R v Paulo
[2020] NZHC 1797
•23 July 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-085-1094
[2020] NZHC 1797
THE QUEEN v
JEVAN PAULO
Hearing: 23 July 2020 Appearances:
T Bain for the Crown
E A Hall for the Defendant
Judgment:
23 July 2020
SENTENCING OF COOKE J
[1] Mr Paulo you have pleaded guilty to one representative charge of supply of methamphetamine as a party following a sentencing indication.1
[2] In imposing the sentence upon you I will first outline the relevant facts, I will then deal with the starting point for the offence that you have committed, and I will then address whether there should be deductions from that starting point because of circumstances personal to you. Finally I will consider the question of home detention and community detention. Much of the first part of the sentencing will repeat what I said in the sentencing indication.
1 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a), and Crimes Act 1961, s 66(1), maximum penalty life imprisonment.
R v PAULO [2020] NZHC 1797 [23 July 2020]
Factual basis for sentencing
[3] The charge results from two police operations, code-named “Operation Superdry” and “Operation Maddale” targeting the commercial supply of methamphetamine in the Auckland and Wellington regions. Police identified that Mr Kenny McMillan was involved in distributing commercial amounts of methamphetamine in Wellington. Mr McMillan is described in the summary of facts as a career criminal, with an extensive drug dealing criminal history in New Zealand and Australia.
[4] You were an associate of Mr McMillan, and worked for his company. There are three aspects of the offending set out in the summary of facts. The first concerns a series of covert exchanges of quantities of methamphetamine for cash at a private carpark in central Wellington. The second, to which the representative charge relates, involves approximately two kilograms of methamphetamine recovered from a car registered in your name. The third arises from drug materials seized at your address pursuant to a search warrant.
First aspect: Carpark exchanges
[5] The police investigation established that Mr McMillan used a private carpark building in the Wellington CBD to complete multiple drug transactions on a regular basis. Surveillance devices allowed police to observe and monitor the transactions. The transactions involved Mr McMillan’s associates leaving cash in concealed areas which Mr McMillan himself would collect and replace with ounce packages of methamphetamine. On one such occasion on 18 April 2019 police observed an associate of Mr McMillan hiding a package on top of an air conditioning unit. The package contained bundles of $50 and $20 notes. The cash was weighed at 568 grams and estimated to be in the tens of thousands. Later that day you and Mr McMillan entered the carpark. Mr McMillan retrieved the package, showed it to you before you drove off together.
Second aspect: Nissan Tiida seizure
[6] The second aspect involves the particular conduct to which the charge relates. A related police investigation revealed an organised crime group in Auckland involved in the distribution of methamphetamine. The principle offender, Mr Andre James, directed the group to distribute methamphetamine from premises in New Lynn, Auckland to be delivered to Mr McMillan and another associate in Christchurch. Mr McMillan’s associates were regularly travelling from Wellington to Auckland to uplift large quantities of methamphetamine for cash. A Nissan Tiida registered in your name was used on one such occasion to transport methamphetamine from Auckland to Wellington.
[7] On 10 March 2019 three associates of Mr McMillan, Messrs Minns, Hayman and Philip drove from Wellington to Auckland in the Nissan Tiida. At some point between 11 and 12 March the associates picked up a quantity of methamphetamine from an address in New Lynn. Just after 12 am on 12 March Mr Minns left Auckland in the Nissan. At 12.45 am he was stopped by Police for driving at excessive speed. He was suspended from driving but given a grace period to return the vehicle to Palmerston North. At 9 am on 13 March Mr Minns was again stopped by police in Taupō. Given the expiry of the grace period the officers advised they were going to impound the car and arrested Mr Minns but he was granted bail later that day.
[8] After communications between Mr McMillan, Mr James and various associates throughout the afternoon of 13 March Mr McMillan contacted you. Mr McMillan instructed you to collect the vehicle from impoundment in Taupō and return it to Wellington. You agreed to assist Mr McMillan to have the vehicle released so that it could be used for Mr McMillan’s drug supply operation. The summary of facts records that you knew that Mr McMillan was a supplier and that the Tiida was in some way important to Mr McMillan for the supply of methamphetamine, but was not privy to the fact that methamphetamine had been concealed within the vehicle.
[9] Later that day you made contact with Mr McMillan’s lawyer and arranged to uplift a document from him. On 14 March you presented at the Taupō Police station and lodged an appeal against the impoundment of the Nissan registered in your name,
accompanied by an affidavit endorsed by Mr McMillan’s lawyer in Wellington. The affidavit stated that you were the registered owner and intended to sell it to Mr Hayman. You said you had provided the car to Mr Hayman to allow it to be checked over before $3,000 was going to be transferred as payment, but Mr Hayman had lent the vehicle to Mr Minns without your knowledge or consent.
[10] On Friday 15 March police executed a search warrant for the Nissan. It was found to have a purpose built concealment mechanism inside the passenger’s air bag compartment. Hidden inside the compartment were two clear plastic vacuum sealed bags containing 2.056 kilograms of methamphetamine. Forensic examination revealed a purity of approximately 70 per cent.
[11] Later that day you again presented at the Taupō police station enquiring about an early release of the compounded car but left shortly thereafter.
[12] On Monday 18 March you spoke with Mr McMillan’s lawyer in the early hours of the morning on the phone regarding the appeal notice and accompanying affidavit. That afternoon you met with a police officer in Taupō. During the conversation you continued to reinforce that you had lent your vehicle to Mr Hayman who had provided it to Mr Minns without your knowledge. You explained that you worked for a company and needed the vehicle to get to work. When you were informed about the quantity of methamphetamine you denied knowledge.
[13] The car was released to you on 20 March. You drove to a motel carpark and took photographs of the car, including the front passenger area and confirmed with Mr McMillan’s lawyer that the car had been returned to you. Later that evening you drove the car back to Wellington.
Third aspect: Drug paraphernalia
[14] At the termination of the police investigation in early May 2019, search warrants were executed at several properties related to the drug operation.
[15] On 9 May police executed a search warrant at your address and recovered the following drug paraphernalia:
(a)Drug utensils concealed in drainage piping and a plastic case with zip lock plastic bags. Inside the zip lock bags were five tabs of LSD.
(b)Two small bottles of clear liquid, later confirmed to be GBL (or “liquid ecstasy”) with a combined volume of 44 millilitres.
(c)9 grams of cannabis head material.
(d)One gram of methamphetamine on a set of digital scales.
[16] I accept Ms Hall’s point that the first and third aspects of the offending I have described are not the focus of the sentencing, and that your involvement in the Nissan Tiida events is the basis for the charge. The third aspect falls outside the period covered by the representative charge. The other two occasions are nevertheless relevant, and are in the summary of facts to which the guilty plea relates. In particular because of those matters, and the representative nature of the charge, I do not accept that your involvement with Mr McMillan was limited to a one-off event. I should say, however, even if I had accepted Ms Hall’s submission, it would not have changed my view on the appropriate starting point which I address next.
Starting point
[17] The most difficult issue for indicating the appropriate sentence in this case is the determination of the starting point. The Court Appeal’s decision in Zhang v R is the leading sentencing guideline judgment for offending involving the supply of methamphetamine.2 The bands set out in Zhang are formulated by reference to the quantity of drugs involved. On that basis a high starting point would be involved. You would be guilty as a party under s 66 of the Crimes Act for drug offending involving more than two kilograms of methamphetamine concealed in the vehicle registered to your name. Under the bands that would involve a starting point of 10 years or more.
[18] The Crown does not seek such a starting point because of your lower level of involvement. It is accepted that you had no knowledge of the quantity of drugs stored
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
in the vehicle. It is important that the bands in Zhang, and the emphasis on quantities in those bands, are not intended to be rigid. As the Court said:3
[104] Quantity is valuable in assessing culpability, as this Court observed in Fatu, but it alone cannot determine culpability. The Crown accepts that that is so. Quantity is highly relevant to culpability, because it is an indicator of harm or potential harm to the community. It may also be indicative of commerciality, which is deserving of greater denunciation. But as the Crown accepts, there are other considerations that flow into the assessment of culpability on an objective basis, in setting a starting point under the first stage of sentencing under the Taueki model. The variations in sentence starting point for the same quantity are explicable on the basis of differing degrees of culpability, and that is primarily justifiable on the basis of differences in role played by the offender. As the Supreme Court emphasised in Hessell v R, sentencing must involve a “full evaluation of the circumstances to achieve justice in the individual case”.
[19] The Court also observed that such a full evaluation of the circumstances of the case is necessary to achieve justice, and that flexibility is still important in setting sentences.4
[20] I am satisfied that you had a more limited role in these activities. It is clear that Mr McMillan played the leading role, and he also had other persons who undertook the significant roles in his drug dealing activities in accordance with the general role guidelines set out by the Court of Appeal in Zhang.5 In terms of the participants you accordingly had what can be described as a lesser role. In particular:
(a)You did not direct any other person in the activities, but rather took direction.
(b)It is not suggested that you had any knowledge in terms of the quantities or scale of the activities. You were a functionary. This is illustrated by the fact that the vehicle was registered in your name, but was then driven by others in the drug dealing operation. You were only later called upon when the vehicle was impounded because as the registered owner you could be utilised to retrieve it.
3 At [104] (footnotes omitted).
4 Zhang v R, above n 2, at [120].
5 At [126].
(c)You obviously obtained benefits from being involved, and were an employee of Mr McMillan’s business. Those benefits seem to have largely facilitated you continuing with your personal drug use. There is no indication that you were making significant financial returns from the activity, although the summary of facts records that you were later in possession of a set of digital scales which in my view is consistent with selling drugs.
[21] As the Court of Appeal said the assessment of role not only results in an offender moving within a band, but may also involve moving between bands.6 In the present case determining the starting point by reference to the quantity of methamphetamine found in the vehicle would be disproportionate, and suggests that you had a role well beyond the one that you actually had. Your role in that particular event seems to be unusual, as were the circumstances generally. You were involved in this more significant activity only because you were the registered owner. It is apparent, however, that you knew that the vehicle was involved in drug offending, and I also infer that you knew that there were drugs in the vehicle which you were seeking to retrieve by dishonest means.
[22] A further indication that might be relevant to quantity is your role in the Gilmour Terrace carpark on 18 April when you were present with Mr McMillan when a bundle of money involving tens of thousands of dollars was retrieved. That may be indicative of smaller quantities of methamphetamine. An amount of $10,000 might equate to something like 30 grams of methamphetamine. That quantity seems to me to be much more proportionate to your normal role, and could be considered as a kind of proxy for quantity. In Zhang the Court of Appeal indicated that using money to approximate quantity is problematic.7 But it needs to be remembered that quantity is itself only a proxy for culpability and I only use it as a very approximate guide to the level of involvement and your culpability.
[23] Ms Hall on your behalf continues her submission that the starting point should only be two years imprisonment. But I accept the Crown’s point that s 116 of the
6 At [118].
7 Zhang v R, above n 2, at [18](d).
Criminal Procedure Act 2011 obliges me to continue with the starting point I assessed in the sentencing indication, and in any event there has been nothing put forward that would change my view about the appropriateness of that starting point. The first and third aspects of your conduct I have described are plainly of lesser importance, but I do not accept that the offending involved only personal drug use. For example the first incident involves you travelling with Mr McMillan to the car park to recover significant proceeds of the sale of drugs as part of a drug supply operation. You were also in possession of digital scales for measuring quantities. And as I say your involvement with him was not limited to a one-off event.
[24] I accordingly continue to see this case as falling within band 2 of Zhang. Given that more limited role I also see you falling towards the bottom end of that band. The Crown have suggested a starting point of four years’ imprisonment, and Ms Hall has suggested a starting point of two years’ imprisonment. A starting point at the very bottom of band 2 does not seem to me to be appropriate. You had a limited role, but you must have been aware that this was a significant drug dealing operation. You were a functionary with your own drug addiction problems, but still played a role of significance. The vehicle was registered in your name to further the activities. You were called upon when the vehicle, and the drugs within it, needed to be retrieved. But for the reasons already outlined it still remains towards the bottom end of band 2. In my view three years’ imprisonment is the appropriate starting point.
Adjustments to the starting point
[25] At the sentencing indication I had the benefit of the report from Andrew Hopgood of Red Door Recovery. I now have a drug and alcohol report from Rosemary Casey. I also have had the advantage of significant character references from a number of people within the community who have had dealings with you.
[26] I accept that there should be discounts from the starting point of the sentence for a range of reasons associated with this material. Among the factors to be considered for discount purposes are discounts for addiction and the potential for rehabilitation, discounts for good character and remorse, and a discount for your guilty plea.
[27] Since giving the sentencing indication the Court of Appeal have said in Moses v R that the guilty plea discount is applied in a two-step basis against the starting point along with the other discounts to be applied.8
[28] In assessing the discounts I bear in mind that each should be considered discretely in terms of what they are directed to. But I also accept the Crown’s point that there needs to be care to ensure that the ultimate end sentence remains appropriate.
Addiction and rehabilitation
[29] Zhang provides helpful guidance for addiction discounts.9 The Court held that addiction warrants a rehabilitative approach to sentencing and may warrant a discount of up to 30 per cent, depending on the extent to which it mitigates moral culpability for the offending.10 Generally addiction should only be relevant where it is causative of the offending. Any discount for addiction should be based on persuasive evidence, as opposed to mere self-reporting, and the onus of proof lies on the defendant to establish the extent and effect of addiction.
[30] The reports I have been provided, and particularly the report from Rosemary Casey confirms that you have a significant addiction problem. Ms Casey is a qualified drug and alcohol practitioner, and reports that you meet the requirements for diagnosis or severe substance use disorder for methamphetamine and GBL. You first began using methamphetamine when you were 21 when you were working as a bouncer in a night club. You have since struggled with drug use since that time, with periods of attempting to address it, but you met Mr McMillan through that use, ultimately leading to your involvement with his operation. You have attempted to address your addiction in a number of ways, but even in recent times have used drugs again. You completed a Red Door Recovery treatment programme approximately 13 months ago, and you now regularly receive support by way of counselling. One of the factors emerging from the material I have been provided is the sense in which you are a people pleaser. Indeed you have described that of yourself. I note Ms Casey’s view that you are still vulnerable, that you will need to manage your stress and anxiety, and that you need to
8 Moses v R [2020] NZCA 296.
9 At [149]-[150].
10 At [149]-[150].
address your people pleasing traits. The sentence will need to reflect the needs of rehabilitation in particular.
[31] It seems to me that the causative link between your addiction and the offending are confirmed by the reports provided, and inferred from your diagnosed addiction, the drugs and associated utensils found at your address at the time of the offending and your minor role in the overall supply operation. But although there is clearly a connection your addiction did not have an overwhelming influence as it can in other cases. It only partly explains, or mitigates your culpability.
[32] In light of those factors I accept that a discount of 15 per cent is justified to recognise the impact of your addiction and its effects on culpability, and that an additional five per cent is appropriate to reflect your attempts at rehabilitation. That amounts to a total discount for these factors of 20 per cent.
Good character and remorse
[33] You are 38 years old and have no previous convictions. You are currently on bail at your home address together with your partner of six years. Ms Hall submits a discount of five per cent is appropriate to recognise your previous good character, remorse and insight into your offending. The Crown submits any credit the Court might extend for previous good character should be limited to recognise you were discharged without conviction in March 2016 for charges of possession of methamphetamine.
[34] Discounts for good character recognise a fall from grace as punishment in itself and to recognise the greater potential for rehabilitation, as community involvement and good character bears witness to a reduced possibility of re-offending.11
[35] Section 9(2)(g) of the Sentencing Act recognises the relevance of character. You have provided a number of references attesting to your previous good character. Your references describe your positive friendly nature and that you have made a conscious effort to help yourself with your addiction issues. The managing director
11 Davidson v R [2011] NZCA 356 at [16], citing R v Findlay [2007] NZCA 553 at [91].
of Adventure Waikato Ltd reports you have done volunteer work for the club in the past and speaks of your interests in dance, music and fitness.
[36] You have secured employment for approximately 30 hours a week selling radio advertising, working from home. You employer explains you have previously worked for his company and is aware of the nature of your convictions and your ongoing drug addiction.
[37] I accept that a total discount of five per cent for your previous good character, pro-social attitude, and your expression of remorse is appropriate. I do not include any additional discount for remorse. I give the discount notwithstanding your previous discharge without conviction. It recognises that this is a watershed moment in your life. This is an occasion, but the last occasion, where the Court will be able to recognise your previous character, and accept your expressions of genuine remorse, and your desire the change. Some discount is appropriate in these circumstances
Guilty plea discount
[38] The Crown suggests a 20 per cent rather than 25 per cent discount for the guilty plea because a year had gone by before the guilty plea has been entered. I accept, however, that the amendment to the charge on a representative basis with the acceptance that you did not know about the quantity of the methamphetamine in the vehicle have been very important to your guilty plea. Much depended on the knowledge of the quantity of the methamphetamine in the vehicle. In those special circumstances I accept a 25 per cent discount for guilty plea is appropriate.
[39] The discounts from the three year starting point that I have addressed total 50 per cent, which would reduce any term of imprisonment to 18 months.
Presumption of imprisonment
[40] There is a presumption of imprisonment for offending relating to the supply of methamphetamine.12 This section overrides the general principles to be found in the
12 Misuse of Drugs Act 1975, s 6(4).
Sentencing Act.13 In Zhang the Court of Appeal observed that the presumption could nevertheless be displaced and a sentence of home detention imposed. The Court said:
[55] In (it has been said) relatively exceptional circumstances, the presumption for imprisonment may be displaced.14 Youth, for instance, is a material consideration.15 Similarly, realistic prospects of rehabilitation may displace the presumption.16 There is a significant body of cases in relation to the approach to be taken to the imposition of home detention in cases of Class A drug offending, given the existence of the presumption of imprisonment. In R v Hill this Court noted that sentences of home detention have usually been imposed in cases where the offender has accepted responsibility for the offending by entering a guilty plea and the sentencing judge has been persuaded that the offender’s real prospects of rehabilitation were sufficient to justify a sentence of home detention.17
[41] Ms Hall suggests a sentence of community detention rather than home detention should be imposed. In my view, however, community detention would only be appropriate if there was some overriding need associated with your rehabilitation that would make home detention inappropriate. Your current employer indicates that he is prepared to employ you while you were subject to home detention, and speaks highly of your ability. The fact that you can continue with your employment based from home is very positive, and is consistent with home detention being an effective sentence, and the least restrictive outcome that is appropriate. In addition the reports advise that you remain vulnerable, including to the influence of others, and it seems to me that it is desirable that you be firmly anchored at your home, and that you access the rehabilitative programmes from there. For that reason I conclude that home detention is the sentence that secures the Sentencing Act purposes and principles.
[42] The advice from the Department of Corrections has assessed your present address as appropriate for home detention, and that your partner has given her consent to you serving that sentence at that address that you share with her. I note that she has also completed the Red Door programme, and is committed to remain drug free. You and her will need to support each other if you are truly to put this passage of your life behind you.
13 R v Arthur [2005] 3 NZLR 739 (CA) at [20].
14 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [43]; and R v Honan [2015] NZCA 94 at [29].
15 Misuse of Drugs Act, s 6(4), as recognised in Morton v R CA273/92, 23 October 1992.
16 R v Hill, above n 14, at [39].
17 At [30].
[43] In terms of the period of home detention I begin with the calculation of 18 months as an appropriate term of imprisonment. I then bear in mind that home detention may be said to be easier than serving a term of imprisonment. In terms of the Sentencing Act principles I am most concerned to impose a sentence that maximises the potential for rehabilitation, whilst recognising there is a need to denounce and deter offending of this kind. In the circumstances it seems to me that a period of nine months home detention is appropriate.
[44] Mr Paulo will you please stand. On the charge of supply of methamphetamine I impose a sentence of nine months’ home detention at your proposed address. In addition to the standard conditions, including electronic monitoring, and for the avoidance of doubt the following special conditions will apply under s 80D:
(a)That you undertake drug and alcohol counselling and/or programmes as directed by your Probation Officer.
(b)That you undertake any other counselling or programmes that your Probation Officer directs.
(c)That you not possess, use or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional.
[45]Please stand down.
Cooke J
Solicitors:
Crown Solicitor, Wellington
E Hall, Pipitea Chambers, Wellington
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