R v K HC Palmerston North Cri-2008-54-1871
[2010] NZHC 126
•19 February 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2008-054-1871
THE QUEEN
v
K
M
Hearing: 19 February 2010
Appearances: C E Shannon and E J McCaughan for the Crown
C P Brosnahan for Mr K
R B Crowley for Mr M
Sentence: 19 February 2010
SENTENCING NOTES OF CLIFFORD J
[1] Mr K and Mr M , you appear for sentence having pleaded guilty immediately prior to trial with respect to the following charges:
a) one charge of conspiring with each other to supply three and a half ounces of the Class A drug methamphetamine;
b)in your case Mr K , one charge of possessing half an ounce of methamphetamine for the purposes of supply; and
c) one charge of possession of methamphetamine pipes; and
R V K AND M HC PMN CRI-2008-054-1871 19 February 2010
d) in your case Mr M , one charge of possessing 4.7 grams of the
Class A drug methamphetamine for the purposes of supply.
[2] The count of conspiracy to supply attracts a maximum sentence of 14 years’ imprisonment. The separate counts of possession for the purpose of supply attract maximum penalties of life imprisonment. The charge of possession of methamphetamine pipes attracts a maximum penalty of one year’s imprisonment or a
$500 fine.
[3] The charges against you followed a covert surveillance operation known as
Operation Pandora.
[4] Mr K , your guilty plea to the charge of possession of methamphetamine pipes was entered before Justice Gendall on 31 August 2009. Mr K and Mr M , your guilty pleas on the other charges were entered immediately prior to trial in circumstances recorded in a minute I issued on 29 October 2009. As noted there, whilst you accepted the core factual narrative set out in a police summary of facts, you disputed the implications as to the extent of your supply intentions that arose from that narrative. A disputed facts hearing was held before me on
18 December last year at which you both gave evidence, supported by members of your family, as to those supply intentions.
[5] In order to record the factual basis upon which I will sentence you this morning, I will first therefore record the core factual narrative that you agreed, and then set out the findings of fact I have reached in terms of the disputed facts hearing and my consideration of counsels’ submissions as regards that hearing.
[6] In terms of s 24(2)(c) of the Sentencing Act, the mitigating fact which each of you asserted was that whilst you accepted you conspired to supply methamphetamine, and possessed methamphetamine for supply, you said the actual amount supplied, and your supply intentions, applied to materially less methamphetamine than the amounts stated in the charges.
[7] Mr K , although in your evidence you expressed that position in a variety of ways, in general terms you said that your practice was, in effect, to on-sell half of any methamphetamine you obtained, and to keep half for yourself, thus funding your personal habit. Mr M , you expressed a similar position, although not quite in the same terms as Mr K . Both of you asserted that you had significant personal methamphetamine habits throughout the relevant period.
[8] The Crown must, therefore, negate beyond a reasonable doubt those facts which are disputed.
[9] The non-disputed factual narrative can be summarised as follows.
Conspiracy to supply
[10] On 2 October Mr K you received a text from Henry Rangihuna, who has already been dealt with, outlining that he had half an ounce of methamphetamine. You enquired about the price and Mr Rangihuna replied “seven”, meaning $7,000.00. You advised Mr M of the deal and he confirmed he was keen. You then contacted Mr Rangihuna, saying you had the money to make the purchase and arranged to meet him in the Manawatu Gorge. Shortly before the meeting, Mr Rangihuna texted you outlining there had been a delay. The meeting was adjourned to the next day. You then met with Mr M for the purpose of obtaining cash for the transaction. You subsequently met with Mr Rangihuna at Woodville, but the transaction did not take place. You texted Mr M , advised him of that fact and let him know you had a refund for him.
[11] On 4 October you contacted Mr M to arrange to meet him to return the money he had provided for the half ounce deal that had not proceeded.
[12] You subsequently met with Mr Craig Murphy, who has already been found guilty of his role in this offending.
[13] Following further contact between you and Mr Murphy over several days, no doubt, in my view, to discuss the transaction, you texted Mr Murphy while in the
company of Mr M , saying that you would take three for forty-five. This is a reference to obtaining three ounces of methamphetamine for $45,000.00. After some negotiation, Mr Murphy offered to supply three ounces of methamphetamine to you for $48,000.00. Intercepted communications also confirm Mr M ’s participation in the negotiations for this transaction.
[14] The transaction did not proceed as Mr M was arrested and was therefore not able to contribute his funding to the deal.
K – possession for supply
[15] As regards the charge of possession for supply to which you pleaded guilty Mr K , the police intercepted text messages and conversations that confirmed a drug deal had occurred. That deal involved you purchasing half an ounce of methamphetamine for some $7,700.00. You understood you were to receive 14 grams of methamphetamine, but you had only received 12 and you did not get $300 back. Various messages confirmed your anger at the way in which you had been short-changed.
M - possession for supply
[16] Mr M , on 8 October, and around the time that you and Mr K were endeavouring to finalise the purchase of three grams from Mr Murphy, you were stopped by the Police at Turakina. After initially complying with the Police instructions you drove off at speed but were eventually stopped some two kilometres down the road. At that time you were found to have one gram of methamphetamine in your possession and $9,600.00 in cash. A search of that stretch of road in Turakina resulted in the Police locating five plastic ziplock bags, each containing approximately one gram of methamphetamine. The bags were identical to the plastic bag located in your possession. The total amount of methamphetamine located by the Police was approximately 4.7 grams.
[17] It is the Crown’s case that the significance of your offending is to be assessed by reference to the amounts of methamphetamine involved in the four charges.
[18] As noted above, you dispute that. You say that your actual supply and your supply intentions related to materially less methamphetamine.
[19] The factual issue I must therefore determine is whether the Crown has negated, beyond reasonable doubt, that factual assertion.
[20] After having considered your evidence, and defence and Crown submissions, I am unable to accept that any degree of personal use that may have been involved materially alters the commerciality of your offending.
[21] The quantities you possessed for supply and were conspiring to obtain are commercial. You have no obvious way of funding what were bulk purchases of methamphetamine. As unemployed, or on a benefit, you therefore needed access to considerable amounts of cash. Mr M , you had considerable amounts of cash in bank accounts. Mr K , you had also dealt in considerable cash amounts, as regards the 2007 purchase of a motor vehicle and your betting through your TAB account. You both had at your homes CCTV set ups.
[22] Mr K by your own account you acknowledged selling approximately half of the commercial quantities you obtained, that itself being commercial dealing. I accept the Police evidence that the price at which you obtained methamphetamine, namely $400 a gram, was a bulk purchase price. You were therefore in contact with wholesale dealers acting themselves at significant levels.
[23] Mr M , you acknowledged selling methamphetamine from your home, involving the use of snaplock bags and scales – again an indication of commercial drug dealing operations.
[24] Furthermore, in your case Mr M , I think the circumstances of your arrest, the arrangement of the methamphetamine you had in your possession, the
cash and all the other items, all point to your being engaged in commercial methamphetamine dealing.
[25] I therefore do not consider that the level of commerciality and culpability referred by the amounts involved can be materially reduced by what I accept were personal methamphetamine habits.
[26] As to your mutual involvement in the conspiracy charge, Mr K you claimed you were only to receive $2,000 worth of methamphetamine. Mr M you claimed you only to receive $9,000 worth. Those claims simply do not stack up.
[27] Whilst I am unable to determine how you might have gone about disposing of the methamphetamine you hoped to obtain, I have no doubt that it involved ongoing significant commercial activities.
[28] Against that factual background I now turn to determine each of your sentences.
[29] As you are aware, I need first to set a starting point for the sentences to be imposed. I then consider aggravating or mitigating circumstances personal to you which would call for that sentence to be increased or decreased. I will sentence you on a concurrent basis. That is, I will first set a starting point for what I consider to be the lead offending here, which is the conspiracy charge. I will then consider an appropriate uplift to take account of the other charges you faced.
[30] As recorded in my minute of 29 October 2009, immediately prior to your entering your guilty pleas I set out what I considered to be, in terms of the agreed statement of facts, appropriate sentencing ranges.
[31] In terms of the conspiracy charge to supply three and a half ounces of methamphetamine, that is, as I said at the time, Band 2 offending. If a supply charge, it would have attracted a starting point of at least five years. On reflection, I consider that a five year starting point on that basis would be appropriate. A 30% reduction, as accepted by the Crown, by reference to the fact that this is a conspiracy
charge, results in a starting point of three and a half years for you both. I do not think the criminality of your individual offending differs.
[32] That is at the lowest end of the range I indicated at pre-sentencing.
[33] Turning to the charges you face individually, in your case Mr K as indicated I think the appropriate uplift for your possession for supply offending, after considering totality questions, is two and a quarter years. This provides, with reference to the criminality of your offending alone, a starting point of five years
nine months.1 The Court of Appeal decision in Hessell2 indicates that guilty plea
discounts must be applied as the final step in the sentencing process. I therefore need to consider at this point whether there are any aggravating or mitigating factors personal to you.
[34] I have listened to Mr Brosnahan’s submissions this morning and I have read the material provided to me. In terms of the report from the Community Probation Service, I acknowledge that, at least on 23 July 2008, you had successfully by the look of things, completed some attempts to address your drug offending.
[35] As for aggravating factors, I regard your previous convictions, but more particularly the fact that this offending occurred while you were on bail for other methamphetamine offences, to be a material aggravating factor.
[36] Balancing those two matters I consider that an uplift of three months is called for.
[37] Your effective end sentence, prior to the application of the 10% discount, is therefore six years. Applying that discount (rounded to the nearest full month), your end sentence becomes five years and five months.1
1 In Court I initially miscalculated when adding the two and quarter year uplift to Mr K ’s three and a half year starting point, and indicated that the starting point was five years and three months, to which I added a three month uplift and then applied a 10% discount. Mr Shannon, for the Crown, then drew that manifest error to my attention and I corrected it, with the assistance of counsel.
2 R v Hessell [2009] NZCA 450.
[38] I do not consider that your possession of pipes requires any further uplift. I
will impose a concurrent sentence with regard to that matter.
[39] Mr M , as I indicated on 29 October, I consider that as regards your possession 4.7 grams for the purpose of supply, that requires an uplift of one year. That results, before considering mitigating or aggravating factors personal to you, in a sentence of four years six months.
[40] Whilst you too have a lengthy criminal history, you received a more favourable probation report. Furthermore you were not offending on bail, so to that extent there are no aggravating factors.
[41] I turn the question of mitigating factors. Personal circumstances, as the courts have often said, are not generally regarded as mitigating factors. I will, however, recognise some mitigation for you in the reports I have been provided with and what I accept are your efforts to address your drug offending.
[42] On that basis I set a starting point for you, before considering your guilty plea, of four years three months. By my calculation, that results in a discount of five months which means that your end sentence is three years and ten months.
Minimum period of imprisonment
[43] In terms of a minimum period of imprisonment, as I have indicated I do not think minimum periods of imprisonment are required. I have reached that conclusion by reference first to the nature of your offending, and I have also accepted, in terms of what I have heard this morning, that hopefully there are prospects for rehabilitation. I therefore think it appropriate the Parole Board be in a position to consider how you respond to any treatment you may receive in prison at the earliest possible opportunity.
Forfeiture
[44] In terms of forfeiture and as has been acknowledged, there will be forfeiture orders in respect of the $9,6000 cash and the Chevrolet van, together with its licence
plate N1GR. I am not persuaded that the Crown has satisfied me in terms of the Toyota Camry to the extent required, so I do not make any forfeiture order today in respect of that vehicle.
[45] Mr K , you are therefore sentenced to a term of imprisonment of five years and five months on the charge of conspiring to supply methamphetamine, to a concurrent term of imprisonment of three years on the charge of possession of methamphetamine for the purpose of supply, and to a concurrent term of imprisonment of three months on the charge of possession of methamphetamine pipes.
[46] Mr M , you are sentenced to a term of imprisonment on the conspiracy charge of three years and ten months, and to a concurrent term of imprisonment of two and a half years on the charge of possession of methamphetamine for the purposes of supply.
[47] There will be forfeiture orders as set out above.
[48] I note finally that the different end sentences do not, I confirm, reflect any different culpability as regards the lead charge of conspiracy to supply. They reflect different personal aggravating and mitigating facts.
“Clifford J”
Solicitors: The Crown Solicitor, Palmerston North for the Crown ([email protected]) C P Brosnahan, Barrister, P O Box 785, Wanganui for the prisoner K
R B Crowley, Barrister, Wanganui for the prisoner M
0