R v Paul
[2021] NZHC 1627
•2 July 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-3685
[2021] NZHC 1627
THE QUEEN v
HEEMI HAMUERA PAUL
Hearing: 2 July 2021 Appearances:
K Whyte for Crown
D Niven for Defendant
Judgment:
2 July 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Hamilton Legal, Hamilton
R v PAUL [2021] NZHC 1627 [2 July 2021]
[1] Mr Paul, you appear for sentence today having pleaded guilty to two representative charges of manufacturing methamphetamine and one charge of offering to supply methamphetamine. The maximum sentence for all charges is life imprisonment.
[2] The Crown has offered no evidence on the other two charges that you face,1 and I now discharge you on those charges under s 147 of the Criminal Procedure Act 2011.
The charges
[3] The charges were laid following the termination of a police operation known as Operation Kingsville. This targeted the suspected manufacture and distribution of methamphetamine in the Waikato region between 2017 and 2020.
[4] The summary of facts on which you are to be sentenced records that you were present during the manufacture of methamphetamine on at least two occasions at two different addresses. You were involved in the offending under the direct supervision of Mr Ray Tyler-Waugh, one of the senior figures in a network exposed by the police investigation. On one occasion you acted as the assistant to another co-defendant, Mr Peter Henderson. He directed you to perform various tasks during the manufacturing process. He also instructed you to clean up during and after that process.
[5] The police are unable to identify how much methamphetamine was produced on the occasions when you were present. The Crown accepts, however, that you played a subsidiary role in the manufacturing process. You were there to do the bidding of those responsible for overseeing the manufacture on each occasion. You performed what might be described as menial tasks and there is no suggestion you have the requisite knowledge to enable you to manufacture methamphetamine yourself. You were well down the hierarchy of persons in the network.
1 Charges 34 and 46.
[6] The charge of offering to supply methamphetamine relates to a single occasion and no quantity has been able to be identified.
Starting point
[7] Counsel agree that the starting point to be selected for your offending falls within Band 2 of Zhang v R.2 In that case the Court of Appeal identified starting points for sentences involving Class A drug-related offending and methamphetamine in particular. Band 2 relates to the manufacture or supply of less than 250 grams of methamphetamine and calls for a starting point of between two and nine years imprisonment.
[8] Mr Niven argues for a starting point of three years imprisonment given the very limited nature of your role. Mr Whyte, for the Crown, suggests a starting point of three years six months is appropriate.
[9] I consider that a starting point at the bottom of the range suggested by both counsel is appropriate. The very limited role that you played in this particular organisation means that a starting point of no greater than three years imprisonment is justified.
Aggravating factors
[10] You have a lengthy criminal history and have six previous convictions relating to drug offending. The most serious of these resulted in a sentence of two years two months imprisonment in 2010. Furthermore, at the time of the present offending you were subject to bail conditions on a charge of being in possession of ecstasy and being in possession of methamphetamine utensils. I consider an uplift of three months is appropriate to reflect these factors. This results in a sentence of three years three months, or 39 months imprisonment, before taking into account mitigating factors.
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Mitigating factors
[11] The Crown accepts that you are entitled to a discount of around 20 per cent to reflect your guilty pleas. This is in line with the discount given to other persons who entered guilty pleas at or around the same time as you. This results in a reduction of eight months.
[12] You spent approximately five months in custody before being granted EM bail. Thereafter you were on EM bail at your mother’s address between 21 December 2020 and 4 February 2021. For the last five months you have been on EM bail whilst undertaking a residential drug rehabilitation programme at the Odyssey House Rehabilitative Centre. All of this has occurred without incident.
[13] I consider the rehabilitative efforts you have undertaken justify a significant discount. These merge with the fact that you have abided by your EM bail conditions since 4 February 2021. I propose to allow a discount of seven months, or just over 15 per cent, to reflect these two factors. This results in an overall discount of 15 months and reduces your sentence to one of two years imprisonment.
[14] The pre-sentence report makes it clear that you have made good progress whilst in Odyssey House and your rehabilitation from your longstanding addiction to drugs is well under way. As you are well aware, however, there is still a very long way to go and there will be many pitfalls and challenges ahead. Given your rehabilitative efforts to date, however, it is plainly appropriate that you remain on your current pathway for the next few months. It would serve no purpose whatsoever sending you to prison at this point. I am therefore satisfied your sentence should be converted to one of home detention.
[15] Ordinarily, a sentence of 24 months imprisonment would convert to a sentence of 12 months home detention. In your case, however, you spent five months in custody before being granted EM bail and this is equivalent to a sentence of ten months imprisonment. This needs to be taken into account having regard to the fact that you are to receive a sentence of home detention. Deducting 10 months from the end sentence of 24 months imprisonment leaves a sentence of fourteen months
imprisonment. This would ordinarily convert to a sentence of around seven months home detention.
[16] Your counsel has provided me with information from from Odyssey House confirming you are scheduled to graduate from your current programme in four to five months. Once you graduate from the programme you will need to find your own accommodation. I propose to sentence you to six months home detention to be served at Odyssey House. The reduction of your sentence from seven months to six months should be an incentive for you to continue your rehabilitative efforts so you are released into the community in six months time. If you graduate from the programme before the sentence of home detention has been completed, you will need to apply for leave to serve the remainder of your sentence at another address. As I understand the position your mother’s address remains available so that should not present an issue for you.
[17] The reduction of the sentence from seven months to six months also reflects the fact that you have finally taken concrete steps to address the addiction issues that have dominated your life and driven your offending for so long.
Sentence
[18] On each of the charges you are sentenced to six months home detention. Those sentences are to be served concurrently.
[19] You are to travel from Court directly back to the Odyssey House Residential Centre where you will serve the electronically monitored sentence of six months home detention. The conditions of that sentence are those set out in the pre-sentence report dated 30 June2021.
Addendum
[20] Following the hearing the Registrar advised me that one of Mr Paul’s co- defendants, Mr Simpson, is currently residing at Odyssey House. The conditions contained in the pre-sentence report include a prohibition on Mr Paul having direct or indirect contact with any of his co-defendants. I do not consider that condition is still
required given the fact that he has now entered guilty pleas and been sentenced. I therefore do not require it to be a condition of his sentence of home detention.
Lang J