekan, on 4 July 2022.
The facts
[4) The following summary of tacts has been agi eed for the purposes of this sentencing indication.
The methamphetamine operation
[5] In October 2019, the Canterbury Organised Crime Unit commenced an investigation into the drug dealing activities of members and associates of the Tribesmen Motorcycle Club (Tribesmen) gang in Canterbury. It was revealed Tribesmen members and associates were regularly involved in the purchase and distribution of significant quantities of methamphetamine. Mr Ilton was an associate of the Ti ibesmen and Mr McMeekan was a prospect of that gang.
[6]
Mr Ilton was involved in organising logistics for the methamphetamine operation, such as travel bookings, cash and gear storage. He also counted money collected by the gang prior to its transportation to Auckland on at least three occasions four to five weeks apart. The quantity of money was such that it was counted in bundles of $10,000 and significantly exceeded $100,000 each time. Further, Mr Ilton was involved in transporting the money that had been counted. On one occasion, Mr Ilton went to Chiistchurch Airport with two others and entered the security screening area separately, Mr Ilton carrying a backpack. After 13 minutes, Mr I lton left theMisuse of Drugs Act 1975. s 6(1)(f) and (2) — maximum penalty of life imprisonment.
Health Act l95G, s 72(d) — maximum penalty of six months’ imprisonment antl/or a fine of $4,0D0. " Search and Surveillance Act 2012, s 178 — inaxirnutn penalty of three months’ imprisonment.
departure lounge without attempting to board a flight and without the bag he had been carrying.
[7] However, the agreed summary of facts records there was no evidence Mr Ilton had influence on those above him in the chain of command or that he directed other members of the operation. He worked under the directioin of those above him in the operation but was twisted with money and drugs. There wiis also no evidence Mr Ilton was a significant drug user or had an addiction. Rather, he received some financial compensation for his role.
The search warrant
[8] At 5.14 pm on 4 May 2020, police executed a search warrant on Mr I lton's property in Bryndwr, Christchurch, and on a vehicle.
[9] Mr McMeekan was located seated in the front pas,senger’s seat of the vehicle. At his feet in the footwell was a cardboard box containing three large vacuum-packed plastic bags. These bags contained a total of 2,996.t)7 grams (or just under 3 kilograms) of methamphetamine, a Class A controlled drug, with an estimated street value of between $2 million and $3 million. Mr Ilton was inside the address. He was found in possession of a set of keys for the vehicle.
[10] A total of $38,834.40 in cash was seized during thee search of the property and the vehicle, including $6,025 located in a drawer inside Air Ilton’s bedroom, $22,400 located concealed behind a compu ter server in the gara ;e, and $1,320 located in a wallet belonging to Mr Ilton. Located on the floor of the garage were two sets of scales, a bag of rubber bands and a box of ziplock bags. Thirty-five used Prezzy Cards (a non-traceable credit card payment form usable in person or online) were located in the address with a value in excess of $8,500.
[11] During the search of Mr Ilton's address, his cell phone was located in his bedroom under the bed. Police formally requested Mr Ilton provide the PIN code for his cell phone but he refused to do so. This gave rise to a i:harge of fa iling to carry out obligations in relation to a computer search.
[I 2] At the time of the alleged offending, Alert Level 3 lockdown restrictions were in place nationwide in response to the COVID-19 pandemic. Police were legally authorised to assist a medical officcr of health to ensure cDmpliance with Ministry of Health directives.' Mr Ilton gave no explanation for associating with Mr McMeekan, who does not reside at his address, in breach of C OV ID-l'9 lockdown restrictions.
Submissions
Crown’s submissions
[13] Zhang v R is the Court of Appeal’s tariff decis ion applicable to the lead offending.’
(141 On behalf of the Crown, Mr Harvey submitted the alleged offending falls comfortably into band five of Zñpng, Mr Ilton’s role having aspects of both “lesser” and “significant” categories, (albe it much closer in Mr Harvey’s submission to “significant” than “lesser”). Mr Harvey submitted Mr Ilton’s level of control and influence on others was limited and his financial gain was small compared to the quantity of methamphetamine involved. However, he argued Mr Ilton was aware of the scale of the operation, was clearly trusted to colli:ct methamphetamine, and knowingly played a crucial role to enable the offending to occur over a period of time and in different aspects of the operation.
[15J Mr Harvey submitted, considering Mr Ilton’s role and the quantity of drug involved, a starting point between 10 and 11 years’ imprisonment (that is at the bottom level of the band) would be appropriate. It was su bmittetJ a starting point below the band would be inappropriate in this case given Mr Ilton’s. knowledge of the scale of the operation and its commerciality. Mr Harvey suggested a nominal uplift in the range of two to three months could be imposed to reflect the failure by Mr Ilton to provide police access to his phone and for his lockdown br‹:ach. In terms of mitigating factors, Mr Harvey indicated that if Mr Ilton were to plead guilty now, a discount of 1 5 per cent would be appropriate. He emphasised the relative lateness that the plea would have and the extent to which the case, is in his submission, is overwhelming.
Health Act 1956, s 71 A.
‘ Z.hyyg v R [2019] NZCA 507, [20 19] 3 NZLR 648.
Defendant 's submissions
[16] For Mr Ilton, Mr Williams accepted the quantity of methamphetamine placed the alleged offending within band five of Zñong but submitted this was not determinative. He suggested Mr Ilton’s role fell somewheire between the upper end of the “lesser” category and the very lower end of the “significant” category. Mr Williams emphasised Mr Ilton was neither a patched member nor a prospect of the Tribesmen, he had befriended others within the Tribesmen, he had no influence or authority over anyone in the organisation and worked under the direction of those higher up the chain. It was submitted the role was 1arJ;ely restricted to logistical organisation and there was no evidence he was personally involved with drugs on any occasion other than on the day of his arrest. Mr Williams noted that Mr Ilton received some financial compensation but it was significantly disp.roportionate to the level of cash and drugs involved and level of risk involved. Howi:ver, he did accept Mr Ilton was neither a significant drug user himself nor motivatedl to offend by an addiction. With reference to similar cases, Mr Williams submitted a starting point in the range of seven to eight years’ imprisonment is appropriate.
[I7] It was submitted an uplift is not necessary to reflect the remaining charges Mr Ilton faces, as they are at the very lower end of the sca le and on a totality basis the sentence arrived at on the lead offending would be appropriate. If the sentence indication is accepted, Mr Williams submitted Mr Ilton should be entitled to credit in the range of 20 per cent for guilty pleas, having regard to t'he proximity to trial and the fact pleas were entered on the basis of a significantly amended summary of facts. Mr Williams advised that further discounts may be sought at sentencing for Mr Ilton’s remorse and factors identified in a report which may be provided under s 27 Sentencing Act 2002.
[18]I am to apply Zhang v R.’
[19] The quantity of methamphetamine in a commercial operation is the first material consideration in an offender’s sentence. Quantity is relevant because it reflects the social harm and potential illicit gains made from dealing in the drug.’ Quantity is also highly relevant to culpability and can be indicative of commerciality which requires greater denunciation, but it cannot alone determine culpability.' Mr Ilton’s offending (possession of 2.996 kg of methamphetamine) on its face falls into band five of Zhang, which provides that a starting point of 10 years to life imprisonment will be appropriate where the dealing involves more than two kilograms of methamphetamine.’ Possession of such a quantity calls for a strong response in terms of deterrence, the promotion of accountability, and public protection. ' It also means that any reduction below the bottom of the band at 10 years would generally require involvement that falls into the “lesser” category.' '
[20] The Court of Appeal held in Zhang that the role an offender performs in the offending will also have an important influence on the categorisation of their culpabilily. It enables judges to properly assess the seriousness of the conduct and the criminality involved.'' Zhang procided three categories of involvement: “lesser”, “significant” and “leading”.' In providing guidance as to the role, the Court observed “role is a matter more likely to be known by the offender than the Crown” but in practice, the facts necessary to establish guilt will often justify inferences about the offender’s role, knowledge and gain.' 4 Where those inferences are sufficient to prove an aggravating fact, an evidential burden will move to the offender to displace the inference.' ‘
[21] Counsel have referred to me a number of cases which I have summarised in the schedule I will attach to this Judgment.
Zhang v R, above n 5, at [103]. At [104].
At [125].
! IeMillan v R [2022] NZCA 128 at [1 38], citing Zhang v R, above n 5, at [133]-[134]; and fI'on v fi [2020] NZCA 328 at [18].
II McMillan v R, above n 10, at [1 38], citing "Zhang v It, above n 5, at [123]; and Fi’alap v R [2021] NZCA 308 at [I 7].
At l04j , [ i i0) and ( H8 .
AI[26.
I d A1l27]
[22] Having regard both to the Court of Appeal's decision in Zhang and to prey ious sentences imposed or discussed in the High Court and Court of Appeal, I consider Mr Ilton’s role contained elements of both the lesser and significant categories.
[23] On one hand, Mr Ilton was an associate of the Tribesmen and it appears he came to be involved through his personal association with a patched member of that gang, although it is difficult on the evidence available: to evaluate whether that involvement was a consequence of Mr Ilton’s naivety. There is no evidence he was engaged by pressure, coercion or intimidation. There is also nothing to suggest Mr Ilton had influence over anyone in the operation nor that he had the authority to direct others. Instead, it is clear he worked under the direction of those higher up in the chain of command.
[24] On the other hand, while Mr Ilton did not carry out management functions he had a crucial role in log istical organisation within the Tribesmen’s operation through dealing with travel arrangements, cash and gear storage, and counting substantial sums of money collected by the gang prior to its transportation to Auckland. his involvement spanned several aspects of the operation from its beginning (organising the purchase money), through to the middle (organising transportation of the money) and to fruition (receiving the methamphetamine). While I accept there is no evidence to suggest he was in possession of drugs on any occasion other than the day of his arrest, I do not consider this significantly detracts from the important logistical role Mr Ilton played in facilitating what amounted to the organised sourcing of methamphetamine for supply by a gang. I infer Mr Ilton was well aware of the scale of the operation, given the significant sums of money he counted before transportation (which was such that it was counted in bundles of $10,00£J and significantly exceeded a total of $ 100,000 on each occasion).
[25] Moreover, I infer Mr Ilton’s involvement was motivated by financial gain for both himself and the gang. He cannot be said to have been motivated by a causative methamphetamine addiction. I acknowledge, however, that the financial compensation he appears to have received was not proportionate to the quantity of cash and drugs involved (given a total of $38,834.40 cash was seized during the search of Mr Ilton’s address and the vehicle, whereas the almost three kilograms of
methamphetamine located had an estimated street value of $2-3 million dollars). I note also Mr Williams ' submission that the money that Mr Ilton personally had in his property would have related to matters in addition to his involvement in the drugs operation.
[26] While the case ofSin,gñ involved some 1.5 kilograms more methamphetamine, 1 consider Mr Ilton’s alleged offending is more serious than in that case as there is evidence to suggest Mr Ilton load a significantly greater knowledge and understanding of the commercial nature of the operation and the quantities involved. In light of Mr Ilton’s logistical involvement, I am not persuaded his role could be characterised as Mr Singh’s was, as lesser. Unlike Singh, Mr I lton was not involved in importing methamphetamine, but in terms of Zhang, there is not a sentencing distinction to the charges between importation, supply and manufacture as such — the Court is instead in each case to evaluate the functional role of the defendant. '
[27] I consider Mr Ilton’s alleged offending more analogous with that in T’hilip and Foiyum. As in Philip, Mr Ilton performed an operational function by organising logistical matters, counting money and on occasion transporting cash. And, as in Fatyum, Mr Ilton’s role could be categorised as between lesser and significant. However, I do not consider Mr Ilton’s offending was as serious as that in Emigrant, where Mr Faiyum had direct control over drugs on several occasions, and was also involved in importing the Class A controlled drug, cocaine. However, in Philip and Fatyuin, the offenders were motivated at least partially by their addiction to methamphetamine, which was not a factor present here. In Naiyum, the defendant was additionally subject to a degree of coercion.
[28J In all the circuinst0 nces, I consider an appropriate starting point for Mr Ilton’s
offending to be nine and a half years’ imprisonment.
Adjusted starting point
[29] In my view, a nominal uplift of two months, that is to the adjusted starting point of nine and a half years, would have been appropriate to reflect the charge Mr Ilton
' Zhang, above n $ , at [10](g).
faces for failing to provide police access to his cellphone. The failure to provide access to encrypted devices prevents meaningful forensic analysis and cuts across the intended enablement of the police to detect and prevent liirther offending. lt would nonrally require an additional sentence but in my view in this case the uplift of two months on a totality basis is not required having regard to the starting point on the lead sentencing. Instead it can appropriately be dealt with at the end of sentencing by a concurrent sentence of two months.
[30] The alleged breach of lockdown restrictions under the Health Act, in order to continue to facilitate a significant methamphet8mine operation, demonstrated a disregard for community safety, but aga in, on a totality basis, does not call for an additional uplift. In my view the appropriate outcome should guilty pleas be entered on all these charges in relation to the Health Act breach would be a conviction and discharge on this charge.
Personal aggravating factors
[31] There is nothing in Mr Ilton’s criminal history nor other personal aggravating features that requires an uplift.
Personal mitigating factors
[32] If Mr Ilton were to accept the sentence indication and plead guilty to the charges now, I would allow a credit of 20 per cent. While the evidence against Mr I lton is strong and any plea would come at a relatively late stage in this proceeding, I Lake into account some reasonably significant amendment of the summary of facts.
[33] Any further personal mitigating factors are beyond the scope of the present indication. They would have to be accounted for if allowed at all when the matter proceeds to sentence.
Result
[34] Accordingly, the sentence indication I make today on the lead charge is one of seven years and seven months’ imprisonment. A concurrent sentence of imprisonment
would be imposed on the Search and Surveillance Act charge. As I have sa id, in relation to the Health Act charge there would be no additional sanction.
[35]As Mr Williams will discuss with you, the sentence indication will expire at
5.00 pm on £riday next week, 13 May 2022, if you have not accepted it before then.
Remand
[36]For now, I remand Mr Ilton to his trial commencing 4 July 2022.
Osborne J
NOl iC1BOF8 t
CtOWù BOUC iîor, ÛkirigfCh u T'CTT
Copy to: A M S Will iams, Bsrristers, Cllristchurch
SCHEDULE
Singh y R :' the appellant was paid $10,000 to allow 4.45 kilograms of inetharriphetamine to be delivered to his address from the United States. The Court was satisfied that while the quantity involved placed the appellant in band five, he played a lesser role. He performed a limited function under the direction and influence of othets and was nai've in providing his address. He had no awareness of the scale of the operation or the quantities involved and received comparatively modest financial gain. A starting point of eight years’ imprisonment was adopted on appeal.
R v Philip:'' the appellant was one of those dealt with in the McMillan decision. He was charged with undertaking five trips to carry at least six kilograms of methamphetamine from Auckland to Wellington over a period of about four months. On a number of occasions he also carried significant amounts of cash to pay for the methamphetamine supplied. The Court of Appeal held Mr Philip’s tole “could not be put any less than on the cusp between lesser and significant involvement”.' He was not the highest in the chain of command but on one occasion carried out a transaction while someone higher placed was absent. He was trusted to carry substantial amounts of cash. A motor vehicle paid for by cash earned by transporting methamphetamine was re8ist ered in his name and he arranged for the involvement of others as drivers.
Against that, the offending was driven by his addiction to methamphetamine. A
starting point of nine years’ imprisonment was adopted.
Faiyum v fi:2' the appellant assisted in importing five packages containing a total of
3.2 kilograms of methamphetamine and 535 grams of cocaine. Mr Faiyum picked up packages at delivery centres on behalf of importers. The Court assessed his role as being somewhere between lesser and significant. It found that he must have had some awareness of the scale of the operation given the number of packages and the different goods in which the drugs were concealed, which indicated a degree of sophistication. However, Mr Faiyum was performing his role at the directions of others and had no influence on those above him in the chain. The Court accepted there was a degtee of
Singh v I: [2020] NZCA 211.
n • rhilip, above n 10. " At [1 44].
" £ñiJiinr r P [2020] NZCA 523.
coercion but Mr Faiyuin could and should have reported this to the police. He was not entirely assisting in the operation to feed his addiction but nor was he entirely motivated by financial gain. A starting point of 10 years’ imprisonment was upheld by the Court of Appeal.
R v Muriel 2 the defendant was involved in a large-scale drug importing and distribution syndicate. The lead offence involved the dealing of 7.096 kilograms of methamphetamine. The Court found the offender’s role was “towards the middle of the ‘significant' category”. He was trusted to handle very large amounts of money and drugs, had several contacts within the syndicate, and completed sales on instructions. In this context, the Court found he plainly had some awareness of the nature and scale of the operation. While Mr Maciel did not have a management function, the Court considered he cei'tainly had an operational one. There was no evidence he directed others but he was motivated primarily, if not solely, by financial reward and had no addiction issues. A starting point of 13 years’ imprisonment was adopted.
Thomp'.son v R."’ the offender was one of those dealt with in the Zhang decision. He was the principal offender in an extensive methamphetamine distributing network which he had established and supplied a total of 4.2 kilograms of methamphetamine. He arranged for others to make deliveries and receive payments and was constantly fielding calls or texts from lower-level suppliers. The Court of Appeal found a starting point of 16 years’ imprisonment would have been appropriate to reflect the quantity involved and the offender’s leading role. However, Mr Harvey advised this case was raised to assist with an assessment of the appropriate starting point primarily in relation to the quantity involved.
' ' F v Macie1 [2021 ] NZHC 836.
” I’homp,s on y R, above n fi .
Schedule B
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10
0