R v Malu HC Auckland CRI-2010-055-1742
[2011] NZHC 1924
•29 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-055-1742
THE QUEEN
v
MAVAETANGI MALU
Hearing: 29 November 2011
Counsel: B Finn for Crown
M Mason for Prisoner
Judgment: 29 November 2011
SENTENCING REMARKS OF LANG J
R V MALU HC AK CRI-2010-055-1742 29 November 2011
[1] Mr Malu, you appear for sentence having pleaded guilty at a special callover on 1 September 2011 to charges of possessing and supplying substances and materials capable of being used to manufacture methamphetamine. The added ingredient of that charge was that you supplied, or possessed, those substances and materials with the intention that they would be used for that purpose. The maximum sentence on each of the possession charges is five years imprisonment, whilst the maximum sentence on each of the supply charges is seven years imprisonment.
[2] In addition, you have pleaded guilty to a single charge of supplying eight grams of methamphetamine. That charge, as you know, carries a maximum sentence of life imprisonment.
Background
[3] All of the charges arise as a result of a police covert surveillance operation targeted at persons other than you. You came to notice during the course of that operation when police intercepted text message traffic from your cellphone indicating that you had an involvement in both the supply of precursor materials and substances and, also, the actual supply of methamphetamine.
[4] Originally, you were charged with being in possession of methamphetamine for supply, and the Crown case appeared to be that you were supplying methamphetamine as part of the larger group of more serious offenders. It has now been agreed, however, that you were a low level supplier of methamphetamine, generally supplying methamphetamine to your own customers in gram and half gram amounts.
[5] The charges relating to the possession and supply of precursor substances and materials are more complicated. They flow from the fact that you were in possession of, and supplied, 14 half sets of pseudoephedrine-based tablets. You also supplied
200 grams of pseudoephedrine tablets to one of the principal players in the operation that the police targeted, Mr Wayne Van De Ven. Furthermore, you supplied two kilograms of iodine to Mr Van De Ven, and you were in possession of commercial quantities of iodine, red phosphorous and hypophosphorous acid.
[6] As you are no doubt aware, all of those precursor substances and materials are valuable commodities, and they are very much in demand by persons who manufacture methamphetamine. They cannot manufacture methamphetamine without those materials and, as I have said, they are difficult to find and expensive to buy. Those like you who supply such products therefore form an essential link in the chain that leads to the manufacture of methamphetamine.
Sentencing Act 2002
[7] In any case involving methamphetamine, the principles of deterrence and denunciation are to the forefront. As I am sure you are aware, methamphetamine is a scourge in our society. The only way that the courts can hope to play a part in eradicating it is by imposing stern sentences on those who are caught after having an involvement in the trade. This means that sentences of imprisonment are routinely imposed when people appear on methamphetamine-related charges.
[8] The important factor here is to select a sentence that is broadly consistent with that imposed in similar cases, and a sentence that reflects the totality of your diverse range of offending. I accept the Crown’s submission, however, that in broad terms all of your offending is interconnected. You obtained methamphetamine in part for payment for the provision of the quantities of precursor substances and materials that you supplied. You then, I take it, on-supplied some of that methamphetamine to others in a commercial sense.
Starting point
[9] The starting point in relation to the supply of methamphetamine is governed by a decision of the Court of Appeal called R v Fatu.[1] In that case the Court of Appeal identified bands of offending for those who are involved in the supply of methamphetamine. The first band involves the supply of up to five grams of methamphetamine, and carries a starting point of two to four years imprisonment.
[1] R v Fatu [2006] 2 NZLR 72.
The second band involves the supply of between five and 250 grams of
methamphetamine. This carries a starting point of between three and nine years imprisonment. Given the fact that you supplied eight grams of methamphetamine, you obviously fall towards the bottom of the second band and, as a consequence, standing alone, that charge would ordinarily carry a starting point of three years imprisonment.
[10] The starting point to be applied in relation to the remaining charges is to be derived very much from a consideration of other cases. The Crown and your counsel have supplied me with a number of authorities.[2] These show that starting points of between two and three years imprisonment are generally selected when an offender is found guilty of, or pleads guilty to, a charge involving the supply or possession of precursor materials and substances.
[2] R v McLean CA102/05, 18 August 2005; R v Kinney HC Auckland CRI-2004-004-6987, 18
November 2005; R v Rayner HC Blenheim CRI-2010-006-983, 15 November 2010; R v Reeves HC Auckland CRI-2004-044-6987, 18 November 2005.
[11] Of particular importance here is the diverse nature of the substances and materials you had and supplied. You had access to a broad range of these types of materials and substances. The quantities that you were able to source and pass on to others are also of significance. These were commercial quantities of sought after substances and materials. Having regard to that fact, I consider that a starting point on the charges relating to precursor substances and materials would ordinarily be around three years imprisonment. This means that an end starting point of six years imprisonment is indicated.
[12] It is important, however, that I apply principles of totality so that I do not impose a sentence or select a starting point that is too long having regard to your overall culpability. Standing back and looking at your offending overall, I am satisfied that an end starting point of five years imprisonment is warranted. That would apply to all charges, because I see the supply charge as being broadly similar
in culpability to the remaining charges.
Aggravating factors
[13] You have some previous convictions, including some previous drug-related offending, but I do not think that they are of such significance that they warrant an uplift from the starting point that I have selected.
Mitigating factors
[14] The only issue that I need to determine is the extent to which I should reduce the starting point I have selected to reflect mitigating factors personal to you.
[15] You appear for sentence at the age of 41 years. You have worked in the hospitality industry for many years. The probation report records that drug use in that environment is prolific, and your employment leads you into contact with many people who are involved in the consumption, supply and manufacture of drugs, including methamphetamine. You say, and I accept, that for the most part you were driven to supply methamphetamine and the precursor materials and substances out of a desire to please other people rather than for commercial gain. That may be so, but in doing so you entered into the commercial world of both drug dealing and drug manufacture.
[16] I accept, however, that I should give you credit for two things. First, the probation report outlines some positive aspects for you. You say that you now recognise the error of your ways, and you are determined to remain drug free. During the 18 months that you have been in custody so far you have been abstinent from methamphetamine and you have produced certificates to prove that that is the case, in recent times at least. You have also undertaken such courses as have been available to you in prison to address the issues that you have.
[17] As you are no doubt aware, I am precluded from placing great store on personal qualities because in drug offending as serious as this, personal aspects of the offender’s life are very much to the side. However, the Crown accepts I am entitled to give a small discount to reflect those mitigating factors, and I propose to apply a discount of five per cent to reflect them.
[18] You are also entitled to a discount to reflect your guilty pleas. They came relatively late in the piece, but the Crown accepts that the landscape has changed so far as the seriousness of the charges that you face. You originally faced more serious charges, and the charges to which you ultimately pleaded guilty are of lesser seriousness. In addition, there have been ongoing negotiations between the Crown regarding factual issues.
[19] In those circumstances, the Crown accepts that a discount of 20 per cent should be applied. I am not prepared to go beyond that figure, because the text message traffic makes it clear that you were involved in offending of the type to which you pleaded guilty. You would inevitably have been convicted on those charges.
[20] This means that I apply an end discount of 25 per cent, or one year three months, to reflect mitigating factors.
Sentence
[21] On the charge of supplying methamphetamine you are sentenced to three years nine months imprisonment.
[22] On the charges of supplying precursor substances and materials you are sentenced to two years imprisonment.
[23] On the charge of being in possession of precursor materials and substances you are sentenced to one year eight months imprisonment.
[24] All of those sentences are concurrent. This means that the effective sentence that you will serve is one of three years nine months imprisonment.
[25] Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
M Mason, Auckland
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