R v Magele HC Auckland CRI 2006-092-008865

[2007] NZHC 1790

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-008865

THE QUEEN

v

LALA MAGELE

Prisoner

Hearing:         5 June 2007

Appearances: K E Latimer for Crown

M J Faleauto for Prisoner

Judgment:      5 June 2007

SENTENCE OF KEANE J

Solicitors:

Meredith Connell, Office of the Crown Solicitor, Auckland

Mr M J Faleauto, Barrister, Auckland

R V MAGELE HC AK CRI 2006-092-008865  5 June 2007

[1]      Lala Magele you appear for sentence having pleaded on arraignment to four categories of offence:

(i)       three    representative    offences    of    supply    of    drugs,    Class    A

methamphetamine, Class B MDMA, Class C cannabis, between 21

June 2005 and 21 June 2006;

(ii)       three offences of possession for supply of those classes of drug on 21

June 2006;

(iii)      three offences of possession of firearms on 21 June 2006, a double- barrelled shotgun, a sawn-off shotgun, and a .22 rifle, also, a fourth related offence, possession of assorted ammunition; and

(iv)     receiving stolen property, television sets, stereos, assorted electrical items, and musical equipment, again on 21 June 2006.

Context

[2]      On arraignment you accepted as correct a narrative of fact, on which the Crown relies, which confirms that on 21 June 2006 the police executed at  your Papatoetoe home a search warrant under the Misuse of Drugs Act and discovered the items establishing your offences.

[3]      Entering  the  property,  they  discovered  it  was  monitored  by  surveillance cameras at the entrance and driveway and that you had a loaded doubled-barrel shotgun in the room through which entry was gained. Also a sawn-off shotgun, also loaded, in the dining room where you were and a .22 rifle.  There were in excess of

100 shotgun cartridges and two boxes of 100 .22 bullets.

[4]      Widening their search, the police discovered in a belt  bag that  you were wearing ten ecstasy pills as well as a point bag of methamphetamine. With those drugs was $320 in cash. They then found a deal bag containing 8 grams of cannabis

and a rock of crystal methamphetamine.  In another room there was a large quantity of property.  There were TVs, stereos, electrical musical equipment, digital cameras and other such items that the Police valued conservatively then at $20,000.

[5]      When you were spoken to you were co-operative. You freely admitted in a video taped statement that you had been actively involved in drug dealing and that you were making a profit of some $4,000 per week. You accepted that the firearms and the ammunition were yours and you said that you had them for your protection. That property, you said, you had bought off those whom you supplied, or sometimes in exchange for drugs.

[6]      You have since disputed that you admitted to taking a profit each week of

$4,000 from drug sales. And that could have called for a disputed facts hearing under s 24 of the  Sentencing  Act  2002.  Counsel have  reviewed  your  video  statement, however, and you, yourself, have confirmed to your own counsel the accord they have reached as to the true position.

[7]      Though your supply offences are alleged in the informations to which you have pleaded to have extended over the 12 months ending on the day of search, the Crown now accepts that it  is more properly six months, and you have in those months conceded what you sold and for what payment.

[8]      Each week, you accept, you sold for $1,000 one gram of methamphetamine, over six months 26 grams in all, receiving $26,000. You concede selling 25 MDMA ecstasy tablets weekly for $1,250 and a six monthly return of $32,500, and 10 tinnies a day for $1,400, receiving over six months $36,400.   Your weekly return, you concede, was $3,650.  Your six monthly return was $94,900.

Pre-sentence report

[9]      Your pre-sentence report confirms that you began dealing in drugs to finance what had become a burgeoning dependency on methamphetamine.   You had used cannabis three years before this present offending.    You began to use methamphetamine. That became too expensive and you turned to dealing.

[10]     As  your  report  confirms  also   you  have  some  previous  drug  related convictions and in the same category of drug, methamphetamine, but I should say, as I have said to your counsel, those offences are dwarfed by your present offending and I do not regard them as aggravating.

[11]     At the same time as this dealing you appear to have managed to hold down a job, but clearly as the Police discovered when the property was searched, dealing had become the central activity of your life.

[12]     You are considered to be at moderate risk of re-offending because you have disobeyed Court orders in the past and you have offended constantly enough to be concerning. However, as the report says as well, if you were able to cease your dependency your risk of re-offending would reduce.

Purposes of sentence

[13]     I must denounce your offending and the harm that it does to the community. I must hold you accountable for it.  I must impose on you a sentence that deters you and others from offending in this way.  Desirably, if I can, I must also to impose on you a sentence that assists you to rehabilitate yourself and to reintegrate into the community. But as is often said for this class of offending, particular offending of this order, a sentence of imprisonment is inevitable, and a sentence of some length.

Conclusion

[14]  Your lead offence for the purpose of sentence is the supply of methamphetamine, notionally over the 12 month period ending on 12 June 2006, but actually as the Crown accepts over the preceding six months; and that offence, it is common ground, seen in isolation falls within band 2, R v Fatu [2006] 2 NZLR 72, attracting a starting point between three to nine years imprisonment; and in the lower half of that band.

[15]     As the Crown says, however, and as your counsel accepts as well, to focus just on your methamphetamine offending would be unreal.  You were deriving larger revenue from the sale each week of MDMA and cannabis. That offending must be addressed as well and there are two ways to do that.

[16]     The Crown argues for a heightened starting point, taking into account also the revenue you obtained from receiving, of eight to nine years imprisonment.   Your own counsel first contended for a cumulative approach but ended with a starting point not dissimilar to that of the Crown.  Taking either approach the starting point for the lead offence lies, I consider, between eight to nine years imprisonment.

[17]     The result of that is that the other drug related offending and the receiving offences should attract concurrent sentences.  The possession of firearms stands in a different and aggravating category, as counsel for the Crown says.  That offending ought to attract a cumulative sentence because of the risk inherent to others.  The fact that there were two weapons loaded at the house at the time is of special concern.

[18]     Your counsel has supplied to me a letter from you in which you explain that you were found with weapons that belonged to another person, who at that time had attracted some notoriety in the area in which you live and had been a friend of yours when you were younger.  You were left, as it were, with the weapons and it was co- incidental that the Police searched the property while you had them.

[19]     How much weight I can give to that I am far from clear. The weapons were loaded, and that  suggests that  you yourself  found them of some value  and  that offence, having regard to R v Richardson (CA450/02, 25 March 2005) ought ordinarily I consider to attract a cumulative sentence with a starting point of two years.   The result is an overall starting point of 11 years.   As a matter of totality, however, I consider that would be too high. I intend therefore to sentence you on the following basis.

[20]     For the supply of methamphetamine over the six month period, heightened to take account of the related offending, I will take a starting point of eight years.  For the possession of firearms I will add one year.  That takes your potential sentence to

nine years imprisonment. For your plea and co-operation with the Police which was immediate, you will receive a credit of two years.  Your sentence, which will be your effective sentence, will be seven years imprisonment.

[21]     You will be sentenced concurrently for the supply of MDMA to four years imprisonment, for the receiving offences to three years imprisonment, for the supply of cannabis to two years imprisonment, and the possession for supply offences to 15 months imprisonment. No order for forfeiture is required. There will be an order for

destruction of the firearms and ammunition.

P.J. Keane J