R v Phillips

[2018] NZHC 2119

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2017-091-000902

[2018] NZHC 2119

THE QUEEN

v

JONELLE RACHEL PHILLIPS

Counsel:

E M Light for Crown

M N Pecotic for Defendant

Sentence:

17 August 2018

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]Ms Phillips, you appear for sentencing on the following charges:

(1)two charges of supplying methamphetamine;1

(2)one representative charge of supplying methamphetamine;2

(3)one representative charge of supplying cannabis;3

(4)one charge of possession of methamphetamine for supply;4

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a) and Crimes Act 1961, s 66(1); maximum penalty life imprisonment.

2      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a); maximum penalty life imprisonment.

3      Section 6(1)(e) and (2)(c); maximum penalty eight years’ imprisonment.

4      Section 6(1)(f) and (2)(a); maximum penalty life imprisonment.

R v PHILLIPS [2018] NZHC 2119 [17 August 2018]

(5)one charge of possession of the Class B controlled drug NBOMe;5 and

(6)one charge for possession of cannabis for supply.6

[2]This morning I will:

(1)set out your offending;

(2)outline the appropriate starting point for that offending;

(3)explain the adjustments that I will make to that starting point; and

(4)give you your final sentence.

Summary of offending

[3]        The charges result from a police operation code-named “Operation Walnut” which commenced in November 2016. The investigation targeted the commercial supply of methamphetamine in the Wellington region.

[4]        A surveillance device warrant allowed police to intercept private communications and carry out visual surveillance of two principal targets, Mr Blance and Mr Berkland. They were purchasing kilogram quantities of methamphetamine from Auckland-based suppliers. Mr Blance and Mr Berkland would then on-supply the methamphetamine to a number of associates in their distribution networks. Most of the offending took place at an address at Coates Street in Tawa. Associates would then on-supply the methamphetamine further. You were one of the Auckland-based suppliers.

[5]        Mr Smith, the other Auckland-based supplier, had an associate who was involved in the importation of methamphetamine. He had a disposable phone – referred to as a burner phone – that he used to contact this associate. He also referred to this associate as his “partner”.

5      Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment.

6      Section 6(1)(f) and (2)(c); maximum penalty eight years’ imprisonment.

[6]        Analysis of your phone communications also revealed that when you wanted to supply your own customers, you would contact Mr Smith so that he could obtain more methamphetamine from his importer.

[7]        Mr Smith used burner phones to contact Mr Blance about methamphetamine supplies and changed those phones periodically. When Mr Blance placed an order, you would travel from Auckland with Mr Smith to a predetermined location in order to carry out the supply.    During the period of the  investigation Mr Blance and     Mr Berkland purchased at least six kilograms of methamphetamine from you and  Mr Smith, at an estimated cost of $2,100,000. Mr Smith received payment for his involvement, and the balance was then paid to his importer.

[8]        On the night of 2 March 2017, you and Mr Smith drove to Wellington to meet with Mr Blance. You arrived at the Coates Street address early the next morning. You and Mr Smith were greeted by Mr Blance. Mr Smith was carrying a small bag. You and Mr Smith entered the address. Mr Berkland later entered the address carrying a heavy suitcase. About 45 minutes later, Mr Smith exited the address carrying a large back pack,  containing  approximately  $700,000.  Police  estimate  that  you  and  Mr Smith supplied at least two kilograms of methamphetamine on this occasion. This forms the basis of the first charge of supplying methamphetamine.

[9]        On 14 March 2017, you and Mr Smith met on a boat belonging to the importer. After collecting some methamphetamine, Mr Smith arranged to meet with Mr Blance via a burner phone. On 15 March 2017, you drove to Wellington with Mr Smith. You arrived at the Coates Street address early the next morning. Again, you entered the address, followed shortly afterwards by Mr Berkland. Mr Smith was carrying the methamphetamine inside a battery jump starting pack. Mr Blance and Mr Berkland sampled the methamphetamine, and Mr Smith explained that it was different from the last batch and would be cheaper.  Mr Smith  then  discussed  various matters  with Mr Blance, including money laundering and the calibration of scales for weighing methamphetamine. Mr Smith mentioned that his importer had another five kilograms that he wanted him to supply to Mr Blance. Based on this conversation, police estimate that you and Mr Smith supplied at least four kilograms of methamphetamine,

for at least $1,400,000, on this occasion. This forms the basis of the second charge of supplying methamphetamine.

[10]      I have made a number of references to Mr Smith’s role in your offending because I am satisfied that you merely accompanied him out of a sense of loyalty and because of your relationship with Mr Smith. This does not excuse your conduct. I am however, satisfied, that Mr Smith would have offended without your participation.

[11]      At the termination of the investigation, on 11–12 April 2017, police executed search warrants at several addresses including your Hillcrest address. You were found in your vehicle not far from your address. A search of your vehicle located approximately 4.8 grams of cannabis in several snap lock bags and a small amount of methamphetamine. You had in your possession cannabis head material, a small set of digital scales and a number of unused snap lock bags. A search of your address located 14 grams of cannabis head material and 16 NBOMe tabs. This forms the basis of the possession charges.

[12]      Between 18 March and 11 April 2017, you received numerous calls and messages from associates contacting you for the purpose of arranging to be supplied with cannabis and/or methamphetamine. The prices discussed in intercepted communications indicate that you were supplying ounce amounts of cannabis. You regularly met with your customers day and night. You sometimes travelled large distances to supply your customers. An intercepted conversation on 28 March 2017 also indicates that at least one of your customers was arranging drug supplies on your behalf. This forms the basis of the representative supply charges.

Previous offending

[13]      You have 20 previous convictions, 17 of which are related to drug offending, although four of those were only possession charges. You were previously sentenced to 10 months’ home detention for conspiring to deal methamphetamine in 2009. Your other offending comprises minor traffic matters.

Starting point

Party to methamphetamine supply charges

[14]      There is a presumption in favour of imprisonment for Class A drug dealing offending.7

[15]      The Court of Appeal’s decision in R v Fatu is the leading sentence guideline judgment for offending involving the supply of methamphetamine.8 Your offending falls within sentencing band four, which provides that the supply of very large commercial quantities, above 500 grams, warrants a starting point of between 10 years and life imprisonment.9

[16]      In setting the appropriate starting point, I have taken into account the following aggravating features of your offending:

(1)Premeditation and planning.10 A significant degree of premeditation and planning is inherent in the sale and supply of controlled drugs.

(2)Amount of methamphetamine.11 The total amount of methamphetamine involved in your offending was at least six kilograms. This amount sits squarely within band four in R v Fatu.

(3)Commercial gain.12 It is clear from the summary of facts that you were involved with the supply of methamphetamine for profit. The total value of methamphetamine you were involved with supplying was significant and valuable.

[17]      In terms of your role in the overall operation, you were a party to some of the offending by Mr Smith, who was the main supplier for Mr Blance, the head of the Wellington distribution operation. You were clearly not the party taking a lead on the

7      Misuse of Drugs Act 1975, s 6(4)(a).

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

9 At [34].

10     Sentencing Act 2002, s 9(i).

11     Section 8(a) and (b), R v Fatu, above n 8.

12     R v Fatu, above n 8, at [32].

major supplies you were involved in. You did, however, have your own customers in Auckland and can properly be described as a low-level dealer in your own right.13

[18]      To ensure consistency in sentencing,14 I note that seven of the other co- defendants from Operation Walnut have already been sentenced:

(1)Mr Smith was given a starting point of 17 years’ imprisonment for his offending involving 15 kilograms of methamphetamine. Mr Smith was the main supplier for the Wellington distribution operation.15

(2)Mr Blance was given a starting point of 18 years’ imprisonment for offending involving 15 kilograms of methamphetamine. Mr Blance was the head of the Wellington distribution operation.16

(3)Mr Berkland was given a starting point of 16 and a half years’ imprisonment for offending involving 15 kilograms of methamphetamine. Mr Berkland was Mr Blance’s right-hand man.17

(4)Mr Hohua was given a starting point of five years and 10 months’ imprisonment for offending involving 127.4 grams of methamphetamine. Mr Hohua was a mid-level dealer.18

(5)Mr McGoldrick Savaii was sentenced for methamphetamine offending involving 119 grams. Mr McGoldrick-Savaii was considered a mid- level dealer. A starting point of five years and six months’ imprisonment was adopted.19

13  At [31]: “Where an offender fits within any particular band will depend not just on the quantity   and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant”.

14     Sentencing Act 2002, s 8(e).

15     R v Smith [2018] NZHC 2118.

16     R v Blance [2018] NZHC 1518.

17     R v Berkland [2018] NZHC 1520.

18     R v Hohua [2018] NZHC 1509.

19     R v McGoldrick-Savaii [2018] NZHC 233.

(6)Ms Waiariki was sentenced for methamphetamine offending involving

36.1 grams. Ms Waiariki was considered a street level dealer. A starting point of four years' imprisonment was adopted in her case.20

(7)Mr Svenson was sentenced for methamphetamine offending involving

15.45 grams. He was considered a middleman between the drug dealers and the retail market. A starting point of three years’ imprisonment was adopted in his case.21

[19]I have also referred to a number of comparable cases: R v Le’Ca, R v Uputaua,

Murray v R, R v Rodgers, R v Zhou; R v Huang and R v Robati.22

[20]      The Crown submits a starting point of five to five and half years’ imprisonment is appropriate. Your counsel, Ms Pecotic, submits a starting point of four years’ imprisonment is warranted.

[21]      The amount of methamphetamine involved in your offending is just over a third of that involved in the cases of Mr Blance, Mr Berkland and Mr Smith. It is difficult to assess your culpability in relation to your Wellington co-offenders because you played a very separate role. I regard your relative culpability as significantly less than that of Mr Smith. You were clearly a party to his offending, however, it is not evident from the summary of facts that you played a very important role. Counsel were unable to find any other cases involving a person in a situation similar to yours.

[22]      Methamphetamine is a dreadful drug, which causes significant harm to individuals and relationships. The courts have consistently adopted starting points that reflect the social harm caused by methamphetamine. Consistent with this approach and similar authorities,23 I consider a starting point of five years’ imprisonment is appropriate for the two main methamphetamine charges.

20     R v Waiariki [2017] NZHC 2771.

21     R v Svenson [2017] NZDC 22165.

22     R v Le’Ca [2018] NZHC 274; R v Uputaua [2017] NZHC 2320; Murray v R [2014] NZCA  189;

R v Rodgers [2012] NZHC 2296; R v Zhou [2009] NZCA 363; and R v Robati [2018] NZHC 1537.

23     R v Smith, above n 15; and R v Robati, above n 22.

Personal drug dealing charges

[23]      The Crown submits that an uplift of one year is appropriate to reflect your personal drug dealing charges. I am satisfied that is an appropriate uplift in your case.

[24]This results in a total starting point of six years’ imprisonment.

Adjustments to the starting point

Personal aggravating factors

[25]      The Crown submits that your previous convictions warrant an uplift. These include 13 convictions from 2011 for conspiring to deal in methamphetamine. A “significant uplift” is required to vindicate the principle of deterrence, particularly in drug dealing cases where it is the dominant sentencing principle.24    An uplift of     six months is appropriate in your circumstances.

Personal mitigating factors

[26]      You suffer from PTSD in relation to a traumatic incident in your past, for which you are receiving counselling. This incident was the catalyst for your methamphetamine use, which began in 2006. During your 2011 sentence you completed the Salvation Army Bridge programme in Whangarei, and were able to avoid relapsing into methamphetamine use for five years. However, you relapsed a few years ago when you entered into a relationship with Mr Smith. You explained your present offending to the writer of the pre-sentence report by saying “I wasn’t thinking, I was in love”. You  say that your offending was about going along with  Mr Smith, who made you feel good and treated you well, and not about the thrill of breaking the law.

[27]      You are currently completing the Salvation Army Residential AOD Programme and have not used methamphetamine for 16 months. You report being on a good track and being focused on getting help to address the trauma from your past that pushes you towards drug use.

24     R v Arthur [2005] NZLR 739 (CA) at [26].

[28]      I  have  read  the   alcohol   and   drug   assessment   report   prepared   by   Mr Nawalowalo, an addiction counsellor. He assesses that, prior to your arrest, you met the DSM IV criteria for a Methamphetamine Dependency.

[29]      I have also been assisted by a report from Dr Visser, a psychologist, who is concerned that a long term of imprisonment may re-trigger your PTSD.

[30]      In the circumstances, the most generous discount I can give to reflect your difficult personal circumstances, the role they played in your offending and your efforts to deal with them, is nine months and that is the discount that I will provide.

Remorse and character references

[31]      I have read the references that have been supplied on your behalf. Normally remorse counts for very little in relation to serious drugs offending. I accept, however, that you are genuinely remorseful. I will provide you with a three-month discount to reflect this factor.

Restrictive bail

[32]      I also accept you have been on restrictive bail conditions since 22 September 2017. I will provide you with a further discount of six months to reflect this fact.

Guilty plea

[33]      Your guilty plea was not at the earliest possible opportunity, and it occurred after many of your co-defendants had already pleaded guilty. However, it was a few weeks prior to your scheduled trial. A discount in the vicinity of 15 per cent is, in my assessment, appropriate.25

Result

[34]Ms Phillips, can you please now stand.

25     R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.

[35]      I am sentencing you to four years and three months’ imprisonment on the two charges of supplying methamphetamine.

[36]      I am also sentencing you to two years’ imprisonment on the representative charge of supplying methamphetamine and the charge of possessing methamphetamine for supply; one year’s imprisonment on the representative charge of supplying cannabis and the charge of possessing cannabis for supply; and one month’s imprisonment on the charge of possessing NBOMe.

[37]All sentences are to be served concurrently.

[38]I make an order for the destruction of all drug paraphernalia.

[39]You may now stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington