R v Martel
[2017] NZHC 1878
•8 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-009-002757 [2017] NZHC 1878
THE QUEEN
v
RODNEY GEORGE MARTEL RACHEL ROSE VINCENT REGHARDT ROUX
ANTHONY RICHARD DAWSON
Hearing: 8 August 2017 Appearances:
T McGuigan for Crown
R Chambers for R G Martel
L D Burns for R R Vincent
M A Corlett QC and J C Adams for R Roux
A N D Garrett for A R DawsonJudgment:
8 August 2017
SENTENCING NOTES OF PALMER J
Solicitor/Counsel:
Meredith Connell, Auckland
R P Chambers, Barrister, Auckland
L D Burns, Barrister, AucklandM A Corlett QC, Auckland
J C Adams, Barrister, Auckland
A N D Garrett, Barrister, Auckland
R v MARTEL & ORS [2017] NZHC 1878 [8 August 2017]
[1] Mr Rodney Martel, Ms Rachel Vincent, Mr Reghardt Roux and Mr Anthony Dawson, you have pleaded guilty to, and been convicted of drug related offences under the Misuse of Drugs Act 1975:
(a) Mr Martel, you have pleaded guilty to representative charges of importing methamphetamine, GBL and MDMA (or ecstasy) and a charge of importing cocaine.
(b)Ms Vincent, you have pleaded guilty to representative charges of importing methamphetamine, GBL and MDMA, a charge of possession of methamphetamine for supply and a charge of importing cocaine.
(c) Mr Roux, you have pleaded guilty to a representative charge of importing methamphetamine and charges of importing cocaine and GBL.
(d)Mr Dawson, you have pleaded guilty to importing methamphetamine and GBL.
[2] The methamphetamine and cocaine offences, relating to class A drugs, are subject to a maximum penalty of life imprisonment. The others, as class B drugs, are subject to a maximum of 14 years’ imprisonment. As the potential penalties indicate, these are serious offences. I now have to decide what sentences should be imposed.
[3] I should say, at the outset that those dealing in drugs are causing human misery in our communities. Methamphetamine, in particular, was reclassified as a class A drug in New Zealand in 2003 to reflect its very high risk of harm. The Health Select Committee of the House of Representatives noted that methamphetamine “appeals to vulnerable populations, has a high physical and psychological dependence potential, and can lead to long-term adverse physical and
psychological effects.”1 You may recognise some those characteristics.
Methamphetamine had been linked to deaths and poses significant risk to public
1 Health Committee Misuse of Drugs (Changes to Controlled Drugs) Order 2003 (April 2003)
at 3.
health. Its classification was said by the Committee to “serve as a signal that methamphetamine is one of the most dangerous of drugs”.
Facts
[4] In February 2016 Customs received information through Crimestoppers naming Mr Martel and Ms Vincent as importing meth and GBL. Mr Dawson, Mr Roux and Mr Bell, a co-defendant who has already been sentenced, were also identified in the course of the investigation.
[5] From 9 June 2015 to 20 April 2016 Customs intercepted a total of
37 packages sent to multiple addresses in Auckland, Christchurch and Canterbury, containing the controlled drugs in relation to which you have been charged.
(a) Mr Martel was involved in the importation of approximately 5.683 kg of meth, 7.7 litres of GBL, 31 grams of cocaine and 1,986 tablets of MDMA and 31 grams of MDMA powder in 37 packages over a ten month period. The Crown characterises you, Mr Martel, as the “mastermind” at the centre of the offending. A fraudulently obtained passport in another name, a rifle, drug dealing equipment and cash were found when a search warrant was executed on your hotel room at the Amora Hotel in Grey’s Avenue, Auckland.
(b)Ms Vincent was involved in the importation of approximately 3.36 kg of meth, 5.8 litres of GBL, 31 grams of cocaine and 1,986 tablets of MDMA powder in 24 packages over a three month period. The Crown characterises you, Ms Vincent, as a senior manager involved in organising the operation. Methamphetamine, pills, scales, 14 cell phones, 40 SIM cards, records of 18 courier packages and names matching those packages intercepted were found when a search warrant was executed on your home in Belfast, Christchurch.
(c) Mr Roux was involved in the importation of 1.324 kg of methamphetamine, 1.8 litres of GBL and 31 grams of cocaine in five packages across two weeks. The Crown characterises you, Mr Roux,
as an organiser further down the chain, responsible for organising addresses and collecting drugs.
(d) Mr Dawson was involved in the importation of approximately
114 grams of methamphetamine and 988 tablets of MDMA imported in four packages. The Crown characterises you, Mr Dawson, as a “catcher” who collected packages to pass them on to those higher up the chain. When police executed a search warrant at your home you said “you’re here about the meth”. They found meth pipes, used point bags and scales.
Reports
Pre sentence report
[6] I have received pre-sentence reports from the Department of Corrections about each of you.
[7] Mr Martel, who is 40, is assessed as having a high risk of re-offending and harm to others based on his current and past offending and his history of addiction to methamphetamine since the age of 21. That risk is considered likely to reduce if you, Mr Martel, engage in the Drug Treatment Unit and a departmental rehabilitative programme. Corrections assessed you as having been drug free since going to prison and as expressing remorse. Mr Chambers advises that you accept the Corrections report. Corrections recommend imprisonment as the only logical sentence and says you are aware of this.
[8] Ms Vincent, who is 34, is assessed as being at medium risk of re-offending when her serious and long-term drug addiction which started at the age of 17 and the pattern of escalating offending are taken into account. You are said by Corrections to have demonstrated some insight into your offending, Ms Vincent, to have expressed remorse and are assessed as appearing motivated to make a change in your life. Corrections recommend imprisonment and says you are aware this is likely.
[9] Mr Roux, who is 32, is assessed as having a moderate likelihood of re-offending and harm to others, based on his history of offending, his criminal associates and use of illicit drugs. You are said, Mr Roux, to wish to use your current circumstances to address your offending-related factors and drug dependency. Corrections recommend imprisonment to assist you to do that and to hold you to account.
[10] Mr Anthony Dawson, who is 29, is assessed as having a low risk of re-offending but a medium risk of harm to others based on previous charges of accessory after the fact to murder, wilful damage and disorderly behaviour. You are assessed, Mr Dawson, as showing deep regret over your actions and expressing a commitment to making positive changes to your lifestyle by giving up drugs and avoiding past associates while on bail. The main offending-related factor is your use of drugs. Corrections recommend a sentence of home detention, if possible. You have been unemployed but have been offered work by a previous employer, starting in November.
Approach to sentencing
[11] In sentencing you all I must first set a starting point based on the offending here compared with previous similar cases.2 Second, I must consider each of your personal circumstances and adjust the starting point based on any aggravating or mitigating factors from them. Third, I must consider a discount for pleading guilty.
[12] Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002. In particular I have regard to the purposes of:
(a) holding you accountable for the harm done to the community;
(b)promoting in you a sense of responsibility for, and acknowledgement of that harm;
(c) denouncing your conduct and deterring you and others from committing similar offences;
(d) protecting the community from you; and
(e) promoting your rehabilitation and reintegration.
[13] I take into account the gravity, culpability and seriousness of the offending and the general desirability of consistency in dealing with similar offenders committing similar offences in similar circumstances. Along with the other factors required, I take into account the effect of the offending on the community, the requirement to impose the least restrictive outcome in the circumstances and your personal backgrounds.
Starting point
[14] I agree with the Crown’s proposed approach of taking the importation of methamphetamine charges as the lead charges, subsuming the cocaine offending into that, and making an uplift for the class B charges.
[15]
metha
The mphet
(a)
guideline judgment of R v Fatu identifies different bands of amine importation, based on the amount imported:3
Band one, for low-level importing of less than 5 grams, requires two
years, six months’ to four years, six months’ imprisonment. (b)
Band two, for importing commercial quantities of 5 grams to
250 grams, requires three years, six months’ to four years, six months’
imprisonment.
(c)
Band three, for importing large commercial quantities of 250 grams to
500 grams, requires nine years’ to 13 years’ imprisonment.
(d) Band four, for importing very large commercial quantities of
500 grams or more, requires 12 years’ to life imprisonment.
[16] Where an offender is placed in a band also depends on your role in the operation with distinctions made between the mastermind at the highest level, a crucial player at an in-between level, and a mere courier at the lower end of the scale. 4
[17] I note that Mr Bell, a co-defendant who has already been sentenced in relation to this offending, accepted his role in the importation of 323 grams of methamphetamine and 1.9 litres of GBL. His involvement was as a receiver and spanned some weeks. Duffy J took a starting point of nine years’ imprisonment, at the bottom of band 3.5
[18] Mr McGuigan, for the Crown, submits Mr Martel’s offending is comparable to, but exceeds that in the case of Atta.6 He submits the appropriate starting point for the methamphetamine importation is around 18 years which should be uplifted by two to two and a half years’ imprisonment for the other drugs. So the Crown submits an appropriate global starting point for Mr Martel is 20 to 20 and a half years’ imprisonment. Although he disputes the mastermind label Mr Chambers, in his written submissions for Mr Martel, accepts a starting point of 20 years is likely. Mr Chambers notes judicial authority for the uncertain beneficial effects of
incarceration with which I agree, but as he acknowledges the legislation that binds me is clear. Having regard to the very large quantities of drugs involved and Mr Martel’s central role as pivotal, I set the starting point for Mr Martel at 20 years’ imprisonment.
[19] The Crown submits the starting point for Ms Vincent for the methamphetamine importation should be around 16 years’ imprisonment with an uplift of two to two and a half years for the other drugs. That gives a global starting point of between 18 and 18 and a half years’ imprisonment. Mr Burns, for
Ms Vincent, submits it should be between 16 to 16 and a half years, based on the
4 R v Wickremasinghe HC Auckland T013408, 28 March 2003.
5 R v Bell [2017] NZHC 1818.
6 R v Atta [2016] NZHC 2478.
totality of the offending. I do not entirely agree either the Crown or Mr Burns. The quantities of methamphetamine imported were, again, very large but Ms Vincent’s role was not as central or as significant as Mr Martel’s, as the Crown acknowledges. I consider the starting point for her methamphetamine charges should be 15 years, with an uplift of two years for the other drugs, resulting in a global starting point of
17 years’ imprisonment.
[20] The Crown submits the global starting point for Mr Roux for the methamphetamine importation should be around 14 years based on the case of Chen.7 The Crown submits there should be an uplift of 12 months for the other drugs based on the commercial quantity involved, resulting in a global starting point of 15 years’ imprisonment. Mr Corlett QC, for Mr Roux, submits that, although the offending nominally places him in band 4 which starts at 12 years, Mr Roux had a low level of responsibility and there is need for parity with the starting point for Mr Bell of nine years. He also objects to an uplift of 12 months for the GBL,
submitting only a few months is warranted. I consider Mr Roux’s role was not high in the operational chain but in organising addresses he was more than just a catcher. He played a lesser role but not a much lesser role and he was involved in importation of a large quantity of drugs. I consider a starting point of 13 years is justified, with an uplift of six months for the GBL. So a global starting point of 13 years and six months.
[21] The Crown submits the global starting point for Mr Dawson for the methamphetamine importation, is in the lower end of band two having regard to the quantity involved and his junior role, at around three and a half years’ imprisonment. With an uplift of six months for the other drug the Crown submits the global starting point should be in the vicinity of four years’ imprisonment. Mr Garrett, for Mr Dawson, acknowledges the methamphetamine falls into band 2 and that there was a significant amount of MDMA. But he submits Mr Dawson was not privy to the major details of the operation and has reduced culpability for the offending. He seeks a starting point of three years. I agree Mr Dawson’s role was limited but in
line with Court of Appeal authority I agree with the Crown that the
7 Chen v R [2010] NZCA 552.
methamphetamine importation is at the bottom of band 2, which is three and a half years uplifted by six months for the MDMA, to four years.
Personal circumstances and aggravating or mitigating factors
[22] I now consider your personal circumstances and whether they disclose aggravating or mitigating factors.
[23] The Crown submits an uplift of at least six months’ imprisonment is appropriate to reflect Mr Martel’s previous relevant convictions of manufacturing, possessing and supplying methamphetamine. Mr Chambers, for Mr Martel, acknowledges a likely uplift. I have received a letter from Mr Martel expressing his remorse which I read in the context of his previous extensive offending. Mr Chambers says he is dedicated to rehabilitation. I welcome that and encourage him in it. His efforts may count for parole. On the basis of the position as it currently stands I agree the six months’ uplift is justified. The Crown submits a discount of ten per cent for Mr Martel’s guilty plea on the first day of trial is appropriate. Mr Chambers does take issue with that, since Mr Martel’s co- defendants are submitted to get 20 per cent. I agree with the Crown that a discount of around ten per cent, or two years, is appropriate for a guilty plea on the first day of trial where there was no change to the charges.
[24] The Crown submits an uplift in Ms Vincent’s sentence of three months’ imprisonment would appropriately reflect her being subject to a previous sentence of community work for possession of GBL at the time some of this offending occurred. Mr Burns, for Ms Vincent, submits that those convictions were a symptom of her addiction which justifies a further discount of ten per cent and points to her remorse. Ms Vincent has written a letter expressing her remorse and her determination to continue the drug-free status she has enjoyed on remand. Her convictions may be a symptom of her addiction and I do recognise the significance of addiction. I wish her well with her rehabilitation but she will understand that offending while serving a sentence requires deterrence. I consider a three months’ uplift is appropriate. I do not consider a discount is justified given the level of offending. The Crown also submitted that a discount of 20 per cent for Ms Vincent’s guilty plea on the first day
of trial is justified, since it followed a significant number of charges being withdrawn. Mr Burns agrees. I consider 20 per cent is too great a discount to be consistent with a guilty plea on the first day of trial. I consider a discount of around
15 per cent, at two years and seven months, would recognise the fact that it followed other charges being withdrawn.
[25] The Crown submits no uplifts are in order for Mr Roux since he has no previous relevant convictions but his previous unrelated convictions mean he cannot claim a discount. Mr Roux has written a letter expressing his remorse and his determination to escape his long history of substance abuse. In the interests of his children and his wife as well as him, I hope he succeeds. I do not consider that justifies a discount on sentence at present. The Crown submits a discount of 20 per cent for Mr Roux’s guilty plea is justified for the same reason as Ms Vincent. Mr Corlett submits that is the least the discount should be and sets out a variety of reasons why his plea could not have been earlier. Those reasons include a change of counsel, counsel’s unavailability and Mr Roux being arrested and remanded in custody on other charges. Given the timing of the plea and the seriousness of the offending, I consider Mr Roux should be treated the same as Ms Vincent and I agree to a discount of around 15 per cent for the guilty plea, at two years.
[26] The Crown submits the same for Mr Dawson: no uplift and no discount other than for the guilty plea. Mr Garrett, for Mr Dawson, submits Mr Dawson is extremely remorseful and explains his actions as a result of his drug addiction which he is seeking to change. Mr Dawson says in his letter, having now been drug free, he hates methamphetamine with a passion. He also offers character references and seeks a further discount. I accept his remorse is genuine and that he has support in his community. His level of involvement in the offending was relatively low. I am prepared to give him a discount of around ten per cent discount for remorse, at five months. Mr Dawson will need to follow through with his rehabilitation efforts if he really wants to get his life back on track. I also agree Mr Dawson’s sentence should be discounted by the same amount as the other two, 15 per cent for his guilty plea, at seven months.
Minimum period of imprisonment
[27] Finally, under s 86 of the Sentencing Act 2002, I can impose a minimum period of imprisonment of up to 60% of an end sentence of over two years. I can only do so if I am satisfied that the period otherwise applying is insufficient for the purposes of holding the offender accountable, denouncing their conduct, deterring others and protecting the community. The minimum period must not exceed two thirds of a sentence or ten years.
[28] The Crown submits a minimum period of imprisonment of 50 per cent is appropriate for Mr Martel, Ms Vincent and Mr Roux because serving one third of their sentence would be insufficient for the purposes of the Act. The Crown does not seek a minimum period for Mr Dawson.
[29] Mr Chambers, for Mr Martel, and Mr Burns, for Ms Vincent, accept the Crown’s submission on a minimum period of imprisonment. Mr Corlett, for Mr Roux, accepts there is usually a case for a minimum period in serious drug offending. But he submits a lengthy sentence is enough to meet the purposes in s 86 even without a minimum period, given Mr Roux’s level of involvement and lack of history with drug related offending.
[30] In light of the seriousness of this drug offending, which causes such human misery and their roles in it, I agree with the Crown’s submission and I impose a 50 per cent minimum period of imprisonment as sought.
Sentence
[31] Mr Martel, please stand. I order that you be imprisoned for 18 years and six months with a minimum period of imprisonment for nine years and three months. Please sit.
[32] Ms Vincent, please stand. I order that you be imprisoned for 14 years and eight months with a minimum period of imprisonment of seven years and four months. I also cancel your current community work sentence.
[33] Mr Roux, please stand. I order that you be imprisoned for 11 years and six months with a minimum period of imprisonment of five years and nine months.
[34] Mr Dawson, please stand. I order that you be imprisoned for three years. [35] Finally, I order the destruction of all drug-related exhibits.
[36] Please stand down.
Palmer J
3