R v Page

[2017] NZHC 2180

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-169 [2017] NZHC 2180

THE QUEEN

v

FRANCEE EDWIN REWITI PAGE

Hearing:	8 September 2017
Appearances:	TJ McGuigan for Crown M Pecotic for Defendant
Judgment:	8 September 2017

SENTENCING NOTES OF TOOGOOD J

R v Page [2017] NZHC 2180 [8 September 2017]

Introduction

[1]      Francee Edwin Rewiti Page:  you appear for sentence having pleaded guilty to one charge of supplying methamphetamine1  and one charge of possession of methamphetamine for supply.2   The amount of methamphetamine either possessed or supplied is agreed to be 196 grams, or seven ounces.

Facts

[2]      In August 2005 the Organised and Financial Crime Agency New Zealand commenced a covert electronic enquiry into the manufacture and supply of methamphetamine and other controlled drugs; codenamed Operation Bunk.

[3]      During the course of the enquiry, surveillance device warrants were issued for  the  interception  of  the  private  communications  of  Mr Gerrard  Parkes  and Ms Toni Nikora.  A covert video camera was installed at the front of Ms Nikora’s address  to  record  visitors  entering  her  home,  and  covert  audio  equipment  was installed within Nikora’s home.  Between November 2015 and 3 February 2016 there was an extensive police surveillance undertaken of Ms Nikora’s address.

[4]      The Crown case against Mr Parkes and Ms Nikora was that Mr Parkes was supplying Ms Nikora with commercial quantities of methamphetamine, which she then supplied to others on numerous occasions.

[5]      On   13   December   2015,   at   around   4.53pm,   conversations   involving

Ms Nikora and you were intercepted from within Ms Nikora’s apartment.

[6]      In a conversation with a third party you referred to altering the state of methamphetamine  you  had,  which  is  acknowledged  to  have  been  a  total  of seven ounces  which  you  had  acquired  from  some  source.    There  was  then  a conversation indicating that Ms Nikora immediately took possession of two ounces, which I am told was immediately onsold, and you received about $10,000 cash from

that.

1      Misuse of Drugs Act 1975, s 6(1)(c); maximum penalty of life imprisonment.

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

[7]      You  then  spent  a  considerable  time  undertaking  an  exercise  which  you described as “cleaning” the remaining five ounces of the methamphetamine which you had not given to Ms Nikora.  It is suggested at that point that Ms Nikora retained three ounces and you took two ounces away with you; but you acknowledged, in fact, that what you had done by the process was to deplete or reduce the quality of the methamphetamine so that it was not saleable.  The other three ounces was later returned to you, meaning that you had in your possession five ounces.  There is no evidence that you sold it and Ms Pecotic emphasises, and you say in your letter to me, that in fact you retained it for personal use.  You were found in possession of a small quantity, under three grams, at the time of your arrest in March 2016.

[8]      The basis upon which I am to approach the quantity of methamphetamine involved in your dealing is agreed by counsel to be a total of seven ounces, or

196 grams.

Sentencing purposes and principles

[9]      In sentencing you, I am required to have regard to relevant purposes and principles of sentencing in the Sentencing Act 2002, which includes the need to hold you accountable for the incalculable harm this offending does in the community and to deter you and others from offending of this kind.  When the Court is sentencing for   commercial   dealing   in   controlled   drugs,   which   this   was,   the   personal

circumstances of the offender are less relevant than deterrence.3    But that does not

mean that personal circumstances can never be relevant and I need, therefore, to consider  your  prospects  of  rehabilitation  and  reintegration  into  society.    I  am required to adopt a starting point based on the nature of the offending, to adjust that on the basis of any aggravating or mitigating personal factors, and then to assess what guilty plea discount would be appropriate in your case.4

[10]     Referring to Band 2 of the guideline judgment of the Court of Appeal,5  the

Crown submits that the quantity of methamphetamine, the commerciality of the

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

4      R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

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

offending, the sophistication of the operation and your role in it, warrants a starting

point in the vicinity of seven years’ imprisonment.

Crown submissions

[11]     The Crown initially identified your list of previous convictions, which does you no credit at all because of its length and nature, and suggested an uplift of eight months’ imprisonment, particularly because it contained a conviction for possession of methamphetamine for supply.  But it appears that that was simple possession and you were sentenced, I think, to only one month’s imprisonment.  Mr McGuigan quite properly indicates now, because that offending occurred after the offending that I am dealing with, that it is irrelevant and no uplift is sought.  The Crown says that your plea came very late in the piece, just shortly before trial, and that the appropriate guilty plea discount should be no more than 10 per cent.

Defence submissions

[12]     You acknowledge that you must go to prison for this offending.  Ms Pecotic accepts that 196 grams puts you at the higher end of Band 2, but she describes your offending as opportunistic and urges me to look at your particular role in this case when adopting a starting point.   She submits that five-and-a-half to six years’ imprisonment would be appropriate notwithstanding the amount, and she does so on the basis that this was an one-off transaction; that although the overall operation between   Mr Parkes,   Ms Nikora   and   others   may   have   been   very   highly commercialised and sophisticated, your role was not.   In fact, you displayed a significant degree of naivety and incompetence in your handling of the drug, and that you should not be treated as being a party to sophisticated dealing.

[13]     This is your first conviction for dealing in drugs and Ms Pecotic urges me to take into account the fact that you have been addicted to methamphetamine.   It seems to me that there is some credence to the proposition that you, having been addicted, you relapsed into the use of methamphetamine because you had access to this large quantity of this low quality supply of the drug.   There is no doubt that

196 grams  of methamphetamine falls  at  the higher end  of Band  2  but  I accept

Ms Pecotic’s submission that I should not fix a starting point dependent on that

factor alone, and I should look at your particular role.

Starting point

[14]     I have considered the cases counsel have referred to and I have looked at others.  I do not propose to describe them in any detail but there are two which seem to me to suggest an appropriate starting point.   One involved 170 grams of methamphetamine being dealt with by someone described as a “foot soldier with no control either of the methamphetamine or the money involved”.  A starting point of six-and-a-half years was adopted for that offender.6  Another was a case where seven ounces of methamphetamine was involved.  The courier who received no profit was given a six year starting point for the totality of the offending.7

[15]     You  were  more  than  a  mere  courier  because,  of  course,  you  had  seven ounces, you dealt with it, and you obtained something like $10,000.  The street value of the drug, certainly in its original form, would have been worth around about

$100,000, so it was not insignificant.  Bearing in mind the nature of your role, I think a starting point of six years and six months’ imprisonment is an appropriate place to begin.

Personal factors

[16]     You are aged 42.  You are of Maori descent and I understand that you wish to spend more time in the future getting back to your roots.  You are Ngati Whatua and you  want  to  move closer to  your marae to  strengthen  your ties  with  your iwi. I commend you for that and wish you well in it.  You do have a longstanding drug addiction but the certificates shown to me and your note indicate that you are making genuine efforts to rehabilitate yourself.

[17]     It is time you did, Mr Page.   If you can rid yourself of this addiction you might be considered to something like halfway through your life.  The first half of it

has been unimpressive.  You tell me that you have spent something like 20 years –

6      Hohipa v R [2015] NZCA 485.

7      R v Cheng HC Auckland CRI-2006-019-8458 3 July 2009.

that is nearly half your life – in prison.  That needs to stop.  After you have served your proper sentence for this offending, you need to spend some time with your family and your iwi and do some good in the community.

[18]     I assess you as being genuinely motivated to doing that and you have made genuine efforts to rehabilitate yourself while you have been in custody.  I am going to recognise that and give you some encouragement by including a further discount of three months.   It may not sound a lot, Mr Page, but it is a gesture and it is an encouragement to you.   That would take your sentence down to six years three months.

Guilty plea discount

[19]     I  then  turn  to  this  question  of  the  guilty  plea.    I  accept  Ms Pecotic’s submission that in cases like this a great deal of work is required by both Crown and defence to get a case ready for trial. Where there are a large number of interceptions, I am very mindful that for counsel and for defendants there is a lot of work involved in identifying just what evidence is relevant and what can be discarded.  So I accept that there are reasons why your plea was entered at what might seem to be a very late stage.   The Court is required not only to look at the timing of the plea but the circumstances which surround it.  However, it took you some time to make public acknowledgement of your responsibility.   I am going to grant another discount of

12 months’ imprisonment, that is something like 16 per cent, to the discount I have already given, which will bring the end sentence back to one of five years and three months’ imprisonment.

Sentence

[20]     Would you stand please, Mr Page.

[21]     On each charge to which you have pleaded guilty you are sentenced to five years and three months’ imprisonment, those terms to be served concurrently.  You may stand down.

.........................................

Toogood J