R v Rewita
[2016] NZHC 2523
•21 October 2016
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-063-002651 [2016] NZHC 2523
THE QUEEN
v
TAI ANTHONY REWITA STEFAN ISAAC EDE ANDREW CROMBIE
Hearing: 21 October 2016 Counsel:
A D Hill for the Crown
W T Nabney for the Defendant, Rewita A M M Schulze for the Defendant, Ede C D Bean for the Defendant, Crombie
Sentence:
21 October 2016
SENTENCING NOTES OF EDWARDS J
Counsel: W T Nabney, Tauranga
C D Bean, Hamilton
Solicitors: Gordon Pilditch, Rotorua
Lance Lawson, Rotorua
R v REWITA, EDE and CROMBIE [2016] NZHC 2523 [21 October 2016]
Introduction
[1] Mr Rewita, Mr Ede and Mr Crombie, you appear for sentence today having been found guilty on a number of charges following a jury trial in this Court.
[2] Mr Rewita you appear for sentence on:
(a) Five charges of supplying methamphetamine. Those charges carry a maximum penalty of life imprisonment;
(b)One charge of possession of methamphetamine for supply. That charge also carries a maximum penalty of life imprisonment; and
(c) One charge of conspiracy to supply methamphetamine. That charge
carries a maximum penalty of 14 years’ imprisonment.
[3] Mr Ede you appear for sentence on:
(a) Two charges of possession of methamphetamine for supply; and
(b) One charge of possession of cannabis for sale. The cannabis charge
has a maximum penalty of eight years’ imprisonment.
[4] Mr Crombie you appear for sentence on one charge of possession of methamphetamine for supply.
[5] It has been said by countless Judges before me, but I repeat it here again, that dealing in methamphetamine is dealing in human misery. It brings destruction and despair to families and communities and causes widespread harm to all parts of New Zealand society.
Offending
[6] I turn to summarise the offending the subject of your convictions.
[7] The charges arose out of a police investigation code-named “Operation Ice Road”. Mr Rewita was the central figure in that investigation and the police intercepted a number of telephone calls and text messages between Mr Rewita and his associates.
[8] In the early hours of 2 May 2015, Mr Rewita and Mr Ede exchanged text messages arranging to meet. One of those text messages referred to “two hours” which the jury must have accepted was code for two ounces of methamphetamine. Mr Rewita was convicted of supply of methamphetamine and Mr Ede was convicted of possession of methamphetamine for supply arising out of that offending.
[9] Later in the day Mr Rewita’s vehicle was stopped during a routine stop. Large sums of cash were found in Mr Rewita’s car and in Mr Rewita’s bag, together with small plastic bags and a set of electronic scales. Three bags of methamphetamine were found totalling 2.94 grams. Mr Rewita was convicted of possession for the purposes of supply for that offending. Mr Rewita was found not guilty of a further supply charge based on the amount of cash found during this search.
[10] Between 7 and 8 May 2015 a series of text messages were sent between Mr Rewita and an associate, Ms McDonnell, forming the basis of the conspiracy to supply charge. Ms McDonnell was stopped on route to her meeting with Mr Rewita. Approximately $12,800 in cash was found in her car together with other methamphetamine paraphernalia. On the basis of the cash found in the car, the Crown says that the conspiracy was for the supply of one ounce of methamphetamine.
[11] On 8 May 2015, Mr Rewita and Mr Ede exchanged text messages arranging to meet again. Mr Ede travelled from Levin and met with Mr Rewita at a petrol station before travelling in convoy to two separate addresses. The vehicle that Mr Ede was seen travelling in was subsequently stopped on the morning of 9 May
2015, but Mr Ede was not in the vehicle at that time. He was found some time later hiding beneath a tree. Located near him was approximately two ounces of methamphetamine, and a black satchel containing approximately 50 grams of
cannabis, electronic scales and a police scanner. Mr Rewita was charged with supply, and Mr Ede was charged with possession of methamphetamine for supply and possession of cannabis for sale. Mr Ede pleaded guilty to those charges on the first day of trial.
[12] Mr Rewita was also convicted of supply of methamphetamine to Mr Parata on 13 May 2015. That transaction took place in a lay-by on the Matata straights. Code used in the text messages established that the transaction was for one ounce of methamphetamine. Mr Parata pleaded guilty to his part in the offending and was sentenced to two years six months’ imprisonment.
[13] On 1 June 2015, text messages and voice communications between Mr Rewita and Mr Crombie established that they were arranging to meet in a remote rural location late at night. Following this meeting Mr Crombie’s car was stopped and two ounces of methamphetamine was found concealed in the heater vent on the driver’s side of the centre console. That forms the basis of another supply charge against Mr Rewita, and the charge of possession for supply against Mr Crombie.
[14] Finally, on 3 June 2015, Mr Rewita met with Mr Jones at a bar in an industrial area in Tauranga. Mr Jones was subsequently stopped and one ounce of methamphetamine was found in his vehicle, together with some cannabis. He pleaded guilty to his part in the offending and was sentenced to three years three months’ imprisonment.
Sentencing framework
[15] I now turn to the sentencing framework I will adopt in sentencing you today.
[16] The sentencing approach is well-established. I first must consider your offending with regard to any aggravating or mitigating factors. That leads to a starting point. I then make adjustments as necessary for aggravating and mitigating features which are personal to each of you.
[17] In fixing a sentence for each of you, I take into account the principles and purposes embodied in ss 7 and 8 of the Sentencing Act 2002. The primary purposes
are to hold you accountable, to denounce your conduct, and to deter you and others from similar offending in the future. Rehabilitation and reintegration are also relevant, particularly for you Mr Rewita and Mr Ede, as you have admitted having an addiction problem.
[18] I have also taken into account principles of parity and consistency in sentences. That applies as between you, and in relation to other sentences imposed for similar offending.
[19] In R v Fatu, the Court of Appeal set out four sentencing bands for methamphetamine offending depending on the quantity of methamphetamine supplied.1 I have had regard to the other culpability markers set out in that case, and in other cases cited to me, in fixing your sentence.
[20] Finally, the Crown seeks a 50 per cent minimum period of imprisonment to be imposed for each of you. Section 86(2) of the Sentencing Act provides that I may impose a minimum period of imprisonment longer than the period otherwise applicable in the Parole Act 2002 if I am satisfied that period is insufficient for all or any of the following purposes:
(a) holding you accountable for the harm done to the community by the offending:
(b) denouncing the conduct in which you were involved:
(c) deterring you or other persons from committing the same or a similar offence:
(d) protecting the community from you.
[21] I propose to sentence each of you separately, starting with you Mr Rewita.
1 R v Fatu [2006] 2 NZLR 72 (CA).
Mr Rewita
Starting point
[22] The first step is to set a starting point.
[23] I approach the sentencing by considering the supply and possession charges together. The total amount of methamphetamine supplied, and in your possession, was 221.2 grams. This amount falls within band 2 of R v Fatu.2 Offending in this band attracts a sentencing range of three to nine years’ imprisonment.
[24] I accept the Crown’s submission that you were the lead figure in the offending. You were generally dealing in one ounce or two ounce lots, with each ounce selling between $12,000 and $12,500. This was a commercial operation with large sums of money being generated in a relatively short period of time. Although the possession charge indicates you may have been dealing in smaller quantities also, I consider you were effectively operating as a wholesaler.
[25] Implicit in a commercial operation of this scale is a degree of premeditation and planning. That is evidenced by the coded communications that occurred between you and your co-offenders, and the various locations at which the supplies took place.
[26] I have considered the cases referred to me by the Crown in setting an appropriate starting point:3
(a) In Whare v R the Court adopted a starting point of eight years’ imprisonment for charges of offering to supply, supplying and possessing methamphetamine for the purpose of supply involving at least 201 grams of methamphetamine over a one month period.
(b) In Chapman v R a starting point of eight years’ imprisonment was
adopted for a representative charge of supplying 220 grams of
2 R v Fatu, above n 1, at [34].
3 Whare v R [2014] NZCA 354; and Chapman v R [2011] NZCA 134.
methamphetamine with a two year uplift for other offending involving the supply of 2.4 grams and conspiracy to supply a further 4.9 grams of methamphetamine.
[27] Your counsel and the Crown agree that your offending is at the higher end of band 2. I also agree. The Crown submits that an appropriate starting point would be eight and a half to nine years’ imprisonment. Your counsel proposes a starting point of seven years.
[28] In light of the gravity of offending, and the starting points adopted in comparable cases, I adopt a starting point of eight years’ imprisonment for the possession and supply charges.
Uplift for conspiracy charge
[29] I must then consider the conspiracy charge.
[30] The Crown conceded that it would not be appropriate to include the 28 grams the subject of the conspiracy charge in calculating the total amounts supplied. That was an appropriate concession in my view.
[31] Your co-conspirator, Ms McDonnell, was stopped just outside of Tokoroa which was the agreed meeting place. I do not accept the Crown’s submission that the transaction was almost complete, but it had progressed past the half-way point.
[32] In light of those circumstances, and given that the culpability for this offending is already reflected to some extent in the starting point I have adopted for the lead charges, I uplift the starting point by six months to take into account the conspiracy charge. That leads to a total starting point of eight years and six months’ imprisonment.
[33] When I stand back and consider your offending as a whole I consider this starting point reflects the totality of your offending.
Personal aggravating and mitigating factors
[34] I now turn to consider whether any adjustments should be made for personal aggravating and mitigating factors.
[35] In terms of personal aggravating factors, you have a lengthy criminal history. This includes convictions for drug related offending, the most serious of which are convictions from 2012 for possession of methamphetamine for supply and supplying methamphetamine. You were sentenced to two years nine months’ imprisonment for that offending. In line with what your counsel has proposed, I apply a six month uplift for those prior convictions. That brings the sentence to nine years.
[36] In terms of personal mitigating factors, you have written a letter expressing remorse for your offending and full responsibility for your actions. You detail a traumatic childhood in which you were forced to drink alcohol and raped on multiple occasions. You link those experiences to your addiction to methamphetamine. You have sought counselling to assist you in dealing with that childhood trauma. I have been supplied with an ACC form substantiating the counselling sought. That is a hugely positive step to take, Mr Rewita.
[37] You have strong social support. Your family is under strain at present. Your
18 year old daughter is suffering health issues and your mother is very ill. That is also confirmed by the pre-sentence report.
[38] You have expressed a genuine desire to attend a residential rehabilitation programme following your release from prison. You speak of sharing your own story at some time so that you may help others. That shows genuine insight into your own behaviour and a real motivation to reform, in my view.
[39] This morning the Crown sought to dispute the genuineness of your remorse and initially suggested that a disputed facts hearing may be required if I was minded to give a discount for that remorse. On the basis that I indicated that a modest discount would be granted, a disputed facts hearing is no longer pursued.
[40] In my view, the circumstances detailed in your letter do take your case out of the usual range.4 However, any discount for personal circumstances is relegated in importance to deterrence and denouncement.5 Those principles temper any discount which might otherwise be available. I consider a six month discount for your personal circumstances to be appropriate in your case.
[41] That brings the notional end sentence to eight and a half years.
Minimum period of imprisonment
[42] The Crown seeks a 50 per cent minimum period of imprisonment to be imposed given the apparent lack of deterrence that previous imprisonment sentences have achieved, the nature of the current charges, and the lack of responsibility indicated by your not guilty plea.
[43] The Court of Appeal has confirmed that in cases of very serious drug offending, the criteria for a minimum period of imprisonment will almost invariably be made out.6 Following a review of a number of cases, the Court of Appeal observed in another case, that minimum periods of imprisonment have rarely been imposed where the sentence is less than nine years.7
[44] Your offending, whilst serious, is not as serious as those cases where a minimum period of imprisonment has been imposed. You have exhibited some insight into your offending, genuine remorse, and a real commitment to rehabilitative efforts. I do not consider a minimum period of imprisonment to be necessary to meet the purposes of accountability, deterrence, denouncement, and the protection of the community.
[45] Mr Rewita please stand.
(a) On each of the five charges of supplying methamphetamine I sentence
you to eight and a half years’ imprisonment.
4 R v Bryant [2009] NZCA 287 at [28].
5 R v Wallace [1999] 3 NZLR 159 (CA) at [25].
6 R v Wong [2009] NZCA 332 at [21].
7 R v Anslow CA182/05, 18 November 2005 at [27].
(b) On the charge of possession of methamphetamine for supply I
sentence you to two years’ imprisonment.
(c) On the charge of conspiring to supply methamphetamine I sentence
you to two years’ imprisonment.
[46] Each sentence is to be served concurrently, so your effective end sentence is
eight and a half years’ imprisonment.
[47] Finally, the Crown sought a forfeiture order pursuant to s 32 of the Misuse of Drugs Act 1975 and that is not opposed by the defence. I do not consider an order is required as it follows as a matter of course from s 32(1). I record the position for completeness.
[48] Mr Rewita, you may now stand down.
Mr Ede
[49] I now turn to you Mr Ede.
Starting point
[50] I take as the lead charges the two charges of possession of methamphetamine for supply. That relates to methamphetamine found in your possession on 2 May and on 9 May 2016. Each charge involved approximately 2 ounces; 111.4 grams in total. That places you in the middle of band 2 of Fatu.
[51] You have told the pre-sentence report writer that the methamphetamine was purchased for your own personal use. I accept some of it would be for personal use given your long standing addiction problems. But the sheer quantity purchased in the space of a week suggests that you were involved in commercial drug dealing at a significant scale. However, by comparison to Mr Rewita’s role, I accept your counsel’s characterisation of you as a middle man.
[52] I have considered the cases relied on by the Crown and those referred to by your counsel in considering the appropriate starting point.8
[53] In R v Weston the defendant Ms Meihana-Sua was involved in the supply or conspiracy to supply of approximately 114 grams of methamphetamine and a starting point of six years’ imprisonment was adopted. 9 However, the offending in that case was characterised as a pattern of offending spanning a 10 month period. Your case involves two isolated incidents within the space of a week.
[54] In R v Guthrie the defendant was sentenced on a range of charges including possession and supply of 112 grams of methamphetamine.10 The Court adopted a starting point of five and a half years’ imprisonment for that offending.
[55] The Crown seeks a starting point of six years imprisonment. Your counsel submits five years is an appropriate starting point. Taking into account the gravity of your offending, and sentences imposed in comparable cases, I adopt a starting point of five and a half years for the methamphetamine offending.
Uplift for cannabis offending
[56] I turn to consider the cannabis charge.
[57] You were found in possession of 46.7 grams. Your counsel accepts that this places you within category 2 of R v Terewi.11 That attracts a starting point of between two and four years’ imprisonment. However, as it is a one-off occasion, and is connected in time and place with the other offending, I consider only a small uplift of three months is required for this offending.
[58] This brings the starting point to five years, nine months.
8 R v Albert [2016] NZHC 241; and R v Tatana [2014] NZHC 1614.
9 R v Weston [2014] NZHC 3260.
10 R v Guthrie [2013] NZHC 1783.
11 R v Terewi [1999] 3 NZLR 62 (CA) at [4].
Personal aggravating and mitigating factors
[59] The next step is to consider any adjustments for personal aggravating and mitigating factors.
[60] The pre-sentence report records you having support from a previous employer, and good family support. You are lucky in that respect Mr Ede. You have stated that you are aware that certain associates are a negative influence on you, which evidences a degree of insight. You are assessed as having a high risk of re- offending without engagement in rehabilitation, and a low risk of harm to others.
[61] In terms of personal aggravating factors, the most significant is your lengthy history of drug related convictions. These include possession of methamphetamine in
2015, and possession of methamphetamine for supply in 2003. You also have a number of cannabis related convictions stretching back to 1998. You received a home detention sentence for the 2015 offending, and sentences of imprisonment imposed in 2004 and 2007. Sentences received for those convictions have clearly done nothing to deter you from re-offending. An uplift is required in those circumstances.
[62] In determining that uplift, I am mindful of your counsel’s submission that you should not be punished disproportionately for your previous offending. I apply an uplift of four months for your prior convictions. That brings the sentence to six years and one month.
[63] In relation to mitigating factors, your counsel raises your strong pro-social support, and the 10 months spent on restrictive electronic monitored bail as justifying a 12 month discount. A further discount of 10 per cent is sought for the guilty plea in relation to two of the charges at the start of the trial.
[64] I do not consider any separate discount can be given for your remorse or your rehabilitation. There is nothing in the pre-sentence report which would take your case outside of the ordinary. That should not discourage you from following a pathway to rehabilitation Mr Ede. Addressing your addiction is the first step towards reform.
[65] In terms of the time spent on electronically monitored bail, the Court of Appeal has said a discount may be applied in some circumstances.12 It is not simply a matter of commuting the months spent on electronically monitored bail to an equivalent discount – all of the circumstances must be taken into account. In your case that includes a breach of bail conditions. I allow a five month discount for electronically monitored bail.
[66] Finally, in terms of your guilty plea, I note that it was received on the first day of trial and in the face of a very strong Crown case against you. There was little benefit in terms of trial time saved by the entry of that guilty plea. In the circumstances, I do not consider a discount is appropriate and I decline to apply one.
[67] This brings your end sentence to five years, eight months.
Minimum period of imprisonment
[68] Finally, I do not consider the gravity of your offending requires the imposition of a minimum period of imprisonment. The principles of denouncement and deterrence are reflected in the end-sentence reached. Whether the Parole Board decides to release you Mr Ede is really up to you and the steps you take next to finally turn your life around.
Sentence
[69] Mr Ede please stand:
(a) On the two charges of possession of methamphetamine for supply I
sentence you to five years, eight months imprisonment.
(b) On the charge of possession of cannabis for sale I sentence you to
two years’ imprisonment.
[70] Each sentence is to be served concurrently, which leads to a notional end sentence of five years, eight months.
[71] Mr Ede you may stand down.
Mr Crombie
[72] I now turn to you Mr Crombie.
Starting point
[73] You were found with approximately two ounces (56 grams) of methamphetamine which was hidden in the heater vent of your car. Your passenger was found with a small amount of methamphetamine on him at the time the vehicle was stopped.
[74] I take into account that there were no other items found in the car that either linked you to the methamphetamine or suggested that you were involved in the commercial supply of methamphetamine.
[75] The Crown says that a starting point of four years’ imprisonment would be appropriate in your case. Your counsel proposes a starting point of three and three quarters to four years. I have considered the cases cited to me by the Crown.13 I adopt a starting point of four years’ imprisonment for your offending.
Personal aggravating and mitigating factors
[76] I now turn to personal aggravating and mitigating factors.
[77] The pre-sentence report states that you are resigned to an inevitable prison sentence but that your main concern is for the welfare of your family while you are in prison. You have summed up your offending as being stupid. You have disclosed that you used regularly on release from your last prison sentence but got tired of the scene and you do not have a drug dependency at present. You are assessed as being at a medium risk of reoffending and medium risk of harm to others due to your past offending.
[78] You have a lengthy history of previous convictions which includes five convictions for conspiracy to supply methamphetamine, one conviction for conspiracy to import methamphetamine, and at least 11 convictions for supplying methamphetamine. You received a sentence of nine years’ imprisonment for that offending.
[79] The nature of that offending is considerably more serious than the current charge. Any uplift for prior convictions must be proportionate to the offending for which I must now sentence you. Nevertheless, the sentences you received prior to your most recent offending have done nothing to deter you. Taking into account those factors, and having regard to totality, I impose a six month uplift for your prior convictions.
[80] In terms of mitigating factors, your counsel suggests a discount for time spent on restrictive bail conditions. I note that you were granted bail up until the final days of trial. The conditions of bail allowed you to continue your employment, but you were subject to a curfew. I have read a letter of support from your employer who says that while they do not condone your actions, they nevertheless consider they could assist in your rehabilitation and offer you employment on your release. You are regarded as a good employee. That is very positive Mr Crombie.
[81] You have also written to this Court apologising for your offending, accepting responsibility for it, and expressing a determination to do all you can to complete your time in prison without incident. You also speak of the impact of your offending on your four children, all of whom are under six years old.
[82] As with your co-offenders, deterrence and denouncement need to be the primary considerations in sentencing you today. However, I am prepared to allow a very small discount to reflect your employment record, the time spent subject to a bail curfew without incident, and your personal circumstances. I allow a three month discount for these factors.
[83] This leads to an end sentence of four years, three months.
MPI
[84] As with the previous offenders, I do not consider a minimum period of imprisonment is necessary in your case.
Sentence
[85] Mr Crombie, please stand.
[86] On the charge of possession of methamphetamine for supply I sentence you to four years and three months imprisonment.
[87] Mr Crombie, please stand down.
Edwards J
3
8
0