R v King

[2022] NZHC 85

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-019-004668

[2022] NZHC 85

THE QUEEN

v

NEVILLE KING

Hearing:	3 February 2022
Appearances:	D Young for the Crown C Tuck for the Defendant
Judgment:	3 February 2022

SENTENCING NOTES OF WYLIE J

Solicitors:           Crown Solicitor, Hamilton Counsel:  C Tuck, Auckland

R v NEVILLE KING [2022] NZHC 85 [3 February 2022]

Introduction

[1]Mr King, you may remain seated until I ask you to stand.

[2]        Mr King, you appear for sentence today having pleaded guilty to the following charges:

(a)supplying methamphetamine.1 This is an offence pursuant to s 6(1)(c) of the Misuse of Drugs Act 1975 and the maximum penalty is one of life imprisonment;

(b)offering to supply methamphetamine.2 This is also an offence pursuant to s 6(1)(c) and, again, the maximum penalty is one of life imprisonment;

(c)possession of methamphetamine for supply. This is an offence pursuant to s 6(1)(f) of the Misuse of Drugs Act and the maximum penalty is also one of life imprisonment;

(d)unlawful  possession  of  a  pistol.   This  is  an  offence  pursuant  to  s 50(1)(a) of the Arms Act 1983 and the maximum penalty is one of three years’ imprisonment and/or a fine; and

(e)unlawful possession of an explosive.   This is an offence pursuant to   s 45(1)(b) of the Arms Act and the  maximum  penalty  is  one  of  four years’ imprisonment and/or a fine.

[3]        The charges were laid against you in October 2020. You were charged along with a number of co-defendants.

[4]        On 27 September 2021 Lang J gave you a sentence indication.3 He indicated that a starting point of eight years and nine months’ imprisonment would be

1      Representative charge.

2      Representative charge.

3      R v King [2021] NZHC 2539.

appropriate for your methamphetamine related offending, with an uplift of nine months’ imprisonment for your Arms Act offending.

[5]        At the time you were also facing charges of participating in an organised criminal group and of theft. The sentence indication did not include an uplift for the alleged theft. Nor was there a discrete uplift for the alleged participation in an organised criminal group.

[6]        You accepted the sentence indication and entered guilty pleas to the drugs and Arms Act charges on 12 October 2021. You did not enter pleas to the charges of participating in an organised criminal group and theft. The Crown has advised that it does not intend to offer any evidence on these two charges and I have today discharged you in relation to them.

Relevant facts

[7]        The summary of facts which you accepted at the time you entered your guilty pleas records that, in July 2020, police commenced an investigation targeting individuals involved in the manufacture and supply of methamphetamine within the Waikato region. The investigation was code named Operation Gulfport. Your involvement in the distribution of methamphetamine was uncovered as a result of intercepted communications obtained by police during the operation.

[8]        These communications showed that you received wholesale quantities of methamphetamine from two of your co-defendants. You then on-sold the methamphetamine to your own retail customers in various quantities, generally of one gram or less. On occasions you would offer to sell methamphetamine in quantities ranging up to an ounce (or 28 grams).

[9]        Intercepted communications for the period 8 July to 30 September 2020 revealed that you supplied methamphetamine on at least 36 occasions. The quantity involved was able to be identified on 21 occasions. It totalled at least 19.75 grams. The quantity involved in the other transactions is not known.

[10]      The communications also established that during the same period you offered to supply methamphetamine to various persons in various quantities ranging from less than one gram up to 28 grams. You offered to supply on at least 18 occasions. The quantities involved were identified on 15 of these occasions. The amount of methamphetamine you offered to supply totalled at least 194 grams.

[11]      On 31 August 2020 police executed a search warrant at your address in Hamilton. They found a black backpack containing a large quantity of resealable plastic bags, digital scales, small plastic containers containing various amounts of methamphetamine, and $10,000 in cash. Police located a further clear container containing a large amount of methamphetamine. The combined weight of the methamphetamine located was 265.63 grams. In addition, police found an imitation pistol that had been modified so it was capable of firing. It was a prohibited weapon. They also found 24 rounds of ammunition for the firearm. These rounds had been modified by the insertion of five-millimetre steel balls into the plastic ends of the rounds. They were capable of being discharged.

Pre-sentence report

[12]      You are 45 years of age and of Ngāpuhi descent. You have an extensive and varied criminal history dating back to 1994, with 32 convictions for violence, non-compliance, escaping from police custody, driving related offending, aggravated burglary and theft. The report writer characterised your recent methamphetamine offending as being a major escalation in your offending pattern.

[13]      In October 2020 you were disciplined for assaulting another prisoner whilst you were in custody on remand.

[14]      Your co-defendants are members of the Mongrel Mob gang but your status in the gang is not known, at least to the Department of Corrections. The report writer nevertheless identified your association with the gang as a likely contributing factor to your offending. Other contributing factors were said to be your lifestyle, attitudes and drug use. You have been accepted into treatment programmes, including Odyssey House, to treat your substance addiction. The report writer indicated that upon release, attendance would likely be beneficial for you.

[15]      Your risk of harm to others, and of reoffending, was assessed as very high given your willingness to use violence even while in custody, along with your apparent association with members of the Mongrel Mob gang. The report writer emphasised that your possession of a modified firearm was concerning.

[16]      The report writer recommended a sentence of imprisonment due to the serious nature of your offending, coupled with your previous unwillingness to comply with community-based sentences and your potential risk of violence.

Section 27 report

[17]      I have this morning received a s 27 report prepared by Shelley Turner, a Director of Specialist Reports Limited. The report is helpful and gives considerable insight into your background. Various factors were identified, and it was suggested that they serve to diminish your culpability.

[18]      First, poverty and deprivation featured significantly in your upbringing. You described to Ms Turner having to scavenge for food out of rubbish bins while at school. Ms Turner noted that social and economic deprivation is associated with poorer outcomes and exposure to a multitude of environmental risks, including an elevated risk of engagement with the criminal justice system. She suggested that poverty may have impaired your choices in life and thus reduced your overall culpability.

[19]      Secondly, Ms Turner referred to your family instability. Your parents separated when you were four years old. You were left in the care of your father and then subsequently your stepmother. You are not particularly complimentary of her. You subsequently lived with your mother for some time, although you assert that you were frequently subjected to physical violence by her. Your family instability resulted in you having to relocate at several times during your childhood. As a result, you also had to change schools. This resulted in disruption to your education, which, again, may well have limited your access to other choices in life.

[20]      Thirdly, Ms Turner referred to your drug and alcohol use. You were exposed to cannabis by older family members and first started using cannabis when you were 13 years old. The early consumption of cannabis can result in psychologically

deregulatory effects on adolescent brain development and can manifest in a higher frequency of anti-social and criminal behaviour. In addition to cannabis, you have used methamphetamine in more recent years and, indeed, were consuming substantial quantities of that drug on a daily basis at the time of your offending.

[21]      Fourthly, Ms Turner identified your disconnection from tikanga Māori. You are of Māori descent through your mother and Pākehā descent through your father. As a result of your early abandonment by your mother, you were deprived of the Māori part of your culture, and you are unable to speak te reo Māori. Cultural deprivation may well have made you more susceptible to criminal behaviours and substance abuse.

[22]      Fifthly, Ms Turner noted that you were subject to violence as a youth, both within and from outside the family. You had an early exposure to the criminal justice system. Your exposure to drugs and alcohol culminated in your conviction at the age of 18 for driving with excess breath alcohol.

[23]      Sixthly, Ms Turner noted your adult drug and alcohol abuse. You report significant alcohol abuse from the ages of 18 to 20, followed by methamphetamine abuse from the age of 20 onwards. You have identified your substance abuse and addiction as a key factor contributing to your continued engagement in the criminal justice system.

[24]      Finally, Ms Turner noted that you have experienced significant trauma and loss in your life, including the loss not only of your mother, but also of a young child. It appears that that trauma and loss has not been addressed and this may have contributed to your use of substances as a coping mechanism.

Submissions

Adjournment / bail

[25]      Mr Tuck on your behalf sought that the sentencing should be adjourned under s 25 of the Sentencing Act 2002, and that simultaneously, you should be granted bail simpliciter to a residential rehabilitation facility – Te Whare Oranga Ngakau. He advised that you have a confirmed placement at that institution, that you are strongly

motivated to engage in rehabilitation (as evidenced by various certificates indicating that you have already completed numerous programmes), and that you have significant issues with methamphetamine abuse, which, he argued, has driven your offending. He submitted that the grant of bail to a residential rehabilitation facility and an adjournment of sentencing to permit completion of the rehabilitation programme is in the public interest.

[26]      The Crown opposed the application. Ms Young made it clear that the Crown was not opposed to your rehabilitation per se. Rather, it was opposed to the bail sought by you. It argued that you are unable to discharge the onus imposed on you by s 17A of the Bail Act 2000, and that there is just cause for your continued detention taking into account the s 8 considerations.

[27]      I declined the adjournment application, notwithstanding the comments of the Court of Appeal in Zhang v R.4 I now set out my reasons for that decision.

[28]      Section 25 of the Sentencing Act empowers the Court to adjourn sentencing to enable an offender to undertake a rehabilitation programme, and for the offender’s response to such programme to be taken into account when sentencing subsequently takes place. As the Court of Appeal noted in Zhang, the clear intent is to encourage participation in rehabilitation programmes which, if successfully completed, could, upon resumption of the sentencing process, mean a custodial sentence is likely to be avoided. An adjournment is not, however, confined to these situations. Even if a custodial sentence is inevitable, the successful completion of a rehabilitation programme may warrant a reduction in the end sentence imposed.

[29]      An adjournment will, however, only be appropriate where independent evidence supports the contention that the offending was caused by factors the proposed programme is designed to target.

[30]      Here, I have received an alcohol and other drug (AOD) report. It records your acknowledgement that methamphetamine has caused you harm. You also have had difficulties with other illicit drugs, with alcohol and with gambling. Your addictions

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [175]–[186].

were initially funded by your work and paid employment. However, you lost your job, not because of drug problems, but for other reasons. Dealing in methamphetamine then became your primary income source; it also ensured your personal access to and supply of the drug.

[31]      The comments made by the report writer in the AOD report are supported by Ms Turner in her s 27 report. It is there noted that you were using in excess of three grams of methamphetamine a day at the time of your offending and the opinion was expressed that your methamphetamine addiction was the primary causal factor leading to your offending.

[32]      Both Ms Turner and the writer of the AOD report suggest that there are distinct connections between your substance abuse and your offending. So did the author of the pre-sentence report. In a letter to me, you make the same assertions.

[33]      I accept that, in a general sense, your addictions have driven your offending. Your offending was, however, at a significant level with a high level of commerciality. Your personal addiction to methamphetamine cannot, in my view, have been causative of the totality of your offending. It went well beyond what was required to satisfy your addiction.

[34]      There is a further difficulty. There is no evidence before me showing what programmes or courses of action are proposed to be offered by Te Whare Oranga Ngakau which could help address the addictions you face. I do not have a considered plan for you. The Court of Appeal in Zhang noted that if counsel wish to invoke s 25, they should present the Court with such a plan. That has not happened in your case.

[35]      Further, any adjournment to permit you to attend a rehabilitation programme would require a grant of bail. For reasons which I explain shortly, you are seeking bail simpliciter.

[36]      As I have already noted, you are 45 years old. You have a formidable criminal history, going back to 1994. You have nine convictions for breaching bail. You have been sentenced to terms of imprisonment on 13 occasions. You received a first strike

warning in 2017 for aggravated injury offending. A number of your convictions indicate that you have difficulty in complying with Court orders. You face the evidential onus put in place by s 17A of the Bail Act. There is nothing before me suggesting that you can get over that hurdle, other than the fact that you have no previous convictions for drug related offending. You also face a lengthy term of imprisonment. There is a risk that you might abscond were you to be granted bail simpliciter.

[37]      Your history of offending whilst on bail, your history of non-compliance with Court imposed orders and your demonstrated behaviour towards the police strongly militate against the grant of bail. The grant of bail simpliciter, as proposed, and even with conditions would not satisfactorily mitigate the risks you pose. Nor would electronically monitored (EM) bail.   In any event EM bail is not available at the     Te Whare Oranga Ngakau rehabilitation facility. Because of the location of the facility and the size of the property, monitors do not provide a consistent signal. The programme proposed requires participants to be off site, often on a daily basis.     EM bail is not appropriate in this situation.

[38]      I acknowledge that Odyssey House has also indicated that they can make a course available to you. As I understand it from previous cases involving placement at Odyssey House, EM bail would be available at that facility. There is, however, currently no space available for you at Odyssey House. I take this no further.

[39]      In summary, I am not satisfied that it is appropriate to adjourn the sentencing given the absence of any information about the rehabilitation programme proposed, your inability to satisfy the s 17A onus, the risk, particularly of flight, and my inability to impose effective bail conditions which would sufficiently mitigate the risks you pose. Accordingly, I decline the adjournment and associated grant of bail.

Sentencing

[40]      In regard to sentencing, the Crown did not file fresh submissions. Rather, it relied on the submissions placed before Lang J. It then submitted that your offending falls towards the top of band three offending as described in Zhang. It argued that a starting point of 11 years’ imprisonment was appropriate and that there should be an

uplift of some nine months’ imprisonment for the Arms Act offending. It did not suggest that your prior convictions warrant an uplift. It acknowledged that any guilty pleas would entitle you to a discount and submitted that such credit should be fixed at a maximum of 20 per cent.

[41]      This morning Ms Young addressed the s 27 report and the Court of Appeal’s decision in Carr v R.5 Ms Young acknowledged that the various matters identified in the s 27 report are relevant to your overall culpability and she accepted that a discount in the vicinity of 10 to 15 per cent could be made available to you for these matters.

[42]      Ms Young also sought an order for forfeiture of the cash seized and destruction of the drugs and other items used in the commission of the offending.

[43]      Mr Tuck did file additional submissions. Unfortunately, they were only made available to me in the course of the sentence hearing and I took an adjournment to consider them.

[44]      Mr Tuck also relied on the submissions which he had filed before Lang J. He then argued that a starting point sentence of nine to 10 years’ imprisonment was appropriate given the quantity of methamphetamine involved. He suggested that this should be moderated to reflect what he argued was your lesser role. He accepted that an uplift was required for the Arms Act offending and no issue was taken with the nine-month uplift proposed by the Crown. He also agreed that a 20 per cent discount would be appropriate for the guilty pleas.

[45]      This morning he further argued that you have demonstrated remorse and insight into your offending. He also noted that you have good prospects of rehabilitation and suggested that a discount of five per cent should be made available to you for these factors. He also referred to the 27 report and argued that there was a sufficient causal nexus identified between your methamphetamine addiction and your offending, both historic and present. He acknowledged that any discount for this factor needs to be tempered by the commerciality present in your offending. He suggested that, nevertheless, a discount in the vicinity of 15 per cent is appropriate.

5      Carr v R [2020] NZCA 357.

Purposes and principles of sentencing

[46]      In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved. I have also been mindful of the need to deter others from committing the same or similar offences. This is a primary factor in drug related offending. I have taken into account the gravity of the offending with which you were involved, including your degree of culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences. I have also been mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and that I need to consider your rehabilitation in the circumstances which have arisen.

Sentence indication and starting point

[47]I turn now to summarise Lang J’s sentence indication.

[48]      In fixing a starting point for your methamphetamine offending, Lang J put to one side an allegation contained in the summary of facts that you would sometimes source methamphetamine for two of your co-defendants, as no quantities were given and none of the charges reflected that allegation. The Judge noted that the weight of the methamphetamine informs the starting point, as does the role you played in the criminal organisation.

[49]      Lang J calculated that you sold or  were  in  possession  of  approximately 300 grams of methamphetamine. He said your offers to sell were more problematic as it is not known whether the transactions ever took place, and the offers may have related to methamphetamine found in your possession. To avoid double counting, he proceeded on the basis that the offers likely resulted in the further sale of no more than

50 grams. He therefore calculated that the total combined weight of the methamphetamine was 350 grams, placing you in the middle of band three identified

in the guideline decision of Zhang v R.6 The starting point for offending within this band ranges between six and 12 years depending on the role played by the offender.

[50]      Lang J then turned to consider your role in the criminal enterprise. He described you as a busy retailer of methamphetamine for commercial gain, noting that the quantities you were selling placed you above the position of a street dealer. While he accepted that you were not a leading figure in the organisation, he considered the level of your retail activity was nevertheless such that you were a significant figure in it, albeit not at the upper level of it.

[51]      Turning to the submissions, Lang J recorded the Crown’s contention that your offending warranted a starting point of 11 years’ imprisonment. However, he noted that counsel acknowledged at the hearing that this was on the basis that you sold all the methamphetamine that you offered to sell, and also reflected the fact that you would sometimes source methamphetamine for two of your co-defendants. Your counsel submitted that, taking your limited role within the organisation into account, a starting point of eight to nine years’ imprisonment was appropriate.

[52]      Having regard to the quantities involved, the nature of your offending and the role you played in the criminal organisation, Lang J considered a starting point of eight years and nine months’ imprisonment was appropriate. He uplifted the starting point by nine months to reflect the charges relating to the unlawful possession of the modified pistol and ammunition. He considered no uplift was required for the theft charge, which he described as “essentially irrelevant”.7 He also declined to give an uplift for your previous convictions as none of them were for drug related offending. He was prepared to allow you a discount of 20 per cent, or 23 months, to recognise the guilty pleas you might enter.

My assessment

[53]      As s 116(3) of the Criminal Procedure Act 2011 makes clear, the sentence indication is not binding on a judicial officer other than the judicial officer who gave

6      Zhang v R, above n 4.

7      R v King, above n 3, at [18].

the indication. However, if a sentence of a different type or of the same type but of a greater quantum is to be imposed, you are entitled to withdraw your guilty pleas.8

[54]      Having read the sentence indication, having heard from counsel, and after considering their submissions and the summary of facts to which you pleaded guilty and all other relevant materials on file, I agree with Lang J’s assessment of your offending. Based on the likely quantity of methamphetamine involved in your offending and the role you played in the overall criminal enterprise, I am satisfied that a starting point of eight years and nine months’ imprisonment is appropriate. I am also satisfied that an uplift of nine months’ imprisonment is appropriate for the Arms Act charges. That the gun and the rounds of ammunition had been modified is of significant concern, as is the fact that the firearm (and methamphetamine) was found in the house you shared with your children and grandchildren. A nine-month uplift takes the initial starting point to one of nine years and six months’ imprisonment.

Personal circumstances

[55]      It is now necessary to consider your personal circumstances to see whether this starting point should be adjusted.

[56]      As I have already mentioned, you have a number of convictions dating back to 1994. They are, however, unrelated to your current offending. I agree with Lang J that no uplift is required for your past offending.

[57]      I next turn to the pre-sentence report. I have already summarised it. There is nothing in that report which suggests that the starting point should be adjusted – either up or down.

[58]      I have received a detailed letter from you. In that letter you express remorse. Although it is late coming, I accept that you are now genuinely remorseful for the harm you have caused by your offending. That your remorse is genuine is illustrated by the rehabilitative steps you have already taken. I am prepared to allow you a discount of two and a half per cent to recognise this.

8      Criminal Procedure Act 2011, s 115(2)(b).

[59]      I also allow you a further discount of two and a half per cent to acknowledge the rehabilitative efforts you have made.  You outline those efforts in your letter, and I have received a helpful memorandum from the Department of Corrections attesting to your efforts. You have completed a number of courses offered by the Department and it was acknowledged that you have finally determined that you need to change your destructive lifestyle. You are waitlisted for further courses. You have supported staff and stepped up. You have taken a leadership role in your unit’s kapa haka group. You are described as a highly motivated individual who demonstrates rangatira, and it is noted that you are respected by your peers. You have remained incident and misconduct free and you have been respectful of Department of Corrections staff.

[60]      It follows that, for your remorse and rehabilitative efforts, I allow you a discount of five per cent from the sentence I would otherwise impose.

[61]      I also accept that you are entitled to a discount for the various matters raised in the s 27 report. The factors identified in that report form a credible account of matters which can properly be considered to have impaired your choices in life and diminished your culpability. The Court is not required to be satisfied that the matters identified in the report are the proximate cause of your offending, simply that there is a causal connection. In my view, that causal connection is clear in your case and Ms Young did not dispute it on behalf of the Crown this morning. I allow you a discount of 15 per cent to recognise those various factors.

[62]      You are also entitled to a discount for your guilty pleas.9 Any reduction cannot exceed 25 per cent.10 Lang J was prepared to allow you a discount of 23 months, or approximately 20 per cent, to acknowledge your guilty pleas. The pleas were not entered at the first available opportunity and the Crown case appears to have been strong. The pleas were, however, entered well before trial and after disclosure had been made. The Crown accepts that 20 per cent is appropriate. I agree.

9      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].

10 At [75].

[63]      These various discounts total 40 per cent from the sentence I would otherwise have imposed. With rounding, they result in a discount of 46 months. This in turn results in an end sentence of 68 months or five years and eight months’ imprisonment.

Sentence

[64]Mr King, will you please stand.

[65]      In respect of the offence of supplying methamphetamine, I sentence you to a term of imprisonment of five years and eight months.

[66]      In respect of the offence of offering to supply methamphetamine, I sentence you to a term of imprisonment of five years and eight months.

[67]      In respect  of  the  offence  of  possession  of  methamphetamine  for  supply, I sentence you to a term of imprisonment of five years and eight months.

[68]      In respect of the offence of unlawful possession of a pistol, I sentence you to a term of imprisonment of 18 months.

[69]      In respect of the offence of unlawful possession of an explosive, I sentence you to a term of imprisonment of 18 months.

[70]      All sentences are to be served concurrently. In other words, you are sentenced to a total term of imprisonment of five years and eight months.

[71]      I make an order for the forfeiture of the cash seized from you and for the destruction of the drugs and other items used by you in the commission of the offending.

[72]      Finally, Mr King, I hope that you will be able to access the further rehabilitation you require, and are anxious to complete, on the termination of your sentence. It is no doubt a matter the Parole Board will consider when you become eligible for parole.  I wish you good luck with your endeavours in that regard.

[73]You may stand down.

Wylie J