R v Paora
[2020] NZHC 1595
•28 May 2020
ORDER PROHIBITING PUBLICATION OF DETAILS OF TRAUMATIC EVENTS EXPEREINCED BY DEFENDANT WHILE AN ADOLESCENT AS
DESCRIBED IN REPORT PRESENTED TO COURT PURSUANT TO S 27 OF THE SENTENCING ACT 2002 EXCEPT AS DIRECTED IN PARAGAPH [3] OF JUDGMENT. PUBLICATION IN LAW REPORT OR LAW DIGEST
PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2016-070-5102
[2020] NZHC 1595
THE QUEEN v
STACY WALTON DENNIS PAORA
Hearing: 28 May 2020 Appearances:
A Pollett and J Sutton for the Crown R Mansfield for the Defendant
Sentence:
28 May 2020
SENTENCING NOTES OF HINTON J
Solicitors/Counsel:
Pollett Legal, Tauranga
R Mansfield, Barrister, Auckland
R v PAORA [2020] NZHC 1595 [28 May 2020]
Introduction
[1] Mr Paora, you may remain seated and I will ask you to stand when I get to the end.
[2]You appear for sentence having pleaded guilty to 18 charges. These are:
(a)one charge of participating in an organised criminal group, which has a maximum penalty of 10 years’ imprisonment;1
(b)one charge of conspiring to deal in ephedrine, which also has a maximum penalty of 10 years’ imprisonment;2
(c)eleven charges of supplying methamphetamine, including both representative charges and charges relating to specific offending, which charges have a maximum penalty of life imprisonment;3
(d)four charges of possessing methamphetamine for supply, which charges also have a maximum penalty of life imprisonment;4 and
(e)one charge of unlawfully possessing a pistol, which carries a maximum penalty of three years’ imprisonment or a $4,000 fine.5
[3] Because members of the media are present today, I note at the outset I am making an order prohibiting publication of the details of the personal trauma Mr Paora experienced while he was an adolescent. Any report of these proceedings is to refer to those events simply as abuse from a relative.
1 Crimes Act 1961, s 98A.
2 Misuse of Drugs Act 1975, s 6(2A)(b).
3 Misuse of Drugs Act 1975, ss 6(1)(c) and (2); and Crimes Act 1961, ss 66(1) and (2).
4 Misuse of Drugs Act 1975, ss 6(1)(f) and (2); and Crimes Act 1961, ss 66(1) and (2).
5 Arms Act 1983, s 50(1)(a).
Facts
[4] I turn to talk about the facts. In 2015 the Police commenced an investigation into the Head Hunter gang and the gang’s role in supplying methamphetamine in the Bay of Plenty.
[5] You have accepted in pleading guilty, Mr Paora, that you are a high-ranking member of a Head Hunter chapter based in Auckland. Telecommunications intercepted by the Police during their investigation between May 2015 and December 2016, known as Operation Centurion, demonstrated you had a significant leadership role in the gang’s business. You were involved, amongst other things, in identifying suitable prospects for the gang, enforcing discipline amongst existing members, and matching various gang members’ abilities to the gang’s operations. You are recorded as having spoken positively about prospective members’ ability to terrorise others when required. You thought this would increase the dread with which the Head Hunters were regarded.
[6] Your main pursuit during this period was the supply of Class A and Class B drugs for which you are being sentenced today. Operation Centurion revealed that the Head Hunters were involved in wholesale distribution of methamphetamine in the Bay of Plenty. The operation was reasonably sophisticated. You and your associates used businesses as fronts, used encrypted and coded communications, rented vehicles and properties, met covertly and used diversionary driving tactics to attempt to evade detection.
[7] The Police investigation also established that you were the leading figure in the group involved in the supply of methamphetamine which comprised you and at least three of the gang’s prospects. The agreed summary of facts records that you ran the group “along traditional business lines.” You have accepted that as the patched member of the group you were the senior member, and your role can be likened to that of the chief executive. You had overall control of the methamphetamine supplied by the group, and the other members were required to comply with your directions and instructions. While you kept yourself removed from hands-on involvement with the
drugs themselves, you have accepted that the drugs were purchased and moved on by and with your authority.
[8] The bulk of the profits accrued to you. In an intercepted telecommunication, you commented to an associate you were earning $10,000 a day. During their investigation, Police “had direct contact with over $350,000 cash which was under the control of the group”. Civil asset forfeiture proceedings were commenced against you by the Police in respect of around half a million dollars in assets, including cash, jewellery, vehicles, and a residential property. You withdrew your opposition to the making of forfeiture orders shortly after pleading guilty to these charges and those orders were recently made. Those orders confirm that the assets were obtained with the proceeds of your dealing in drugs. You have accepted that in addition to obtaining these assets you lived lavishly from the proceeds of your criminal activities, seeking to impress and influence those around you. This included paying in cash to stay in penthouse suites at upmarket hotels; hosting parties with drugs, alcohol, and entertainment for your associates; and paying your prospects a thousand dollars a week for their services.
[9] It is clear from the summary of facts that you were motivated by the prestige that could be obtained from applying the proceeds of your wholesale trade in methamphetamine. You boasted that few others could handle the risk associated with your life style, given the stiff penalties associated with your actions if caught.
[10] The drug related offending to which you have pleaded guilty took place in the context of your leadership and direction of this organised criminal group. Between 16 November 2015 and 20 December 2016 you oversaw and profited from the actual supply of 691.8 grams of methamphetamine in total. The circumstances of each of these supplies is detailed in the agreed summary of facts. It is unnecessary for me to detail each of these for present purposes. Suffice to say that in each case you did not bear the risk involved in physically handling the drugs yourself, but instead had overall control and direction of the other participants in the enterprise.
[11] Based on the summary of facts, during that same period you and your associates had in your possession at least two more kilograms of methamphetamine
for supply. The Police recovered 1.02 kilograms of that two-kilogram amount when they terminated their investigation. You have accepted your operation came to an end at that time only because of Police intervention. Again, while you had overall control of the methamphetamine and directed its distribution, it was left to others to transport and store the drugs in accordance with your instructions.
[12] It is necessary for me to go somewhat further into the details of the conspiring to deal in ephedrine offending, given that it is somewhat distinct offending, though clearly part and parcel of your involvement in the Head Hunters drug dealing operation. It also usefully illustrates your role in the organisation and the scope of your enterprise. Furthermore, it serves to introduce some of the other participants in your group who have already been sentenced, and whose sentences I will need to take into account in sentencing you today.
[13] In October 2016, undercover police officers attached to Operation Centurion contacted you and members of your group through a moving business, of which your wife is the sole shareholder and director. The business was hired by the undercover officers to move boxes from Tauranga to Auckland. The officers set out to convey the impression that they were themselves involved in illegal activities. You inspected the contents of the boxes during the move.
[14] On arrival in Auckland two of your associates, one of whom was Mr Morgan, who has already been sentenced for his role in your group’s offending, set about unpacking the truck. As they did so, you walked up to one of the undercover officers and demanded to know what you had been moving. Mr Morgan and the other associate present continued working.
[15] You said you had no issues with moving unlawful cargo but explained the moving business was a “front” and that, given the risks to you involved in having the business move an illicit consignment, you needed to know what was being moved. You pointed to a Head Hunter tattoo on your calf and told the officers “this is me bro.” The officer intimated that he was involved with an Asian criminal enterprise. You repeatedly demanded to know if the officers had a “line in” to that organisation. The officer said that he had some associates that you might like to speak with and offered
to make an introduction. You told the officer that it was in his best interests to make the introduction, so that he wouldn’t be “touched”.
[16] You then directed the officer to deal with Mr Morgan and arrange a meeting between Mr Morgan and the officer’s supposed criminal associates. The officer met with Mr Morgan on 31 October 2016. At that time you were in custody in relation to unrelated charges, on which you were subsequently acquitted. The undercover officer realised that Mr Morgan was interested in his apparent ability to arrange the importation of illicit substances. Mr Morgan told the officer your organisation was interested in “kilos” of goods.
[17] This led to a further meeting between Mr Morgan; another associate of yours who has already been sentenced, Mr Petersen, who you had placed in charge of the operation while you were in custody; and other undercover officers, on 16 November 2016. Your associates believed the officers to be members of an Asian criminal syndicate. Mr Petersen said that he was authorised to speak on your behalf and was “sitting in [your] position” while you were in custody. When the undercover officers explained they could supply several different substances out of China, and asked your associates what they wanted, Mr Petersen said they were looking for the “precursor ephedrine” and needed, on average, a kilogram of ephedrine every month. That amount of ephedrine could be used to manufacture between half and three quarters of a kilogram of methamphetamine, depending on the process used and the skill of the manufacturer. Mr Petersen explained your group already had a source for the importation of ephedrine but you had been told you would have to find another ephedrine supplier. After a short negotiation, your associates agreed to the purchase price of $100,000 per kilogram of ephedrine. Mr Petersen and Mr Morgan said that a further order would be forthcoming on delivery of the first order.
[18] Meanwhile, you had been granted bail over the weekend of 19-20 November 2016. The following week, on 24 November 2016, Mr Petersen met with the undercover officers again. He told the officers that during your weekend on bail he had met with you and that you were “happy with everything that had been arranged”. Your only concern was the purity of the ephedrine. Between then and your acquittal on those charges and release from custody on 7 December 2016, your associates took
delivery of one kilogram of what they thought was ephedrine and gave the undercover officers $100,000 in cash. The actual exchange was executed by Mr Morgan and another of your associates, Mr Ranui, who has also been sentenced in relation to his role in this offending.
[19] On 5 December 2016, your associates had secreted the container of what they thought was ephedrine in sand dunes east of Papamoa. The Police covertly recovered the container. Mr Ranui informed you of the loss of the container on 11 December 2016. Having resumed control of the operation following your release, you set about trying to find, and punish, the person responsible. You formed the belief either or both of Mr Ranui or Mr Morgan were to blame. You were extremely angry, and Mr Ranui was in fear of his life. You choked him and gave him further “hidings” in respect of the loss of the “ephedrine”. In the summary of facts, you have accepted that you used physical punishment as part of enforcing discipline within your criminal organisation.
[20] The final charge to which you have pleaded guilty, unlawful possession of a pistol, relates to events in October 2019. This is when you had returned home on EM bail after safely spending 14 months with your uncle and his whanau. On 11 October 2019 the Police executed a search warrant at your home in Tauranga. The Police discovered an LPG cylinder inside what appeared to be a child’s bedroom. The base of it had been modified to allow for its use in concealment. Inside the false bottom, the Police located a .38 calibre pistol loaded with live ammunition, cash, a mobile phone, and further ammunition.
Personal circumstances
[21] I now turn to talk about your personal circumstances. You are 35 years of age. Perhaps surprisingly, given the grave nature of the offending for which you appear for sentence today, prior to the present offending you have received only twelve convictions and have only received a single sentence of imprisonment. That was a sentence of one month’s imprisonment in respect of your third conviction for driving while disqualified. Your previous offending is all at the minor end of the scale, being for driving offences, possessing methamphetamine utensils, common assault, trespass, breach of bylaws, and disorderly behaviour. The charges of which you were acquitted
in 2016 were considerably more serious in nature but you were acquitted and I place no weight on those allegations in sentencing you today.
[22] You impressed the author of Corrections’ pre-sentence report as courteous, well-mannered, open, and honest in your answers. You acknowledged your offending as recorded in the summary of facts and accepted that drugs can do considerable harm to individuals, their families and the community. Your wife, who was interviewed for the report, said that you have been talking about leaving the Head Hunters. The report writer considered this to be consistent with your stated remorse and insight but noted they did not know of you having taken any steps to leave the gang. That is significant for purposes of sentencing today, with the report writer considering your continued association with other members of the Head Hunters an important factor in your offending. You agreed with the report writer that it is “difficult” to regard the Head Hunters as a pro-social organisation. The report writer also noted you demonstrate signs of a moderately severe gambling addiction and also alcohol and other substance use.
[23] You said to the report writer that you drifted away from your family from the age of thirteen, and turned to drugs and alcohol, and I infer eventually the Head Hunters, because you were looking for a sense of belonging. I note though that you did not join the Head Hunters until you were close to the age of 30. You told the report writer that you were brought up rurally with “old school values and discipline”, were fluent in Te Reo Māori and familiar with the tikanga of Te Whanau-A-Apanui, the iwi from which you descend. Your mother and others who have written letters in your support say you come from a very proud and prominent whanau and that certainly is how it appears to me. You told the Corrections report writer that you had drifted away from your family between the ages of thirteen and fifteen because of “personal reasons” that you did not wish to discuss. Since then, according to your mother, who the report writer interviewed, your fluency in Te Reo and your practice of tikanga has waned because, the writer appeared to accept, of your substance abuse, lifestyle and ultimately involvement in the Head Hunters. These pursuits have impaired your connection with your wider whanau. You told the report writer you had found participating in a Corrections tikanga programme to be “real good”, and an aid in getting away from gang life.
[24] Letters of support have been prepared by many including your wife, mother, sister, aunt, three of your uncles, two of your cousins, your brother-in-law, and Mr Rikirangi Gage, the Chief Executive Officer of Te Rūnanga o Te Whānau (your iwi organisation). Each of your relatives, and your relatives as spoken to by Mr Gage, views you as a loving and supportive member of your whanau who is, in particular, devoted to loving and caring for your own children as well as your nieces and nephews. In addition to receiving letters from them, I heard today from your uncle Mr Bowen and from Mr Wano. They express confidence in your being motivated to change in the way you described to the Corrections report writer and say that you have identified to them that you regret the choices you have made. They say you need to be given the chance to make different life choices, and view this as part of a process of your returning to the values of your upbringing.
Section 27 report
[25] The themes seen in the Corrections’ report, the letters in support and the people who spoke today – namely of you having taken the wrong path through life but now being motivated to choose a different way moving forward, informed by tikanga Māori and the values with which you were raised – are elaborated on in a report by Laurence and Denis O’Reilly put before me by your counsel, Mr Mansfield, pursuant to s 27 of the Sentencing Act 2002.
[26] You provided the s 27 report writers with an idyllic picture of your upbringing in the areas around Te Kaha but explained that you were driven away from the family because, [redacted]. You told nobody of this because, you said, you were too whakama (embarrassed). This compounded, I infer from the report, your experiences of anxiety around your inability to earn your father’s affection, approval, and acceptance; your father being, in your mother’s words, an “old school” authoritarian who was not emotionally expressive. This led you to feel, your mother said, as if you were never good enough for your father.
[27] As against that background, when you were aged thirteen or fourteen you went to high school in Whakatane. You were in the care of your maternal grandmother, who coached you in Te Reo and tikanga. At the same time, away from the supervision
provided by the intensely communal environment of your upbringing and your parents’ strict rules, and while living in a part of Whakatane described in the report as full of gangs, you began using drugs, at first cannabis and alcohol. The report writers infer, based on their review of the literature, that this was a form of self-medication for internalised anger and determination not to be used or abused by anyone else, resulting from the abuse you had suffered. This also expressed itself, you told the writers, in a tendency towards fighting, public disorder and the like. This behaviour was normalised among your peers, and resulted in your turning towards delinquency, and your first minor offences in the adult courts. While you spent some time working in Wellington in the care of an uncle who you described as a positive influence along with quite a large number of other family members who fall into that category, you developed a serious methamphetamine habit. This led, in the report writers’ words, to a relationship breakup because of domestic violence, and to the dissipation of your assets. You moved for a time to Australia, where you met the woman who is now your wife. You stayed there, but ended up involved in a serious fight, and returned to New Zealand.
[28] On your return, you eventually joined the Head Hunters in 2014, which gang your uncle had been involved in, in his youth. You told the report writers that “the club” offered you a “substitute whānau” like that you felt you had lost because of the traumatic events of your youth, and that you demonstrated considerable acumen in organising the gang’s activities. You said that the sense of belonging and achievement you felt in being a successful “warrior” in that context has come at the cost of being able to participate in your family life.
[29] [Redacted] there is a disproportionate incidence of such abuse in remote, poor, Māori communities.6 Your beginning to exhibit defiance, alcohol and drug use, and violent tendencies, which led you to engagement with the criminal justice system, is consistent, the writers say, with your history of [redacted].
[30] I very much doubt that you have suffered any cultural disadvantage as such given your description of your upbringing. But I am satisfied that the report writers
6 [Redacted].
are correct to identify some nexus between endemic socio-economic disadvantage and the trauma of the abuse you say you experienced, and your subsequent involvement in serious organised criminal activity, including drug dealing. It is clear to me that you are an intelligent and motivated individual who, as set out in the s 27 report, has applied your considerable resources to attempt to gain a sense of control and mastery over your circumstances, first by turning to use of alcohol and illicit substances and, later, by becoming a brutal and controlling criminal leader.
[31] In saying this, I have taken a different view of matters to the Crown, who submit that you joined the gang and became involved in the drug activity for which I am sentencing you today simply because you were motivated by profit. It is doubtless true that you were motivated by profit. But taking that limited view would be to ignore the way in which your personal background has been affected by societal factors and has, to some extent at least, channelled you into the offending I have described above.
[32] Most recently, in your statements to Corrections, the s 27 report writers, and in the letter of remorse you have written to me as sentencing Judge, you say you now seek to gain feelings of peace and security, and a sense of wellbeing, by returning to Te Reo Maori and the environment that world provided in your childhood.
[33] I accept that the circumstances I have described impaired your moral agency in choosing to offend, reducing your culpability.7 That will require some adjustment to the sentence I impose today. I will determine the extent of the discount shortly.
Co-offenders’ sentences
[34] Because of the desirability of consistency in sentencing,8 it is also necessary for me to briefly note the starting points that Katz J adopted in relation to your co-offenders Mr Petersen, Mr Morgan, and Mr Ranui on 11 December 2018.9 I note that your co-offenders were sentenced in accordance with a now-superseded guideline judgment for methamphetamine offending.10
7 Zhang v R [2019] NZCA 507.
8 Sentencing Act 2002, s 8(e).
9 R v Petersen & Ors [2018] NZHC 3263.
10 Mr Paora’s co-offenders were sentenced in accordance with the previous methamphetamine tariff,
R v Fatu [2006] 2 NZLR 72 (CA), Mr Paora is to be sentenced in accordance with the guidance
[35] In the case of Mr Morgan, the Judge adopted a starting point of six years’ imprisonment in respect of his supply of 56 grams of methamphetamine, participation in the Head Hunters’ drug enterprise, and the conspiracy to supply ephedrine. The Judge noted Mr Morgan’s submission that he was only a “foot soldier” in the organisation, and appeared to have sympathy with that proposition, but sentenced him on the basis of having had a “significant” role in terms of the agreed summary of facts.11
[36] With Mr Ranui, Katz J adopted a starting point of 11 years’ imprisonment in respect of the supply of 84 grams of methamphetamine, possession for supply of 1.148 kilograms of methamphetamine, his role in the Head Hunters’ organised criminal group, the conspiracy to deal in ephedrine, and possession of a firearm. She considered Mr Ranui’s involvement was driven largely by his addiction to methamphetamine, and that he had indeed been a “foot soldier.”12
[37] In the case of Mr Petersen, Katz J adopted a global starting point of 16 years’ imprisonment on the methamphetamine offending (similar offending to that for which I am sentencing you today), which was to be concurrent with sentences for the conspiracy to deal in ephedrine, participation in an organised criminal group, unlawful possession of a firearm, and other drug offences. The Judge considered Mr Petersen’s offending the most serious she was sentencing, noting he had a senior role within the group and had run the organisation in your absence. She considered Mr Petersen had been motivated by commercial gain.13
Approach to sentencing
[38] I will determine your sentence using the accepted three-stage approach to sentencing. First, the appropriate starting point is set by reference to the features of the offending, as I detailed at the outset. Second, allowance is made for aggravating and mitigating factors personal to the offender, such as that I have discussed. Finally, there is a further discount applied in respect of guilty plea.14
given in Zhang: Zhang, above n 7, at [187].
11 At [39]-[42].
12 At [46].
13 At [38].
14 Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 and R v Clifford [2011] NZCA 360; [2012] 1
[39] In order to determine an appropriate sentence, I must consider the relevant principles and purposes of sentencing provided for by ss 7 and 8 of the Sentencing Act 2002. While all of these are relevant, those particularly relevant today are the need to:
(a)hold you accountable for harm to the community;
(b)denounce your conduct;
(c)deter you and others from the same offending in future;
(d)protect the community;
(e)assist in your rehabilitation;
(f)take into account your personal, whānau, community and cultural background; and
(g)consider the gravity of the offending in this particular case, and in particular your individual culpability.
Determining the starting point: factors relevant to the offending
Approach to determining the starting point
[40] The Court of Appeal provided sentencing judges with guidance in applying these factors in the context of methamphetamine related offending in the case of Zhang.15 The methamphetamine offending, both the Crown and your counsel are agreed, is the lead offending for the purposes of sentencing today.
[41] The Court in Zhang created a number of “bands” into which different cases of methamphetamine offending are to be classed,16 based on the quantity of methamphetamine involved; quantity providing a proxy measure for measuring the
NZLR 23.
15 Above n 7.
16 The Court in Zhang abrogated the distinction, present under Fatu, between supply, importation, and manufacturing, with any distinction in culpability related to the exact nature of the offending to be addressed at the “role” stage: Zhang, above n 7, at [122].
harm or potential harm done to the community, which is what makes dealing in methamphetamine culpable.17 Here, where the quantity of methamphetamine involved, according to the summary of facts, is 2.691 kilograms, the methamphetamine offending prima facie falls into the fifth, most serious, band in Zhang. Offending in this band attracts starting points of between ten years’ imprisonment and life imprisonment.
[42] Culpability is also to be determined by reference to the offender’s role in the enterprise. Depending on whether the individual offender’s involvement was “lesser”, “significant”, or “leading”,18 a starting point at the bottom, in the middle, or at the top of the band, or in a different band altogether, may be necessary to reflect the offender’s actual culpability.19 Movement between bands may be appropriate where an offender’s role is limited and the amount of methamphetamine in question is close to the bottom of a band range.20
[43] You are also, of course, for sentence on other charges. Unlike the methamphetamine offending, these are not subject to guideline judgments. Counsel have referred me to authorities they say will assist me in determining an appropriate starting point for this offending, having regard to the desirability of consistency in sentencing. I propose to follow Katz J in treating all of your other charges, except for the firearm charge, in essence as aggravating features of your methamphetamine offending, to which they are clearly factually related.21 I will set a global starting point then uplift for the firearms offence. Ultimately, the sentence I will arrive at is the same as if I had taken another approach.
17 At [118].
18 At [115] and [126].
19 At [118] and [123].
20 At [123].
21 R v Petersen & Ors, above n 9, at [29]-[30], referring to R v L HC Wellington CRI-2011-085- 1797, 17 August 2011 at [18]; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [40]. I consider this appropriate in light of the Court in Zhang, above n 7, at [128], identifying that consideration of the offender’s “role” will take account of features touching on culpability such as commerciality, links to organised crime (to which the unlawful possession of a firearm is linked), and the exploitation of others.
Crown submissions on starting point
[44] For the Crown, Ms Pollett submits that your methamphetamine offending is plainly within band five in Zhang, being related to a prolonged and sophisticated commercial methamphetamine supply operation of which you were essentially chief executive. The quantity of methamphetamine involved Ms Pollett submits is “significant”, placing this case in the upper range of cases in terms of quantity. You were, she says, the person who profited most from the enterprise. Having regard to these factors, the Crown submits your offending was plainly “leading” in terms of the Zhang role descriptors, placing it in the upper end of band five in Zhang. Also considering your role in the conspiracy to supply ephedrine, which they say was part of the same criminal enterprise, and your role in the Head Hunters’ drug operations, the Crown submits a starting point of 19 to 20 years’ imprisonment is appropriate.
[45] To this, Ms Pollett submits, a cumulative uplift of 12 months’ imprisonment should be applied to the firearm offending, which she describes as unrelated. The firearm offending is in fact related to your involvement in serious organised crime, but both counsel approach the matter by way of uplift and I agree that is appropriate.
Defence submissions on starting point
[46] On your behalf, Mr Mansfield has submitted I should adopt a slightly different approach. He submits I should adopt a starting point for the supply offending only. of 12 years’ imprisonment, and then uplift by between two and three years in respect of the possession offending. He concludes I should adopt a starting point of between 15 and 16 years’ imprisonment which I infer is supposed to also take into account the organised criminal activity and conspiracy charges.
[47] Mr Mansfield says that starting point is appropriate having regard to what he submits is the distinct possibility that the actual amount of methamphetamine involved was somewhat less than 2.619 kilograms because, he submits, “clearly” the Police will have counted the same methamphetamine twice at different points. He has not, I note, offered any evidence or analysis in support of that conclusion. He submits that starting point is also appropriate because while your offending involved a high level of commerciality, it was not particularly sophisticated or large in its scale. Mr Mansfield
also submits that your role in the organisation was only “slightly” higher than that of your lieutenant, Mr Petersen, who was also sentenced on other charges you do not face, and so considerations of parity mean your sentence should not be materially greater than his or even as great.
[48] Mr Mansfield acknowledges that a further uplift to this figure is needed in respect of your firearms offence but submits than an uplift of no more than six to nine months is required. This results in, in his submission, a starting point of between 15 years 6 months’ imprisonment and 16 years 9 months’ imprisonment.
Analysis regarding starting point
[49] I consider your methamphetamine offending falls within the middle range of band five in Zhang. From one perspective, the quantity of methamphetamine can be viewed as being at the lower end of that band, given that 2.619 kilograms was involved, the top end of the band is uncapped, and a number of other cases have involved significantly greater quantities of methamphetamine.
[50] The Crown say that the amounts of methamphetamine recovered provide primarily a “snapshot” of the significant quantities of methamphetamine being moved through the Head Hunters’ ongoing enterprise over time. Mr Mansfield, on the other hand, claims some individual amounts of methamphetamine were counted twice. I agree that the inference drawn by the Crown is the more likely one, but the short point is you have pleaded guilty to and are to be sentenced on the basis of a summary of facts recording your possession of at least two kilograms of methamphetamine for supply, together with having supplied 619.8 grams of the drug. That is the basis on which I sentence you. While this is not, by far, the largest methamphetamine supply organisation ever uncovered in New Zealand, this was concerted and organised offending over an extended period terminated only by police intervention.
[51] Further, and more importantly, I consider it clear in terms of the “role” descriptors in Zhang that you had the greatest conceivable degree of involvement in the enterprise. You directed and organised the sale of methamphetamine on a commercial scale for substantial financial gain, used your wife’s businesses as a cover for the enterprise and used other diversionary tactics and subterfuge in order to attempt
to avoid detection. You applied these substantial gains to furthering your control and influence over your associates within the organised criminal group while seeking to minimise the risk of being detected yourself by making others, including addicted individuals such as Mr Ranui, shoulder the risk of being apprehended with drugs. The description of you as the “chief executive” of the enterprise in the summary of facts is, in my view, apt, and given the scale of the operation and the quantity of methamphetamine involved places your offending in the middle of band five in Zhang.
[52] As follows from that, I reject Mr Mansfield’s submission that your role was only “slightly higher” than that of Mr Petersen’s. Mr Petersen was significantly involved in the group’s activities, but he was always very much your loyal lieutenant. More to the point, you have pleaded guilty to being the chief executive of the group’s activities and have accepted you exercised ultimate control over the drugs you were moving. I do not consider you can minimise your role in the offending by referring to the extensive role you allowed your subordinates to take on in order, you have accepted, to minimise the risk of being caught with drugs yourself. Most importantly perhaps, you have accepted that the lion’s share of the proceeds from the group’s activities went to you. It was always your group, and your profit, and you had clearly the greatest role in the group’s illegal activities.
[53] Band five in Zhang, however, covers a vast range of offending, and it is necessary to refer to other cases to determine a starting point.
[54] Crown counsel referred me to the post-Zhang case of R v Cutler, in which Gault J adopted a starting point of 12 years’ imprisonment in respect of Mr Cutler’s role, which was “significant” as opposed to “leading”, in relation to the dealing of
10.2 kilograms of methamphetamine. The Judge accepted that Mr Cutler was an intermediary acting under instruction.22 The Crown also referred me, while accepting these are of more limited assistance following Zhang, to the pre-Zhang cases of Zhou and Bouavong.23 Mr Zhou, who was the “main linchpin” of a major methamphetamine supply chain, received a starting point of 20 years’ imprisonment in respect of the supply of 3.77 kilograms of methamphetamine. Mr Bouavong, the controlling figure
22 R v Cutler [2019] NZHC 2373 at [40]-[41].
23 R v Zhou [2009] NZCA 365; R v Bouavong [2012] NZHC 932.
and mastermind of a large-scale distribution enterprise, received a starting point of 16 years’ imprisonment in respect of the supply of 1.7 kilograms of methamphetamine and possessing a further 0.6 kilograms for supply.
[55] The Crown also referred me, finally, to the Court of Appeal’s approach to the sentence of Mr Thompson, one of the appellants in Zhang, who was the principal offender in a sophisticated and extensive methamphetamine dealing operation over a 12-month period, which involved the supply of 4.2 kilograms of methamphetamine and the possession for supply of a further 2.6 kilograms of methamphetamine. The Court considered a 16-year starting point on the supply charge, with a two year uplift for the possession for supply charge, to be within range.24
[56] Mr Mansfield referred me to these same cases. In his submission, Mr Thompson’s offending was significantly more serious than your own, given the much greater quantity of methamphetamine involved in that case. Mr Mansfield also referred me to the pre-Zhang case of Hughes, which involved multiple charges for possession for supplying methamphetamine, numerous arms charges, and other matters.25 Mr Hughes had been second in command in the drug distribution involved there, with the organisation having undertaken one supply of nine kilograms of methamphetamine. A starting point of 12 years’ imprisonment was adopted on that charge, with four years’ imprisonment on the other charges.
[57] Having regard to these cases, I consider the most similar offending to the present is that of Mr Thompson. He had a similar leading role. The amount of methamphetamine involved here is significantly less but your offending extended over a greater period and here there are the additional aggravating factors of participation in an organised criminal group as part of leading the enterprise and the precursor offence. The same points arise in comparing your culpability and role with that of Mr Cutler.
[58] For these reasons, I consider a starting point of 17 years’ imprisonment to be appropriate in respect of the methamphetamine, ephedrine, and participation in
24 Zhang, above n 7, at [265]-[272].
25 R v Hughes [2018] NZHC 1760.
organised crime offending. That is a year less than the sentence imposed in respect of Mr Thompson. It is broadly comparable to that imposed on Mr Bouavong under the pre-Zhang guidelines in respect of Mr Bouavong’s similar roles and lesser quantity of methamphetamine.
[59] This is also commensurate, allowing for the intervening change in tariff, with the sentence adopted in respect of your co-offender Mr Petersen, who was your lieutenant and had, of the others sentenced in respect of this offending, the role in the enterprise most similar to your own, and who dealt in the most similar amount of methamphetamine. Your role, of course, the degree to which you profited from the enterprise, and your commercial motivation, were clearly greater than his significant role, and that requires a higher starting point be adopted for you than Mr Petersen in respect of the offending for which you were both sentenced. I acknowledge, as Mr Mansfield emphasised in submissions, that Mr Petersen was for sentence on possessing commercial quantities of cocaine and cannabis, which you are not. The combination of the change in tariff and Mr Petersen’s additional drug offending has resulted in my adopting a starting point closer to that Katz J adopted for Mr Petersen than I would have otherwise.
[60] As indicated, I intend to uplift this starting point in respect of the firearm offending. Having regard to the decision of the Court of Appeal in R v Richardson referred to me by the Crown,26 which case contains some useful general statements regarding sentencing for firearms offences which remain applicable, I consider the starting point should be uplifted by nine months in respect of this offending. I agree with the Court of Appeal that “loaded firearms are anathema within our community”27 because of the danger they represent; particularly where, as can be presumed here, they are possessed for the purposes of coercion or self-help in the context of organised crime.
[61] The nine-month uplift is higher, I note, than the sentences imposed on your co-offenders for the same charge in respect of different weapons. However, I consider your offending to be particularly serious in that the weapon was found concealed but
26 R v Richardson CA450/02, 19 March 2003.
27 At [33].
stored insecurely, in what appeared to be a child’s bedroom, greatly aggravating the risk associated with it being left loaded. This figure is lower than that adopted in Richardson because only one weapon, not two, was involved.
[62] In arriving at this conclusion, I have noted but not been influenced by the explanation that Mr Mansfield offers for your possessing the weapon. He explains that, one night in October 2019, a masked gunman attempted to break into your home while you were confined there on bail. Mr Mansfield says that, fortunately, you managed to chase the gunman off and attempted to call the Police, but received no reply. You therefore, he says, obtained the weapon to protect yourself and your family, rather than to use it in pursuit of further criminality. The issue I take with that submission is that possession of an unlawful and loaded, and dangerously unsecured, firearm remains an anathema to our society even if possessed for the purposes of self- help. Even if you and your family were targeted by a gunman, that was ultimately a consequence of your decision to involve yourself in organised crime. Even on the version of events Mr Mansfield advances on your behalf – and I make no finding on that – your conduct in obtaining the firearm deserves further sanction. Thus the nine month uplift I have decided to impose.
[63] I also note that the uplift I have adopted is, in any event, within Mr Mansfield’s range, albeit at the top end, and is below the Crown’s proposed 12 month uplift.
[64] This produces an adjusted starting point of 17 years and nine months’ imprisonment. I will now adjust this starting point in respect of aggravating and mitigating factors personal to you.
Factors personal to the offender
Personal, whanau, and cultural circumstances as detailed in the s 27 report, coupled with remorse and insight
[65] The most important of these, undoubtedly, are the aspects of your personal circumstances, as detailed in the s 27 report, that I have already accepted impaired your moral agency in channelling you towards offending in this manner, thereby
reducing your culpability, and requiring a discount be applied at this stage of sentencing.
[66] Having already accepted that there should be a discount, the question is what the amount of that discount should be. As noted, the Crown has submitted, but I do not agree, that you should get no discount at all for these matters. Mr Mansfield submits you should receive a discount. In written submissions he referred to discounts of 15 per cent and 20 per cent. Today he refers to a discount of 20 per cent, relying almost entirely on the s 27 report and without reference to case law.
[67] The Court of Appeal in Zhang made it clear that personal mitigating circumstances relating to the offender are as applicable to serious drug offending as any other offending, and that, as is appropriate to the nature of the inquiry at this second stage, the sentencing Judge has a wide measure of discretion as to the appropriate discount.28
[68] It follows from the Court of Appeal’s comments that it is difficult to make direct comparisons to set the appropriate level of a discount given each individual’s circumstances, and the bearing of those circumstances on their culpability will be different. It calls for a factual evaluation by the sentencing Judge, applying their discretion in the individual case. But there also needs to be some consistency in approach.
[69] In R v Heta, Whata J upheld a discount of 30 per cent in respect of the material contained in Ms Heta’s s 27 report, which disclosed frankly horrific challenges that Ms Heta had had to overcome to survive.29
[70] Having regard to the discussion and cases referred to in Heta, I consider a discount of 15 per cent is appropriate in respect of the material contained in your s 27 report. That also reflects that, while your choices have been bounded by your societal circumstances and personal trauma, I consider it clear you nonetheless maintained a greater degree of moral agency or independence than have other offenders, like
28 Zhang, above n 7, at [134]-[136].
29 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [64].
Ms Heta. I am mindful, for example, that you only joined the Head Hunters when close to 30 and reasonably mature, and you quickly stepped into a king pin role in serious methamphetamine offending. It follows that your culpability has therefore been markedly less diminished, comparatively, than people like Ms Heta, and a lesser discount is appropriate in your case.
[71] In awarding this discount, I am also making a small allowance for remorse, insight, and desire to rehabilitate; your first steps towards which are demonstrated by your participation in Corrections tikanga programmes and in your letter of remorse in which you identify that you have brought shame on your family, hapū and iwi and have compromised your mana in offending. Your desire to rehabilitate also emerges from the letters written in your support and from what Mr Bowen and Mr Wano have said in Court today.
[72] I am unable to award a higher discount in respect of rehabilitative prospects or remorse. That is because I am concerned you are more upset at the distress to your whānau than to the community. More importantly, you have not yet taken concrete steps to leave the Head Hunters. So far it has mainly been talk. Leaving the Head Hunters, on the basis of Corrections’ advice and the s 27 report, would appear to be the major step you need to take to aid in your rehabilitation and to improve your mana and wairua. That will be a difficult step for you. But I think you have the qualities to do it. The sentence I impose today is intended, in part, to demonstrate why you must change your path following the example of your whanau and, hopefully, lead them instead of the Head Hunters.
[73] Allowing for the 15 per cent deduction, that produces an adjusted sentence of 15 years and one month’s imprisonment.
Criminal history
[74] I now turn to other factors personal to you. The Crown accepts that your reasonably minor criminal history should not attract an uplift in sentence. Equally, the Crown submits, this precludes you being awarded any discount for previous good character. I accept this submission, and Mr Mansfield has not suggested I should take a different view.
Civil asset forfeiture recovery
[75] Seeking to identify other possible discounts on your behalf, Mr Mansfield submits you should receive a discount of at least ten per cent to reflect the significant amount of profit you have been ordered to forfeit as the proceeds of crime, and in particular the fact that you agreed to settle the forfeiture proceedings, saving the Police and the Courts time and money. Mr Mansfield points to cases in which discounts of as much as fifty per cent have been allowed.
[76] I agree with the Crown that no discount should be allowed in respect of this matter. Section 10B of the Sentencing Act, to which Mr Mansfield referred in his submissions, and the cases on which he relies, are directed at circumstances where the sentencing court decides to seize lawfully obtained property used in the commission of a crime, which can be seen as a penalty that ought to be taken into account in sentencing. It was under this provision that Katz J ordered your co-offenders’ vehicles seized.
[77] Section 10B refers to instrument forfeiture of the sort imposed by Katz J, which is under ss 142A to 142Q of the Sentencing Act, and is distinct from asset forfeiture under the Criminal Proceeds Recovery Act 2009. The Court, on sentencing, must take into account instrument forfeiture. Section 10B(3), which refers to asset forfeiture, is not saying it can be taken into account and certainly not saying it must be.
[78] Instrument forfeiture cases like Vant Leven v R,30 to which Mr Mansfield refers, are quite distinct, as the Court of Appeal recognised in Henderson, from asset forfeiture cases like yours, in which the effect of the forfeiture orders is to deprive the defendant “of something the defendant should not have obtained in the first place.”31 That is not a penalty, and it has no relevance to sentencing, thus the “general rule”32 that civil asset forfeiture orders do not warrant a sentencing discount. While I accept the Court of Appeal has said that a discount may be appropriate in “exceptional circumstances”,33 it is unclear what those are, and in any case, the circumstances here
30 Vant Leven v R [2014] NZCA 330.
31 Henderson v R [2017] NZCA 605 at [40], approving Skinner v Commissioner of Police [2013] NZHC 2956 at [37(e)].
32 At [40].
33 At [34], referring, cautiously, to R v Brough (1994) 12 CRNZ 634 (CA) at 640.
are unexceptional. You have simply been ordered to disgorge money you obtained unlawfully by selling drugs and also items you obtained using that cash.
[79] Furthermore, to the extent the fact you co-operated in the resolution of that proceeding is relevant to sentence, that settlement was bound up with the resolution discussions in respect of these charges, and is properly addressed, if at all, in considering guilty plea discounts, which I will return to below.
Delay in the conduct of the prosecution
[80] Mr Mansfield submits that you experienced an undue delay in awaiting the resolution of this matter. He and Ms Pollett are agreed it has taken about three and a half years to arrive at today’s sentencing since the time you were first charged.
[81] Mr Mansfield says all of the undue delay is of the Crown’s making and resulted from the need to schedule an eight week trial fixture because of the Crown’s initially pursuing charge 19 (a very serious representative supply of methamphetamine charge that has now been abandoned). He says that resulted in a significant delay in obtaining a trial fixture, accounting for one year and nine months of the overall delay. He says that trial fixture was vacated following the Crown’s late disclosure of material related to that charge, causing a further delay of 15 months through to the second allocated trial fixture. Furthermore, Mr Mansfield submits, a delay resulted from the Crown being unreasonably reluctant to agree to a resolution that did not involve your pleading guilty to charge 19.
[82] Ms Pollett takes issues with this submission. While acknowledging the first trial fixture was adjourned because of issues regarding sufficiency of evidence on charge 19 and disclosure issues, she says the Crown contacted your counsel by email on 8 October 2018 and offered to engage in resolution discussions. Accordingly, on her submission, the fact the discussions that resulted in your pleading guilty did not begin until December 2019 shows about a third of the delay is not attributable to the Crown.
[83] Mr Mansfield has provided a copy of that email. I note that the Crown’s position at that time was that you could plead guilty to a representative charge of
supplying methamphetamine with the quantum to be determined at a disputed facts hearing. That did not amount to the withdrawal of charge 19 altogether and would have involved canvassing of some of the same materials as the Crown intended to rely on in respect of charge 19. It shows that the Crown was not implacably opposed to moving on this point as of October 2018, but it was a different position to the one they ultimately took.
[84] However, I do not consider it appropriate to embark on an analysis like this in this case. Whatever the factual position, this case is rather different from the cases of McKinley and Cho on which Mr Mansfield relies for the argument that a discount can be available for delay in conduct of the prosecution.34 In those cases, discounts were allowed for delays in the Crown’s conduct of the prosecution of some of the numerous defendants prosecuted following the Police’s “Operation Ark” in 2010 and 2011. This resulted, ultimately, in delays of six years and five months in prosecuting Mr Cho for his role in the offending, and five years and seven months in prosecuting Mr McKinley. The “key factor” in these delays was the prosecution’s decision to separate the defendants into different groups for different trials, which decision, while taken not unreasonably and in good faith, gave rise to considerable and foreseeable delays in trying the later groups, as legal issues arose in respect of the earlier trials.
[85] Both Mr Cho and Mr McKinley applied for a stay of prosecution, which applications were declined. But the Judge found there was a breach of their rights to be tried without undue delay, and that they were entitled to a remedy for the protracted delay in the form of a discount at sentencing.35 Mr Cho was allowed a discount of 12 months, as against a starting point of five years six months’ imprisonment and Mr McKinley a 12-month discount from a starting point of four years six months’ imprisonment.
[86] As I have said I place your case Mr Paora into a different category, such that I do not consider any discount for delay, as such, necessary. First, the delay is much shorter in absolute terms. Secondly, and more importantly, the delays here were not attributable to a foreseeable consequence of the way in which the Crown elected to
34 R v Cho [2018] NZHC 561; and R v McKinley [2018] NZHC 601.
35 McKinley at [26]-[28].
prosecute your case; or at least not in any way analogous to the decision as to the manner of trial in Cho and McKinley. It stemmed rather, first from errors the Crown seems to have made in respect of an earlier trial fixture, and then either from the Crown adopting a particular negotiating position in respect of resolution or, on the Crown’s version, from your own position on negotiations. Furthermore, these matters are all also relevant to your claim for a generous guilty plea discount despite the late timing of your plea. I consider in a case such as this that questions of delay are more appropriately taken into account, if relevant, in the context of allowance for time spent on EM bail and/or the guilty plea discount. I note Mr Mansfield relies on similar points in these contexts.
[87] For these reasons, I award no discount in respect of delay in resolving the prosecution.
Time spent on restrictive bail conditions
[88] Relatedly again, the Crown concedes you should receive some credit for the fact you spent 25.5 months on EM bail, and the majority of this subject to a 24-hour curfew to an address away from your wife and children, who live in the Bay of Plenty, and subject to extensive restrictions on whom you could meet. Having regard to the Court of Appeal’s decisions in Rangi and Chea, but also what the Crown say was your imperfect compliance with your conditions of bail, the Crown submits a discount of no more than eight months is appropriate.
[89] On your behalf, Mr Mansfield submits the appropriate discount is rather more, at eighteen months. He refers to the decision in Hohipa in which a reduction of 12 months was applied to reflect 14 months spent on 24-hour curfew while on EM bail, but accepts that authority is “out of step” with other cases and relates to exceptional circumstances.
[90] I agree Hohipa was wholly exceptional. In Rangi, the Court of Appeal held to be appropriate a composite discount of seven months from a starting point of three years eight months’ imprisonment (so, about 20 per cent) awarded in respect of guilty
pleas and 18 months spent on EM bail without incident.36 In Chea, the Court of Appeal allowed a sentence appeal where no discount had been given for 13 months without breach on EM bail, and allowed a discount of four months’ imprisonment from a starting point of 17 years’ imprisonment.37
[91] The ‘purpose’ of allowing a discount for time spent on restrictive bail conditions is to recognise that, albeit to a lesser extent than a prisoner remanded in custody, a person on bail has already suffered some imposition on their liberty and should be allowed some credit for that. The Court of Appeal has emphasised there is no arithmetical formula to be applied in arriving at the appropriate discount. The extent to which credit in this respect is appropriate is within the sentencing judge’s discretion.38 However, as Rangi and Chea make clear, the discounts awarded are typically modest.
[92] It is necessary, as the Crown concedes, that you be allowed some credit for your time spent on restrictive bail conditions, which represented a sustained loss of liberty on your part. Equally, I agree with the Crown that your apparent contempt for that restriction, as demonstrated by your being found with a pistol, reduces the appropriate discount. And the letters from your supporters also indicate that the loss of liberty in your case was not too great. I note also though that the period of time on EM bail was materially longer than in the case, for example, of Rangi or Chea which may reflect, to some extent, delays in the prosecution. Without that, I would have agreed with the Crown that in all the circumstances an absolute maximum of eight months’ credit would be available. But, taking account of the total time involved, I fix the appropriate discount for time spent on restrictive bail conditions at 10 months.
[93]This produces a sentence of 14 years and three months’ imprisonment.
36 Rangi v R [2014] NZCA 524 at [10].
37 Chea v R [2016] NZCA 207 at [103(a)] and [110].
38 Rangi v R, above n 36, at [10], citing R v Faisandier CA185/00, 12 October 2000 at [28]; R v Tamou [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; Keown v R [2010] NZCA 492 at [12].
Guilty plea discount
[94] The remaining consideration is what discount to award you in respect of your guilty pleas. These were entered on 31 January 2020, less than two weeks prior to the start of your five week jury trial, and, as follows from the above, after you had been on bail for two years. These followed resolution discussions that began, as noted, in December 2019.
[95] The Crown submits that your guilty pleas were entered at a very late stage, after much of the work that the Crown and Police had to do to prepare for trial was already done, very much reducing the savings to the community that might have been realised if an earlier guilty plea was entered.39 Additionally, Ms Pollett submits, your guilty pleas were entered in the face of an overwhelming Crown case which, as demonstrated by the agreed summary of facts, featured extensive evidence in which you incriminated yourself in intercepted communications and in your dealings with undercover Police officers.40
[96] On your behalf, Mr Mansfield submits that you should receive a discount of at least 15 per cent, and arguably 20 per cent, in respect of guilty pleas, on the basis that you were only able to enter into meaningful resolution discussions when the Crown relented, in Mr Mansfield’s submission, in respect of charge 19. You pleaded almost immediately, in practical terms, after you were finally able to enter into those discussions, which resulted in resolution of the charges against you, and also resolution of the civil asset forfeiture proceedings. He notes that Mr Petersen received a guilty plea discount of 25 per cent from Katz J despite pleading guilty only very shortly before the October 2018 trial fixture was due to begin.
[97] I agree with Ms Pollett that the very late timing of your pleas has significantly reduced the benefits to the operation of the criminal justice system flowing from those pleas, compared to if your pleas had been entered earlier. As the sheer volume of material I have had to outline in sentencing you today reflects, the case against you involved an immense investigatory and prosecutorial effort, and much work went into
39 I understand Ms Pollett to be alluding here to Hessell v R, above n 14, at [45] and [47].
40 I understand counsel to be alluding here to Hessell, above n 14, at [73]-[77].
the Crown’s case for trial. I also agree that the Crown case against you was overwhelming, and in those circumstances your guilty plea is of lesser significance. Furthermore, having reviewed Katz J’s sentencing notes in respect of Mr Petersen, it is clear his guilty plea came shortly before the October 2018 trial fixture only because he did not know that much of the Crown’s late disclosure of material before that trial related to you, and not to him, and for that reason she accepted his plea was made at an early stage. You are in a rather different position.
[98] However, taking into account that your plea is in part linked to the abandonment of charge 19, which happened at the end of last year, and that you also withdrew your opposition to the forfeiture proceedings, although placing less weight on that factor, I have decided to allow a discount of 15 per cent in respect of guilty pleas.
[99]That produces an end sentence of 12 years and one month’s imprisonment.
Minimum Period of Imprisonment
[100] The Crown submits that it is necessary that I order you spend at least 50 per cent of your end sentence in prison, as opposed to your being eligible, as would otherwise be the case, for parole after serving one-third of your sentence.41 In fact, the Crown submits you should spend no less than eight years in prison.
[101] The Crown submits this is necessary because your potentially being released after serving only one-third of your sentence would be insufficient for the purposes of denouncing your conduct, deterring you and others in the future, protecting the community, and holding you accountable for the harm you have done.42 Referring to the Court of Appeal’s comments in Zhang and in Brown,43 Ms Pollett submits your offending is so serious, given the potential harm it represents, that allowing you to be released after only one-third of your sentence would mean your sentence would be an insufficient response in the eyes of the community.
41 Sentencing Act 2002, s 86(2); Parole Act 2002, s 84(1).
42 Referring to all four of the purposes of sentencing listed in s 86(2).
43 R v Brown [2013] NZCA 623 at [34]-[36]; Zhang, above n 7, at[10(n)] and [10(o)].
[102] In reply, Mr Mansfield submits on your behalf that a minimum period of imprisonment of the length for which the Crown contends (that is eight years) is reserved for very significant commercial drug cases, and particularly cases of importation. He refers to one case in which 501 kilograms of methamphetamine was imported. For this reason, I understand him to be submitting, considerations of denunciation, deterrence, and accountability do not require a very lengthy minimum period of imprisonment to be imposed. He further submits your own personal circumstances, as I have already discussed at length, and your prospects of rehabilitation, also mean that a minimum period of imprisonment is not needed for purposes of community protection.
[103] In Zhang, the Court of Appeal said that a lengthy minimum period of imprisonment will be required in cases of significant commercial dealing where considerations of deterrence, denunciation and accountability are at the forefront. I am satisfied that is the case here. You led a significant commercial drug-dealing enterprise as part of an organised criminal group. As I have said before, in that respect, you stand in a more similar position in terms of role to Mr Thompson, who was also a leading offender. The Court of Appeal upheld a 50 per cent minimum period of imprisonment in his case.44
[104] You were motivated to offend by the profits on offer and achieved significant profits. You did so, I have accepted at least in part, for reasons related to your personal background. Your actions are nonetheless gravely culpable given that methamphetamine is a terrible scourge on our community and a source of enormous harm to the individual victims of addiction. Unlike other cases, those victims are not present in this room today, but we were reminded of them by the comments made, quite appropriately, by Mr Wano.
[105] I also consider your actions to be significantly aggravated by your exploitation of other individuals’ addiction.
[106] For these reasons, I am satisfied that imposing a minimum period of imprisonment of 50 per cent is necessary to satisfy the purposes of denouncing your
44 Zhang, above n 7, at [280].
conduct, and to hold you to account for the harm done to the community. It is also necessary to show to others that severe penalties will be imposed on those who seek to profit from this terrible drug.
[107] I further consider that a minimum period of 50 per cent (rounded to six years) is necessary to satisfy the purpose of deterring you personally from committing similar offending in future. I am concerned that you appear more remorseful for the impact of your offending on your whānau, as I said earlier, in terms of your being in prison, than its impact on the wider community. A more severe sentence is necessary to deter you from harming the community in the same way again. In saying this, I acknowledge you have expressed an instinct to rehabilitate and leave the gang life behind, yet you have not taken any concrete steps in that direction and that will be the key step for your rehabilitation. I take a much lower view of your rehabilitative prospects than Katz J took of your co-offenders’ chances of rehabilitation. It is that distinction, together with your having been the leading offender in your group, that has led me to impose a minimum period of imprisonment on you, while Katz J did not impose one on your co-offenders.
Sentence
[108]Mr Paora, please stand. I sentence you as follows:
(a)on each of the charges of supplying methamphetamine and possessing methamphetamine for supply, you are sentenced to 12 years and one month’s imprisonment;
(b)on the charge of conspiring to deal in ephedrine, you are sentenced to five years’ imprisonment;
(c)on the charge of participating in an organised criminal group, you are sentenced to three years and eight months’ imprisonment; and
(d)on the charge of unlawfully possessing a firearm, you are sentenced to nine month’s imprisonment.
[109] All of these sentences are to be served concurrently, so that your end sentence is 12 years and one month’s imprisonment. Pursuant to s 86(2) of the Sentencing Act, I impose a minimum period of imprisonment of six years.
[110] As requested by the Crown pursuant to s 69 of the Arms Act 1983, I order the destruction of the pistol and all ammunition found by the Police in your home on 11 October 2019.
[111] Finally, by consent, I dismiss charges 18 and 19 against you pursuant to s 147 of the Criminal Procedure Act 2011, the Crown having offered no evidence in respect of those charges.
[112]You may stand down, Mr Paora.
Hinton J
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