R v Jacob HC Tauranga CRI 2009-070-1557

[2010] NZHC 1583

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2009-070-001557

CRI-2009-070-009602

THE QUEEN

v

MARK ANTHONY TANGIMOANA JACOB

Appearances: S E Simmers for the Crown

W T Nabney for the prisoner

Sentence:       13 August 2010

SENTENCING NOTES OF PRIESTLEY J

Solicitors:

S E Simmers, Crown Solicitors, P O box 13063, Tauranga Central 3141. Fax: [phone]

W T Nabney, P O Box 13007, Tauranga Central 3141. Fax: [phone]

Email: [email protected]

R V JACOB HC TAU CRI-2009-070-001557  13 August 2010

[1]      Mark Anthony Tangimoana Jacob, you are being sentenced this morning on a number of serious charges.  As you know some of those charges carry a maximum of life imprisonment which reflects the serious view taken of methamphetamine offending.

[2]      You  were  one  of  many  accused  caught  up  in  a  police  operation  and progressively  over  the  last  few  months  many  of  those  accused,  like  you,  have pleaded guilty.

[3]      The  major  counts  which  you  face  relate  to  offending  in  the  period March/April 2008.   These are six counts of possession of methamphetamine for supply, one count of offering to supply methamphetamine, and both those counts carry the life imprisonment maximum, four counts of conspiracy to supply methamphetamine  which  carries  a  maximum  of  14  years,  and  one  count  of possession of utensils which carries a one year maximum or a fine.  Unfortunately for you in addition to that offending you were subsequently apprehended in November 2009 and found with drugs and implements in your possession.   From that incident  you face one further count of possession of methamphetamine for supply and a second count of possession of a glass pipe.

[4]      You entered your guilty pleas to the High Court charges on 18 June 2010. Two weeks afterwards, on 1 July, you entered guilty pleas at what I accept is an early opportunity, in the District Court in respect of your November 2009 offending.

[5]      I do not wish, for the purposes of sentencing you today, to give a lengthy recital  of  the  facts.    You  were  apprehended  as  a  result  of  an  extensive  police operation code named Operation Bird.  Intercepts, telephone calls, and text messages indicated you were, over a 55 day period, in frequent contact with the principal offender one Wiremu Tawhiri.  The six possession for supply counts to which I have referred relate to telephone communication in March/April 2008 period.   At the conclusion  of  that  operation  when  the  police  searched  your  address  they found plastic bags of methamphetamine and the glass pipe.  The methamphetamine totalled just under 0.75 gms which you said was for your personal use.   The offering to

supply and conspiracy to supply counts relate also to intercepted communications during the period to which I have referred.

[6]      Your 20 November 2009 offending, which unfortunately for you occurred whilst you were on bail, flowed from the police stopping your motorcycle on State Highway 2.   You were searched.   Eventually a plastic film canister was found between your buttocks under your clothing.   Two bags of methamphetamine containing one gram and 0.15 grams were found as well as a pipe.

[7]      For sentencing purposes I record, and there is no dispute about this, that just under 5 grams of methamphetamine were at various stages found in your possession. So far as the conspiracy and offering to supply charges are concerned the messages suggest that the volumes involved were approximately 7 grams.  As is often the case in intercepted evidence flowing from police operations of this type, it is very difficult for the Crown to produce any coherent evidence about precise volumes and values. It is clear for sentencing purposes that the safer course for courts to adopt is to deal with the volumes as known but to see those volumes in the context of a wider pattern of dealing.

[8]      I say something now about your personal circumstances and from what your counsel has told me this morning Mr Jacob, and you I am sure would agree with me, that your involvement with and addiction to methamphetamine has ruined your life in a major way.  In sentencing you today I am going to give you some credit for what your counsel submits is a realisation that you have taken active steps to clean up your life and that you wish to avail yourself of supportive programmes whilst you are in prison.

[9]      You are a mature man.  You have not had a blame-free past but you need to take aboard the fact that methamphetamine is highly addictive, that many people in our community including, I suspect, many with whom you are associated, use that drug, and it is going to take very strong will power on your part to keep away from it in future.   So I hope that, although I have to send you to prison, that period of imprisonment is a break point in your life and you do finally turn your life around.

[10]     Against that exhortation from me I record that you are 48, a man of Ngatu Rangi descent.  You live with your family in Mt Maunganui where you seem to have had a responsible job.  You have children by various relationships.  You have a good relationship with your mother who also resides in Mt Maunganui.  Your counsel tells me, and I accept, that as a result of your offending and addiction you have lost your house  through  a  mortgagee  sale.    Mr  Nabney  is  right  to  concede  that  when sentencing for drug offending the courts are required by law to pay minimal regard to personal circumstances.  In your case, however, I am not going to be totally blind to that.

[11]     Despite having had in recent times two hip replacement operations and being on the sickness benefit  you report that  you are generally in good health.   You attribute your offending partly to a former association with the Greasy Dogs gang but mainly through an association with an old work mate who encouraged you into a methamphetamine habit.

[12]     I am impressed by your own self-description that you describe the situation into which you have been placed as going deeper and deeper until you ended up drowning.  You, in your discussions with the probation officer, have accepted your culpability and are willing to make amends.  You have shown considerable insight as to how you got yourself into this mess, being partly previous use of cannabis but mainly methamphetamine use over the five year period.

[13]     The probation officer, using various problematic assessment tools, assesses your risk of re-offending as low but then goes on to say there is a high risk because of the severity of your offending.  For my part Mr Jacob I accept that your risk of re- offending is low provided you stay away from drugs.  If you do not, next time round you   probably   will   drown.      Unsurprisingly   of   course   the   probation   report recommends imprisonment.

[14]     The catastrophe of your offending is underlined by the fact that up to now you have had no previous convictions whatsoever.  I intend to give you some credit for that as well.

[15]     I turn now to the relevant principles and purposes of the Sentencing Act.  In your particular case there has to be recognition of the harm which drug offending does to the community.  I need to denounce your conduct and promote in you a sense of responsibility and there is also an aspect of deterrence.  I regard the s 7(h) purpose of rehabilitation of being very important in your case.  Given that you are one of a number of accused, I also have to take into account consistency with appropriate sentencing levels imposed on others (s 8(e)) and also appropriately impose for you the least restrictive outcome.

[16]     I have been alerted, by counsel, to the various aggravating and mitigating factors.  The only aggravating feature which I can identify so far as your offending is concerned is its persistence which has with it of course an element of preplanning. The persistence to which I refer relates to your communications over the 55 day period to which I have referred.  A serious aggravating feature so far as you were concerned was that on your arrest you were apparently bailed, and then in November

2009 you offended whilst you were on bail in much the same area.

[17]     Mitigating factors for which you are entitled in my view are first that you have no previous convictions and secondly your good character, work ethic, and importantly, the fact that you eventually pleaded guilty, and in respect of the November 2009 offending pleaded guilty at an early stage.  Mind you, in respect of that you had no option because you were caught red-handed.

[18]     Ms Simmers for the Crown has made focused submissions.  She seeks a start point overall of between four years and nine months to five and a half years to reflect the totality of your offending.  She makes the submission, which I accept, that your offending falls at the top of band 1 of R v Fatu[1]  and into the bottom of band 2. Turning to the methodology of sentencing Crown counsel sets its start point somewhere between four to four and a half years uplifted by nine to 12 months for

[1] R v Fatu [2006] 2 NZLR 72

the November 2009 offending and accepts that a discount of 15% is appropriate for your guilty pleas.

[19]     Mr Nabney has made competent and focused submissions as well.  So far as the possession of methamphetamine for supply is concerned, he submits that this sits at the top of band 1 of Fatu.  He accepts there needs to be an uplift, bringing the total sentence somewhere between four and four and a half years.  He accepts too, that a

15% discount is appropriate for your guilty pleas in the High Court and asks that I give some small weighting to  your early guilty plea in the District Court.   He stresses, and I have already noted the substance of his submission, that your life has been ruined and that you have lost everything.

[20]     In fixing a start point I have regard to other sentences imposed on your co- accused which have some reference to established volumes of the drug.  I notice that your co-accused, Mr Castle, had imposed on him a sentence with a three and a half years start point where 1.75 grams was involved.  Donna Kissling, who I sentenced earlier this year, was involved with 4.1 grams of methamphetamine.  The start point deployed there was three years and four months.  Mr Frazer, where the established volumes were between 0.9 and 1.1 gramms, was sentenced as a result of a start point fixed by Lang J of two years and nine months.   Harrison J, who dealt with the primary offender Mr Tawhiri, ended up with a total start point of eight and a half years, there being a six year start point on dealing where the volumes involved were somewhere between 30 and 60 grams.

[21]     The Crown here is able to prove possession of a total of 4.99 grams of methamphetamine coupled to which were attempts to source an additional seven grams.   Your offending, as I have said, was over a period of 55 days.   You are clearly a regular and persistent dealer.  Your dealing was commercial although, as is so often the case, was designed in part to subsidise your own habit.

[22]     I   intend   to   use   as   lead   sentences   the   High   Court   possession   of methamphetamine for supply counts.   I consider your dealing there sits slightly above R v Fatu band 1 and in the bottom third of band 2.  Having regard to other start points to which I have referred I consider a four and a half year start point is appropriate.   That must be uplifted by six months to reflect the totality of your offending including your second convictions in November 2009 when you were caught riding your motor bike.   To the five year totality figure, to which I have

referred, I add a further three months for the aggravating feature of your offending with the same drug whilst you were on bail.  If Court conditions are flouted courts lack credibility if no sanction is imposed so far as offending on bail is concerned.

[23]     I do, however, intend to give you credit for your rehabilitation efforts and the fact that you have had no previous convictions.  That credit will be one of six months which will bring me back to an overall term of four years and nine months.   I consider you are entitled to a 15% discount, or thereabouts, to reflect your guilty plea.  Thus from four years and nine months I come down to an end sentence of four years and one months imprisonment which I am satisfied, although lenient in your situation, is appropriate, consistent with your co-accused, gives appropriate credit for

your previous good record, and reflects R v Taueki[2] methodology.

[2] R v Taueki [2005] 3 NZLR 372.

[24]     Stand up please.

[25]     Thus on the six counts of possession of methamphetamine for supply, which was subject to indictment in this Court, I sentence you to four years and one months imprisonment.

[26]     On the one count of offering to supply methamphetamine I sentence you to four years imprisonment.

[27]     On the four counts of conspiracy to supply methamphetamine I sentence you to three years and nine months imprisonment.

[28]     On the one count of possession of utensils I sentence you to three months imprisonment.

[29]     Turning to the two District Court matters, on the one charge of possession of methamphetamine for supply, I sentence you to four years and one months imprisonment.

[30]     On the charge of possession of a glass pipe I sentence you to three months imprisonment.

[31]     All those terms of imprisonment, Mr Jacob, are to be served concurrently.

[32]     I also make a strong recommendation to the prison authorities, given the amount of time you have already spent in custody on remand, that you be enrolled in programmes to reinforce your life skills, to reinforce your rehabilitative efforts, and to assist you when weaning yourself from drug addiction.

[33]     Thank you.  Stand down.

.......................................… Priestley J