R v Mathers
[2022] NZHC 3473
•16 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2020-004-9587
[2022] NZHC 3473
THE KING v
LUKE MATHERS
Hearing: 16 December 2022 Appearances:
B Kirkpatrick for the Crown
K Beaton KC and A Hollingworth for the defendant
Date:
16 December 2022
SENTENCING NOTES OF CAMPBELL J
R v MATHERS [2022] NZHC 3473 [16 December 2022]
Introduction
[1] Mr Mathers, you appear for sentencing having pleaded guilty to two charges of possession of methamphetamine for supply,1 a charge of unlawful possession of ammunition,2 and a charge of unlawful possession of a firearm.3
[2] My job today, on behalf of the community, is to impose a sentence on you for those offences.
Offending
[3] A summary of facts was presented to the Court when you pleaded guilty. You accepted that summary of facts. I will sentence you on the basis of them, together with any inferences I can draw from them.4
[4] In 2020, the Police National Organised Crime Group began an investigation into a drug syndicate involved in the importation and commercial scale supply of various controlled drugs around New Zealand. Your co-defendant Seiana Fakaosilea, the acting National Commander of the Comanchero Motorcycle Club, was at the head of the syndicate.
[5] You are a patched member of the Rebels Motorcycle Club. You had a close working relationship at that time with Mr Fakaosilea. On three occasions, he arranged the delivery of commercial quantities of methamphetamine to you in Christchurch. You possessed that methamphetamine for the purpose of supplying it to your own customer base.
[6] Two deliveries took place in March 2020, both involving an unknown commercial quantity of methamphetamine. A third delivery was in August of that year, involving at least 500 g of methamphetamine.
1 Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty: life imprisonment.
2 Arms Act 1983, s 45(1). Maximum penalty; four years’ imprisonment or a $5,000 fine.
3 Section 45(1). Maximum penalty; four years’ imprisonment or a $5,000 fine.
4 R v R [2019] NZCA 135 at [33]; R v Kinghorn [2014] NZCA 168 at [20] and [31]; Pokai v R [2014]
NZCA 356 at [30]–[36]; and R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494.
[7] The third delivery was made to you at the Rebels gang pad in Christchurch. Almost simultaneously, Police executed a search warrant at the gang pad. As they were doing so, you ran into the gang pad. You and your co-defendant Jarrad Singer flushed the methamphetamine down the sink and toilet and smashed three cell phones. About ten minutes later, you surrendered to Police.
[8] During their search of the Rebels gang pad, officers found two shotguns loaded with ammunition, and your encrypted phone. Later, in December 2020, Police searched your home. They found that you were in possession of $72,600 in separate bundles of cash and an encrypted phone.
Approach to sentencing
[9] Mr Mathers, in sentencing you I need to hold you accountable for the harm that your offending has done to the community, promote in you a sense of responsibility for that harm, denounce your conduct, deter you and others from committing similar offending, and assist in your rehabilitation.5
[10] I need to consider the gravity of your offending and your degree of culpability, the seriousness of these offences and the general desirability for consistency in sentencing. I must also impose the least restrictive outcome that is appropriate in the circumstances.6
[11] Determining the appropriate sentences involves two steps. First, I must determine a term of imprisonment as the “starting point” for your sentence, which will be based on the seriousness of the offending for which you have been convicted. Secondly, I will consider your personal circumstances, including the appropriate allowance for your guilty plea and for time spent on electronically monitored (EM) bail.7 This will produce your end sentence.
5 Sentencing Act 2002, s 7(1).
6 Section 8.
7 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].
Starting point
[12] Mr Mathers, I will set a starting point first by reference to your methamphetamine offending. I then have to add an uplift to account for your firearms offending.
[13] A Court of Appeal case called Zhang, as amended by a recent Supreme Court decision called Berkland,8 is the guideline decision on methamphetamine offending.9 The Court set out five sentencing bands based on the quantity of methamphetamine involved in the offending.10 You possessed at least 500 grams on one occasion, and two unknown commercial quantities of methamphetamine on the other two occasions. Your offending therefore falls within band 4 of Zhang. Band 4 offending ordinarily attracts a starting point of between eight years’ and 16 years’ imprisonment.
[14] Where an offender falls within a particular band primarily depends on the role the offender played. The Court in Zhang described three categories of role: lesser, significant and leading.11 The Crown submitted that you fall into the upper end of the significant category, or the lower end of the leading category, and that the appropriate starting point is ten years’ imprisonment. Ms Beaton KC submitted that you fall within the significant category and that the starting point should be nine years’ imprisonment.
[15] I see your offending as falling at the higher end of the significant category, but not in the leading category. You were motivated solely by financial advantage and received some actual commercial profits. I infer from there being three supplies to you of commercial quantities that there must have been a distribution operation underneath you, though there is no evidence as to the scale of that operation, other than that Mr Singer had a limited involvement in it in August 2020. You must have understood the scale of your own operation, but I cannot infer that you had an awareness of the scale of Mr Fakaosilea’s wider drug operation. You were further from the original
8 Berkland v R [2022] NZSC 143.
9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. The Supreme Court adjusted the significant role profile in Berkland v R [2022] NZSC 143 at [71], which I have taken into account in accordance with [72(a)] of Berkland.
10 At [125].
11 At [126].
source of the methamphetamine than Mr Fakaosilea and I do not infer that you had influence on those in his syndicate.
[16] Your co-defendants Mr Katoa and Mr Mataia supplied the methamphetamine to you on each of the three occasions. I set starting points of eight years’ imprisonment for Mr Katoa and eight years and six months’ imprisonment for Mr Mataia.
[17] I consider that you had a more significant role than each of them. They were working under Mr Fakaosilea’s direction, whereas you were not. This has to be reflected in you having a higher starting point than them.
[18] Having regard to the quantity of methamphetamine you possessed and the role you played, and keeping in mind the need for consistency in sentencing between co-offenders, I consider a starting point of nine years and six months’ imprisonment is warranted for your methamphetamine offending.
[19] I must uplift that starting point for your firearms offending. The Crown directed me to appellate authority stating that uplifts of between 12 and 18 months’ imprisonment are appropriate where drug dealers have been found with firearms in their possession.12 Your case is similar to Mr Mataia’s. He was in possession of two pistols, both loaded. I imposed an uplift of 12 months for him, and I will do the same for you.
[20] I therefore set a global starting point for your sentence of 10 years and six months’ imprisonment.
Personal circumstances
[21] I now turn to your personal circumstances and any adjustments to your starting point that those circumstances require.
12 Perez v R [2015] NZCA 267 at [51]; and Joyce v R [2020] NZCA 124 at [24].
Personal background
[22] Mr Mathers, I have been provided with a report on your background that has been prepared by a team led by Dr Jarrod Gilbert. I have also received numerous letters from family and friends and from those with whom you work. Many of them are observing this hearing remotely this morning from Christchurch and I acknowledge them.
[23] You were born in Christchurch. You moved to Australia with your parents when you were five. You settled in a deprived area in South Brisbane. Your parents separated shortly after the move, and your father returned to New Zealand. From then, your mother faced hardship as a single mother on a benefit.
[24] She also struggled to discipline you. But I want to acknowledge that she is in Court this morning to give you support. By the time you were 13 you were involved in petty crime and heavy drinking with other local boys. There was a high crime rate in the area where you lived. From that young age you took to carrying a knife or firearm on regular occasions. All this became normalised for you.
[25] You left school at 14 to start a panel beating apprenticeship. You ended that apprenticeship at a shop run by Hells Angels members. They got you to run drugs and money on the side. You enjoyed the extra cash. You used that to support your mother but you acknowledge that you also started living it up.
[26] At age 19 you were convicted of an assault in a nightclub. You served a prison sentence, not a very long one. But after that, the Australian authorities decided that you had formed a bad character as a young child in Christchurch, rather than in your teenage years in Brisbane. They deported you.
[27] The first part of the deportation process was to hold you in a detention centre for more than a year. You describe it as soul destroying, full of hardened men and worse than prison. I am sure it was.
[28] You were then sent back to Christchurch in 2016, at age 22. Fortunately, your paternal grandfather lived there and took you in. You formed a close bond with him
and he is also here to support you today. Despite that support, and unsurprisingly, you felt disconnected from New Zealand, and this had seriously detrimental impacts on you. To make matters worse, the rehabilitation programme that you had to be involved in on your return exposed you to many returning 501s. In time, this led to you joining the Rebels.
[29] You were initially arrested for this offending in August 2020 and then granted ordinary bail. Further charges were laid against you in December 2020 and at that point you were remanded in custody. You were granted EM bail in March 2021. You have worked full-time while on EM bail, at a motorcycle business in Christchurch. You had started working there in 2018. Your employer and manager speak very highly of your work. So do customers and suppliers of the business. Your employer says he has left the door open for you as far as employment goes.
[30] You have a partner of three years. She describes you being a loving and caring stepfather to her two young children.
[31] A constant theme in the letters I have received is that for the last two years you have had a stable job and good home life and that you are doing your best to distance yourself from your criminal past. This is also clear from the letter that you have written to me, Mr Mathers.
[32] An important part of the sentencing process is to adjust the starting point so that the end sentence takes into account the sorts of circumstances that I have just been discussing.13 Those personal circumstances can mean, for example, that your moral culpability or responsibility for your offending or your prospects for rehabilitation are different from others who may be sentenced. The Sentencing Act requires judges to make adjustments for those sorts of matters.
Causative background influences
[33] There are two broad aspects of your background that I consider have contributed to your offending and that lessen, to some degree, your moral culpability
13 Recently confirmed by the Supreme Court in Berkland v R [2022] NZSC 143 at [89].
for it. The first is the economic and social deprivation that you experienced as a child after your father abandoned you and your mother. This led to you being taught, at a young age, that offending was normal. The second is being held in a detention centre and then being deported to a country and city that were no longer yours. I do appreciate that these were consequences of your own offending in Australia. Nonetheless, they are not consequences that normally follow from an assault conviction.
[34] The two matters to which I have just referred do not provide an excuse for your offending. I know that you realise that yourself, Mr Mather. Nor do they mean that you were inevitably going to join the Rebels or deal in methamphetamine. I am sure you acknowledge that as well. But I am satisfied that they contributed to your joining that gang and dealing in methamphetamine. This slightly lowers your culpability. I will recognise that with a 10 per cent credit from your starting point.
Rehabilitation
[35] Mr Mathers, I said earlier that one of the things I have to do when sentencing you is assist you in your rehabilitation. The only way I can do that today is to give you credit for the rehabilitative prospects that you have shown since you were arrested for this offending.
[36] Two things are relevant here. First, I am satisfied that you are remorseful for your offending. You have written a letter to me that is both detailed and sincere. You accept responsibility for what you have done and demonstrate insight into the harm your offending has inflicted on your community and on your family. Your remorse is confirmed by a number of the people who have written letters to me.
[37] Secondly, it is clear from the letters I have received that you have dedicated yourself to your friends, family and work since your arrests. The letters speak of someone who wants a positive future and has worked towards that for the past two years. They also show that you have a strong support network.
[38] These maters satisfy me that you have good prospects of rehabilitation. I consider a 10 per cent credit is appropriate for this.
Previous good character
[39] I also consider you should have some credit for your otherwise good character. This might seem a somewhat strange thing to say to someone who has been a patched gang member for several years and who has some criminal convictions, and was deported from Australia. But it would be too easy to label you as simply as a 501 or as a gang member, Mr Mathers. The letters before me show that you are more than that. Not only have you held down a full-time job for most of the last four years, your family, friends and supporters speak to your kindness, loyalty, and generosity. It is clear that these are characters that you have had and exhibited since before this current offending. This is exemplified for me by the level of physical and emotional support you have been giving to one of the victims of the Christchurch terrorist attack, and his family.
[40]For this, I will allow a further credit of five per cent.
Guilty plea allowance
[41] You are also entitled to credit for your guilty plea. This was entered on the first day of the scheduled trial. As I did with a number of your co-defendants,14 I consider a 15 per cent credit is appropriate.
Credit for time spent on bail
[42] Finally, Mr Mathers, I have to give you credit for the time you spent on EM bail.15 The amount of credit depends on the relative restrictiveness of the bail conditions, your compliance with them and of course the time on EM bail.16
[43] You were granted EM bail on 5 March 2021. You were subject to a 24-hour curfew. From June 2021, the curfew was relaxed to allow you to attend the gym three mornings a week.
14 R v Tofa-Tulisi [2022] NZHC 2483 at [17]; R v Mafileo [2022] NZHC 2481 at [23]; R v Halaholo [2022] NZHC 3031 at [35]; R v Fakaosilea [2022] NZHC 3207 at [88]; and R v Huang [2022] NZHC 3323 at [33].
15 Sentencing Act, ss 9(2)(h) and (3A).
16 Section 9(3A).
[44] You have also, for almost all of the time on EM bail, been permitted to work full-time. Even that has been fairly restrictive, because while working you generally have not been allowed to leave your workplace.
[45] You have spent a little more than 21 months on EM bail. In that time there have been no compliance issues noted. In 2020 you also spent three months on ordinary bail, with a night-time curfew. Again, there were no compliance issues.
[46] Given that you were able to work while on EM bail, but noting your excellent compliance, and some time on ordinary bail subject to a curfew, I consider a credit of 10 months is appropriate.
End sentence
[47] Mr Mathers, I take a starting point of 10 years and six months’ imprisonment. I apply discounts of 10 per cent for your causative background influences, 10 per cent for your rehabilitative prospects, five per cent for your otherwise good character, 15 per cent for your guilty plea, and 10 months for the time you spent on EM bail. This gives a sentence of five years and six months’ imprisonment.
Result
[48]Please stand, Mr Mathers.
[49] For each of your convictions on charges of possession of methamphetamine for supply, I sentence you to five years and six months’ imprisonment. For each of your convictions on charges of unlawful possession of ammunition, and unlawful possession of a firearm, I sentence you to 12 months’ imprisonment. These sentences are to be served concurrently.
[50] Mr Mathers, you appear to have turned a corner. I hope you continue down a path of rehabilitation. But don’t worry about what I may hope. You have a lot of supporters who have expressed hope in you. Keep them in mind, and don’t let them down.
[51]Please stand down.
Campbell J
10
0