R v McGoldrick-Savaii

[2018] NZHC 233

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA

CRI-2017-091-000902

[2018] NZHC 233

THE QUEEN

v

HAYDEN HARLEY McGOLDRICK-SAVAII

Counsel:	R Georgiou for Crown A N Isac for Defendant
Sentence:	23 February 2018

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]        Mr McGoldrick-Savaii, today you are to be sentenced on the following charges:

(1)one representative charge of supplying methamphetamine;1

(2)one representative charge of offering to supply methamphetamine;2 and

(3)one charge of possession of methamphetamine for supply.3

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum penalty is life imprisonment.

2      Section 6(1)(c) and (2)(a).  Maximum penalty is life imprisonment.

3      Section 6(1)(f) and (2)(c).  Maximum penalty is life imprisonment.

R v McGOLDRICK-SAVAII [2018] NZHC 233 [23 February 2018]

[2]        You pleaded guilty to those charges after receiving a sentence indication from me on 7 December 2017.4

[3]This morning I shall:

(1)outline your offending;

(2)summarise your personal circumstances;

(3)set out the starting point for your offending;

(4)explain the adjustments I will make to that starting point; and

(5)state your final sentence.

Your offending

[4]        The charges result from a police operation code-named “Operation Walnut”, which commenced in November 2016. That investigation targeted the commercial supply of methamphetamine in the Wellington region.

[5]        Police intercepted communications and carried out visual surveillance of two principal targets, Mr Blance and Mr Berkland. It is alleged by the Crown that they were purchasing kilogram quantities of methamphetamine from Auckland-based suppliers. Mr Blance and Mr Berkland would then on-supply the methamphetamine to a number of associates in their distribution networks. Most of the offending took place at an address at 40 Coates Street, Tawa. Associates would then on-supply the methamphetamine further.

[6]        You are one of the associates. You were identified by police as buying methamphetamine off Mr Blance for on-supply to customers in your own network. Between 4 March and 11 April 2017, you were seen visiting the Coates Street address on 25 occasions. Intercepted communications and phone data indicate your dealings with Mr Blance and others.

4      R v McGoldrick-Savaii [2017] NZHC 3027.

[7]        Between 20 February and 11 April 2017, you purchased no less than 119 grams of methamphetamine. There is evidence that you on-supplied no less than 83.5 grams of methamphetamine, at a total cost of almost $40,000 at cost price.

[8]        You are characterised in the summary of facts as a “middle level methamphetamine dealer in [your] own right”. The summary of facts refers to 45 instances of offending including around 28 offers/supplies that could not be quantified.

[9]        On 11 April 2017, the police executed a search warrant of your home address. Your garage was fortified with a steel door to prevent access and a CCTV monitoring system was found to be operating. Police found a “drug dealing kit” containing a small plastic snap lock bag with two grams of methamphetamine, a glass pipe, one gram of cannabis, digital scales and a small bag containing a number of other small snap lock bags.

Personal circumstances

[10]      You are 24 years old. You have three children and prior to your arrest you were living with your partner and your three-year old daughter in Porirua.

[11]      Your counsel, Mr Isac, notes your struggles with methamphetamine addiction. He refers to your long periods of employment.

[12]      You have provided me with a very thoughtful letter explaining your remorse and your determination to address your addiction. I have taken your letter into account.

[13]      This offending is by far the most serious offending you have engaged in. You have no previous drug-related offences. Mr Isac and you have referred to your desire to be a supportive partner and a loving father to your children.

Starting point

[14]      There is a presumption in favour of imprisonment for Class A drug dealing offending.5

[15]      The Court of Appeal’s decision in R v Fatu is the leading sentencing guideline judgment for offending involving the supply of methamphetamine.6 Your offending falls within sentencing band two, which provides that the supply of commercial quantities between five grams to 250 grams warrants a starting point of between three years to nine years’ imprisonment.7

[16]      I take into account the following aggravating features of your offending in setting the appropriate starting point:

(1)Premeditation and planning.8 A significant degree of premeditation and planning is inherent in the sale and supply of controlled drugs. The police search of your property confirms a well-thought out venture on your part.

(2)Number and frequency of supplies/sales.9 In a period of around a month you were observed visiting Mr Blance’s address at Coates Street on 25 occasions; sometimes there were multiple visits each day. There were  39  audio  recordings  of  conversations   between   you   and Mr Blance. The summary of facts refers to 45 dealings, including supplies and offers to supply.

(3)Amount of methamphetamine.10 You purchased no less than 119 grams of methamphetamine and on-supplied no less than 83.5 grams of methamphetamine.

5      Misuse of Drugs Act 1975, s 6(4)(a).

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

7 At [34].

8      Sentencing Act 2002, s 9(1)(i).

9      Sections 8(a) and (b); 9(1)(d).

10     Section 8(a) and (b); R v Fatu, above n 6.

(4)Commercial gain.11 The total cost price of 83.5 grams of methamphetamine is around $40,000. Mr Isac submits you supplied methamphetamine to friends and family members without recovering any money. He says the extent of your gain is “relatively modest”. The summary of facts refers, however, to significant debts you owed and debts that were owed to you. You also accumulated assets through the supply of methamphetamine. There was clearly a significant commercial aspect to your offending.

[17]      In terms of your role in the overall operation, you were not one of the principal offenders. Mr Isac submits you were a street-level dealer. I am satisfied from the summary of facts, however, that you had your own customers and you could be more properly categorised as a middle level methamphetamine dealer.12

[18]      To ensure consistency in sentencing,13 I note that Ms Waiariki was recently sentenced for methamphetamine offending involving accepted quantities of

36.1 grams. A starting point of four years’ imprisonment was adopted in her case.14 Ms Svenson was earlier sentenced by Judge Butler in the District Court on one charge of supplying methamphetamine and one charge of conspiracy to supply methamphetamine involving a total amount of around 15 grams. A starting point of three years’ imprisonment was adopted in her case.

[19]      The Crown submits a starting point of five and a half to six years’ imprisonment is appropriate. Mr Isac has referred to comparable cases15 and submits a starting point as low as four and a half years’ imprisonment might be available.

[20]      Your offending is more serious than R v Snowden,16 where the defendant was charged with supplying/offering to supply/possession for supply of at least 63.3 grams

11     R v Fatu, above n 6, at [32].

12  At [31]: “Where an offender fits within any particular band will depend not just on the quantity  and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant.”

13     Sentencing Act 2002, s 8(e).

14     R v Waiariki [2017] NZHC 2771.

15     R v Housham [2016] NZHC 1652; Rophia & Macrae v R [2013] NZCA 60; Taylor v R [2012] NZCA 332; R v Snowden [2017] NZHC 1291 and McKeown v R [2017] NZCA 99.

16     R v Snowden, above n 15.

of methamphetamine, and a starting point of four and a half years’ imprisonment was adopted. As I have stated, you played more than just a “street-dealer” role and there were multiple instances of offending.

[21]      Methamphetamine is a dreadful drug, which causes significant harm to individuals and relationships. The courts have consistently adopted starting points that reflect the social harm caused by methamphetamine. Consistent with this approach and other authorities,17 I consider a starting point of five years and six months’ imprisonment is appropriate.

Adjustments to the starting point

[22]Your previous convictions are minor and do not warrant any uplift.

Personal mitigating factors

[23]      Mr Isac submits I should take into account numerous personal mitigating factors, namely:

(1)your lack of previous convictions and relatively young age;

(2)your addiction to methamphetamine and your determination to address that addiction; and

(3)your time on restrictive bail.

[24]      These charges are by far the most serious you have faced. The only information I have before me currently to support any discount for “good character” is your ex-employer referring to you as being a “good worker”. In the context of serious methamphetamine offending, this is not sufficient.18

[25]      The pre-sentence report describes your addiction to methamphetamine and your responsible and mature commitment to addressing this issue, which you

17     R v Golding HC Auckland CRI-2007-057-715, 28 November 2008 and R v Hopkins HC Hamilton CRI-2007-019-10276, 28 August 2009.

18     R v Jarden [2008] NZSC, [2008] 3 NZLR 612.

acknowledge has had a profound effect not only on you, but upon your immediate family. I will acknowledge your commitment to rehabilitation with a discount of six months from the starting point.

[26]      You have a property in Porirua valued at $280,000 with a significant mortgage and a suggested equity of $60,000. You also have a Mercedes Benz vehicle. The summary of facts refers to these two assets as having been accumulated through the supply of methamphetamine. However, you are adamant the funds used to purchase your property are not tainted. Both these assets are subject to forfeiture applications. In my sentence indication, I suggested a discount of up to six months’ imprisonment if you consented to the forfeiture orders being made. You have, however, exercised your right not to consent to the Crown’s forfeiture application. Accordingly, no discount can be given for this factor.

[27]      I accept that you are entitled to a small discount to reflect your restrictive bail conditions. That discount will be two months’ imprisonment.

[28]      I will also provide a discount for your guilty plea. That discount will be 25 per cent.

[29]      This produces an end result of 43½ months’ imprisonment, which I will round down to three years and six months’ imprisonment. That rounding down exercise gives you a small allowance for your remorse, a factor that is very rarely taken into account in cases of serious drug dealing.

[30]      In my assessment, a sentence of three years and six months’ imprisonment fulfils the objectives and principles of the Sentencing Act 2002. In particular, that sentence will:

(1)hold you accountable for the harm caused by your offending;19

(2)promote in you a sense of responsibility for your offending;20

19     Sentencing Act 2002, s 7(1)(a).

20     Section 7(1)(b).

(3)denounce your conduct;21 and

(4)deter others from similar offending.22

That sentence is also the least restrictive sentence available in the circumstances.23

Result

[31]Mr McGoldrick-Savaii, can you please stand.

[32]      On each of the charges to which you have pleaded guilty, I am sentencing you to a sentence of imprisonment of three years and six months. Those sentences are concurrent. This means your total sentence is three years and six months’ imprisonment.

[33]Stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington

21     Sentencing Act 2002, s 7(1)(e).

22     Section 7(1)(f).

23     Section 8(g).