R v Norton
[2016] NZHC 1035
•19 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-057-001428 [2016] NZHC 1035
THE QUEEN
v
CATHERINE NORTON JOHN DOUGLAS PHILIP TREVOR ROWAN
Hearing: 19 May 2016 Appearances:
J M Pridgeon for the Crown
M N Pecotic for the Defendant, Norton
P J Kaye for the Defendant, Philip
R M Mansfield and S Teppett for the Defendant, RowanSentencing:
19 May 2016
SENTENCING NOTES OF WOOLFORD J
Solicitors: Kayes Fletcher Walker (Crown Solicitor), Manukau
Counsel: Ms M N Pecotic, Barrister, Auckland
Mr P Kaye, Barrister, Auckland
Mr R M Mansfield, Barrister, Auckland
R v PHILIP & ORS [2016] NZHC 1035 [19 May 2016]
Introduction
[1] Ms Norton and Mr Rowan you are here today with Mr Philip for sentence. Mr Philip is in the cells downstairs, but has refused to come to Court. He has, however, instructed his counsel, Mr Kaye, that he is content for the sentencing to precede in his absence. The reason why the three of you are for sentence today is that you were involved in a drug ring which sold or supplied methamphetamine throughout a number of South Auckland communities. Two of your co-offenders,
Mr McGarry and Mr Albert, have already been sentenced.1
(a) Ms Norton, you have pleaded guilty to one representative charge of supplying methamphetamine between 13 November 2013 and 28 May
2014 as well as one charge of possessing methamphetamine for supply.2
(b)Mr Rowan, you have pleaded guilty to one representative charge of supplying methamphetamine over the same period.
(c) Mr Philip did not plead guilty, but elected to go to trial. He was convicted at a jury trial before me on two charges of supplying methamphetamine, one of which was a representative charge between
1 January 2014 and 6 June 2014. He was also convicted of a third charge of possessing methamphetamine for supply.
[2] The maximum penalty for all of these offences is life imprisonment.3
Facts
[3] The offending in which you and Mr Philip were involved was discovered as a result of a Police operation code named “Operation Cesium”. The operation targeted the sale and supply of methamphetamine in Wiauku, Pukekohe and other South Auckland communities. It began in late 2013 and involved, among other aspects,
significant interceptions of electronic data from cell phones being used by your
1 R v McGarry [2015] NZHC 1368; R v Albert [2016] NZHC 241.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (f).
3 Section 6(2)(a).
group to co-ordinate your offending. The operation was terminated on 28 May 2014, at which point you two together with Mr Philip were arrested and charged.
[4] For you Ms Norton and Mr Rowan, I will now set out the relevant facts as they appear from the summary to which you pleaded guilty. As to Mr Philip, I will then set out the facts that relate to him and the extent of his involvement as established by the evidence at trial.
[5] Ms Norton, between 13 November 2013 and 8 May 2014 you obtained significant quantities of methamphetamine. You broke these down into smaller quantities and on-sold them to other drug dealers, including Messers Rowan and Albert. It is accepted that the total amount you supplied during this period was around 1.1 kilograms. When the Police terminated the operation on 28 May 2014 another 81 grams were found hidden in your house and vehicle. This quantity was well concealed in a range of places including inside the heel of a boot, inside a picture frame and in a false bottom of a cat food tray. Cash and scales were also found in a wall safe and methamphetamine pipes and deal bags were found in an underground safe.
[6] Mr Rowan, during the same period you regularly purchased quantities of between four and seven grams of methamphetamine from Ms Norton. These you broke into smaller dealing amounts and on-sold to members of the community including friends and family. It is accepted that over the six month period you supplied a total of 200 grams. At the time of your arrest you were en route to a methamphetamine deal. You had with you 2½ grams of methamphetamine and
$2,030 in cash.
[7] I turn now to Mr Philip’s offending. The Crown submits, and I agree, that he was the second most culpable in terms of offending. His role was as a supplier of methamphetamine to Ms Norton. The Crown’s case at trial was that he was dealing to her in at least one ounce – that is 28 gram – quantities. It submits that the total amount of methamphetamine involved was around 320 grams, 280 grams of which he supplied to Ms Norton. My own assessment, having been the trial Judge, is much the same as that submitted by the Crown. From my own assessment of the evidence
given at trial, I have formed the view that Mr Philip supplied at least 336 grams, being 112 grams in relation to Count 1, with the remainder on at least eight separate occasions involving one ounce – or 28 grams – between 13 January 2014 and
14 April 2014, in relation to Count 2. Another 40 grams was found in Mr Philip’s
car following his arrest along with $215,000 in cash.
[8] The Crown’s position as to the quantities involved was supported at trial by considerable evidence of electronic interceptions from the phones of Ms Norton and Mr Philip. I am satisfied that these paint an accurate picture of the extent of his offending. The quantity is also supported by the significant amount of methamphetamine and large amount of cash found in his vehicle.
[9] I have had the benefit of reading pre-sentence reports prepared for all three. Ordinarily I would discuss your personal circumstances at this point in time. However, given that there are three of you for sentence today, I will discuss your personal circumstances as I sentence each of you and Mr Philip in turn.
Approach to sentencing
[10] I will adopt a three stage approach.4 The first step is to set a starting point based on the features of the offending itself and taking guidance from previous cases. The second step is for me to consider personal circumstances and adjust this starting point based on any aggravating or mitigating features they contain. The final step is to give a discount for guilty pleas where appropriate.
[11] As I say, I will go through this process for each of the three defendants for sentence, and I propose to do so in order of culpability. That means I will start with you Ms Norton, followed by Mr Philip and then you, Mr Rowan.
Ms Norton
Starting point
[12] I begin then by considering the appropriate starting point for you Ms Norton.
[13] The guideline judgment on starting points for the supply of methamphetamine is R v Fatu.5 Supplying methamphetamine in quantities over
500 grams falls within band 4, which is for very large commercial quantities and requires a starting point between 10 years and life imprisonment. Placement of the starting point within this band reflects not only the quantity involved, but also the nature and extent of the offender’s role and the sophistication of the operation.6 You were a lead offender playing a central and active role in the supply chain. This was a very significant operation, although not the most sophisticated of its kind. The total
quantity of methamphetamine you supplied or possessed was around 1.18 kilograms. That is well into band 4 and your starting point will need to reflect this.
[14] The Crown submits that the appropriate starting point is 13 years imprisonment. It highlights that you were a wholesaler, dealing in large amounts and supplying to other dealers. It also refers to two comparable cases:7 R v Wei in which a starting point of 13½ - 14 years was adopted for an offender who supplied
1.16 kilograms of methamphetamine; and R v Tarm in which a starting point of
12 years imprisonment was adopted for an offender who supplied 938 grams of methamphetamine.
[15] Counsel on your behalf submits that the appropriate starting point would be
11½ or 12 years imprisonment. She highlights that your offending began as a way to finance your own addiction and that it does not appear to have produced very significant financial benefits. She also refers to the case of R v Wei in which an
11 year starting point was adopted for a co-offender who supplied 680 grams of methamphetamine, and R v Hsu where a starting point of 12½ years was adopted for an offender who possessed and/or supplied 1.5 kilograms, although I note that the defendant in that case was not the lead offender. 8
[16] In light of these authorities, and the features of your offending that I have discussed, I have decided to adopt a starting point of 12 years imprisonment.
5 R v Fatu [2006] 2 NZLR 72 (CA).
6 R v Fatu, above n 5, at [31].
7 Wei v R [2012] NZCA 54; R v Tarm [2015] NZHC 930.
8 R v Hsu [2012] NZHC 931.
Adjusting the starting point
[17] I turn now to consider your personal circumstances, Ms Norton, beginning with your previous convictions.
[18] You are 44 years old. You have nine previous convictions all since 2008 and most of which are drug related. In 2008 you were sentenced to nine months home detention for possession of methamphetamine and LSD for supply. Your current offending was also committed while you were subject to a sentence of supervision for possession of methamphetamine in 2013. These are aggravating factors. Counsel on your behalf submits that given the far less serious nature of the previous
convictions an uplift is unnecessary and would amount to double punishment.9
However, the similar nature of your past convictions shows a pattern of escalating offending and the fact that you offended while subject to supervision is also of concern. I consider therefore there should be a modest uplift and will increase the sentence by four months.
[19] In terms of personal mitigating factors, your counsel seeks discounts for rehabilitation, remorse and the time spent on restrictive bail.
[20] It is clear that you have struggled with methamphetamine addiction yourself, and this has been identified by the Department of Corrections as contributing to your offending. You were first introduced to the drug by a former partner. I accept that since your arrest you have made significant efforts to rehabilitate yourself and re- connect with your family. I have been provided with reports and certificates from the Community Alcohol and Drug Services which demonstrate that you have been working hard and doing well. I have also read your letter to the Court and I accept that you are genuinely remorseful and have some insight into the harm your offending has caused to families in your community. All of these are positive steps and to your credit.
[21] While discounts for personal circumstances in cases of serious drug offending are limited by the need for denunciation and deterrence,10 I am satisfied that your efforts at rehabilitation and remorse do warrant a discount. I consider that this is important to encourage both you and others to break the cycle of addiction. I will therefore reduce your sentence by 15 months or approximately 10 per cent.
[22] You are also entitled to some reduction for time spent on restrictive bail. You were subject to electronically-monitored bail with a 24 hour curfew for a period of
15 months, although I note that there were exceptions to allow you to attend rehabilitation and perform maintenance on your house. You have also benefitted from the time you spent on bail which has allowed you to engage with both rehabilitative programmes and your family. In those circumstances, I consider a
reduction of five months to be appropriate.11
[23] These adjustments bring your sentence to 10 years and eight months imprisonment.
Guilty plea discount
[24] The final step is for me to consider the discount you are entitled to for your guilty plea. At a teleconference on 8 December 2015 I indicated that the Court would consider a guilty plea discount between 15 and 20 per cent for guilty pleas entered before the end of the year. Your co-offender Mr Albert, who pleaded guilty at the same time as you, received a 20 per cent reduction. You are entitled to the same 20 per cent discount, which means a further reduction of 26 months, just over two years.
Sentence
[25] This means, Ms Norton, that your end sentence will be eight years six months imprisonment. The Crown has not requested that I impose a minimum period of
10 Chen v R [2009] NZCA 445; but see also R v Hill [2008] NZCA 41 at [37] where the Court acknowledged that a discount for significant efforts at rehabilitation will still be available in appropriate cases.
11 See Purua v R [2011] NZCA 489 at [9]-[11].
imprisonment and, particularly given your efforts at rehabilitation, I am satisfied that
I should not do so.
Mr Philip
Starting point
[26] I turn now to Mr Philip. As I have outlined I am satisfied that the quantity of methamphetamine Mr Philip supplied or possessed was in the region of 320 or
336 grams. This falls in the lower to middle range of Fatu band 3, which applies to quantities between 250 and 500 grams. Starting points in band 3 are between eight and eleven years imprisonment. Counsel accepts the appropriateness of a starting point within this range on the basis of the quantity I have found to be involved.
[27] The Crown seeks a starting point of at least nine years imprisonment. It refers to R v Masters in which an offender received a starting point of nine and a half years for a supply of 375-400 grams of methamphetamine.12 A nine year starting point was similarly adopted for an offender in R v Nguyen & Ors, in that case for a supply of 336 grams.13
[28] I have considered the fact that the quantity you supplied is less than that supplied in Masters and about the same as the quantity supplied in Nguyen. On the other hand, I have no doubt that as a supplier to Ms Norton, Mr Philip was a key player and that he occupied a high position on the supply chain. I have decided, therefore, that a starting point of nine years imprisonment is appropriate.
Adjusting the starting point
[29] In terms of personal factors, I note that Mr Philip is now 57 years old. By my count he has 73 previous convictions dating back to 1974. Many of these are for more minor offending. However a number are very relevant, including convictions for methamphetamine related offending in 2014 and 2012. He was also convicted of the manufacture of methamphetamine in 2000 and received a four year prison sentence. Counsel submits that a six month uplift suggested by the Crown is too
high. This is, however, a very significant criminal history and I accept that a six month uplift is appropriate.
[30] Mr Philip’s pre-sentence report notes that he continues to deny his offending as well as any association with his co-offenders. Drug use and anti-social associates have been identified as contributing factors to his offending and he is assessed as having a high likelihood of offending again. Although Mr Philip has expressed willingness to engage with rehabilitative programs, he has not expressed remorse. In those circumstances, I do not consider that there is any basis for providing Mr Philip with a discount.
[31] Having been convicted at trial he is also not eligible for a guilty plea discount.
Sentence and minimum period of imprisonment
[32] That means the final sentence for Mr Philip will be nine years and six months imprisonment.
[33] The Crown has submitted in Mr Philip’s case that I should exercise my discretion under s 86(1) of the Sentencing Act to impose a minimum period of imprisonment of 50 per cent.14 I may do this if I am satisfied that the usual parole period will be insufficient to hold him to account, to denounce and deter this type of offending, or to protect the community.
[34] The Crown submits that Mr Philip’s offending satisfies these criteria, as is frequently acknowledged to be the case for very serious drug offending.15 It highlights that Mr Philip took the matter to trial and continues to deny his offending as well as any association with his co-offenders, and that he has a significant criminal history. Counsel emphasises that no minimum period has been sought in respect of any of his co-offenders. He submits that Mr Philip should be treated in a
like manner and that the lengthy sentence which will be imposed is sufficiently condign.
[35] After consideration I have decided not to impose a minimum period of imprisonment. Mr Philip’s criminal history and the fact that he did not plead guilty are already reflected in the lengthy sentence I have given him. I also accept that I should place weight on the fact that no minimum periods will be imposed on his co- offenders, especially Ms Norton who’s offending was more serious than his. In part that reflected Ms Norton’s efforts at rehabilitation, which do not apply to Mr Philip. Nonetheless consistency with sentences imposed on co-offenders is an important principle, so Mr Philip is fortunate to benefit from that.
Mr Rowan
Starting point
[36] Mr Rowan, I now come to your offending. You supplied just over 200 grams of methamphetamine. This places you at the high end of Fatu band 2, which is for
50 grams – 250 grams. Band 2 starting points are between three and nine years imprisonment.
[37] The Crown submits that a starting point of eight years imprisonment is appropriate. In doing so it relies on the case of Whare v R where a starting point of eight years was imposed for supply of 201.8 grams.16 I also note R v Kha in which the Court likewise took the view that a supply of 200 grams warranted a starting point of eight years;17 and R v Peri in which a supply of 200 grams attracted a starting point of eight and a half years.18
[38] However, counsel on your behalf has also referred to a number of cases to suggest that a slightly lower starting point may be appropriate.19 The most helpful of these was R v Nelson.20 The offender in that case had supplied 220 grams of methamphetamine, but was higher up the supply chain than you selling to other dealers as well as the community. The motive in that case was purely financial,
whereas I accept that you sold methamphetamine primarily to pay for your own
16 Whare v R [2014] NZCA 354.
17 R v Kha HC Auckland, 30 July 2010.
18 R v Peri HC Auckland CRI-2006-019-008458, 9 December 2008.
19 R v Nelson HC Auckland CRI-2008-092-018743, 3 February 2010; R v Cheng HC Auckland
CRI-2006-019-8458, 3 July 2009; R v Carroll [2012] NZHC 1837.
20 Nelson, above n 19.
addiction, albeit that you were an active street dealer. I also note that you were considerably lower in the supply chain than Ms Norton and Mr Philip and I assess your culpability as being significantly less.
[39] These factors satisfy me that the appropriate starting point in your case is seven and a half years imprisonment.
Adjusting the starting point
[40] The next step Mr Rowan is to adjust the starting point for your personal circumstances.
[41] You are 33 years old and have 32 previous convictions. These are mostly for minor offending, but include possession of methamphetamine in 2013 and 2010. You served a very short sentence of imprisonment in respect of the 2013 offending, but have not been to prison on any other occasion. I will uplift your sentence by three months to reflect your previous convictions as an aggravating factor.
[42] Prior to your involvement with methamphetamine you were for many years a productive member of your community and for a time owned your own business. Given your criminal history, I cannot give you a previous good character discount. However, you have a very supportive family and it is to be hoped that on your release from prison you will be able to return to skilled employment and continue to contribute to the community in this way.
[43] In terms of the discounts that are available, your counsel seeks a reduction in your sentence for remorse and rehabilitation. I have read the letter of apology that you wrote to the Court for sentencing today as well as the letters from you partner and your mother in support. I accept that you are genuinely remorseful and that you have made real efforts to rehabilitate yourself since your remand in prison. Counsel has provided evidence that you have completed a number of courses including a CADS alcohol and drug programme as well as courses in parenting, financial literacy, and relapse prevention. I consider that these efforts justify a discount of nine months or approximately 10 per cent.
Guilty plea discount
[44] Finally, you are entitled to a discount of 20 per cent for your guilty plea, which means a further reduction of 17 months.
Sentence
[45] This results in an end sentence for you, Mr Rowan, of five years and seven months imprisonment.
Forfeiture
[46] The Crown applies for an order that the $2,030 cash seized from Mr Rowan be forfeited to the Crown. To make this order I must be satisfied that the money was received by Mr Rowan in the course of or consequent upon the commission of an offence against s 6 of the Misuse of Drugs Act 1975.21 The circumstances satisfy me that this was the case and counsel for Mr Rowan does not oppose forfeiture. I make the order sought accordingly. I also make an order forfeiting and allowing the
destruction of all drugs and drug paraphernalia found as a result of Operation
Cesium.
[47] The more substantial amounts of cash seized from Ms Norton and Mr Philip are to be the subject of proceedings under the Criminal Proceeds (Recovery) Act
2009. Counsel for Mr Philip submits that as forfeiture is not to occur at sentencing the cash seized from Mr Philip, which was some $215,000, should be released to him in the meantime. Counsel submits that this will not restrain the Crown in any way from making its civil forfeiture application. I do not agree. If the cash were released to Mr Philip I consider it would inevitably disappear. I am advised by Ms Pridgeon, for the Crown, that there is an interim restraining order in respect of both amounts of cash and that a substantive hearing has been set down in September.
Conclusion
[48] Ms Norton and Mr Rowan would you please stand.
21 Misuse of Drugs Act 1975, s 32(3).
[49] Ms Norton, on the lead charge of supplying methamphetamine you are sentenced to eight years and six months imprisonment. There will be a concurrent sentence of three years and six months imprisonment on the charge of possession for supply.
[50] Mr Rowan, on the charge of supplying methamphetamine you are sentenced to five years and seven months imprisonment.
[51] I sentence Mr Philip on the lead charge of supplying methamphetamine to a sentence of nine years and six months imprisonment with a concurrent sentence of four years imprisonment on the charge of possession for supply.
[52] You may stand down.
……………………………….
Woolford J
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