R v Keogh
[2021] NZHC 2677
•7 October 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-3188
[2021] NZHC 2677
THE QUEEN v
DENA ROSE KEOGH
Hearing: 7 October 2021 Appearances:
S J Bird for the Crown
W T Nabney for the Defendant (who appeared via VMR from Grace Foundation)
Sentencing:
7 October 2021
SENTENCE OF GAULT J
Solicitors / Counsel:
Mr C H Macklin and Mr S J Bird, Gordon & Pilditch, Office of the Crown Solicitor, Rotorua Mr W T Nabney, Barrister, Tauranga
R v KEOGH [2021] NZHC 2677 [7 October 2021]
[1] Ms Keogh, you have pleaded guilty to one charge of conspiring to supply methamphetamine,1 and one charge of conspiring to supply gamma-butyrolactone (GBL),2 following a sentence indication I gave you on 12 July 2021.3 I will annex this sentence indication to my sentencing notes.
Facts
[2]I begin by setting out the facts of your offending.
[3] Following the arrest and admissions of a commercial exporter of methamphetamine in the United States, the New Zealand Police began investigating the commercial manufacture, importation and supply of methamphetamine in the Bay of Plenty (Operation Schultz). The exporter had told Police that his New Zealand customer was a Mr MacFarlane. Police obtained a warrant to intercept Mr MacFarlane’s private communications in July 2020.
[4] Pursuant to that warrant, on 12 August 2020 between 6:40 and 7:50 pm, Police recorded a conversation at Mr MacFarlane’s Rotorua address between you, Mr MacFarlane and his partner Ms Ward. This conversation is the basis upon which you are charged with conspiring to supply GBL.
[5]Relevant excerpts of that conversation include:
Mr MacFarlane: Let’s do it. I’ve got heaps of litres here. I’ve got
about three litres here.
You: Yeah, I’ve been waiting for you…And oi straight up,
heaps of people have been ringing me for, for Waz aye in Tauranga. Like not a whole litre. Like if I was to break it down, but it’s better to just sell it in bulk aye, like in, in litres. For me it is anyway … But um like Sunset, you know Sunset? Clay’s missus. She, she wants like – And Stacey oi, he’s another one that doesn’t buy a litre.
[6] References to “Waz” are to the drug, GBL. The conversation moved on. Mr MacFarlane gave you advice on getting cash prior to sale, so that you did not end
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum penalty life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2A)(b). Maximum penalty 10 years’ imprisonment.
3 R v Keogh [2021] NZHC 1745.
up chasing people “on tick”. You also explained that various people had come to your house in a car. You said:
Bro like when they first come to my house and offloaded it like there was like ten, ten fifty kg ones. Um I went back with Rayner and, coz they were, they were everywhere ow. Like the car was that heavy girl, I couldn’t move.
[7] You then received a phone call. The caller asked you if you could “break it in half”, which you repeated to Mr MacFarlane. Police understand the caller’s request to have meant, could they purchase half a litre of GBL. You asked the caller if they had “a Wickr” – an encrypted messaging application favoured by Mr MacFarlane. You and Mr MacFarlane agreed to supply 455 millilitres of GBL to the caller the next day for $1,250. You confirmed that he would receive $1,000 and you, $250.
[8] The three of you then discussed swapping 125 millilitres of GBL for an ounce of cannabis from an unknown person. Mr MacFarlane said he had 100 millilitres “of G” in the cupboard, and asked Ms Ward where the “G container” was. She gave him directions where to find it, and Ms Ward then measured out 125 millilitres of GBL. Police do not know whether the deal took place.
[9] You returned to Mr MacFarlane and Ms Ward’s Rotorua address on 17 September 2020. Again, Police recorded the conversation, and it is the basis upon which you were charged with conspiring to supply methamphetamine. You are recorded as saying:
So I want … a half. A half round one … And two quarters … that’s, so a whole one but I want – It has to be a half and … coz it’s for different people so … a half round and two quarters.
[10] Police interpret your words as a request for an ounce of methamphetamine (approximately 28 grams), broken down into half an ounce and two quarter ounces, as they were for different people. You and Ms Ward discussed that it would cost
$3,500 for half an ounce and $1,750 for a quarter ounce. Ms Ward said that she would go get the methamphetamine and asked whether you had your scales. You could not find scales at the address. You left. It is unknown whether you took the methamphetamine with you.
[11] You were arrested on 29 September 2020. On 20 November 2020, you pleaded not guilty to possession of methamphetamine for supply and conspiring to supply GBL. The methamphetamine charge was later amended to a charge of conspiring to supply methamphetamine. You sought a sentence indication. You have been on EM bail at the Grace Foundation since 15 April this year.4
Approach to sentencing
[12] In terms of my approach to sentencing,5 I will first set a starting point which reflects the nature and circumstances of your offending. I will then consider your personal circumstances, to assess whether an adjustment to the starting point is required – up or down.
[13] I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.6 In drug offending, the relevant purposes of sentencing include: to hold you accountable for harm done to the community; to denounce the conduct in which you were involved; to protect the community; to deter you and other persons from committing the same or a similar offence.7 I must also take into account the need for consistency between sentences for similar offending and the need to assist in your rehabilitation and reintegration, and the need to impose the least restrictive sentence that is appropriate in the circumstances.
Starting point
[14] I turn to the starting point for the lead offence, the charge of conspiring to supply methamphetamine.
[15] As I said in my sentence indication, there are five bands for methamphetamine offending in the guideline decision,8 reflecting the quantity of the drug involved in the offending. Culpability is measured first by the quantity of the drug, and second, by the offender’s role in the offending, whether it is a leading, significant or lesser role.
4 Keogh v R [2021] NZHC 797.
5 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]-[47].
6 Sentencing Act 2002, ss 7-8.
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [90].
8 At [125].
[16] Given the conspiracy charge, I determine what the notional starting point would have been if the conspiracy had been completed9 and then reduce that figure, depending on how far the conspiracy was advanced.
[17] The relevant quantity of methamphetamine is 28 grams. This places the offending in band 2, which captures offending involving five to 250 grams. In this band, the penalty ranges from two to nine years’ imprisonment.
[18] As previously indicated to you, having regard to your role in the offending and the cases cited,10 I consider the appropriate starting point for this supply of methamphetamine would be three years’ imprisonment, reduced to two-and-a-half years’ imprisonment given the conspiracy charge. You were a well-connected dealer who had driven to Rotorua because you expected Mr MacFarlane would have drugs for you to sell and therefore the conspiracy cannot have been that far from completion.
Aggravating and mitigating features of the offence
[19] As previously indicated to you, I consider an uplift of six months is appropriate for the GBL charge, having regard to totality.
[20] Neither counsel submitted there are any mitigating features of the offending as opposed to mitigating factors that are personal to you. I agree.
9 The Misuse of Drugs Act 1975 provides that every person who conspires to supply a Class A controlled drug is liable on conviction to imprisonment for a term not exceeding 14 years.
10 (a) In Govender v R [2019] NZHC 3212, a police search of the defendant’s motel residence, following a car crash of a vehicle registered to her, uncovered 29 g of methamphetamine, 10 g of cannabis, digital scales, $816.80 in cash, zip lock bags and a notebook containing records of drug transactions. On appeal, Powell J considered the starting point of three years’, six months’ imprisonment was within range. The material uncovered in the search indicated a moderate degree of commerciality [18]. Further, there was no evidence to suggest the defendant had a lesser role in the offending [14], or that she was motivated by addiction or coercion [14] and [17].
(b)In Roberts v R [2019] NZHC 3319, Woolford J took a starting point of three years’
imprisonment for the manufacture of “up to” 42 g of methamphetamine, and the supply, and offers to supply, some of those 42 g. The offending was not minimal or small scale, however, the defendant’s culpability was informed by his addiction and subjection to violent pressure from a co-defendant.
(c) In Tuuta v R [2019] NZHC 2788, a police search of the defendant’s vehicle uncovered a sawn-off shotgun, 11 rounds of ammunition and 16.3 g of methamphetamine. I regarded the defendant as having a lesser role, being a street-level dealer. There was no evidence that he was motivated by addiction. I adopted a starting point for the drug offending of two years’ six
months’ imprisonment.
[21]With the uplift, I arrive at a global starting point of three years’ imprisonment.
Personal aggravating and mitigating factors
[22] As previously indicated to you, I agree with counsel that no uplift is appropriate for your previous convictions.11 These were for low-level offending, with the possession charges indicating you were dealing with addiction issues at the time.
Guilty plea
[23] As previously indicated to you, I consider a full discount of 25 per cent is appropriate for your guilty pleas. You entered the pleas at a relatively early stage and following my sentence indication. The charges arise from a complex operation where there were initially indications of further charges and where significant disclosure had to be reviewed to assess the evidence.
Time spent on EM bail
[24] As both counsel accept, you are also entitled to credit for spending over five and a half months on electronically monitored (EM) bail. I consider that a further discount of two and half months (approximately seven per cent) is appropriate.
Personal background and addiction
[25] I turn to your personal background, and your drug addiction. Based on a s 27 report prepared by Ms Cade and Ms Moodie, Mr Nabney submits that aspects of your early life, such as instability, violence and early methamphetamine use, are causally connected to your offending. He submits a discount is appropriate to reflect this.
[26] I have read the s 27 report. It is detailed and helpful. It indicates that you are of Ngāpuhi descent. You were born in Kawakawa and your parents separated when you were only two. You did not see your father again until you were 24.
11 Ms Keogh has three relevant previous convictions for methamphetamine offending in 2016: Police v Keogh [2018] NZDC 5224. These comprised: supplying methamphetamine in a single transaction for $350; possession of 0.2 of a gram of methamphetamine; and possession of a pipe. The lead charge, for supply, attracted a starting point of 12 months’ imprisonment. She received one months’ concurrent imprisonment on each other charge, and an end sentence of ten months’ home detention.
[27] When you were 11, you moved from Northland to Rotorua and your mother had another child. You found it difficult to adjust and behaved badly. You began drinking alcohol and smoking cigarettes and cannabis around age 13 to 14. Your mother would buy alcohol and drugs for you. You said your mother abandoned you when you were 14. You moved in with your boyfriend. You were exposed to significant family violence from your boyfriend and you witnessed it from his father.
[28] Your boyfriend’s father was a manufacturer of methamphetamine and you began using it aged 14. You became a regular user very quickly as you never had difficulty obtaining methamphetamine and did not have to pay for it. There were no positive authority figures to discourage your use.
[29] When you were 19, you began a relationship with a member of the Mongrel Mob who was a methamphetamine manufacturer. You continued using. He was physically and emotionally abusive and controlling, even when you were pregnant. He would beat you, choke you from behind until you fell unconscious, and laugh and jeer at you when you protested. You had chunks of hair missing, swollen eyes and bruises everywhere. He once broke your arm. You would use methamphetamine daily for pain relief and to get through the day.
[30] [Redacted.] You reduced your alcohol intake after this as you recognised it made you vulnerable. You told your partner what happened, however he assaulted you because he viewed it as your fault.
[31] When you were pregnant with your son, you gave up alcohol. However, you continued to use some methamphetamine. You told the report writers you could not get away from it, your partner forced it on you, it was everywhere. You are remorseful for this now.
[32] Your heaviest methamphetamine use was between ages of 24 and 31 (until you were in custody last year). This was after your son was born and removed from your care. You are clear that your methamphetamine use was to “numb” your pain, grief and distress. You were using half an ounce about every two days, smoking at times
four grams per day. Your alcohol intake also increased and you used it as another form of relief.
[33] During this period, you sought treatment from Te Whare Oranga Ngakau in Rotorua and briefly reduced your methamphetamine use, but you say you were engaged for the wrong reasons and were not ready or motivated to participate fully.
[34] You have dabbled in other drugs but it is clear your drug of harm is methamphetamine. The first time you used GBL was during the 12 month period prior to your arrest. You only took it a few times a month. You deny being reliant on it.
[35] Addiction shown to be causative of offending is a mitigating consideration depending on the extent to which it mitigates moral culpability for the offending.12
[36] As the s 27 report indicates, I accept there is a causative link between your long-standing methamphetamine addiction and your offending. The Crown does not suggest otherwise. I also consider that your addiction is connected with the instability, violence, lack of positive role models and early exposure to methamphetamine that characterised your upbringing. You used methamphetamine to “numb” your pain, grief and distress. In a sense, as Mr Bird submitted, this is upstream from the addiction. Taking both aspects into account and avoiding too much double counting, I consider a discount of 15 per cent is appropriate before considering rehabilitation.
Rehabilitation
[37] Turning to rehabilitation. As Mr Nabney submits, I accept you have engaged fully with the rehabilitative programmes at the Grace Foundation to address the causes of your offending since you moved there in April to complete a full immersion drug recovery programme. During your time at the Grace Foundation, you have completed a number of programmes. Mr Latele spoke directly today about your progress. The onsite manager reports that you have embraced the programme wholeheartedly and made excellent progress, intent on living a life free of drug dependence and re-establishing your life to reconnect eventually with your son and family. You are
12 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10](k) and [149].
positive and bring a supportive and bubbly energy to the group. You are focused on being resilient in order to lead a sustainable new lifestyle. They foresee great things for your future. I understand you now want to stay in Auckland and establish new connections and extricate yourself from the Rotorua and Tauranga area.
[38] I congratulate you on your excellent progress. You should be proud of your efforts. Your progress at the Grace Foundation highlights the appropriateness of consideration of a rehabilitative response as part of sentencing.13 I consider that a further discount of three months (approximately eight per cent) is justified for your effort and good prospects of rehabilitation. This might have been higher except that I have already given a discount for the same time spent on EM bail.
[39] That brings the net discount to 55 per cent, reducing the global starting point of three years’ imprisonment to sixteen months’ imprisonment. The Court can therefore consider imposing a sentence other than imprisonment.
Home detention
[40] The question is whether a sentence of imprisonment or home detention or community detention is the least restrictive sentence available in the circumstances. The Crown acknowledges that your sentence can appropriately be commuted to home detention, but submits that is the least restrictive sentence. Mr Nabney submits that an end sentence of community detention coupled with intensive supervision would enable you to continue with the Grace Foundation, but still have support in the short to medium term continuing to address your drug offending and the reasons for it.
[41] The Grace Foundation now wish to locate you to another of their addresses that is independent living, while remaining under strict supervision and continuing with your rehabilitation and the next stage of your recovery programme. It is a transition from your current communal living environment to one that would allow your positive self-development and reintegration back into the community and eventually your whanau. They request a daily curfew from 9:00 pm to 6:00 am to allow you to go about your daily and weekly routine, which includes the Kokiri programme.
13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(k)].
[42] Depending on progress, Mr Latele said that your programmes could continue for anywhere between six weeks and up to six months.
[43] I agree that, although your offending was serious, a sentence of imprisonment is not required by the purposes and principles of sentencing. The initial pre-sentence report considered the new Grace Foundation address in an apartment building was unsuitable and recommended a combination of intensive supervision and community work. The Department of Corrections has since confirmed that the address is suitable. It is important that you continue with your Grace Foundation programmes, but I consider that can occur with a sentence of home detention.
[44] The final question is whether that sentence is the least restrictive sentence or whether, as Mr Nabney submits, a sentence of community detention and intensive supervision is the least restrictive sentence. Mr Nabney acknowledges that a sentence of community detention would need to be longer given the 12 hour rather than 24 hour curfew it would involve.
[45] In all the circumstances, I consider that home detention is the least restrictive sentence that is appropriate having regard to the gravity of your offending, your progress with rehabilitation treatment and the importance of that continuing. I consider that the shorter more restrictive sentence of home detention would fit with the importance of continuing your rehabilitation.
[46] Based on sixteen months’ imprisonment, I would have considered a sentence of eight to ten months’ home detention but you are also entitled to some credit for the six and a half months you spent in custody before you were on EM bail. Mr Bird submitted I could deduct this period before commuting the sentence to home detention, whereas Mr Nabney submitted that the six and a half months should be deducted from the amount of home detention. Overall, I consider that a sentence of four months’ home detention is appropriate.
Result
[47] Ms Keogh, on the charge of conspiring to supply methamphetamine, I sentence you to four months’ home detention on the terms and conditions in the addendum to the pre-sentence report, modified as follows:
(a)To serve the period of home detention at the designated address and not to leave the address without the written permission of a probation officer except as follows.
(b)To attend and complete the Grace Foundation programmes and any other programme directed by a probation officer that is not inconsistent with the Grace Foundation programmes.
(c)To attend her current work on Fridays.
(d)To attend any medical/dental/hospital or specialist appointments as approved by a probation officer.
(e)To attend all government agency appointments as approved by a probation officer.
(f)To attend to shopping and personal needs up to three hours at a time on dates and times to be agreed with a probation officer.
(g)Not to possess, consume or use any alcohol or drugs not prescribed.
(h)To submit to alcohol and drug testing as directed by the police or a probation officer.
Post detention condition:
(i)To attend and complete the Grace Foundation programmes for a further two months (six months from now).
[48] On the charge of conspiring to supply GBL, I sentence you to two months’ home detention on the same terms and conditions.
[49] These sentences are to be served concurrently. That makes a total end sentence of four months’ home detention.
Gault J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-3188
[2021] NZHC 1745
THE QUEEN v
DENA ROSE KEOGH
Hearing: 12 July 2021 (Heard at Hamilton) Appearances:
S J Bird for the Crown (via VMR) W T Nabney for the Defendant
Date of sentence indication:
12 July 2021
SENTENCE INDICATION OF GAULT J
Solicitors / Counsel:
Mr C H Macklin and Mr S J Bird, Gordon & Pilditch, Office of the Crown Solicitor, Rotorua Mr W T Nabney, Barrister, Tauranga
R v KEOGH [2021] NZHC 1745 [12 July 2021]
[1] Ms Keogh, you have been charged with possession of methamphetamine for supply1 and conspiring to supply gamma-butyrolactone (GBL).2 You seek a sentence indication on an amended charge of conspiracy to supply methamphetamine, and on the GBL charge.
Facts of the alleged offending
[2] Following the arrest and admissions of a commercial exporter of methamphetamine in the United States, the New Zealand Police began investigating the commercial manufacture, importation and supply of methamphetamine in the Bay of Plenty (Operation Schultz). The exporter had told Police that his New Zealand customer was a Mr MacFarlane. Police obtained a warrant to intercept Mr MacFarlane’s private communications in July 2020.
[3] Pursuant to that warrant, on 12 August 2020 between 6:40 and 7:50 pm, Police recorded a conversation at Mr MacFarlane’s Rotorua address between you, Mr MacFarlane and his partner Ms Ward. This conversation is the basis upon which you are charged with conspiring to supply GBL.
[4]Relevant excerpts of that conversation include:
Mr MacFarlane: Let’s do it. I’ve got heaps of litres here. I’ve got
about three litres here.
You: Yeah, I’ve been waiting for you … And oi straight up,
heaps of people have been ringing me for, for Waz aye in Tauranga. Like not a whole litre. Like if I was to break it down, but it’s better to just sell it in bulk aye, like in, in litres. For me it is anyway … But um like Sunset, you know Sunset? Clay’s missus. She, she wants like – And Stacey oi, he’s another one that doesn’t buy a litre.
[5] References to “Waz” are to the drug, GBL. The conversation moved on. Mr MacFarlane gave you advice on getting cash prior to sale, so that you did not end up chasing people “on tick”. You also explained that various people had come to your house in a car. You said:
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); maximum penalty life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2A)(b); maximum penalty imprisonment not exceeding 10 years.
Bro like when they first come to my house and offloaded it like there was like ten, ten fifty kg ones. Um I went back with Rayner and, coz they were, the were everywhere ow. Like the car was that heavy girl, I couldn’t move.
[6] You then received a phone call. The caller asked you if you could “break it in half”, which you repeated to Mr MacFarlane. Police understand the caller’s request to have meant, could they purchase half a litre of GBL. You asked the caller if they had “a Wickr” – an encrypted messaging application favoured by Mr MacFarlane. You and Mr MacFarlane agreed to supply 455 millilitres of GBL to the caller the next day for $1,250. You confirmed that he would receive $1,000 and you, $250.
[7] The three of you then discussed swapping 125 millilitres of GBL for an ounce of cannabis from an unknown person. Mr MacFarlane said he had 100 millilitres “of G” in the cupboard, and asked Ms Ward where the “G container” was. She gave him directions on where to find it, and Ms Ward then measured out 125 millilitres of GBL. Police do not know whether the deal took place.
[8] You returned to Mr MacFarlane and Ms Ward’s Rotorua address on 17 September 2020. Again, Police recorded the conversation that ensued, and this conversation is the basis upon which you are charged with conspiring to supply methamphetamine – to be amended. You are recorded as saying:
So I want … a half. A half round one … And two quarters … that’s, so a whole one but I want – It has to be a half and … coz it’s for different people so … a half round and two quarters.
[9] Police interpret your words as a request for an ounce of methamphetamine (approximately 28 grams), broken down into half an ounce and two quarter ounces, as they were for different people. You and Ms Ward discussed that it would cost $3,500 for half an ounce and $1,750 for a quarter ounce. Ms Ward said that she would go get the methamphetamine and asked you whether you had your scales. You could not find scales at the address. You left. It is unknown whether you took the methamphetamine with you.
[10] You were arrested on 29 September 2020. On 20 November 2020, you pleaded not guilty to possession of methamphetamine for supply and conspiring to supply
GBL. You have been on EM bail at the Grace Foundation since 15 April this year.3 And, as you have heard, the methamphetamine charge is to be amended.
Approach to sentencing indications
[11] A sentence indication indicates the type, range and/or quantum of the sentence the Court would or would not be likely to impose on you if you were to plead guilty.4 It is intended to provide clarity and certainty about the “actual jeopardy” you face.5
[12] A sentence indication is not the same as a sentencing. In particular, the Court does not have all the information that would be available at sentencing. Nevertheless, subject to that important limitation, the sentence indication can follow the same approach as a sentencing. In cases of methamphetamine offending, that approach begins with determining an adjusted starting point6 by considering the Court of Appeal guideline decision7 and the aggravating and mitigating features of the offence.8 The starting point is then further adjusted for aggravating and mitigating factors personal to you, as well as any guilty plea.9
[13] I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.10 In drug offending, the relevant purposes of sentencing include: to hold you accountable for harm done to the community; to denounce the conduct in which you were involved; to protect the community; to deter other persons from committing the same or a similar offence.11 I must also take into account the need for consistency between sentences for similar offending and the need to assist in your rehabilitation and reintegration, and the need to impose the least restrictive sentence that is appropriate in the circumstances.
3 Keogh v R [2021] NZHC 797.
4 Criminal Procedure Act 2011, s 60.
5 Taylor v R [2013] NZCA 55 at [17].
6 The Court of Appeal used the term adjusted starting point “to signify that it incorporates all aggravating and mitigating features of the offending”: Moses v R [2020] NZCA 296 at [6].
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
8 Moses v R [2020] at [46].
9 At [46].
10 Sections 7-8.
11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [90].
Starting point
[14] I first set a starting point for the lead offence, the charge of conspiring to supply methamphetamine.
[15] There are five bands for methamphetamine offending in the guideline decision.12 The bands reflect the quantity of the drug involved in the offending and set out a corresponding range of penalties. Culpability is measured therefore, first by the quantity of the drug – quantity being an indicator of commerciality and of the harm it will cause to the community.13 Culpability is also measured with regard to the offender’s role in the offending, whether it is a leading, significant or lesser role.
[16] The Misuse of Drugs Act 1975 provides that every person who conspires to supply a Class A controlled drug is liable on conviction to imprisonment for a term not exceeding 14 years.14 I accept the Crown’s submission that the proper approach is to determine what the notional starting point would have been if the conspiracy had been completed and then to reduce that figure, depending on how far the conspiracy was advanced, since the closer a conspiracy comes to execution the closer it becomes in seriousness to the actual illegal act being planned.
[17] Counsel agree that the relevant quantity of methamphetamine relating to the charge is 28 grams. This places the offending into band 2 of the guideline judgment, which captures offending involving five to 250 grams. In this Band, the penalty ranges from two to nine years’ imprisonment.
[18] The Crown submits the starting point for your offending should be around three to three-and-a-half years’ imprisonment in light of other cases (which I will footnote).15 This is on the basis that the quantity of methamphetamine is almost six
12 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [187] and [125].
13 At [104].
14 Misuse of Drugs Act 1975, s 6(2A).
15 (a) In Govender v R [2019] NZHC 3212, a Police search of the defendant’s motel residence, following a car crash of a vehicle registered to her, uncovered 29 g of methamphetamine, 10 g of cannabis, digital scales, $816.80 in cash, zip lock bags and a notebook containing records of drug transactions. On appeal, Powell J considered the starting point of three years’, six months’ imprisonment was within range. The material uncovered in the search indicated a moderate degree of commerciality [18]. Further, there was no evidence to suggest the defendant had a lesser role in the offending [14], or that she was motivated by addiction or coercion [14] and [17].
times the amount required to fall into band 2 and you had a significant role in street level, or moderate, dealing. In particular:
(a)on two occasions you were prepared to travel from your Tauranga home to Rotorua to source your product;
(b)your participation appears to have been willing and informed;
(c)you were well-connected and had been so for long enough that people knew to contact you for drugs; and
(d)you were aware of the scale of the supply chain you were involved with from your discussions with Mr MacFarlane relating to the procurement of a large amount of drugs.
[19] Mr Bird acknowledged today, however, that it would be difficult to negate the role of addiction in your offending. He also acknowledged a modest reduction given the conspiracy charge resulting, in his submission, in a starting point of two-and-a- half to three years’ imprisonment for that offending.
[20] Mr Nabney submits the starting point should not exceed two years’ imprisonment reflecting your lesser role and the limited degree to which the conspiracy had advanced. In particular, he submits the intercepted communication evidence indicates that you were entirely reliance on the other members of the conspiracy to have any opportunity of obtaining the methamphetamine and you had no influence on, nor awareness of, those above in the chain. You had little or no actual or expected financial gain and you had your own management function in terms of on- selling to purchasers, and you remained at the Rotorua address for a period of time
(b) In Roberts v R [2019] NZHC 3319, Woolford J took a starting point of three years’ imprisonment for the manufacture of “up to” 42 g of methamphetamine, and the supply, and offers to supply, some of those 42 g. The offending was not minimal or small scale, however, the defendant’s culpability was informed by his addiction and subjection to violent pressure from a co-defendant.
(c) In Tuuta v R [2019] NZHC 2788, a Police search of the defendant’s vehicle uncovered a sawn- off shotgun, 11 rounds of ammunition and 16.3 g of methamphetamine. I regarded the defendant as having a lesser role, being a street-level dealer. There was no evidence that he was motivated by addiction. I adopted a starting point for the drug offending of two years’ six months’ imprisonment.
following the conversation but it is not clear whether the transaction was completed or nearing completion.
[21] I consider the appropriate starting point for this supply of methamphetamine would be three years’ imprisonment reduced to two-and-a-half years’ imprisonment for the conspiracy charge. You were a well-connected dealer who had driven to Rotorua because you expected Mr MacFarlane would have drugs for you to sell and therefore the conspiracy cannot have been that far from completion.
Aggravating and mitigating features of the offence
[22] Neither counsel submits that there are any relevant mitigating features of your offending. Both submit there should be an uplift to account for the GBL charge.
[23] The Crown submits the uplift should be six to nine months. Mr Bird submits the communications disclose that you arrived at the address to procure relatively substantial amounts of GBL to satisfy a number of people who looked to buy it from you in Tauranga. If completed and viewed alone, the Crown suggests this would fall into band 1 of Wallace, the relevant guideline case, attracting a starting point of around one year six months’ imprisonment.16 Wallace concerns completed offences, so the Crown suggests a reduction to account for it being a conspiracy charge. If the latest guidance on uplifts from Zhang was applied the result would be an uplift of six to nine months – that is, half of 18 months.
[24] Mr Nabney submits an uplift of no more than six months’ imprisonment is appropriate. He submits the intercepted communications demonstrate that you are very much a minor player in the conspiracy, entirely reliant on Mr MacFarlane, who, amongst other things, set the price and left you with minimal expected profit. The communications also demonstrate that Mr MacFarlane was not persuaded of your ability to on-sell.
[25]Having regard to totality, I consider an uplift of six months is appropriate.
16 R v Wallace [1999] 3 NZLR 159 (CA).
[26] Applying that uplift for the GBL charge, I arrive at a global starting point of three years’ imprisonment.
Personal factors and guilty plea
[27]I now consider factors personal to you in addition to any guilty plea.
Aggravating factors personal to you
[28] This Court may uplift the starting point sentence on the basis that you have previous convictions for similar offending, particularly if the previous convictions indicate a tendency to commit the particular type of offence.17 Issues of deterrence and, in some cases protection of the public, may require an uplift for previous offending. Similarly, previous convictions may bear on the issue of character. Such an uplift must bear some reasonable relationship or proportionality to the starting point.18
[29] You have three relevant previous convictions for methamphetamine offending in 2016.19 These comprised: supplying methamphetamine in a single transaction for
$350; possession of 0.2 of a gram of methamphetamine; and possession of a pipe. The lead charge, for supply, attracted a starting point of 12 months’ imprisonment. You received one months’ concurrent imprisonment on each other charge, and an end sentence of ten months’ home detention.
[30] In written submissions the Crown said these prior convictions warranted an uplift of around two months “because they show the need for a greater deterrent response” to your conduct.20 However, Mr Bird acknowledged today, given the indication of addiction, that no uplift was appropriate.
17 Sentencing Act 2002, s 9(1)(j).
18 Taylor v R [2012] NZCA 332 at [46], cited in Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [9].
19 Police v Keogh [2018] NZDC 5224.
20 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [39].
[31] That is consistent with Mr Nabney’s submission that no uplift is required because the convictions relate to very low-level offending, and the possession charges indicate that you were dealing with addiction issues at the time.
[32]I agree that no uplift is appropriate for your previous convictions.
Mitigating factors personal to you
[33] Addiction shown to be causative of the offending is a mitigating consideration.21 Mr Nabney submits you have a long-running addiction to methamphetamine and other drugs. He informs me that you have received some treatment for this addiction at the Grace Foundation. I have seen the letter from the Grace Foundation practitioner who has worked with you (dated 27 June 2021). She reports that you have told her you began using methamphetamine at age 15, when you moved in with your boyfriend’s father, who was a manufacturer. Further, that you have been in a number of abusive relationships. She also quotes your wishes “to get [your] independence back … to stay clean and sober, … [your] own place … to study and start [your] own business, most of all to be a part of [your] son’s life”.
[34] Mr Nabney confirmed that you have attended a number of courses and he submits that, with a more detailed report at sentencing, an end point will be reached which comes within the range of home detention, and if so, the Grace Foundation has indicated you could serve that sentence there so as to reinforce the treatment you have received while residing there on bail.
[35] In the absence of a further report and all the information expected at sentencing, it is premature to fix a discount for addiction. But based on the progress so far, if there is a positive rehabilitation plan I expect a further discount will be available. That discount would be greater if addiction is confirmed.
21 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10](k).
Guilty plea
[36] The Crown accepts that a substantial allowance of 25 per cent would be appropriate for a guilty plea as these proceedings are at a relatively early stage, notwithstanding the Crown’s view that the evidence against you is relatively strong.
[37] Mr Nabney seeks a full discount of 25 per cent on the basis that these charges arise from a complex operation where there were initially indications of further charges and where significant disclosure had to be reviewed to assess the evidence.
[38] In those circumstances, I agree that a full discount of 25 per cent would be available for a guilty plea.
Conclusion
[39] The current net discount is therefore 25 per cent, reducing the global starting point of three years’ imprisonment down to 27 months’ imprisonment. That itself is not low enough to consider home detention but, as I indicate, a further discount would make that alternative open for consideration. With a further discount of 10 per cent the Court could consider imposing a sentence other than imprisonment.
[40] Your progress with addiction treatment and prospects of rehabilitation lead me to conclude that home detention likely will be available as an appropriate sentence.
[41] This sentence indication has effect until the expiry of five working days after today.
Gault J
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