R v Nuttall

[2012] NZHC 91

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-063-5375 [2012] NZHC 91

THE QUEEN

v

TAIOPERUA NUTTALL

Appearances: S Simmers for the Crown

C Horsley for the Prisoner

Sentence:       3 February 2012

SENTENCING NOTES OF PRIESTLEY J

Counsel:

S Simmers, Crown Solicitor, Rotorua. Email: [email protected]

C Horsley, Adams & Horsley, Tauranga. Email: [email protected]

R V NUTTALL HC ROT CRI-2009-063-5375 [3 February 2012]

[1]      Mr Nuttall, I am sentencing you today on a large number of charges under the Misuse of Drugs Act 1975.  I have had a helpful dialogue with counsel during which I have indicated to them the sort of sentence I have in mind.  Both counsel agree  that  the  end  sentences  which  I  am  going  to  impose  on  you  today  are appropriate.   To that extent, although I have read and considered fully counsel’s submissions, it has not been necessary for counsel to supplement those submissions orally in any significant way.

[2]      You appear for sentence on seven counts of possession of methamphetamine for supply, three counts of conspiring to supply methamphetamine, four counts of supplying methamphetamine, one count of offering to supply methamphetamine, and one count of possession of cannabis for purposes of supply.

[3]      Three of those methamphetamine categories carry maximum penalties of life imprisonment.   Conspiring to supply methamphetamine carries a maximum of 14 years imprisonment.   The charge of possession of cannabis for the purposes of supply carries a maximum of eight years imprisonment.

[4]      And although, Mr Nuttal, I am not going to send you to jail for life you need to reflect on the fact that a prescribed maximum penalty of life imprisonment for methamphetamine offending indicates that Parliament, on behalf of the community, takes a very dim view of people who traffic in this pernicious drug.  That is what you did.  And as a previous user of methamphetamine you should have been well aware of the effect of that drug on others, particularly those to whom you were supplying it. I say to you this morning that if on your release from jail you reappear in any shape or form offending under the Misuse of Drugs Act you will be dealt with even more severely than is the case today.

[5]      On all those counts, 16 in number, you pleaded guilty on the second day of your trial in this Court on 3 May 2011.

[6]      I do not wish to say much about the nature of your offending.  You were the subject of a police intercept and surveillance operation.   Your co-offender in part was a Ms Turner.  When a vehicle driven by you and occupied by Ms Turner was stopped in the early hours of the morning on 19 September 2009 various incriminating items were found in the vehicle.   This included some 41 grams of cannabis found in the boot.   There were also cash, cellphones, scales, and all the other indicia of a drug dealer.  Your home was subsequently searched.  An analysis of intercept operations, which has resulted in the agreed summary of facts to which you pleaded, indicates that during the course of many weeks you were personally responsible for the supply of approximately 100 grams of methamphetamine.  That quantity indicates commercial dealing well above what you might have needed for your own use.

[7]      Turning to your personal circumstances and the contents of the presentence report, unsurprisingly the probation officer recommends imprisonment.

[8]      You are currently aged 44.   You identify yourself as both European and Maori.  You have been on EM bail for approximately the last 11 months with your father  who  operates  a  farm  in  the  South  Auckland  region.    Throughout  this restrictive period of your EM bail you have been compliant.  No breaches have been reported and I intend to give you some degree of credit for that.  You were raised in Rotorua.  You seem to have left school in your mid-teens.  You suffered somewhat from injuries inflicted on you in a car accident when you were 11.  You spent a brief period of time living in Australia.   You are not currently in any relationship but profess to have five children by previous partners.  You are in fairly regular contact with your previous partners and children.

[9]      On a more sinister level you have been affiliated with the Mongrel Mob gang since 1981 and describe yourself as an active member.  You have had a past history of difficulties with drugs but this has abated whilst you have been on EM bail.   I have read two references supplied on your behalf.  One was from your employer in the forestry industry when you were working in forestry in the Tokoroa area.   He spoke highly of you.  The second is an amusing but nonetheless genuine letter from your elderly aunt who refers to the warmth and respect with which you have always

treated her.  You were always regarded by her as a supportive family member and although, quite correctly, she describes you as not being a saint she is alert to your various positive qualities.

[10]     Now Mr Nuttall, although you do not need, I suspect, a lecture from me, a man of your age should really have settled down.   I don’t know what has been driving you.  Clearly you have not had any permanent or stable relationships in the past but your association with the Mongrel Mob gang would have done you no good at all.  If, when you are released from custody, you can use your family and whanau support, get employment, put gang associations behind you, and, more importantly, drugs behind you, your life will turn for the better.   But you have had sufficient experience now to know what the future will be like for you if you continue to offend and tie yourself up with gangs.  And you alone can dictate the future of your life.

[11]     You have a lengthy history of offences, some 67 convictions since 1980.  A lot  of  these  are  property  related  offences  but  they  are  also  offences  involving violence, firearms, and, as I have mentioned, drug offending.

[12]     The Crown, in its helpful and detailed submissions, has set out the various aggravating features of your offending.  These include the scale of your trafficking, to some extent the volumes involved, the level of commerciality, and also, inevitably in cases such as this, planning, organisation, and premeditation.  The only mitigating factor which can properly be raised in your favour is the fact that on the second day of your trial you pleaded guilty.  However, I do not intend to give you any credit for that because by the time the trial gets to its second day the Crown case is really done, dusted, and apparent.  You and your counsel knew fully the risks which you faced. To qualify for a significant credit for guilty pleas you should have pleaded guilty at a much earlier stage.

[13]     The approach I thus intend to adopt is to give you no mitigating credit for your very late guilty plea but I am not going to uplift the sentence in any way, as other judges would have been entitled to do, to reflect your lamentable criminal record.

[14]     The Crown in its submissions, with reference to the tariff case of R v Fatu,[1]

suggests that an appropriate start point reflecting totality would be in the region of

6 – 6½ years.   Given that 100 grams of methamphetamine were involved and the aggravating features to which I have referred, I consider that 6½ years is probably the correct start point, having regard to the number of charges you face and the totality of your offending.

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

[15]     Mr Horsley, in his written submissions, predictably suggested a somewhat lower start point of 5½ – 6 years.  Both counsel are agreed that given the quantities of methamphetamine involved your offending sits somewhere in the middle of Fatu Band 2.   I am also mindful of some comparable cases I have looked at, and start points, including R v McLaine,[2]  R v Punnett,[3]  and R v Torvald.[4]    On the basis of those cases I am satisfied that a start point of 6½ years is appropriate.  I have already indicated that I am not going to uplift that for any particular reason. Nor am I going to give you any credit for your guilty plea.  What I am, however, prepared to do, as I

have already indicated, is to reflect the fact that you have performed well on very restrictive EM bail conditions for some 11 months.   In many ways EM bail, particularly when it goes on for lengthy periods of time, can be more onerous and irksome than being incarcerated.  I therefore intend to give you a credit of 12 months for that EM bail which brings me to an end sentence of 5½ years imprisonment. That end sentence I intend to impose on the more serious methamphetamine for supply charges.

[2] R v McLaine HC Rotorua CRI-2009-063-5871, 24 November 2011.

[3] R v Punnett HC Auckland CRI-2004-044-007303, 5 December 2007.

[4] R v Torvald HC Auckland CRI-2005-092-014606, 13 October 2006.

[16]     At this point Mr Nuttall you can stand up.

[17]    On the seven counts on which I am sentencing you on possession of methamphetamine for supply I sentence you to 5½ years imprisonment on each count.

[18]     On the three counts of conspiring to supply methamphetamine I sentence you to three years imprisonment on each of the three counts.

[19]     On the four counts of supplying methamphetamine I sentence you to 5½

years imprisonment on all four.

[20]     On the one count of offering to supply methamphetamine I sentence you to three years imprisonment.

[21]     On the one count of possession of cannabis for supply I sentence you to 18 months imprisonment.

[22]     All those terms of imprisonment are to be served concurrently.

[23]     In the circumstances I make no recommendations as to programmes.   The prisoner, of course, is perfectly entitled to enrol himself in any offered programmes if he feels these would benefit him.

[24]     For the assistance of the Parole Board I indicate that the 11 months incident free history of this prisoner whilst on EM bail is hopefully a good platform on which he can build.   Certainly the prisoner, when I sentenced him today, has outwardly responded positively to the various admonitions I have directed to him.

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Priestley J