R v Namana

[2019] NZHC 826

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF CO-DEFENDANTS UNTIL THE FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2017-035-001360

[2019] NZHC 826

THE QUEEN

v

MEREPEKA MOANA NAMANA

Counsel:	D T E Moore for Crown C J Tennet for Defendant
Sentence:	15 April 2019

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]Ms Namana, you are to be sentenced in relation to the following charges:

(1)one charge of participating in an organised criminal group;1

(2)one charge of conspiracy to supply methamphetamine;2

1      Crimes Act 1961, s 98A; maximum penalty 10 years’ imprisonment.

2      Misuse of Drugs Act 1975, s 6(2A)(a); maximum penalty 14 years’ imprisonment.

R v NAMANA [2019] NZHC 826 [15 April 2019]

(3)one representative charge of possession of methamphetamine for supply;3

(4)one charge of possession of methamphetamine for supply;4

(5)one representative charge of supplying methamphetamine;5

(6)three charges of supplying methamphetamine;6 and

(7)two charges of money laundering.7

[2]This morning I will:

(1)set out your offending;

(2)outline the appropriate starting point for that offending;

(3)explain any adjustments that I can make to that starting point

(4)address whether a sentence of home detention would be suitable; and

(5)give your final sentence.

Summary of offending

[3]        The charges result from a police operation code-named “Operation Sweden” which commenced in February 2017. That investigation targeted the commercial supply of methamphetamine in the Wairarapa area, and in particular, the suspected dealing network of the Namana family, of which you are of course a member.

[4]        The operation commenced with analysis of cell phone data obtained from the phones used by three members of your family, which indicated that they might be

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

4      Section 6(1)(f) and (2)(a); maximum penalty life imprisonment.

5      Section 6(1)(c) and (2)(a); maximum penalty life imprisonment.

6      Section 6(1)(c) and (2)(a); maximum penalty life imprisonment.

7      Crimes Act 1961, s 243(2); maximum penalty seven years’ imprisonment.

involved in the supply of methamphetamine. A surveillance device warrant was later obtained in November 2017, to allow police to intercept private communications of those three members of your family. It became evident from those intercepted communications that you were also involved in the family’s drug dealing activities. A further surveillance device warrant was then obtained to allow police to intercept your private communications.

[5]        You and the other three co-defendants from your family are alleged to have worked independently, but co-operatively as a group, to supply methamphetamine. This organisation is described in the agreed summary of facts as a “family business” with the common objective of obtaining financial reward for the family group. By operating as a family group, it is alleged that you were able to minimise the risk of your activities being detected by police, and you were also able to live a comfortable lifestyle without having to do legitimate work.

[6]        Mr Wayne Namana is said to have been the “patriarch” of the family, responsible for overall control of the methamphetamine supply ring. In conjunction with Ms Chanel Namana, he is said to have purchased wholesale amounts of methamphetamine, predominantly from Mr Hanna. He is then alleged to have arranged for distribution of the methamphetamine to other family members, including Mr Iherangi Namana, who would then on-supply it to members of the public. You assisted the operation by weighing and packing methamphetamine, receiving and accounting for the money and, on occasions, supplying methamphetamine from the family home, allegedly on behalf of Wayne Namana and Chanel Namana.

[7]        A review of phone data gathered during the police investigation revealed that the family had acquired methamphetamine from Mr Hanna on at least four occasions between May and November 2017. The amounts involved in two of those transactions were 168 grams and 112 grams. The amounts involved in the remaining two transactions could not be quantified by police. The intercepted communications also suggest that at least one further purchase was made from another wholesale supplier, but police were unable to identify this person.

[8]        Police estimate that during the course of the operation, the Namana family supplied 84 grams of methamphetamine per week on average. That equates to a total of 336 grams during the interception phase. During this period, between November and December 2017, police were able to identify three occasions where Mr Hanna supplied a total of 224 grams of methamphetamine to the family. This amount was purchased for $67,500. Police estimate the profit of on-selling this quantity of methamphetamine to be at least $66,900, but say it was likely to be higher because the methamphetamine was being sold in small quantities, such as 0.1 grams and

0.25 grams, which attract a higher return. These activities comprise the representative charges that you face jointly with the other members of your family.

[9]        In September 2017, Ms Chanel Namana is said to have arranged for you to supply one of her regular customers while she was out of the country. You supplied this customer a total of at least 0.7 grams of methamphetamine over four occasions.

[10]      On 1 December 2017, you supplied one gram of methamphetamine to a customer, and resupplied Mr Iherangi Namana with several grams of methamphetamine.

[11]      On 30 November 2017, you had approximately four to five grams of methamphetamine in your possession, which you weighed for the purpose of it being supplied by a family associate.

[12]      Your cash handling responsibilities included knowing where the proceeds were hidden at the family property, receiving money from customers, counting money and delivering money to pay debts. Your packaging responsibilities involved repacking the methamphetamine into smaller amounts for on-supply.

[13]      The operation was terminated on 7 December 2017 with several search warrants being executed at properties associated with your family. Production orders were also sought for the bank accounts of the Namana family, and the analysis of the family’s finances is still on-going. You engaged in money laundering, involving several cash deposits and withdrawals of between $100 and $2,500, as well as a 2004 Ford vehicle worth approximately $4,500.

Starting point

[14]      There is a presumption in favour of imprisonment for Class A drug dealing offending.8

[15]      The Court of Appeal’s decision in R v Fatu is currently the leading sentencing guideline judgment for offending involving the supply of methamphetamine.9 The quantity of methamphetamine involved in your offending falls within sentencing band four, which provides that the supply of very large commercial quantities, above 500 grams, warrants a starting point of between ten years’ and life imprisonment.10

[16]      In setting the appropriate starting point, I have taken into account the following aggravating features of your offending:

(1)Premeditation and planning.11 A significant degree of premeditation and planning is inherent in the sale and supply of controlled drugs.

(2)Amount of methamphetamine.12 Police estimate that the Namana family supplied 84 grams of methamphetamine per week, over the course of 2017, which amounts to approximately 3.78 kilograms. That amount sits comfortably within band four of R v Fatu.

(3)Commercial gain.13 It is clear from the summary of facts that you were involved with the supply of methamphetamine for profit. Based on the minimum police estimate of the profit likely obtained from the supplies during the interception phase of the investigation, the total profit of the Namana family operation throughout 2017 is likely to have been in the region of $1.13 million. Commercial gain is a relevant aggravating factor in your circumstances.

8      Misuse of Drugs Act 1975, s 6(4)(a).

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

10 At [34].

11     Sentencing Act 2002, s 9(i).

12     Section 8(a) and (b); and R v Fatu, above n 9.

13     R v Fatu, above n 9, at [32].

[17]      In terms of your role in the overall operation, you were not a supplier in your own right, although you did make supplies on behalf of other members of the family. You primarily played the role of an assistant, dealing with the financial aspects of the operation and preparing the drugs for on-supply. The Crown accepts that your culpability is significantly lower than that of your co-defendants.14

[18]      To ensure consistency in sentencing, I have set out in the schedule to this sentencing decision a table of the comparative cases I have considered.15

[19]      The Crown submitted a starting point of four years’ imprisonment would be appropriate.

[20]      The predominant factor in setting the starting point for your offending is your low relative culpability, given your minor role in the operation. I consider that your offending is significantly less serious than all of the other principal offenders, who allegedly all had their own customers and were involved in large scale supplies. By contrast, your role mostly consisted of following instructions from your father and acting on behalf of other members of your family. The assistance you provided was on a lesser scale than in the other cases I have referred to. The few occasions where you made supplies on behalf of others only involved very small quantities of methamphetamine, far lower than the wholesale quantities in the case of R v Hsu.16

[21]      Methamphetamine is a dreadful drug, which causes significant harm to individuals and relationships. The courts have consistently adopted starting points that reflect the social harm caused by methamphetamine. Consistent with this approach and similar authorities,17 I indicated to you that a starting point of three and a half years’ imprisonment would be appropriate for the methamphetamine charges, and I remain of that view. While this is outside of band four of R v Fatu, I agree with the

14  At [31]: “Where an offender fits within any particular band will depend not just on the quantity   and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant”.

15 Sentencing Act 2002, s 8(e); R v Tang HC Auckland CRI-2009-404-13439, 6 October 2011 at [64]; R v Hsu [2012] NZHC 931 at [84]–[92].; R v Cole [2012] NZHC 2482; and Murray v R [2014] NZCA 189 at [91]–[93].

16 R v Hsu, above n 15.

17 R v Tang, above n 15; R v Hsu, above n 15; and R v Cole, above n 15.

comment of Toogood J in R v Hsu that, “[w]ithout sacrificing the necessary consistency of approach, the starting point bands described by the Court of Appeal are not to be followed slavishly according only to the quantities of drugs involved in the offending.”18

Other charges

[22]      The Crown did not seek an uplift to reflect the charges of money laundering and participation in an organised criminal group. I remain satisfied that this is the appropriate course of action in the circumstances, especially given the close association between the conduct underlying those charges and your role in the principal offending.

Adjustments to the starting point

Personal aggravating factors

[23]The Crown accept there are no aggravating factors in your circumstances.

Personal mitigating factors

[24]      You are only 20 years old, and you have no previous convictions. Although it has been said that personal circumstances are rarely relevant in cases of serious drug offending,19 the Crown accepts that discounts for previous good character and youth are appropriate in your case given the limited role that you played in the principal offending.

[25]      The Court of Appeal has said that a discount can be given for youth for several distinct reasons, including the recognised neurological differences between youth and adults including greater susceptibility to negative influences, the more serious effect of imprisonment on youth and the greater opportunity for rehabilitation.20 You are, as I have said, the daughter of Wayne Namana, who is the leader of the family. While you seem to have engaged willingly in your part of the offending, at such a young age

18     R v Hsu, above n 15, at [90].

19     Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

20     Churchward v R [2011] NZCA 531 at [77].

the power dynamic with the other members of your family, and in particular with your father, is likely to be relevant to your culpability. The fact you have not otherwise committed any crimes is relevant both to previous good character and the enhanced prospects for rehabilitation arising from your youth.

[26]      The cultural report prepared under s 27 of the Sentencing Act 2002 is very illuminating. It describes you as being “academically very able” and outlines your desire to pursue tertiary education. It also describes the leadership role you assumed at your boarding school and your love of sports. You presented to the report writer as self-disciplined and respectful. It appears that you have the potential for a bright future. You have also recently become a mother to your 16-month-old son. Finally,  to your credit, you have never used drugs despite, evidently, growing up around them.

[27]      Both the cultural report and the pre-sentencing report discuss your current employment at a local café. There is some suggestion that the café would be unwilling to continue your employment if you were required to wear an ankle bracelet, although they have been willing to continue your employment while you were on bail. It is also worth noting that you have complied fully with the conditions of your bail.

[28]      The reports also mention that you continue to deny your offending and that you only accepted the sentencing indication because you were afraid of serving a long prison sentence. You criticised your former counsel for an apparent lack of evidential exploration. Those remarks unfortunately preclude any possibility of a discount for remorse.

[29]      I indicated that you were likely to receive a combined discount in the region of 12 months for your previous good character and youth. In light, however, of the further circumstances outlined in your cultural report, I propose to increase that discount to 16 months. This is to give further recognition to the strength of your previous good character and to the clear potential that you have to be a productive, law-abiding member of society. I sincerely hope that the sentence I am going to impose will provide you with the opportunity, but also the motivation to explore your goal of university studies and that you may also resume playing rugby.

Guilty plea

[30]      In my sentencing indication, I indicated that I would be willing to provide you with a 25 per cent discount if you pleaded guilty.21 That is the discount I will give you now.

[31]This results in a final sentence of 19 months’ imprisonment.

Home detention

[32]      The pre-sentence report recommends a sentence of home detention and assesses your proposed address as suitable for electronic monitoring. It assesses your likelihood of reoffending as low. It notes that your ability to comply is unknown as you have not previously been subject to a community-based sentence. In that regard, I note that your compliance with the conditions of your bail provide some assurance of your ability to comply.

[33]      Taking into account all of the circumstances I have outlined, I am satisfied that a sentence of home detention is appropriate in your case. This sentence will allow you to continue to care for your child and hopefully to continue your current employment. It also recognises your rehabilitative potential and the low likelihood of you reoffending.

Fines

[34]      You currently owe $1,440 in fines and $593 in enforcement costs. Mr Tennet suggests I cancel those fines and substitute a sentence of community work. He says this will enable you to contribute to society and to set you up to accomplish your goals. It will also protect you against the possibility that you might not be able to continue in your current employment while on home detention. I propose to replace the fines with 40 hours of community work, which is the minimum number of hours that can be imposed in relation to that type of sentence.

21     R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.

Result

[35]Ms Namana, can you please stand.

[36]      I am sentencing you to nine months’ home detention on the representative charges of supplying methamphetamine and possessing methamphetamine for supply. The standard conditions of home detention will apply.

[37]On all the other charges, I sentence you to two months’ home detention.

[38]      I also cancel your outstanding fines and enforcement costs and sentence you to 40 hours of community work, which is the minimum number of hours that can be imposed.

[39]All sentences are to be served concurrently.

[40]      I make an order prohibiting publication of the names, addresses or identifying particulars of co-defendants until the final disposition of trial.

[41]You may stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington

Peter Stevens, Masterton for Defendant

SCHEDULE

(a)R v Tang — Mr Gu was given a starting point of four and a half years’ imprisonment for his role as an assistant in the manufacturing of between 375 and 500 grams of methamphetamine. The principal offenders in that case were given a starting point of 13 years’ imprisonment. Mr Gu was only directly involved in manufacturing on one occasion, and the remainder of his role comprised the completion of menial tasks for one of the principal offenders.22

(b)R v Hsu — Mr Phokham Bouavong was given a starting point of six years’ imprisonment for his assistance in the supply of 336 grams of methamphetamine. His brother, one of the principal offenders, was given a starting point of 16 years’ imprisonment in relation to the methamphetamine charges. Mr Bouavong’s assisted his brother by distributing the drugs and collecting the money. The sentencing Judge noted that Mr Bouavong was, on one occasion, actively involved in a wholesale level supply, and was not a mere bystander, which increased his culpability beyond that of a mere assistant.23

(c)R v Cole — Ms Cole was given a starting point of 11 and a half years’ imprisonment for her role in her partner’s dealing in 1.68 kilograms of methamphetamine, although this was reduced by 50 per cent as a personal factor to account for the relationship dynamic, which the sentencing Judge recognised could have equally been accounted for in setting the starting point. Her partner, the principal offender, was given a starting point of 17 years’ imprisonment. Ms Cole’s role was that of a bookkeeper, which involved keeping track of liabilities incurred with the supplier, and credit given to purchasers. I note, however, that Ms Cole faced conspiracy charges rather than supply charges.24

(d)Murray v R — Mr Murray was given a starting point of 12 years’ imprisonment for his role in assisting the supply of approximately 3.19 kilograms of methamphetamine. The principal offender in that case was given a starting

22     R v Tang, above n 15.

23     R v Hsu, above n 15.

24     R v Cole, above n 15.

point of 20 years’ imprisonment. However, the Court of Appeal noted  that Mr Murray’s role was “more than merely instrumental” as he had “facilitated” some of the supplies.25

25     Murray v R, above n 15.