R v Kingi HC Whangarei CIV 2010-404

[2011] NZHC 880

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2010-088-002612

THE QUEEN

v

TUARU WIREMU KINGI

Hearing:         27 July 2011

Counsel:         N J Dore for the Crown

J W Watson for the Prisoner

Judgment:      27 July 2011

SENTENCING NOTES OF WYLIE J

Distribution:

R V T W KINGI HC WHA CRI 2010-088-002612 27 July 2011

[1]      Mr Kingi, you appear for sentence today having entered pleas of guilty to 25 charges of supplying or offering to supply methamphetamine.   These are offences pursuant to s 6(1)(c) of the Misuse of Drugs Act 1975.   The maximum penalty available on each is a sentence of life imprisonment.

[2]      You entered pleas of guilty to 10 of the counts on 17 September 2010.  On arraignment on 2 July 2011 you entered guilty pleas to the remaining 15 counts.

Relevant Facts

[3]      You were arrested along with eight others as part of a Police operation known as “Operation Arabia”.  As part of that operation, numerous search warrants were executed on various properties in Whangarei and Kaipara that were believed to be occupied by dealers, manufacturers, and cultivators of illicit drugs.

[4]      On 4 May 2010, a search warrant was executed at the business premises of the  telecommunications  provider  2degrees  New Zealand  Limited.    Historic  text message data  was  retrieved  from  a  cellphone that  was  later identified  as  being operated by you.

[5]      The text messages revealed that you were involved in supplying quantities of methamphetamine ranging from 0.1 gram to three grams.

[6]      At around 3.10 pm on 1 June 2010, the Police executed a search warrant at the property occupied by you at Appleton Place, Whangarei.  You and one of your co-accused were found in the lounge at the address.

[7]      Inside the address the Police found $300 in $20 notes, two sets of electronic scales, a blue and white coloured straw scoop, a modified spray canister that could be used to conceal items, two cellphones, snaplock bags containing crystal residue or small amounts of a crystal substance, $480 in note denominations and loose change, and other utensils associated with the consumption of methamphetamine.   In the laundry, the Police also found clothing with the words “Fight Club” on it.   When

spoken to by the Police, you denied residing at the address and any knowledge of the methamphetamine found.

[8]      You have pleaded guilty to 16 counts of offering to supply methamphetamine to  unknown  persons,    one  count  of  offering  to  supply methamphetamine  to  an unknown person and   eight counts of supply to persons unknown.   The offending took place over a two-month period between 22 December 2009 and 15 February

2010.

[9]      Based  on  the  summary  of  facts  to  which  you  have  pleaded  guilty,  it  is apparent that a number of the supplies were of a quarter gram, some a half gram, one of three grams, one of one gram, and some of undisclosed amounts.   The total specified quantity of methamphetamine involved is 8.5 grams, and the total value of the transactions to which you have pleaded guilty is $4,400.   Some counts do not specify the amount of methamphetamine involved, although the amount of cash involved is identified.  With other counts, neither the amount of methamphetamine nor the cash involved is known.   Counsel estimate that the additional quantity of methamphetamine involved is approximately two grams.  It follows that an estimate of the amount of methamphetamine involved in your offending is about 10 and a half grams.

Pre-Sentence Report

[10]     You are a 27 year-old Māori.   You have been on remand in the Northern

Regional Corrections Facility since 23 June 2010.

[11]     You were raised by your mother after your father abandoned the family. Your father, however, has attempted to become involved in your life in recent years. Nevertheless, you do not really know your father and you have avoided any contact with him in recent times.  You have indicated that at this stage of your life, you do not want to know your father any better.

[12]     You completed your secondary education by correspondence following an incident when you were in the fifth form at Whangarei Boys College.  You describe

yourself  as  having  been  “pretty  bad”  at  school.    Your  subsequent  history  of short-term jobs reflects your limited formal education and your lack of training for employment.

[13]     You have continued to receive support from your mother, and both her and your step-father have assisted you.  Your step-father assisted you to obtain work at a saw mill in 2004, and you worked there from 2004 until late 2006.

[14]     You have recently formed a relationship with a partner, who apparently does not use drugs or alcohol.  She is in Court today to support you.

[15]     You maintain good health, and you claim that you are not associated with any gangs, although you admit to having fought in “fight nights” at the Head Hunters headquarters in Henderson in Auckland.   Many of the other offenders caught in relation to this operation had strong links to the Head Hunter Outlaw Motorcycle Gang.

[16]     You have substantial outstanding fines.

[17]     By way of explanation for your offending, you advised the probation officer that you were released on parole from your last sentence without money or any identification.  You went to your brother’s house to live, but found that to be too small and you left one day, borrowing your brother’s car without knowing what you were going to do.   You say that you became engaged in the supply of methamphetamine as a consequence.  You state that you were unable to get onto the Unemployment Benefit due to not having any means of identification, which meant that you could not open a bank account. You say that by selling drugs, you were able to make money as well as feed your own addiction.

[18]     You have an extensive criminal record, having appeared before the Court on

39 previous occasions since 1999.   Your offending includes dishonesty, violence, fraud and drug-related offending.  Much of your offending has resulted in terms of imprisonment.

[19]     Key factors identified in your offending are drugs, an unhelpful lifestyle, offending supportive associates, offending supportive attitudes, and a sense of entitlement.

[20]     You  have  made  some  attempts  to  obtain  rehabilitation.    In  2009,  you completed a medium intensity rehabilitation programme.  You have written to, and received positive replies from various service providers, and you have sought to engage  with  drug  counselling  programmes,  either  within  the  prison  system,  or outside it.  Recent drug tests carried out in prison have shown a negative result.  The probation officer considers that you appear very motivated to change your ways.  He assessed you as having a very high motivation to change, but also assessed you as being at a high risk of reoffending should you relapse into methamphetamine use.

[21]     The probation officer advised that you understand that you are looking at a lengthy period of imprisonment and that you are approaching this positively.  The probation officer expressed the view that any counselling or programmes that addressed your drug use would be of benefit to you either in or out of prison.  He recommended a lengthy term of imprisonment with any rehabilitation measures to be decided at the time that you become eligible for parole, should nothing else be available in prison.

Submissions

[22]     Ms Dore for the Crown has referred me to the decision of the Court of Appeal in R v Fatu.[1]    In that case, the Court discussed sentencing levels appropriate to the manufacture, importation and supply of methamphetamine.  Ms Dore submitted that your offending falls within what is known as band 2 in Fatu, which involves the supply of commercial quantities of methamphetamine ranging from five grams to

250 grams.  It suggests a starting point of three to nine years’ imprisonment for such offending.  Ms Dore submitted that having regard to the number of offences to which you  have  pleaded  guilty,  and  the  relatively  short  timeframe  within  which  the

offending occurred, that a starting point of around four to five years’ imprisonment is

appropriate for your offending.  She acknowledged that you were arrested as part of a larger drug operation.   She noted that a number of your co-offenders have also pleaded guilty and that they have been sentenced.  She gave me a summary of the sentences imposed on those co-offenders.   Their sentences have ranged from one year, 10 months through to three years, eight months.

[1] R v Fatu [2006] 2 NZLR 72 (CA).

[23]     Mr Watson on your behalf acknowledged that your offending falls into band

2 in Fatu.  He acknowledged the frequency within which the offending took place over the two month time period in issue, and accepted that that can be seen as an aggravating factor.  He submitted that a starting point of between three to four years’ imprisonment is appropriate.   He accepted that your previous convictions are an aggravating feature and justify an increase in the starting point of between six to 12 months’ imprisonment.  He pointed out, however, that unlike many in your position, you were addicted to methamphetamine and that your sale and supply of the drug was driven at least in part by your need to source money as well as drugs to feed your habit.  He submitted that you are entitled to a discount from the penalty which would otherwise be imposed of between 15 to 20 per cent to recognise your guilty pleas.

[24]     He also spoke to me this morning of having acted for you over a number of years, and the fact that you have presented as a very different person on other occasions.

Principles of Sentencing

[25]     In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act 2002.   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 am also 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 am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.

[26]     I have also considered s 9 of the Sentencing Act.  I note the harm that will have resulted from your offending.  Methamphetamine is a highly addictive drug.  It is responsible for much harm in our community and it has destroyed many lives.  I note that the offending in which you were involved required premeditation.  That is an aggravating feature.  So are your previous convictions.

Analysis

[27]     As  I  have  already  noted,  the  tariff  case  for  methamphetamine-related offending is R v Fatu.[2]    In this case the Court of Appeal adopted four sentencing bands for the sale or supply of methamphetamine.   Band 2 is relevant for present purposes.

[2] Ibid

[28]     The Court in its judgment stated that:[3]

Our sentencing ranges overlap between categories.  Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender.  Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band, with the converse applying to those whose role is less significant.

[3] Ibid at [31].

[29]     The Court further said:[4]

In cases involving supply, there is an obvious culpability difference between those who supply for gain and those who give small quantities of drugs to friends for their personal consumption (or, perhaps, buy small quantities of drugs for their friends).

[4] Ibid at [32].

[30]     It must be borne in mind that under s 6(4) of the Misuse of Drugs Act 1975 there is a presumption in favour of a sentence of imprisonment where a person is convicted of an offence relating to a Class A drug.

[31]     I   have   considered   similar   cases   involving   methamphetamine-related offending in similar quantities.  I propose to refer to three of them.

[32]     In R v Day, a police raid of the offender’s house revealed 8.4 grams of methamphetamine as well as electronic scales, empty deal bags equipment for electronic surveillance and monitoring of Police bands, and $1,165.55 cash.[5]  Asher J found that the offender was involved in a commercial enterprise, albeit a relatively small-scale one.  A starting point of four years’ imprisonment was adopted.  Given the offender’s lack of previous convictions and other personal/family circumstances,

this was discounted to three years nine months’ imprisonment.

[5] R v Day HC Hamilton CRI-2005-019-434, 31 March 2006.

[33]     In R v Poole, the offender pleaded guilty to three counts of possession of methamphetamine for supply, two counts of supply of methamphetamine and similar charges relating to Class B and Class C drugs.[6]   He sold 2.3 grams and was found in possession  of a  further  13.9  grams.   A starting point  of  four and  a  half  years’ imprisonment  was  adopted.   After  increasing  the  starting  point  by  one  year  to account for the overall scale of the offending, Allan J gave a two year discount to account for the offender’s guilty plea, remorse and willingness to change.  A final sentence of three and a half years’ imprisonment was imposed.

[6] R v Poole HC Rotorua CRI 2005-070-3372, 7 December 2005.

[34]   In R v I’U, the offender was sentenced for possessing 10.9 grams of methamphetamine for supply and offering to supply methamphetamine.[7]     Police searches of I’U’s person and address revealed a total of $7,834 cash, a set of digital scales and 1.1 grams of low purity methamphetamine.  The offender stated he had been selling rock salt as methamphetamine for between $450 and $500 per gram. Allan J adopted a starting point of three years nine months’ imprisonment.   After

taking  into  account  the  offender’s  guilty  plea,  a  final  sentence  of  four  years’

imprisonment was imposed with one year, three months' imprisonment served concurrently for offering to supply methamphetamine.

[7] R v I’U HC AK CRI-2007-004-9815, 4 March 2008.

[35]     In your case it is also appropriate to have regard to the sentences imposed on the other offenders who have already been sentenced in relation to this Police operation:

(a)     Mr Fenton was sentenced on 33 counts of offering to supply methamphetamine, 11 counts of conspiracy to supply methamphetamine and three counts of offering to supply cannabis.[8]

[8] R v Fenton DC Whangarei CRI-2010-088-2723, 17 December 2010, Judge Bouchier.

The  total  amount  of  methamphetamine  involved  was  13.4  grams. Judge Bouchier adopted a starting point of three and a half to four years’ imprisonment.   After a 25 per cent guilty plea discount, the Judge arrived at an end sentence of three years’ imprisonment.

(b)Ms Matthews was sentenced on nine counts of offering to supply methamphetamine and three counts of conspiracy to supply methamphetamine.[9]   The total amount of methamphetamine involved was around 3.6 grams.   The offending fell on the lower side of the middle of Fatu band 1, and Venning J adopted a starting point of two years, nine months’ imprisonment.  He uplifted the sentence by two months for four previous drug-related convictions.  He gave a 25 per cent discount for her guilty plea and no discount for remorse.   The

[9] R v Matthews HC Whangarei CRI-2010-088-2612, 13 April 2011, Venning J.

final sentence was two years, two months’ imprisonment.

(c)    Mr  Tohu  was  sentenced  on  four  counts  of  supplying methamphetamine,  four  counts  of  offering  to  supply methamphetamine and one count of possession of cannabis for supply.[10]    The total amount of methamphetamine involved was less than two grams.  Andrews J adopted a starting point of two and a half

[10] R v Tohu HC Whangarei CRI-2010-088-2691, 7 October 2010, Andrews J.

years’ imprisonment for the methamphetamine offending, to be served

cumulatively with a starting point of two years for the cannabis offending (subsequently adjusted downward for totality).  After a discount for the early guilty plea, Andrews J imposed a final total sentence of two years, three months’ imprisonment.

(d)Mr  Clunie  was  sentenced  on  seven  counts  of  offering  to  supply methamphetamine and three counts of supplying methamphetamine.[11]

The total amount of methamphetamine involved was 17.75 grams. Brewer J adopted a starting point of four and a half years’ imprisonment.  He then gave a discount for Mr Clunie’s remorse and willingness to change, plus a 15 per cent discount for his guilty plea. The Judge imposed a final sentence of three  years, eight months’ imprisonment.

[11] R v Clunie HC Whangarei CRI-2010-0882776, 10 June 2011, Brewer J.

[36]     Now, turning to your position.   Here your offending falls toward the lower end of Fatu band 2.  It involved approximately 10 grams of methamphetamine.  You derived some $4,400 from it.  The offending was clearly carried out for commercial purposes and also for personal gain.  I take into account the number of offences to which you have pleaded guilty and the short timeframe over which the offending took place.  I am, however, mindful that your role in the overall operation appears to have been toward the lower end.   I adopt as my initial starting point a term of imprisonment of three years and nine months.

[37]     An uplift to the starting point is required to take into account the aggravating features to your offending.   In particular, there are gang-related overtones to the offending, although I note that you deny that you were part of a gang.  There is also the fact that you offended while you were subject to sentence.  I uplift my starting point by six months to take into account those aggravating factors.

[38]     I now consider factors personal to you, both aggravating and mitigating.

[39]     First, there are your prior convictions.  They are an aggravating feature and they justify  an  uplift  of  three  months’ imprisonment.    I  note  that  two  of  your convictions  are  for  drug-related  offending  and  that  one  in  2007  was  for  the possession of methamphetamine.  It appears that you have not learnt from custodial sentences previously imposed on you.

[40]     There are however mitigating factors.

[41]     First, there are your guilty pleas.  A number of those pleas were entered in September 2010, with the balance  entered on arraignment.  As I understand it, all of the information which you needed to make an informed decision in regard to the balance of the charges was not available and you were unable to fully discuss matters with counsel.   Insofar as I can see,  your pleas were entered shortly after those difficulties were resolved.  In my view, it is appropriate to allow you a discount of approximately 20 per cent or 11 months from the sentence I would otherwise have imposed to recognise those pleas.

[42]     Secondly,  I  accept  that  you  have  shown  remorse  and  insight  into  your offending.  You have taken steps to try and rehabilitate yourself, and to address your drug addiction.   I am prepared to allow you a further discount of two months to recognise those factors.

[43]     Mr Kingi, will you please stand.

[44]   In respect of each of the charges of supplying or offering to supply methamphetamine, you are sentenced to a term of imprisonment of three years and five months.  The terms of imprisonment are to be served concurrently, that is, at the same time.   So the final effective sentence is one of three years and five months’ imprisonment.

Forfeiture

[45]     The Crown seeks forfeiture of all illicit drugs, gang insignia, and associated paraphernalia found in the search of your property.   It also seeks an order for the

forfeiture of the monies found on the property at the time of the Police search in June

2010.

[46]     I have power under s 32 of the Misuse of Drugs Act to order forfeiture of those items if I am satisfied that they were involved in your offending, or derived from your offending.   I am so satisfied and Mr Watson on your behalf has not opposed forfeiture.  I make an order accordingly.

[47]     Mr Kingi, you may stand down.

Wylie J