R v MacDonald

[2015] NZHC 2887

ORDER PROHIBITING PUBLICATION OF THE NAME OF VYELLA APAAPA IN THE CONTEXT OF ANY REPORTING OF THE SENTENCING, IN NEWS MEDIA, OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF

VYELLA APAAPA’S TRIAL IN CRI-2014-019-4813. PUBLICATION IN LAW REPORT AND LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-019-4813

[2015] NZHC 2887

THE QUEEN

v

BIANCA AROHA MACDONALD

Hearing:	19 November 2015
Counsel:	J N Foster for Crown C D Bean for prisoner
Judgment:	19 November 2015

SENTENCING NOTES OF KATZ J

Solicitors:           Almao Douch, Crown Solicitor, Hamilton Counsel:      C Bean, Hamilton

R v MACDONALD [2015] NZHC 2887 [19 November 2015]

Introduction

[1]    Ms MacDonald, you appear for sentence today on three charges of supplying methamphetamine (one representative), one representative charge of offering to supply methamphetamine, and one charge of possession of methamphetamine for supply. The maximum penalty for each of these charges is life imprisonment.

Background

[2]    You were arrested as part of an investigation code named Operation Fremont, undertaken by the Waikato Police Organised Crime Squad, into the supply of methamphetamine by patched members and associates of the Mongrel Mob.

[3]    During their investigations the police identified certain individuals who were working together to supply methamphetamine. You were identified as one of those individuals. All of the other individuals identified have now pleaded guilty and been sentenced, apart from Vyella Apaapa, who has pleaded not guilty to the charges against her and faces trial next year.

[4]    You were involved in supplying methamphetamine from an address in Hamilton, where you lived with Ms Apaapa. The summary of facts which sets out the basis on which you pleaded guilty indicates that Ms Apaapa had the primary role, in that she sourced and organised the sale of methamphetamine from that address. You assisted her, by travelling to various locations, picking up wholesale quantities of methamphetamine to on sell to customers, and assisting generally in sales.

[5]    The Police have been unable to quantify the exact amounts of methamphetamine sold from the Hamilton address. However, from 1 November 2013 until 9 April 2014 evidence from intercepted texts and other communications indicates that there were 54 occasions on which you used the telephone to arrange transactions resulting in the supply of methamphetamine. The total methamphetamine involved was 12.8 grams, across 52 traceable transactions. You also made offers to supply methamphetamine on 33 occasions, involving a total of 13.6 grams.

[6]    As well as sales organised by telephone, your Hamilton house operated as a retail base for selling methamphetamine. On 29 March 2014 an undercover police officer went to the house and purchased a bag of methamphetamine, comprising

0.2 grams. Although Ms Apaapa ran the transaction, you prepared the amount requested, and handed it to the police officer. On 5 April 2014, a similar transaction occurred in which the same officer came to the house and purchased 0.1 grams of methamphetamine. On that occasion Ms Apaapa prepared the amount requested, and you requested the money.

[7]    In total, the full amount of methamphetamine recorded as being supplied or offered to be supplied from the Hamilton address was 156.2 grams, of which

88.2 grams was actually supplied. The total methamphetamine that you can be specifically linked to is 26.7 grams.

Principles and purposes of sentencing

[8]    Methamphetamine is a highly addictive drug which has become a scourge in many communities across New Zealand. Those who deal in methamphetamine cause significant harm to both drug dependent individuals and society as a whole. Methamphetamine addiction results in users being trapped in a cycle of dependency on a drug that has powerful anti-social effects. The gravity of methamphetamine offending is demonstrated by the fact that the maximum penalty for the charges you have pleaded guilty to is life imprisonment.

[9]    For offending of this type, the primary sentencing goals are to hold an offender accountable for the harm done to the community, to promote a sense of responsibility for, and an acknowledgement of that harm, to denounce the conduct in which the offender was involved and to deter the offender or others from committing the same or similar offences.1 I must also be alive to the need to protect the community from people who are prepared to distribute harmful drugs for monetary gain.2

1      Sentencing Act 2002, s 7(1)(a), (b), (e) and (f).

2      Sentencing Act, s 7(1)(g).

[10]   The sentence I impose on you must also take account of the gravity of the offending, including your degree of culpability, as well as the seriousness of this type of offending and its maximum penalty.3 In addition, any sentence I impose must be consistent with appropriate sentencing levels, so that like offending is treated alike.4

[11]   In your case, there are two aspects to the principle of seeking consistency in sentencing. The first requires parity in sentencing amongst the various offenders who were arrested as part of Operation Fremont. The other requires consistency between your sentence and sentences that have been imposed on others in relation to similar offences in other cases.

Setting a Starting Point

[12]   The first step is to set a starting point. In setting a starting point, the gravity of the offending must be assessed with reference to any aggravating or mitigating features of the offending.

[13]   The tariff decision for the sentencing of importation, supply and manufacture of methamphetamine is the Court of Appeal’s decision in R v Fatu.5 In that case the Court of Appeal created bands for cases involving the sale or supply of methamphetamine. Both the Crown and your counsel submit that your offending falls within Band 2 of Fatu, which provides for a starting point of between three and nine years imprisonment for supplying commercial quantities of methamphetamine in the range of five to 250 grams.6

[14]   In setting the Fatu bands the Court of Appeal considered that “the quantity of the drug involved in the offending (rather than anticipated monetary yields) provides the most helpful measure of culpability”.7 In regards to the role of the offender within the chain of supply, the Court observed that where an offender fits within a 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

3      Sentencing Act, s 8(a) and (b).

4      Sentencing Act, s 8 (e).

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

6      R v Fatu, above n 5, at [34].

7      R v Fatu, above n 5, at [26].

towards the higher end of the relevant band with the converse applying to those whose role is less significant.8 Further, in cases involving supply, considerations of commerciality may be significant. The Court recognised, for example, that those who supply for gain will be more culpable than those who give small quantities of drugs to friends for their personal consumption.9

[15]   Your role was essentially that of an assistant to Ms Apaapa in a fairly busy methamphetamine retail operation. You  became involved in  that operation when  Ms Apaapa invited you to move in with her. Prior to that you say you had been living a transient lifestyle, after breaking up with your partner. You say that you did not receive payment for your services, but that you did receive free drugs.

[16]   One of the aggravating factors of your offending is that it was gang related.10 You were a part, albeit a small part, of a much wider operation with extensive ties to the Mongrel Mob. Further, the scale of the operation as a whole appears to have been significant, albeit I accept that you were a relatively low level player in the overall operation.

[17]   The Crown submits that premeditation is a further aggravating feature, as the offending was highly organised and repetitive. In my view, however, premeditation is not a significant aggravating feature in this case. Rather, the organised and repetitive nature of the offending is inherent in drug offending of this nature.

[18]   The Crown submits that, in sentencing you, I should focus not only on the quantity of methamphetamine that can be directly linked to you, but should also take into account the broader context of your offending, in that your role was to support Ms Apaapa in her, more significant, drug dealing activities. I accept that submission to a point, but note that you were not charged as a party to Ms Apaapa’s offending. As the Crown acknowledged, your culpability is significantly less than hers. It is relevant, however, as part of the general context, that you were working with Ms Apaapa to run a commercial retail operation involving methamphetamine for supply. You are

8      R v Fatu, above n 5, at [31].

9      R v Fatu, above n 5, at [32].

10     Sentencing Act, s 9(1)(hb).

someone who has knowingly involved yourself in the drug trade, understanding its scale, but “more of a lieutenant than someone who carried out a primary role”.11

[19]   Finally, as in all drug cases, the extent of the resulting loss, damage and harm to the community is obviously very significant.

[20]   The Crown submits that as an assistant in a busy retail operation, your starting point should be in the middle of band two of R v Fatu, being somewhere around five years’ imprisonment. Your counsel submitted, on the other hand, that I should adopt a starting point of three to four years’ imprisonment.

[21]   In terms of parity with the other Operation Fremont offenders who have already been sentenced, the Crown submits that your role was broadly comparable to that of Ian and Ake Crosby. They were sentenced by Heath J last year. The starting point his Honour adopted for Ian Crosby was four years imprisonment. The starting point for Ake Crosby, who had a more active role, was five years imprisonment.

[22]   I also note that when you were given a sentencing indication in November 2014 (which you did not accept) Heath J expressed the view that your offending was broadly comparable to that of Thomas or Ake Crosby. The starting point ultimately taken for Thomas Crosby’s offending was four years six months imprisonment.12 As I have already noted, the starting point for Ake Crosby was five years imprisonment.

[23]   Taking all of these factors into account, and also taking into account a range of sentences imposed in other cases of methamphetamine offending,13 I consider that your culpability overall places you in the lower to middle of band 2 of Fatu. Although no two cases are alike, I accept that Thomas, Ake and Ian Crosby are broadly appropriate comparators, with Ian and Ake Crosby being the most similar to you in terms of their role. Like you, they were retail assistants within a commercial methamphetamine operation run from a private home. Taking all of these matters into

11     R v Paki [2015] NZHC 472 at [29].

12     R v Paki [2015] NZHC 472 at [37].

13 R v Haira HC Rotorua CRI-2009-063-5871, 24 November ; Gilfedder v R [2013] NZCA 426; Reid v R [2013] NZCA 89; Clunie v R [2013] NZCA 110; R v Hsu [2012] NZHC 931; R v McLaine HC Rotorua CRI-2009-063-5871, 24 November 2011; and R v Whittington [2012] NZHC 2286.

account it is my view that a starting point of four years six months imprisonment appropriately reflects your culpability.

Adjusting the starting Point

[24]I now turn to consider what adjustments should be made to that starting point.

[25]   You are 33 years old. You have a number of previous convictions, but only one of them relates to methamphetamine offending. That conviction, for possession of methamphetamine utensils, was part of other charges for which you were sentenced on 12 September 2014, and included other charges of possessing a cannabis plant, and failing to answer District Court bail. Given that you have only one previous methamphetamine related conviction, I do not propose to uplift your sentence to take account of your previous conviction.

[26]   On the other hand, I have not been persuaded that a discount for remorse is appropriate. I have carefully considered the letter you have provided to me today and the supporting letters from your aunt and uncle. You clearly have strong family support and I am sure that will continue in the future. You are also to be commended for your commitment to turning your life around and the efforts you have made to improve yourself while in custody. Those are all matters that I am sure will be taken into account by the Parole Board. I have not been persuaded, however, that they justify a discount on your sentence. In particular, I note that although you have now pleaded guilty, your pre-sentence report indicates that relatively recently you minimised and even denied involvement in drug dealing activities to your probation officer despite the overwhelming evidence to the contrary.

[27]   You received a sentencing indication a year ago, but did not accept that at that time. Your guilty pleas were entered on 13 October 2015, some six months before trial. Your guilty plea was not therefore entered at the first reasonable opportunity. Nor, however, was it made at the courtroom door.

[28]   The Crown submits that a 10 per cent discount for your guilty pleas would be appropriate, whereas your counsel submits that a 20 per cent discount is justified. I accept the Crown submission that a 20 per cent discount would fail to appropriately recognised the strong Crown case or to differentiate adequately between your position and that of the significant number of Operation Fremont defendants who have previously pleaded guilty at a much earlier stage. They received the full 25 per cent discount that is available in these cases. Taking into account these factors it is my view that a 15 per cent discount for your guilty plea would be appropriate in all the circumstances of this case.

Sentence

[29]   Ms MacDonald, please stand. You are charged with three counts of supplying methamphetamine, one count of offering to supply methamphetamine and one count of possession of methamphetamine for supply. On each of those counts you are sentenced to 3 years 10 months’ imprisonment, with the sentences to run concurrently.

[30]   I also make an order prohibiting publication of the name of Vyella Apaapa in the context of any reporting of your sentencing, in news media, or on the internet or other publicly available database until final disposition of the trial of Ms Apaapa’s trial in CRI-2014-019-4813. Publication in law report and law digest permitted. This order is necessary in order to protect Ms Apaapa’s fair trial rights.

[31]You may stand down.

Katz J