R v Singer
[2022] NZHC 2488
•29 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2020-004-9587
[2022] NZHC 2488
THE KING v
JARRAD SINGER
Hearing: 29 September 2022 Appearances:
B Kirkpatrick for the Crown H Leabourn for Mr Singer
Date:
29 September 2022
SENTENCING NOTES OF CAMPBELL J
R v SINGER [2022] NZHC 2488 [29 September 2022]
Introduction
[1] Mr Singer, you appear for sentence having pleaded guilty to a charge of accessory after the fact to possession of methamphetamine for supply.1 Today I will impose a sentence on you for that offence in accordance with law.
Offending
[2] A summary of facts was presented to the Court when you pleaded guilty. You accepted that summary of facts. I will sentence you on the basis of those facts, together with any inferences I can draw from them.2
[3] In 2020, the Police National Organised Crime Group began an investigation (“Operation Cincinnati”) into a drug syndicate comprising primarily members of the Comancheros and Rebels motorcycle clubs, and various associates. The investigation centred on the syndicate’s apparent involvement in the importation, manufacture, production and commercial scale supply of various controlled drugs in New Zealand. 14 individuals, including you, were charged in connection with the investigation.
[4] At around 6.00 pm on 5 August 2020, two associates of the Comancheros delivered a commercial quantity of methamphetamine to a property in Christchurch. You and your co-defendant Luke Mathers, both patched Rebels members, greeted the Comancheros associates, and all four of you went inside the property. Mr Mathers took possession of the methamphetamine. The Comancheros associates then left.
[5] A few minutes later, Police executed a search warrant at the property. You and Mr Mathers flushed the methamphetamine down a sink and toilet. The two of you also smashed three cell phones. You initially refused to exit the premises, but eventually surrendered to Police.
[6] Police had intercepted the methamphetamine as it was in transit to your Christchurch property. A Detective picked up the methamphetamine and estimated
1 Crimes Act 1961, ss 71 and 312; and Misuse of Drugs Act 1975, s 6(1)(f) and 2(a). Maximum penalty: seven years’ imprisonment.
2 R v R [2019] NZCA 135 at [33]; R v Kinghorn [2014] NZCA 168 at [20] and [31]; Pokai v R [2014]
NZCA 356 at [30]–[36]; and R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494.
it weighed two kilograms. However, it was not weighed with scales. As a result of your actions, Police were not able to weigh the methamphetamine after it was in Mr Mathers’ possession.
Approach to sentencing
[7] The Sentencing Act 2002 sets out the purposes and principles of sentencing. In the context of methamphetamine offending, relevant purposes include holding you accountable for the harm that your offending has done to the community, promoting in you a sense of responsibility for that harm, denouncing your conduct, deterring you and others from committing similar offending, and protecting the community.3
[8] The principles include the need to consider the gravity of your offending and your degree of culpability, the seriousness of these offences and the general desirability for consistency with sentences that have been imposed in similar cases. I must also impose the least restrictive outcome that is appropriate in the circumstances.4
[9] Determining the appropriate sentence involves, in your case, three steps. First, I must determine a term of imprisonment as the “starting point” for the sentence, which will be based on the seriousness of the offending to which you have pleaded guilty. Secondly, I will consider your personal circumstances, including the appropriate deduction for your guilty plea.5 This will produce a notional end sentence of imprisonment. Thirdly, I will consider whether some sentence other than imprisonment is more appropriate.
Starting point
[10] As to the starting point, there is no tariff decision on sentencing accessories after the fact. Starting points can vary depending on the nature and seriousness of the
3 Sentencing Act 2002, s 7(1). See also R v Terewi [1999] 3 NZLR 62 (CA) at [13]; and Zhang v R
[2019] NZCA 507, [2019] 3 NZLR 648 at [58].
4 Section 8.
5 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].
primary offending and the level of assistance the offender provided in the commission of the primary offence.6
[11] Mr Kirkpatrick, for the Crown, referred me to several comparator cases that will help me to locate a starting point for your offending.7 Your counsel, Mr Leabourn, did likewise.8 I do not propose to discuss the cases in detail. Given the wide range of factual circumstances underlying those cases, they are of only limited usefulness in this sentencing exercise. What those cases do show is that relevant factors are the nature, duration and degree of assistance you provided Mr Mathers and the consequences of your conduct.
[12] In my view, there are several aggravating features to your offending. First, Mr Mathers’ underlying offending was very serious. Although the weight of the methamphetamine has not been established for the purposes of this sentencing, even if it was only 1 kg of methamphetamine that would justify a starting point of between eight and sixteen years’ imprisonment on a possession for supply charge.9 Secondly, your assistance was deliberate. You knew Police were outside. Thirdly, your assistance destroyed evidence; it did not merely hide it. Fourthly, the consequence was to thwart or obstruct a fully effective prosecution of Mr Mathers.
[13] Given those features of your offending, I consider that the appropriate starting point is 18 months’ imprisonment.
6 R v Tito [2015] NZHC 2969 at [20].
7 R v Te Poono [2020] NZHC 308 (accessory after the fact to causing grievous bodily harm with intent; starting point of 12 months’ imprisonment would have been appropriate if sentenced on a stand-alone basis); R v Bracken [2021] NZHC 2615 (accessory after the fact to wounding with intent to cause grievous bodily harm; starting point of 14 months’ imprisonment); R v Granich [2013] NZHC 2657 (accessory after the fact to murder; starting point of 15 months’ imprisonment); R v Te Moana [2018] NZHC 1480 (accessory after the fact to manslaughter; starting point of 21 months’ imprisonment); R v Swinton (co-defendant of offender in R v Te Moana; starting point of 21 months’ imprisonment); and R v Yu (accessory after the fact to murder; starting point of three years and three months’ imprisonment).
8 Duncan v R [2013] NZCA 354 (accessory after the fact to wounding with intent to cause grievous bodily harm; starting point of 12 months’ imprisonment) R v Tito [2015] NZHC 2969 (accessory after the fact to wounding with intent to injure; starting point of 10 months’ imprisonment); and Boskell v R [2015] NZHC 286 (accessory after the fact to murder; starting point of 10 months’ imprisonment).
9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
Personal circumstances
[14] I now turn to your personal circumstances and any uplifts to or allowances against your notional sentence that those circumstances require.
[15] You have previous convictions, including convictions for various drug possession and cultivation offences. I consider that these warrant a minor uplift of 10 per cent on the starting point.
[16] You are entitled to credit for your guilty plea. Mr Kirkpatrick accepted that credit in the range of 20 to 25 per cent is available. Mr Leabourn argued for the larger credit. You pleaded guilty late, on the first day of the scheduled trial. However, your late plea is explained in part by the Crown having reduced the charge against you from one of possession for supply, as part of a proposed resolution. I am told that, as soon as that change occurred, you pleaded guilty. Because the reduction in the charge was itself a benefit to you, however, it is not appropriate to allow a full 25 per cent credit.10 I allow 20 per cent.
[17] I have reviewed the pre-sentence report. It states that you were deeply impacted by your father’s death in 2013, feeding into your offending. It reports that your offending has led to the loss of your home and family. You are said to have demonstrated motivation to change your behaviour by enrolling in, and completing, the Salvation Army Bridge Programme. And you are said to have taken responsibility for your offending, stating that it was your decision to be at the gang pad. I also have before me a number of letters of support and character references. They speak to your work ethic, devotion to family and friends, and motivation to change. Since the offending you have moved away from Christchurch to the West Coast, where you now have a stable job.
[18] I am satisfied from these that you have taken responsibility for your offending and have taken some steps towards rehabilitation. I consider it is appropriate to allow 10 per cent credit for this.
10 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62]; and R v Niania [2020] NZHC 241 at [26].
[19] Finally, you have been on EM bail since 7 September 2020, except for about a month and a half when you returned to custody. Some allowance is necessary for that. There is no fixed formula. Much turns on the relative restrictiveness of the bail conditions and your compliance with them.11 For about nine months of that EM bail you were subject to a 24 hour curfew. I allow six months credit for that. For another 14 months you were subject to a night-time curfew only. I allow three months for that period. I have not been told of any compliance issues. As noted, you were returned to custody at one point. This was a result of a new and separate charge against you. But that charge was dismissed, and I put it to one side.
End sentence
[20] In summary, I take a starting point of 18 months’ imprisonment. I apply an uplift of 10 per cent for your previous convictions, and make allowances of 20 per cent for your guilty plea, 10 per cent for your efforts towards rehabilitation and nine months for time spent on EM bail. This gives a presumptive end sentence of five and a half months’ imprisonment.
[21] You have already spent two and a half months in custody on this charge. You now have a stable job. In these circumstances, I consider the appropriate end sentence is not one of imprisonment or even home detention.
[22] The pre-sentence report recommends intensive supervision, perhaps with community detention. I do not accept that recommendation.
[23] First, I consider any form of further detention inappropriate, in light of the time you have already spent in custody or subject to an electronically monitored curfew.
[24] Secondly, I can only impose intensive supervision as opposed to ordinary supervision in the limited circumstances set out in s 54C of the Sentencing Act. Mr Singer, you have heard me talk to the lawyers about that. I am not satisfied that any of those circumstances are present here. There is no recommendation in the pre-sentence report of a residential programme for you. There is recommendation for
11 Sentencing Act, s 9(3A).
judicial monitoring, but there is no explanation for why there should be such monitoring. Mr Kirkpatrick agreed with me that it was not justified.
[25] In these circumstances, intensive supervision is not appropriate or even available to me.
[26] Ordinary supervision, however, is appropriate. I agree that it should be imposed on you for 12 months.
[27] I have discussed with counsel the special conditions that should be imposed on you in relation to such supervision. Mr Singer, you would have heard that discussion. Of the various special conditions that are recommended in the pre-sentence report, I do not agree that it is appropriate to have a condition that you not be within a 100 kms of Christchurch without prior written approval of a Probation Officer, nor do I consider that it is necessary or appropriate for there to be a ban on the consumption of alcohol, given an equivalent ban was removed during the long time on which you were on EM bail.
Result
[28]Mr Singer, please stand.
[29] For your conviction on the charge of accessory after the fact to possession of methamphetamine for supply, I sentence you to supervision for a period of 12 months.
[30] You will be subject to the standard conditions of supervision in the Sentencing Act. I will also impose the following special conditions:
(a)to attend an assessment for a Short Rehabilitation Programme as directed by a Probation Officer;
(b)to attend and complete any counselling, treatment or programme recommended by the assessment, as directed by, and to the satisfaction of, a Probation Officer;
(c)not to communicate in any way or associate with Rebels Motorcycle Club members, without the prior written approval of a Probation Officer; and
(d)not to possess, consume or use any drugs not prescribed to you.
[31]Please stand down.
Addendum
[32] After I delivered the above sentencing, Mr Leabourn respectfully raised an issue about my description of the facts of the offending. He said that, despite what was said in the accepted summary of facts, Mr Singer had not gone inside the property with the Comancheros Associates. He went inside only after the Comancheros associates left. Mr Leabourn said that this was clear from the CCTV footage that Police had obtained from the property. Mr Kirkpatrick agreed that this was shown in the CCTV footage.
[33] I said that I would record this in an addendum to these notes, but that this change did not make any difference to the sentencing. I record that Mr Leabourn did not suggest that it made any difference.
Campbell J
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