R v McGrath

[2018] NZHC 2212

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,

OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANT AND CONNECTED PERSON AND ANY INFORMATION RELATING TO HER PERSONAL MEDICAL CONDITIONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011 UNTIL 5.00 PM, 30 NOVEMBER 2018. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-090-303

[2018] NZHC 2212

THE QUEEN

v

JASON RODERICK McGRATH

Hearing:

27 August 2018

Counsel:

F Culliney for Crown

G C Gotlieb for Defendant

Judgment:

27 August 2018

SENTENCING NOTES OF WHATA J

Solicitors:           Meredith Connell, Auckland

R v McGRATH [2018] NZHC 2212 [27 August 2018]

[1]    Mr McGrath, you appear for sentence on one charge of possession of methamphetamine for supply, three charges of unlawful possession of a firearm, and one of unlawful possession of ammunition. The maximum sentence for methamphetamine offending is life imprisonment. The maximum penalty for firearms offending is four years.

[2]    I previously gave you a sentencing indication of between 12 years and two months and 14 years, with the potential for adjustment depending on further and closer assessment of your personal circumstances. I also reserved my position on minimum sentence.

The facts

[3]    The facts of your offending are as follows. On 19 January 2018, the police had cause to search your home address. Inside a room at that address the police found methamphetamine, three semi-automatic assault rifles, a fourth disassembled assault rifle, 374 rounds of ammunition and a silencer. A large quantity of the rounds were loaded in banana or drum-type magazines which could allow the firearms to shoot 60 rounds before needing reloading. All four assault rifles had their serial numbers ground off so they could not be identified.

[4]Cash and drugs were also located in the master bedroom and in the laundry.

$2,700,000  was  also  found  on  the  property.     The preliminary weight of the methamphetamine was two kilograms with a street value of approximately

$2,000,000. You told the police that you were responsible for the drugs and firearms and that your family had nothing to do with it.

Personal circumstances

[5]    In terms of your personal circumstances, Mr McGrath, you are 48 years old. This is your first methamphetamine charge. You had a conviction for cannabis cultivation in 2008 but, otherwise, no other relevant convictions, for the purposes of this sentence.

[6]    I have also had the benefit of two reports by a clinical psychologist, Barry Kirker. You are diagnosed as suffering from obsessive compulsive disorder (OCD), and have had this condition much of your life. The report also notes that your psychological difficulties appear to have their origins in childhood. The reports says that your OCD condition appears to have contributed to aspects of your offending and that it led you to adopt certain problematic routines and engage in hoarding behaviour. It says it appears you could not stop your offending, despite the risks, due to the excessive level of anxiety involved. It also noted that drug abuse may be connected to this anxiety.

[7]    Mr Kirker also says that you lacked insight into the role anxiety has had on your behaviour, so you never sought treatment for your OCD and anxiety. He says, however, that while incarcerated you have undertaken a course about the negative impact of methamphetamine and have gained greater empathy for the effects of your offending. You also accepted that it may be useful for you to be trialled on medication for OCD. Mr Kirker identifies several strategies that could assist you. He concludes that if your needs are met, and your OCD treated, you do not appear to be a high risk of re-offending. He says there are no notable indications that your prognosis cannot be favourable. You also have enduring family support.

Submissions

[8]    The Crown sought a starting point of 17 years six months, comprising 16 years for the methamphetamine as the lead charge, and an uplift of 18 months for possession of the firearms and ammunition. The Crown says you are a self-confessed supplier to two purchasers and so you must be considered an essential link in a profitable supply chain.

[9]    Mr Gotlieb sought a starting point of 12 years. Mr Gotlieb submits that you were a low-key intermediary, had no involvement in a criminal organisation outside the supply to the two purchasers in question and notes that they have been imprisoned. He also says that the money found was in connection to an unrelated crime or historic drug offending. Mr Gotlieb says your psychological issues were a driver of your offending. He also submits that you have a generalised interest in shooting, and there

should be no uplift for the firearms charges. He then emphasises that you have strong family support and good prospects of rehabilitation.

Starting point

[10]   My starting point for sentence. The logical inference to be drawn from the facts of your offending is that you were directly involved in a methamphetamine enterprise of a very significant commercial scale. Save in one respect, I will proceed in terms of sentencing on that simple basis. I do note additionally, however, that there is no evidence that you had led a lavish lifestyle, although you do admit that the cash was yours. This tends to support an inference that you may have been an intermediary only but have been in the methamphetamine supply business for some considerable time.

[11]   As will become clear, I consider your mental health condition contributed to your offending and must bear on your sentence. However, it is necessary to be clear about the scale of the present offending and the sort of sentence it must attract as a starting point.

[12]   R v Fatu1 remains the guideline case. The offending plainly falls well within Band 4, which attracts a sentence of 10 years to life imprisonment. I remain satisfied that a starting point of 15 years is appropriate, given the circumstances of this case and having regard to several sentences in comparable contexts, including R v Huang,2 Yim v R,3 He v R,4 R v Soleymani,5 and R v Norton.6 There must also be an uplift for the possession of firearms. As I have noted in your sentencing indication, I have not seen the possession of so many firearms in a case before me. Having regard to appellate court authorities, including Mills v R7 and R v Fonotia,8 an uplift of 12 months would be appropriate. That results in a combined starting point of 16 years.

1      R v Fatu [2006] 2 NZLR 72 at [34].

2      R v Huang HC Auckland CRI-2006-019-8458, 8 May 2009.

3      Yim v R [2017] NZCA 421.

4      He v R [2017] NZCA 77.

5      R v Soleymani [2014] NZHC 2088.

6      R v Norton [2016] NZHC 1035 at [13] – [16].

7      Mills v R [2016] NZCA 245 at [18].

8      R v Fonotia [2017] NZCA 188.

[13]   As to mitigating features, I now have evidence of a clear linkage between your offending and your OCD and anxiety. Indeed, your mental health explains the unusual facts of your offending: that you hoarded nearly three million dollars, that you held on to methamphetamine valued at two million dollars and that you had an excessively large arsenal of weapons. Perhaps more importantly, your OCD is treatable and the risk presented by you after treatment is low. This, in my view, attracts a discount on mental health grounds as mandated by the Court of Appeal in E v R.9 It also bears on whether you should be subject to a minimum sentence.

[14]   In terms of discount, some care is needed here. Although I do not view the general statements of the appellate courts about the limited availability of discounts for personal factors in methamphetamine cases as determinative on this point,10 you are not blameless. Your offending provided for your drug use and supplemented your income. While your OCD and anxiety appears to have contributed to the intensity and longevity of your offending, it is not the sole cause. I mentioned 5-10 per cent in my indication. I am, however, satisfied a moderately higher discount, of 15 per cent is merited in light of E v R and given the causative influence of your OCD and your capacity to rehabilitate with the benefit of treatment.

[15]   I am now content to afford a discount for a guilty plea of 25 per cent, contrary to my sentencing indication, is appropriate. It now appears that a guilty plea was signalled very early and the Crown has no substantive issue with that.

[16]   In the result, Mr McGrath, I will impose a sentence of 10 years and one month imprisonment. This reflects a starting point of 15 years, a 12-month uplift for the arms offending, a discount of 15 per cent to reflect the impact of your OCD on your offending, and a further discount of 25 per cent for the guilty plea.

[17]   As to minimum sentence, on the information available to me, I agree with the Crown that the pernicious nature of methamphetamine offending means that this type of offending usually commands a minimum period of imprisonment of 50 per cent. However, given my finding about the linkages between your OCD, anxiety and the

9      E v R [2011] NZCA 13.

10     Yim v R, above n 3, at [13].

offending, and having regard to your capacity to rehabilitate, I consider that a minimum sentence longer than that otherwise applicable under the Parole Act is unwarranted. The requirements of accountability, denunciation, deterrence and protection of the public are adequately met by a lengthy prison sentence.

Result

[18]   Please stand, Mr McGrath. On the charge of possession of methamphetamine for supply, I sentence you to 10 years and one month imprisonment. On the balance of the charges, I sentence you to two years imprisonment, to be served concurrently with the sentence for the methamphetamine offending. Please sit while I deliver my result in relation to suppression.

Suppression

[19]   I have an application for name suppression by your daughter. She has just turned 17. She is about to sit NCEA level 2. In support of this application, I have a psychological assessment by Shona Harvey. Your daughter is assessed as showing a low level of anxiety and is not manifesting depression. However, Ms Harvey suspects that your daughter may, like you, suffer from OCD though she has not formed a final view about that. She also notes that the media exposure will put her at risk of an increase in her compulsions and deterioration of her mental health. She says it may “throw her off track” with her plans to finish school and move into the field of training in Early Childhood Learning.

[20]   I also have the benefit of a report from the Children’s Commissioner. The report reminds me of her rights under the United Nations Convention on the Rights of the Child to be protected from “information and material injurious to their wellbeing”. It also details several of the risks to teenagers posed by social media. Relevantly, the report notes that not only were girls more likely to experience unwanted digital communication, but they were also more likely to be emotionally affected and unable to carry on with daily activities because of it.

[21]   The threshold for suppression of a defendant or a person connected to a defendant is high. Section 200 excludes suppression for you or your daughter unless

publication would be likely to cause extreme hardship. Even if it meets this threshold, I must be satisfied it is in the public interest to suppress. It is settled law that open reporting is usually to be favoured. Furthermore, Parliament has not expressly placed a young person in a special category.11 However, as the Court of Appeal stated in DP, in criminal cases concerning children, including the publication of name, the child’s best interests shall be a primary consideration. That observation concerned youth offenders. But it cannot be that a youth who is not culpable is less deserving of primary consideration than a youth offender.

[22]   I turn then to the first issue, is the publication likely to cause extreme hardship? I am satisfied there is a clear and appreciable risk your child will be subject to unwanted social media attention arising from publication of your offending. The reported experiences of children noted by the Commissioner for the Child, and the observations made by Ms Harvey, provides a sufficient foundation for that assessment. I am also satisfied your daughter is vulnerable to such attention, both as a young person at a key time of her life and as a person who is at risk of an increase in her compulsions and deterioration of her mental health. The inevitable damage to your daughter’s schooling could, as Ms Harvey put it, throw her off track.

[23]   This Court has, in other contexts, emphasised the importance of not cutting off the life choices made by young people through criminalisation.12 For my part, if there is cogent evidence that publication of an offender’s name is likely (in the sense of a real and appreciable risk) to derail a young person’s trajectory in life, the threshold for extreme hardship is met, at least while that risk remains real. Some of the authorities suggest only extreme mental health impacts qualify as extreme hardship, so that, for example, “a high risk of suicide” did not qualify.13 It is unnecessary for me to express a view about that approach, save to observe the test is extreme hardship, not life- threatening hardship. For my part, a publication impact that is likely to change the course of the life of a young person who is not an offender, negatively affecting their future in a significant and lasting way, may qualify as extreme hardship.

11 DP v R [2015] NZCA 476.

12 Gaunt v Police [2017] NZCA 590 at [15].

13 BL v R [2013] NZHC 2878 at [27].

[24]   In this regard, I have noted the Crown submission that impacts of this nature are to be expected for families of offenders, citing Liddell and Proctor.14 I am bound by the statements in Liddell and Proctor directing that open reporting and open justice must carry great weight in the assessment. But these statements must be applied in context. Protecting children from information and material injurious to their well- being is vastly more difficult that it was in the 1990s with the subsequent advent of global social media tools and hand-held devices that would have been, at that time, the stuff of science fiction.

[25]   The central issue remains, however, as to whether publication of your daughter’s name is likely to have this effect. That is difficult to assess at this distance. Some social media impact is almost inevitable, and your daughter’s present vulnerability (including at this time in her life when she is about to sit her NCEA exams), is a matter of real concern. However, there are mitigating features in terms of any long-term impact, including that she has the support of a tight-knit family who, as Mr Harvey also noted in her report, has pulled together through this challenging time. The test for extreme hardship is therefore not met in this case.

[26]   To my mind, however, an order suppressing the identification of your daughter until she has completed her NCEA exams this year to mitigate the risk of long term harm to her presented by publication is necessary to discharge the obligation to give primary consideration to your child’s wellbeing and is mandated by s 202 of the Criminal Procedure Act. In this regard, s 202 dealing with suppression in respect of connected persons, requires undue, not extreme, hardship. Furthermore, as the suppression is temporary and relatively brief, I do not consider the proscription against suppression of your identity in s 202(4) is triggered or that the principles of open justice and open reporting are undermined.

[27]   Having spoken to the members of the press gallery present and without them conceding in any way that suppression is appropriate, they indicated a preference for deferring publication of sentencing to a fixed date as a practical way of managing the suppression. In these circumstances, I suppress the identification of your daughter

14     R v Liddell [1995] 1 NZLR 538; Proctor v R [1997] 1 NZLR 295.

and,  by dint  of  that,  your  identity  and  publication  of  this  sentence  until Friday,

5.00 pm, 30 November 2018. Needless to say, the lifting of the suppression order is not an invitation to identify your daughter’s name as part of the publication of sentence. I also suppress any information relating to her personal medical conditions.