R v McSweeney HC Wellington CRI 2007-085-6245
[2010] NZHC 1562
•6 September 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2007-085-006245
THE QUEEN
v
SARA LEE MCSWEENEY
Counsel: G J Burston, S K Barr and V C Brewer for Crown
R J Stevens for Prisoner
Sentence: 6 September 2010
NOTES ON SENTENCING OF GENDALL J
[1] Sara Lee McSweeney, you appear for sentence having been found guilty by a jury in this Court on five counts of importing into New Zealand the Class A controlled drug methamphetamine. Having presided at your trial the facts derived from the evidence are well known to me and I sentence you on the basis of the following facts.
[2] An extensive and sophisticated drug importing operation was organised and operated out of Rimutaka Prison during 2007. A number of prisoners were involved. Your former partner Timothy Wilkie was one of them. Central to the operations was a Thai national serving a term of imprisonment in Rimutaka for sexual offending. He had contacts in Thailand and was involved with other serving prisoners in importing virtually on demand, large quantities of methamphetamine from Thailand
into New Zealand. That demand came from at least three separate groups and others
R V MCSWEENEY HC WN CRI-2007-085-006245 6 September 2010
involved in the importation. Some groups were separate from that with which you became involved. Other criminal offenders, namely Ian Nuku, Shane Ellis, Deryk Doar and Monica Klokstad have all been sentenced for their involvement in separate importations.
[3] The five importations in respect of which you are to be sentenced occurred between 21 March and 6 June 2007. Central to the operations was the Thai prisoner and your former partner, Timothy Wilkie, a prisoner at Rimutaka, serving a sentence for methamphetamine dealing. Together they would arrange and order the importations. Outside prison were vital participants in this ring, namely a Thai female, you, and someone who provided the large amounts of cash to acquire the drugs. The Thai woman was instrumental in meeting you and receiving those large sums of cash on each occasion so as to pay for deposits of methamphetamine. Those were to be sent (and were sent) by her to Thailand and packages then were sent from Thailand to addresses that you supplied to her. Those addresses were all in the Hutt Valley and linked to you. On two occasions one of the addresses was your residence; another was the residence of a brother of yours; a third was a friend’s home; and the fourth was the address of the mother of your then current partner, a known recidivist criminal and drug dealer with whom you had a close association. You had extensive cellphone contact with the Thai woman and met her on at least five occasions (possibly more) to pay deposits and, after the successful arrival of the packages containing methamphetamine you met her to pay for the balance due for each supply.
[4] As I have said the Thai female was a vital link between the Thai prisoner and the suppliers in Thailand. You were the vital link between Mr Wilkie, who you would have known to be a drug dealer and that he was serving a term of imprisonment for possession of almost $100,000 of methamphetamine for supply. He was your former partner and the father of your daughter. Of course, there had to be drug dealers on the outside higher up the tree than you, if I can put it that way. He was the man or they were the men who supplied the cash to purchase the drugs and obtain possession of it after it was delivered, so that it could be distributed and sold. Your contact outside the prison was well able to fulfil that role. I have no doubt that he benefited significantly, but could not have done so without your active
assistance. You sought to blame him when giving evidence at the trial and as I have said, he was a known drug dealer and criminal and a partner of yours. Your evidence was to the effect you had no knowledge of what he was up to. I am satisfied that you knew he was a drug dealer and you knew he was providing the cash and, further, he gave you methamphetamine for you to use after it was imported.
[5] Large sums of money were involved with the five packages. The agreed cash price totalled $135,000 all of which was paid (apart from the payment for the final package which was intercepted – although the deposit was paid). The total quantity of drugs was between 580 – 616 grams, or between 20 – 22 ounces. All, except the last package, was received and I have no doubt was distributed at significant profit. The evidence was that that amount of methamphetamine had a street value of over
$600,000. Four of the packages were successfully imported and delivered to the addresses that you gave and that were connected to you, one being your home.
[6] After each of the four successful events occurred, the fifth was to take place. That related to five ounces (140 grams) for which the deposit was paid by you and the package was sent from Thailand. Unfortunately for you and others involved in the various importations, one of the Thai operatives was arrested and records had been kept which pointed to you and others involved in the importations in New Zealand. So the fifth package was intercepted at the Auckland Mail Centre by New Zealand authorities. Because of the delay in its being delivered, you and others involved became alarmed and took steps to cover your tracks and distance yourselves from what was going on. You and your partners, both inside and outside the prison knew the package had arrived in Auckland by reason of communications from Thailand, and also because your criminal associate outside the prison had the ability to computer track the packages, which drug dealers are known to do. It was decided, naturally, that it was too risky to accept the package. So on 5 June 2007 when it was delivered in a controlled delivery to your home, you were present as was your drug dealing criminal partner. You rejected the package. The Thai female was arrested that day, but you and your associates were not. However, you knew the balloon had gone up and steps were taken by you and others to dispose of cellphones
and anything else that you thought might lead back to any link or association with that woman.
[7] As a result of remarkable police investigations, evidence was obtained which was sufficient for you and Timothy Wilkie to be arrested and tried. As was your right, you chose to say nothing then or subsequently and maintained your right to silence. It was not until you gave evidence at your first trial, and again at the second trial, that any explanation or version of events was forthcoming from you. Of course, it did not have to be. But I am left with the distinct impression that it was only when you had received full disclosure and discovery from the prosecution and all its documents and evidence, that you were able to craft together a story which you advanced to the jury in the witness box. It was a concoction and clearly rejected as lies by the jury, given their verdicts.
[8] You and Mr Wilkie were charged as parties to the importation and were found guilty on all ten counts. That is, five each. Whilst it may be that Mr Wilkie on the inside and your other drug dealing associate on the outside were higher up the chain than you, nevertheless you played a crucial and vital role in each importation. You knew precisely what you were doing and knowing that you were doing it for the benefit of, and at the instigation and requests of, both these criminals. I am satisfied that you knew that Mr Wilkie was in prison for the crime of possession of methamphetamine for sale and you knew that your criminal associate on the outside was a drug dealer and with whom you were smoking methamphetamine. Just by way of example, there was evidence of a notebook of yours, which had indentations which you had written, showing what was no doubt his tick list, as 12 to 13 of the references matched or were common to a tick list of his.
[9] You did more than just supply the money in bags to the Thai female. You supplied the addresses, two of which were yours – one was a friend and one was your brother’s. Likewise, you provided further assistance by giving an address at which an additional supply of methamphetamine, not the subject of a charge but which had already been imported into Auckland, could have been sent to the Hutt Valley for the benefit of your criminal associate. You knew the last package could not and ought not be accepted because of its probable interception by
authorities. Such knowledge I am satisfied, arose through the tracing of the movement of the package at least by your criminal associate on the outside, he being present when the controlled delivery was attempted and the refusal was not because you knew no one of that name lived at that address.
[10] The circumstantial evidence that the Crown had against you was very powerful and the jury were justified in convicting you.
[11] I have no doubt you obtained some significant benefits from assisting in the way that you did. You are a WINZ beneficiary, not working and had a seven year old daughter. But you were able to live in a reasonably affluent suburb in a modern home, to drive a BMW motor vehicle and no doubt enjoy the fruits of the drug dealing of others. You were not a dealer in your own right and you are not charged with that. But you provided crucial assistance. I think you were using methamphetamine and this partly led to your being involved and, without being a user, I doubt if you would have been.
[12] Whilst it is suggested that you may have just been a low-level operator or “pawn” I think the more appropriate place to put you is that you were a vital link in what was serious criminal offending, and without your active assistance in delivering funds and addresses to the Thai female, the communications between Mr Wilkie and the outside criminal, the receiving of the packages, the operation could not have succeeded as it did on four occasions.
Sentences of others
[13] The sentences of others have been referred to by counsel and I am aware of them and will annex to my sentencing notes a schedule of those various sentences. Ian Nuku was a prime importer, originally operating from inside prison and imported
215 grams. The Judge took a starting point of 16 years’ imprisonment and imposed a sentence of 12 years. Monica Klokstad took over a deceased uncle’s importing operation and was a major importer of 230 grams. The Judge took a starting point of
11 years’ imprisonment and imposed a sentence of eight years three months. Deryk Doar had only one count involving 121 grams, a starting point of five years
was taken. Possibly the offender whose facts are most comparable to yours, although I recognise of course they are different (because he was initially a prisoner), was Shane Ellis. He was charged with three counts of importing totalling 260 – 280 grams of methamphetamine, having a support role central to the operation acting as a vital link between Mr Nuku and the Thai female, by delivering cash and the like. The Judge took a starting point of eight years’ imprisonment, but because of his poor criminal history imposed a sentence of nine years’ imprisonment. Your offending is more serious because it involved five rather than three importations and 580 –
616 grams of methamphetamine.
[14] The only Thai offender apprehended in New Zealand was of course the Thai female, who was sentenced to six years’ imprisonment. The Thai prisoner had been deported to Thailand before the operations unravelled. The Thai female faced 11 counts of importing methamphetamine, which totalled 980 grams and she could have expected a very substantial sentence. Clifford J took a starting point of 15 years. For reasons, however, which would have been well explained to you the end sentence was six years, not only because of the immediate guilty pleas, but her significant assistance given to the police in bringing to trial and justice at least six persons involved in the serious criminal offending. So it was her co-operation, volunteered assistance and evidence that the jury clearly accepted that led to the guilty pleas of Ian Nuku, Monica Klokstad and Deryk Doar and the conviction of Shane Ellis and also of you and Mr Wilkie after your not guilty pleas.
General comments of seriousness of the offending
[15] Methamphetamine is a pernicious dangerous drug. It destroys the lives of individuals, families, communities and has devastating effects on people’s lives. It has a grievous effect on your life, given what has now transpired. I quote and adopt with respect the remarks of Simon France J when he sentenced Ms Klokstad on
17 July 2009. His Honour then said:[1]
[1] R v Klokstad HC Wellington CRI-2007-085-6245, 17 July 2009 at [32] and [37].
Methamphetamine is a curse. It is devastating people’s lives, not just those who become gripped in its addictive powers, but also the families of those people. Daily we see parents who are struggling to support children who are
offending, and lying to them; the parents themselves are devastated emotionally and often financially in what can at times be a hopeless effort to help stem the tide. Daily we see family members, spouses and children, left to cope on their own because addicted loved ones have offended to support their addiction, or have done terrible things whilst gripped by it. Often we see young people who are suffering through addiction and who are being exploited callously by those higher up the chain whose sole motivation for causing this misery is nothing other than profit.
....
Methamphetamine is a serious problem and responses to those who occupy the upper echelon of importation and supply must be stern.
[16] There is no doubt that you were a user of methamphetamine. To use your own words, in a note that you wrote and which was produced in evidence, you had become “obsessed with P”. That may have led you to offend, because clearly you were getting your source, no doubt without payment, from those whom you were assisting. But you were also closely and romantically linked not only with Mr Wilkie, the father of your child, inside prison – and your communications to him make it quite clear the fondness and close bond continued – but also on the outside with a drug dealer of very serious proportions, whose bed you shared and at times in whose home you lived. And you were content and willing to share their activities, aims and purposes, as well as to actively give assistance. They were happy to use you as no doubt they did. But you, too, were happy to be involved to support and to protect them, as I believe you still are. And as the evidence that you gave over two trials clearly illustrates you were not prepared to put your hand up and implicate what others were doing and what you knew they were doing and what you were assisting. So sadly you bear the consequences despite the effects that inevitably will fall upon your daughter and wider family.
[17] I turn to the aggravating features of your offending.
Aggravating features
[18] There are a number of importations for which you have been found guilty, the amounts involved were far in excess of the amounts for the other New Zealand importers who have been sentenced. The street value was about $616,000. It is aggravating that you knew or must have known that Mr Wilkie had been returned to
prison by this Court, having been convicted of a serious methamphetamine drug dealing offence. You were visiting him frequently thereafter and closely involved with him. It is aggravating that the importations or plans were hatched from inside Rimutaka Prison with the use of unauthorised cellphones and communications to and from you on many occasions. The conduct was derisory of the community indicating a total disregard for the penalties that had been imposed upon prison inmates. It is aggravating that you participated and assisted in the organised jail drug importations for substantial profit of a pernicious drug, so that it could be distributed within the community.
[19] The mitigating factors are only those which are personal to you. Discount or credits will be given to you for those. You have no previous convictions and it is a tragedy that you have now seriously offended. Despite the Crown’s suggestions to the contrary, you are entitled to call in aid, and to your credit, your past history. You are aged 29, and have a young daughter aged seven years who is being cared for by your parents. You should have thought of her and the likely effects upon her if you were caught, as has happened.
[20] The probation officer describes you as minimising your involvement and maintaining your innocence. That displays a complete lack of insight ignoring what was very powerful evidence from many circumstances and from which the jury were entitled to conclude proved your guilt beyond reasonable doubt. Your continued denial does not augur well for your future rehabilitation. The probation officer assesses your risk of re-offending as being high. I think you are still endeavouring to protect either yourself, but more likely your two criminal partners involved in this methamphetamine importation. But you should have cast them aside. So long as you cast your lot with and to assist them, and to run down their paths, they being incorrigible criminals, then your future rehabilitation prospects may be gloomy.
[21] As I have said, it is a tragedy for you and your family that you offended in this way but must face the consequences that the law requires, and which must follow for such serious offending. But you did it with your eyes open and you did it repeatedly and you must be held accountable. Personal circumstances carry very less weight for drug offending at this level. You do not display significant remorse
and I think any regret is only because you were caught and have been found guilty. As I have said, I do not think you have any insight into the significance of what you did or the grave harm that distribution of this drug into the community is likely to have caused. As I have said, you gave evidence before the jury as you were quire entitled to do. But it was a carefully constructed concoction of lies. That is not aggravating, but you cannot seek any discount or reduction in sentence through genuine remorse or having entered a guilty plea. You will have no doubt been told that if you had pleaded guilty at an early stage you would have been entitled to a final discount of at least one-third, and I would have loved to have given you that but I cannot.
[22] The starting point to which this Court is bound to have regard, are the guidelines described in R v Fatu.[2] For importing very large quantities of methamphetamine (500 grams or more) this offending falls into the top band, namely Band Four. That provides for sentencing levels between 12 years and life imprisonment. Mr Stevens, on your behalf said that in fixing your culpability the Court has to have regard to your playing a lesser role and has submitted that your
culpability should be fixed at 70 per cent less than that of principal offenders. He argued on the basis of that arithmetic that a starting point should be 70 per cent of 12 years, or eight years five months’ imprisonment.
[2] R v Fatu [2006] 2 NZLR 72 (CA).
[23] I do not accept that that is the proper approach. Sentencing is not a mathematical or arithmetical exercise. Of course, your lesser role means a starting point below that applicable, for example to Mr Wilkie, is appropriate. That is why I fix the starting point at near and below the bottom of Band Four in Fatu. But any lower starting point would be to artificially manipulate the sentencing process as required by the guideline judgments. The Court of Appeal has said that the bands are applicable not only to those who import methamphetamine, but they include those whose roles are as “mules”. Obviously, the more significant the role of the offender in any importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band. So, in your case, you were a party to the importation not the mastermind. So your starting point is to be fixed on relatively
towards the bottom of Band Four in Fatu, but although not a mastermind I recognise that you were an active, willing and important party, which enabled several importations to succeed. As was said by the High Court in R v Wickremasinghe the starting point for people involved in Class A importation for those who are likely to be paid a fee but not prime importers or part of planning or mastering the activity, yet having an involvement of critical importance without whom the enterprise could
not be brought to fruition are people who:[3]
... will come between the role of courier/collector and mastermind [and] the starting point for them will normally fall somewhere in the 13-16 year range.
[3] R v Wickremasinghe HC Auckland T013408, 28 March 2003.
[24] The Crown submitted the starting point for you should be between 12 years three months and 14 years’ imprisonment. Viewed overall, I intend to fix the starting point at just below the bottom end of Band Four, namely 11 years’ imprisonment. This will reflect your somewhat lesser role, and my assessment of the influences that the two criminal men in your life have played upon you. But you were not just the go-between, the masterminds and the Thai female, but were a critical participant in a highly organised operation with careful planning, extensive premeditation. You were a key factor. You could easily have come well within Band Four. The lowest starting point I can properly fix is 11 years’ imprisonment on the basis of your lesser culpability.
[25] On your behalf, Mr Stevens further submitted, in a careful mathematical approach that after a discount of 70 per cent from a starting point, a further discount of 20 per cent for your previous good character was required, so as to leave a final sentence of six years nine months’ imprisonment. Sentencing has got to be transparent but as I have said it is not a mathematical or arithmetical process. The Crown says your personal circumstances are not so as to entitle you to any significant discount from the starting point and has referred me to the dicta of the
Supreme Court in R v Jarden.[4] If I accepted that submission you would be sentenced
to 11 years’ imprisonment from the starting point that I fix. But I do not agree with it. Everyone’s situation is different. Your family’s situation and the circumstances of your child and the absence of previous convictions are relevant factors in the
sentencing exercise and weight is to be given to them. Naturally, where there is, as here, serious Class A drug offending such personal circumstances may attract only limited weight. But the Supreme Court has recognised, and I have always adopted this approach, that personal circumstances can be relevant on purely compassionate grounds.
[4] R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.
[26] There has been tendered on your behalf a large number of impressive references from your friends and family, who you will have terribly disappointed. I have no doubt, as I have said, you would not have offended in this serious way had you not been a user of methamphetamine or had the allegiance and loyalty to the criminal drug dealers, Timothy Wilkie and Michael Sneller. That has been your downfall. But your lack of insight puts you at high risk of re-offending unless you jettison those two men. I am prepared to give you a significant allowance for your family situation, and the support you have in the community when you are released. But I tell you now if you were to re-offend in drug-related matters then you could expect severe repercussions. I am prepared to extend to you a significant concession because of your personal circumstances and personal family circumstances but mostly on purely compassionate grounds.
[27] In the end the final assessment for sentence has to be assessed against all irrelevant factors and I am prepared to allow you a further three years. That is something between one-third and one-quarter. In the circumstances of this case it is a very substantial reduction to reflect the Court’s compassion for you and your family. So I think the final sentence in your case, and it must be the absolute minimum that I can impose, is eight years’ imprisonment. It reflects more than an allowance of one-quarter from my starting point of 11 years’ imprisonment. As I have said, if you had pleaded guilty you could have expected a further discount of one-third.
[28] Minimum terms of imprisonment were imposed upon Messrs Nuku, Ellis and Ms Klokstad, the latter despite her having no previous convictions. The Crown seek a minimum term in your case. That is a term before which you would be eligible for parole. Your offending on these five occasions over this period was so serious that an eligibility for a parole period of one-third would be insufficient to meet the need
for punishment, deterrence and denunciation. Accordingly, I propose to fix a minimum non-parole period. On each of the five counts you are sentenced to concurrent terms of eight years’ imprisonment. I fix the minimum non-parole period
in respect of those terms at four years’ imprisonment.
J W Gendall J
Solicitors:
Crown Solicitor, Wellington
Fanselows, Wellington for Prisoner
OPERATION EARLE SENTENCES
NAME COUNTS AMOUNT PLEA START SENTENCE NON-PAROLE
| Piyaporn | Importing Class A (x11) | 980 grams | Guilty | 15 years | 6 years | – |
| Ian NUKU | Importing Class A (x3) | 215 grams | Guilty | 16 years | 12 years | 7 years |
| Monica KLOKSTAD | Importing Class (x3) Conspiracy to import (x1) | 230 grams | Guilty | 11 years | 8 years 3 months | 4 years |
| Shane ELLIS | Importing Class A (x3) | 260-280 grams | Not Guilty | 8 years | 9 years | 4½ years |
| Deryk DOAR | Importing Class A (x1) | 121 grams | Guilty | 5 years | 5 years | – |
| Sara McSWEENEY | Importing Class A (x11) | 616 grams | Not Guilty | 11 years | 8 years | 4 years |
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