R v Mene

[2014] NZHC 1404

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000108 [2014] NZHC 1404

THE QUEEN

v

ALEX MOSES MENE

Hearing:	20 June 2014
Appearances:	M Walker for Crown M Wharepouri for Defendant
Sentenced:	20 June 2014

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            M Wharepouri, Auckland

R v MENE [2014] NZHC 1404 [20 June 2014]

[1]      Alex Mene, you are for sentence for drug offending.  In April last year you pleaded  guilty  to  a  representative  charge  of  supplying  methamphetamine  and  a charge of possession of pre-cursor substances with the intent they be used in the manufacture of methamphetamine.  In April this year, following a trial in this Court, you were found guilty of possession of methamphetamine for the purposes of supply. The maximum penalty you face is life imprisonment.

[2]      In relation to the offending you pleaded guilty to last year the summary of facts discloses that in the course of a police investigation into a significant drug operation, involving the manufacture of methamphetamine by Mr Moore, you were identified as being involved in a number of transactions and communications consistent with the supply of methamphetamine.

[3]      On 6 June 2011 you were contacted by a person inquiring as to whether you had methamphetamine. You confirmed you did and organised to meet.  The next day you contacted the same person asking whether they wanted to buy more methamphetamine.  You said the price for a gram was $600.  On 8 June 2011 you were again contacted by the same person requesting to buy a gram of methamphetamine.

[4]      On 27 June 2011 you contacted Mr Waterman and alleged that Mr Waterman owed  you methamphetamine or was  in debt to  you  for methamphetamine.   Mr Waterman did not agree.  He said he owed you half an ounce of methamphetamine, which he had already repaid.  On 31 July 2011 you were contacted again.  You were asked for a gram of methamphetamine on loan.  You agreed and gave an amount of methamphetamine you estimated as .3 of a gram.

[5]      During  this  time  you  were  in  contact  with  Mr  Moore  regarding  his manufacturing operation to ensure that your supplies were maintained.  On 1 August

2011 you contacted Mr Moore to see if methamphetamine was available to be taken to Ms Guthrie.  You subsequently met with Mr Moore and travelled to Ms Guthrie’s location.  At about the same time, on 1 August, you were contacted and asked if you could trade a large amount of methamphetamine.  You confirmed you could.  The person then offered to buy an ounce of methamphetamine from you, stating that she

had $12,000 cash.  You organised to meet the following morning.  On 8 August 2011 you contacted Mr Moore telling him that you had money for him and his brother for allowing them to manufacture methamphetamine.

[6]      On 8 August, the same day, you were contacted by a female again inquiring whether you had methamphetamine to sell.  You confirmed you did.  On 9 August you contacted Ms Guthrie and informed her that you had just picked up a batch of methamphetamine, that you were going to take a small amount and that an associate wanted to buy half the batch and that you would be on your way to see her shortly.

[7]      On 21 August 2011 two associates went to your place, your home address in Manurewa.  You handed them an amount of methamphetamine packed in a snaplock plastic bag.  As they left your address the associates were stopped by the police and the methamphetamine seized.  Despite that you continued to remain in contact with Mr Moore inquiring the availability of the methamphetamine.

[8]     The summary refers to at least nine instances where you supplied methamphetamine.  In total at least 42 grams of methamphetamine were supplied by you.   Seven of the transactions involved small or unknown quantities of the drug. Most of the methamphetamine was supplied in two transactions, a half ounce, approximately 14 grams to Mr Waterman on or about 27 June and the one ounce, approximately 28 grams, to an unknown female on or about 1 August 2011.

[9]      In addition between 14 July 2011 and 28 August 2011 you assisted Mr Moore with his manufacturing operation by obtaining and or providing pre-cursor materials to him.  Examples of that are on 28 July 2011you collected hypophosphorous acid. On 6 August 2011 you delivered certain items to Mr Moore to enable him to carry on manufacturing.  On 16 August 2011 you received some hypophosphorous acid from Mr Moore.  On 19 August 2011 you met with an unknown person to purchase more of the hypophosphorous acid and on 23 August 2011 you told Mr Moore you had precursors you wanted to swap for methamphetamine.   To all of that you have pleaded guilty.

[10]     On 6 October 2011 the police executed a search warrant at your home in Manurewa.   It was at that time that you and Mr Waterman were found in your bedroom.     A click  clack  plastic  container  containing  64.9  grams  of methamphetamine was located under a mattress on the floor of the bedroom.  There was also a pistol nearby with Mr Waterman’s DNA on it.  You took that matter to trial as was your right.  In finding you guilty the jury accepted that either you had sole possession of the methamphetamine or, in my judgment more likely, that you and  Mr  Waterman  were  in  joint  possession  of  the  methamphetamine  in  both instances for the purpose of supply.

[11]     Mr Mene you are 36 years old.  You have a number of previous convictions, but  I accept  they are  relatively  minor  convictions  arising  out  of  your  previous association with drugs.  These are your first serious drug convictions.  Despite your offending  your family remain supportive as does  your partner.   You have three children 14, 11 and three. You have had varied employment from time to time but as Mr Wharepouri has noted in his submissions you have been in custody for some time for this offending.  While you pleaded guilty to the first set of offending, as noted you continue to dispute your involvement in the second offending for which the jury found you guilty.

[12]     Mr Mene having presided at trial I accept the jury verdict and understand there was sufficient evidence for them to find and be satisfied beyond reasonable doubt that you were in joint possession with Mr Waterman of the methamphetamine found in your bedroom and under the mattress in your bedroom.

[13]     To your credit, while you have been in custodial remand, you have completed various self improvement programmes.  The letter that you have written to the Court for sentencing this morning also displays insight.   You acknowledge that you are now at a turning point in your life, given the serious offending you have become involved in.  Certainly it is clear from your past history that you have had an issue with drug offending. You will need to address that issue, and I accept you seem to be taking steps to do so through the programmes you have attended, if you are going to be able to successfully reintegrate into the community and have a proper and useful

life as a father and partner, and a member of your family on your release.  Part of that Mr Mene will involve you accepting responsibility for your actions.

[14]     In sentencing you I am required to take into account the need to denounce and deter your drug offending.   Drug offending and the use of drugs is all too common in our community.  It has a wide impact and leads to other offending.  This Court sees the consequences of it on a regular basis.  The sentence should also deter you and others from offending in this way.   The sentence must also be consistent with other relevant cases and authorities.   Counsel realistically accepts there is no alternative but a sentence of imprisonment. The issue is the length of that term.

[15]     The Crown submit a starting point for your total offending is in the region of five years, three months to six years imprisonment.

[16]     Mr Wharepouri submits a starting point of four years for the lead charge of supply, but accepts an uplift is required for the totality of the rest of your offending but argues that no more than 18 months or a total of five years, six months should be the start point.   He argues for an end sentence of four years, four months imprisonment.

[17]     I have considered the sentences imposed on others involved in this offending including Mr Moore and Ms Gina Guthrie.  Ms Guthrie featured in a number of the transactions you were involved in.  She was sentenced by Peters J in this Court on five counts involving representative charges for supplying methamphetamine, supplying pre-cursor substances and possession of methamphetamine for supply. The two additional charges she faced were less serious, namely possession of a pre- cursor substance and possession of a firearm.  In her case the Judge took a start point of seven and a half years imprisonment.   However I accept that Ms Guthrie was found in  possession  of 112  grams  of methamphetamine  and  the later  offending involved her being in possession of substantial sums of money.  I accept that on that basis her offending is to be regarded as more serious than yours.

[18]     I take as the lead offence the supply charge, but the sentence must reflect the totality of all your offending, including the offending in relation to the pre-cursor

substances and the possession of methamphetamine for supply that you were found guilty of.  Your offending falls squarely into band two of R v Fatu,1   which involves a supply of commercial quantities of methamphetamine between five and 250 grams. The Court of Appeal have said the band for such offending is between three and nine years imprisonment.

[19]     Mr Mene, I consider that you operated as a middleman in this operation. While you regard yourself as a minor figure and say you were pulled into the group but were only a minor player, I do not accept that.  In light of the amounts that you were involved in you were an important part of this methamphetamine operation. You were involved in it on a regular basis between June 2011 and 6 October 2011. Your involvement extended to distributing, selling the drugs that Mr Moore had manufactured and also ensuring that, by the supply of your pre-cursor substances, he was able to continue manufacturing and to continue to supply you for you in turn to supply the drug to others.  In your case I consider the appropriate starting point to reflect the totality of all your offending, the length of time you offended, the amounts involved and to take account of sentences imposed on others, is a start point of five years, nine months imprisonment.

[20]     I do not accept Mr Wharepouri’s argument that as the jury may have found you guilty of being in joint possession with Mr Waterman of the 64.9 grams, that that somehow reduces your culpability.  Even accepting that you may have been in joint possession with him, it was nevertheless joint possession of the full amount.

[21]     There are no personal aggravating factors which require an uplift to that start point of five years, nine months.   As noted I accept your previous relevant drug offending has been relatively minor.

[22]     I turn to personal mitigating factors.  There are some positive aspects to the pre-sentence report and as noted I accept you have taken some positive steps to address your drug addiction and to improve yourself while in prison. As I also said I

acknowledge that your letter to the Court does show some insight into your position

1      R v Fatu [2006] 2 NZLR 72 (CA).

and what you will need to do to address it.  However in light of your position about the guilty verdict I am not able to accept or give you credit for any remorse.

[23]     I take into account Mr Wharepouri’s submission that for an extended period of time, approximately 11 months, you were subject to electronically monitored bail for a 24 hour curfew.  Subsequently those conditions were relaxed.

[24]     Taking into account the positive features that I have referred to and that extended time on electronically monitored bail I reduce the starting point of five years, nine months by five months.  I then take into account your guilty plea.  Your guilty plea can of course only apply to the offending that you have pleaded guilty to. I also accept the Crown submission that the guilty plea was entered on the eve of trial or shortly before trial.  As discussed with Mr Wharepouri I consider that the Crown case against you was a strong one.  In the circumstances a reduction of no more than approximately 10 per cent is appropriate, although I apply that to the overall offending.

[25]   Mr Mene would you please stand.   On the charge of possession of methamphetamine for supply you are sentenced to imprisonment for four years, nine months.  On the charge of supply you are sentenced to imprisonment for four years, nine  months.    On  the  charge  of  possession  of  pre-cursor  substances  you  are sentenced to imprisonment for three years.   The sentences are concurrent.   The

effective sentence is four years, nine months. That is all.  Stand down.

Venning J