R v McKinley
[2017] NZHC 834
•28 April 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-085-006779 [2017] NZHC 834
THE QUEEN
v
DARREN GEORGE SAMUEL MCKINLEY
Counsel: P K Feltham for Crown
E A Hall for Defendant
Sentence:
28 April 2017
NOTES ON SENTENCE OF COLLINS J
Introduction
[1] Mr McKinley, you are being sentenced today in relation to the following charges:
(1) Three charges of supplying methamphetamine.1
(2) One charge of possession of methamphetamine for supply.2 (3) One charge of participation in an organised criminal group.3 (4) Two charges of conspiracy to supply methamphetamine.4
(5) One charge of conspiracy to defeat the course of justice.5
1 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum sentence is life imprisonment.
2 Section 6(1)(f) and (2)(a). Maximum sentence is life imprisonment.
3 Crimes Act 1961, s 98A. Maximum sentence is 10 years’ imprisonment.
4 Misuse of Drugs Act 1975, s 6(2A)(a). Maximum penalty is 14 years’ imprisonment.
R v MCKINLEY [2017] NZHC 834 [28 April 2017]
[2] You pleaded guilty following a sentence indication on 16 August 2016. That indication was five years and five months’ imprisonment. I noted that further deductions may be taken into account at sentencing. You have now completed the first phase of a drug treatment programme at Odyssey House, which I will factor into your sentence.
[3] This afternoon I shall:
(1) summarise your offending;
(2) explain the starting point I have adopted;
(3) explain adjustments to the starting point; and
(4) explain your final sentence.
Your offending
[4] Since early 2013, the investigation “Operation Fantail” targeted a large scale methamphetamine supply network. You are one of the defendants who was involved in the sale and distribution of methamphetamine.
Supplying methamphetamine
[5] The supplying of methamphetamine charges relate to three incidents between
23 March and 10 June 2014.
[6] The first incident involved a number of transactions with your co-defendant
Mr Stretch where you would meet at your home address or nearby. A total of
68 grams of methamphetamine was supplied to Mr Stretch.
[7] The second incident involved you supplying methamphetamine to a number of individuals on a number of occasions. There were more than 90 transactions,
usually involving a quarter of a gram of methamphetamine.
5 Crimes Act 1961, s 116. Maximum penalty is seven years’ imprisonment.
[8] The third incident involved you supplying Mr Murdoch regularly one gram of methamphetamine on at least 16 occasions.
Conspiracy to supply methamphetamine
[9] The conspiracy charges refer to two incidents.
[10] On 21 May 2014, you worked with Mr Beazley in arranging the supply and purchase of a large amount of methamphetamine from the Auckland-based defendant, Mr Wildman. Eventually all parties agreed on a price of between
$63,000- $65,000 for 142 grams of methamphetamine. You arranged the delivery of cash with Mr Murdoch, another defendant whom I have sentenced, and drove with Mr Beazley to meet the couriers at a motel in Paraparaumu.
[11] The deal was intercepted by police who located 142 grams of methamphetamine and a handwritten note with Mr Beazley’s first name spelt on that note along with his phone number and the confirmed price of $65,000.
[12] On 23 April 2014, you arranged the supply of methamphetamine with Ms Foubister but the actual supply did not occur. On 28 April 2014, you instructed Mr Beazley to make contact with another Auckland associate to purchase methamphetamine. The arrangement was intercepted by the authorities, who located
$16,000 cash on Mr Beazley although they did not find any methamphetamine. On
25 May 2014, you again attempted to arrange a deal with Ms Foubister but this fell through. You contacted Mr Beazley to arrange an alternative deal but the associate in Auckland refused to supply methamphetamine to you.
Possession of methamphetamine for supply
[13] The possession of methamphetamine for supply charge relates to the police executing a search warrant on 10 June 2014, at the apartment you shared with Ms Ryan. Approximately four grams of methamphetamine was located alongside
$3,795 in cash, digital scales, drugs utensils and small plastic bags typically used to package one gram amounts of methamphetamine.
Conspiracy to obstruct the course of justice
[14] In relation to the conspiracy to obstruct the course of justice charge, on
10 June 2014 you were arrested and charged. Despite a requirement for Ms Ryan not to contact or associate with you, you called her from prison on 25 June 2014.
[15] You told her you were concerned about the money hidden on Mr Murdoch’s property and directed Ms Ryan to meet Mr Murdoch to discuss the money situation. You also spoke with a Ms Leighton to uplift the money. Essentially you and Ms Ryan were working together to prevent the seizure of evidence.
Personal circumstances
[16] You are 48 years old and have a history of drug and alcohol related offending. A comprehensive alcohol and drug assessment dated 3 June 2016 was presented to me at your sentence indication and the report-writer indicated you suffered at that time from drug addiction, anxiety and low mood. You have a 14 year old son and you have ongoing custody issues. However, you have recently reported having goals to be sober, to seek employment and to be a good father to your son.
Starting point
[17] The lead charges are the three charges of supplying methamphetamine. In setting the starting point I will also take into account the other methamphetamine related charges. The accepted amount for the purposes of this sentence is 240 grams. The tariff judgment is R v Fatu.6 Your offending sits within band two of that case, where the quantity of methamphetamine is between five grams and 250 grams and the starting point is generally between three and nine years’ imprisonment.7
[18] I consider the following features of your offending to be aggravating factors:
(1)Planning and premeditation:8 your offending spanned a period of five months and your primary vocation during that time was
6 R v Fatu [2006] 2 NZLR 72 (CA).
7 At [34].
8 Sentencing Act 2002, s 9(1)(i).
supplying methamphetamine. Your ongoing dealing in controlled drugs was planned and premeditated.
(2)Quantity, value and frequency:9 the accepted quantity of methamphetamine you dealt with is 240 grams. This equates to approximately $102,000 to $119,000 at street value. Ms Hall submits the conspiracy to supply charges involved 142 grams of methamphetamine and the lower maximum penalty of 14 years’ imprisonment should be taken into account. The total amount still places you at the uppermost end of band two of R v Fatu.
(3)Your role in the offending:10 your role in the overall drug operation was that of an “operations manager”. You co-ordinated the supply of methamphetamine from your home address and directed the activities of several associates within the supply network, including Ms Ryan and Mr Beazley. You reported regularly to Mr Evans, who is said to have headed the supply network.
[19] The Crown submitted a starting point of eight to nine years’ imprisonment. Ms Hall has submitted a starting point of no more than seven years’ and six months’ imprisonment should be adopted.
[20] In taking into account the quantities involved, the pivotal role you played in the operation, the starting points of your co-offenders11 and comparable cases,12 I have concluded that a provisional starting point of seven years and six months’
imprisonment is appropriate.
9 R v Fatu, above n 6.
10 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 on 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.11 R v Beazley [2016] NZHC 1743; R v Ryan [2016] NZHC 1535; R v Murdoch [2015] NZHC
2928 and R v Foubister [2015] NZDC 26065.
12 R v Nelson HC Auckland CRI-2008-092-018743, 3 February 2010 and R v Guthrie [2013] NZHC 1783.
Uplift
[21] From that provisional starting point, a moderate uplift is appropriate to reflect the additional charge of conspiracy to defeat the course of justice. I have considered other cases that have involved this charge13 and an uplift of six months’ imprisonment is appropriate.
Personal aggravating factors
[22] You also have a number of relevant previous convictions for drug and related offences. Your history of serious drug offending is concerning. It includes four previous convictions for possession of methamphetamine for the purposes of supply. Your previous convictions warrant an uplift of six months’ imprisonment.
[23] This results in a provisional sentence of eight years and six months’
imprisonment.
Personal mitigating factors
[24] I now turn to personal mitigating factors.
Rehabilitation
[25] At the time of your sentence indication you had completed two drug and alcohol courses while on remand for these charges. You put before the Court at that time evidence of being drug free and had demonstrated good insight into your need for intense drug rehabilitation. I indicated a discount of 15 months for the rehabilitative steps you had taken.
[26] You have now completed Phase 1 of a drug treatment programme at Odyssey House. You were discharged from that programme after six months. You were granted bail from Wellington to travel to Auckland and to self report to the programme on 25 September. A term of your bail was that when you were
discharged from the programme you would voluntarily return to custody. You spent
13 Buchanan v Police HC Rotorua CRI-2008-470-26, 27 August 2008 and R v Cole [2012] NZHC
2482.
six months at the Odyssey House programme and Ms Hall notes that you were compliant with restrictive bail conditions. She considers you should be entitled to a discount in this respect and you have been also in custody for the past month.
[27] Your pre-sentence report dated 18 April 2017 says you have learnt a lot from the programme at Odyssey House and that you are motivated to change your lifestyle. You have indicated to the report-writer that you now have a pro-social support network and that you have the skills and tools in order to “keep on the straight and narrow”. You expressed motivation to continue to engage in further rehabilitation.
[28] I indicated at your sentence indication you may be entitled to an additional discrete discount on the completion of rehabilitation at Odyssey House. I am willing to give you a further discount of six months comprising three months for the completion of Phase 1 of the Odyssey House programme and three months for the restrictive bail terms which you complied with when completing that programme.
Forfeiture
[29] At the time of the sentence indication civil restraint proceedings had not been completed in respect of a motorcycle and two cars valued at approximately $50,000. Counsel agreed that you have said that you would forfeit the vehicles and that has now occurred.
[30] I was not at the time of the sentence indication willing to offer a discount for the forfeiture of your property. Ms Hall maintains that a discrete discount ought now to be made available and the Crown agrees.
[31] I am willing to allow a further discount of three months to reflect this factor.
Remorse
[32] I indicated you would be entitled to a discount if genuine remorse were evident. You have prepared a letter to the Court outlining your attitude to the offending and I accept that you are remorseful. Authorities also emphasise that
remorse is rarely a mitigating factor when serious drug offending is involved. I will however provide you with a discount of three months for your genuine remorse.
Guilty plea
[33] The Crown concedes or accepts that you are entitled to a full discount for your guilty plea. I am prepared to accept the Crown’s concession on this point and consider a discount of 25 per cent to be appropriate.
Result
[34] The result is a final sentence of four years and eight months’ imprisonment.
[35] I sentence you to concurrent terms of imprisonment of four years and eight months on each charge. This means your end sentence is one of four years and eight months’ imprisonment.
[36] Please stand down.
D B Collins J
Solicitors:
Crown Solicitor, Wellington
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