R v McMeekan
[2022] NZHC 2557
•5 October 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-009-3724
[2022] NZHC 2557
THE KING v
TAMAL EDWARD MCMEEKAN
Hearing: 5 October 2022 Appearances:
C C White for Crown
T D A Harré for Defendant
Judgment:
5 October 2022
JUDGMENT OF OSBORNE J
Introduction
[1]Mr McMeekan, I am going to ask you to stand.
[2] Tamal Edward McMeekan, you appear for sentence in relation to the following charges to which you pleaded guilty on 28 June 2022:
(a)possession of methamphetamine for supply;1
(b)obstructing or hindering a medical officer of health or person assisting a medical officer;2
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2) – maximum penalty of life imprisonment.
2 Health Act 1956, s 72(d) – maximum penalty of six months’ imprisonment and/or a fine of $4,000.
R v TAMAL EDWARD MCMEEKAN [2022] NZHC 2557 [5 October 2022]
(c)failure to carry out obligations in relation to a computer search;3 and
(d)possession of cannabis.4
[3] As counsel have mentioned, I provided you with a sentencing indication on 20 June 2022, following which you entered your guilty pleas. I will now be sentencing you in line with that indication, which will be attached to the typed version of these sentencing remarks.
[4] Mr McMeekan, I am shortly going to ask you to sit again while I explain the sentence I will be imposing on you. This will take some time and I will indicate to you towards the end when you need to stand again.
[5]Please be seated now.
The offending
[6] You agreed with the summary of facts presented by the Crown and I now summarise those facts.
The methamphetamine operation
[7] In October 2019, the Canterbury Organised Crime Unit commenced an investigation into the drug dealing activities of members and associates of the Tribesmen Motorcycle Club (Tribesmen) gang in Canterbury. It was revealed that Tribesmen members and associates were regularly involved in the purchase and distribution of significant quantities of methamphetamine. You were a prospect of the Tribesmen and Mr Ilton was an associate of that gang. You were recruited into the gang by a patched member who had a close relationship with Mr Ilton (namely, James Symons).
[8] The agreed summary of facts records that you were likely utilised by the Tribesmen due to your expertise with motorcycles, your ability and flexibility to travel
3 Search and Surveillance Act 2012, s 178 – maximum penalty of three months’ imprisonment.
4 Misuse of Drugs Act, s 7(1)(a) and (2) – maximum penalty of three months’ imprisonment.
domestically to facilitate drug offending by the gang around New Zealand, and your loyalty to the gang. However, it is not believed that you held any degree of control or influence in the criminal enterprise, nor would you have received significant financial reward for your involvement.
The search warrant
[9] On the morning of 3 May 2020, you arrived in Christchurch from Wellington. At about 4.03 pm you arrived at Mr Ilton’s property in Bryndwr, Christchurch. At
4.09 pm you left the address in a vehicle with Mr Ilton. You and Mr Ilton returned at
5.11 pm and Mr Ilton entered the property.
[10] At 5.14 pm that day, police executed a search warrant on Mr Ilton’s property and on the vehicle you and Mr Ilton had been driving.
[11] You were located seated in the front passenger’s seat of the vehicle. At your feet in the footwell was a cardboard box containing three large vacuum-packed plastic bags. These bags contained a total of 2,996.07 grams (or just under three kilograms) of methamphetamine, a Class A controlled drug, with an estimated street value of between $2 million and $3 million. Mr Ilton was located inside the address. He was found in possession of a set of keys for the vehicle.
[12] A total of $38,834.40 cash was seized during the search of the property and the vehicle, including $6,025 located in a drawer inside Mr Ilton’s bedroom, $22,400 located concealed behind a computer server in the garage, $1,320 located in a wallet belonging to Mr Ilton, and $350 cash located in a shoulder bag belonging to you. Located on the floor of the garage were two sets of scales, a bag of rubber bands and a box of ziplock bags. Thirty-five used Prezzy Cards (a non-traceable credit card payment form usable in person or online) were located in the address with a value in excess of $8,500.
[13] Also located inside your shoulder bag was a ziplock bag containing dried cannabis plant material.
[14] During the search of the vehicle, your cell phone was located in a cupholder between the seats. Police formally requested you to provide the PIN code for your cell phone,5 but you refused to do so. This gave rise to a charge of failing to carry out obligations in relation to a computer search.
[15] At the time of the alleged offending, Alert Level 3 lockdown restrictions were in place nationwide in response to the COVID-19 pandemic. Police were legally authorised to assist a medical officer of health to ensure compliance with Ministry of Health directives.6 You resided at a Lower Hutt address and were unable to provide a reasonable excuse for travelling to Christchurch or associating with Mr Ilton in breach of COVID-19 lockdown restrictions.
[16] Analysis of your cell phone found in your possession at the time of your arrest revealed your Instagram chat name is “Scumbag tmc” and your WhatsApp name is “Scumbag Ko”. Call data for 4 May 2020 shows that between the period of 4.59 pm and 5.12 pm, five calls were made/received from an unknown caller named “Scrumarse13 Dad”. Whilst in custody you referred in prison calls to being on the phone with “Jamie” at the time police executed the search warrant (“Jamie” being Mr James Symons).
[17] Those are the facts you admitted when you sought a sentence indication and entered your guilty pleas.
[18] I observe that in the comments you made to the Department of Corrections pre-sentence report writer — where you spoke, for instance, of not knowing anything about the package or Mr Ilton’s gang association — you have downplayed the role that is indicated by the agreed summary of facts, suggesting your role was limited to picking up and transporting vehicles and the like. As it is, you will be sentenced with a starting point based upon the summary of facts you accepted and as I have discussed.
5 Pursuant to s 130 of the Search and Surveillance Act 2012.
6 Health Act, s 71A.
Sentence
[19] As you have heard me say to you before, Mr McMeekan, in setting the period of imprisonment I should impose on you, I first need to indicate a starting point of the period of imprisonment that reflects the seriousness of your crime.
[20] As I explained in my sentence indication, Zhang v R is the decision applicable to the methamphetamine charge.7
[21] Your offending (possession of 2.996 kgs of methamphetamine) on its face falls into Band 5 of Zhang, which provides that a starting point of 10 years to life imprisonment will be appropriate where the dealing involves more than two kilograms of methamphetamine.8 Reduction of the starting point below 10 years generally requires involvement in the offending that falls into the “lesser” category.9
[22] I consider your role is properly categorised as at the top end of “lesser” for the reasons I set out in my sentence indication. I also consider an inference can be drawn from the summary of facts that you were involved in overseeing the collection of the methamphetamine to the extent that, as a prospect within the gang, you provided your experience and connections to facilitate the collection and delivery of the drug. That said, you performed a limited function under the direction of others.
[23] The starting point I adopted in your sentence indication also took into account, for the reasons then explained, your role as a ‘catcher’, being a person who holds very large quantities of drugs in their possession but has a very junior role in the overall organisation.
[24] The starting point I therefore adopted, and retain, is seven and a half years’ imprisonment. Of course, in the sentence indication I deducted from that the allowance for your guilty plea.
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
8 At [125].
9 At [123]. See also, McMillan v R [2022] NZCA 128 at [138].
Personal factors — aggravating
[25] You will have your sentence adjusted by 10 per cent on account of your prior history of criminal offending.
Personal factors — mitigating
Guilty plea
[26] In your sentence indication, I indicated that if you promptly pleaded guilty to the charges you would receive (as in the case of your co-offender, Mr Ilton) a discount of 20 per cent.
[27] Any remaining personal mitigating factors were left for consideration at this sentencing, in light of the reports to be received and the further submissions of Mr Harré, on your behalf, and of the Crown.
[28]I have received three additional reports:
(a)the pre-sentence report of your probation officer;
(b)a report provided under s 27 Sentencing Act by Dr Jarrod Gilbert and his colleagues; and
(c)a psychiatric report presented by Dr Julie Norris, a consultant forensic psychiatrist.
I have carefully read each of those reports and have regard to the submissions counsel have made in relation to them.
[29] On your behalf, Mr Harré submits that the s 27 and psychiatric reports demonstrate matters of deprivation and disadvantage in your background and make-up that are sufficiently linked to your offending to justify a discount of 10 per cent. The
disadvantage that may be revealed, for instance through a s 27 report, may result in an impaired choice and therefore be relevant to the overall assessment of culpability.10
[30] Dr Gilbert’s s 27 report was prepared upon the basis of an extensive interview with you. That said, I accept the matters to which he refers are not simply matters of self-reporting — he refers to having corroborated details of your account by speaking to your mother and your partner.
[31] I do not intend in these sentencing remarks to detail all the disadvantages of your growing up, as covered in the s 27 report. Headings in Dr Gilbert’s report indicate what are reasonably established disadvantages — absence of parental connections; instability of care and housing; experience of bullying during childhood; sexual and physical abuse; and coercive control by caregivers and intimate partners.
[32] Dr Gilbert referred also to mental health concerns but recognised that those were for another professional to diagnose and consider.
[33] The psychiatric report provided by Dr Norris comes in at that point. She interviewed you at length and had access to your relevant medical and ACC records, as well as discussion with your ACC counsellor and your partner. She concludes that you clearly meet the criteria for post-traumatic stress disorder (PTSD). She also refers to the historic diagnoses of a Major Depressive Disorder and Social Anxiety features. For completeness, I note that Dr Norris discounts the likelihood of a diagnosis of “Stockholm Syndrome”, despite your reference to suffering that condition.
[34] Mr Harré responsibly accepts that the matters in your background do not represent immediately proximate causes of your offending. That said, I accept they do provide some explanation for your susceptibility to coming under the influence of gang members and progressing to a role where, with little apparent benefit for yourself, you were involved in this very serious criminal offending. I accept in these circumstances, as submitted by Mr Harré, a 10 per cent discount is appropriate to reflect the matters of disadvantage that impaired your decision-making.
10 Zhang v R, above n 7, at [155].
Prospects of rehabilitation
[35] Mr Harré submitted that a discount of around five per cent might be available to support your prospects of rehabilitation. He noted particularly the prosocial influence you now have in your life through your partner, and the issues around your prolonged periods of imprisonment as identified by Dr Gilbert. In the circumstances of your history, and against the background of the 10 per cent discount to which I have already referred, I do not consider a further discount as suggested appropriate.
Time on recall
[36] At the time of your present offending, you were on parole after having been sentenced in April 2015 to five years and six months’ imprisonment for the possession of methamphetamine and amphetamine for supply. Following the laying of the present charges, on 4 May 2020, you were recalled to continue serving that earlier term of imprisonment. You had been on parole for approximately eight months. Since your recall, you have been in custody. Your end sentence date on the earlier charges was 3 February 2022. You therefore spent approximately 21 months on recall.
[37] Mr Harré refers to Oliver v R as authority for the proposition that time spent on recall may justify a discrete discount at sentencing.11 The Court of Appeal in Oliver v R, recognising that time spent in custody on recall should be considered, nevertheless observed that the Judge would have had to consider an uplift to reflect the fact the appellant offended while on parole, with the two adjustments (that is a potential uplift and a potential discount) to some extent at least cancelling each other out.12
[38] Mr Harré submitted by reference to discounts allowed in previous cases that two thirds of the time you spent on recall (approximately 12 months) might be considered an appropriate discount.
[39] Mr White, for the Crown, recognised that a discount for time spent on recall may be appropriate but submitted the discount should be less than that proposed by
11 Oliver v R [2014] NZCA 285 at [7], [9]. See also Fane v R [2019] NZHC 408.
12 Oliver v R, above n 11, at [9].
Mr Harré. He observed, correctly on my assessment of my own notes, that in my sentencing indication I did not provide a discrete uplift in relation to your breach of release conditions. The uplift of nine months’ imprisonment or 10 per cent primarily related to your previous offending — the breach of release conditions to which I referred in my notes, as I have stated, reflects the greater need for deterrence,13 but did not lead to the additional uplift that could have been justified by reference to the fact your offending occurring while on parole.
[40] Having regard to these considerations, I have assessed that a credit of six months, equivalent to 7.5 per cent of the starting point sentence of seven and a half years’ imprisonment, is appropriate.
Final calculation
[41] My calculation of the sentence you will serve on the methamphetamine charge is therefore as follows:
(a)a starting point of seven and a half years’ imprisonment (90 months);
(b)an uplift of 10 per cent for your previous offending offset by credits of 20 per cent for your guilty plea, 10 per cent for matters of disadvantage and 7.5 per cent for time spent on recall;
(c)that produces an overall discount of 27.5 per cent from the starting point of 90 months.
[42] As a result, I consider the appropriate sentence you should serve on the methamphetamine charge is five years and five months’ imprisonment.
[43] In accordance with the sentence indication I gave, concurrent sentences of imprisonment will be imposed on the search and surveillance charge and the cannabis charge, with no additional sanction imposed on the Health Act charge.
13 At [42].
[44] I do not consider a minimum period of imprisonment is required under s 86 Sentencing Act.
Conclusion
[45] Mr McMeekan, stand please. Tamal Edward McMeekan, I sentence you on the following charges:
(a)on the charge of methamphetamine for supply, five years and five months’ imprisonment;
(b)on the charge of failure to carry out obligations in relation to a computer search, two months’ imprisonment;
(c)on the charge of possession of cannabis, one month’s imprisonment; and
(d)on the charge of obstructing or hindering a medical officer of health or person assisting a medical officer, you stand convicted and are discharged.
[46] The sentences that I mentioned second and third — that is on obligations in relation to a computer search and cannabis — are to be served concurrently with the sentence on the methamphetamine charge.
[47]Please stand down.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
Copy to: T Harré, Barrister, Christchurch
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTEN C1NG INDICATION IN ANY NEWS MEDIA OU ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED Bà' SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL Ti-IE DEFEINDANT nos iiErs sENTfiNCED OR THE CHAnGE DISMISSED. SEM
http:/7wiwv.legislation.govt.riz/act/public/2011/0081/latest/DLM3865734.html
IN THE HUH COURT OF NEW ZEALAND CHRISTCIIURCH REGISTRY
I Tf KÖTI MATUA O AOTEAROA ÖTAUTAHI ROHE
CR1-2020-009-3724
{2022] NZHC 1456
THE QUEEN
TA MAL EDWARD MCMEEKAN
Hearing:
Indûment:
20 June 2022
'f D A Harré for Dcfendant l’amal McMeekan 20 June 2022
OUI JUDGMENT OU OSBORNE J
(Sentence indication)
R v MCM ËËK AN 20?2] NZHC l 45f' [20 June 2022]
[1] Mr McMeekan, plcasc stay seated while 1 address you. You can stay seated throughout what I say.
Introduction
[2] Tamal Edward McMeekan, you have sought a sentencc indication in relation to the following charges:
(a)possession of methamphetamine for supply; "
(b)obstructing or hindcring a medical officcr of health or person assisting a medical officer; '’
(c)failure to carry out obligations in relation to a computer search; ' ' and
(d)possession of cannabis. '
[3] Mr McMeekan is to be tricd together with his co-defendant, Trcnt Ilton, on 4 July 2022. Mr Ilton has already sought a sentence indication, which he accepted. '1 hat indication was for a starting point of nine and a half years’ imprisonment, with credit of 20 per cent to be applied at sentencing for his guilty plea, in addition to any other personal mitigating factors.
Facts
[4] The following summary of facts has been agreed for the purposes of this sentencing indication.
The methamphetamine opei’ation
IU ln Octobei' 2019, the Canterbury Organised Crime Unit commcnced an investigation into the drug dealing activities of members and associates of the Tribcsmen Motorcycle Club (Tribesmen) gang in Canterbury. It was revealed
!’ Misusc uf Drugs Act I 97'i, s 6(1)(I) and (2) max iinuln penalty u£ like irnprisom1)ent.
" Health Act I 9SG, s 72(d) —111ax influx penalty of six months’ imprisoni1 ent and/or a fine nf $4,000.
!‘ Search and Sub vci1lance Act 2012, s 17—8 " Misuse uf th ugs Act, s 7(i)(a) and (2—)
max itnuin penalty of three months' iinpi isunillcnl. max im‹iin penalty of thi ee men Ihs’ iln pi isonn ent.
ribesmen members and associates were regular ly involved in the purchase and distribution of significant quantities of' methamphetamine. Mr McMeekan was a prospect ot the Tribesmen and Mr Ilton was an associate of that gang. Mr McMeekan was recruited into the gang by a patched member who had a close relationship with Mr Ilton (namely, James Symons).
[6] The agreed summary of facts records that Mr McMeekan was likely utilised by the Tribesmen due to his expertise with motorcycles, his abil ity and flexibility to travel domestically to facilitate drug offending by the gang around New Zealand, and his loyalty to the gang. However, it is not believed that Mr McMeekan field any degree of control or influence in the criminal enterprise, nor would he ha›'e received significant financial reward for his incolvement.
The search v arrant
[7] In the morning of 3 May 2020, Mr tvtcMeekan at-rived in Christchurch from Wellington. At about 4.03 pm he aiTived at Mr Ilton’s property in Fiiyndwr, Christchurch. At 4.09 pm he left the address in a vehicle with Mr Ilton. They returned at 5.11 pm and Mr Ilton entered the property.
[8] At 5.I 4 put that day, police executed a search w’arrarit on Mr Ilton's property and on the vehicle Messrs Ilton and McMeekan had been driving.
[9] Mr McMeekan was located seated in the front passenger’s scat of the vehicle. At his feet in the footwell was a cardboard box containing three large vacuum-packed plastic bags. These bags contained a total o1 2,996.07 grams (or just under three kilograms) of inethamphetamine, a Class A controlled dnig, with an estimated street value of between $2 million and $3 million. Mr Iltcn was located inside the address. I Ie was found in possession of a set of keys for the vehicle.
[10] A total of $38,834.40 cash was seized during the search of the property and the vehicle, including $6,025 located in a drawer inside Mr Ilton’s bedroom, $22,400 located concealed behind a computer servel- in the garage, $1,320 located in a wallet belonging to Mr Ilion, and $350 cash lt›cated in a shoulder bag belong ing to Mr McMeekan. Located on the floor of the garage were two sets of scales, a bag of rubber
bands and a box of ziplock bags. Thirty-five used Prezzy Cards (a non-traceable credit card payment form usable in person or online) were located in the address with a value in excess of $8,500,
[11] Also located inside Mr McMeekan’s shoulder bag was a ziplock bag containing dried cannabis plant material.
[12] During the search ot the vehicle, Mr McMeekan’s cell phone was located in a ccpholder betwecn the seats. Police formally requested Mr McMeekan provide the PIN code for his cell phone,' ' but he refused to do so. This gave rise lo a charge of failing to carry out obligations in relation to a computer search.
{13] At the time of tic alleged offending, Alert Level 3 lockdown restrictions were in place nationwide in response to the COVID-19 pandcmic. Police were legally authorised to assist a medical officer of health to ensure compliance with Ministry of Health directives. ' Mt McMeekan resides at a Lower Hutt address and was unable to provide a reasonable excuse for travelling to Christchurch or associating with Mr Ilton in breach of COVlD-19 lock down 1’cstrictions.
[14] Analysis of Mr McMeekan’s cell phone found in his possession at the time of his arrest reveals his Instagram chat name is "Scumbag tmc” and his WhatsApp narrie is “Scumbag Ko”. Call data for 4 May 2020 shows that between the period of 4.59 pm and 5.12 pm, five calls were made/received from an unknown caller named “Scrumarse 13 Dad”. Whilst in custody Mr McMeekan refeNed in prison calls to being on the phone with “Jamie” at the time police executed the search warrant (Jamie being Mr James Symons).
'’ Pursuant to s 130 of tile Search and Survei I lance Act 2012. '’ Hea Pitt Act, s 7 I A.
Submissions
Crown 's submissions
[15] Zhang v fi is the Court of Appeal’s tariff dccision applicable to the lead offending of possessing methamphetamine for supply."
[16] On behalf of the Crown. Ms Mills submitted the alleged offending falls comfortably into band tive of Zhang. She submitted Mr McMeckan’s rtile has aspects of both the “lcsSCf” and “significant” categoi'ies and, like Mr Ilton, falls somewhere in between these categories. Ms Mills submitted that, as a prospect of the Tribesmen, he provided the gang connection and experience in comparison to Mr Ilton. She argued Mr McMeekan is someone with considerable experience in sourcing methamphetamine from Auckland and was sent to Christchurch to oversee the collection of the methamphetamine. She submitted the offending was aggravated by the quantity involved and its purely commercial motive. However, she acknowledged that, while Mr McMeekan had awareness of the commercial operation and had travelled domestically on a number of occasions, he was neither part of the controlling mind of the operation, nor had organisational control.
[17] In light of Mr Ilton’s indication, Ms Mills submitted a starting point of nine and a half years’ imprisonment is appropriate. It was submitted an uplift of at least nine to 12 months would be appropriate to reflect Mr McMeekan’s prcvious convictions for similar offending and the fact he was on release conditions when he committed the alleged offending. In terms of mitigating factors, Ms Mills indicated that, although Mr Ilton received a 20 per cent discount for entry of a guilty plea, it would be open to the Court to reduce the discount provided to Mr McMeekan as any plea will come more than two years after lie was initially charged.
[18] Further, Ms Mills submitted that, were Mr McMeekan to plead guilty, he will have in relatively quick succession bcen convicted of three distinct sets of methamphetamine t›ffending that at’c escalating in seriousness. She submitted thc second set of offending occurred while Mr McMeekan was subject to electronically
” Zhanp » R [201 9] NZCA 507, [20 l'9] 3 NZLR 64h.
monitored bail (EM bail) and the offending alleged hcre will have occui’red while he was subject to release conditions. On this basis, she submitted a minimum period of imprisonment (MPI) greater than the statutory one-third (that is, in the region oI’40 to 50 per cent) may be required to meet the purposes of denunciation and deterrence. However, she conceded Mr McMeekan’s lack of organisational conti‘ol and his acceptance of responsibility upon a guilty plea may cut against the imposition of an MPI.
De/éndant submission.s
[19] On behalf of Mr McMeekan, Mr H81Té accepted the quantity of methamphetamine placed the alleged offending within band five of Zhang and that commerciality was implicit in this quantity. However, he disagreed with the categoYisafion of Mr McMeekan's i’ole as “significant” and submitted he played n “lesser” role only analogous to a “catcher”. In support of this argument, he submitted Mr McMeekan exerted no control over the operation as he was only a prospect member of the Tribesmen and there is no evidence he was aware of the scale of the operation beyond the immediate knowledge methamphetamine was contained in the box in the car. He also submitted there is no evidence Mr McMeekan was involved with cash or other general aspects of the operation, nor any suggestion he stood to gain financially from this transaction. He submifled the summary of facts simply reflects that Mr McMeekan — ordinarily a person tasked with collecting and transporting motorcycles — was present tor the sole purpose of“ lending the impi’imatur of the Ti’ibesmen’s involvement to the transaction on this single occasion.
[20] Mr Han’e argued the offending took place over a very short timeframe and Mr McMeekan knew ‹if the methamphetamine for only the limited period during which he was seated in the car. He submitted Mr McMeekan was directed by a more senior Tribesmen member to attend Mr Ilton's address — that he was the passenger while Mr Ilton drove to collect the methamphetamine and played no role in the transaction itself. In light of the quantity, and adjustcd downwards for role, Mr I larre submitted a starting point in the vicinity of six to seven years’ imprisonment was appropriate. He submitted that, on a totality basis, no discrete uplift was required for the remaining charges.
[21] lt was accepted that an uplift was appropriate to reflcct that Mr McMeekan’s previous relevant convictions. 11’ the sentence indication is accepted, Mr Harre submitted Mr McMeekan should be afforded the same discount for early guilty plea as Mr Ilton of 20 per cent. With regard to parity with Mr Ilton, lie submitted that in the absence of direct or meaningful circumstantial evidence suggesting Mr McMeekan had involvement beyond that contained in the summary of facts, Mr McMeekan should be assessed as less culpable than Mr Ilton and accordingly receive a lesser indicated sentence (than the nine and a halfmonth’s imprisonment Mr Ilton i’eceived). Given Mr McMeekan’s limited involvement, Mr Harré further submitted an MPI was inappropriate.
[22) Zhang is the decision applicable to the lead offending.
[23] The quantiq o1’ methamphetamine as a commercial operation is the first material consideration in an offender’s sentence. Quantity is relevant because it reflects the social hatm and potential illicit gains made from dealing in the drug." Quantity is also highly relevant to culpability and can be indicative of commerciality which requires greater denunciation, but it cannot alone determine culpability.' 2 Mr McMeekan’s offending (possession of 2.996 kg of mcthamphetamine) on its face falls into band five of Zhang, which provides that a starting point of 10 years to life imprisonment will be appropriate where the dealing involves more than two kilograms of iriethamphetamine.' 3 Ptissession of such a quantity calls for a strong response in terms of’ deterrence, the promotion of accountability, and public protection." It also means that any reduction below the bottom of the band at 10 years would generally require involvement in offending that falls into the "lesser” category. 2'
[24]
The Court of Appeal held in Zhang that the role an offender performs in the off’ending will also have an important influence on the categorisation o1’ their21 Zh‹mg v R, above n 7, at [103].
22 At [104].
2] At [125].
2d McMillan v R [202 1 NZCA 128 at [ l3 l citing Zhang » ñ, above n 7, nt [ 133]-[ 134]; and Ann v
fi [2020] NZCA 328 at [J 8].
McMillalf 1' R, above n 11, at [I 38], citing Zli‹mg v R, above n 7, at [123]; and Protop v R [202 11 NZCA 308 at [17].
culpability. It enables judges to properly assess the seriousness of the conduct and the
criminality involved.26 Zhang provided three categories t›f involvement: “lesser”, "significant” and “leading”," In providing guidance as to the role, the Court observed “role is a matter more likely to be known by the t›tTender than the Crown” but, in practice, the facts necessary to establish guilt will often justify int’erences about the offender’s iole, knowledge and gain.2’ Where those infcrcnces are sufficicnt to prove an aggravating fact, an evidential burdcn will move to the offender to displace the inference. 2’
[25] A number of cases were referred to the Court at Mr Ilton’s sentencing indication, which are summarised in the attached schedule to that judgment. To the extent those are relevant, I summarise them and the additional case referred to by Mr HalTé, in the Schedule attached to this judgment.
[26] Having regard both to the Court of Appeal’s decision in Zhang and to the cases in the Schedule, I consider Mr McMeel‹an’s role is properly categorised as at the top end of “lesser”.
[27] It is accepted that Mr McMeekan did not hold any degree of organisational control or influence in the criminal enterprise and that he would not have received significant financial reward foi his involvement. In fact, other than the cash found secleted in Mr Ilton’s property, there is no evidence he stood to gain financially from the transaction. It appears his role was analogous to that of a “catcher" or courier who, with his expertise with motorcycles and capacity to truvel domestically, facilitated drug offending by the lribesmen around New Zealand.
[28] Although the summary o1’facts is expresscd briefly, I consider an inference can be drawn that he was involved in overseeing the collection of the methamphetamine to the extent that, as a prospect within the gang, he provided his experience and connections to facilitate the collection and delivery of the drug. In this case, it is apparent that he was present Vol' the purpose of lending the irnprimatur of thc
'• At [104], [ i 1 oj and [118].
" At [127].
'" At [127].
Tribesmen’s involvement to the transaction in order that it proceeded smoothly. I lowever, there is no evidence he was involved with cash or other general aspects of the operation. He performed a limited function under the direction of others.
[29] Mr Harré argued there was no evidence of Mr McMeekan“S awareness of the scale of the operation beyond his immediate knowledge that methamphetamine was contained in the box at his feel in the car. While, given his position and connections within the gang and the commercial-scale quantity involved, I do not consider Mr McMeekan’s awareness can reasonably be circumscribed to this extent, there is a
the explanation of Katz I in back-xion v R that:”
It is not uncommon for offenders who have a lesser' role in terms of ?/rang to be in possess ion of la rge quantities of controlled substances. More senior members ot the ope ation will regularly require meJnbei-s beneath them to store or move large quantities of dru gs. Doing so can assist those senior mem bei s to avoid liability. “Catchers” are a class ie example. They may ho ld very large quantities of drugs in their possession, but have a very junior role in the over-aJ 1 organisation.
[30] Mr McMeekan’s offending resembled that in Autism to the extent that he was also involved in assisting in the delivery of packages of a comparable quantity of’ methamphetamine. However, the offender in Fatyum was more intimately invol ved in the catching process given the number of packages he picked up across a far lengthier period and the steps he took in telephoning the distributor and his recording of the details of the consignments. Similarly in Philip , the offender undertook five trips to carry a significantly larger quantity of methamphetamine and was trusted to carry substantial amounts of cash. The offender’s role in that case is clear-ly more serious.
[31]
I consider the olTending is more analogous to S/npfi and Jongupo, in which both offenders were catchers who supolied an address to which the consignments of methamphetamine could be delivered. I note Mr [larré has today re-emphasised the similarity between Mr McMcel‹an’s olfending and that of Mr I inau in Fanglipo. The quantities ot methamphetamine were greater in cach case, totalling 5.1 kilograms in tñnpi‹/›o and 4.45 kilograms in X/ngñ. In City/i, it was common ground the offender^" yuck-lino v H [2021 j NZHC ) 4G8 at [4 7].
had no idea tit‘ the quantities involved, whereas I have made the inference Mr McMeekan likely had a dcgree of awareness, albeit a limited one. further, as in Singh, Mr McMeekan perfumed only a limited function undcr the influence of others although in that case there was direct evidence the offender was paid $10,000 th' his involvement and that he received multiple packages. On balance, I consider Mr McMeekan's offending was rclatively less serious than Singh.
[32] Therefore, in my view a starting point of seven and a half years’ imprisonment is appropriate.
Adjusted starting point
[33] As was the case in relation to Mr Ilton, a nominal uplift of two months would have been appropriate to reflect the charge Mr McMeekan faces for failing to provide police access to his cell phone, The failure to provide access to encrypted devices prevents meaningful forensic analysis and cuts across the intended enablement of the police to detect and prevent further offending, It would normally require an additional sentence but in my view the uplifi of two months on a totality basis is not required in thcse circumstances having regard to the starting point on the lead offending. Instead, it can appropriately be dealt with at the end of sentencing by a concurrent sentence of two months.
[34] Similarly, I consider a concurrent sentence of one month’s imprisonment would be appropriate for the possession of cannabis charge.
[3*l the alleged breach of lockdown restrictions undcr the Health Act, in nrder to continue to facilitate a significant methamphetamine operation, demonstrated a disregard ter community safety. But again, on a totality basis, does not call for an additional uplift. In my view, as was expressed to Mr Ilton, is that the appropriate outcome in relation to the Health Act breach, should guilty pleas be entered on all these charges, would be a conviction and discharge on this charge.
Personal aggravating factors
[36) Mr McMeekan has relevant criminal convictions for similar previous offending.
[37] On 2 April 2015, Mr McMeekan was sentenced for two episodes of offending involving the possession of methamphetamine for supply. I“he initial offending occurred between 8 February and 8 March 2014 where, folio wing a police search of a motel unit that Mr McMeekan and some associates were in, seven snaplock bags containing 6.7 grams of methamphetamine, a broken glass pipe and approximately
$7,000 in cash was located. A subsequent search of Mr McMeekan’s text data established he had been involved in the supply of methamphetamine.
[38] The second tranche of offending occurred while Mr McMeekan was on electronically monitored bail (EM bail) in relation to charges on the original offending. Between 3 July and 23 August 2014, he sourced six ounces (approximately 170 grams) of methamphetamine from Auckland which was delivered in three trips. He organised for associates to travel to Auckland with cash and return to Christchurch with methamphetamine and on each occasion two ounces was delivered.
[39] Mr McMeekan pleaded guilty to both sets of charges and an end sentence of five years and six months’ imprisonment was imposed.
[40] I note that Mr McMeekan was also on release conditions when the alleged present offending occurred.
[41] Previous convictions are taken into account in three ways in sentencing: as an indicator of character and culpability; because they show the need for a greater deterrent response; and as un indicator of risk of reoffending.'' The greater the period oI‘time within which there is no relevant offending, the less weight is likely to be given to previous convictions." The uplift should also bear a reasonable relationship to the
' ' Reo›dy v Police [20 1 5 ] NZHC 1069 at [ 19].
” L’ashmore » Police [20 I 7J NZCA 508 at [ I I ].
starting point that is appropriate for the circumstances of the present offending."
[42] Having regard to these principles, I consider the similarity of the previous offending tt› the current allegations and the fact it occurred in relatively quick succession (the intervening six-year period heing primarily taken up bJ' Mr McMeekan’s time in pi ison), indicates alongside the breach of release conditions, a greater need for deterrence. Accordingly, an uplift of nine months’ imprisonment (or 10 per cent) to the starting point is warranted.
1 ersonal mitigating factors
[43]If Mr McMeekan were to accept the sentence indication and plead guilty to the
•*• ses now, he ought to be afforded the same discount as that applied to Mr Ilton that is, 20 per cent. While any plea will have come later, Mr McMeekan was not initially advised of the indication sought by Mr Ilton and, immediately after becoming aware of this, he tee sought this indication.
[44] Any further personal mitigating factors are beyond the scope of the present indication and would have to be accounted for when the matter proceeds to sentence.
Minimum period of imprisonment
[45 J The Crown submitted on A4PI in the region of 40 to 50 per cent of the Huh term of the sentence might be appropriate as the statutory one-third would be insufficient to denounce and deter Mr McMeekan.
[46]
The power to impose an MPI is governed by s 86 Sentencing Act 2002. 2’he effect of the section is that a sentencing Judge may impose an MPI where the Judge considers the period after which the offender would otherwise be eligible for parole is insufficient for certain specified purposes, which include deterrence, denunciation and public safety. As a general rule, MPIs are “properly reserved for cases involving significant commercial dealing .’4
[20 19] NEC A 529, [2020] 2 NZLR 37 e I [4 1].
" Zlioiig v fi, above n 7, at [17 1].
[47] Given the limited involvement Mr McMeekan had in the alleged ofl’ending, I dc not consider an MPI is appropriate or necessary. While Mr McMeekan, if he were to plead guilty or be found guilty of' this offending, will have been convicted in relatively quick succession (accounting for the time spent in custody) of tlu-ee distinct sets ot methamphctamine offending that continues to escalate in seriousness, the nature of his involvement does not call for such a stc1•n response at this stage. As acknowledged by the Crown, Mr McMeekan’s lack of organisational control and the acceptance of responsibility attendant on the entry of guilty pleas will cut against the need to impose a miBirrium period. In any event, Mr McMeekan’s previous conx'1ction for similar offending has already created an additional period of time in custody, his counsel advising that he has recently been recalled on that sentence.
Result
[48] Accordingly, the sentence indication on the leading charge is one of six years and nine months' imprisonment. Concurrent sentences of imprisonment would be imposed on the Search and Sur veillance charge and the cannabis charge. In relation to the Health Act charge there would be no additional sanction.
[49J The sentence indication will expire at 5 pm on Tuesday the week after this indication is delivered, that is 28 June 2022 (in five working days, taking into account the Matariki public holiday), if Mr McMeelcan has not accepted it before then.
[50] Mr McMeekan is remanded for the time being to his trial commencing 4 July 2022. Mr HalTé may request the Registt-ar to commence an earlier hearing if the sentence indication is to be accepted.
Osborne I
Smt IV I tOtS:
Crov'n Solicitor, Christchurch
Copy to: T Harré, Barrister, Ch J'istchurch
S’CHEDULE
[1] S/rigs v ft:” the appellant u as paid $10,000 to allow 4.45 kilograms of methamphetamine to be delivered to his address frorri the United States. The Court was satisfied thnt while the quantity involved placed the appellant in band five, he played a lesser role. He performed a 1 imited function under the direction and influence of others and was naive jij providing his home address for deliveries. He had no awareness of the scale of the operation or the quantities involved and I eceived comparatively modest financial gain. A starting point of eight years’ imprisonment was adopted on appeal for his role as a “catcher”
[2] R i› Fangitpo:” the appellant, Mr Finau, was sentenced together with three co- defendants for his role in a significant methamphetamine operation (the appellant in Singh having previously been sentenced for his role in the same operation). The appellant helped import three packages containing at least 5.1 kilograms of methamphetamine (as well as 27 grams of cocaine) and supplied the drug over a six- month period. Police found 27 grams of methamphetamine at Hi home. I\4r Finau provided addresses to which methamphetamine was to be sent but was “barely competent” and gave his own address and that of another member ol his family. The Judge considered he answered to others, was “out of [his] depth”, was drawn into the offending by others and, but for their influence, would not have been involved.’* A starting point was adopted of eight years’ imprisonment for the importations and 12 months was added for representative charges of supplying methamphetamine and possession for supply of that drug.
[3] P v Thilip:” the appellant was charged with undertaking five trips to carty at least six kilograms of methamphetamine from Auckland to Wellington over a period of about four months. On a number of occasions he also carried significant amounts of cash to pay for the methamphetamine supplied. The Court of Appeal held Mr
” Singh v It [2020] NZCA 211.
" R v Fangilpo [20 19] NZHC 2896.
” R x› Pl! iI ig [2022] NZCA 1 25.
Philip's role “could not be put any less than on the cusp between lesser and significant involvementg 39 l-Ie was not the highest in the chain ct’command but on one occasion
carried out a transaction while someone highei placed was absent. He was trusted to carry substantial amounts of cash. A motor vehicle paid for by cash earned by transporting methamphctamine was registered in his name and he arranged for the involvement of others as drivers. Against that, the offending was driven by his addiction to methamphetamine. A starting point o1’ nine years' imprisonment was adopted.
[4J Noiyiim v fi.”0 the appellant assisted in importing five packages containing a total of 3.2 kilograms of methamphetamine and 545 grams of cocaine. Mr Faiyum picked up packages at delivery centres on behalf of imponers. The Court asscssed his role as being somewhere between lesser and signiflcant. It found that he must have had some awareness of the scale of the operation given the number of packages and the different goods in which the drugs were concealed, which indicated a degree of sophistication. However, Mr faiyum was pcrtorming his role at the directions of OthDrS and had no influence on those above him in the chain. The Court accepted there was a degree of coercion but Mr Faiyum could and should have reptirted this to the police. lie was not entirely assisting iti the operation to feed his addiction but nor was he entirely motivated by financial gain. A starting point of 10 years’ imprisonment was upheld by thc Cc›urt of Appeal.
At [144].
’ 0 Faiyiuii v R [2020] NZCA 523.
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