R v Mataki-Kaiaruna

[2017] NZHC 1288

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-088-003515 [2017] NZHC 1288

THE QUEEN

v

TONY MATAKI-KAIARUNA

Hearing:	7 June 2017
Appearances:	N Dore for the Crown J A Young for the Defendant
Sentence:	7 June 2017

SENTENCING NOTES OF HINTON J

Counsel/Solicitors:

Marsden Woods Inskip Smith, Whangarei

Julie Young, Barrister, Whangarei

R v TONY MATAKI-KAIARUNA [2017] NZHC 1288 [7 June 2017]

Introduction

[1]      Mr Mataki-Kaiaruna, you have pleaded guilty to seven charges.  Two relate to conspiracy to manufacture methamphetamine, one is in relation to conspiracy to supply methamphetamine, three for the supply of methamphetamine and one for possession of methamphetamine for supply.

[2]     The conspiracy-related charges carry a maximum sentence of 14 years’ imprisonment.   The maximum sentence for the supply of methamphetamine and possession of methamphetamine for the purpose of supply charges is life imprisonment.

Facts

[3]      The charges arose as a consequence of the police investigation referred to as “Operation Atlas”.    This  operation  targeted  the  members  of  the  Head  Hunters motorcycle gang, as well as their associates, in their drug manufacturing and drug dealing activities.

[4]     The Police obtained warrants authorising them to intercept cellphone conversations and text messages.  You were identified as involved in the supply of methamphetamine and conspiracy to manufacture methamphetamine.  In total, you supplied,  possessed  for  the  purpose  of  supply  and  conspired  to  supply  at  least

413.8 grams of methamphetamine.  Of this amount, 7.8 grams of methamphetamine was found by Police during the search of a car that you had been travelling in on

16 December  2015.    Your  admission  to  Police  that  you  had  sold  7  grams  of methamphetamine per week for the past year between 2014 and 2015 also materially assisted in determining how much methamphetamine was involved in these charges.

[5]     The estimated amount of methamphetamine involved in the charges of conspiring to manufacture methamphetamine is 240 grams.

[6]      You became involved in this offending as a result of being a prospect member of the Head Hunters motorcycle gang.  You operated under the direct instruction of

senior members of the Northland Head Hunters.  You were responsible for ensuring the senior Head Hunters’ orders were carried out.   This involved receiving phone calls and passing on messages.  You also acted as a distributor of methamphetamine. You distributed and supplied methamphetamine to street dealers and the income derived from this dealing was given to your superiors in the gang.   You received payment for your actions in the gang.

Purposes and principles of sentencing

[7]      In sentencing you today I take into consideration the purposes and principles of sentencing.   I consider that in your situation there are particular principles and purposes that are of relevance, namely accountability, deterrence, denunciation, promoting a sense of responsibility in you. I must also take into account the gravity and seriousness of your offending, while ensuring the sentence reached is consistent with appropriate sentencing levels.  I must also impose the least restrictive outcome appropriate in the circumstances.

Personal circumstances

[8]      You are 29 years old.  You have a twin, and you have 12 other siblings.  You identify as Cook Island.   You were born in New Zealand.   You describe a happy childhood to the writer of your pre-sentence report, and your mother has expressed sadness and concern regarding your actions.  She wished to relay to the Court that your entire family remains supportive of you.

[9]      The report-writer has recorded that the motivation behind your offending is that you wanted to make money, and that you were attracted by the lifestyle of the Head Hunters gang.   You advised that since your arrest you have been given the opportunity to become a patched member of the gang, but you are reconsidering and trying to decide if that is what you want.  The writer further records that you enjoyed and craved the notoriety that comes with the gang lifestyle and that only time will tell if you genuinely are reconsidering whether you wish to remain part of the gang.

[10]     The report-writer identified greed, a sense of entitlement, lapse in critical thinking and poor judgment as the primary factors related to your offending.

[11]     You are assessed as probably being at a medium risk of reoffending and harm, given your gang involvement and rapid escalation in offending behaviour.

Prior convictions

[12]     You have three prior convictions for driving-related offences, the most recent being in September 2015.

Analysis

Setting a starting point

[13]     I consider the charges of possession for supply, supply, and conspiracy to supply  methamphetamine  are  the  lead  offences.     The  guideline  decision  for sentencing for manufacture and dealing of methamphetamine is R v Fatu.1    Your offending falls towards the middle or higher end of band three of the sentencing bands for sale or supply of methamphetamine.   That  band  relates  to  supply of between  250  grams  and  500  grams  and  merits  a  starting  point  of  eight  to

eleven years’ imprisonment.   The amount of methamphetamine involved in these charges in your case is 413.8 grams.

[14]     Your offending occurred, at your own admission, over an extended period of time of at least a year.  It involved premeditation and related to a very serious drug that causes much damage in our community.2

[15]     In my view, a starting point of nine years’ imprisonment would be justified for the supply charges alone.   I have recognised that one of these charges is for conspiracy to supply methamphetamine and that conspiracy charges are generally less culpable than the substantive offence.

[16]     In  relation  to  the  conspiracy  to  manufacture  methamphetamine  charges,

240 grams of methamphetamine was involved.  This would have merited a starting

1      R v Fatu [2006] 2 NZLR 72 (CA).

2      R v Cochrane HC Whangarei CRI-2010-027-143, 18 March 2011.

point near the very top of band two of the relevant R v Fatu sentencing bands, if you had actually manufactured the methamphetamine.  That band relates to manufacture of up to 250 grams of methamphetamine, and attracts a starting point of between four and eleven years’ imprisonment.

[17]   However, you are charged with the lesser conspiracy to manufacture methamphetamine, which has a maximum sentence of 14 years’ imprisonment.  It is accepted that a reduction of the sentencing levels is appropriate where a defendant faces a conspiracy charge rather than one of manufacturing.3    While your status in the gang was low, as you were only a prospect, you played a significant role in the conspiracy to manufacture methamphetamine.  You were responsible for passing on communications    regarding    the    quantity,    quality,    and    delivery    of    the

methamphetamine.

[18]     I   consider   that   the   appropriate   starting   point   for   the   conspiracy   to manufacture methamphetamine charges is five years’ imprisonment.

[19]     Adjusting  the  starting  point  for  the  supply  charges,  which  I  fixed  at nine years, to account for totality, I consider that a starting point of 10 years would be appropriate to reflect all of the methamphetamine-related offending.

Aggravating factors

[20]     Although  you  have  previous  convictions,  none  relate  to  drugs.     The convictions are such that, clearly, no uplift is appropriate.

Mitigating factors

[21]     You gave the Police information that led to them being able to charge you for one  charge  of  supply,  which  they  otherwise  would  not  have  been  able  to  do. Ms Young submits that this entitles you to a further discrete discount.4  Ms Young

pointed out that you were brutally assaulted on two occasions by other prisoners

3      R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [25].

4      R v Hadfield CA337/06, 14 December 2006; A (CA853/2012) v R [2013] NZCA 225 at [13];

Farley v R [2017] NZCA 97.

prior to EM bail being granted.  She said this was because you were thought to have assisted the police with their inquiries into others.

[22]     For the record, there is no evidence that you provided assistance with regard to others at all.   In fact, the charges against them would suggest not. However, I accept you materially assisted the Police regarding your own offending, which had the effect of increasing the charges against you.  I propose to recognise this as part of a discount for remorse and rehabilitative efforts.

[23]     You have written a letter expressing your remorse.  You state that you take full responsibility for what you have done and understand the effects of your offending.  I believe that.

[24]     You  indicated  to  the  writer  of  your  pre-sentence  report  that  you  are reconsidering whether you wish to become a patched member of the Head Hunters motorcycle gang.  I know how difficult it is, once you get into the position you have got yourself into, but I expect that reconsideration to become complete, against membership.

[25]     I also have a letter from Odyssey House stating that you were considered suitable for rehabilitation, but due to the serious nature of the charges you face, they were unable to progress with referring you to one of their treatment programmes.

[26]     I believe you are sincere, though incredibly naive and obviously have bad judgment.  Personal circumstances are given much less weight in commercial drug dealing than they are in other areas of the law.5   But, particularly on account of your significant volunteering of information about your own offending, I consider that your situation merits a discount.  I will allow a discount of nine months.

[27]     I consider that a discount for your time spent on EM bail is also appropriate, and that merits a discount of three months.

5      Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

[28]     Another Judge previously advised that a discount of 25 per cent for early guilty pleas in relation to this Police operation would be appropriate.  Twenty-five per cent is the maximum amount that may be discounted for an early guilty plea.6

I consider that a discount of that full amount is appropriate here, particularly given

the Crown’s acceptance of it.

[29]     Given that this is your first drug-related offence, in fact your first serious offence of any sort, I do not consider it is necessary to impose a minimum term of imprisonment.

Sentence

[30]     Mr Mataki-Kaiaruna, please stand.

[31]     On the charges of possession for supply, supply, and conspiracy to supply methamphetamine, you are sentenced to six years and nine months’ imprisonment.

[32]     On  the  charge  of  conspiracy  to  manufacture  methamphetamine,  you  are

sentenced to five years’ imprisonment.

[33]     You will serve these sentences concurrently, so that the maximum term is six years and nine months’ imprisonment and that is subject to parole conditions.

Other orders

[34]     I also cancel your outstanding fines of $5,779.89. [35]          You may stand down.

…………………………………….

Hinton  J

6      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.