R v Minns

[2021] NZHC 638

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-085-001094

[2021] NZHC 638

THE QUEEN

v

STEVEN PAUL MINNS

Hearing:

26 March 2021

Counsel:

T G Bain for the Crown

N Tahana & J Judge for Mr Minns

Sentencing:

26 March 2021

SENTENCING NOTES OF GWYN J

Introduction

[1]    Steven Paul Minns, you appear for sentence having pleaded guilty to three charges in total: one charge of possession of methamphetamine for supply;1 one charge of possession of methamphetamine,2 and one charge of possession of cannabis.3

[2]    You came before me for a sentence indication on 4 February 2021.4 I indicated a maximum end sentence of two years, 11 months’ imprisonment. At that time I did not have all relevant reports before me that might indicate whether a further discount is warranted.

1      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a) and Crimes Act 1961, s 66; maximum penalty life imprisonment.

2      Section 7(1)(a) and (2); maximum penalty six months’ imprisonment or $1,000 fine.

3      Section 7(1)(a) and (2); maximum penalty three months’ imprisonment or $500 fine.

4      R v Minns [2021] NZHC 93.

R v MINNS [2021] NZHC 638 [26 March 2021]

[3]You accepted that sentence indication and pleaded guilty on 9 February 2021.

[4]    As well an alcohol and drug assessment dated 8 April 2020, I now have a Provision of Advice to Courts (PAC) report dated 17 March 2021, and a s 27 Cultural Report from Dr Jarrod Gilbert and others dated February 2021. These reports have given me more relevant information to decide on a final sentence. I emphasise at the outset that your sentence will not be higher than the two years, 11 months I indicated in February, so please do not worry about that; the reports have the effect of allowing me to arrive at a lower sentence.

[5]    Although you heard the comments I made in my sentence indication in February, I will repeat those comments which explain the way in which I reach the sentence. Because sentencing is a public function, I will also describe the background factors that are relevant to the sentencing process.

[6]    When Judges look at a case, they do not simply pluck a sentence out of thin air. There is a law called the Sentencing Act 2002. That law sets out the principles and purposes of sentencing.5 In each case, a Judge looks at the Sentencing Act, and then looks at what the offender has done and decides how to give effect to the Sentencing Act in the particular circumstances of the case.

[7]    The purpose of sentencing in your case is to hold you accountable for the harm you have done to the community through your offending; to promote a sense of responsibility for, and acknowledgment of, that harm; to denounce and deter the criminal conduct; to protect the community; and to assist in your rehabilitation and reintegration into society.6

[8]    That is a lot of words, I know. What it means in practice is that I have to look at the whole situation and do what I can to both mark what you have done but also not forget who you are.

5      Sentencing Act 2002, ss 7 and 8.

6      Section 7.

[9]    In sentencing you today, I will first set out your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I will set a starting point based on the offending. I will refer to a case called Zhang which is what we call a “guideline” judgment for offences involving methamphetamine,7 and some other, similar cases. Second, I will apply uplifts and discounts to reflect your personal aggravating and mitigating circumstances.

The offending

[10]   All three charges result from two police operations – Operation Superdry in relation to Wellington-based offending, and Operation Maddale in relation to Auckland-based offending. One of your co-offenders, Mr McMillan, was the main individual targeted in the Wellington-based offending.  You  were  an associate of  Mr McMillan, and assisted his drug business.

[11]   The possession of methamphetamine for supply charge arises from activity in March 2019, when you were involved in the transport of a shipment of methamphetamine from Auckland to Mr McMillan in Wellington. You drove with your co-offenders, Ms Hayman and Mr Philip, to Auckland to collect two kilograms of methamphetamine. The methamphetamine was concealed within a car by a sophisticated method, and you then started to drive it back to Wellington. However, you were stopped by Police along the way, and the car was impounded in Taupō for an unrelated driving offence. The methamphetamine was subsequently discovered by Police.

[12]   You had also accompanied Ms Hayman and Mr Philip on an earlier trip to Auckland, in January 2019.

[13]   The two remaining lesser charges arise from the impounding of the vehicle in March 2019. While removing your bag from inside the vehicle, Police observed

2.99 grams of cannabis inside the bag. Police also found a bag containing 2.66 grams of methamphetamine in your pocket.

7      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Personal circumstances

[14]   I turn now to consider your personal circumstances, based primarily on the PAC report and the s 27 report that I have already mentioned.

[15]   The s 27 report records that you belong to Ngāti Awa on your mother’s side, but you do not feel strongly connected to your Māori identity. You experienced a traumatic and distressing childhood, including prolonged sexual abuse while in state care, and ongoing violence at the hands of different caregivers, including your father. Your mother was an alcoholic who frequently neglected you, although I have noted what you have said: that she was, at times, a loving mother. The s 27 report records the likely factors that contributed to your offending, including socio-economic deprivation and neglect, normalisation of alcohol and drug abuse, normalisation of crime and violence, and experience of sexual abuse.

[16]   The alcohol and drug assessment records that childhood sexual abuse, especially when combined with parental abandonment, often leads to the development of post-traumatic stress disorder (PTSD); although a psychologist or psychiatrist would be required to confirm this diagnosis in relation to you, the report writer confirms you display a number of symptoms and behaviours which suggest you have been suffering from PTSD for most of your life.

[17]   The alcohol and drug assessment confirms you meet the DSM V criteria for polysubstance dependence (alcohol, cannabis, and methamphetamine);8 you have been using drugs since the age of seven, and the alcohol and drug assessment observes that this presumably provided temporary relief from your underlying distress, caused by the other factors that I have mentioned. Your criminal offending began around the same age. The alcohol and drug assessment suggests you may suffer some cognitive impairment due to childhood solvent abuse, which would exacerbate your loss of impulse control. Your drug addiction has impacted on your ability to maintain relationships with others, and your ability to work.

8      The Diagnostic and Statistical Manual of Mental Disorders V (DSM V) is the handbook used by healthcare professionals as an authoritative guide to the diagnosis of mental disorders. The DSM V contains descriptions, symptoms and other criteria for diagnosing mental disorders including substance use and provides criteria for establishing the severity of such disorders.

[18]   The PAC report records that you were a heavy user of methamphetamine and cannabis at the time of the offending. Although you told the report writer you did not completely understand the role you were playing, or the scale of Mr McMillan’s drug business, you did acknowledge that you were a “middle man” in the business.

[19]   The PAC report also records that you are motivated to attend counselling and residential rehabilitation, particularly so you can spend time with your children and grandchildren, and your lawyer has confirmed you have made an application to Odyssey House in Auckland, which is being considered and is likely to be approved, although no bed is available immediately. The s 27 report records that your sister, who describes you as a “kind” and “loving” man, is hopeful about your rehabilitation. I also want to acknowledge your letter, Mr Minns, which I just received this morning. Thank you for that letter; I will read it at greater length later, but I acknowledge what you say in the letter.

Submissions

[20]   At the sentence indication Mr Bain, counsel for the Crown, submitted that a starting point of eight–10 years’ imprisonment is appropriate, but before me today he accepts that the Court has already indicated a starting point lower than that, at four years, six months’ imprisonment. He also said that a modest uplift is warranted for your previous convictions; and the 15 per cent discount for your guilty plea is appropriate.

[21]Your counsel, Ms Tahana, submitted:

(a)A starting point of three–four years’ imprisonment is appropriate.

(b)No uplift is warranted for previous convictions.

(c)Discounts for personal mitigating factors including a traumatic upbringing, drug addiction, and rehabilitation prospects are justified.

(d)Ms Tahana also initially asked that I give you a 20 or 25 per cent guilty plea discount, but this morning agrees that the figure I indicated earlier of 15 per cent is appropriate.

Starting point

[22]   I will set the starting point for the possession of methamphetamine for supply charge. As the Crown agreed, I do not consider an uplift to reflect the remaining charges is necessary, and they will be dealt with by way of a concurrent sentence, which means it will be served at the same time as your main sentence and not added on.

The law

[23]   The Court of Appeal decision in Zhang v R provides guidance on sentencing in methamphetamine-related cases, by establishing five sentencing bands by reference to the quantity of drugs involved.9 Based on quantity alone, your offending falls in band five, where two kilograms or more attracts a sentence of between 10 years’ and life imprisonment.10 However, quantity alone does not determine the appropriate sentence – the Court explained that a lesser role deserves a less severe sentence than a significant or leading role, and a lesser role may result in an offender moving not only within a band but also between bands.11

[24]   The Court provided guidance on what constitutes a “lesser” or “significant” role.12 Factors that indicate a “lesser” role are:

(a)performed a limited function under direction;

(b)engaged by pressure, coercion, intimidation;

(c)involvement through naivety or exploitation;

9      Zhang v R, above n 7.

10 At [125].

11     At [10(e)].

12 At [126].

(d)motivated solely or primarily by own addiction;

(e)little or no actual or expected financial gain;

(f)paid   in    drugs    to   feed   own    addiction   or    cash    significantly disproportionate to quantity of drugs or risks involved;

(g)no influence on those above in a chain;

(h)little, if any, awareness or understanding of the scale of operation; and/or

(i)if own operation, solely or primarily for own or joint use on non-commercial basis.

[25]Factors that indicate a “significant” role are:

(a)operational or management function in own operation or within a chain;

(b)involves and/or directs others in the operation whether by pressure, influence, intimidation or reward;

(c)motivated solely or primarily by financial or other advantage, whether or not operating alone;

(d)actual or expected commercial profit; and/or

(e)some awareness and understanding of scale of operation.

Starting point

[26]   The primary issue in setting an appropriate starting point for you is determining whether you played a lesser or significant role in Mr McMillan’s drug business.

[27]   Useful reference points can be found in the starting points adopted for your co-offenders. I turn first to Ms Hayman and Mr Philip. Ms Hayman accepted the

sentence indication I gave in November 2020 for six charges of possession of methamphetamine for supply, where I indicated a starting point of six years’ imprisonment.13 For Mr Philip, in February 2021, I indicated a starting point of eight years’ imprisonment for five charges of possession of methamphetamine for supply.14 Mr Philip and Ms Hayman were charged with transporting five shipments of methamphetamine. Both sentence indications were given on the basis of six kilograms of methamphetamine.

[28]   I characterised Ms Hayman’s role as a lesser one within Mr McMillan’s business,15 and I considered Ms Hayman’s situation most similar to R v Phillips, where the High Court adopted a starting point of five years.16 In that case, Ms Phillips drove between cities with her partner on two occasions and supplied a total of six kilograms of methamphetamine, and was also a low-level supplier in her own right of an undetermined quantity. The Court found she was merely following her partner and was not the lead offender.

[29]   I characterised Mr Philip’s role as significant, but at the lower end of that category. At the time of the sentencing indication, I found the primary distinguishing feature between Mr Philip and Ms Hayman was, at that point, I did not have any evidence before that Mr Philip was motivated by his own addiction to methamphetamine. Of course, I have yet to receive full reports for Mr Philip, so I am not able to tell you the final sentences arrived at for Ms Hayman and Mr Philip.

[30]   Mr Paulo, another co-offender, was sentenced in July 2020 on a single charge of supplying methamphetamine as a party, where Cooke J adopted a starting point of three years’ imprisonment with an end sentence of home detention.17 Mr Paulo’s charge arose from his involvement in the same incident as you: he was the registered owner of the car you drove. Justice Cooke also took into account that Mr Paulo was observed accompanying Mr McMillan in other aspects of his business, and he found that Mr Paulo’s involvement was not limited to a one-off event.18 He characterised

13     R v Hayman [2020] NZHC 2866.

14     R v Philip [2021] NZHC 42.

15     R v Hayman, above n 13, at [16].

16     R v Phillips [2018] NZHC 2119.

17     R v Paulo [2020] NZHC 1797.

18 At [23].

Mr Paulo’s role as a lesser one, noting he had no knowledge of the quantity of drugs being transported, he did not direct others, and the benefits he received were largely confined to continuing his personal drug use.19

[31]   Mr McMillan rejected the sentence indication I gave in December 2020 for charges arising from his role as the alleged leader of the Wellington-based offending, where I indicated a starting point of 17 years’ imprisonment.20

[32]   As you have heard, I sentenced Mr Stone earlier this morning on a charge of supplying methamphetamine, with a starting point of three years, six months’ imprisonment, and imposed a sentence of home detention.21

[33]   That is to give you an awareness of how the Court has treated other defendants in this matter charged with similar offending in relation to the same methamphetamine business run by Mr McMillan.

[34]   Mr McMillan is yet to be sentenced for his role, having been found guilty by a jury about a week ago.

[35]   I characterise your role as lesser according to the Zhang criteria. You performed a limited function under direction; you were motivated primarily by your own addiction, rather than any substantial financial gain or commercial profit; you had no influence on those above you in the chain; and you had limited understanding of the scale of the operation, and I accept that while you had some knowledge, you had overall a limited knowledge or awareness of the scale of Mr McMillan’s operation.

[36]   The one point that gave me pause, as I mentioned in my sentence indication, was the photograph on your cell phone, taken at 20:00 hours on 10 March 2019, in your bedroom, which showed Mr Philip’s Mongrel Mob gang patch displayed next to sealed clear plastic bags of money, totalling approximately $160,000. I did record at the time that Ms Tahana disputed any connection between that photograph and the alleged offending. However, from this amount of cash, and given the timing of the

19 At [20].

20     R v McMillan [2020] NZHC 3392.

21     R v Stone [2021] NZHC 636.

photograph, I can infer that you had at least some awareness of the scale of the operation. Overall though, while this factor may place you at the higher end of the lesser category, I do not consider it is sufficient to characterise your role as significant. I think you played a lesser role in this operation.

[37]   In setting the starting point in your case, I keep in mind the need to achieve parity between you and your co-offenders, in particular Mr Philip and Ms Hayman. I adopt a starting point of four years, six months’ imprisonment.

Personal aggravating and mitigating circumstances

[38]I turn now to your personal aggravating and mitigating factors.

Previous convictions

[39]   The Sentencing Act allows me to apply an “uplift” to the sentence for your previous convictions.22 This is usually on the basis to deter you from reoffending.

The rationale for an uplift was stated by the Court of Appeal in Orchard v R:23

[39]      … Previous convictions are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending.

[40]      I did indicate at the sentencing indication that I would apply a three-month uplift for your previous offending because you have an extensive criminal history, with

58 recorded convictions dating back to 1988. You have received multiple imprisonment sentences for a range of offending, with the longest sentence in the last decade being 10 months. Your most recent convictions show a pattern of methamphetamine and cannabis offending.

[41]      However, having heard Ms Tahana’s written submission, I have concluded that no uplift is warranted. Counsel relied on what the Court of Appeal said in Zhang about addiction, poverty, mental disorder or other vulnerabilities diminishing the ability of individuals to make a rational choice about offending, which consequently diminishes the deterrence aspect of sentencing. Ms Tahana says that the s 27 cultural report and

22     Sentencing Act, s 9(1)(j).

23     Orchard v R [2019] NZCA 529 (footnotes omitted).

the PAC Report that I now have illustrate how that applies to you. You suffer from mental health problems and addiction and have endured poverty and duress; you have been appearing in court and been sent to prison for drug offending on numerous occasions over the past 30 years, yet have continued to reoffend, so clearly an uplift is not going to have a deterrent effect.

[42]      On the plus side, you have also taken responsibility for your offending in this case and you say that you wish to get on top of your addiction and make a different life. In those circumstances,24 I am persuaded by Ms Tahana’s submission that there should be no uplift for previous offending and I will not apply an unlift.

Personal mitigating factors

[43]      In sentencing you today, I must take into account your personal, family, community, and cultural background.25 As I have already noted,26 you have been dependent on drugs for most of your adult life, following an extremely distressing childhood. It is clear that methamphetamine, cannabis, alcohol, violence and crime have been a normalised part of your life, from a very young age. The intergenerational history of both social and economic deprivation diminished your opportunities and shaped the choices you made. That does not relieve you of personal responsibility for your actions, but it does help me to understand how you got to the point where you became involved in this offending and to that extent it modifies your culpability.

[44]As the Court of Appeal said in Zhang:27

First, ingrained, systemic poverty resulting from loss of land, language, culture, ranitiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing.

24   For the purposes of s 116 of the Criminal Procedure Act 2011, I am satisfied the fuller picture of Mr Minns’ personal circumstances (as shown by the PAC report and the s 27 report) constitutes information that materially affects the basis on which my sentence indication was given.

25     Sentencing Act, s 8(i).

26     See above at [14]-[19].

27     Zhang v R, above n 7, at [159].

[45]In Carr v R the Court of Appeal, referring to this passage in Zhang, said:28

We consider this means that where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender’s upbringing such matters ought to be taken into account in sentencing.

[46]      I consider there is a clear link between your background and addiction issues and your current offending. These personal mitigating features have led me to conclude that discounts totalling approximately 30 per cent (one year, four months) are appropriate to reflect your background and addiction issues.

[47]      Your commitment to your rehabilitation, which shows you accept responsibility for your offending, and your desire to be a part of the lives of your children and grandchildren, deserves a further discount. I consider a discount of six months (approximately 11 per cent) is appropriate.

Guilty plea

[48]      I have mentioned already the discount for guilty plea and why I arrived at    15 per cent, or eight months, as an appropriate figure.

[49]      I therefore arrive at an end sentence of two years’ imprisonment. Ms Tahana tells me in her submissions that you have already served a few days more than two years in prison, as you have been in custody since 21 March 2019.

Special conditions

[50]      As your sentence of imprisonment is one of two years, I am able to impose special conditions for a period of up to six months on your release from prison.29 I think it is important to do that, partly to assist you so that on your release you are able to focus on the things that you have indicated you want to, which is your rehabilitation and rebuilding a life with your family. I impose the “recommended special conditions”

28     R v Carr [2020] NZCA 357, at[60].

29     Section 93.

contained in the PAC report dated 17 March 2021, which are all aimed at facilitating your rehabilitation. These conditions are:

(a)You are not to possess, consume or use any alcohol or drugs not prescribed to you.

(b)You are to attend an assessment for an alcohol and drug programme (obviously you have already done this, and I hope that very soon you do secure a place at Odyssey).

(c)You are not to communicate or associate in any way with the Mongrel Mob gang or anyone associated with the gang without the prior written approval of a probation officer.

(d)You are to undertake and complete appropriate assessment, treatment/counselling as directed by and to the satisfaction of a Probation Officer.

(e)Upon your release from prison, you are to reside at the approved address in Palmerston North and you are not move to any new residential address without the prior written approval of a Probation Officer.

Result

[51]      On one charge of possession of methamphetamine for supply, I sentence you to two years’ imprisonment. You are convicted and discharged on the charge of possession of methamphetamine, and you are convicted and discharged on the charge of possession of cannabis.

[52]On the Crown’s application, I also order the destruction of:

(a)all drug related utensils and paraphernalia and items including cell phones used to facilitate the drug offending; and

(b)all controlled drugs seized.

[53]      At Ms Tahana’s request, I order that the s 27 report is disclosed to the Probation service.

Gwyn J

Solicitors:

Kāhui Legal, Rotorua

Crown Solicitor, Wellington