R v Kerr

[2016] NZHC 1547

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-009674 [2016] NZHC 1547

THE QUEEN

v

JEREMY HAMISH KERR

Hearing:	8 July 2016
Appearances:	B Dickey and H M Ford for Crown J R Billington QC for Defendant
Sentenced:	8 July 2016

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            J R Billington QC, Auckland

R v KERR [2016] NZHC 1547 [8 July 2016]

[1]      Jeremy Hamish Kerr you are for sentence having pleaded guilty to one charge of  selling  a  Class  C  controlled  drug  (BZP  and  TFMPP)  and  four  charges  of possession for sale of a Class C controlled drug (BZP and TFMPP).   For each offence  the  maximum  penalty  is  eight  years’ imprisonment.    You  are  currently serving a sentence of eight and a half years’ imprisonment.  This Court imposed that sentence  on  23  March  this  year  following  your  guilty  plea  to  two  counts  of blackmail.

[2]      Your present drug offending came to the attention of the Police during the course of an operation codenamed Operation Ark.   In September 2011 you were observed  meeting  a  key target  of  that  operation.   You  were  followed  from  the meeting to an industrial premises operated by you at Highbrook Drive and later that day to storage units in East Tamaki.  Over subsequent months the Police executed search warrants at units that you used at the storage premises. A covert search of the premises on 12 September 2011 revealed:

(a)       a  white  15  litre  pail,  half-full  of  a  fine  pink  granulated  powder containing BZP and TFMPP;

(b)a second white 15-litre pail, two-thirds full of the fine pink granulated powder containing BZP and TFMPP;

(c)       various racks of dies and machine stamps with ‘cat face’, dove, CK,

euro, Maserati, X and blank logos;

(d)      a plastic container with numerous yellow ‘X’ pills containing BZP and

TFMPP;

(e)       a plastic shopping bag containing four zip lock bags containing ‘dove’

pills containing BZP and TFMPP;  and

(f)       various other powders and pills.

[3]      Further covert searches on 27 September and 27 October 2011 disclosed substantially the same items, except on the latter search only one of the pails was found.  It was one-quarter full.

[4]      The operation was terminated on 16 November 2011.   On execution of a search warrant at your storage unit on that day the Police found:

(a)       a zip lock bag containing 1,473 yellow ‘X’ pills containing BZP and

TFMPP;

(b)      a zip lock bag containing around 7,297 purple ‘CK’ pills containing

BZP and TFMPP;

(c)       four zip lock bags containing around 18,000 red/pink ‘doves/score-

line’ pills containing BZP and TFMPP;  and

(d)various other items consistent with large scale pressing of Ecstasy- type pills for commercial sale, including dies, machine stamps and pressing compounds.

[5]      In addition, on execution of the search warrant at your business premise the

Police found:

(a)       several zip lock bags containing red/pink ‘CK’ pills containing BZP

and TFMPP, one of which contained about 5,300 pills;

(b)      five pill press machines, one of which was set up with ‘CK’ machine

stamps;  and

(c)       various other items such as pills, powders, dies and machine stamps.

[6]      When spoken to you admitted your possession of the items and that you had previously provided samples of pills to co-offenders.  You said you had supplied the pills for $2 a pill, recognising that due to the lengthy storage of the powder, the length of time you had had it, that the pills you had pressed were likely to be ‘low strength’.   If the approximately 32,000 formed pills in your possession were sold,

even at $2 a pill, you would have received $64,000.  Their value on the open market was considerably more, as much as $20 to $40 each.

[7]      Both the Crown and your counsel acknowledge that the sentence for this drug offending must be cumulative on the current sentence you are serving.

[8]      The Crown argue for a starting point of three years with an uplift for previous offending but submit an end cumulative sentence of between 12 and 18 months is appropriate.  Mr Billington QC acknowledges that the matter falls within category 2 of R v Terewi but submits a starting point in the region of two years, with an ultimate end sentence cumulative of 12 months is appropriate.1

[9]      The principal purpose of sentencing for offending of this nature is to deter and denounce drug offending.  As to your culpability I note the defence submissions that you were in possession of the BZP for legitimate commercial reasons before it became illegal. You also had the pill press machines because of their potential use in an agricultural business.   But even acknowledging those explanations, you were aware that what you were doing in this case was wrong.  It was against the law and despite your protestations otherwise, you did so for commercial gain given your circumstances at the time. Mr Kerr, you are a businessman. You took a business risk in becoming involved in dealing in drugs in this way. You were caught.

[10]     It is also relevant that you have previous convictions for drug offending, namely cultivation and sale of cannabis in 2004.

[11]     Your offending falls into category 2 of R v Terewi, namely commercial drug offending  but  not  at  the  highest  scale.   An  appropriate  starting  point  for  your offending is three years’ imprisonment.  An uplift of some three months is required for your previous offending of this nature.  That leads to an adjusted starting point of

three years, three months.

1      R v Terewi [1999] 3 NZLR 62.

[12]     Counsel argues for personal mitigating factors such as remorse, the fact you are a model prisoner and that you have taken steps to rehabilitate yourself and I have taken into account the matters you have covered in your letter to the Court.

[13]     However, as you will have been told, in cases involving drug offending, personal circumstances are not routinely taken into account.   I have some doubt frankly whether you are still truly remorseful.   You sought to minimise your culpability in the discussion with the probation officer for the PAC report.  But to the extent your personal circumstances are relevant and a reduction appropriate, the reduction I am going to apply for totality purposes picks up any proper adjustment for your personal circumstances.

[14]     I do not overlook that you seem to now have an appreciation that your actions in this case were wrong and the impact making drugs available to the community has on others.  That is independently confirmed by the pre-sentence report which notes the steps you have taken. Those are positive features for the future for you Mr Kerr.

[15]     You are entitled to a credit for your guilty plea.  The guilty plea was quite late in the piece.  A discount of between 15 to 20 per cent is available.  That would lead to an end sentence of two years, nine months’ imprisonment.

[16]     But I must take into account that this offending occurred in 2011 and apply the totality principle.  If you had been sentenced for this offending at the same time as you were before the Court for sentence on the blackmail charges, the additional sentence imposed for this offending would have been an  additional  15 months, making a total of nine years, nine months’ imprisonment.

[17]     Mr Kerr please stand.  On the charge of selling a Class C controlled drug and the  four  charges  of  possession  for  sale  of  a  Class  C  controlled  drug  you  are sentenced to imprisonment for 15 months in each case.  The sentences are concurrent with each other, but are cumulative on the existing sentence for blackmail.

[18]     There will be an order for destruction of the pills, powders, and pill pressing

machines seized by the Police.  Stand down.

Venning J