R v MacFarlane
[2023] NZHC 172
•10 February 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-3188
[2023] NZHC 172
THE KING v
WILLIAM LUKE MACFARLANE
Hearing: 10 February 2023 Appearances:
C Macklin for the Crown
M A Edgar for the Defendant
Sentencing:
10 February 2023
SENTENCING NOTES OF WOOLFORD J
Solicitors: Gordon Pilditch (Office of the Crown Solicitor), Rotorua Counsel: M Edgar, Auckland
R v MACFARLANE [2023] NZHC 172 [10 February 2023]
[1]Mr MacFarlane, you appear for sentencing having pleaded guilty to 16 charges:
(a)Receiving;1
(b)Importation of gamma-butyrolactone (GBL) (x 4, each representative);2
(c)Possession of GBL for supply; 3
(d)Supply of GBL;4
(e)Manufacturing methamphetamine;5
(f)Importation of methamphetamine (representative);6
(g)Attempt to import methamphetamine (representative);7
(h)Conspiracy to supply methamphetamine;8
(i)Possession of methamphetamine for supply; 9
(j)Supply of precursor for methamphetamine;10
(k)Offering to supply methamphetamine;11
(l)Supply of methamphetamine;12 and
(m)Importation of MDMA.13
1 Crimes Act 1961, ss 246 and 247(a), maximum penalty seven years’ imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(b), maximum penalty 14 years’ imprisonment.
3 Section 6(1)(f) and (2)(b), maximum penalty 14 years’ imprisonment.
4 Section 6(1)(c) and (2)(b), maximum penalty 14 years’ imprisonment.
5 Section 6(1)(b) and 2(a), maximum penalty life imprisonment.
6 Section 6(1)(a) and (2)(a), maximum penalty life imprisonment.
7 Section 6(1)(a) and (2)(a), maximum penalty life imprisonment.
8 Section 6(1)(c) and (2A)(a), maximum penalty 14 years’ imprisonment.
9 Section 6(1)(f) and (2)(a), maximum penalty life imprisonment.
10 Section 12A(2)(a) and (3)(b), maximum penalty five years’ imprisonment.
11 Section 6(1)(c) and (2)(a), maximum penalty life imprisonment.
12 Section 6(1)(c) and (2)(a), maximum penalty life imprisonment.
13 Section 6(1)(a) and (2)(b), maximum penalty 14 years’ imprisonment.
[2] On 5 October 2022 my sentence indication, which you accepted, was that I would sentence you to no more than 11 years’ imprisonment.14
Background
[3] The facts of your offending are set out in my sentence indication and will be attached to this judgment. However, I will summarise the more important facts.
[4] Your offending arises from Police Operation Schultz, an investigation into an organised criminal network that manufactured, imported and supplied methamphetamine in the Bay of Plenty. You were the principal offender in the network. You used websites on the dark net to purchase controlled drugs and chemicals from around the world, paying for them with Bitcoin. You then arranged to have the packages sent to addresses of known associates under fictitious names. You paid these associates $300 per package for allowing their addresses to be used.
[5] When the packages arrived, you would uplift them or have them delivered to you. You would then supply the drugs or chemicals to your associates to be sold or to be used in the manufacture of methamphetamine.
[6] On 10 November 2019 at about two am, an unknown person stole 3,050 kilograms of iodine prills from Mainfreight Transport, Mount Maunganui. This person then supplied you with approximately half of the stolen iodine. You later swapped one 50 kilogram drum of iodine for a vehicle.
[7] Between July and November 2020, New Zealand Customs intercepted packages directed to addresses linked to you, containing 115.78 litres of GBL,
200.7 grams of methamphetamine and 345 grams of MDMA. In September 2020 United States authorities also seized three packages, containing a total of 612 grams of methamphetamine, addressed to locations associated with your operation.
[8] In September 2020 you supplied precursor substances to a co-defendant, Jane Dennis, and arranged for her to manufacture 730 grams of methamphetamine.
14 R v MacFarlane [2022] NZHC 2571.
Personal circumstances
[9] Ordinarily, sentencing occurs in two stages. First, the Court identifies a starting point which reflects the gravity of the offending. Second, allowance is made for personal aggravating and mitigating factors, including the stage at which the defendant pleaded guilty.
[10] The Court must also have regard to the purposes and principles of sentencing. In sentencing you, Mr MacFarlane, I have particular reference to the need to denounce your conduct and to deter others from committing a similar offence.
[11] At your sentencing indication, I adopted a starting point of 14 years, six months’ imprisonment for this offending.
[12] I uplifted the starting point by two months to take into account your criminal history.15
[13] I also indicated that, if you accepted the sentence indication, I would apply a discount of 25 per cent for your guilty pleas.16
[14]This brought your indicated sentence to 11 years’ imprisonment.
[15] I noted there may be other personal mitigating factors in your favour, on the basis of information before the Court at your sentencing. I now turn to those factors.
PAC Report
[16] I have now been provided with a pre-sentence report (PAC report) dated 16 November 2022.
[17] The report records that you were raised by your mother and maternal grandparents. Your uncle says you had a good upbringing but were affected by growing up without your father.
15 At [43].
16 At [47].
[18] After getting into trouble in your teenage years you were sent to live with your father for a period up in Auckland. You stated to the report writer that it was then that you were introduced to “this lifestyle.” You would purchase “pills” for your father and you got paid for doing so.
[19] Following your return to the South Island, you finished school and gained employment. However, at 17, you then returned to live with your father as you were earning more money working for him. By 18, you were addicted to methamphetamine. You said to the report writer that you would now describe your relationship to your father as “toxic” and that despite reaching out to him after being incarcerated, you have not had any contact with him for the past 18 months.
[20] You have been in a relationship with your co-offender, Charlotte Ward, for over two years, despite spending most of this time in custody. You stated that “she developed an addiction because of me” and that you “got her into this situation”. In my view, you seem genuinely remorseful of your role drawing Ms Ward into her offending. However, you appear to be hopeful for the future of both of you. You said to the report writer that you hoped that post-prison life you can, in your words, live “down South, off the grid, starting a family and leaving this life behind us.”
[21] You have a son who is currently aged 18. You said that you did not know about him until he was roughly four years old because your son’s mother did not want you around, fearing he would follow your example. However, you did connect with him when he turned 14.
[22] Given that you have been remanded in custody for the last two years, you have not used drugs. Although you have completed counselling and programmes in the past, you stated that you would be willing to undertake further counselling or programmes both in prison and on your eventual release. These are positive developments.
Cultural report
[23]I also have a s 27 report (cultural report) dated 20 November 2022.
[24]The report writer identified the following:
(a)Cultural disconnectedness – little tangible connection to your whakapapa, a key foundation upon which Māori form and actualise their sense of self and reinforce mana (inner strength).
(b)Family trauma and paternal influence – deeply dysfunctional relationship and negative influence of your father who was, when you were growing up, a transient figure. You recall your earliest childhood memory of him was visiting him in prison. Interactions with your father were characterised, you say, by violence, volatility and cruelty.
(c)Substance abuse – exposed and recruited into “the lifestyle” in your formative years by your father, who was heavily involved in the methamphetamine industry, a predictor of future substance abuse. Highly dependent upon methamphetamine since adolescence.
(d)Education – the volatility and instability of home life was reflected in your expulsion from three schools for disruptive behaviour resulting in intermittent schooling.
Submissions
Defence submissions
[25] Your counsel submits that discounts should be applied for the impact of your addiction, experience of trauma, social disadvantage, and systemic Māori deprivation. He submits that these factors limit your culpability in the offending.
[26] With regard to addiction, your counsel points to your long history of substance abuse which began when you were a teenager. He notes that your introduction to methamphetamine and dealing came from your father, a dysfunctional and negative influence in your life who normalised the drug ‘lifestyle’. He argues for a combined discount of 35 per cent to reflect this dynamic and a causal link between your
addiction, background and offending (20 per cent to reflect the factors in your cultural report, and 15 per cent for addiction).
[27] Your counsel also ask that a discount of five to 10 per cent be applied for remorse, and rehabilitation. He notes that you have taken up educational opportunities while in custody and have taken steps to accept responsibility for your actions and plan for a future beyond drug dealing. You have written a letter of remorse, which he includes in his submissions.
[28] Finally, your counsel requests that if the Court considers a minimum period of imprisonment (MPI) is required, then it should be no more than 50 per cent. He notes that even with a combined discount of 50 per cent, you are still likely to serve a lengthy sentence of imprisonment.
Crown submissions
[29] The Crown consider, on the reports they have received, that there are no mitigating factors personal to you that should impact sentencing. It should be noted that they did not have the benefit of the cultural report at the time of its submissions.
[30] They ask that a minimum period of imprisonment be applied in your case. This is due to the recidivist and commercial nature of your operation. Such offending is understood to cause substantial harm to the community, and a sentence of imprisonment is considered necessary for accountability and to deter others. The Crown refers to Chai v R17 to support this position.
[31] They further note that you are candid about your ambition for financial gain through dealing methamphetamine and other drugs. They say that you do not fear the consequences of your actions, having previously served time in prison.
[32] The Crown mentions that Mr Kupkovic, your co-offender and a senior figure in the operation you led, had an MPI set at 50 per cent of the end sentence.18 They
17 Chai v R [2020] NZCA 2020 at [39].
18 R v Kupkovic [2022] NZHC 1980.
submit that an MPI of 60 per cent would be appropriate in your case, to reflect your leading role in the offending.
Discussion
Addiction and early life circumstances
[33] Where there is evidence of addiction or deprivation, it will be appropriate to discount an end sentence to reflect the impact it may have had on offending.19 However, this must be limited in cases of complex commercial dealing of methamphetamine, especially where a defendant has played such a significant role. This goes to a demonstrated ability to make decisions and implies that agency has been exercised to carry out the specific offending.
[34] From the accounts that I have read your childhood was stable and you had the benefit of being raised by your mother and grandparents until your early teen years. Your PAC report shows that you first became addicted to methamphetamine when you were about 18.
[35] It is clear that your addiction has played a part in your offending, but on completing your previous sentence of imprisonment, you abstained from drugs and worked a full-time job for a year. However, you began using methamphetamine after this period and took up commercial dealing on a much larger scale than previously, both to service your addiction and to make financial gain. You brought others into your operation, including your partner, Ms Ward, who you acknowledge “developed an addiction” because of you.
[36] In these circumstances, I consider it would not really be appropriate to apply too generous a discount in respect of your addiction and early life circumstances as disclosed in both the PAC report and the cultural report. Your leading role in the offending, and the complexity of the operation – using the dark web, Bitcoin technologies, and a sophisticated infrastructure to import ingredients for commercial manufacture of illicit substances – imply that you exercised deliberate agency in your
19 Berkland v R [2022] NZSC 143 at [127-129].
offending. In this case, I find it appropriate to foreground the harm to the community and the requirement to deter others from following your example. For these reasons, I am only willing to apply a discount of five per cent for the impact of your addiction and early life circumstances.
Remorse
[37] I have read the letter to the Court and believe that you are genuinely remorseful for the harm you have done to others. You appear to have taken the opportunity while under remand to reflect on your choices, and what continued offending and drug abuse would mean for your future and the future of those who are close to you. You have taken steps, like furthering your education and planning for entry into a rehabilitation facility after imprisonment, that demonstrate a willingness to change. I therefore consider a further five per cent discount for remorse and potential for rehabilitation is appropriate.
Guilty plea
[38] As I said at your sentencing indication, a 25 per cent discount will be applied in recognition of your guilty plea. The available discounts therefore total 35 per cent.
Minimum period of imprisonment
[39] I now turn to the issue of whether it is necessary to impose a MPI under section 86 of the Sentencing Act 2000:
86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[40] In Chai v R,20 the Court of Appeal noted that in cases of recidivist and commercial methamphetamine dealing, an MPI is generally expected. The nature of offending goes to the heart of the s 86 provision, as it is particularly harmful to the community and must be denounced in strong terms.
[41] In sentencing, it is also imperative to maintain consistency with the outcomes in similar cases.21 To that point, I refer to the sentencing of Mr Kupkovic, your co- offender, who received an MPI of 50 per cent of his sentence to reflect the seriousness of his offending.22 The Crown consider that your role as principal offender should warrant a higher MPI of 60 per cent. While this argument is reasonable, I am wary of applying an MPI in what the Court of Appeal in Zhang has described as “a matter of routine or… mechanistic way.”23
[42] MPIs are applied for deterrence, to denounce unacceptable conduct, and to promote public safety. The specific length of an MPI must be reasoned with regard to the individual being sentenced,24 and therefore cannot only be decided in relation to other sentences, even where – as in this case – there is co-offending.
[43] Your offending was, as I have discussed, harmful to the community and deserves to be denounced strongly. I do not, however, think that your relative seniority in relation to Mr Kupkoviv deserves an uplift of 10 per cent on its own merits. I consider that a 50 per cent MPI is sufficient to meet the objectives under s 86, while also accounting for your rehabilitative prospects beyond imprisonment.
20 Chai v R [2020] NZCA 202.
21 Sentencing Act 2002, s 8(e).
22 R v Kupkovic, above n 18.
23 Zhang v R [2019] 3 NZLR 648 at [169].
24 Above, at [169] to [171].
Result
[44]Mr MacFarlane, would you please stand.
[45] In accordance with my indication on 5 October 2022, I sentence you to nine years and six months’ imprisonment, with an MPI of four years and nine months on all of the charges except for receiving and supply of a precursor for methamphetamine on which I impose a sentence of two and a half years’ imprisonment to be served concurrently with each other and the remaining charges.
[46]You may stand down.
Woolford J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-3188
[2022] NZHC 2571
THE KING v
WILLIAM LUKE MACFARLANE
Hearing: 5 October 2022 (Heard at Hamilton) Counsel:
S Smith for the Crown
M A Edgar for the Defendant
Date of sentence indication:
5 October 2022
SENTENCE INDICATION OF WOOLFORD J
Solicitors: Gordon Pilditch (Office of the Crown Solicitor), Rotorua Counsel: M Edgar, Auckland
R v MACFARLANE [2022] NZHC 2571 [5 October 2022]
Introduction
[1] Mr MacFarlane, although you initially faced a large number of charges, today 16 charges have been identified arising out of your involvement in a drug importation network in the Bay of Plenty and you seek a sentence indication on those 16 charges. They are as follows:
(a)Receiving;1
(b)Importation of gamma-butyrolactone (GBL) (x 4, each of which is representative);2
(c)Possession of GBL for supply; 3
(d)Supply of GBL;4
(e)Manufacture of methamphetamine;5
(f)Importation of methamphetamine (a representative charge);6
(g)Attempt to import methamphetamine (again, a representative charge);7
(h)Conspiracy to supply methamphetamine;8
(i)Possession of methamphetamine for supply; 9
(j)Supply of precursor for methamphetamine;10
1 Crimes Act 1961, ss 246 and 247(a), maximum penalty seven years’ imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(b), maximum penalty 14 years’ imprisonment.
3 Section 6(1)(f) and (2)(b), maximum penalty 14 years’ imprisonment.
4 Section 6(1)(c) and (2)(b), maximum penalty 14 years’ imprisonment.
5 Section 6(1)(b) and 2(a), maximum penalty life imprisonment.
6 Section 6(1)(a) and (2)(a), maximum penalty life imprisonment.
7 Section 6(1)(a) and (2)(a), maximum penalty life imprisonment.
8 Section 6(1)(c) and (2A)(a), maximum penalty 14 years’ imprisonment.
9 Section 6(1)(f) and (2)(a), maximum penalty life imprisonment.
10 Section 12A(2)(a) and (3)(b), maximum penalty five years’ imprisonment.
(k)Offer to supply methamphetamine;11
(l)Supply of methamphetamine;12 and
(m)Importation of MDMA (Ecstasy).13
[2] I am satisfied I have sufficient information to give you an indication, including the material referred to in s 61(3) of the Criminal Procedure Act 2011. This includes an agreed summary of facts and information as to your previous convictions.
[3] I have written submissions from Ms Smith for the Crown, and Mr Edgar on your behalf. I have also had the benefit of oral submissions from both counsel this afternoon.
Alleged offending
[4] I take the following from the Crown’s summary of facts. On 11 November 2019, the Tauranga Criminal Investigation Branch of the New Zealand Police commenced an investigation into the manufacture, importation, and supply of methamphetamine in the Rotorua and Tauranga areas. This was codenamed Operation Schultz.
[5] As a result of the Operation, the Police identified a number of individuals, including you and your partner, Ms Ward, as being involved in the importation and supply of GBL, MDMA, and methamphetamine, and the importation of precursor substances to manufacture methamphetamine. You are alleged to have been the principal offender in the network.
[6] The summary of facts records that you used websites on the dark net to purchase controlled drugs and chemicals from around the world, paying for them with Bitcoin. You then arranged to have the packages sent to addresses of known associates
11 Section 6(1)(c) and (2)(a), maximum penalty life imprisonment.
12 Section 6(1)(c) and (2)(a), maximum penalty life imprisonment.
13 Section 6(1)(a) and (2)(b), maximum penalty 14 years’ imprisonment.
under fictitious names. You apparently paid these associates $300 per package for allowing their addresses to be used.
[7] When the packages arrived, you would uplift them or have them delivered to you. You would then supply the drugs or chemicals to your associates to be sold or to be used in the manufacture of methamphetamine.
[8] You communicated with your associates using the encrypted app Wickr Me and used VPNs to mask your IP address when using the internet, in an attempt to hide your offending from law enforcement agencies.
[9] The specific incidents giving rise to the current charges may be summarised as follows.
Importation charges
[10] Between 23 July and 9 November 2020, New Zealand Customs intercepted 62 packages, each containing between 1.54 litres and 1.89 litres of GBL. These were directed to 17 different addresses linked to you and Ms Ward. Of these, 57 packages were seized. A further 32 packages were found in other evidence but not seized. The Crown calculates the total quantity of GBL to be approximately 115.78 litres, worth an estimated $289,453.
[11]Between 23 July and 9 November 2020, Customs also intercepted:
(a)Four packages containing between 36 grams and 55.8 grams of methamphetamine, directed to three different addresses linked to you and Ms Ward. In total, 200.7 grams of methamphetamine was seized, with an estimated value of around $80,280.
(b)Three packages containing between 107 grams and 121 grams of MDMA, directed to two different addresses linked to you. In total, 345 grams of MDMA was seized.
[12] Then in September 2020, authorities in the United States seized three packages addressed to locations associated with your operation. There was a total of 612 grams of methamphetamine in these packages that you attempted to import.
Precursor substance charges
[13] On 10 November 2019 at about 2:00 am, a burglary occurred at Mainfreight Transport, Mount Maunganui. An unknown person or persons stole 61 cardboard barrels, each containing 50 kg of iodine from a locked shipping container stored within the secure Mainfreight Transport compound. This amounted to a total of 3,050 kg of iodine prills, valued at $228,000. You met this person at the Trinity Wharf Hotel at 3:20 am and received approximately half of the stolen iodine prills.
[14] Between 10 November 2019 and 28 February 2020, you swapped one of the 50 kg drums of iodine prills for a Corvette motor vehicle. You gave the vehicle to your father as a present who had it for a short while before selling it for $60,000.
Supply and manufacture charges
[15] Police intercepted a number of communications at your home address as well as text conversations. These provide the bases for the various other supply and manufacture charges. I do not propose to traverse each of these for present purposes. I note only a few key examples.
[16] On 5 August 2020, one of your co-defendants, Mr Te Kani, arrived at your address. You told him you did not have any more containers but could get more the following day, if Mr Te Kani wanted. You discussed weights and supplied Mr Te Kani with two containers holding a total of 133 grams of methamphetamine.
[17] Other conversations in early September 2020 suggest you supplied one kilogram of ephedrine for the manufacture of 730 grams of methamphetamine. After it was produced, you arranged for its collection and sale.
[18] On 12 August 2020, another of your co-defendants, Ms Keogh, arrived at your address. You said you had three litres of GBL and that you should do some deals. Ms
Keogh agreed and the two of you arranged for the sale of one litre of GBL to “Shady” in Maketu. You would receive $2,000 and Ms Keogh, $500 for the sale. You then discussed swapping 125 ml of GBL for an ounce of cannabis. You said that you usually sold GBL for $2,500 per litre and that you preferred to sell in litres as you had so much.
Approach to sentence
[19] I turn now to the indicated sentence. The sentence which I will impose must be sufficient to hold you responsible for your actions and to deter you and others from committing similar offending in the future. I must also treat you consistently with others and impose the least restrictive sentence available in the circumstances.
[20] The first part of the sentencing process is to set what is known as a “starting point”. This reflects the circumstances of the offending itself, rather than any factors personal to you as the offender. The second part of the process is to adjust the starting point to reflect any factors — both good and bad — personal to you. I have little information to enable me to do that today but, at the very least, I can tell you what credit you will receive if you plead guilty to the charges. This means by the time I finish today you will know the maximum sentence you will receive.
Crown Submissions
Starting point
[21] For the Crown, Ms Smith submits that the representative charge of importing GBL is the lead offence. Ms Smith acknowledges that the total quantity of GBL imported, being approximately 115.78 litres, is not overly high. However, she says that the frequency at which it was imported is noteworthy – namely, 89 packages over a five-month period.
[22] Ms Smith submits that the guideline judgment for offending of this type is R v Wallace.14 In that case, the Court stated that a starting point of between eight and 14 years’ imprisonment is appropriate for the principal offender in a major commercial
14 R v Wallace [1999] 3 NZLR 159 (CA).
drug operation. Ms Smith contends for a starting point of nine to 10 years’ imprisonment in the present case. She says the facts are broadly comparable to Close v R, in which an eight-year starting point was adopted for the ‘2IC’ in a major GBL importation operation, involving 277 litres over 15 months.15 Whilst the present case involves a lesser quantity, Ms Smith submits that you played a more leading role in the operation.
[23] In relation to the methamphetamine offending, the Crown takes the most serious offence as the manufacture of 730 grams of methamphetamine. The quantity places the offending at the lowest end of band four in the guideline judgment of Zhang v R, attracting a starting point of between eight and 16 years’ imprisonment.16 Ms Smith submits that a starting point in the vicinity of 11 years’ imprisonment is appropriate for this charge, taking into account the quantity, the significant commercial imperative, and your principal role in the offending.
[24] Ms Smith notes that a starting point of 11 years on this charge is broadly comparable to the nine to 11 years’ imprisonment the Crown would propose for your co-defendant, Ms Dennis, who is described as the “cook”. It is also broadly similar with the sentence of seven and a half years’ imprisonment adopted by the Court for your co-defendant, Mr Kupovic, who was involved in the related conspiracy (though not the cook).
[25] Ms Smith submits that a further uplift of eight to 12 months’ imprisonment is warranted to reflect the remaining methamphetamine charges. This gives a total starting point of between 11 years, eight months’ imprisonment and 12 years’ imprisonment on the methamphetamine offending.
[26] Taking into account totality principles, however, Ms Smith submits that an uplift of six to eight years is appropriate for the methamphetamine offending. Applied to the nine to 10 year starting point on the GBL offending, this gives a global starting point of between 15 and 18 years’ imprisonment.
15 Close v R [2011] NZCA 434.
16 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[27] The Crown accepts that the importation of MDMA charge is covered by the global starting point and that a shorter concurrent term is all that is required to reflect this charge.
Defendant-specific factors
[28] Turning to the aggravating factors personal to you, Ms Smith submits that your criminal history shows an escalating pattern of offending over time, starting with class C offending in 2001 and progressing to class A offending in 2014. She submits that an additional uplift of between three and six months’ imprisonment may be appropriate to reflect your previous convictions and the need for additional deterrence.
[29] As to mitigating factors, Ms Smith accepts that a discount of up to 25 per cent remains available for guilty pleas, due to the initially slow disclosure of evidence and the significant time and cost implications of resolving this case.
[30] Ms Smith further submits that whether a minimum period of imprisonment is imposed on you should be an issue reserved for sentencing.
Defence Submissions
[31] Mr Edgar, your counsel , submits that a lower starting point of six and a half years’ imprisonment should be adopted on the GBL offending. Mr Edgar submits that the offending falls within category two of R v Wallace as a sophisticated commercial operation extending over a period of time, though not involving “massive” quantities of drugs.17 Offending in this category attracts a starting point of between five and eight years’ imprisonment. Mr Edgar also refers to three cases in which starting points of between six and eight years’ imprisonment have been adopted for offending involving greater quantities of GBL.18 Mr Edgar accepts that you played a ‘leading’ role in the offending as that term is defined in Zhang.19 However, he submits that the offending cannot be characterised as the most serious of its kind, particularly when one has regard to the overall quantity of GBL imported over the four-month period.
17 Above n 15.
18 Close v R, above n 16; R v Paunovic [2019] NZDC 18478; and R v Palmer [2007] NZCA 167.
19 Above n 17, at [126].
[32] As to the methamphetamine offending, Mr Edgar submits that a starting point in the vicinity of nine to 10 years’ imprisonment is appropriate to reflect the manufacture of 730 grams of methamphetamine. Mr Edgar refers to Hall, in which a starting point of 14 years’ imprisonment was reduced to 12 years on appeal for offending on a similar scale.20 This was said to reflect the fact that the quantity involved was approximately half of the maximum contemplated for offending within band four of Zhang, while still recognising the leading role played by the defendant in that case.
[33] Mr Edgar takes no issue with the proposed uplift of eight to 12 months’ imprisonment on the further methamphetamine charges, and agrees that your culpability on the MDMA offending is already reflected in the starting points on the other charges. Mr Edgar points out, however, that the Crown makes no reference to the charge of receiving.
[34] Mr Edgar therefore contends for a global starting point of approximately 18 years’ imprisonment before adjusting for totality. He submits that a reduction of between 30 and 50 per cent is warranted for totality, giving a starting point of between nine and 12 and a half years’ imprisonment.
[35] Mr Edgar makes no submissions at this stage as to any aggravating or mitigating features personal to you, nor on the matter of a minimum period of imprisonment. He notes that further oral submissions in support would be made at the time of the any sentencing hearing.
Analysis
Setting a starting point
[36] I take a different position than counsel on the lead charge, which I consider to be the manufacture of 730 grams of methamphetamine. I propose to set a starting point for that offending and then apply uplifts to reflect the balance of the
20 Hall v R [2020] NZCA 183.
methamphetamine offending and the GBL offending. Furthermore, rather than adjust the global starting point for totality, I intend to adjust the uplift for the GBL offending.
[37] Turning now to the starting point on the methamphetamine charge. The guideline judgment for methamphetamine is Zhang v R.21 That case sets out five sentencing ‘bands’ for methamphetamine offending based on the quantity of methamphetamine involved.22 Band three encompasses quantities between 250 and 500 grams, and attracts a starting point of between six and 12 years’ imprisonment. Band four encompasses quantities between 500 grams and two kilograms, and attracts a starting point of between eight and 16 years’ imprisonment.
[38] On quantity alone, the offending in the present case falls at the lower end of band four. However, Zhang makes clear that where an offender fits within any particular band will also depend on the role the offender played.23 In your case, I am satisfied that you fulfil all the criteria of a ‘leading’ role in the methamphetamine offending. Whilst you were not the “cook”, you directed its manufacture, collection and supply. You also had substantial links to, and influence on, others in the chain, and an expectation of substantial financial gain.
[39] Taking these matters into account, I consider a starting point of 10 years, six months’ imprisonment is appropriate on the lead methamphetamine charge. I then propose to apply an uplift of 12 months’ imprisonment to reflect the balance of the methamphetamine charges, giving a total starting point of 11 years, six months’ imprisonment on this offending.
[40] Turning now to the GBL offending, I consider this to fall squarely within the second band as described by the Court of Appeal in R v Wallace:24
[31] Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing …
21 Above n 17.
22 At [125].
23 At [127].
24 Above n 15.
[41] Offending in this category attracts a starting point of between five and eight years’ imprisonment. The total quantity of GBL, at just over 110 litres, is less than half of that in Close, in which a starting point of eight years’ imprisonment was adopted.25 Furthermore, while frequent, the offending was not prolonged. It took place over a four-month period, compared to 15 months in Close. The fact that you played a leading role in the operation does not alter the scale of the offending itself.
[42] Although no two cases are the same, I consider the present facts to be more analogous with McKelvy and Palmer, in which starting points of six and seven years’ imprisonment were adopted respectively.26 McKelvy involved the importation of 81 litres of GBL on 10 separate occasions, while Palmer involved the importation of 125 litres through 170 consignments over several months. The current offending falls somewhere in between these two cases.
[43] I therefore propose to apply an uplift of six and a half years’ imprisonment to reflect the GBL offending, but I would adjust this to three years’ imprisonment for totality. This gives a global starting point on the methamphetamine and GBL offending of 14 years and six months’ imprisonment.
[44] I am satisfied that your culpability on the charges of receiving and importing MDMA are adequately reflected in this starting point, and do not require any further uplift.
Adjusting the starting point
[45] I must now adjust the starting point to reflect aggravating and mitigating factors personal to you.
[46] First, your criminal history. This is substantial, as the Crown submits. However, with the exception of the methamphetamine charge in 2014, your previous convictions are of a far less serious nature than the present charges. The majority resulted in non-custodial sentences. I therefore propose to apply a modest uplift of
25 Above n 16.
26 McKelvy v R [2018] NZCA 286; and R v Palmer, above n 19.
two months’ imprisonment to reflect this factor. That would lead to an amended global starting point of 14 years and eight months’ imprisonment.
[47] As to mitigating factors, the Crown has indicated that the full discount for guilty pleas remains available to you at this juncture. I would therefore discount the sentence by 25 per cent, or approximately three years and eight months’ imprisonment, if you accept this indication.
[48] There may be further mitigating factors in your favour on the basis of information that is before the Court at sentencing. However, you would not be sentenced to more than 11 years’ imprisonment.
[49] So that is the sentence indication I am giving you today. It will expire at 5:00 pm on Friday, 7 October 2022.
Woolford J
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