R v Lang
[2016] NZHC 1899
•16 August 2016
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-088-003309 [2016] NZHC 1899
THE QUEEN
v
MARK JAMES LANG
Hearing: 16 August 2016 Appearances:
Michael Smith and Richard Annandale for the Crown
John Watson for the DefendantJudgment:
16 August 2016
SENTENCING NOTES OF MOORE J
R v LANG [2016] NZHC 1899 [16 August 2016]
Introduction
[1] Mark James Lang, at the age of 42 you appear for sentence having pleaded guilty to two charges of manufacturing the Class A controlled drug methamphetamine and one charge of possessing equipment with intent that it be used in the manufacture of methamphetamine. The maximum penalty for the manufacturing charges is life imprisonment.1
[2] Initially, you faced a good deal more charges arising out of the same events. However, no doubt in recognition of your willingness to plead guilty to the present charges, the Crown has agreed not to offer evidence on the other charges and invites the Court to dismiss those charges under s 147 of the Criminal Procedure Act 2011. Accordingly, I formally discharge you on those charges.
Background
[3] Although the background to the events which led to you being arrested on these charges will be well known to you, because the sentencing process is required to be undertaken in public I must repeat what I have said before in relation to your co-defendants. Much of what I will be discussing is drawn from the summary of facts, the contents of which I understand you agree with.
[4] In July 2014 the Organised and Financial Agency of New Zealand (“OFCANZ”) began a large scale covert investigation codenamed Operation Easter. OFCANZ’s energies were directed towards the investigation into an organised criminal group made up of patched members of the Headhunters motorcycle gang. I shall refer to them as “the Group”.
[5] The Group was formed under the direction of Brownie Joseph Harding. Its purpose was to manufacture and distribute very substantial quantities of methamphetamine. Brownie Harding sourced the equipment and raw materials, recruited the Group’s members and co-ordinated the production and distribution of the drug. The “cooks” or manufacturers had varying degrees of skill and experience.
They were also involved to a greater or lesser extent. During the early phase of what
1 Misuse of Drugs Act 1975, s 6(2)(a).
turned out to be a three or four month period of surveillance, Brownie Harding participated actively, not only as a cook and co-ordinator of the Group’s activities, but also as a teacher and instructor in the arts of methamphetamine manufacture.
[6] The manufacturing took place at an isolated rural address (“the address”). It was a property nestled in a tiny farming community situated at the Waiotira end of Taipuha Road. It is about 30 kms southwest of Whangarei. The drugs manufactured there were then packaged for sale and distributed across the Auckland and Northland regions.
[7] As time progressed, the Police’s operation grew in its sophistication. Initially a single movement-activated video camera scanned the north side of the house. This was later augmented by another camera which showed the front driveway and eastern aspects of the house. Later, after a Judge of this Court issued a surveillance device warrant, a listening device was installed in the kitchen area of the house. Additionally, over the course of the operation, the Special Tactical Group undertook covert nocturnal entries which were recorded on film.
[8] The combination of these evidence gathering techniques revealed that between September and December 2014 six discrete manufacturing phases took place. These were:
(a) 23 to 26 September 2014;
(b) 30 September to 1 October 2014; (c) 8 to 9 October 2014;
(d) 20 to 23 October 2014;
(e) 28 to 31 October 2014; and
(f) 6 to 14 November 2014.
[9] Once the listening device was installed on 17 October 2014 the true extent of the manufacturing operation was revealed. From that evidence it is known that the last three manufactures yielded 2545, 1900 and 2800 grams of methamphetamine respectively. This is a total of well over 7 kilograms. It is not possible to be certain how much methamphetamine was produced during the first three phases which took place before the listening device was installed. The indications are that comparable quantities were also manufactured.
[10] Not only were the volumes very substantial indeed, but the quality was high. This is apparent because in the last phase of manufacture between 6 and 14
November 2014 a very substantial quantity of the drug was manufactured by a group of at least four cooks of which you were one. The cooks, in shifts, manufactured in batches. They worked in shifts during the day and late into the night. On 13 and 14
November they worked throughout the night. I accept you were not there all the time and I accept Mr Watson’s submission you were not the principal cook in the sense you did not lead the exercise. But you were a principal in the sense you were an active participant in the cooking process. That is evident from the intercepted conversations to which I shall make more reference later. The product was packaged into 80 self sealing ounce bags and then transported by car en route to Auckland. The Police intercepted the car just north of the Harbour Bridge. The total quantity of methamphetamine was over two kilograms. Testing revealed it was 73 per cent pure. The cooks continued to manufacture into the afternoon oblivious to the fact the car had been intercepted.
[11] Given the size, production and quality of the finished product, this operation required significant levels of skill, expertise and effort. That house in Taipuha Road was a methamphetamine factory operating at a high commercial level. Plainly the Group required significant amounts of equipment and material and it was in this respect where your efforts, particularly, added to the Group’s efficiency and output.
Purposes and principles of sentencing
[12] The Courts have made it clear that in cases involving commercial drug dealing, the most important purposes of sentencing are to hold the defendant
accountable, denounce their conduct and deter them and others from engaging in similar behaviour. Where the drug is methamphetamine, particularly when it is being manufactured in the sorts of quantities involved in this case, these purposes assume only greater importance. From Mr Watson’s submissions and from what you told the author of the pre-sentence report, you were introduced to this drug through your contact with the cooks. So you will have some idea of how ruinous the effects of the drug are. It creates addicts of otherwise decent people. It robs them of their self respect and, eventually, their ability to control their behaviour. The ripples of effect spread through every layer of our community. Not only are those addicted to it inevitably physically and psychologically damaged, but families, friends and loved ones are also drawn into the vortex of destruction. Crimes, often violent, are committed to feed habits. The expression “scourge” has been used to describe this drug but even that description is inapt in capturing the true nature of the effects.
[13] I mention this because it is important you reflect on what you allowed yourself to get drawn into.
[14] The relevant principles of sentencing require me to take into account the gravity and seriousness of the offending and maintain consistency with appropriate sentencing levels. And having said that, I accept that despite the seriousness of your offending I must also impose the least restrictive outcome appropriate and assist you in your rehabilitation.
Analysis
[15] In sentencing you today I adopt the standard approach which Judges in this country follow. I must set a starting point for the offending by reference to the facts and to the case law. That starting point is then adjusted by reference to mitigating or aggravating factors personal to you. And then I must stand back and ask myself whether the resulting sentence properly reflects the totality of the offending.
[16] The lead charges are obviously the manufacturing charges. However, consistent with the comments of the Court of Appeal, I do not consider that an uplift
is necessary to take into account the other charge of possessing equipment.2 This is because the criminality of “gearing up” for the main manufacture is absorbed by the culpability of the overall manufacture. In my view it would be artificial to attempt to separate the two. And so I will treat the possession of equipment charges as an aggravating feature of the manufacturing.
Starting point
[17] The starting points for methamphetamine offending are, as Mr Watson properly accepts, those set out by the Court of Appeal in the guideline judgment of R v Fatu.3 There the Court set out four sentencing bands which are largely defined in terms of the quantity of drug involved. Band 4, which is the most serious level, covers the most serious manufacturing offending where very large commercial quantities of methamphetamine are produced; that is 500 grams or more. Cases
which fall within Band 4 attract starting points of between 13 years and life imprisonment.
[18] Mr Watson on your behalf properly accepts that your offending falls within Band 4. The Crown has referred me to a number of cases involving the manufacture of methamphetamine to help determine where, within the particular band, your offending sits. I do not intend to go through those cases and discuss them in detail. I
will footnote them in my written judgment for ease of reference.4 While they
provide some assistance their usefulness is limited for two reasons. The first is that all manufacturing operations will involve different circumstances with vastly different roles being performed by the individual participants. And so comparing like with like can be fraught. The second is that the amount of methamphetamine which the Group manufactured far exceeds any of the cases either the Crown or Mr Watson has managed to locate.
[19] And so a more useful approach in your case, Mr Lang, is to compare your conduct to those of your co-offenders who have already been sentenced. By
2 R v Fatu [2006] 2 NZLR 72; (2005) 22 CRNZ 410 at [41]-[42].
3 At [41]-[42].
4 Clifton v R [2013] NZCA 85; R v Webb [2008] NZCA 487; Peters v R [2012] NZCA 252;
Beckham v R [2012] NZCA 603.
undertaking that exercise, adjustments can be made to take into account the differences between you and your co-defendants.
[20] Elijah Rogers was one of the principal cooks in Operation Easter. He was present throughout most of the manufactures but he also took part in the distribution of the drug by acting as a “gate keeper” to whom other members of the Group turned in order to obtain drugs to sell. In sentencing Mr Rogers I adopted a starting point of
25 years’ imprisonment.5
[21] Jaydean Hura was another of the principal cooks. He and Mr Rogers sat at a comparable level in the manufacturing hierarchy although Mr Hura was not involved in the distribution of the drug. Influenced by that difference, Lang J adopted a slightly lower starting point of 21 years’ imprisonment.6
[22] Then there is the case of Anthony Mangu which you heard me discussing with counsel. Mr Mangu participated in three of the six manufactures. In two he played a relatively minor role. In that sense he was more of an assistant. However, in the last he was certainly one of the main cooks. He, together with Mr Rogers, was in touch with Brownie Harding throughout this last phase. They talked about methods, quantities and progress. As with Mr Hura, Mr Mangu played a limited part in the distribution of the drug. For him I adopted a starting point of 20 years’
imprisonment.7
[23] And so I come to consider where you fit in. Unlike the others I have mentioned you are not a patched member of the Headhunters, nor, do you have any affiliation or association with them. Neither were you drawn into this business through any association with Brownie Harding.
[24] You got involved because you lived next door. It is your mother’s address. You moved in there well before the house next door was set up as a clandestine laboratory. After the Group moved in, it seems you attended some social functions; a
barbeque and drinks with your neighbours. They found out you were an engineer by
5 R v Rogers [2016] NZHC 1103.
6 R v Hura [2016] NZHC 777.
7 R v Mangu [2016] NZHC 1104.
trade and I accept they encouraged you to assist them in manufacturing or adapting some of the reasonably sophisticated equipment needed to produce methamphetamine in the quantities being made. It was your decision. No one forced you and regrettably you agreed to become involved; an involvement which became even more embedded when you began to use methamphetamine yourself.
[25] The Crown says that you were present at the address for short periods on the first three occasions when methamphetamine was manufactured but, as the charges reflect, it does not claim you actually took part either as a party or as a principal in producing the drug on those occasions. However, the Crown says you were an active participant in the fourth and sixth manufactures. The intercepted communications reveal that you and the other cooks spent whole days engaged in the process of manufacturing and that, all the while, you were discussing what you were doing and how the cooks were progressing. The Crown properly recognises that your culpability does not rise to the level of either Mr Rogers or Mr Hura. The Crown says, however, that you are more culpable than Mr Mangu. Although he was involved in three manufactures (one more than you) he was, by and large, an assistant whose involvement was less important and influential in terms of the overall success of the operation than yours. The Crown also submits that while Mr Mangu took part in the distribution of the drug this was at a very low level. Having regard to all these factors the Crown submits that a starting point of 19 to 20 years’ imprisonment is appropriate for you.
[26] Mr Watson takes a very different view of your role. He submits that you were never a cook in the sense of being the person controlling the cooking process. He simply says you passed on the knowledge you had gained from observing the other manufactures and from your technical experience as an engineer. He points out you never communicated with the Group’s members electronically and the only occasions you spent time with them was at the address when the manufacturing took place. He emphasised you did not bring any of the equipment or materials used in the manufacturing process to the address yourself. Although Mr Watson accepts that you were not compelled to participate he stresses, in forceful submissions, that there was an element of pressure imposed on you to such an extent that you moved out for several days in late October in an attempt to extricate yourself. However, these
efforts were frustrated by the fact that you did not have a car or driver’s licence at the
time.
[27] Although he does not specify an exact starting point, Mr Watson submits your culpability is within the range of Mr Mangu or Sharn Keogh, one of the Group’s delivery drivers in respect of whom I adopted a starting point of 11 years.8
[28] Having carefully considered both sets of submissions I am of the view that your culpability is more accurately reflected in the Crown’s summary but with some modification. As you know I presided over the trial of some of your co-defendants. I listened to some five weeks of evidence, including over 1,100 pages of transcript of intercepted communications. What plainly emerged from that combination of the evidence is that your role was not confined to passing on the knowledge you had acquired. You had an extensive and detailed knowledge of the manufacturing process both at a practical and scientific level. To a significant degree, other cooks relied on you to tell them what substances to combine and in what proportions. It is not an overstatement to say that the instruction you provided meant the operation as a whole was more successful as a result of your input. While I accept your initial contact with the Group was more by chance than design, you are obviously an intelligent, educated and perceptive man. You knew exactly what you were involved in and you knew the role you were playing as well as the role others within the Group were playing. You made the choice to become involved and to stay involved. However, as with a number of your co-defendants, I recognise and appreciate you were motivated by your desire to obtain methamphetamine for your own use rather than being motivated for personal gain or profit.
[29] As I have said, this view is borne out by not only the written words of the transcripts but by the tone of the conversations you were involved in. You were looked up to and you were respected by those you were working with. This assessment of your role is obviously an aggravating feature and one which I am
satisfied of to the high criminal standard which is required.9
8 R v Keogh [2016] NZHC 508.
9 For the avoidance of doubt all findings of aggravation are based on me being satisfied beyond reasonable doubt.
[30] On the whole I consider your culpability as being marginally below that of Mr Mangu. Unlike him you were involved in only two cooking phases. Furthermore, unlike Mr Mangu you were not involved in the distribution of the end product. Furthermore, as already mentioned, you were not actively engaged, as the others were, in liaising with Brownie Harding about methods, production, amounts and distribution particularly during the last manufacture. Taking into account all of those factors I regard a starting point slightly below Mr Mangu’s is appropriate. I consider a starting point of 19 years’ imprisonment as appropriate.
Personal circumstances
[31] I turn now to consider your personal circumstances. These are recorded in the pre-sentence report. At 42-years old you have four previous convictions for alcohol and driving-related offences. You have a conviction for breach of community work. None of these convictions adds materially in my assessment.
[32] You told the Probation Officer that you had a good and stable upbringing. No doubt this contributed to the success which you have enjoyed in life. After completing a three year apprenticeship you worked as an engineer for 15 years. I have read a glowing letter from your most recent employer who describes you as trustworthy and reliable. He would re-employ you if he had the opportunity. Until the events in 2014 you had, for the most part, lived a good and productive life. You are plainly a talented and able man which makes it all the more puzzling that you allowed yourself to become embroiled in this dreadful business.
[33] The Probation Officer records that you have expressed remorse for your offending; you have acknowledged your “wrongdoing”. You have recognised the very negative influences that those within the Group have had on you and which has lead you to end up where you find yourself today. I do not doubt your sincerity when you say you have severed your links with the members of this Group and, for you, it will no doubt be easier than it will be for others. To your credit, you have indicated you are willing to complete any programmes or directions to help you remain drug and offence free so that you are in a better position when you return to the community. Because methamphetamine played such an influential part in your
offending this will, of course, assume some importance if you wish to return to your former productive life. I note that the pre-sentence report assesses you as having a medium likelihood of re-offending and presenting a low risk of harm to others.
[34] While your largely positive history would ordinarily warrant recognition in the sentencing process, the Courts have repeatedly and consistently emphasised that personal circumstances carry little weight in cases involving commercial drug dealing.10 However, I am prepared to apply a modest discount of five per cent in recognition of your general good, past character as well as the degree of remorse you have expressed. In the circumstances I am simply unable to go further.
[35] The Crown accepts a discount of up to 20 per cent is appropriate to reflect your pleas of guilty. I accept Mr Watson’s submission it took some time for an amended charge list and summary of facts to be prepared for your consideration and that you made real efforts to seek a sentence indication at an earlier stage. But I also accept Mr Annandale’s submission that any delay in entering a plea cannot be attributed to anything the Crown did or did not do. The fact of the matter is that you did enter a plea at a comparable stage to others and this saved the State the costs of a much lengthier trial than that which ultimately proceeded with the other defendants. For those reasons I am prepared to apply a guilty plea discount of 20 per cent despite the fact that your plea was not entered at the earliest opportunity and that the evidence against you was overwhelming.
[36] This brings your end sentence, rounded down, to 14 years and four months’
imprisonment.
Minimum term of imprisonment
[37] In the normal run of things, a defendant who is sentenced to a term of imprisonment of more than two years will be eligible to apply for parole after they have served one third. However, s 86 of the Sentencing Act 2002 gives the Court the power to order a defendant to serve a longer minimum period of imprisonment where the grant of parole after the normal period would not be adequate to address
the sentencing principles of deterrence, denunciation and accountability. The Court of Appeal has confirmed that in cases of very serious drug dealing it is almost inevitable that the criteria for a minimum period of imprisonment will be met.11
[38] Minimum periods of 50 per cent were imposed in respect of Mr Rogers, Mr Mangu and Mr Hura. Mr Lang, I can see no proper basis for treating you any differently. Given the sheer quantity of methamphetamine that was produced and the role you played in the enterprise, a failure to do so would mean that the principles of sentencing would not be given due recognition.
[39] Accordingly, I order that you are to serve 50 per cent, namely seven years and two months’ imprisonment before you are eligible for release.
Conclusion
[40] Mr Lang, please stand. The sentences I now impose you are to be served concurrently. This means that they are not imposed on top of each other but rather they run together.
[41] On the two charges of manufacturing methamphetamine I sentence you to 14 years and four months’ imprisonment.
[42] On the charge of possessing equipment with intent that it be used in the
manufacture of methamphetamine I sentence you to three years’ imprisonment.
[43] All terms of imprisonment are to be served concurrently.
[44] I also impose a minimum period of imprisonment of 50 per cent, namely seven years and two months.
[45] Stand down.
Moore J
Solicitors:
Crown Solicitor, Whangarei
Mr Watson, Whangarei
9
7
0