R v McMeeking
[2023] NZHC 167
•10 February 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-3188
[2023] NZHC 167
THE KING v
DANIEL TERE MCMEEKING
Hearing: 10 February 2023 Appearances:
C Macklin for the Crown
R Mansfield KC for the Defendant
Sentencing:
10 February 2023
SENTENCING NOTES OF WOOLFORD J
Solicitors: Gordon Pilditch (Office of the Crown Solicitor), Rotorua Counsel: R Mansfield KC, Auckland
R v MCMEEKING [2023] NZHC 167 [10 February 2023]
Introduction
[1] Mr Daniel McMeeking, you are for sentence today having pleaded guilty to conspiring both to supply and to manufacture methamphetamine,1 and to possessing iodine, a precursor substance.2
Facts
[2] The charges arise out of your participation in a criminal network that was uncovered by a Police operation codenamed “Schultz”. The network consisted of a number of individuals involved in the manufacture and supply of methamphetamine in the Rotorua area. The principal offender in the network was Mr William MacFarlane. Other members included Mr Andrei Kupkovic, who facilitated the importation of ephedrine; Ms Jane Dennis, who was the designated methamphetamine “cook”; and Ms Charlotte Ward, who tracked consignments and arranged money transfers.
[3] Mr McMeeking, you were a high-ranking member of the group. Mr MacFarlane referred to you as his “business partner”. At the time of your offending, you were a senior member of the Mangu Kaha chapter of the Black Power gang. You assisted Mr MacFarlane by supplying the imported drugs as well as assisting with the manufacture of methamphetamine once the required precursors had been imported into New Zealand.
[4] Sentencing is to proceed on the basis of the summary of facts to which you have pleaded guilty to. I will now traverse the facts of your offending.
Conspiracy to supply charge
[5] On 12 August 2020 you and Mr MacFarlane discussed manufacturing methamphetamine. You queried whether another cook was needed for the manufacturing process, but Mr MacFarlane insisted that they were getting a “mean price” out of Ms Dennis. You then discussed matters of quantities and supply. You
1 Misuse of Drugs Act 1975, s 6(2A)(a): maximum penalty of 14 years’ imprisonment.
2 Section 12A(2)(b) and (3)(b): maximum penalty of five years’ imprisonment.
both agreed to put the first 300 grams of methamphetamine into the “shop”, and to sell the balance as ounces so that your supplier could immediately be paid. Mr MacFarlane stated that they could expect 30 ounces.
[6] On 14 August 2020 you again discussed manufacturing methamphetamine with Mr MacFarlane. Mr MacFarlane stated that he had 25 ounces of methamphetamine on the way. You both then conferred on the matter of sale price and agreed to sell the methamphetamine at $8,000 per ounce.
Conspiracy to manufacture charge
[7] On 6 August 2020, Mr MacFarlane and Mr Kupkovic discussed the supply of hypophosphorous acid, iodine, and ephedrine; all precursor substances in the manufacture of methamphetamine. Mr Kupkovic noted that 25 kilograms of iodine was on its way. This conversation was in regard to a course of conduct whereby Messrs MacFarlane and Kupkovic along with you and Ms Dennis conspired to manufacture methamphetamine. The Statement of Facts records that you played a coordinating role with Mr MacFarlane.
[8] Between 13 and 24 August 2020, New Zealand Customs intercepted three packages containing methamphetamine precursors to be used in your conspiracy. The first package contained 5,018 grams of iodine. The second package contained 5,052 grams of iodine. The third package contained 26 litres of hypophosphorous acid.
[9] On 25 August 2020, Mr MacFarlane told Ms Dennis that he had 120 grams of ephedrine she could use to manufacture methamphetamine, but he was still waiting for the “other ones” to come in. The two also discussed sourcing hypophosphorous acid. Later that day, Mr MacFarlane messaged Ms Dennis, stating that she needed to come and pick up the precursors herself as you, Mr McMeeking, were attending an unveiling. He further messaged that he had another two kilograms of ephedrine from Mr Kupkovic.
[10] That same day, Mr MacFarlane informed an unknown third party that he would have 30 ounces to supply the next day. The price offered was $6,500 per ounce.
[11] On 1 September 2020, Messrs MacFarlane and Kupkovic discussed further particulars of the conspiracy. Mr MacFarlane said that methamphetamine was selling at $9,000 an ounce in Rotorua, and that the group would be able to manufacture another eight – 10 kilograms. Mr Kupkovic told Mr MacFarlane he had five kilograms of ephedrine arriving from China in about a week at a total cost of $185,000. Ms Ward then counted out $30,000 in cash. That cash was received earlier from you and was given to Mr Kupkovic to contribute toward the costs he had incurred in furtherance of the conspiracy.
[12] Between 5 September and 8 September 2020, numerous Wickr messages were exchanged between Mr MacFarlane, Ms Dennis and you. The messages referenced the arrival of two kilograms of ephedrine imported by Mr Kupkovic and the joint efforts of the group to have it manufactured into methamphetamine for supply.
Possession of iodine charge
[13] On 14 August 2020, you and Mr MacFarlane discussed sending two lots of iodine, worth $50,000 each, to Ms Dennis for safekeeping.
Personal circumstances
[14] Mr McMeeking, you are 32 years old. You have 100 previous convictions and seven Youth Court convictions. Your convictions include family violence, firearms and methamphetamine offences.
[15] An earlier PAC report noted that a factor of your ongoing drug related offending was your drug use, lifestyle and anti-social networks and recommended imprisonment. A more recent PAC report recommends home detention on the basis of the rehabilitative efforts you have made.
[16] You were until recently on EM bail at a NZ Bass address in Auckland and the address is a boarding house that runs a range of rehabilitative programmes, some of which you engaged in. You are now residing at your mother’s address in Rotorua as an out-patient of NZ Bass.
Sentencing approach
[17] I am required to take a two-step approach in sentencing you.3 For the first step, I will set what we call the starting point. That requires me to consider the gravity of your offending. I will do so with reference to the Court of Appeal’s guideline judgment for methamphetamine offending, Zhang v R.4 That case sets out five different bands of offending, each defined by reference to a specified quantity of methamphetamine and each correlating to a suggested sentencing range. While the quantity involved in your offending will determine what band you fall in, the role you played in the offending will determine where I place you within that band. I note that a full assessment of role can result in an offender moving between bands.5
[18] For the second step, I will turn to consider any aggravating or mitigating factors relating to your personal circumstances. These factors may increase or reduce your final sentence.
[19] I must sentence you in accordance with the purposes and principles set out in the Sentencing Act 2002. I make particular reference to the need to hold you accountable for the harm methamphetamine dealing has caused to the most vulnerable in our communities; to promote in you a sense of responsibility for that harm; and to deter others from committing similar offences.6 I also consider as especially relevant the need to impose sentences which are consistent with those given to your co- offenders.7
Starting point
[20] Both the Crown and your counsel identify conspiring to manufacture methamphetamine as the lead charge.
[21] Presently, there are no authoritative guidelines in place for conspiracy offences under s 6(2A) of the Misuse of Drugs Act 1975. I have decided to proceed by first
3 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
5 At [118].
6 Sentencing Act 2002, s 7(1)(a), (b) and (f).
7 Section 8(e).
determining a notional starting point, that is, the starting point your conspiracy would attract had it been completed. I will then reduce that figure depending on how advanced the conspiracy was. That was the approach adopted by Muir J in sentencing Mr Kupkovic for conspiracy to manufacture.8 It is also an approach which finds support in the Court of Appeal9 and the Supreme Court.10
[22] Mr Macklin, counsel for the Crown, submits that you conspired to manufacture eight – 10 kilograms of methamphetamine, a significant commercial quantity. That figure is taken from the conversation between Messrs MacFarlane and Kupkovic in which Mr MacFarlane stated that the group would have enough precursors to manufacture that amount. Eight – 10 kilograms places you in Zhang band five, which correlates to a recommended sentence between 10 years and life imprisonment.
[23] Mr Macklin submits that your role in the offending is appropriately categorised as “leading”. He says that you were acutely aware of the scale of the operation and had close ties to Mr MacFarlane, who called you his “business partner”. He emphasises that you played a key coordinating role by supplying various addresses linked to Mangu Kaha and by contributing financially to the enterprise. He submits that a notional starting point of 15 years’ imprisonment is appropriate.
[24] Your counsel, Mr Mansfield KC, disagrees with the Crown’s assessment of the quantity involved and your role in the conspiracy. He says that, considering the summary of facts that you have pleaded guilty on, the only aspect of the conspiracy to which you can be connected relates to the manufacture of methamphetamine from two kilograms of ephedrine. That quantity of precursor would yield approximately
1.8 kilograms of methamphetamine, placing you within Zhang band four, attracting a starting point of eight to 16 years’ imprisonment.
[25] Mr Mansfield submits that your role is better categorised at the low to middle end of “significant”. Accordingly, he says that the notional starting point should be set at 12 years’ imprisonment.
8 R v Kupkovic [2022] NZHC 1980 at [19].
9 R v Te Rure [2008] 3 NZLR 627 (CA) at [25].
10 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [11].
[26] At this point it is helpful to consider the starting point adopted in the sentencing of Mr Kupkovic. Relevantly, Muir J sought to define Mr Kupkovic’s conspiracy by reference to the quantities of ephedrine that he intended to import.11 In this regard there were two salient facts: Mr Kupkovic’s stated intention to import five kilograms of ephedrine from China and the successful importation of two kilograms of ephedrine by Mr Kupkovic, referenced in the Wickr messages. Muir J could not be sure whether the latter two kilograms were in addition to or part of the five kilograms due from China but noted that in either case the resulting methamphetamine yield would place Mr Kupkovic in Zhang band five.12 Muir J went on to categorise Mr Kupkovic’s role at the low to middle end of “significant”, taking into account his financial motivations and his personal awareness of the scale of the operation. A notional starting point was set at 15 years’ imprisonment.13
[27] I will similarly define your conspiracy with reference to the intended ephedrine importation from China. While I accept that you were absent from the conversation between Messrs MacFarlane and Kupkovic in which the importation and its costs were discussed, you are nonetheless connected with the importation because it was your cash that was used to pay Mr Kupkovic for his expenses. Accordingly, had the conspiracy come to fruition, the quantities yielded, whether they be calculated from a basis of five or seven kilograms of ephedrine, would place the offending well within Zhang band five.
[28] Turning to your role in the offending. I consider that you performed a lesser role in the conspiracy compared to Mr MacFarlane. There is no evidence indicating autonomous decision making which would warrant placing you within the “leading” category of offender. However, your coordination with Mr MacFarlane in addition to your financial contributions to the operation indicate to me that you were well aware of the operation’s scale. Accordingly, I place you within the mid-range of the “significant” category and set a nominal staring point of 15 years’ imprisonment.
11 R v Kupkovic, above n 8, at [40].
12 At [40].
13 At [41].
[29] I now need to adjust that nominal figure to account for the maturity of the conspiracy. At this point, Muir J considered that significant steps had been taken towards the manufacture of at least four to six kilograms of methamphetamine.14 His Honour took into account the fact that all the necessary precursors were on order and that at least two kilograms of ephedrine had arrived.15 He also noted Mr MacFarlane’s claim to already have sufficient iodine and hypophosphorous acid to make eight – 10 kilograms of methamphetamine.16 However, he was not persuaded that the conspiracy had passed its midpoint for the reason that the ephedrine necessary to manufacture more than approximately 1.8 kilograms of methamphetamine still remained to be successfully imported.17 Accordingly, he reduced the nominal starting point by half.18
[30] Mr Mansfield submits that given you are being sentenced for the same conspiracy, I should make the same reduction as Muir J. However, Mr Macklin says that Mr Kupkovic was not sentenced on the basis of being involved in the Paeroa “cook” which resulted in 730 grams of methamphetamine. Accordingly, he says that a smaller reduction is warranted here, one in the vicinity of 30 per cent. However, you, like Mr Kupkovic, are not charged in relation to the 730 gram cook. In my view, you should be treated equally to Mr Kupkovic and the nominal starting point reduced by half.
[31] The Crown properly concedes that no uplift is necessary to account for your other charges.
Aggravating factors to the offending
[32] Mr McMeeking, the Crown seeks an uplift of three to four months to reflect the fact that your offending occurred whilst subject to release conditions. Mr Mansfield concedes that an uplift is warranted but submits that it be no more than two months.
14 R v Kupkovic, above n 8, at [44].
15 At [43].
16 At [43].
17 At [44].
18 At [45].
[33] I will, however, apply an uplift of four months. That brings me to a final starting point of seven years and 10 months’ imprisonment.
Adjusting the starting point
[34] I now turn to consider any aggravating or mitigating factors which are personal to you.
Section 27 report
[35]I have been provided with a s 27 cultural report prepared by Dr Chris Gallavin.
[36] You were born in Australia and moved to New Zealand at the age of four. Your father grew commercial amounts of marijuana, which you were informed of and trusted with at an early age. Your father’s operation gave you easy access to drugs and, unsurprisingly, this resulted in frequent drug abuse throughout your youth.
[37] Your early education was hindered by undiagnosed ADHD and disrupted by expulsion from two primary schools. You left high school early to work as a kiwifruit picker. You formed your first gang relationship at 14, were imprisoned for the first time at 17 and were a patched gang member at 21. Since then, your life has been a cycle of methamphetamine addiction, offending and prison.
[38] You are the father to four children aged 13, 10, two and one. In an effort to turn your life around, you handed in your patch, burying it with your late father last year.
[39] Mr Mansfield says that the s 27 report provides a credible account of matters which demonstrate a causal connection between your upbringing, addictions and your index offending. He submits that a 15 per cent discount is appropriate.
[40] Although I agree that you are entitled to a discount for the role your early life circumstances and addictions, as disclosed in your cultural report, have played in your offending, I consider it would be inappropriate to apply too generous a discount because of the substantial role you played and the complexity of the operation. This
implies you exercised deliberate agency in your offending. In other words, there was a strong element of choice in your offending. Nonetheless, in those circumstances, I would allow a discount of 10 per cent.
Rehabilitation
[41] At NZ Bass you have recently completed a 90-day inpatient rehabilitation programme and have engaged in non-violence programmes. A programme manager at NZ Bass says you have done “impressively well” and demonstrated pro social behaviour as well as a desire to live a positive lifestyle. He also commends your leadership qualities.
[42] Your mother has also written to the Court to emphasise the positive changes she has seen in you as a result of your rehabilitative efforts. She says that you now openly discuss the challenges you face rather than bottling up your feelings. She also notes that you are spending more quality time with your children.
[43] Mr Mansfield says that you have made significant changes in your life. You have begun to address your methamphetamine addiction and are deeply committed to never taking drugs again. He submits that a 10 per cent discount is warranted.
[44] I am also persuaded that some recognition is due to you for your rehabilitative prospects. The reference from NZ Bass is a good one. In the circumstances, I would allow a further 10 per cent discount.
Remorse
[45] Mr Mansfield says you have expressed genuine remorse for your offending. He explains that through your rehabilitative efforts you have genuinely come to appreciate the detrimental effect that your offending has had on the community. Accordingly, he submits you are entitled to a modest five per cent discount.
[46] I have read your letter of remorse and accept it is genuine but note your 12 page list of criminal convictions show the breadth and consistency of your offending. A discount for remorse is, however, justified, which I set at five per cent.
Guilty pleas
[47] Mr Mansfield submits that you are entitled to a 25 per cent discount for your guilty pleas.
[48] Your guilty pleas arrived at a late stage. The Crown acknowledges, however, that the volume of data in this case slowed disclosure and that other delays were caused by the COVID-19 pandemic. Given those circumstances, I will give you the full 25 per cent discount. These discounts together total 50 per cent.
Time spent on restrictive bail
[49] Mr Mansfield then notes that you have spent 12 months on EM bail and submits you are entitled to a discount to reflect that time.
[50] I am prepared to grant a further discount of five months, being approximately 40 per cent of the time you have spent on EM bail.
Minimum period of imprisonment
[51] The Crown originally submitted that I should impose a minimum period of imprisonment (MPI) of 50 per cent on your final sentence, but responsibly today Mr Macklin does not pursue that submission. An MPI is, in my view, not required for the purposes of denunciation and deterrence given the good progress you have made in your rehabilitation.
Result
[52]Mr McMeeking would you please stand.
[53] Accordingly, on the charges of conspiring to manufacture and conspiring to supply methamphetamine, I sentence you to three and a half years’ imprisonment. On the charge of possessing a precursor substance I sentence you to two and a half years’ imprisonment to be served concurrently.
[54]You may stand down.
Woolford J
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