R v James

[2013] NZHC 2006

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-2338 [2013] NZHC 2006

THE QUEEN

v

JADE RODNEY JAMES

Hearing:                   9 August 2013

Counsel:                  C E Clarke for Crown

J Hannam for Prisoner

Sentence:                 9 August 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]      Mr James, you have pleaded guilty to the following offences: (a)      conspiracy to supply methamphetamine;1

(b)      participation in an organised criminal group;2

(c)       conspiracy to supply class C ecstasy3 and

(d)      conspiracy to sell cannabis.4

Facts

[2]      All the relevant offending all occurred within a three and a half month period. This conspiracy failed to achieve its potential as a business enterprise.  The actual

1      Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(a).

2      Crimes Act 1961, s 98A.

3      Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(c).

4      Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(c).

R v JAMES [2013] NZHC 2006 [9 August 2013]

scale of offending is relatively small.  On the other hand its potential to do real harm, in particular through the supply of methamphetamine in the Taranaki area, was considerable should it have gathered momentum.

[3]      You are 23 years old.  The charges against you arose out of Operation Puff, which was an investigation into the sale and supply of controlled drugs in the New Plymouth area between May and September 2011.  Part of that investigation focused on the activities of the New Plymouth chapter of the Rebels motorcycle gang.  You were identified as a “soldier” to the Sergeant at Arms of the gang, Mr Couper. “Soldier” is a term given to those who work for senior gang members.  You were involved in the dealing of drugs on behalf of Mr Couper.

[4]      You have recent convictions for possession of methamphetamine and utensils (2011).  You have been convicted in the past of injuring with intent to injure (2009), assault (2011) and various breaches of Court orders.

Conspiracy to supply methamphetamine

Between 21 May and 7 August 2011, you arranged supplies methamphetamine from Mr Couper and another associate, Mr Taylor, mainly through coded text messages. On 7 August 2011 a search of the vehicle you were in revealed a useable quantity of methamphetamine and pipes.

Participation in an organised criminal group

[5]      Between 13 June 2011 and 1 September 2011 you were a “soldier” within an organised criminal group, consisting of Mr Couper and two associates.  You agreed to deal or attempt to deal drugs for Mr Couper.

Conspiracy to supply “class C varieties of Ecstasy”

[6]      Mr Couper attempted to source MDMA which is a Class B drug but it was unavailable, so he began locating suppliers of mephedrone, a Class C drug that has similar effects to MDMA.  Between 3 and 14 June 2011 you attempted to facilitate a

deal   of   3000   tablets   for   $40,000   between   Mr   Couper   and   an   associate, Mr Esterhuizen.  It did not go ahead.  You did however sell 10 pills to Mr Couper.

Conspiracy to sell cannabis

[7]      You on-sold cannabis for Mr Couper.  Between 21 May and 31 August 2011, you were in contact with Mr Couper organising the supply and sale of cannabis.  On various dates in July and August 2011 you sent text messages to nine or ten people at a time saying you had cannabis to sell.  You also supplied cannabis to an associate, Ms Moke.

Purposes and principles of sentencing

[8]      I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing.  Section 7 requires me to have regard to the need to hold you accountable for the harm from your offending, and the need to promote a sense of responsibility for, and acknowledgement of, that harm.  I need to denounce your conduct and I need to deter you and others like you from committing the same and similar offences in the future.

[9]      In  terms of s 8 principles,  I must take into account the gravity of  your offending,  including  your  degree  of  culpability.     I  must  have  regard  to  the seriousness of the types of offences committed by comparison to other types of offending, indicated by the maximum penalty prescribed.  I must also consider the general desirability of consistency with appropriate sentences.   That includes the sentences of others caught up in Operation Puff who have been sentenced already and who will be sentenced today.  And then I need, after all that, to impose the least restrictive  outcome  that  is  appropriate  to  your  circumstances,  including  your personal circumstances.  That is the requirement of that Act.

[10]     As to process, I start with the offending itself and I have done that.   I will identify the lead (or most serious) offence.  I will fix a starting point for it.  I will then consider what uplift should apply to take account of the other offences you are being sentenced on today.  Then I will consider aggravating and mitigating features

concerning you personally.   It is here that I may give you the benefit of certain discounts reflecting character, rehabilitation, remorse and your pre-trial guilty plea.

Lead offence

[11]     The lead charge for sentencing purposes today is plainly conspiracy to supply methamphetamine.  That is a vile substance which destroys users’ lives, and harms their families.  It is very much to your shame that you had anything to do with it.

[12]     If this case was one involving the actual supply of methamphetamine, your offending would fall into the upper part of band two of the guidelines in R v Fatu.5

A starting point of five years’ imprisonment would be appropriate.

[13]     But in the case of conspiracy to manufacture or deal in methamphetamine, the Court of Appeal has held that the penalty bands require reduction because of the differing maximum penalties.6   The same considerations apply here.  The degree of reduction depends on the degree of culpability.7     The conspiracy here appears to have reached a point of at least preliminary action.   It went beyond a “theoretical plan”.8    I  regard  your  culpability  (as  a  spoke)  less  seriously  than  I  regard Mr Couper’s culpability, (he being the hub and to whom I applied a starting point of seven years).  That said, your actions went beyond a “scarcely inchoate” conspiracy.9

I am satisfied that a 15 per cent discount is appropriate to reflect that the conspiracy was at a relatively incipient stage (despite the fact that you were undertaking some sales).

Result on lead offence

[14]     I  adopt,  therefore,  a  starting  point  of  four  years  and  three  months’

imprisonment on the lead offence.

5      R v Fatu [2006] 2 NZLR 72 (CA) at [34].

6      R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627.

7      R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [25].

8      R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [27].

9      R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [28].

Other offending

[15]     Given the other offending present in this case an uplift of between 12 and 21 months’ imprisonment would be appropriate.  I intend to give you the benefit of the doubt and apply the lesser of those two levels.

Result on other offending

[16]     The  initial  start  point  of  four  years  and  three  months’  imprisonment  is

therefore uplifted by 12 months to five years and three months’ imprisonment.

Totality

[17]     I am satisfied from the point of view of totality that that does not produce an outcome disproportionate to the gravity of the offending taken as a whole.

Aggravating and mitigating features of offender

[18]     I turn now to aggravating and mitigating features concerning you personally.

Aggravating features

[19]     It was accepted by Mr Hannam at an earlier stage that gang involvement is an aggravating feature in this case.  I do not think a specific uplift is warranted on these grounds or others advanced by the Crown, as I have taken them into account in setting the starting points.

Mitigating features

[20]     Before considering what discount might apply to the entry of a guilty plea, I turn first to consider your rehabilitative efforts.   Mr Chapman, your employer at Mangorie Plus Limited, a logging company, has written in your support.  As I said at the sentencing indication hearing it is an impressive letter.  You have continued in employment with this firm for now 18 months now.   Mangorie and Mr Chapman were aware of the charges you faced when you were hired.   You started with no experience in logging.  You showed a strong desire to better yourself.  The standard

of your work, Mr Chapman reports, has been exceptional.  You have arrived on time every day.  You have changed, as Mr Chapman puts it, from being “an arrogant self- centred brat to a proud young man who actually cares about life and other people”.

[21]     The pre-sentence report demonstrates that working has assisted you distance yourself from associates involved in your previous offending.   And you have distanced yourself from drugs.  Tests show that you have been drug-free now for 20 months.   You do not seek minimise the nature of your offending.   That is commendable.    You accept responsibility for your actions.    That too is commendable.  At the time of the offending, you were 21.  It is plain that today you are a substantially more mature and wiser young man.

[22]     In recognition of the substantial efforts you have made to rehabilitate and turn your life around, which I regard as a tangible expression of remorse which speaks volumes, your sentence will be discounted by 20 per cent.  That takes your sentence to four years and two months’ imprisonment.

[23]     I turn now to your guilty plea.  I indicated previously that I would extend a discount of 15 per cent for that, despite the lateness of its entry.   I confirm that indication today.

Minimum period of imprisonment

[24]     I am satisfied in this case that no minimum period of imprisonment need be imposed.  I will leave it to you to continue to address your own rehabilitation with the incentive that a Parole Board may grant you the earliest lawful release unconstrained by any premature decision of this Court.

Sentence

[25]     Stand please.

[26]     You will serve the sentences that I am about to impose concurrently, that is at the same time.  I sentence you as follows:

(a)       conspiracy to supply methamphetamine: three years and six months’

imprisonment;

(b)participation  in  an  organised  criminal  group:  one  year  and  four months’ imprisonment;

(c)       conspiracy to supply Class C ecstasy: one year and four months’

imprisonment;

(d)      conspiracy    to    sell    cannabis:     one    year    and    two    months’

imprisonment.

[27]     You   will   therefore   serve   a   total   of   three   years   and   six   months’

imprisonment.

[28]     Mr James, good luck.    Serve your sentence, rejoin society with your debt paid, and make your son and your family proud of you again.

[29]     Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, New Plymouth

Hannam & Co, New Plymouth for Accused