R v Marfell
[2022] NZHC 2227
•2 September 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-6031
[2022] NZHC 2227
THE QUEEN v
SHARON MARFELL
Hearing: 2 September 2022 Appearances:
J N Hamilton and K Whyte for Crown R Laybourn for Defendant
Sentence:
2 September 2022
SENTENCING REMARKS OF LANG J
Solicitors:
Hamilton Legal, Hamilton
R v MARFELL [2022] NZHC 2227 [2 September 2022]
[1] Ms Marfell, you appear for sentence having pleaded guilty to charges of supplying methamphetamine (x 7),1 conspiring to supply methamphetamine,2 possession of methamphetamine for supply,3 being in possession of, and supplying, the Class B controlled drug GBL4 and participating in an organised criminal group.5
[2] The most serious charges are those relating to the supply and possession for supply of methamphetamine. Those charges carry a maximum sentence of life imprisonment. The remaining charges carry maximum sentences of between ten and 14 years imprisonment.
Background
[3] You were arrested following the termination of a police investigation known as Operation Oakville. This focused on the supply of Class A and Class B controlled drugs in the Waikato, Auckland and Wellington regions. During the operation, which lasted for approximately 12 months, the police obtained surveillance device warrants that enabled them to intercept the communications of several individuals. One of these was your then partner, Mr Mark Griffiths. He was identified as leading the drug distribution network. The police discovered you were involved with him in obtaining and supervising the supply of large quantities of Class A and Class B drugs.
[4] You assisted Mr Griffiths in a variety of ways. You travelled with him on several occasions to obtain drugs and you then supplied those drugs to others. You sold it both to members of the organisation for the purpose of on-sale and to your own customers in amounts of one gram or more. You offered methamphetamine to these persons for the sum of $400 per gram. You also played a role in the collection of debts owing by persons who had purchased drugs from you and Mr Griffiths.
[5] Below you in the organisation were Ms Keyte, Mr Iakopo and Mr Cole. They reported to you and would obtain supplies of methamphetamine from you. Ms Keyte
1 Misuse of Drugs Act 1975, s 6(1)(c); and Crimes Act 1961, s 66(1). Maximum penalty: life imprisonment.
2 Misuse of Drugs Act 1975, s 6(2A)(a). Maximum penalty: 14 years imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty: life imprisonment.
4 Crimes Act 1961, s 98A. Maximum penalty: 10 years imprisonment.
5 Misuse of Drugs Act 1975, s 6(1)(c); and Crimes Act 1961, s 66(1). Maximum penalty: 14 years imprisonment.
and Mr Iakopo also obtained methamphetamine from you for their personal consumption.
[6] In addition, the group was involved in the importation of both methamphetamine and GBL. As part of this activity you became involved in efforts that were made to uplift a package Mr Griffiths had imported but which the authorities had intercepted. This contained just over two kilograms of methamphetamine. You made significant efforts to recover this package, and you also recruited others to assist you in your task. In all, the efforts to recover the package lasted for approximately a week.
[7] You and Mr Griffiths were arrested at the termination of the operation on 12 November 2020. On this day. the police observed the two of you driving back to Hamilton from Auckland, where you had acquired a quantity of methamphetamine. This resulted in a police pursuit after you refused to stop your vehicle and endeavoured to escape. Police officers involved in the pursuit saw a cardboard box being thrown out of your vehicle. This was later found to contain just over 124 grams of methamphetamine.
[8] When the police searched your home address, they found eight one-litre bottles filled with the Class B controlled drug GBL and two further five litre bottles that contained residual quantities of the same drug. The police were unable to ascertain the precise quantity of methamphetamine that you had supplied to others. This is because the communications were careful not to specify amounts. However, the police were able to identify that you had supplied at least 540 grams of methamphetamine between 1 October 2019 and 11 November 2020. As I have said, this is undoubtedly less than you actually supplied because in many of the intercepted communications, the quantity being supplied was not discussed.
[9] The charge of being in possession of methamphetamine for supply relates to the box containing 124 grams of methamphetamine that the police saw being thrown from your vehicle on the day of your arrest.
[10] The conspiracy charge relates to your advice to another member of the group that you could supply as much methamphetamine as was required for the sum of $400 per gram. You also supplied and offered to supply at least 40 millilitres of GBL on five separate occasions. You told one of your co-defendants that you would not be prepared to supply less than one litre at a time. As previously mentioned, you were ultimately found in possession of approximately eight litres of GBL.
[11] The charge of participating in an organised criminal group reflects your attempts to retrieve the package containing two kilograms of methamphetamine that Mr Griffiths had imported but which the authorities intercepted.
[12] As part of the police investigation the police carried out an analysis of financial records relating to both yourself and Mr Griffiths. This disclosed that between January 2017 and November 2020 you both had access to an unknown source of income totalling approximately $713,000.
Starting point
The methamphetamine charges
[13] I take the lead, or most serious, charges to be those relating to the supply and possession for supply of methamphetamine. Starting points for this type of offending are governed by the judgment of the Court of Appeal in Zhang v R.6 In that case the Court identified five bands within which methamphetamine offending will occur. Counsel agree that your offending falls within Band 4, which relates to offending involving between 500 grams and two kilograms of methamphetamine. A starting point between eight and 16 years imprisonment will be appropriate for offending within this band.7
[14] Importantly, however, the Court of Appeal also stressed that it is necessary for sentencing courts to identify the role played by offenders who are to be sentenced for methamphetamine-related offending. It divided these into three categories: leading,
6 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
7 At [125].
significant and lesser.8 The nature of the offender’s role will determine where the appropriate starting point will lie. Both counsel agree that you played a leading role in this particular drug dealing network given your close interaction with both Mr Griffiths and other members of the group. You were very close to the source of the methamphetamine and you shared in substantial financial benefits produced by the operation. The Crown says your offending justifies a global starting point of around 11 years imprisonment, whilst your counsel submits that a starting point on the methamphetamine charges of nine to ten years imprisonment is more appropriate.
[15] In common with counsel, I am of the view that you can properly be described as one of the leading figures in this particular drug distribution network. You were only slightly less senior to Mr Griffiths and you played a full part in the activities of the group. You also stood to gain financially from its activities. I am therefore satisfied that the appropriate starting point is one of eleven years imprisonment on the methamphetamine-related charges.
Uplift for other offending
[16] It is also necessary to apply an uplift to reflect the remaining charges. Of these, the most serious are the charges relating to the possession and supply of the Class B controlled drug GBL and the efforts you made to retrieve the package containing two kilograms of methamphetamine. Both of these reflect significant aspects of the drug distribution network and considerable quantities were involved. The Crown suggests a global uplift of three years imprisonment for the remaining charges, whilst Mr Laybourn suggests an uplift of no more than 18 months.
[17] On a standalone basis the GBL charges would easily justify a starting point of between three and four years imprisonment. Taking that factor into account, and also your attempts to retrieve the package containing two kilograms of methamphetamine, I consider an uplift of two and a half years imprisonment is appropriate to reflect to reflect the remaining charges.
8 At [126].
[18] This means I have selected an overall starting point of 13 and a half years imprisonment on all charges.
Aggravating factors
[19] You have two previous convictions for drug-related offending. However, these are much less serious than the present charges. They may also be regarded as historic given that they were sustained in 2003 and 2011. I therefore apply no uplift to reflect this factor.
Mitigating factors
Guilty pleas
[20] The charges were laid upon your arrest in November 2020, and you did not enter guilty pleas until 5 July 2022, approximately three months before your trial was due to commence. It therefore cannot be said that you entered your pleas at the earliest opportunity. However, your counsel did not receive the Crown Charge Notice until late 2021. I accept it was unrealistic to expect you to enter pleas prior to that point.
[21] As the Crown points out, Mr Iakapo entered guilty pleas in May 2022 and received a discount of 15 per cent for doing so. I accept the Crown’s submission that you should not receive a greater discount than him as your counsel suggests. I am prepared to allow a discount of two years, or just under 15 per cent, to reflect guilty pleas. This reduces the sentence to one of 11 years six months imprisonment.
Addiction, rehabilitation and remorse
[22] I have the benefit not only of a pre-sentence report but also a comprehensive report tendered under s 27 of the Sentencing Act 2002. This sets out your background in considerable detail and enables me to gain a good grasp of the factors that drove your offending, as well as your recent efforts to rehabilitate yourself.
[23] You had an extremely troubled childhood, dominated by the fact that you and your mother had a very poor relationship. This resulted in emotional deprivation for
you. It also involved you being the victim of varying forms of abuse not only from your mother but also at the hands of other members of your wider family.
[24] Your unstable domestic environment had a marked effect on your ability to attend and achieve at school, which you ended up leaving at a young age. You then became involved in drug use and suffered financial hardship as a result.
[25] You became addicted to drugs many years ago. Your addiction has dominated your life for much of that time. Another significant, and associated, factor is your relationship of over 20 years duration with Mr Griffiths. He has been a member of the Mongrel Mob since he was 12 years of age and is a now senior member of the gang. He has spoken to the writer of the s 27 report and accepts responsibility not only for the fact that you became addicted to methamphetamine but also that he led you directly into the present offending. He says your only interest was to obtain a steady source of methamphetamine to feed your addiction.
[26] In 2018 you suffered a highly traumatic event when you were the victim of a violent home invasion that apparently was directed towards Mr Griffiths, who was not present. This resulted in your daughter and nephew being shot, and the death of your son-in-law. At this time you were trying to make an honest living and were operating a cleaning company. You say you struggled to cope with the aftermath of this event and your life spiralled out of control. You say that this incident, coupled with your relationship with Mr Griffiths and the resulting ready access to methamphetamine, precipitated the present offending.
[27] The Crown takes issue with this and points to the fact that your acquisition of an unknown source of income clearly started before this. However, I am satisfied that the incident had a dramatic effect on you. I have no doubt that your drug use increased significantly after this event. This, in turn, is likely to have been a major driver of the present offending.
[28] You have now been sober for more than a year, and have attended two intensive courses. The Crown has co-operated in this process by allowing your EM bail conditions to be relaxed so you could travel out of town for rehabilitative purposes.
You have also expressed remorse for the offending and say you are determined to remain drug-free in the future. You also say your aim will be to assist other women who find themselves in a similar position to you. This will obviously not be an easy path, Ms Marfell, but at least you are now on the journey to recovery and rehabilitation.
[29] It is never enough to say that, but for addiction and financial hardship, an offender would not have become involved in crime. Rather, the question is whether any causal connection between an offender’s background and the offending in question is sufficient to warrant a discount.9
[30] In the present case your offending was on a large scale and therefore difficult to excuse. However, I am satisfied the causal connection between the factors identified in the s 27 report and the present offending is sufficient to merit a significant allowance. It is also necessary to reflect the remorse you have expressed and the efforts you have made towards rehabilitation.
[31] I propose to provide a discount of four years, or around 30 per cent, to reflect the factors identified in the s 27 report. These include your unfortunate background, your resulting drug addiction, your remorse and your efforts to rehabilitate yourself. I have therefore identified mitigating factors that justify discounts totalling 45 per cent, or six years. This reduces the sentence to one of seven years and six months imprisonment.
[32] From that figure I propose to apply a further discount to reflect the fact that you were on restrictive EM bail conditions for a period of approximately 18 months whilst on remand. You did not breach the terms of your bail at any stage. The Court has the ability to provide a discount for this factor, although it is not on a month for month basis. I propose to provide a discount of six months to reflect this factor.
[33]It follows that the end sentence is one of imprisonment for seven years.
9 Pomale v R [2022] NZCA 343 at [25].
Sentence
[34] On the charges of supplying and being in possession of methamphetamine for supply you are sentenced to imprisonment for seven years.
[35] On the charges of supplying and being in possession of GBL for supply you are sentenced to three years imprisonment.
[36] On the charge of conspiring to supply methamphetamine you are sentenced to 12 months imprisonment.
[37] On the charge of participating in an organised criminal group you are sentenced to 12 months imprisonment.
[38] All sentences are to be served concurrently. This means you will serve an effective sentence of seven years imprisonment.
[39]Stand down.
Lang J