R v McLaine HC Rotorua CRI-2009-063-5871

[2011] NZHC 1911

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-063-5871

THE QUEEN

v

WARREN JOHN MCLAINE EDWARD PHILLIPS

Hearing:         24 November 2011

Counsel:         A Gordon and S Simmers for Crown

H Edward for Mr McLaine
A Balme for Mr Phillips

Judgment:      24 November 2011

SENTENCING REMARKS OF LANG J

R V MCLAINE & PHILLIPS HC ROT CRI-2009-063-5871 24 November 2011

[1]      Mr Phillips, you appear for sentence today having pleaded guilty to charges of being in possession of methamphetamine for supply between 11 March 2009 and

30 October 2009.   You have also pleaded guilty to supplying Lee Haira with methamphetamine between 12 August 2009 and 15 October 2009.  Finally, you have pleaded guilty to supplying methamphetamine to unknown persons between 1 March

2009 and 30 October 2009.

[2]      Mr McLaine, you have pleaded guilty to one charge of being in possession of methamphetamine for supply between 28 March 2009 and 28 October 2009.

[3]      Each of the charges to which the two of you have pleaded guilty carry a maximum sentence of life imprisonment.

Background

[4]      The charges against you follow a police operation targeting you, Mr Phillips, and another person in this district, Mr Williams.  The police obtained a number of interception warrants and these uncovered a busy network of drug dealers in this area, with Mr Williams being at the top of the tree.

[5]      Mr Phillips, you were engaged in a very regular basis on a street level selling methamphetamine.  The summary of facts contains a useful snapshot of your drug dealing activity.   It shows that you were receiving regular requests and enquiries from prospective purchasers, and you made numerous sales to these people.   In addition, you dealt with one of your co-accused, Ms Haira, and co-operated with her in obtaining methamphetamine from elsewhere.

[6]      You were living during this period In a caravan on Mr Williams’ property. The police conducted a surveillance operation over 45 days, and during that period observed more than three and a half thousand people coming to the property. Following a disputed facts hearing, Woolford J determined that approximately 30 per cent of these people were seen to go towards the caravan.[1]   You make the point that

not all of these people were coming to see you to acquire drugs.  Other people were

living  in  the  area,  and  not  all  of  the  visitors  were  there  to  acquire  drugs. Nevertheless, it is clear that a very substantial number of people came to the property to acquire drugs during that period.

[1] R v Williams HC Rotorua CRI-2009-063-5871, 29 June 2011.

[7]      You originally disputed the amount of methamphetamine that passed through your hands.  Ultimately, however, you accepted that 177 grams of methamphetamine was either in your possession for supply or the subject of actual supply.  I take you to be a busy street level dealer who operated with numerous contacts over a reasonably lengthy period.

[8]      Mr McLaine, your position is somewhat different.  You were associated with Mr Williams.  The Crown accepts that your role in the operation was largely as a middle-man, or go-between, who transported drugs and/or cash on Mr Williams’ behalf.  You were clearly a trusted lieutenant, and he relied on you to source and deliver drugs and cash for him.  On occasions when Mr Williams’ sources of supply were unable to supply him with drugs, you used your own contacts in an endeavour to source methamphetamine for him.

[9]      You stand to be sentenced on a different basis than Mr Phillips and Mr Williams.   You accept that 266 grams of methamphetamine passed through your hands.  This is obviously a large amount, but I accept that you made no commercial gain from that.  Rather, you obtained methamphetamine to feed your own habit.

Sentencing Act 2002

[10]     In any case involving dealing in methamphetamine issues of deterrence and denunciation are to the forefront.  As I am sure you know, the only realistic sentence for offending such as this is a lengthy term of imprisonment.

Starting point

[11]     All counsel accept that the starting point in each case is determined by a decision of the Court of Appeal called R v Fatu[2].  In that case the Court of Appeal identified bands of offending and set starting points of increasing severity for offending within those bands.

[2] R v Fatu [2006] 2 NZLR 72.

[12]     You, Mr Phillips, fall within Band 2 which relates to people who supply between 5 and 250 grams of methamphetamine.  The starting point in that band is between three and nine years imprisonment.

[13]     Mr McLaine, you fall in the same category and, on the face of it, the starting point would normally be greater for you simply because of the quantity of methamphetamine that passed through your hands.

[14]     Importantly, however, the Court of Appeal emphasised in Fatu that weight alone is not the guiding factor.   Rather, the Court must take an overview of the offender’s role in the operation in order to set an appropriate starting point.  Those who are prime movers can obviously expect to be dealt with towards the upper end of the band.

[15]     Mr Phillips, you clearly fall within that category because of the extent to which you were dealing in methamphetamine and the number of people with whom you dealt.  There is a slight dispute between counsel regarding the starting point to be applied  in  your case.   The Crown  submits  that the starting point should be between seven and eight years imprisonment, whilst your counsel submits that it should be between six and seven years imprisonment.

[16]     When Woolford J sentenced Mr Williams, he took a starting point of 13 years imprisonment,[3]  but Mr Williams’ offending was much more serious than yours.  It also involved different types of offending.  On the charge of being in possession of

methamphetamine for supply, the Judge took a starting point of ten years ten months

imprisonment.  Having regard to your activity, I consider that an appropriate starting point is one of seven years imprisonment.

[3] R v Williams HC Rotorua CRI-2009-063-5871, 22 July 2011 at [17].

[17]     Mr McLaine, you fall at the other end of the spectrum, notwithstanding the greater amount of methamphetamine that passed through your hands.  The fact that you did not own the methamphetamine, or derive any benefit from it, is important. You were, however, part of a commercial drug dealing operation and, obviously, an important part so far as Mr Williams was concerned.

[18]     Your counsel submits that a starting point of four to five years imprisonment is  appropriate.     The  Crown  submits  that  five  to  six  years  imprisonment  is appropriate.  Notwithstanding the limited role that you played in the operation, you handled a very significant quantity of methamphetamine.  I consider that a starting point of five and a half years imprisonment is appropriate.

Aggravating factors

[19]     I now need to consider whether there are any aggravating factors that should operate to increase the starting point.

[20]     Mr Phillips, this is not the first time that you have appeared before the Court on drug-related charges.  You have a reasonably lengthy history now of drug-related convictions.  Previous convictions are an aggravating factor as the Sentencing Act

2002 recognises.[4]    The point of applying an uplift to reflect this factor is not to

punish you again in respect of previous offending.  It simply reflects the fact that you know the score.  You know that severe penalties will apply if you get involved in drugs, and yet you have made the conscious decision in that knowledge to carry on regardless.  You have now reached the stage where an uplift is virtually inevitable on any occasion where you appear for sentence for offending such as this.  I propose to apply an uplift of nine months to reflect this factor.

[4] Section 9(j).

[21]     Mr McLaine, you, too, have previous convictions, although none for Class A

drug  dealing.    The  most  serious  offending  occurred  in  1998  when  you  were

convicted on a charge of conspiracy to supply cannabis.  I have read the judgment of the Court of Appeal when you appealed against the sentence imposed upon you.[5]

That decision makes it clear that you were a busy cannabis dealer in 1998.

[5] R v McLaine CA355/00, 30 November 2000

[22]     I have given careful consideration to whether I should apply an uplift and, in the end, have decided not to for two reasons.  First, you have not been involved in Class A dealing before.  Secondly, that serious conviction was some 13 years ago. You will no doubt take on board, Mr McLaine, that if you appear for sentence again for offending such as this, an uplift will be virtually inevitable.

Mitigating factors

[23]     I now need to consider the extent to which I should reduce the starting point that I have selected to reflect mitigating factors.

[24]   You have each supplied me with letters indicating your remorse and determination to change your path and steer clear of drugs in the future.  I hope that that is the case, but really you have had ample warnings in the past that should have served as a deterrent to prevent this offending.

[25]     The only real factor that I can give weight to is the fact that you pleaded guilty.  Mr Phillips, you pleaded guilty on 1 September 2011, approximately three weeks before your trial.  Mr McLaine, you pleaded guilty on the first day of your trial.

[26]     I accept, however, that there were ongoing discussions between your counsel and the Crown that affected the decision to plead guilty.   I propose to make an allowance for that of around 15 per cent in the sentence that I impose.

Sentence

[27]     Mr Phillips, on each of the charges to which you pleaded guilty you are sentenced to six years seven months imprisonment.

[28]     Mr McLaine, on the charge to which you pleaded guilty you are sentenced to five years one month imprisonment.

Minimum term of imprisonment

[29]     I  now  to  give  consideration,  Mr  Phillips,  to  whether  I should  impose  a minimum term of imprisonment.  I have the power to do that when it is necessary to reflect issues of deterrence, denunciation and accountability.[6]

[6] Sentencing Act 2002, s 86

[30]     Ordinarily you would be eligible for parole after serving approximately two years and three months.   Your counsel tells me that you have nearly served that period in prison, and that you will not be eligible for parole until such time as you have completed a drugs course.  That has not been possible whilst you have been on remand, because the course is only available to sentenced prisoners.  His submission, in reality, is that it is pointless imposing a minimum term of imprisonment, because you will no doubt be required to serve a considerable period before you are eligible for parole.

[31]     That may be the case but, in my view, I need to reflect the fact that this was very serious drug offending.  In addition, you have serious convictions in the past, including a conviction for manufacturing methamphetamine that earned you a substantial term of imprisonment.  I take the view that those factors mean that the criteria set out in s 86 of the Sentencing Act 2002 are fulfilled, and that a minimum term  of  imprisonment  is  required.    I direct  that  you  serve a minimum  term  of imprisonment of three years and three months before being eligible to apply for

parole.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Counsel:

H Edward, Rotorua
A Balme, Tauranga