R v Kemp - [2018] NZHC 2360

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2012-004-009674

[2018] NZHC 2360

THE QUEEN

v

RANGIMARIE KEMP

Appearances: B R Northwood for Crown S J Lance for Prisoner

Judgment:

7 September 2018

SENTENCING NOTES OF COURTNEY J

R v KEMP [2018] NZHC 2360 [7 September 2018]

[1] Rangimarie Kemp, you appear for sentence today having pleaded guilty to one representative charge of selling a class C controlled drug, the maximum penalty for that offence is eight years’ imprisonment.1

[2] You came to the attention of the police as part of the wider investigation into class C controlled drug offending known as Operation Ark. Your offending was a relatively small part of that, in fact, a very small part of that. Over two-and-a-half months between August and November 2011 you sold more than 10,000 pills containing a class C controlled drug known as 4-MEC. You were a wholesale supplier, sourcing the pills from Andrew Lavrent and selling them to your own wholesale customers. The pills would have been saleable at about $20 – $40 each. When the police searched your address, they found $35,650.

[3] Mr Lavrent, with whom you dealt, was heavily involved in a business known as London Underground which distributed drugs known as legal highs and also pills containing the controlled drug analogue 4-MEC which were intended to mimic the effects of MDMA or Ecstasy. Woodhouse J, who sentenced Mr Lavrent and a number of other participants in that business, described it as the largest class C drug importation and dealing operation to have come before the New Zealand courts by a very long way.2

[4] The principal offenders in Operation Ark stood trial together in 2014. Your trial was adjourned because of issues arising from the appeal following the main trial. It was not until 2017 that those issues were resolved and you pleaded guilty on 22 June 2018.

[5] I turn now to the task of sentencing. The objective in sentencing in cases involving controlled drugs is to hold offenders accountable for the harm done to the community through the drugs, to promote a sense of responsibility and acknowledgement of that harm and to denounce the conduct and deter you from doing this again basically.3 I am required to apply the principles in the Sentencing Act 2002.

1      Misuse of Drugs Act 1975, s 6(1)(b).
2      R v Chase & Ors [2015] NZHC 317.
3      Sentencing Act 2002, s 7.

And relevantly in this case, that includes taking into account the gravity of the offending and the level of your culpability, the seriousness of the type of offending and the desirability that the sentence I impose on you is consistent with sentences imposed by other judges in other cases for similar offending.4

[6] I begin by finding an appropriate starting point. The courts have previously looked to the Court of Appeal decision in R v Terewi, which involved cannabis offending, for guidance in cases…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kemp

Details

AGLC: R v Kemp [2018] NZHC 2360
Case: [2018] NZHC 2360
Decision Date: 7 September 2018

CaseChat Overview and Summary

In the case of R v Kemp, the defendant, Rangimarie Kemp, appeared before the High Court of New Zealand for sentencing after pleading guilty to selling a class C controlled drug. Kemp had been involved in selling over 10,000 pills containing 4-MEC, a controlled drug analogue, over a period of two-and-a-half months in 2011. The court noted that Kemp's involvement was part of a larger investigation into class C drug offences known as Operation Ark. Kemp sourced the pills from Andrew Lavrent and sold them to her own wholesale customers. The court acknowledged that Kemp's role was relatively minor compared to the principal offenders in the operation.

The primary legal issue before the court was determining an appropriate sentence for Kemp's drug-selling activities, considering the principles outlined in the Sentencing Act 2002. The court had to evaluate the gravity of the offence, Kemp's level of culpability, and the need for the sentence to be consistent with sentences imposed in similar cases. The court also had to balance deterrence, denunciation, and the promotion of a sense of responsibility and acknowledgement of the harm caused by such offences. The court found a starting point for the sentence by referencing previous cases involving controlled drug analogues and considered Kemp's culpability based on her plea of recklessness. After evaluating comparable cases and applying the discount for a guilty plea, the court sentenced Kemp to six months of community detention, aiming to allow her to maintain her employment and stay out of trouble.

Courtney J, who delivered the judgment, considered various factors in arriving at the final sentence. These included the short duration of Kemp's offending, her status as a reckless offender rather than one with actual knowledge, and the amount of drugs involved. The court also noted the undue delay caused by the appeal process following the main Operation Ark trial, which warranted a reduction in the starting point. Furthermore, the court acknowledged Kemp's positive personal circumstances, including her current employment and lack of recent convictions, as mitigating factors. The final orders included six months of community detention with specific conditions to ensure Kemp stayed out of trouble and maintained her job.

Orders