R v Manuel

[2012] NZHC 264

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-009-008952 [2012] NZHC 264

REGINA

v

RORY EDWARD MANUEL

Appearances: P Shamy and B Hawes for Crown

J Rapley for Prisoner

Judgment:      23 February 2012

SENTENCE OF HON JUSTICE FRENCH

[1]      Rory Edward Manuel, following pleas of guilty, you appear this afternoon for sentence on two counts:

i)        conspiring to supply methamphetamine;

ii)       unlawful possession of explosives.

Facts of the offending

[2]      Your  offending  came  to  light  as  the  result  of  a  police  operation  called Operation Granite.  Operation Granite was an investigation into what the police say was a large-scale drug manufacturing and distribution ring.

[3]      You were identified by police as part of the wholesale distribution network, receiving methamphetamine from another person and on-selling quantities of it to

R V MANUEL HC CHCH CRI-2010-009-008952 [23 February 2012]

dealers who in turn would sell the drugs to members of the public.  You are said to have taken orders via cellphone, delivered the drugs and uplifted the money.

[4]      According to the police, your offending spanned the entire period of their investigation and involved at least 35 grams of methamphetamine.

[5]      Mr   Rapley,   your   lawyer,   however,   argues   that   this   is   based   on   a misinterpretation of the text communications.   Your instructions are that you only started sending texts about the sale of drugs on 15 May 2010, which is at least a month later than the police say.  Further, your instructions are that you initially were purchasing the methamphetamine socially for yourself and friends, and that it was not until 6 June 2010, which is near the end of the police investigation, that you decided to venture into a more significant deal, which did not proceed as planned.  It was on 6 June 2010 that you obtained 14 grams of methamphetamine and lost 10 of them.    That, you say, was the first time you ventured into supplying methamphetamine at that level.  Prior to that you were obtaining smaller quantities, such as points.

[6]      Despite this dispute on the facts, counsel are agreed that a contested facts hearing is not necessary because ultimately it does not make a significant difference to the outcome.

[7]      When a search warrant was executed at your address, police discovered four rounds of ammunition.  Your explanation was that another member of the ring had left this ammunition in the flat where you were living.  No firearm was found.

Pre-sentence report

[8]      I have read the pre-sentence report.  It tells me that you are 28 years of age, a man who had a tragic childhood, who sadly has been offending since his early teens and who has spent much of his adult life in prison.  You are described as being at risk of becoming institutionalised.

[9]      Your previous convictions include serious violence, escaping lawful custody, aggravated robbery, and property and dishonesty offences.   The only drug-related offending is a conviction for possession of a cannabis plant.

[10]     The report says that you have a history of problematic substance abuse and that previous programmes designed to try and solve this have not succeeded.

[11]     On a more positive note, Mr Rapley has provided me with a number of references.  It is clear to me from these letters that you have many excellent qualities and that you enjoy a great deal of support from people who know you and who care about you.  I have also read a letter that you yourself have written.  It is a good letter and it suggests that there is hope.

Sentencing analysis

[12]     I turn now to explain the sentencing decisions I have to make today.

[13]     First and foremost I must apply what are called the purposes and principles of sentencing that are set out in the Sentencing Act 2002.

[14]     As regards the purposes of sentencing, in this case of particular importance is the purpose of condemning your offending on behalf of the community and the need to deter, put off, other people and you from doing this sort of thing. Methamphetamine quite simply is a scourge in our community and inflicts misery on people who use it.

[15]    As regards the principles of sentencing, the key principles of particular relevance in this case are the need to consider the seriousness of the offending, including your blameworthiness, the need to be consistent with what other Judges have decided in similar cases and to impose the least restrictive outcome appropriate in the circumstances.

[16]     In applying those principles and purposes, I am required to follow what is called a two-stage approach.

[17]     In the first stage I have to fix what you heard the lawyers call the starting point.   The phrase “starting point” simply means the sentence which reflects the culpability or blameworthiness of your offending.  The second stage is that, having fixed the starting point, I then look to see whether your personal circumstances warrant any adjustment upwards or downwards to that starting point.

[18]     Turning then to the first stage, fixing the starting point.

[19]     In  determining a starting point  for offences  involving  methamphetamine, there is a guideline decision from the Court of Appeal called Fatu.[1]   It sets out four bands of offending that are based on the amounts of methamphetamine involved.

[1] R v Fatu [2006] 2 NZLR 72.

[20]     As I have said, there is a dispute about the amounts, but even on your version of events, in my view it does take you into band 2, which is three to nine years’ imprisonment.

[21]     Having regard to the level of commerciality and your role in this network, I consider that if you were being sentenced on a supply charge, a starting point in the vicinity of four years’ imprisonment would have been appropriate.

[22]     Conspiring to supply has a lesser maximum penalty than supplying and so you are entitled to a discount for the fact that this is a conspiracy count.  However, as the Crown points out, the reduction must be limited because the conspiracy had obviously got well beyond the planning stage and had actually been completed.   I consider that you are entitled to a reduction of 10 per cent on account of the fact that this is a conspiring charge.

[23]     So that is the starting point.

[24]     Turning  then  to  the  second  stage,  and  that  is  factors  relating  to  you personally.

[25]     Unfortunately  there  is  a  significant  aggravating  factor  relating  to  you personally, and that is that you were on parole at the time of committing these offences.

[26]     On account of that fact, I consider an uplift of between three and five months is warranted.   I do, however, agree with counsel that there should be no uplift on account of your record, given that this is the first conviction for serious drug dealing.

[27]     As regards mitigating factors relating to you personally, there is a significant factor and that is your guilty plea.

[28]     Although the guilty plea was entered post-committal, Mr Rapley submits that this was the first reasonable opportunity because of the length of time it took to read through the file and work out the case against you.  It is a big case, with voluminous disclosure.

[29]     Mr Rapley also points out to me that you are the first Operation Granite accused to plead guilty, which he says in itself is noteworthy and courageous.

[30]     Having regard to all the circumstances, I agree that you should be allowed the full discount of 25 per cent.

[31]     By  my  calculations,  that  does  bring  me  to  a  sentence  of  a  term  of imprisonment of three years, which your counsel accepted would be an appropriate sentence, and I obviously agree with that submission.

[32]     Rory Edward  Manuel,  you  are  convicted  of  the  charge  of  conspiring  to supply methamphetamine and sentenced to a term of imprisonment of three years. On the count of unlawful possession of ammunition you are convicted and sentenced to a term of imprisonment of two months which is to be concurrent on the three years.

Solicitors:

Crown Solicitor’s Office, Christchurch

J Rapley, Christchurch