R v Murray
[2014] NZHC 1843
•7 August 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-004-18344 [2014] NZHC 1843
THE QUEEN
v
FRANK WILLIAM MURRAY CURTIS EDWARD YATES BETTY ANNE LLOYD DIONNE JEAN RUNDBERG PHILLIP BANCROFT
Charges:
Plea:
(see following page)
Not Guilty
Counsel:
BD Tantrum and RK Thomson for Crown
MM Wilkinson-Smith (on instructions from CB Wilkinson- Smith) for Murray
L Freyer and JC Harder for Yates
PL Borich for Lloyd
PJ Kaye and RAB Samuel for Rundberg
MJ Dyhrberg QC for BancroftSentenced:
7 August 2014
SENTENCING NOTES OF BREWER J
Solicitors/Counsel: Meredith Connell (Auckland) for Crown
Chris Wilkinson-Smith (Auckland) for Murray
Public Defence Service (Auckland) for YatesPaul Borich (Auckland) for Lloyd
Peter Kaye (Auckland) for Rundberg
Marie Dyhrberg QC (Auckland) for Bancroft
R v MURRAY & ORS [2014] NZHC 1843 [7 August 2014]
Frank William Murray
Count 1 Manufacturing methamphetamine Count 5 Manufacturing methamphetamine Count 9 Conspiracy to supply methamphetamine Count 16 Manufacturing methamphetamine (majority verdict) Count 20 Offering to supply methamphetamine Count 21 Manufacturing methamphetamine Count 24 Supplying Class B drug to Victoria Carson Count 25 Offering to supply methamphetamine to Sarah Waugh Count 28 Supplying methamphetamine to Brett Bogue Count 29 Conspiracy to supply Class B drug to Victoria Carson Count 31 Possession of equipment to manufacture methamphetamine Count 32 Possession of equipment to manufacture methamphetamine Count 33 Possession of material to manufacture methamphetamine Count 34 Possession of material to manufacture methamphetamine Count 35 Possession of precursor substance to manufacture
methamphetamine
Count 36 Possession of precursor substance to manufacture
methamphetamine
Count 37 Manufacturing methamphetamine (representative charge) Count 39 Supplying methamphetamine (representative charge)
Betty Anne Lloyd
Count 3 Permitting premises for manufacture of methamphetamine Count 23 Permitting premises for manufacture of methamphetamine Count 38 Permitting premises for manufacture of methamphetamine
(representative charge)
Curtis Edward Yates
Count 21 Manufacturing methamphetamine Count 28 Supplying methamphetamine to Brett Bogue
Dionne Jean Rundberg
Count 8 Conspiracy to supply methamphetamine Count 14 Supplying methamphetamine to Hilton Bush
Phillip Bancroft
Count 26 Supplying methamphetamine
Introduction
[1] Mr Murray, Ms Lloyd, Mr Yates, Ms Rundberg, Mr Bancroft, you appear for sentence today having each been convicted on 27 June 2014 for drug-related offending following an eight week jury trial in Auckland.
[2] Mr Murray, you were found guilty of five counts of manufacturing the Class A drug methamphetamine, one being a representative count.1 Each of those counts exposes you to liability for life imprisonment. You were further found guilty of two counts of supplying methamphetamine, one being a representative count,2 one count of conspiring to supply methamphetamine,3 two counts of offering to supply methamphetamine,4 one count of supplying a Class B controlled drug GHB,5 one count of conspiring to supply a Class B controlled drug,6 two counts of possession of a precursor substance,7 two counts of possession of equipment,8 and two counts of possession of materials.9
[3] Ms Lloyd, you were found guilty of three counts of permitting premises to be used for the manufacture of methamphetamine on 30 July 2012, 5 October 2012 and on a representative count between 23 November 2008 and 26 October 2012.10
[4] Mr Yates, you were convicted on one count of manufacturing methamphetamine and one count of supplying it.
[5] Ms Rundberg, you were convicted of one count of conspiring to supply methamphetamine and one count of supplying it.
[6] Mr Bancroft, you were convicted on one charge of supplying methamphetamine.
1 An offence against Misuse of Drugs Act 1975, ss 6(1)(b) and 6(2)(a).
2 Sections 6(1)(c) and 6(2)(a).
3 Section 6(2A)(a)
4 Sections 6(1)(c) and 6(2)(a)
5 Sections 6(1)(c) and 6(2)(b).
6 Section 6(2A)(b).
7 Sections 12A(2)(b) and 12A(3)(b).
8 Sections 12A(2)(a) and 12A(3)(b).
9 Sections 12A(2)(a) and 12A(3)(b).
10 Sections 12(1) and 12(2)(a).
[7] The offending for which you were all convicted was significant and serious, particularly, Mr Murray, in relation to you. I will set out the factual background only briefly.
Factual background
[8] The drug operation was primarily carried out at two addresses at Whangape Road, Herekino, Kaitaia. Mr Murray, you were the leader of the offending. The intercepted communications and evidence and materials collected from Whangape Road satisfy me that you were the “kingpin” who was in charge of manufacturing and would take charge of sourcing the materials you needed for manufacture. All five of you, together with the late Colin Murray, participated in what was an enterprise from which you all benefited, although to different extents and in different ways. For those of you who lived at Whangape Road, it was a communal or extended family enterprise. Between 23 November 2008 and 26 October 2012, you, Mr Murray, manufactured methamphetamine at Whangape Road and during that four year period you also supplied that methamphetamine.
[9] Upon your arrest, Mr Murray, the Police found evidence of $775,939.32 of unexplained income. Precursor materials, substances and equipment were all seized on your arrest. There were, amongst the precursor materials, 8.9 litres of hypo- phosphorous acid, 6.6 kilograms of iodine, 212 grams of red phosphorus and
243 grams of Contac NT. Parr bombs, stainless steel vessels, funnels, plastic tubing, baking dishes, reaction flasks, jugs, metal distillation condensers, pressure sprayers, thermometers, hotplates, gloves, filters, acetone, hydrochloric acid and caustic soda were also all found upon your arrest.
[10] On 30 July 2012, you, Mr Murray, manufactured at least two ounces of methamphetamine at Whangape Road. Again on 24 August 2012, you manufactured at least 6.25 ounces of methamphetamine there. On 28 September 2012, you manufactured an unknown quantity of methamphetamine, this time in a property on Wright Road in Matakana. On 5 October 2012, you, Mr Murray, and you, Mr Yates, manufactured at least 12 ounces of methamphetamine at Whangape Road. Together you then both supplied five ounces of methamphetamine.
[11] On 30 July 2012, on 5 October 2012 and, I find, on more than one other occasion over the course of a four year period between 2 November 2008 and
26 October 2012, you, Ms Lloyd, permitted Mr Murray to use your premises, knowing that he was manufacturing methamphetamine.
[12] Ms Rundberg, on 7 September 2012, you agreed with Mr Bogue to supply an ounce of methamphetamine to an unknown person. On 13 September 2012, you supplied Hilton Bush with 2.25 ounces of methamphetamine.
[13] Mr Bancroft, on 6 October 2012, you supplied an unknown person with half an ounce of methamphetamine.
Personal circumstances
[14] I will now turn to discuss the personal circumstances of each of you in turn and the recommendations contained in your respective pre-sentence reports.
Frank William Murray
[15] Mr Murray, you have nine previous convictions for drug offending. You have previously been sentenced to prison three times for various offending involving cannabis and methamphetamine. In 2001 you were convicted of two charges of conspiring to deal methamphetamine and in 2004 you were convicted of manufacturing methamphetamine. These charges were when methamphetamine was a Class B controlled drug.
[16] I have had regard to your pre-sentence report. According to that report you have had and continue to have a supportive family and good relationships with your two children. You completed your high school education in good standing and have spent much of your life working on the family farm.
[17] While you accept your involvement in the offending, you deny the full extent of that for which you were convicted. Despite this you are considered highly motivated not to reoffend and have already begun to make plans to that end. I also note that you have been placed in high trust roles during your time in custody.
[18] The probation officer suggests that your offending appears to stem from a personal sense of entitlement. While you appear highly motivated not to reoffend, your past history of reoffending places this in doubt. Ultimately the report makes the only realistic recommendation possible in this case – imprisonment.
Betty Anne Lloyd
[19] Ms Lloyd, this is your first time before the High Court. However, you have previously been sentenced in the District Court for shoplifting, possession of cannabis for supply and unauthorised possession of paua for sale.
[20] I have read your pre-sentence report. It records that you left school in the fifth form to work in a shearing shed. When you married you then continued working on your husband’s farm. Sadly, seven months ago, your husband passed away and I accept that this has had a significant impact on you. He was very sick over much of the time of your offending. I also note you have a 17 year old daughter with whom you enjoy a good relationship.
[21] You have continued to deny your current offending and claim to be “very strict about having nothing to do with drugs”. The jury thought otherwise, Ms Lloyd, and I have to say I agree with the jury. You have said that you have remorse at the situation into which you have placed your daughter, and I accept that. The probation report considers you are at a low risk of reoffending and you do not have any particular rehabilitative needs, and I accept that.
[22] I have also received a number of letters from people supporting you. These letters describe you as supportive and as a loving parent. I have received a letter from your daughter. She describes the hurt she has experienced after losing her father and the hurt she now has at the risk of losing you to prison. She asks me to sentence you to home detention.
Curtis Edward Yates
[23] Mr Yates, you have previously appeared before the Court and have 11 prior convictions, although those were all for more minor offending such as driving while
disqualified, wilful damage and driving with excess breath alcohol. This is the first time you have appeared before the Court for serious offending.
[24] I have received a pre-sentence report for you also. You had a good upbringing and it appears you had a good relationship with your parents. You are married and have five children, three of whom are still living at home with your wife.
[25] You advised the report writer that you have abstained from the use of drugs or alcohol during your time of electronically monitored bail and prior to your arrest you were a recreational user of drugs including methamphetamine, and of course you gave evidence to that effect at the trial.
[26] The factors contributing to your offending are identified as being with associates who are supportive of your offending, your own substance abuse, and your own attitudes which were supportive of your offending. You have expressed a willingness to undertake treatment at the Dependency Treatment Unit. You have had difficulty in expressing your remorse, and only today have I seen a letter from you talking about your remorse and, as I read it, I see your remorse is focused on the harm that “Frank’s enterprise” brought on the community and that you are sorry for the victims which the offending has created.
[27] You have been assessed as being at low to moderate risk of reoffending. However, again, it is your ties with your co-offenders that must be monitored as a part of your risk management.
[28] On a positive note, I acknowledge that I have received several reference letters from people who have known you in excess of 20 years, as well as from your wife. These letters show the support you have from various people in the community and that you are considered to be a caring, friendly, supportive and loving family man.
Dionne Jean Rundberg
[29] Ms Rundberg, this is the first time you have appeared before the Court.
[30] Your pre-sentence report indicates that prior to being remanded, you were living with your stepmother and father and were on medication for depression after losing your job due to the charges on which you are being sentenced today.
[31] The report writer describes you as candid and co-operative. You engaged in the interview process and spoke freely about your history and circumstances. You are described as positively motivated and intelligent and you have insight into your present situation. A key factor contributing to your offending is your associates who were supportive of your offending.
[32] You have been assessed as being at low risk of reoffending given your age and previously clean criminal history. You do not appear to have any issues with abusing drugs or alcohol, but during your pre-sentence interview you disclosed that you did recreationally use drugs during the early 2000s.
[33] The report recommends a sentence of home detention with special conditions.
[34] I have received reference letters from many members of your family, as well as a letter of remorse from you. Your letter indicates that you are willing to engage in substance awareness programmes and that you have changed your attitude towards drugs. You say you are now aware of the impact your offending has had on your health, family and society and you want to make changes. The letters of reference indicate that you are a warm and caring person who works hard. You clearly have significant support from your family, who describe this offending as being out of character for you and express the view that you have been caught up with the wrong people. Indeed, you have been caught up with the wrong people.
[35] Finally, I note that a suitable address would be available for home detention.
Phillip Bancroft
[36] Mr Bancroft, this is not the first time you have appeared before the Court. You began offending in 1985 at the age of 21, and have since accumulated a total of
88 convictions, including convictions for dishonesty, theft, violence, driving offences, property related offences, non-compliance and, most relevantly, drug
related offences. You have a previous conviction from 2011 for possession of methamphetamine, two convictions in 2004 for possession of needles and syringes and in 1996 you were sentenced to imprisonment for three years on concurrent charges of possession of cannabis for supply and conspiracy to supply Class A drugs.
[37] I have had the benefit of reading a pre-sentence report prepared by the Department of Corrections about you. According to the report, you came to Auckland to pursue a career playing professional rugby league, and you earned a position in a team. However, this promising career was cut short when you were convicted of a drug offence in 1996 and you received a sentence of three years’ imprisonment. Due to this offending, you felt as though your reputation and confidence was ruined and you had limited employment opportunities.
[38] You mentioned to the report writer that you have a 21 year old son with whom you have no contact. Your current partner confirms that she has stood by you and is willing to support you despite your current situation.
[39] You appear to have some insight into your offending and are able to identify the factors that have contributed to your offending. The factors have been identified by the report writer as including your own addiction to drugs, your associations with people who are supportive of your offending, and your own attitude and lifestyle. You disagreed with the assessment regarding your associates, which is worrying.
[40] With regards to your drug use, you told the report writer that you have used methamphetamine heavily for more than 10 years. You said that you believe you need an intensive drug and alcohol programme and you are willing to take part in the Drug Treatment Unit in prison. Your attitude can be addressed by a programme such as the Medium Intensive Rehabilitative Programme for which you meet the entry criteria.
[41] You express regret and you say you have some motivation to change. While I accept you have a willingness to undertake programmes, I do treat this with caution because of your poor compliance history. You are assessed as being at high risk of
offending, though this risk could be mitigated should you seriously address your substance abuse and complete an intensive rehabilitation programme.
Purposes and principles of sentencing
[42] The Sentencing Act 2002 sets out the purposes and principles for sentencing. Where serious drug offending is concerned, I have to hold each of you accountable for the harm you have done to the community by your offending. Your manufacture and supply has brought substantial amounts of methamphetamine into the Northland and Auckland areas. Of course this has caused harm to the wider community.
[43] Having said that, and within the requirements of the law, I do not set out simply to punish you. I have to look at each of you individually and take into account the need to help you with rehabilitation and reintegration into society once you have served your sentences.
[44] As all of your lawyers have recognised, there have been so many previous cases of sentencing for serious drug offending that sentencing levels overall are well known. This is something I need you to understand and for the people in the public gallery to understand. The task that I have to perform today is not a personal one. I have to sentence you within the confines of the law. I have to do what the law requires me to do. In doing that, it does not matter whether I think you are good people, deluded people, people who have been misled, or just people who found yourselves in circumstances which you were unable to resist. To the extent that the law allows me to take those things into account, I will. But there have been so many cases involving serious drug offending that I really have to find where your cases fit within that body of law.
[45] There is a case, in particular, called R v Fatu which specifies bands of offending and the sentencing levels applicable to each.11 In sentencing you today, I am not going to go through the details of all of the cases to which I have been referred. I will note them in the written record of my sentencing notes, but I am very well aware that all you want to know is the final outcome. So, I will indicate to you
the basis on which I reach my sentences but I will not go into the sort of detail which will be of real interest only to the lawyers.12
Frank William Murray
[46] Mr Murray, on the case law, the Crown submits I should take a starting point of 17 to 18 years’ imprisonment on the offences of manufacturing methamphetamine. I should increase the starting point by two to three years’ imprisonment to take into account all the other offending for which you have been convicted. According to the Crown, a further increase of one year’s imprisonment should be imposed to take account of your previous record of offending, particularly your methamphetamine-related offending. Therefore, the Crown’s submission to me is that you should be sentenced to a term of imprisonment of between 19 and
22 years. The Crown also asks for a minimum period of imprisonment of one-half of your prison sentence.
[47] Your lawyer, Mrs Wilkinson-Smith, submits that the starting point, having regard to previous cases, should be 14 to 16 years’ imprisonment. Taking into account your other offending, Mrs Wilkinson-Smith accepts that there must be an increase. She puts that at one to one-and-a-half years’. Mrs Wilkinson-Smith also accepts that there must be an increase to take account of your record of prior offending. She puts that at six months’ imprisonment. However, Mrs Wilkinson- Smith submits that there are factors that justify a reduction in the starting point.
[48] You were granted electronically monitored bail on 29 May 2013. From that point until your trial, you were on a 24-hour curfew. I am urged to give you six months’ credit for that time on electronically monitored bail. Mrs Wilkinson-Smith suggests also that it would be proper for me to allow a further six months’ credit for your personal circumstances, particularly the way in which you have addressed your drug dependency issues. Mrs Wilkinson-Smith points to the drug test result from
15 May 2014 which returned a negative result.
[49] Mr Murray, I heard the evidence in your case. I consider that for the four years covered by the charges on which you were convicted, you were the driving force behind a considerable commercial methamphetamine manufacturing and supply operation. The Crown points to a number of factors which show the extent of your operation. For myself, I found compelling the evidence of Detective Davenport that you and your wider family had unexplained income to the value of at least
$775,000. That, in the Crown’s submission, equates to around 1.8 kilograms of methamphetamine manufactured and sold. However, I take Mrs Wilkinson-Smith’s point that I cannot attribute that unexplained income solely to your efforts. I accept that your brother, Mr Colin Murray, was also heavily involved with the manufacturing of methamphetamine.
[50] But, there are other factors to take into account. First, the Crown’s calculation of 1.8 kilograms is based only on the sale price of methamphetamine. It does not take into account the considerable cost of manufacturing methamphetamine. That is to say, the cost of the ingredients and the selling costs. It does not take into account the $100,000 that was in your possession in cash. Further, I consider that the evidence of the specific amounts being manufactured and sold show a prolific multi-ounce operation. Finally, the quantities of precursor substances found give me an indication, as I am sure it did the jury, of the extent of your operation.
[51] Of course, I cannot be sure about exact quantities. But I think I am entirely safe to take it that over the four year period covered by the indictment you manufactured and supplied not less, and certainly more, than two kilograms of methamphetamine. On the evidence I heard, you, and not your brother, were the dominant partner.
[52] Having considered the case law, I adopt a starting point of 17 years’ imprisonment. Your other offending relates partly to supplying some of the methamphetamine you manufactured but also to planned further offending. I refer, in particular, to the possession of equipment and to the very considerable amounts of precursor substances. I consider an uplift of two years is required. I accept Mrs Wilkinson-Smith’s submission that a further uplift of only six months is required to mark your record of offending in relation to methamphetamine. I will
also adopt her submission that a reduction of six months should be made to take into account the period you spent on electronically monitored bail. However, I do not think that any further reduction should be made to take into account your personal circumstances.
[53] That makes a final sentence of 19 years’ imprisonment. I have stepped back and considered this sentence against the totality of your offending. In my view, looking at your offending overall, I could go higher. I also accept that the law would entitle me to go a bit lower. But, as the trial Judge, I am satisfied that the 19 years is within the available sentencing range and, taking into account the way you involved other members of your family, that will be your sentence. I will allocate lesser sentences to the other charges later, but they will be concurrent with each other which means that your effective sentence will be 19 years.
[54] I will also impose a minimum period of imprisonment. I think I am bound to do that when looking at the law. I have to hold you accountable, denounce your conduct and deter others. I direct a minimum period of imprisonment of nine years, which is 47 percent of your end sentence.
Betty Anne Lloyd
[55] Ms Lloyd, the Crown submits that a starting point of four to five years’ imprisonment is suitable in your case. This is because, the Crown says, I should take it that you were involved in the manufacturing of methamphetamine over a period of four years by allowing your premises to be used for that purpose. Further, you received financial benefit from the manufacturing, as the evidence of Detective Davenport makes clear. The Crown sees no reason to depart from the starting point.
[56] Mr Borich, of course, submits that a starting point of just under two years is appropriate and that your final sentence should be one of home detention. Your lawyer urges me to look at a case called R v Lorigan, where a starting point of two years six months was adopted in a situation which Mr Borich submits was more
serious than your case.13 Your lawyer suggests that there is no evidence that you permitted your particular property to be used more than three times.
[57] Having heard the evidence, I find that methamphetamine was manufactured at the addresses in Whangape Road regularly and frequently over the four years spanning the charges on which you were convicted. I cannot say how many occasions related to the property you and your late husband controlled. I believe I am safe to say that, for the purposes of the representative charge, it happened more than once at your property, but beyond that I am not prepared to put a number on it.
[58] You clearly, however, received a financial benefit from the overall methamphetamine operation. The evidence of Detective Davenport implicates you thoroughly in the spending of large amounts of money derived from the methamphetamine manufacturing.
[59] Against that, I consider that as Mr Colin Murray’s wife, and Mr Frank Murray’s sister-in-law, it would have been difficult for you to refuse to allow the premises to be used. You were living in an isolated rural area and it would have been a very big step for you to take action to prevent your property from being used.
[60] The Crown points to the intercepted telephone conversations of 5 October
2012 which are relevant to count 23 as proving that you were well aware that manufacturing was taking place. I accept the awareness point. However, to me, those conversations also showed an attitude which was almost of resentment rather than wholehearted acceptance. I take that into account.
[61] In these circumstances, I adopt a starting point of two years and nine months’ imprisonment. I cannot give you any discount for good character because of your previous criminal record, particularly your conviction for possession of cannabis for supply. I accept that you are now genuinely remorseful and that you have otherwise been a valued member of your community. I also accept that the recent loss of your husband would make serving a sentence of imprisonment more difficult for you particularly because your 17 year old daughter will be left without parental care.
[62] For these reasons, and consciously exercising my discretion to show mercy, I am going to reduce your sentence to two years’ imprisonment and I am going to commute it to a sentence of home detention. The reasons which justify a reduction in your starting point, together with the low risk of reoffending you pose, mean that home detention is an appropriate sentence.
[63] Taking into account the period you have spent in custody since trial, the
sentence will be 11 months’ home detention.
Curtis Edward Yates
[64] Mr Yates, your offending falls within band 3 of R v Fatu. The Crown submits that a starting point of 11 or 12 years’ imprisonment is appropriate on the manufacturing charge. The Crown submits that there should be an increase of two years to take into account the charge of supplying methamphetamine to Mr Bogue. I am asked to find that there are no factors personal to you which should require the overall sentence of 13 to 14 years’ imprisonment to be reduced.
[65] Your lawyer, of course, has a very different position. Mrs Freyer contends that a starting point of six years’ imprisonment is appropriate. This is on the basis that you played only a small role in Mr Murray’s large scale enterprise, and you did not benefit financially from the offending. Mrs Freyer’s view is that your case is much closer to R v Tang, where a starting point of six-and-a-half years was adopted for someone who helped the head cook from time to time.14
[66] Mrs Freyer disagrees that there is no factor justifying a discount. She submits that you co-operated with all reasonable steps taken by the Crown to shorten proceedings. Her submission is that you have a good character with no relevant previous convictions. You have a number of references from members of the community. Importantly, Mrs Freyer submits that you are entitled to a discount to reflect the time you spent on electronically monitored bail. You were on electronically monitored bail for 17 months, although for a period of that time you were free, under supervision, to leave and to work on the farm. Mrs Freyer’s view is
that from a starting point of six years, you should receive credit of 12 to 18 months for these factors, with the result that your final sentence should be in the range of four-and-a-half to five years’ imprisonment.
[67] Mr Yates, the lead charge in your case is the charge of manufacturing methamphetamine. You assisted Mr Murray and I can conclude that 340 grams of methamphetamine were manufactured. That does put you in band 3 of R v Fatu where starting points range from 10 to 15 years’ imprisonment.
[68] I am going to adopt a starting point at the lowest end of band 3 of Fatu. That is to say, 10 years’ imprisonment. I do so because I accept that Mr Murray was the leader of the enterprise and that, although on the evidence you did benefit from the manufacturing operation, you were very much a helper. But you admitted that Mr Murray supplied you with methamphetamine, supplied cash to your partner, and there were gifts of cars. I infer you were not being entirely candid in your evidence about the extent to which you benefited. But I also accept that there is no evidence that you were directly financially benefiting from the charges upon which you are now being sentenced.
[69] Normally, I would increase the starting point by one to two years’ imprisonment to take into account the supply of 140 grams of methamphetamine to Mr Bogue, but I am uneasy about doing that. I do not regard it as offending which is divorced from the overall role you played as an assistant to Mr Murray. On a totality basis, I consider an uplift of six months’ imprisonment is justified, making a total end point to the starting point of 10 years six months’ imprisonment.
[70] I am going to give you a discount for the 17 months you spent on electronically monitored bail. I am going to be as generous as I can in that discount. It will be a 12 months discount. I do not consider that a further discount is required for the co-operation you showed to the Police – you did not plead guilty to the charges on which you have been convicted. I do not feel I can give you credit for good character or remorse.
[71] Your overall sentence, therefore, will be nine years and six months’
imprisonment.
[72] I will not impose a minimum period of imprisonment.
Dionne Jean Rundberg
[73] Ms Rundberg, your lead charge is count 14, supplying methamphetamine to Hilton Bush. The amount, I accept, was two-and-a-quarter ounces. This is the equivalent of 64 grams. The conspiracy charge relates to one ounce of methamphetamine.
[74] The Crown submits that although these are single charges, they relate to unusually large quantities of methamphetamine, and the Crown is right with that. I accept you were a broker rather than a seller. Accordingly, the Crown submits the supply of methamphetamine falls within the lower end of band 2 of R v Fatu which attracts starting points of three to nine years’ imprisonment. The Crown puts you a little over the midpoint and wants a starting point of five or five-and-a-half years’ imprisonment. The Crown submits that an uplift of one year for the conspiracy charge is appropriate, making an overall starting point of six or six-and-a-half years’ imprisonment. The Crown accepts it might be appropriate to discount your sentence because of your previous good character.
[75] Mr Kaye submits that the Crown’s proposed starting point is too high because the aggravating features of premeditation and planning are more absent than present in your case. In Mr Kaye’s submission, the proper starting point is around four years’ imprisonment. He submits that while there must be an uplift for the conspiracy charge, he says that this was just one brief conversation in which an agreement was made but then immediately abandoned. In his submission, and having regard to the totality principle, if there is to be an uplift it should only be for a few months.
[76] Mr Kaye emphasises your good character as a first time offender with a low likelihood of reoffending. He asks that your sentence be reduced to two years’ imprisonment in order to allow a sentence of home detention to be given.
[77] I will sentence you on the basis that these are two single offences. Having heard the evidence, I am not at all sure that the charges are not snapshots of your involvement with Mr Bogue. However, I am going to take the approach most favourable to you.
[78] Looking at the cases which are comparable to yours, and considering where the lead offence fits within band 2 of R v Fatu, I adopt a starting point of five years’ imprisonment. I do not think that the conspiracy charge is as minor as Mr Kaye asks me to accept. You instigated the conspiracy and pressed Mr Bogue to continue with it when he indicated that his schedule might not permit it to happen. It was only that his schedule would not reconcile with your client’s requirement that the transaction did not proceed. I adopt an uplift of six months’ imprisonment, making a starting point of five years six months’ imprisonment.
[79] I agree with Mr Kaye that you are entitled to a considerable discount for your previous good character. I have read some very positive references which are a testament to you. In your case, I have particular scope to look at encouraging your rehabilitation and providing for reintegration. But I cannot overlook your offending, nor can I reduce your sentence for the purpose of bringing you within the home detention range. The Court of Appeal, in a case called R v Findlay, noted that a discount of greater than 25 percent solely for good character would be outside the
appropriate range.15 All things considered, and standing back and looking at the
totality of your situation, I will give you a discount of 20 percent. This reduces your
sentence to four years five months’ imprisonment.
Phillip Bancroft
[80] Mr Bancroft, I have accepted that you were found guilty of supplying half an ounce of methamphetamine (14 grams). The Crown submits that this offending falls within the lower end of band 2 of R v Fatu. The Crown submits there should be a starting point of three-and-a-half years’ imprisonment. Because you committed this offending while serving a sentence of community detention, the Crown submits that
this starting point should be increased.
15 R v Findlay [2007] NZCA 553 at [91].
[81] Ms Dyhrberg disputes the Crown’s case that you supplied half an ounce of methamphetamine. In her submission, I should take the correct amount as being half a gram. The reason I do not accept that is that Mr Murray was not into supplying such small amounts and Mr Bogue was not a person who received such small amounts. Looking at the intercepted communications as well, I find the quantity of half an ounce fits the overall matrix of evidence.
[82] On the basis of my finding, Ms Dyhrberg accepts that your case falls within band 2 of Fatu and that a starting point of three to three-and-a-half years’ imprisonment is appropriate, although her firm submission is that I should adopt a starting point of three years’ imprisonment.
[83] Ms Dyhrberg submits that I should not impose any increase either for your record of previous offending or the fact that this offending occurred while you were serving community detention.
[84] I will adopt a starting point of three years’ imprisonment. I will not increase the starting point to take account of your record of offending. I accept it is largely historic and reflective of your battles with drug addiction. I must, however, impose an uplift to reflect the fact you committed this offending while serving a sentence of community detention. I keep that as low as I can and adopt an uplift of six months. The end sentence is one of three years six months’ imprisonment. I record that I have stepped back and looked at this sentence on a totality basis and find it appropriate.
Result
[85] Mr Murray:
(a) On counts 1, 5, 16, 21 and 37, you are sentenced to 19 years’
imprisonment, with a minimum period of imprisonment of nine years. (b) On counts 28 and 39, you are sentenced to 10 years’ imprisonment.
(c) On counts 9, 20 and 25, you are sentenced to five years’
imprisonment.
(d) On counts 31, 32, 33, 34, 35 and 36, you are sentenced to five years’
imprisonment.
(e) On counts 24 and 29, you are sentenced to six months’ imprisonment. All sentences are to be served concurrently. I make an order for the forfeiture
of the trailer and its contents. [86] Mr Yates:
(a) On count 21, you are sentenced to nine years six months’
imprisonment.
(b) On count 28, you are sentenced to five years’ imprisonment. Both sentences to be served concurrently.
[87] Ms Lloyd:
(a) On counts 3, 23 and 38, you are sentenced to 11 months’ home detention, to be served concurrently. The conditions are:
1.To travel directly to 46 Awatere Street, Flatbush and there await the arrival of the probation officer and the monitoring service.
2.To reside at 46 Awatere Street, Flatbush and not to move address without the prior written approval of the probation officer.
3.Not to consume, use or be in possession of any illegal drugs except prescribed medication for the duration of home detention.
4.To attend and complete any appropriate programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer.
5.Not to associate with any of the co-offenders for the duration of the sentence without the prior written approval of the probation officer.
Post Detention Conditions:
1.To continue to attend any programme until the completion of the post detention conditions as directed by a probation officer.
2.To only reside at an address approved by a probation officer for the duration of the sentence and not to move address without the prior approval of a probation officer.
[88] Ms Rundberg:
(a) On count 14, you are sentenced to four years five months’ (b)
imprisonment.
On count 8, you are sentenced to one year’s imprisonment.
Both sentences to be served concurrently.
[89] Mr Bancroft, on count 26, you are sentenced to three years six months’
imprisonment.
[90] You may all stand down.
Brewer J
APPENDIX OF CASES
Frank William Murray:
Crown:
· R v Gray [2013] NZHC 450
· R v Rhodes [2009] NZCA 486
· R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612
· R v Taueki [2005] 3 NZLR 372 (CA); R v Nguyen [2009] NZCA 239
· R v Wong [2009] NZCA 332
· R v Anslow CA182/05, 18 November 2005
· Fleming v R [2011] NZCA 646
Defence:
· Peters v R [2012] NZCA 252
· Clifton v R [2013] NZCA 85
· R v Corless [2014] NZHC 1211
· R v Webb [2008] NZCA 487
· R v Faisandier CA185/00, 12 October 2000
· Schuster v R [2011] NZCA 343
Betty Anne Lloyd
Crown:
· R v Oldeman [2013] NZHC 1709
Curtis Edward Yates
Crown:
· R v Kayrouz [2013] NZHC 799
Defence:
· R v Clifford [2011] NZCA 360
· Baird v R [2012] NZCA 430
· R v Davidson [2011] NZCA 356
Dionne Jean Rundberg
Crown:
· R v De Serville HC Auckland CRI-2006-004-18441, 29 August 2008
· R v Schwenke HC Auckland CRI-2008-044-7390, 19 November 2010
· R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627
· R v James [2013] NZHC 2006
Phillip Bancroft
Crown:
· Nordstrand v Police HC Whangarei CRI-2011-488-51, 26 September 2011
· R v Wilson HC Auckland CRI-2008-090-7272, 5 December 2008
Defence:
· R v Tohu HC Whangarei CRI-2010-088-2691, 7 October 2010
· R v Matthews HC Whangarei CRI-2010-088-2612, 13 April 2011
· R v Hollingsworth HC Auckland CRI-2006-055-310, 26 April 2007
5
17
0