R v Murray
[2013] NZHC 1383
•11 June 2013
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2012-054-860 [2013] NZHC 1383
THE QUEEN
v
SEAN CHRISTIAAN MURRAY
Hearing: 11 June 2013
(Heard at Wellington)
Counsel: D J Flinn for the Crown
P Surridge for Murray
Sentence: 11 June 2013
SENTENCING NOTES OF GODDARD J
Solicitors: Crown Solicitors, Palmerston North
Surridge & Co, Porirua, Wellington.
R v MURRAY [2013] NZHC 1383 [11 May 2013]
[1] Sean Murray you appear for sentence on 23 charges arising from your participation in a major methamphetamine dealing operation conducted over a considerable period of time and in which you played a role for at least a part of that time. You pleaded guilty to those charges. The 23 counts comprised a representative charge of an on-going enterprise of selling methamphetamine over the period
6 August 2008 to 20 March 2012 (your involvement was for a lesser period than that); possession of methamphetamine for the purpose of supply on or before
20 March 2012 (3.5 grams); possession of cannabis for the purpose of supply on or before 20 March 2012 (5 ounces); and 20 charges of unlawful possession of firearms, restricted weapons and ammunition located at the property where you lived. Some of those firearms were loaded.
Offence Section Maximum penalty Result
Misuse of
Supplying methamphetamine
Possession of methamphetamine for the purposes of supply
Possession of
Drugs Act
1975, s 6(1)(c) and s 66 Crimes Act 1961
Misuse of
Drugs Act
1975, s 6(1)(f) and (c) Misuse of
Life imprisonment Guilty
Life imprisonment Guilty
cannabis for the purposes of supply
Unlawful possession of a firearm x 15
Unlawful possession of a restricted weapon x
1
Unlawful possession of ammunition x 3
Drugs Act
1975, 6(1)(f)
and (e)
Arms Act 1983, s 45(1)(b)
Arms Act 1983, S 45(1)(b)
Arms Act 1983, S 45(1)(b)
8 years maximum
imprisonment
4 years maximum imprisonment or $5000 fine
4 years maximum imprisonment or $5000 fine
4 years maximum imprisonment or $5000 fine
Guilty Guilty Guilty
Guilty
Circumstances of the offending
[2] On 20 March 2012, police executed a search warrant at the home you were living in with Ms Rose, situated about three kilometres out of Woodville in a quiet rural environment. While the house appeared to be an ordinary, quite non-descript
dwelling from the outside, on closer examination it was highly secured in a manner designed to protect and facilitate the major drug dealing operation Ms Rose was conducting out of it. Across the entrance to the driveway was a light beam that sounded a buzzer in the master bedroom. Affixed to the outside of the front of the house was a CCTV camera. Three monitors inside the house were connected to that CCTV camera. One was in the master bedroom on the wall opposite the bed. Another was in the dining/family room and yet another was in the lounge. In the dining/family room there was also a police scanner which was turned on. Beside this scanner was a list of registration numbers for unmarked police vehicles in the Palmerston North, Fielding and Dannevirke districts.
[3] Police also found tick lists in your co-offender’s, Ms Rose’s, handwriting and other cryptic lists in some sort of coded form. These cryptic lists, led to the discovery of stashes of huge amounts of cash in and around the property, some of it buried in the garden. In total, some $764,000 in cash was found at the property, carefully hidden, in bundles comprising notes of mainly large denomination.
[4] Also found in the house were thousands of unused snaplock bags of various sizes and other accoutrements of methamphetamine dealing. A loaded revolver was within easy reach on your side of the master bedroom. Other weapons found in and around the property were a pistol, a semi-automatic rifle, two stun guns, a shotgun, various other rifles, a pen pistol and various ammunition. I am prepared to accept that some of these firearms may have been for hunting or were some sort of collector’s items, but I am satisfied that you were fully aware of the presence of all of these firearms, exercised control over them, had them at the ready, and were prepared to use them. The combination of class A drugs, together with an extraordinarily large amount of cash and the presence of loaded firearms is an extremely serious matter.
[5] In terms of relativity between you and Ms Rose, I am satisfied you were far less involved in the operation than Ms Rose. Your involvement spanned not only a lesser period of time but was less significant. On the evidence, it appears to have commenced from sometime in late 2010. You had apparently got to know Ms Rose as one of her methamphetamine customers. You and she became an ‘item’ and you
moved into her property at Hope Road, Woodville in late 2010, probably in December 2010. You acted as her assistant in her drug dealing operation from that time. I had earlier concluded, on the basis of a text message from Ms Rose to you that was adduced in evidence at trial, that you had done some selling on her behalf, and that your doing so was initiated by her. There were also some texts in which Ms Rose asked you to account to her for money.
[6] However, Mr Surridge has given an alternative explanation for those texts, which I accept for sentencing purposes. I find your involvement then in Ms Rose’s methamphetamine dealing operation did not extend to actually selling on her behalf but consisted of facilitating her making contact with friends of yours for the purpose of her selling to them and carrying out various other tasks for her, such as purchasing vehicles and furniture, (inferentially) setting up the security systems (which by their nature an extent went well beyond any normal security system even in an isolated rural setting), supervising the building of the garage and generally enabling her to carry out her drug dealing activities with your support. There is of course the serious aspect of the presence of so many firearms, including the loaded revolver on your side of the bed. Overall, however I accept as apt the description of your role in supporting Ms Rose in her drug dealing enterprise as that of an “enabler”. Mr Surridge referred to the fact that of the more than 2,800 text messages that were in evidence at trial, only 154 related to you. Some concerned merely domestic matters.
[7] Basically Mr Surridge painted a picture of you as someone who had fallen in love with a bewitching woman, who thought he was “living the dream” but who was really akin to a convenient “mule or lame duck”.
Circumstances of the offender
[8] I turn now to your personal circumstances. You are 43 years old and have three adult children. You have a history of polysubstance use involving cannabis from the age of eight and a half years, methamphetamine and other stimulants including heroin and LSD.
[9] You suffered a severe brain injury in 2007 and this has caused you considerable problems including headaches, loss of memory, irritability and depression.
[10] You have nine previous convictions but the Crown agrees none have particular relevance to your present offending as they all relate to offending of a much lesser nature.
[11] Your pre-sentence report records that you have reported some positives in your life during the time you have spent in prison. You are, of course, of necessity drug-free in that environment. You have also successfully completed an awareness course on dealing with substance abuse. You have recently received prescribed medication to address your severe headaches and you are focused on remaining drug free in the community once you are released. I urge you to maintain this focus.
Principles and Purposes of Sentencing
[12] In sentencing you today, I have to first determine what is called the starting point sentence. That is the sentence that is appropriate having regard to the nature of your offending or what you did.
[13] I then have to consider aggravating or mitigating factors personal to you which might increase or decrease your sentence from the starting point.
[14] Finally, I have to take into account your guilty pleas, as the last step in this sentencing process
[15] Section 7 of the Sentencing Act sets out the purposes of sentencing. The purposes that are particularly relevant to your sentencing are:
(a) to hold you accountable for harm done to the community by your offending;
(b)to promote in you a sense of responsibility for, and an acknowledgment of, that harm;
(c) to denounce the conduct in which you were involved;
(d)to deter you and others from committing the same or a similar offence; and
(e) to protect the community from you.
[16] I must also have regard to the principles of sentencing. The principles of sentencing that are particularly relevant to your sentencing are:
(a) the need to take into account the gravity of your offending, including your role and the degree to which you are culpable for that offending;
(b)the need to take into account the seriousness of this type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences;
(c) the need to impose the maximum penalty prescribed for the offence if the offending is within the most serious cases for which that penalty is prescribed;
(d)the need to take into account the general desirability of appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.
[17] I now turn to the starting point.
Starting point
[18] The Court of Appeal decision R v Fatu[1] provides guidance for the task of setting the starting point for methamphetamine. It is appropriate that I begin by
[1] R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410.
referring to what was said in Fatu with regard to methamphetamine offending:[2]
Methamphetamine abuse can fairly be characterised as the most serious drug problem the country faces at present. The various ways in which the drug threatens the community are well-known. Methamphetamine is a particularly destructive drug for users; it is highly addictive with profound mental and physical side-effects. It induces aggressive and irrational behaviour, and is regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs. It has created a thriving industry, in which organised crime is heavily involved at all levels.
… if it is appropriate to draw any distinction between Class A drugs,
methamphetamine can fairly lay claim to a place in the most serious category.
[2] At [11].
[19] As the Crown and your defence counsel agree, your offending makes you a party to offending that falls within band four of the bands set out in Fatu. Methamphetamine offending falls within band four if it involves supplying very large commercial quantities, characterised as being 500 grams or more. This type of offending attracts a starting point of between ten years imprisonment to life imprisonment.
[20] Mr Surridge submits that your lesser role justifies a starting point of five years’ imprisonment. The Crown says that an appropriate starting point is 13 or 14 years imprisonment. The Crown said that your culpability should be assessed according to the period of time for which you were involved in the offending as compared with Ms Rose. In terms of the timeframe specified in the indictment, Ms Rose was involved for three years, seven months and fourteen days and you were involved in your supporting role for one year four months and fourteen days. Over the total period, at least 8.44 kilograms was supplied. On that approach you should be held responsible for playing a role in assisting in the supply of 3.19 kilograms.
[21] I have decided not to take that approach because your culpability is not to be assessed simply on a slide rule measurement of the length of time for which you were involved but also must take into account the lesser role you played while you were involved.
[22] The following factors are relevant in determining the starting point for supply:
(a) The large quantity of methamphetamine involved;
(b)your assistance and support of Ms Rose in carrying out her offending took place for an extended period of one year four months and fourteen days;
(c) the lesser role you played. Your involvement spanned a lesser period of time and was less significant. Ms Rose was the initiator of your involvement. As I have said, you were Ms Rose’s assistant and your support enabled her to carry out her drug dealing activities. The general approach outlined in R v Fatu is that those whose role is less significant can expect starting point sentences towards the lower end
of the band; and[3]
(d) The presence of firearms.
[3] R v Fatu, above n 1, at [31].
[23] In determining the starting point for your offending I place most reliance on the starting point of 18 years imprisonment that I adopted for Ms Rose. Given your lesser role, and having regard to comparable cases that involve a principal offender and an assistant, I have decided to adopt a provisional starting point of 12 years for the charge of supplying methamphetamine.
[24] To this must be added an appropriate uplift to reflect your firearm offending. Where firearms offending is connected to drug offending the preferred approach is to reflect the additional offending by way of an uplift rather than by imposing a cumulative sentence.[4] It is a seriously aggravating factor that you were found in unlawful possession of a large number of firearms, some of them loaded. These firearms were situated deliberately throughout the house and property so that they could be easily accessed.
[4] R v Maclean [2009] NZCA 465 at [19].
[25] The Court of Appeal in R v Richardson referred to “loaded firearms” as being “anathema within our community”.[5] The Court said that every Court has an obligation to impose sentences which clearly and properly express society’s
condemnation of unlawful possession of such firearms because of their potential for
danger. In R v Faifua the Court of Appeal referred to “the presence of a firearm” as one of the most serious aggravating features that can be found in drug cases”.[6]
[5] R v Richardson CA450/02, 25 March 2003 at [33].
[6] R v Faifua CA287/05, 27 March 2006 at [26].
[26] Given these observations, I am satisfied that an uplift of one year is appropriate to reflect your firearms offending. But for the totality principle this uplift would be much more significant, given the number of loaded weapons involved.
Aggravating factors and mitigating factors
[27] I now turn to the factors personal to you. As noted you have nine previous convictions. None of them have particular relevance to your current offending and all involved a significantly lower level of offending. They do not therefore warrant an uplift in your sentence for this offending. I disregard them.
[28] Your mental health is a mitigating factor. Whilst it is well established that, in sentencing those convicted of dealing commercially in controlled drugs, the personal circumstances of the offender must be subordinated to the importance of deterrence, personal circumstances can still be relevant and an appropriate acknowledgment of them can be made.[7]
[7] Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
[29] You have a long history of mental and cognitive problems after having suffered a traumatic brain injury on 13 May 2008. As a result of this injury you exhibited a range of behavioural indicators that are consistent with a diagnosis of a frontal lobe injury. A report by Auckland Concussion Services notes reported cognitive slowness and poor concentration. It also reports that you displayed impaired judgment.
[30] In 2009 you were forensically examined by Dr Finucance who described “problematic irritability, impairment of motivation and impulse control.” Doctor Watson-Munro, a forensic psychologist, did not examine you personally, but recently reviewed your medical history in anticipation of this sentencing. He
concluded that you were of a “high psychological vulnerability” when you met
Ms Rose and that this state of vulnerability, coupled with the effects of your head injury, contributed to your impaired judgment. He said your impaired judgment has been further complicated by a history of polysubstance abuse.
[31] On the basis of your medical history I am persuaded that some discount is appropriate to reflect your impaired judgment and psychological vulnerability. Mr Surridge has submitted that a 25 per cent discount is appropriate. However, I am mindful of the fact that your mental health problems were significantly exacerbated by your decision to use illegal and harmful substances, although with your impaired judgment, there is a certain chicken and egg situation about that. Certainly you are probably pre-disposed to get yourself into risky situations. I am satisfied that a
15 per cent discount could be given to adequately reflect your diminished responsibility.
[32] I turn now to whether a further discount should be granted for remorse. Your pre-sentence report indicated that you did not display any remorse and appeared to minimise the impact of your activities on members of the community. Mr Surridge submits that you are however genuinely remorseful, now that you have been able to comprehend the nature and scope of your offending as a whole. I think it is more appropriate in your case to simply regard any belated expression of remorse through your counsel as subsumed within your pleas of guilty and the allowance to be made for those.
Guilty plea
[33] You essentially pleaded guilty to all firearms charges in December last year and indicated guilty pleas to the drug dealing charges one week before the trial. This entitles you to a discount. I have assessed the value of your guilty pleas by considering all of the circumstances of the case. In particular I am mindful of the strength of the evidence against you and the timing of your guilty plea to
involvement in the methamphetamine charge and other drug charges.[8] I accept some
[8] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [51] and [74].
force in Mr Surridge’s submission that the week before the trial was the first
opportunity he had to properly inform you of your predicament in relation to the
drug dealing charges and to seek instructions on those charges. I am therefore satisfied that a 25 per cent discount is warranted in your case.
End sentence
[34] I sentence you to an end sentence of eight years and six months imprisonment for the lead charge of supply of methamphetamine.
Other charges
[35] I must also sentence you for possession of cannabis for the purpose of supply and possession of methamphetamine for the purpose of supply. I will start with the cannabis five ounces of which was discovered in Ms Rose’s house.
[36] For this I sentence you to one year two months imprisonment concurrent on your sentence for the lead offence of supply of methamphetamine.
[37] I now turn to possession of methamphetamine for the purpose of supply this was 3.5 grams discovered in Ms Rose’s house. For this I sentence you to two and a half years imprisonment, concurrent on your sentence for the lead offence.
Minimum period of imprisonment
[38] Given your lesser role, lack of previous relevant convictions and cognitive impairments, I do not intend to impose a minimum period of imprisonment.
[39] There will be an order for destruction of all firearms seized.
Conclusion
[40] I sentence you to:
(a) eight years and six months imprisonment on the lead charge of supply of methamphetamine:
(b)one year and two months imprisonment for possession of cannabis for the purpose of supply, to be served concurrently; and
(c) two and a half years imprisonment for possession of methamphetamine for the purpose of supply, also to be served concurrently.
[41] I must also impose a discrete sentence for the 20 charges of unlawful possession of firearms. I uplifted the overall starting point by one year to reflect those charges. I sentence you to two and a half years imprisonment to be served concurrently with your sentence for the lead charge of supply. I am of the view that your culpability in relation to those charges was generally greater than Ms Rose’s.
[42] You may stand down.
Goddard J
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