R v Rodgers

[2012] NZHC 2296

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-085-1856 [2012] NZHC 2296

THE QUEEN

v

PAUL PETER MAWANA RODGERS

Counsel:         S K Barr for Crown

N J Sainsbury for Accused

Sentence:       7 September 2012

SENTENCE NOTES OF THE HON JUSTICE KÓS

[1]      Mr Rodgers, you have been transferred for sentence from the District Court. I now convict you formally in this Court of the following counts, to which you have pleaded guilty and on which you now appear for sentence before me:

(a)       Supplying methamphetamine: 1 count.1

(b)      Offering to supply methamphetamine: 7 counts.2

(c)       Participation in an organised criminal group: 1 count.3

(d)      Conspiracy to supply cannabis: 1 count.4

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2).

2      Misuse of Drugs Act 1975, s 6(1)(c) and (2).

3      Crimes Act 1961, s 98A.

4      Misuse of Drugs Act 1975, s 6(2A)(c).

R v RODGERS HC WN CRI 2011-085-1856 [7 September 2012]

(e)       Conspiracy to obstruct the course of justice: 1 count.5

(f)       Money laundering: 1 count.6

Details of offending

[2]      I will summarise, briefly, your offending.

Methamphetamine offending

[3]     In August 2010 the police began an investigation into the supply of methamphetamine by the Nomads gang.   You are the captain, or the head of its Wellington chapter.   Alongside that gang you ran your own private drug dealing organisation, for your own personal profit.  You were arrested in April 2011.  Many of the offences which you have been convicted of today were the subject of joint charges with other offenders.  You pleaded guilty to these offences six months later, in October 2011.

[4]      You disputed some parts of the Crown summary of facts.  In particular as to your role and responsibility, and as to the level of methamphetamine supplied.  A disputed facts hearing was conducted before me in early August, over the course of three days.  By that stage you accepted you had received 23 ounces (644 grams) of methamphetamine.   But you said that you had yourself consumed 8 ounces (224 grams) and had lost a further 7 ounces (196 grams) when a bulldozer disturbed a stash buried in wasteland. That left just 8 ounces (224 grams).

[5]      By the close of the hearing you accepted that you had in fact received 36 ounces (just over 1 kilogram), rather than 23 ounces (644 grams).   Allowing the same deductions you claimed, that meant you had supplied 21 ounces (588 grams) to the market.  As a result it was plain that you fell within the most serious Band Four

sentencing guideline laid down by the Court of Appeal in R v Fatu.7

5      Crimes Act 1961, s 116.

6      Crimes Act 1961, s 243(2).

7      R v Fatu [2006] 2 NZLR 72 at [34].

[6]      In any event Mr Rodgers, I disbelieved the evidence given as to self-use and loss.  I concluded that none of that was true to any material extent and the Crown had demonstrated beyond reasonable doubt that you had supplied at least 60 ounces (or 1.68 kilograms) of methamphetamine in the nineteen months July 2009 to February 2011.8

[7]      You adulterated that methamphetamine by “cutting” (or diluting) it one for

one with a cutting agent.  So what you supplied to the market was double the volume

- 120 ounces (or 3.36 kilograms) – but at half its original level of purity.  I will return to that issue soon.

Participation in an organised criminal group

[8]      Next I refer to the count concerning participation in an organised criminal group.   This group had several purposes, the supply of methamphetamine and cannabis, dealing in stolen property, ‘taxing’ other drug offenders and laundering the proceeds of the group’s activities.

[9]      I found that you were the head of, and controlled in all practical respects, the criminal organisation responsible for these offences.  Although that group was not formally a part of the Nomads gang, it was associated with it.   Your authority as captain of the Nomads’ Wellington chapter enhanced your authority at the head of this group.   You were the principal financial beneficiary of the group’s criminal activities. These activities were conducted almost wholly for your benefit.

Conspiracy to supply cannabis

[10]     The cannabis charges involve in a conspiracy in December 2010 to supply cannabis with a number of other offenders.  Two of these offenders would collect cannabis from you and take it back to Wellington to be sold in smaller units.  This

was a secondary activity to your methamphetamine dealing.

8      R v Rodgers [2012] NZHC 2054 at [84]

Money laundering

[11]     I turn to the money laundering charges.   Between July 2009 and February

2011 you were receiving a welfare benefit.  You were not in paid employment.  The police estimate that in a 25-month period January 2009 to February 2011 you were in receipt of a sum of at least $800,000 from unknown sources.   You dispute that estimate, but given the levels of methamphetamine supply by your group, I consider that estimate is likely to be conservative.

[12]     Despite your want of legitimate income you spent about $32,000 on a Ford Falcon XR8 car, over $50,000 on two classic American cars, about $50,000 on two customised motorcycles and up to $97,000 renovating a house in Masterton.  You had three credit cards on which you made purchases of over $50,000.  A buried safe was also located by the police in the Wairarapa containing $88,000 in cash.  I accept that you deny that some of this property or money was yours but as far as the count of money laundering is concerned, ultimate ownership is not material.

Conspiracy to obstruct justice

[13]     Finally there is the conspiracy to obstruct justice count.  In December 2010 some of your co-offenders were involved in a serious assault of a 52 year old man. You and your partner became aware of that assault.  You advised the offenders to lay low while police were investigating.  The police in fact told you they were looking for a particular offender, Mr McDonald.  You told police you would co-operate and bring him  in.    Instead  you  helped him  to  hide,  providing him  accommodation, transport, money and advice.  As a result of police interceptions, Mr McDonald was located on a train going to Masterton.  He rang you in a panic.  You advised him to jump off the train, but at that point he was caught by the police.

Impact of offending

[14]     I turn now to the impact of your offending.   There are no victim impact statements here. That does not mean that there have not been very serious impacts of your actions in particular in supplying methamphetamine.

[15]     Mr Rodgers, methamphetamine is a curse upon New Zealand society.  Indeed it has been a curse upon you, as is apparent from your own letter to me.  Its impact is felt by those who use it, those who live with users, and those who interact with users whether by accident or by design.  Methamphetamine (or “P”) has been associated with psychotic and violent behaviour and criminal activity.   It can cause crippling addiction, and long term adverse physical health effects for frequent users.  There is evidence it can cause changes to the brain and to impair cognitive functioning.  It is

associated with increased risk of psychosis, depression and suicide.9

[16]     It is necessary, therefore, for society to denounce those who visit this curse upon its members.  Those who do so, particularly for their own profit, pleasure and self-esteem cannot expect very merciful or kindly treatment from responsible institutions of society, of which this Court is one.

Personal circumstances and pre-sentence reports

[17]     I turn now to your personal circumstances.   You have over 120 previous convictions dating back to 1989.  You have only two prior convictions for drugs in

2007 and 2003.   Most of your convictions are for driving, dishonesty and violent offending, as well as numerous breaches of compliance with periodic detention and bail.

[18]     Your pre-sentence report, as Mr Sainsbury said, is singularly depressing. You are 40 years of age.   Your upbringing has been characterised by a troubled and violent family life.  Your mother was only 14 years old when she gave birth to you. Your father was president of the Black Power chapter in Masterton.   You were “born” into gang life, and you have never left it.  Many of your older male relatives were also part of gang life.  There seem to have been no positive role models in your life.

[19]     Your father is said to have been a violent and abusive man. At the age of five you witnessed your father attack your mother’s hand with an axe at the kitchen table.

9      Law Commission of New Zealand, Report 122: Controlling & Regulating Drugs (Wellington,

2011), [2.99] – [2.138].

You and your sister ran and hid in the fields until the coast was clear.  One of your siblings was murdered by criminal associates.

[20]     Violence is ingrained in your experience and your character.   You are no stranger to it yourself, as evidence from one of your former associates at the earlier hearing showed.   More creditably Mr Rodgers, you have learned to manage your anger towards your partner, principally by largely stopping your own use of methamphetamine.  She and your children speak well of your conduct as a partner and as a father.  In that respect it is clear that you are a better man than your father was.

[21]     An alcohol and drug assessment concludes you have abused alcohol and drugs from the age of 12.  You left school at age 13.  As a result your literacy skills are very limited. You have never held a real job.

[22]     Your personal use of methamphetamine began in 2002.  Up until 2009 you were consuming 2 – 3 grams of methamphetamine every 24 hours.  As a result you have incurred cognitive impairment.  You experience significant memory problems. You are a salutary warning to your former customers.  However, as I found in my earlier judgment, you stopped abusing methamphetamine (and with it your partner) in 2009, as you built up a profitable but risky dealing enterprise which required you to keep your wits about you.  I found that you were not so addicted that you were incapable of adjusting your usage.

[23]     Finally, I note that your pre-sentence report assesses you at a high risk of reoffending.   Your counsellor recommends you undertake drug rehabilitation and therapy.  It is not in my power to order that, but you have enough insight, based on what  you have written to me Mr Rogers, to appreciate for yourself that this is something you need to do.

Purposes and principles of sentencing

[24]     I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing.  Section 7 requires me to have regard to the

need to hold you accountable for the harm done to victims of your offending, and the need to promote a sense of responsibility for, and acknowledgement of, that harm.  I need to denounce your conduct and I need to deter you and others like you from committing the same or similar offences in the future.  I am also required to take into account the need to assist in your respective rehabilitation and reintegration into society in due course.

[25]     In  terms of s 8 principles,  I must take into account the gravity of  your offending,  including  your  degree  of  culpability.     I  must  have  regard  to  the seriousness of the types of offences committed by comparison to other types of offending, indicated by the maximum penalty prescribed.  I must also consider the general desirability and consistency with appropriate sentences available. And then I need to impose the least restrictive outcome that is appropriate to the circumstances of you.  I am also to take into account your personal circumstances.

Starting point

[26]     Against those facts and principles I must now set a starting point for your sentence.  This is the period of imprisonment appropriate to mark your culpability.  I treat supply of methamphetamine as the lead offence for sentencing purposes.  The guideline for methamphetamine offending is R v Fatu.10   The Court of Appeal there sets out guideline tariffs for supply of methamphetamine. As I have said already, the relevant band in this instance is Band Four (the most serious band) - the supply of very large commercial quantities of over 500 grams.  This band attracts a start point of ten years to life imprisonment.

[27]     The purity of the drugs supplied or possessed for supply is a factor which must be taken into account when assessing the starting point.   It is assumed that lower purity drugs will have a less destructive impact on end users and the community.11     I have found you sourced at least 60 ounces (1.680 kilograms) of “pure” methamphetamine, but that was cut in equal parts with a cutting agent and on-supplied to an amount in excess of 3 kg of methamphetamine at a market rate for

“pure” methamphetamine.  Regardless of all that, yours clearly is a case within Band

Four.

[28]     The Court in Fatu addressed the issue of purity.   The chemical processes involved in manufacture do not enable much more than about 80 per cent purity, with a usual range of between 70 and 80 per cent and almost always over 60 per cent.12    The sentencing bands apply by reference to the weight of what the market would regard as “P” – where purity exceeds 60 per cent.  The Court said in cases where purity levels are less than what would be expected of “P”, the sentencing response can be less stern.13

[29]     The Crown submits that you should be sentenced on the basis of the amount of methamphetamine supplied or offered for supply, the cut amount which is 3.36 kilograms.  Mr Barr submits that I should not discount the quantity but concedes that a reduction in start point is appropriate.  He submits this should not be mathematical exercise.  In considering the extent of an available reduction I should consider the fact the methamphetamine was resold in large quantities, increasing the volume of product in the market, creating large drug debts and increasing the unlawful financial gain to you.

[30]     Your counsel, Mr Sainsbury, on the other hand submits I should not take that approach but that I should sentence you on the pure amount.   He says that in the absence of an ESR or other evidence the amount supplied must be assumed to be pure methamphetamine – i.e. 70-80 per cent pure.  So the one-for-one cut quantity of

3.36 kilograms would be 35-40 per cent pure, a level which makes that weight inappropriate for sentencing purposes.

[31]     I accept that submission.  I consider that where evidence establishes that the quantity supplied is cut to an extent far below 60 per cent purity, the cut weight cannot be used for Fatu or sentencing start point purposes.  I am therefore going to sentence you on the basis of supply of the uncut weight, but recognising that this is the most conservative position along what is in truth is a range, when compared with

comparable cases.   In considering the appropriate level of sentence I also bear in mind the exact quantity and its purity are not the only considerations.  I must also take into account the fact you cheated your customers and sold a more substantial amount creating large drug debts by your customers which you were perfectly happy to enforce.  I bear in mind also Mr Rodgers, your role as leader, organiser and prime beneficiary of this unlawful exercise.

[32]     The Crown submits an overall start point in the range of 20 to 21 years’ imprisonment  is  appropriate.    Mr  Barr submits  the methamphetamine  offending warrants 18 to 19 years given the quantity supplied and the fact you were the lead offender and beneficiary.  Then he submits an uplift of 10 per cent is warranted to take  into  account  the  other  charges  as  aggravating  features  of  the  offending. Although the Crown accepts the conspiracy to defeat the course of justice charge involves  distinct  criminality,  Mr  Barr  says  it  should  be  treated  as  part  of  your conduct as being part of the organised group.

[33]     Your  counsel  submits  a  starting  point  of  13  –  14  years  is  appropriate. Mr Sainsbury accepts an uplift is appropriate for the other offending and for your leadership role, and submits that this should result in a start point of around 15 years.

[34]     I agree with the Crown approach to sentence, except as to the appropriate start point.   I will take the methamphetamine charges as the lead sentence, and impose an uplift for all the other offending as aggravating features of that offending.

[35]     In setting the start point I have considered comparable cases, including those of your co-offenders.

[36]     I place most reliance here on the sentence imposed on the co-offender who was your right hand man, courier and principal salesman.  He gave evidence against you at the previous hearing.  His name is suppressed.  He has been sentenced on the same charges, plus two additional charges of demanding with menaces.   The lead offence  was  the  supply  of  methamphetamine  (2.5  kilograms  of  cut methamphetamine, so somewhat less than in your case).  He was not the leader of the enterprise.   You were.   He was rewarded only menially by you – with food,

accommodation and cigarette money.  Your rewards were altogether different to his. A starting point of 13-14 years’ imprisonment was taken in his case, uplifted to 15 years for the other offending.  While his final sentence was far less than that, it is the start point that matters at the moment.

[37]     I also consider four further comparable cases:

(a)      In R v Zhou14  a start point of 20 years’ imprisonment was taken on methamphetamine charges involving 3.77 kilograms.   Mr Zhou was also high in the supply chain, a major distributor who purchased from the “main linchpin” of the group.

(b)      Related  to  that  case  was  Mr  Huang  in  R  v  Wei  and  Zhong.15

Mr Huang dealt with 2.02 kilograms of methamphetamine, from a stockpile that he controlled.  A start point of 17 years’ imprisonment was imposed there.

(c)      In R v Khan16 Mr Khan was the central member of the group and the main source of supply.  He was sentenced on the basis of the supply of

2  kilograms  of  methamphetamine.     A  start  point  of  16  years’

imprisonment was taken.

(d)Finally, in R v Bouavong17  the offender was a controlling figure in a drug operation and mastermind of the distribution activities of others. He  pleaded  guilty  to  supply  of  over  1.7  kilograms  of methamphetamine and possession of a further 588 grams.  A starting point of 16 years’ imprisonment was imposed, uplifted by two years for pseudoephedrine offending.

[38]     In your case, your starting point must be no less than your co-offender, and should be appropriately higher to reflect your greater culpability, greater volume, and

14     R v Zhou [2009] NZCA 365

15     R v Wei and Zhong HC Auckland CRI-2006-019-8458, 8 May 2009

16     R v Khan HC Auckland CRI-2008-092-2364, 15 October 2009.

17     R v Bouavong HC Auckland CRI-2010-004-12426, 4 May 2012.

vastly greater profit-taking.  I also consider that your offending is less serious than in Zhou where the methamphetamine quantity was higher, but here the period of offending, as Mr Barr has said, was substantially longer.  The quantity involved is most similar to the other cases mentioned where starting points of central figures in drug rings were 16 to 17 years’ imprisonment.

[39]     In my judgment a starting point of 17 years’ imprisonment is justified on the

lead charge.

[40]     The  totality  of  the  other  offending  justifies  an  uplift  of  two  years’

imprisonment.

[41]     The result is a start point of 19 years’ imprisonment.

Aggravating and mitigating factors

[42]     Having  set  the  appropriate  starting  point,  I  next  consider  whether  that sentence should be altered to have regard to aggravating and mitigating factors personal to you.

Aggravating Factors

[43]     The Crown does not seek an uplift on the basis of previous convictions because, as noted, you have few previous convictions for drug offending.

[44]     The Crown does however seek an uplift of 6 months’ imprisonment for your history of violence which it submits is relevant to the manner in which you were able to run and control the drug enterprise.  I agree however with Mr Sainsbury that such an uplift is not required.  Those convictions are not similar serious offending.  The domestic violence convictions are now of some age.

Mitigating features

[45]     I now turn to mitigating features.

[46]     First,  your  expression  of  remorse.    I have  read  the  letters  that  you  and members of your family have written to me.  I thank you and them for taking the time to do so.

[47]     I accept that you have genuine insight into the impact of your offending on your family members.   The evidence I heard at the previous hearing about your commitment to your family, and changed drug-taking behaviour, satisfies me that your remorse towards them is genuine, not mere synthetic self-pity, and that you genuinely want to ensure that your children do not follow your path.  You are rightly proud that all your older children either have jobs or are studying hard.

[48]     I agree with your counsel, Mr Rodgers, that you are not irredeemably bad.  It is clear that you can change your conduct.   It is clear too that you can break the repetitive cycle, born of your upbringing of, criminality and drug abuse.

[49]     What is more disturbing, though, is that you seem to have little insight of the impact of your offending on society generally, on the wretches that have bought your poisonous product, and on those who live with or otherwise have had to deal with them.  These people you do not mention at all in your letter to me, except perhaps in passing on page three. You have explained in your letter how your violence and your criminal offending have been enlarged by your past addiction to P. You, of all people Mr Rodgers should have a sense of what you have done to your customers and their families, because of your own past addiction to P and the impact that has had on you and your family.

[50]     In these circumstances I am prepared to discount your sentence by no more than 5 per cent for remorse.

[51]     Next, your guilty plea.   You were arrested in April 2011.  You pleaded guilty in October 2011.  In normal circumstances you would be entitled to somewhere near the full discount of 25 per cent.  However, the Crown submits that by the disputed facts hearing you have effectively denied the substance of your offending.   The Crown submits this caused the police, Crown, witnesses and this Court to spend

further time and resources in this matter. As such it is submitted a discount of 10 per cent or less is appropriate.

[52]     Your counsel, Mr Sainsbury on the other hand, submits you should lose little from a full 25 per cent discount as your hearing was limited in scope and saved a multi-week trial that would have required the Crown to be put to the proof.

[53]     Any criminal defendant is entitled to put the Crown to proof.  That is his or her constitutional right.  The consequence of doing so should be no more than loss of the discount from sentence which otherwise might have been granted on a guilty plea

– primarily for the avoidance of wasted resources, aversion of the need for lay witnesses to give evidence (which for complainants and other direct witnesses of fact may be traumatic) and by way of commendation for taking responsibility towards society by admitting the substance of offending against its laws at an early stage.

[54]     In this case Mr Barr is right, to an extent, in saying that your disputing of facts – in an effort to reduce the supply level down to 224 grams (7 ounces) when you had to know that the true position was otherwise – diminishes your acceptance of responsibility for your offending.  You cannot now claim the full discount for a guilty plea.   Responsibly, Mr Sainsbury does not suggest that you can.   But I do agree with him that it would be disproportionate to withdraw a discount available for the saving of resource and the need for witnesses to give evidence in a multi-week trial when you have put us of the trouble of a three day hearing. Albeit one requiring considerable preparation to cover core issues the trial would have concerned: your leadership role and your level of supply of methamphetamine.  But as Mr Sainsbury says, there are important policy reasons why the opportunity the Sentencing Act gives to have a disputed facts hearing should not unduly dilute the benefit to be gained from the earlier, and early, guilty plea.

[55]     Bearing in mind Nathan v R18 and Hopwood v R,19 I allow a discount for your guilty plea of 15 per cent.

18     Nathan v R [2011] NZCA 284 at [28].

19     Hopwood v R [2011] NZCA 352.

Finite sentence

[56]     From a start point of 19 years, I reduce that sentence by 5 per cent for remorse and 15 per cent for your guilty plea.  That is a reduction of 3 years and 10 months. That would produce a sentence of 15 years and 2 months’ imprisonment.

[57]     As  the  extra  two  months  in  context  would  serve  no  useful  sentencing purpose, the finite sentence for your total offending will be 15 years’ imprisonment.

Minimum Period of Imprisonment

[58]   Finally, I must consider whether a minimum term of imprisonment is appropriate. The Crown seeks a minimum term of not less than 50 per cent.

[59]     Section 86 of the Sentencing Act 2002 confers a discretion on the Court to impose a minimum period of imprisonment, if the usual minimum non-parole period of one-third of the determinate sentence would  not be sufficient to achieve the purposes   of   accountability,   denunciation,   deterrence   and   protection   of   the

community as set out in s 86(2).20

[60]     I note that in Zhou the Court observed at [19]:

...the pervasive and pernicious influence of methamphetamine in New Zealand society is such that the usual MPI of one-third applicable under the Parole  Act  2002  will  most  often  be  insufficient  to  meet  the  statutory purposes identified in s 86(2) in cases of large scale offending.

[61]     I am reluctantly satisfied that a minimum period of imprisonment should be imposed in this case to reflect the nature and extent of your offending.  Parole after one-third would not be sufficient to denounce and deter your conduct, nor to hold you accountable for the harm this type of offending causes the community.  I much regret that the consequence of this is that, despite your otherwise taking up the opportunity to reform your conduct while in prison, that fact may not be able to be considered as early as it would otherwise.  However the need to denounce and deter

others from dealing in this sort of drug outweighs that more personal consideration.

20     R v Nguyen [2009] NZCA 239 at [31].

[62]     You will therefore serve a minimum period of imprisonment of seven years and six months for supplying methamphetamine.

Formal Sentence

[63]     Stand please, Mr Rodgers.

[64]     You are sentenced, formally, as follows:

(a)       Supplying      methamphetamine      and      offering      to      supply methamphetamine (all eight charges) – 15 years’ imprisonment;

(b)      Participation    in    an   organised    criminal    group    –    three    years’

imprisonment;

(c)       Conspiracy to supply cannabis – two years’ imprisonment;

(d)      Conspiracy    to    obstruct    the    course    of    justice    -    two    years’

imprisonment; and

(e)       Money laundering – four years’ imprisonment.

[65]     All sentences shall be concurrent.

[66]     The final and total sentence therefore is 15 years’ imprisonment, and you will serve a minimum period of imprisonment of seven years and six months for supplying methamphetamine.

[67]     Stand down.

Destruction order

[68]     There will be an order for the destruction of any drug paraphernalia seized in the course of the investigation.

Addendum

[69]     Welcome back Mr Rodgers.  I am sorry this adds insult to what is no doubt injury in your case, but it appears that everyone apart from Madam Registrar has missed that you pleaded guilty to another count in the District Court. That is:

(g)      Conspiracy to supply methamphetamine: 1 count.21

[70]     I will impose another concurrent sentence, which will not increase the total level of your sentencing. Your concurrent sentence for that charge will be four years’ imprisonment.

[71]     Thank you.  Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington

21     Misuse of Drugs Act 1975, s 6(2A).