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 involving controlled drug analogues like this case, though these kinds of cases are regarded as more serious than cannabis.5 In Terewi, the Court of Appeal indicated that the starting point for small-scale commercial cultivation would be between two and four years and large-scale from four years upward.

[7]                  You maintain that you were told the drugs were legal but you also accept that you were reckless about that and you have pleaded guilty on that basis. And I sentence you on the basis of recklessness rather than actual knowledge. Sentencing on recklessness rather than actual knowledge proceeds on the basis that the level of culpability is less.6

[8]                  Your counsel has referred me to the sentences imposed in other cases, including other Operation Ark offenders and I have taken into account those that seem comparable to me in terms of the kind of offending, the level of culpability and the amount of the drugs supplied.7

[9]                  Judges in those cases took starting points between two and six-and-a-half years.8 The cases at the upper end of the range involved dealing on a much larger scale than yours. I find the case that is most comparable is R v McKinley, which involved the sale of ecstasy analogues by sub-distributors sourcing the drug also from London Underground. One of the sub-distributors, Ms Morris, had sold just over 5,000 pills but for a quite modest financial return. Sentencing on the basis of

4      Sentencing Act 2002, s 8.

5      R v Terewi [1999] 3 NZLR 62 (CA) at [4]; Fraser v R [2013] NZCA 250 at [14].

6      Cameron v R [2017] NZSC 89 at [17]; R v Cameron [2018] NZHC 81 at [16].

7      R v C [2015] NZHC 317; R v Cho [2018] NZHC 561; R v McKinley [2018] NZHC 601.

8      R v C [2015] NZHC 317.

recklessness, Van Bohemen J took a starting point of two years three months. One of her co-defendants, Mr McKinley, had sold over 57,000 pills. He was also sentenced on the basis of recklessness and a starting point taken of four years six months. I see your offending as falling between those two, but closer to the lower end of the range.

[10]              So taking into account the relatively short period over which you offended, the fact that you were reckless as to whether you were supplying a controlled drug rather than deliberate, and the amount of the drug involved, I consider that an appropriate starting point would be two years 10 months. There are no factors that would increase that but there are factors that would reduce it.

[11]              First, you have been on bail, and subject to bail conditions, for several years, much longer than one would expect. This has been because of the appeal process that followed the first Operation Ark trial. The effect of that undue delay should be recognised by a reduction in the starting point and I reduce the starting point by six months for that, bringing it to two years four months.

[12]              From that you are entitled to a discount for your guilty plea. You did not plead at the earliest opportunity but other Operation Ark defendants, who also pleaded late, nevertheless had the benefit of the full 25 per cent discount customarily allowed and I grant you that discount as well, which results in an end sentence of one year five months.

[13]              Before I turn to the appropriate sentence which I know you have already heard from our discussion will be community detention, I am just going to record a couple of things about you and your personal circumstances. So, you are now, I understand, 34 years old. You have got quite a few previous convictions but none of them are hugely serious and, of particular importance to me, none of them are drug-related. Significantly, in the last five years, you have only had one conviction and that is for breaching supervision conditions.  So you have done really well in the last few years.

[14]              You were frank with the pre-sentence report writer about the reason for your offending, which is that you were not working and you were struggling financially and this was a way to make money.  I note, though, that you are now working and you

have kept that job, stayed out of trouble, which is to your credit. I would like to think that this whole experience has put you off getting involved in crime for financial reasons and, although the Probation Service assesses you at being of medium risk of offending, I consider that your record over the last five years is a really promising indicator.

[15]              You have heard me discuss the appropriate sentence. Normally, I would say that home detention would be the right sentence because this is quite serious offending, selling drugs to people, but I do not want to see you lose your job. I want to see you stay in that job, keep that job, and stay out of trouble, and I am satisfied that community detention is the best way to achieve that. Therefore, the end sentence will be six months’ community detention. You will serve that at the address at 9A Tavern Road, Silverdale. The curfew period will be 6 in the evening until 6 in the morning every day of the week.

[16]              Now I am just going to talk about special conditions. Probation Service has recommended intensive supervision with the community detention and conditions relating to assessment for drugs and alcohol and so on. But I did not get a sense that Mr Kemp has a drug or alcohol problem.

[17]              So Mr Kemp, six months community detention. Keep your job, look after your child, stay out of trouble. Good luck, thank you.

P Courtney J