R v Rhodes
[2016] NZHC 2729
•15 November 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2015-019-6211 [2016] NZHC 2729
THE QUEEN
v
RICHARD HEBOLD RHODES
Hearing: 15 November 2016 Counsel:
J N Foster for Crown
C Bean for DefendantJudgment:
15 November 2016
SENTENCING NOTES OF HEATH J
Solicitors:
Crown Solicitor, Hamilton
Counsel:C Bean, Hamilton
R v RHODES [2016] NZHC 2729 [15 November 2016]
Introduction
[1] Richard Hebold Rhodes, you appear for sentence today having pleaded guilty on the first day of your trial, 25 October 2016, to one charge of supplying the Class A controlled drug methamphetamine, one representative charge of selling the Class C controlled drug cannabis and one charge of possessing of cannabis for sale. On the second day of your trial, 26 October 2016, you pleaded guilty to additional charges: one representative charge of supplying methamphetamine, two stand alone charges of supplying methamphetamine, one representative charge of offering to supply methamphetamine, one of possessing methamphetamine for supply, one of supplying cannabis to a young person, and one of conspiracy to cultivate cannabis.
[2] On all of the pleas of guilty entered on 25 and 26 October 2016, you were convicted. You now appear for sentence on each.
Sentence indications
[3] I take as the lead charges for sentencing purposes those of supplying methamphetamine. The maximum sentence for offending of that type is life imprisonment.
[4] You received a sentence indication on 13 April 2016.1 You declined to plead guilty on the basis of that indication, as was your right. Subsequently, the Crown identified dealing in methamphetamine at a level significantly higher than put forward in the summary of facts for the purpose of that sentence indication.
[5] You sought a second sentence indication based on that new information. I gave that on 29 September 2016.2 Once again, you declined to accept the indication. You were remanded for trial which was to commence on 25 October 2016. The trial was scheduled for four weeks.
[6] Generally speaking, notwithstanding that you declined to accept the second sentence indication, I shall sentence you on the basis of it. I have one qualification
1 R v Rhodes [2016] NZHC 662.
2 R v Rhodes [2016] NZHC 2323.
in saying that. That qualification is that I will assessing whether any credit should be given for the guilty pleas independently of that earlier sentence indication.
Facts
[7] In August 2015, the Waikato Police Organised Crime Squad began an investigation which was code-named Operation Daydream. It focussed on the supply of methamphetamine in the Te Aroha and Paeroa regions. The Police identified a group of individuals who appeared to be working together. As a result, warrants were obtained to intercept private communications, and a covert phase of the operation began.
[8] During the covert phase, a number of investigative techniques were used by the Police. They included back-captured text messages and surveillance confirming the identity of a number of individuals involved in the drug dealing enterprise. An undercover police officer was also deployed. He purchased quantities of methamphetamine on a number of occasions from you and a close associate.
[9] You were identified as the prime mover within the criminal enterprise. You ran a significant commercial drug dealing operation. I shall refer in general terms to the nature of your offending, and then provide some specific illustrations of it.
[10] I agree with Ms Foster, for the Crown, that you were the central figure in the operation. You both sourced and arranged to sell large quantities of illicit drugs, particularly methamphetamine. The amounts that you procured and sold over a period of some 12 months were significant. You also dealt in cannabis, including a number of occasions where that drug was sold to people under the age of 18 years.
[11] Without being exhaustive, I will now provide some specific illustrations of your admitted offending.
[12] On 15 October 2015, you sold methamphetamine to an undercover police officer at your home in Te Aroha. You had a conversation with the officer in which it became clear that you were able to source methamphetamine in significant quantities. That is evidenced by the fact that you supplied methamphetamine to him
for a price of $1200. A sale to an unknown undercover police officer shows that you were not prepared to discriminate between those with whom you were used to dealing and others who came in off the street to purchase. You were prepared to sell to anyone who was prepared to buy.
[13] According to the back captured text messages and intercepted communications during the period between 1 and 4 November 2015, you sold at least 621 grams of cannabis.
[14] Late on the evening of 3 November 2015, you and a co-offender, Ms Muir engaged in a number of telephone conversations with each other. What happened at that time has already been accepted by Ms Muir and she was sentenced on the same factual basis I am about to describe.
[15] On the evening of 3 November 2015, you and Ms Muir were speaking to each other on the telephone regularly. Those calls were intercepted. Arrangements were made for Ms Muir to obtain a quantity of methamphetamine from an associate, and for the two of you to meet at a petrol station in Bombay after she had procured the drug. You left your home address in Te Aroha and drove towards Bombay to meet her. In a telephone discussion that took place while you were on the way to Bombay, you told her that you were bringing a quantity of cannabis with you that she could sell to a common associate.
[16] Once she had procured the methamphetamine, Ms Muir contacted you by telephone. She confirmed that one ounce had been purchased. In the early hours of
4 November 2015, you met in the truck park area of the petrol station in Bombay, as arranged. Shortly afterwards, police officers terminating the operation approached your vehicles and arrested each of you.
[17] At the time of arrest, three separate bound piles of cash containing $1000 in each were located on the driver’s seat of Ms Muir’s car. Inside a cooler bag, on the front passenger seat of your vehicle, was a black plastic screw top container inside of which was a plastic film container holding four small clipseal plastic bags. Each
contained one gram of methamphetamine. A further plastic container was located. That contained 14 grams of methamphetamine.
[18] Ms Muir accepted that a screw top plastic container was found in the vehicle she was driving. It contained two plastic clipseal bags with seven grams of methamphetamine inside. Also inside that vehicle were a number of plastic bags, each containing dried cannabis head material totalling 132 grams.
Analysis
[19] Mr Rhodes, I sentence you on the basis that you were the prime mover in a substantial commercial drug dealing business. While I take the methamphetamine offending as the lead for sentencing purposes, I treat the cannabis offending as part of the drug dealing operation rather than providing a separate uplift for that as an aggravating factor. The sale of that drug to young people is particularly disturbing.
[20] Including the specific quantities of both methamphetamine and cannabis to which I have referred, the evidence reveals a regular pattern of offending during the period covered by the covert operation. The nature and extent of the offending requires the relevant sentencing goals to be denunciation, deterrence, accountability and protection of the community.
[21] I adopt the position that I took at the second sentence indication. Your offending falls within Band 4 of the leading tariff decision of the Court of Appeal for the supply of methamphetamine in R v Fatu.3 Band 4 covers the supply of very large commercial quantities of the drug. Its range is 500 grams or more.
[22] I choose a starting point of 12 years and six months’ imprisonment to reflect your involvement in the drug dealing enterprise. As I say, that starting point includes the discrete cannabis offending, to which I have referred.
[23] Next, I consider the uplift required for personal aggravating factors. The two most significant are these:
3 R v Fatu [2006] 2 NZLR 72 (CA), at para [34].
(a) Much, if not all, of the offending took place while you were on bail for alleged firearms offending. The combination of possession of firearms and dealing in quantities of methamphetamine is disturbing. That is a significant aggravating factor.
(b)Not long before the offending began, you had been released from a sentence of imprisonment on charges of supplying methamphetamine that followed a trial in the High Court at Auckland. On 13 February
2009, you were sentenced by Winkelmann J, to a period of six years’ and six months’ imprisonment. On that occasion no minimum period of imprisonment was imposed.4
[24] The Judge sentenced you on the basis of two convictions for supplying methamphetamine and two of possessing methamphetamine for supply.5 She accepted, at least in general terms, the Crown’s position that you had either supplied or possessed for supply a quantity of approximately 252 grams of methamphetamine.6 The Judge was satisfied that you were dealing in commercial quantities.
[25] Because of the necessary estimation of the quantities involved, the Judge took a starting point for sentence of seven years’ imprisonment. What she termed to be “a slight reduction on account of your ill-health” of six months’ was provided.7 I note that you continue to point to ill-health to mitigate the current offending. I am not prepared to give that much weight in light of the concession you received from Winkelmann J. Frankly, it is clear that any ill-health at that time did not prevent you from leaving prison and embarking straight-away on a further drug dealing enterprise.
[26] I apply an uplift of 18 months’ imprisonment to reflect those personal
aggravating factors. That leaves the adjusted starting point at 14 years’
imprisonment.
4 R v Gollop and Ors HC Auckland CRI-2009-092-16424, 13 February 2009.
5 Ibid, at para [145].
6 Ibid, at paras [146] and [154].
7 Ibid, at para [156].
Mitigating factors
[27] I have heard submissions today from Mr Bean, on your behalf, about mitigating factors. He has suggested to me that your age (you are currently aged 64 years), your ill-health and remorse should be taken into account. In addition, he submits that despite the very late entry of guilty pleas you should receive a credit in the range of that which I provided in the second sentence indication that was
declined. That was about 12 percent.8
[28] I am not prepared to give any credit for those late guilty pleas. You had two opportunities to accept sentence indications. You knew what you had done. You did not need to know what evidence was going to be led by the Crown to understand what your offending comprised. All you did by delaying your pleas of guilty was to waste valuable Police time in preparing for this trial that could have been used to better effect for the community. You also wasted valuable Court time which, because of the short time into the trial when the pleas were entered, meant that other significant cases could not be brought on. In my view, there is nothing in the entry of the guilty pleas that should attract a credit.
[29] Nor am I satisfied that any credit for remorse should be given. As I said to your counsel, it is “too little, too late”. It seems to me that you are endeavouring to get as much credit as you can in circumstances where the nature and extent of your offending simply does not deserve any.
[30] You have engaged in supplying methamphetamine for many years. You must now take the consequences of what you have done. There is only one person to blame for why you are here today receiving a heavy sentence of imprisonment. That is yourself. It is time to look at yourself and if you do propose to do anything about rehabilitation, to do it in prison and try to persuade the Parole Board to release you from prison at the earliest time possible.
[31] In those circumstances, I am not prepared to give any credit for mitigating
factors. That means that the end sentence will be one of 14 years’ imprisonment.
8 R v Rhodes [2016] NZHC 2323, at para [14].
Minimum non-parole period
[32] I have no option but to impose a minimum non-parole period.9 The issue is whether that should be one-third or 50 percent. As I said in the earlier sentence indication, a period in excess of that could well be justified but I have decided that based on your personal circumstances I should limit it to one of 50 percent of the end sentence.
[33] A minimum sentence of that length is required to meet the relevant sentencing goals.10 It will be for the Parole Board to decide whether it is safe to release you into the community when you become eligible for parole and you’re your first hearing.
Result
[34] Mr Rhodes, please stand.
[35] Mr Rhodes, on the charges of supplying methamphetamine, offering to supply methamphetamine and possessing methamphetamine for supply, you are sentenced to a term of imprisonment of 14 years’.
[36] On the charges of selling cannabis to a young person, selling cannabis, possessing cannabis for sale and conspiracy to cultivate cannabis, you are sentenced to five years’ imprisonment.
[37] Those sentences are to be served concurrently.
[38] A minimum non-parole period of 50 percent is imposed in respect of the sentences passed on the methamphetamine offending. That equates to a period of seven years’ imprisonment. You will be eligible to apply for parole after serving
seven years’ in prison.
9 See R v Anslow CA182/05, 18 November 2005, R v Wong [2009] NZCA 332 and R v Fleming
[2011] NZCA 646.
10 See para [20] above.
[39] At the request of the Crown, I make an order forfeiting the cash that was seized when the operation was terminated.
[40] Stand down please.
P R Heath J