R v Pakau
[2014] NZHC 3020
•28 November 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2013-090-003842 [2014] NZHC 3020
THE QUEEN
v
PETER PAKAU MELISSA BROWN RICHARD REI SHANE BOAG
PAUL ANTHONY HOLLOWAY
Hearing: 28 November 2014 Appearances:
B Tantrum and B M Finn for Crown R M Mansfield for Prisoner, Pakau M N Pecotic for Prisoner, Brown
L Cordwell for Prisoner, Rei
B Sellars for Prisoner, Boag
H B Leabourn for Prisoner, HollowayJudgment:
28 November 2014
SENTENCING NOTES OF ANDREWS J
R v PAKAU, BROWN, REI, BOAG & HOLLOWAY [2014] NZHC 3020 [28 November 2014]
Charges
[1] Mr Pakau, Ms Brown, Mr Rei, Mr Boag and Mr Holloway, you may all please remain seated until such time as I ask you to stand later on.
[2] Mr Peter Pakau and Ms Melissa Brown, you appear for sentencing today having each pleaded guilty to one count of supplying the class A drug methamphetamine, one count of conspiracy to supply methamphetamine, one representative count of conspiring to defeat the course of justice, one count of conspiracy to pervert the course of justice, one representative count of accessing a computer system for a dishonest purpose, one count of conspiracy to commit theft, one count of conspiracy to commit burglary and one count of bribery of an enforcement officer. Mr Pakau, individually, you have also pleaded guilty to one count of manufacturing methamphetamine, two counts of supplying methamphetamine, two counts of corrupt use of official information and one count of receiving stolen property. Ms Brown, individually, you have also pleaded guilty to one charge of conspiracy to manufacture methamphetamine, and two counts of theft.
[3] Mr Richard Rei, you appear for sentence having pleaded guilty to one count of supplying methamphetamine, two counts of manufacturing methamphetamine and one count of attempting to manufacture methamphetamine.
[4] Mr Shane Boag, you appear for sentencing today having pleaded guilty to three counts of possessing methamphetamine for supply and one count of manufacturing methamphetamine.
[5] Mr Paul Holloway, you pleaded guilty to one count of supplying methamphetamine and one count of unlawfully using a computer system for a dishonest purpose. You were found guilty at trial of a further count of supplying methamphetamine, two counts of manufacturing methamphetamine, one count of attempting to manufacture methamphetamine and one count of conspiracy to supply the class B drug pseudoephedrine.
[6] I will outline the facts relevant to all of your offending, as it is all interrelated. Once I have done that, I will outline the sentencing process and discuss relevant sentencing purposes and principles. I will then conduct the sentencing exercise for each of you, separately.
Facts
[7] Mr Pakau, you were sworn in as a Police Constable in February 2008. Around 2012, you became associated with your co-offenders through your duties as a police officer in the Waitakere area.
[8] In July 2012, you were conducting a bail check including a drug search as a member of the Henderson Car Crime Unit. You identified items of interest at the address. You later accompanied Ms Brown and enabled her to enter the address. Ms Brown, you took items of jewellery and an iPad. You gave the iPad to Mr Pakau and retained the other items with the intention of selling them. Ms Brown, you pleaded guilty to theft. Mr Pakau, you pleaded guilty to receiving stolen property.
[9] In August 2012, Mr Pakau began searching the police National Intelligence Application system (I will refer to that as the NIA) on behalf of Ms Brown, other people you associated with, and for your own ends. Ms Brown, asked Mr Pakau about the bail status of Mr Rei. Mr Pakau then accessed the NIA system and checked Mr Rei’s bail status.
[10] On 12 March 2013, Ms Brown asked Mr Pakau to obtain information about a motorcycle registration, and he did so.
[11] On 19 March 2013, Mr Pakau was asked to obtain information about a particular person. On 20 April 2013, he sent a text to Ms Brown with an address relating to that person.
[12] On 22 March 2013, Ms Brown asked Mr Pakau for information about another person. He accessed the NIA system and printed out pages about that person, which were then given to Ms Brown.
[13] On 4 and 9 April 2013, Mr Pakau accessed the NIA system to look up a vehicle Ms Brown was interested in stealing. He passed on the registration details to Ms Brown.
[14] On 9 April 2013, Ms Brown asked Mr Pakau to locate a person for her. Mr Pakau searched the NIA system and provided the address to Ms Brown. He also searched another motor vehicle and passed on the details to Ms Brown. He then drove around West Auckland attempting to locate that vehicle for Ms Brown.
[15] On 9 April 2013 Mr Pakau also looked up an associate of Ms Brown’s in the
NIA system and passed on information about that person’s charges.
[16] On 1 May 2013, Mr Holloway asked Mr Pakau to locate a man. Mr Pakau did so, knowing that Mr Holloway wanted to “tax” the man. Mr Pakau also contacted Ms Brown, and advised her that the man had expensive property stored in warehouses that could be stolen.
[17] Ms Brown, you pleaded guilty to a representative charge of accessing a computer system for a dishonest purpose, involving six separate particulars. Mr Pakau, pleaded guilty to that charge also, in his case involving nine separate particulars. Mr Pakau also pleaded guilty to corrupt use of official information in relation to the vehicles searched for on 4 and 9 April. Mr Holloway, pleaded guilty to a charge of accessing a computer system for a dishonest purpose, in his case on only one occasion.
[18] Mr Pakau, on 29 October 2012 you phoned an auto repair shop and told them to release a vehicle, valued at $19,500, to Ms Brown. You knew the car had been reported as stolen, and that Ms Brown was not the legitimate owner. You told Ms Brown to collect the vehicle and change the ownership details. The repair shop released the vehicle to Ms Brown, having no reason to distrust you as a police officer. On 18 February 2013, you accessed the NIA system to provide Ms Brown with the warrant of fitness details and registration expiry date for the car. Ms Brown then sold the vehicle for $19,500. Mr Pakau, you say that you received $200 from Ms Brown. You pleaded guilty to accepting a bribe from Ms Brown. Ms Brown
pleaded guilty to theft of a motor vehicle and corruption and bribery of a law enforcement officer.
[19] Mr Pakau, on 30 October 2012 you became aware that police officers were planning to execute a search warrant at a gang address. You were at the Waitakare District Court on 31 October. Mr McFarland was appearing in court that day. You told Mr McFarland that a search warrant was to be executed at the address. Mr McFarland then told the occupant about the search. When the search warrant was executed, nothing of value was located. You pleaded guilty to corrupt use of official information. Mr McFarland has separately been sentenced after pleading guilty to a related charge.
[20] On 8 March 2013, Mr Pakau, you became aware that Police had located a large amount of cash at an address in Henderson. You told Ms Brown about the cash. She agreed to break into the property. However, she abandoned the plan after being seen by an occupant at the address. You both pleaded guilty to conspiracy to commit burglary.
[21] On 20 March 2013, Ms Brown asked you Mr Pakau to get her out of her sentence of home detention for a few hours. You agreed and arranged for her release. On 27 March, she again asked you to arrange for her release from her sentence of home detention. Again, you agreed and arranged for her release and you did that again on 5 April 2013. You both pleaded guilty to conspiring to defeat the course of justice, a representative charge covering these three occasions.
[22] On 1 April 2013, Mr Ta’avale was arrested and charged with recklessly discharging a firearm and remanded in custody. Mr Pakau, you were not involved in investigating or prosecuting the matter. Ms Brown asked you to find out about the incident. You accessed the NIA system on several occasions to find information about Mr Ta’avale and the incident. You and Ms Brown discussed Mr Ta’avale’s bail application on multiple occasions, and came up with a plan to give a different address for Mr Ta’avale’s bail application than the address where he intended to live, which was where Ms Brown was serving her home detention sentence. Ms Brown filled out Mr Ta’avale’s application with the wrong address. When the EM bail
assessor rang, Ms Brown pretended to be the person living at the address. You both pleaded guilty to conspiring to pervert the course of justice. Mr Ta’avale has separately been sentenced after pleading guilty to a related charge.
[23] On 9 April 2013, Mr Pakau you were on duty and you saw a vehicle that Ms Brown was interested in. You pulled the vehicle over and instructed the driver to drive to the Henderson Police Station so that you could interview her. You intended that somebody would follow the driver once she left the station, so that her car could be stolen from her. You were not able to carry out your plan as the driver did not follow the instructions and come to the station. Ms Brown later told you that she had located the vehicle. On 18 April, you picked her and a female associate up in your police patrol vehicle and drove into the city to locate the vehicle. You were not able to locate it. You and Ms Brown pleaded guilty to conspiracy to commit theft.
[24] Mr Pakau, on 19 April 2013, you visited Mr Boag’s address. You agreed to provide Mr Boag with contacts from whom he could buy methamphetamine. Mr Boag paid you $500. You then picked up Ms Brown in a marked police vehicle. You and Ms Brown conspired to supply Mr Boag with one ounce of methamphetamine. You took Mr Boag with you and Ms Brown in your marked police vehicle to Mr Rei’s address with the intention of obtaining one ounce of methamphetamine. You were not able to do so. However, on 20 April you obtained one ounce of methamphetamine from Mr Rei. You supplied it to Mr Boag for
$12,000. Mr Pakau, Ms Brown and Mr Rei, you all pleaded guilty to supplying methamphetamine. Mr Boag, you pleaded guilty to possession of methamphetamine for the purpose of supply.
[25] Over the following days, Ms Brown spoke to Mr Ta’avale numerous times about finding a cheap source of methamphetamine. Ms Brown, you contacted a number of people Mr Ta’avale recommended to you, but were ultimately unsuccessful in finding a cheap source. You and Mr Pakau pleaded guilty to conspiracy to supply methamphetamine. Mr Ta’avale has separately been sentenced after pleading guilty to a related charge.
[26] Mr Pakau and Ms Brown, you later decided to supply ContacNT to Mr Rei because he said he could manufacture ten ounces of methamphetamine for $40,000. On 2 May 2013, Mr Pakau contacted Mr Boag to enquire about his sourcing ingredients for manufacture. Mr Pakau had arranged for Mr Rei to carry out the manufacture. Mr Boag supplied Mr Pakau with two sets of ContacNT. Mr Pakau delivered the sets to Mr Rei. By 6 May, the manufacturing process had become stalled because some ingredients were lacking. Mr Holloway set about trying to obtain iodine. Mr Holloway obtained 5kg of iodine and supplied 1kg to Mr Rei. Two and a half ounces of methamphetamine was then produced from your combined efforts. Ms Brown, you pleaded guilty to conspiracy to manufacture methamphetamine. Mr Pakau, Mr Rei and Mr Boag, you pleaded guilty to manufacturing methamphetamine. Mr Holloway, you were found guilty by the jury of manufacturing methamphetamine.
[27] On 10 May 2013, Mr Holloway supplied Mr Pakau with one ounce of methamphetamine. Mr Pakau then supplied it to Mr Boag. At about this time, Mr Holloway supplied an associate with 0.1 grams of methamphetamine. Mr Holloway pleaded guilty to a charge of supplying methamphetamine in relation to the latter supply.
[28] Mr Rei completed a second manufacture of methamphetamine on about
13 May 2013. On 13 May, Mr Pakau drove to Mr Rei’s address in a marked police vehicle. Mr Rei supplied him with two and a half ounces of methamphetamine from this second manufacture. Mr Pakau then supplied the two and a half ounces to Mr Boag. It was realised that a mistake had been made and Mr Boag was only meant to get one and a half ounces. One ounce was retrieved from him by Mr Pakau, who then supplied it to Mr Holloway. Mr Pakau, you pleaded guilty to two counts of supplying methamphetamine. Mr Boag, you pleaded guilty to two counts of possession of methamphetamine for the purpose of supply. Mr Rei, you pleaded guilty to manufacturing methamphetamine. Mr Holloway, you were found guilty by the jury of manufacturing methamphetamine.
[29] On 14 May, Mr Holloway supplied Mr Rei with two sets of ContacNT to be
used in a third manufacture. Police executed a search warrant on 17 May at Mr Rei’s
address. The process of extracting pseudoephedrine was under way at the time. Mr Rei, you pleaded guilty to attempting to manufacture methamphetamine. Mr Holloway, you were found guilty of the same offence.
Sentencing process
[30] In sentencing each of you today, I must first establish a starting point. The starting point is the sentence that would be imposed if you had been convicted after a trial in Court, on the most serious, or lead, offence. Cumulative sentences are appropriate if the offences to which an offender is being sentenced are different in kind, whether or not they are a connected series of offences. If I sentence you to cumulative sentences, that means that I will set a starting point for each sentence then add the sentences for each offence together. A concurrent sentence will be appropriate if the offences are of a similar kind, and are a connected series of offences. If I sentence you to concurrent sentences, that means that the sentence for each charge is served at the same time. In deciding whether the offences are connected, I consider the time they occurred, the overall nature of the offending, and any other relationship between the offences.
[31] The second step is to take the starting point and decide what adjustments have to be made, to take account of all the charges on which you have been convicted, and any matters that make your offending more or less serious. I will also consider matters that relate to you personally, as they may lead me to adjust the sentence.
[32] I have to take into account the purposes and principles of sentencing. When the Court sentences offenders for dealing commercially in controlled drugs, the primary purpose is deterrence. Given the harm that methamphetamine causes in the community, denunciation is an important purpose. So too is promoting in each of you a sense of responsibility for your own offending, and an acknowledgement of the serious harm that is caused by the manufacture and supply of methamphetamine. Mr Pakau, in relation to your offending, an additional and important purpose of sentencing is to hold you accountable for the harm your actions have caused the community by way of impacting on the public perception of the police. At the same
time, the purpose of sentencing any offender is to help that offender to get back into the community and to be a useful member of it and I take that into account for each of you.
[33] For each of you, the relevant principles of sentencing are to take into account the gravity of your individual offending, including your own culpability, the seriousness of your offending in comparison with other similar offending, and the general desirability of keeping consistency in appropriate sentencing levels. I must take into account any information provided about the effect of your offending on its victims, and I am directed to impose the least restrictive outcome that is appropriate in the circumstances. While it is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community, the court can impose a sentence of imprisonment to achieve the purposes of sentencing that are relevant to your cases. For your drug offending, the Misuse of Drugs Act provides that there is a presumption that a sentence of imprisonment will be imposed.
[34] I am now going to consider each of you separately. I will deal first with
Mr Pakau, then Ms Brown, Mr Rei, Mr Boag, then Mr Holloway.
Peter Pakau
Victim Impact Statement
[35] I start by referring to a victim impact statement from Detective Inspector Bruce Scott, the Crime Services Manager for the Waitemata District, in relation to your offending. He records that your actions placed your colleagues at risk of potential danger. He records that your former colleagues, who liked you and trusted you, have been (in his words) floored by your lack of consideration for their welfare and lack of respect shown to them through your actions. Staff members whose computer logins you used to access the NIA system feel betrayed. The media attention around your offending has led to a visible lack of trust in the police. Staff report being abused while attending incidents and being labelled corrupt and untrustworthy. Your actions have undermined the hard work and dedication of your colleagues.
[36] I note that Mr Mansfield acknowledged that these impacts have occurred, but he went on to submit that the report disclosed a need for the police to review their training and procedures to ensure that there is no repetition of offending such as yours. I do note his submission, but it is not a matter that will affect your sentence today.
Personal information
[37] You are a 37 year old man with five children. You have no previous convictions. The pre-sentence report writer records that you pleaded guilty partly out of concern for the effect an extended trial would have on your family. You explained your offending as being intended to assist and enhance your work in the detection of offending, especially offending in illicit drugs, and to enhance your professional relationships with informers. You say you were not motivated by the potential for personal financial gain. Regarding manufacture of methamphetamine, you said to the report writer that you were uninformed about the purpose of components of the drug such as iodine and ContacNT.
[38] You expressed remorse which the report writer viewed as genuine. You are assessed as being strongly motivated to not re-offend. You are at a low risk of harm to others. The report writer notes that your former role as a front line police officer has placed you at physical risk while in custody.
[39] I have also received a report from Dr James Cavney, which focussed on why you became involved in the offending. Dr Cavney reports that your upbringing involved physical abuse perpetrated against you by your father. You were also affected by being the only one of your family told about potential sexual abuse within your family. Your sister died in a traumatic event in 2007, and you felt guilty and responsible for that. Dr Cavney assessed this as causing you significant emotional trauma.
[40] You were under stress in 2010, because of relationship difficulties and the hospitalisation of your son. In 2012, your father in law (who had become a father- figure and role model) died, that was devastating for you. You began to withdraw
into yourself. You told Dr Cavney that this was the critical point leading to your offending. Dr Cavney reports that you are depressed and suffering from post- traumatic stress disorder.
[41] Dr Cavney considered that your offending was unlikely to be financially driven and was not done to support your gambling addiction. Dr Cavney suggested that you felt manipulated by others into your offending.
[42] Dr Cavney reported that while in custody you are vulnerable to retaliation and victimisation. He considers that isolation will have a significant impact on your mental health.
[43] I have received a very large number of letters and statements supporting you, from friends, relatives and associates. They all speak highly of you, of your commitment to your family, and your involvement in the community in a number of ways. Almost without exception, they express their shock and surprise at your offending.
Submissions
[44] For the Crown, Mr Finn submitted that your offending should be divided into two groups. The first is methamphetamine offending, in respect of which he submitted that the lead offence should be the first manufacture of methamphetamine. The second group is what he described as the “corruption offending”, which encompasses all other offending committed by you, which was facilitated or enabled by your position as a police officer. Mr Finn submitted that the corruption offending warrants a cumulative sentence to be imposed on top of the sentence for the methamphetamine offending.
[45] Mr Finn submitted that the offence of manufacturing (involving two and a half ounces of methamphetamine) falls into the lower to middle end of the band 2 of
Fatu.1 He submitted that the aggravating features of commerciality, multiple
1 R v Fatu [2006] 2 NZLR 72 (CA).
offenders each of whom were hoping to benefit, the offending extending over several days, warranted a starting point of at least six years’ imprisonment.
[46] Mr Finn submitted that an uplift of around 12 to 18 months should be applied in respect of the balance of the methamphetamine offending. The uplifted starting point the Crown recommends for the methamphetamine offending is therefore seven to seven and a half years’ imprisonment.
[47] For the corruption offending, Mr Finn submitted that the aggravating features are the diversity and scope of your offending, its persistence, premeditation, and a significant breach of trust involved. He submitted the offending relating to accessing and using information from the NIA system should be taken as the lead offending, and that a starting point of three years to three and a half years’ imprisonment is appropriate for this offending. However, he submitted your offending was seriously aggravated by your further corruption offending, justifying an uplift of at least two and a half to three years’ imprisonment. Thus, the Crown submits a total starting point for this offending should be five and a half to six and a half years’ imprisonment.
[48] Imposing that cumulatively on the sentence for methamphetamine offending would result in a total starting point of 12 and a half years to 14 years’ imprisonment. Mr Finn submitted that I should adopt a starting point of 11 to 13 years’ imprisonment, because of the importance of taking the totality principle into account. Mr Finn submitted that there is very little room for a good character discount in your case, as you repeatedly abused your position as a police officer and were involved in commercial dealing in methamphetamine. He submitted that a reduction of six months could be made to recognise the time you have spent on electronically monitored bail, and accepted that a discount of 15 per cent is available for your guilty pleas. Mr Finn submitted than the end sentence should be around eight to nine and a half years’ imprisonment.
[49] Mr Mansfield also submitted, on your behalf, that your offending should be separated into two groups and accepted that cumulative sentences could be imposed.
[50] In respect of the drug related offending, Mr Mansfield submitted that I should adopt a starting point of five years’ imprisonment on the lead charge of the first manufacture. He submitted that there should be no uplift for the second manufacture, or the additional counts of supplying methamphetamine. He submitted that the supply after manufacture is inherent in the manufacturing process, and does not aggravate your offending. Mr Mansfield also submitted that there should be no uplift for conspiring to manufacture methamphetamine, as the conspiracy was far from being brought to fruition.
[51] As to the second group which is the corruption offending, Mr Mansfield submitted that for the lead offence of dishonestly accessing a computer system, a starting point of three and a half years’ imprisonment should be taken. He submitted that there should be an uplift of one and half years’ imprisonment to reflect the other corruption and dishonesty offences. He submitted that you did not carry out this further offending for personal benefit, and that you acted out of a lack of judgment. Mr Mansfield also submitted that you were also concerned about reprisals if you did not continue to assist.
[52] Mr Mansfield submitted that an adjustment to the global starting point is required to take into account of the totality principle, and the fact that all your offending arose during the same period as a result of your employment. He submitted that the adjusted starting point for all of your offending should be eight and a half years’ imprisonment.
[53] Mr Mansfield then submitted that you should receive discounts for your personal mitigating factors. He submitted you could appropriately be described as an exceptional police officer who had gone wrong, that you had developed relationships beyond what was permissible and you allowed yourself to be manipulated. He submitted that you were not motivated solely by the prospect of any financial gain. Mr Mansfield submitted that you should receive a discount of at least eight months for your time spent on EM bail, and identified further mitigating factors of your previous good character, a low risk of reoffending, your rehabilitative prospects, your strong family and community support, and the hardship you will face during a sentence of imprisonment. He submitted these factors warrant a further
discount of 12 months. He submitted that a further discount is appropriate to reflect your genuine remorse, and that you should be given a 20 per cent discount for your guilty pleas. Thus, Mr Mansfield submitted that the end sentence should be no more than five years and two months’ imprisonment.
Methamphetamine offending
[54] I intend to sentence you to cumulative sentences, and dividing your offending into the same two groups.2 The first group is the methamphetamine offending, the second is the corruption offending.
[55] I take as the lead offence for the methamphetamine offending the manufacture of two and a half ounces of methamphetamine between 29 April 2013 and 10 May 2013 – this is the first manufacture. The reference case for sentencing for methamphetamine offending is the Court of Appeal’s judgment in R v Fatu.3
Where the offence is manufacture, the Court suggests manufacturing up to 250 grams should attract a starting point of between four and 11 years’ imprisonment. The amount manufactured is not the only relevant factor. Also relevant is the role played by the offender. Inherent in the offence of manufacture is the possession of materials, equipment and substances required to carry out the manufacture. Those offences attract concurrent sentences and are not in themselves independently
aggravating.4
[56] I begin by recognising that you were not yourself the manufacturer. You were not the ‘cook’. You are not therefore at the highest level of culpability. However, in respect of you, and this also applies to Mr Boag and Mr Holloway, I do not accept that your involvement warrants a significantly lesser starting point than that which I will adopt for Mr Rei – the actual cook. You all had a part to play in the manufacture, and the part that each of you played was essential for the manufacture to take place. While I accept that Mr Rei, as the methamphetamine cook, has a
slightly higher culpability, the culpability of the other participants is equal.
2 This approach was endorsed for similar, albeit less serious, offending in Sarah v R [2013] NZCA
446.
3 R v Fatu above n 1.
4 Fatu at [41].
[57] I have concluded that your offending falls in the low to middle end of band two of Fatu. I adopt a starting point of five years and nine months’ imprisonment. I note that in the case of R v Hita, the Judge adopted a starting point of six years’ imprisonment for manufacture of approximately 65 grams, where the person being sentenced was not the cook.5 In R v Sorich, the Judge adopted a starting point of five and a half years’ imprisonment for manufacture of a potential yield of 40 to 60 grams methamphetamine.6
[58] I cannot accept Mr Mansfield’s submission that I should impose any uplift for your other methamphetamine offending. It is separate offending. If I were sentencing you on supply alone, I would have been justified in adopting a starting point of at least three years’ imprisonment.7 I have concluded that I must apply an uplift on the starting point of 12 months imprisonment to take account of the three charges of supplying methamphetamine. A further uplift of six months imprisonment is required in respect of the charge of conspiring to supply methamphetamine between.
[59] For the methamphetamine offending, I reach an overall starting point of
seven years and three months’ imprisonment.
[60] There are no aggravating factors personal to you requiring me to increase the starting point. I have considered the character references provided to me. Notwithstanding Mr Finn’s concession that some small discount might be applicable, I have concluded that it is not appropriate to allow a discount for your previous good character. This is because, in a very real sense, it is your previous good character and standing in the police that has enabled your offending. The comments that
Mr Finn referred to made by the courts in the cases of Sarah and Field,8 apply
equally to you. I further accept Mr Finn’s submission that as your offending
escalated it must have been patently clear to you that what you were doing was completely contradictory to your oath as a police officer.
5 R v Hita CRI-2006-092-305, 1 June 2007, per Keane J.
6 R v Sorich CRI-2005-055-2811, 5 August 2006, per Lang J.
7 In Fatu, the Court of Appeal recommends for supply of five to 250 grams of methamphetamine,
a sentence of between three years and nine years’ imprisonment (at [34]).
8 R v Field HC Auckland CRI-2007-092-18132, 6 October 2009.
[61] I will allow a discount of three months for your time spent on EM bail and a further discount of six months for your genuine remorse and rehabilitative prospects. I will allow a further discount of six months to recognise that the sentence you would otherwise receive would, in this particular instance, be disproportionately severe due to your mental health issues and the fact that you are at risk while imprisoned because of your prior status as a police officer. That brings your adjusted starting point for the methamphetamine offending to six years’ imprisonment.
[62] You are entitled to a guilty plea discount of 15 per cent on account of your guilty pleas. I have heard the submissions that the discount should be greater. However, I have concluded that the strength of the Crown case against you is such that a greater discount cannot be justified. That brings the end sentence for this group of offending to five years and one month imprisonment.
Corruption offending
[63] For the corruption offending, I take all offending involving your accessing the NIA system and corruptly using that information together, as the lead offending. That is counts 2, 3, and 8.
[64] In R v Sarah, Mr Sarah, a Police Prosecutor, was sentenced for supplying methamphetamine and for accessing the NIA data system on more than 80 occasions. He passed confidential information onto his methamphetamine supplier. In the High Court, Toogood J considered that the offending involved a gross breach of trust and undermined the integrity of police operations and struck at the heart of public
confidence in law enforcement.9 Mr Sarah’s offending was deliberate and calculated
and involving the use of other people’s computer logins. You also used other people’s logins. Toogood J focused on the indirect harm also caused by Mr Sarah’s offending. His Honour said:10
Public policy dictates that law enforcement agencies must be given the tools to combat organised crime, particularly that which is involved in distributing hard drugs to the great detriment of the community. That means that much of the information stored on the Police computer systems is private information
9 R v Sarah [2013] NZHC 959 at [32].
10 At [35].
about citizens obtained by approved methods which would otherwise be unlawful. But public policy also demands that the community must have absolute confidence that those who gather and store such information will observe the highest standards of integrity and that the information obtained will be used only for legitimate purposes. Your offending seriously undermines that confidence. It is incumbent on the courts to demonstrate, by imposing condign sentences, that breaches of trust of this type and scale will not be tolerated.
[65] On appeal, the Court of Appeal held that the appropriate starting point for Mr Sarah’s offending was three and a half years’ imprisonment. The Court noted that was serious offending, involving a police prosecutor, offending on numerous occasions over a lengthy period, and passing confidential information to a person who Mr Sarah knew was a criminal.
[66] Your case is indistinguishable from that of Mr Sarah. You provided information to people you knew were criminals, in one situation frustrating the execution of a valid search warrant. I adopt, for you as was the case in Sarah, a starting point of three and a half years’ imprisonment. In setting that starting point, I have considered the aggravating features of the extent of harm to the community
resulting from your offending and the fact that you were abusing a position of trust.11
[67] That starting point must be uplifted to reflect the further charges of receiving stolen goods, accepting a bribe, conspiracy to commit burglary, conspiracy to commit theft, conspiracy to pervert the course of justice, and conspiracy to defeat the course of justice. All of this offending is of serious concern, involving the abuse of your position as a police officer, someone whom the community expects, and is entitled to expect, to be able to trust.
[68] I find the facts of the charge of conspiracy to commit theft particularly repugnant in view of your position as a police officer. You pulled over the driver of a vehicle, and instructed her to follow you to the police station for an interview, because Ms Brown wanted to steal her car. The harm the community faces from such behaviour must not to be underestimated. For the most part, the public is able to trust in the integrity of the police as an institution. That trust is an essential factor
enabling police to investigate crimes in our community. If the public suspect that
11 Sentencing Act 2002, ss 9(1)(d) and 9(1)(f).
police officers are asking them to take part in investigations for their own
illegitimate ends, the police’s ability to investigate crime will undoubtedly suffer.
[69] I will uplift the starting point for this group of offending by two years’ imprisonment to reflect this further, very serious offending. On the corruption group of offences, I therefore reach an overall starting point of five and a half years’ imprisonment.
[70] As I did for the methamphetamine offending, I discount this sentence by nine months to take account of your time spent on EM bail and your genuine remorse. I discount the sentence by four months to recognise your mental health issues and the fact that prison will be disproportionately severe for you. Again, I do not consider it appropriate to allow any discount for previous good character.
[71] I also discount this sentence by 15 per cent to recognise your guilty pleas. Once again, a greater reduction is not warranted. I reach an end sentence for this group of offending of three years and nine months’ imprisonment.
Overall sentence totality
As I am sentencing you to cumulative sentences, the total sentence you would receive, taking into account the discounts I have referred to, is imprisonment for eight years and ten months. Under the Sentencing Act I am directed to take into account whether your total period of imprisonment would be wholly out of proportion to the gravity of your overall offending. Taking this into account, I recognise that an adjustment will be required to your end sentence.
Minimum period of imprisonment
[72] Mr Finn submitted for the Crown that a minimum non parole period is warranted for you, as the combination of prolonged corruption and commercial dealing in methamphetamine requires a condign response. He submitted that the normal parole period would be insufficient to meet the purposes of the Sentencing Act 2002.
[73] Mr Mansfield submitted that a minimum period of imprisonment is not required. He submitted that a lengthy period of imprisonment is sufficient to hold you accountable, to denounce your conduct and to provide deterrence. This is particularly so, he submitted, as a sentence of imprisonment will be particularly hard on you.
[74] I have concluded that a minimum period of imprisonment is not required.
Result
[75] Would you please stand, Mr Pakau.
[76] On the charge of manufacturing methamphetamine, you are sentenced to five years’ imprisonment. On the charge of conspiring to supply methamphetamine, you are sentenced to two years’ imprisonment, to be served concurrently on the manufacturing charge. On the three charges of supplying methamphetamine, you are sentenced to three years’ imprisonment, to be served concurrently on the manufacturing charge.
[77] On the charge of accessing a computer system for a dishonest purpose, you are sentenced to three years and four months’ imprisonment, to be served cumulatively on the manufacture charge. On the charge of receiving stolen goods, you are sentenced to one years’ imprisonment, to be served concurrently on the computer charge. On the charges of corrupt disclosure of official information, you are sentenced 18 months’ imprisonment, again to be served concurrently on the computer charge. On the charge of accepting a bribe, you are sentenced to one years’ imprisonment, to be served concurrently on the computer charge. On the charge of conspiracy to burgle, you are sentenced to one years’ imprisonment, again to be served concurrently. On the charges of conspiracy to defeat the course of justice, and to pervert the course of justice, you are sentenced to one years’ imprisonment. Again each sentence to be served concurrently. On the charge of conspiracy to commit theft, you are sentenced nine months’ imprisonment, to be served concurrently.
[78] Your end sentence is eight years and four months’ imprisonment. You may sit down.
Melissa Brown
[79] I now turn to you, Ms Brown.
Personal circumstances
[80] You have three previous convictions, two of which are for dealing in methamphetamine in 2011. For that offending, you were sentenced on 10 October
2012 to ten months’ home detention and ordered to complete 150 hours’ of community work.
[81] You are a 25 year old woman with one son. You acknowledge your involvement in the present offending. You said to the writer of the pre-sentence report that your involvement arose in the context of your former relationship with Mr Ta’avale. You were in a relationship with him for six years. You said to the report-writer that he threatened you with violence if you refused to do what he told you. You said you were also manipulated by Mr Pakau. You have expressed remorse for your involvement in this offending. Your relationship with Mr Ta’avale has ended and you are positively motivated to make necessary changes in your life.
[82] I have received several character references speaking highly of you. They detail your loyalty, your compassion, your dedication to your family, your good prospects, and your remorse. Just before I came into court this morning I read a very long letter from you, where you again set out your remorse.
Submissions
[83] For you, Ms Brown, Mr Finn noted first that all of your offending was committed while you were serving a sentence of home detention. He acknowledged that the starting point for the methamphetamine charges should be reduced to reflect the fact that you pleaded guilty to conspiracy. He submitted however, that your role in the conspiracy was as an active participant and in fact one of the originators of the
conspiracy. Mr Finn submitted that the starting point for that offending should be
four years’ imprisonment.
[84] Mr Finn submitted that your other methamphetamine offending warrants an uplift of at least 12 months. You supplied one ounce of methamphetamine to Mr Boag, that alone could attract a starting point of at least four years. You also conspired to supply methamphetamine. Thus, Mr Finn submitted that the uplifted starting point should be five years’ imprisonment.
[85] For the corruption offending, Mr Finn submitted that the starting point should be three and a half to four years’ imprisonment. He submitted that imposing that cumulatively on the sentence for methamphetamine offending would result in a total starting point of eight and a half to nine years’ imprisonment. He submitted that I should adopt a starting point of seven years’ imprisonment, after taking totality into account. Mr Finn submitted that an uplift of three to six months should be applied for the additional deterrence required as demonstrated by your prior convictions, and that a six month discount should be allowed for the time spent on EM bail. A discount of 15 percent should then be allowed for your guilty plea. Mr Finn submitted that the end sentence for you should be around six years’ imprisonment.
[86] Ms Pecotic submitted on your behalf that the lead offence should be the charge of possessing methamphetamine for supply. She submitted that the charge falls within band 2 of Fatu and a that two and a half to three year starting point is appropriate.
[87] In relation to the charge of conspiracy to manufacture methamphetamine, Ms Pecotic submitted that you did not play an active role in the offence, and that your level of involvement was towards the bottom end of the scale. She submitted that an uplift of four months should be applied for that charge.
[88] In relation to the corruption charges, Ms Pecotic submitted that you did not personally access the NIA system and that none of the information you received prevented or interfered with any police investigations. She submitted that an uplift of 12 months should be applied to the methamphetamine sentence for this offending.
For the charges of perverting and defeating the course of justice, Ms Pecotic submitted that an uplift of three months should be applied, and for offending while on bail she submitted for a further three month uplift. Applying these uplifts to the earlier starting point she identified would result in an overall starting point of eight years to eight and a half years’ imprisonment. Ms Pecotic submitted that taking totality into account, the overall starting point should be six years’ imprisonment.
[89] Ms Pecotic submitted that you are genuinely remorseful, and that you should receive a discount for time spent on electronically monitored bail.
Methamphetamine offending
[90] I take the conspiracy to manufacture methamphetamine charge as the lead offence. In R v Te Rure the Court of Appeal addressed how conspiracy to manufacture should be dealt with.12 The Court accepted that a reduction of the Fatu levels is appropriate where an offender faces a conspiracy charge. The Court considered that this was “consistent with the different maximum penalties for manufacturing, and with the fact that planning something illegal is logically less serious than actually doing it.” The Court continued by saying that it was “equally logical that, the closer a conspiracy comes to execution, the closer in seriousness to the actual illegal act being planned.”
[91] Based on those comments, I adopt a starting point for you on the conspiracy to manufacture charge of four years’ imprisonment.
[92] That starting point must be increased to reflect your other methamphetamine offending. I consider an uplift of 12 months is appropriate for the supply of methamphetamine charge and the further conspiracy charge. That brings the adjusted starting point to five years’ imprisonment.
[93] I impose an uplift of three months’ imprisonment for your previous drug related convictions, and the fact that your offending being committed while you were
subject to a sentence, and I will allow a discount of three months for your time spent
12 R v Te Rure [2007] NZCA 305, [2008] 2 NZLR 627.
on EM bail. I accept that in your letter you express sincere remorse, and will allow further discount of six months for remorse. I also allow a discount of 15 per cent for your guilty pleas.
[94] As with Mr Pakau, and indeed other guilty pleas, I do not accept that a greater discount is required.
[95] For the methamphetamine offending I reach an end sentence of three years nine months’ imprisonment.
Corruption offending
[96] For the corruption offending, I take a starting point of two years’ imprisonment. This is less than the starting point for Mr Pakau because you lack the significant aggravating features present in his offending, and his starting point also took account of the fact that he told a person about a pending search warrant, which I regard as a very serious matter.
[97] That starting point must be uplifted to reflect your further offending. I uplift that starting point by 18 months to reach an adjusted starting point of three and a half years imprisonment.
[98] I do not uplift this sentence for your previous convictions, as I took the relevant convictions into account for the methamphetamine offending. I allow you a discount of three months for the time spent on EM bail, and a further discount of three months’ imprisonment for remorse. Again, a discount of 15 per cent is allowed for your guilty pleas.
[99] I reach an end sentence for the corruption offending of two years and six
months’ imprisonment.
Overall sentence totality
[100] Again, as I am sentencing you to cumulative sentences, the total sentence you
would otherwise receive which would be six years and three months’ imprisonment
must be adjusted to ensure that the total period of imprisonment is not wholly out of proportion to the gravity of your offending.
Result
[101] Would you please stand.
[102] Ms Brown, on the charge of conspiracy to manufacture methamphetamine, you are sentenced to three years and three months’ imprisonment. On the charge of supplying methamphetamine, you are sentenced to one years’ imprisonment, to be served concurrently. On the charge of conspiracy to supply methamphetamine, you are sentenced to one years’ imprisonment, to be served concurrently.
[103] On the charge of accessing a computer system for a dishonest purpose, you are sentenced to two years and three months’ imprisonment to be served cumulatively on the sentence for conspiracy to manufacture. On the charge of theft, you are sentenced to six months’ imprisonment, to be served concurrently. On the charge of theft of a motor vehicle, you are sentenced to eight months’ imprisonment, again concurrent. On the charge of bribing a police officer, you are sentenced to six months’ imprisonment to be served concurrently. On the charge of conspiracy to burgle, you are sentenced to one years’ imprisonment, to be served concurrently. On the charge of conspiracy to defeat the course of justice, and on the charge of conspiracy to pervert the course of justice, you are sentenced on each to one years’ imprisonment, to be served concurrently. On the charge of conspiracy to commit theft, you are sentenced to nine months’ imprisonment, to be served concurrently.
[104] Your end sentence is five years and six months’ imprisonment. [105] You may sit down.
Richard Rei
Personal circumstances
[106] Mr Rei, you have 28 previous convictions dating back to 1984. Nine of them relate to drug offending, including one for manufacturing methamphetamine in 2005. You have previously served terms of imprisonment for drugs offending.
[107] You are 51 years old, and have two children. You acknowledged your offending to the writer of your pre-sentence report but you told the report writer that your involvement was involuntary, forced on you by your co-offender Mr Pakau. You told the report writer Mr Pakau “found” you through the Police system and approached you to make methamphetamine for his financial gain. You said you did not want to participate but you were blackmailed, hassled and intimidated by Mr Pakau. I note that Mr Cordwell, in his submissions, suggested that these comments rather reflected your anger at your own position rather than any particular attitude to Mr Pakau. You are assessed as having a high likelihood of reoffending, but being at a low risk of posing physical harm to others.
Submissions
[108] For the Crown, Mr Finn did not accept that there was any blackmail, hassling, or intimidation by Mr Pakau, and he submitted that there was no evidence of that having occurred. Mr Finn submitted that the starting point for the methamphetamine offending should be same for you as for Mr Pakau, Mr Boag and Mr Holloway. He submitted that the starting point should be six years’ imprisonment.
[109] Mr Finn then submitted that the starting point of six years should be uplifted because you committed a second manufacture only days after the first, again producing two and a half ounces of methamphetamine, then attempted a third manufacture. That attempt produced at least 152 grams of pseudoephedrine hydrochloride. You also supplied one ounce of methamphetamine to Mr Boag around a week before the manufactures began. Mr Finn submitted that the starting
point should be uplifted by two to three years for the second manufacture, and the attempted third manufacture.
[110] Mr Finn submitted that your previous convictions and the fact that you were on EM bail for drugs offending at the time of the present offending warrants an uplift of six to 12 months’ imprisonment. He submitted that the appropriate end sentence for you is around seven to eight and a half years’ imprisonment.
[111] Mr Cordwell submitted on your behalf that for the lead manufacturing offence, an appropriate starting point is five to five and a half years’ imprisonment. Or, he submitted a starting point of six and a half years if I were to take the two manufactures together. Mr Cordwell submitted that the totality of your offending warrants an uplift of one to one and a half years’ imprisonment to reach an adjusted sentence of seven years’ imprisonment. Mr Cordwell accepted there should be an uplift for previous convictions of around three to six months. Mr Cordwell submitted that you have never been more determined to change your ways, particularly as your young daughter is now growing up. Mr Cordwell said that taking that into account, your end sentence should be in the range of six years imprisonment, after having regard to your guilty pleas and your commitment to your daughter.
Sentencing
[112] I take a starting point of six years’ imprisonment for the first manufacture of methamphetamine. This starting point is higher than that adopted for Mr Pakau, and the others charges with you on this offence, and it recognises that you were the methamphetamine cook. That factor increases your culpability.
[113] For the second manufacture of two and a half ounces, and the attempted third manufacture, and your supply of one ounce of methamphetamine, I uplift that starting point by 21 months. I reach an adjusted starting point of seven years and nine months’ imprisonment.
[114] Your previous convictions must be regarded as being an aggravating factor and as indicating a need for additional deterrence. For that reason I apply a further uplift of six months, to reach a sentence of eight years and three months’ imprisonment.
You are entitled to a discount for your guilty pleas, which again I set at 15 per cent.
Result
[115] Would you please stand.
[116] On the lead charge of manufacturing methamphetamine, you are sentenced to seven years’ imprisonment. On the charge of supplying methamphetamine, you are sentenced to one years’ imprisonment, to be served concurrently. On the charge of attempted manufacture, you are sentenced to three years’ imprisonment, again to be served concurrently. On the second charge of manufacturing methamphetamine, you are sentenced to four years’ imprisonment, to be served concurrently.
[117] Your end sentence is seven years’ imprisonment. I am satisfied that standing back and looking at the sentence as a whole, it is proportionate to the gravity of your offending.
[118] I note that on counts 44 and 47 to 49 in the indictment against you, the Crown has offered no evidence. You are therefore discharged on those charges.
[119] You may sit down.
Shane Boag
[120] I now turn to you, Mr Boag.
[121] You have 31 previous convictions, three of which were in the Youth Court. Three of your convictions relate to drug offending, but the most recent of these was in 2000.
[122] You are 42 years old, with one daughter whom you have raised by yourself. To your credit, it is evident that you have done well with this. Your daughter has clearly done very well and has achieved well at school. You are permanently disabled as a result of a spinal injury suffered during working in the fishing industry. You told the writer of your pre-sentence report that you are a paranoid schizophrenic, and prior to being remanded in custody, you were receiving treatment for that. You have outstanding fines but not to a great extent. Your involvement in the present offending, you said, was motivated by your need to support your methamphetamine habit. You are assessed as being at a high risk of reoffending and a moderate to high risk to others.
[123] I have read the references that you have provided to me, in particular those from your mother and your daughter.
Submissions
[124] Mr Finn submitted that the starting point for your offending, for the lead charge of manufacturing methamphetamine, should be six years’ imprisonment. He submitted that your other offending warrants an uplift of around 12 months. He also submitted that your previous convictions for drug related offending and fact that you were serving a sentence of supervision, community detention and community work at the time of the present offending justify an additional uplift of three months. Mr Finn accepted that a discount of 15 per cent discount could be given for your guilty plea, resulting in an end sentence of around six years’ imprisonment.
[125] In her submissions, Ms Sellars referred to your spinal injury, and submitted that during your recovery you could only move with crutches for one hour before needing to sleep for prolonged periods. You began experimenting with
methamphetamine and found it enabled you to stay mobile for hours without needing sleep, and it helped with your pain. You developed an addiction to methamphetamine. Ms Sellars submitted that your methamphetamine use triggered mental health issues from 2003 onwards. She also submitted that you developed a distrust and fear of police and mental health authorities.
[126] As to your present offending, Ms Sellars noted that it spans a period of some three weeks, no longer. She submitted that your culpability should be assessed in the context of your state of mind and your mental health condition. She submitted that these played a key part in your offending. Ms Sellars submitted that the fact that your co-offender, Mr Pakau, was a police officer, had a significant effect on you, and you felt less able to decline to participate in his schemes. She submitted that your offending has not been motivated by profit, but rather by the need to finance your ongoing addiction. Ms Sellars submitted that you have the desire to address your offending, and to address your addiction.
[127] Ms Sellars submitted that an appropriate starting point for the manufacture charge is five years’ imprisonment. She submitted that your role in the manufacture was less than Mr Pakau’s and others, who arranged the manufacture. You did not initiate the manufacture, and your role was limited to providing ingredients. She submitted you did not profit from the offending. Ms Sellars submitted that an uplift of six months is appropriate for the possession for supply charge, which is unrelated to the lead offence. Finally, Ms Sellars submitted that your personal mitigating factors warrant a discount of 12 and 30 per cent, and that a further discount of 20 per cent should be given for your guilty pleas.
Sentence
[128] I take the manufacture of two and a half ounces of methamphetamine as the lead offence and, as for Mr Pakau and Mr Holloway, I adopt a starting point of five years and nine months’ imprisonment. I will impose an uplift of ten months for the further charges of possession for supply, to reach an adjusted starting point of six years and seven months imprisonment.
[129] Your previous drug related offending is an aggravating factor, as is the fact that when you committed this offending, you were subject to a sentence of supervision. For that I will impose an uplift of four months.
[130] Ms Sellars submitted that your mental health difficulties and your personal circumstances warrant a discount for personal mitigating factors. The court’s approach to personal discounts in drug offending was spelt out by the Supreme Court in Jarden v R.13 In essence, the personal factors may be relevant if they contributed to the offending or on a purely compassionate ground.
[12] … in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.
…
[14] The personal circumstances of an offender may be relevant either because they contributed in some way to the offending, or on purely compassionate grounds.
[131] The Court of Appeal in Samuel v R subsequently endorsed this approach and said:14
[22] We are satisfied that the circumstances here are not so extreme as to warrant any further discount. As in Jarden, there was no causal link between the illnesses and deaths of the appellant's relatives and the offending. The only question is whether these personal circumstances warrant a reduction in sentence on purely compassionate grounds. We do not think so. In this case the protection of the community was seen by the sentencing Judge as important. We agree with that assessment. We are not persuaded that any further discount should be given on compassionate grounds.
[132] I turn to consider whether your personal circumstances may be taken into account. While I acknowledge that your spinal injury first introduced you to methamphetamine so that you could better deal with the pain and mobility issues, I also take into account that this was some 20 years ago. It does not appear to have led to offending in the interim, and I find it difficult to see why it should have done so at this time. Further, I do not accept that you were in any way coerced into this
offending. I have not been pointed to any evidence of that occurring.
13 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.
14 Samuel v R [2012] NZCA 376.
[133] Turning to your mental health issues, Ms Sellars submitted that your mental health status at the time of the offending reduced your ability to think clearly and to comprehend the consequences of your actions. As Ms Sellars noted in her submissions, under s 9(2)(e) of the Sentencing Act, diminished intellectual capacity or understanding at the time of the offending is a mitigating factor. I note that Mr Finn, in his submissions, did not accept that this was a factor to be taken into account.
[134] I have considered your mental health records, many of which are contemporaneous with the 2013 offending. I am prepared to draw the inference that your mental state contributed to the offending in some way. While I cannot assess the strength of the causative effect of your mental health condition on your offending, I cannot rule out the possibility of there being a causal link.
[135] In Murray v R, the Court of Appeal upheld a discount of 15 per cent for mental health issues.15 Mr Murray in that case had a history of mental and cognitive problems following a traumatic brain injury earlier. The sentencing judge treated his impaired judgement as causally related to his methamphetamine offending. Following that case, I am prepared to give a discount on this factor of 12 months.
[136] I consider that a guilty plea discount of 15 per cent is appropriate in all the circumstances.
[137] That brings me to an end sentence of five years’ imprisonment.
Result
[138] Would you please stand.
[139] Mr Boag, on the charge of manufacturing methamphetamine, you are sentenced to five years’ imprisonment. On each of the charges of possession of methamphetamine for the purpose of supply, you are sentenced to one year and nine
months’ imprisonment, to be served concurrently.
15 Murray v R [2014] NZCA 189.
[140] Your end sentence is five years’ imprisonment. [141] You may sit down.
Paul Holloway
[142] I now turn to you, Mr Holloway.
Personal circumstances
[143] Mr Holloway, you have 31 previous convictions. Seven relate to drug offending, the most recent occurring in 2005. You have previously served terms of imprisonment for drugs offending.
[144] You are a 45 year old man with an adult son and a young daughter. In 2008 you were diagnosed with leukaemia. Your illness is presently in remission. You have a considerable amount outstanding in fines.
[145] You are assessed as being at a high likelihood of reoffending. However, the writer of the pre-sentence report recorded that you have not reoffended while on EM bail, and that you have responded positively to the social support provided by your family and the enforced abstinence from drugs. You are assessed as being at a low to medium risk of harm to others. Because you told the report writer that your involvement in the offending was involuntary due to duress placed on you, you are assessed as having a low motivation to address the factors leading to your offending.
Submissions
[146] Mr Finn repeated his submission that the Crown rejects the submission that Mr Pakau exerted any influence or duress over you. He submitted that the appropriate starting point for the lead charge of manufacturing methamphetamine is six years’ imprisonment. He submitted that you should receive an uplift of around three years for the further manufacture of methamphetamine, and attempted manufacture, the two charges of supplying methamphetamine, the charge of conspiracy to supply pseudoephedrine, and the charge of unlawful use of the Police
NIA system. Mr Finn submitted that your previous convictions warrant an uplift of six to nine months’ imprisonment. He acknowledged that you should receive some limited credit for the time spent on EM bail. He submitted that your end sentence should be around nine years’ imprisonment.
[147] Mr Leabourn referred me to your evidence as to your relationship with Mr Pakau, and the effect of dealing with Mr Pakau, a police officer in uniform. He submitted that taking the two manufactures of methamphetamine to assess a starting point, it should be in the area of six to six and a half years’ imprisonment. He submitted that no uplift should be applied for the supply charge. In respect of the other charges, he submitted that an uplift of 18 months is appropriate and that an uplift of 12 months is appropriate for your previous convictions. Finally, Mr Leabourn sought a reduction of nine to 12 months for time spent on EM bail. He submitted that the final sentence should be in the range of seven and a half to eight years’ imprisonment.
Sentence
[148] Having presided over your trial, and heard the evidence, and the evidence of intercepted communications, I do not accept the submission that you were under any duress from Mr Pakau. That was not supported by the evidence. Like your co- offenders, I take a starting point of five years and nine months’ imprisonment on the lead offence of manufacturing two and a half ounces of methamphetamine.
[149] As you were involved in the second manufacture of a further two and a half ounces, attempted a third manufacture, supplied one ounce, and a further very small amount, and conspired to supply 5 sets of ContacNT, together with the charge of accessing the NIA system, I uplift that starting point by two years. A further uplift of six months is required to recognise the need for deterrence, shown by your previous convictions. I reach an overall starting point of eight years and three months imprisonment.
[150] I will discount your sentence by six months to take into account the time you have spent on EM bail. You went to trial, and as such you are not entitled to a guilty
plea discount. However, I intend to discount your sentence by three months to recognise that through your going to trial, evidence was adduced which has assisted in settling disputes about the quantum of drugs involved in your co-offenders’ cases.
Result
[151] Mr Holloway, please stand.
[152] On the lead charge of manufacturing methamphetamine, you are sentenced to seven years and six months’ imprisonment. On the second manufacturing charge, you are sentenced to four years’ imprisonment, to be served concurrently. On the attempted manufacture charge, you are sentenced to three years’ imprisonment, to be served concurrently. On each of the supply charges, you are sentenced to 12 months’ imprisonment, to be served concurrently. On the conspiracy to supply pseudoephedrine, you are sentenced to 12 months’ imprisonment, to be served concurrently. On the charge of dishonestly accessing a computer system, you are sentenced to five months’ imprisonment, to be served concurrently.
[153] Your end sentence is seven years and six months’ imprisonment.
[154] Would you all please stand down.
Andrews J
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