R v Smith
[2025] NZHC 140
•11 February 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-009-007536
[2025] NZHC 140
THE KING v
ANDREW MICHAEL SMITH
Hearing: 11 February 2025 Appearances:
C R Stuart for Crown
A M S Williams for Defendant
Sentencing Notes:
11 February 2025
SENTENCING NOTES OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
R v SMITH [2025] NZHC 140 [11 February 2025]
Introduction
[1] Andrew Michael Smith, you appear for sentence having pleaded guilty to one representative charge of supplying methamphetamine,1 one representative charge of supplying cocaine,2 two charges of possessing cocaine for supply,3 and one charge each of possession of methamphetamine for supply4 and participation in an organised criminal group.5
The offending
[2] You were arrested as part of a police investigation into a multi-million-dollar methamphetamine and cocaine supply network operated by the Tribesmen Motorcycle Gang (Tribesmen MC) between September 2021 and October 2023.
[3] The police obtained surveillance device warrants that allowed them to intercept private communications and covertly record locations of interest. Police also executed multiple search warrants that revealed large quantities of cash and the seizure of multiple electronic devices.
[4] Ricky Poa (formerly Smith) is a patched member of the Tribesmen MC gang. He holds the rank of National Vice President. Mr Poa has entered guilty pleas, admitting his role in the offending. He has been given and accepted a sentence indication but is yet to be sentenced.
[5] Mr Poa was the principal offender of the methamphetamine and cocaine supply network. He was the leader and, it is acknowledged, the main financial beneficiary of the drug dealing activity. He was primarily responsible for sourcing kilogram quantities of methamphetamine and cocaine from organised criminal groups in Auckland and elsewhere. Consistent with that role, he did not have the controlled drugs or cash in his physical possession. Instead, he arranged for trusted patched members and gang associates to manage, and this is particularly relevant to you, the
1 Misuse of Drugs Act 1975, ss 6(1)(c), (2)(a) and 66; maximum penalty life imprisonment.
2 Sections 6(1)(c), (2)(a) and 66; maximum penalty life imprisonment.
3 Sections 6(1)(f), (2)(a) and 66; maximum penalty life imprisonment.
4 Sections 6(1)(f), (2)(a) and 66; maximum penalty life imprisonment.
5 Crimes Act 1961, s 98A; maximum penalty 10 years’ imprisonment.
transportation of the drugs. He arranged for others to manage the storage of the cash and drugs.
[6] Mr Smith, you are 39 years old. You are a patched member of the Tribesmen MC. You are Mr Poa’s brother and trusted associate.
[7] You were in direct and regular communication with Mr Poa and another co-defendant, Blake Harpur, who was an associate of the gang, described as working towards patched member status. You were acting together in relation to the operation of what has been referred to as the second supply line. That supply line operated under the guise of two businesses owned and operated by Mr Harpur, a towing company named CANT0W and a vehicle detailing business named Cany Customs.
[8] Between May 2023 and October 2023, you and Mr Harpur organised for cash to be transported from Christchurch to Auckland and for methamphetamine and cocaine to be brought back to Christchurch on tow trucks and other company vehicles.
[9] It was not financially viable for the business to transport vehicles to and from Auckland. However, Mr Harpur maintained a very small client base who would occasionally require one or two vehicles to be transported to Christchurch at a time. This provided the illusion of legitimacy to these trips. You and Mr Harpur spent a lot of time at the business premises of Cany Customs. You were not employed at the business, and you did not carry out any legitimate work there.
[10] Mr Harpur would regularly update you on the deliveries of drugs and cash in the supply line. He received some instructions from you. Together, the two of you managed the transportation of cash to Auckland and the collection of methamphetamine and cocaine from Auckland and the subsequent distribution of those drugs through the network.
[11] The drivers, and predominantly another co-defendant, Tramayne Rauhihi, but also both you and Mr Harpur, would meet with unknown persons from organised criminal groups and exchange cash for wholesale quantities of methamphetamine and cocaine. Those exchanges would occur in supermarket car parks, forecourts of service
stations, or at another co-defendant’s address. Drug deliveries would be received and processed at Mr Harpur’s business address in Rangiora ready for wider distribution in the network.
[12] The summary of facts tells me the last trip took place on 3 October 2023. Mr Rauhihi was arrested at the Gull Service Station in Mt Roskill, Auckland. He had nearly two kilograms of methamphetamine and over 1.5 kilograms of cocaine in his possession. Earlier that day, Mr Smith, you had sent him a message explaining that that delivery was “only small shit and it will help you get across the line while you are quiet”—indicative that this quantity was smaller than usual.
[13] A schedule of all trips taken by the three of you in the two trucks records 14 completed deliveries of drugs to Christchurch in the tow trucks, in addition to the intercepted run on 3 October 2023. The summary tells me you also sold methamphetamine and cocaine at a street level.
[14] Based on the intercepted communications, the total amount of methamphetamine and cocaine attributable to supply line two was 25 kilograms of methamphetamine and 5 kilograms of cocaine. A total of $497,465 cash was seized at addresses linked to the operation during the offending period. When you were arrested on 17 October 2023 police located $6,000 cash on your person and $15,500 cash and a cash counting machine at your home address.
Personal Background
[15] I have a significant amount of material about your personal circumstances. In addition to the pre-sentence, cultural and alcohol and drug reports, I have a detailed affidavit from you, which I have read carefully, and from your mother, and I have supporting letters from your partner, your daughter and your counsellor.
Department of Corrections’ pre-sentence report
[16] The pre-sentence report details your upbringing for me. You were raised by your mother and stepfather in South Auckland. You reported experiencing ‘quite a
violent upbringing’ with particular instability that you recall when you were aged around 12 to 13. I will detail those matters again a little bit shortly.
[17] The pre-sentence report tells me you have full custody of your two older children. You have a partner, with whom you have a child. Your partner has advised that she was pregnant at the time of your offending. She remains supportive.
[18] The pre-sentence report tells me that you accumulated 30 convictions in the District Court between 2004 and 2023. That includes convictions for dishonesty, non-compliance with court orders, arson and violence. Most relevantly, since 2011 you have repeatedly been engaged in Class A drug dealing. You were sentenced to 20 months’ imprisonment in 2011 for selling methamphetamine and unlawfully possessing a firearm. You were sentenced to two years and 10 months’ imprisonment in 2015 for the possession of methamphetamine for supply. And in 2020 you were sentenced to five years and nine months’ imprisonment for multiple methamphetamine dealing charges.
[19] That tells me, Mr Smith, that you have been dealing in methamphetamine for over 12 years. Previous sentences have not clearly deterred you from further offending.
[20] The report tells me the primary causative factors of your offending were reported by you to be your association with antisocial influences and your associated offending supported attitude, also your personal drug use, in particular, cocaine. You told the report writer you felt loyal to the gang and, in particular, to your brother, Mr Poa, with whom you previously shared a strained relationship. You say you felt compelled to try and heal the relationship you had with him. You say you were one of the last people to ‘join the operation’. You deny that you were ‘managing’ the supply of methamphetamine. You maintain you were only involved in arranging transport in order to secure discounted drugs for yourself.
[21] You were assessed by the report writer as being a high risk of harm to others and have a high likelihood of offending in the future.
Section 27 report
[22] The s 27 report provides significant detail about your personal background. I accept you had a very traumatic childhood. The report identifies a number of factors said to be causative of this offending. That includes your substance use disorder and your cocaine addiction. That is said to have led to your association with the gang in the first instance. It refers to your personal and, what I call, spatial risk factors that are said to have predisposed you towards gang membership. It talks about your childhood trauma; your sense of family loyalty; responsibility and obligation which led you to feel obligated to help your brother in the gang; and also to provide for your family. You were seeking financial support from the gang. Finally, the report refers to you expressing a sense that you have been institutionalised as a consequence of the significant periods you have spent in prison.
[23] The report does consider that you present as sincerely remorseful for your offending, and it tells me you are highly motivated to change. The report says that motivation is driven by your desire to be a good father, a good partner. I am told you are actively seeking rehabilitation and you hope to attend Moana House after you have completed your sentence.
AOD report
[24] The Alcohol and Drug (AOD) report says you meet the DSM-5 criteria for severe methamphetamine use disorder, currently in sustained remission. You meet the criteria for severe cocaine use disorder, again in remission, so long as you are within a controlled environment, and you meet the criteria for a severe alcohol use disorder, but again in sustained remission provided you are in a controlled environment. It says you potentially have undiagnosed post-traumatic stress disorder, attention-deficit hyperactivity disorder, and an anxiety disorder. It is recommended that you undergo a comprehensive psychological assessment to confirm or rule out those potential diagnoses. I hope that happens while you are in prison.
Approach to sentencing
[25] The Sentencing Act 2002 sets out the purposes and principles of sentencing that I must take into account when I sentence you today. The relevant purposes include accountability, denunciation, deterrence and your rehabilitation. I need to consider the gravity of your offending, the degree of your personal culpability, the seriousness of this offending, and the general desirability of consistency in imposing sentences for like offending. I am required to impose the least restrictive outcome that is appropriate in the circumstances.
[26] I must fix a term of imprisonment that is commensurate with the seriousness of your offending, in accordance with sentencing guidelines that have been provided by the senior appellate courts for Class A drug offending.6 Broadly speaking, your culpability is to be assessed, as I am sure Mr Williams and Ms Stitley have explained to you, by reference to the quantity of the drugs involved in your admitted offending,7 and also by the role that you played in the offending. From there, I must consider matters that are personal to you that could either aggravate, that is to uplift, or mitigate, that is to deduct, from what I assess to be the appropriate starting point.
[27] It is important in sentencing you today that I recognise and that you recognise the harm that is caused by serious drug offending, particularly methamphetamine. The distribution of methamphetamine and cocaine, has countless victims in the community. I am repeating what I said to Mr Linton earlier this morning. Those people who become addicted to methamphetamine and cocaine often experience the very worst outcomes including adverse mental health consequence, criminal offending committed to fund addiction, the breakdown and destruction of personal relationships, of employment relationships, and ultimately, social deprivation.8 I think everybody in our community is aware that methamphetamine causes havoc to so many people. You must know that. I am sure it has been spelt out to you when other Judges have sentenced you in the past.
6 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509; Zhang v R [2019] NZCA 507, [2019] 3
NZLR 648.
7 Zhang v R, above n 6, at [104], [106]–[117] and [126]–[127].
8 At [78]–[79].
Starting point
[28] Before I determine the starting point, I briefly address the appropriate approach I take, an approach which is necessary to consider because your offending involves very significant quantities of both methamphetamine and cocaine.
[29] Mr Stuart, for the Crown proposes that to distinguish between the two charges, I should adopt discrete starting points, accumulate them and then make a totality adjustment. Mr Williams, on your behalf, submits it is more appropriate to take a global starting point for the total quantity of drugs involved and then to make a proportionate deduction to reflect that one-sixth of the drugs that you are to be sentenced in relation to were cocaine as opposed to methamphetamine. That approach reflects the approach adopted by the Court of Appeal in Cavallo v R, which held sentencing for cocaine should not exceed sentencing for equivalent amounts of methamphetamine and should generally be sentenced slightly below the comparable methamphetamine starting points.9 The Court suggested a five per cent lower starting point for cocaine.10
[30] If I was to adopt the Crown approach, there would be a starting point of 15 to 17 years for the methamphetamine offending with an uplift of eight to 10 years for the cocaine offending and then a totality adjustment to a revised starting point of 18 to 20 years’ imprisonment. But given all your offending falls within the same operation and involves you performing the very same role, I prefer Mr Williams’ approach and I intend fixing a global starting point for all of the Class A drug offending reduced to reflect that one-sixth of the drugs was cocaine. As you have heard, Mr Williams says with that analysis and taking into account your role, which I will discuss shortly, the adjusted starting point should be one of 14–15 years.
[31] The lead charges are obviously the charges that relate to the supply of methamphetamine and cocaine, each of them carry a maximum penalty of life imprisonment. That reflects their seriousness. I am satisfied that your participation in
9 Cavallo v R [2022] NZCA 276.
10 At [63].
the organised criminal group simply forms part and parcel of your drug offending and I will subsume that within the starting points I adopt for the drug offending.
[32] The Court of Appeal in Zhang v R provided guidelines for sentencing in relation to Class A controlled drugs.11 The Court identified sentencing bands relating to the quantity of drug involved. Quantity is assessed by reference to five bands with band five being the most serious and that kicks in and applies whenever the quantities are more than two kilograms.12 The Court of Appeal in Zhang said that starting points for offending that falls within band five should be in the range of 10 years to life imprisonment.13
[33] The total quantity of the Class A drugs that you were involved in dealing via the second supply line is conservatively estimated at 25 kilograms of methamphetamine and five kilograms of cocaine. That is 30 kilograms and so patently within band five.
[34] The Court in Zhang also identified that for the purpose of determining the starting point the characteristics of different roles played by offenders must be considered. The Supreme Court in Berkland v R updated that consideration and the factors that ought to be taken into account to decide whether the role an offender played falls within what is called the “lesser”, “significant” or the “leading” role category.14
[35] The Crown submits that you played a significant managerial function and that you are at the upper end of the significant category. Mr Williams acknowledges that you fall in that “significant” category but says that you fall towards the lower to mid-range of that category.
[36] I am satisfied in fixing the starting point, Mr Smith, that you must have been aware of the full scale of this offending. Whilst you are not to be sentenced as the leader or a key organiser of the second supply line, you communicated and coordinated
11 Zhang v R, above n 6.
12 At [125].
13 At [125].
14 Berkland v R, above n 6, at [71].
the delivery of cash and drugs, working closely alongside Mr Poa and Mr Harpur. You were involved with discussions about compensation for Mr Harpur and Mr Rauhihi for their involvement in the network. You were personally involved in the distribution of street-level quantities of cocaine, and you were found in possession of cutting agents.
[37] I accept that while others such as Mr Harpur were financially compensated for their role, there is no evidence you made any money out of the operation. Mr Stuart has confirmed that again this morning. Rather, you received discounted drugs to feed your own addiction. Mr Williams highlights that as being an important factor, which he says would place you in the middle to lower range of the “significant” category.15
[38] I have had regard to a number of cases as I have tried to settle on what the appropriate starting point is. I will mention these cases briefly:
(a)Zhang v R:16 The appellant occupied a significant role in the importation of 18 kilograms of methamphetamine but did not lead or direct the operation. A starting point of 15 years’ imprisonment was considered appropriate.
(b)Zhang v R:17 Mr Yip occupied a leading role in the importation of 60 kilograms of methamphetamine but he did not have significant decision-making power and his reward was modest compared to his role. A starting point of 23 years’ imprisonment was considered appropriate.
(c)Pai v R:18 Mr Pai occupied a lower-end significant logistical role under the direction of a supervisor in importing 22.6 kilograms of methamphetamine. There was no evidence he had knowledge of the scale of the operation and his reward was modest compared to his role. A starting point of 15 years’ imprisonment was considered appropriate.
15 Berkland v R, above n 6, at [70], [71] and [76].
16 Zhang v R, above n 6.
17 At [300].
18 Pai v R [2020] NZCA 146.
(d)R v Vuletic:19 Mr Vuletic occupied a role with a mid-level of significance in importing 40 kilograms of methamphetamine. He had management functions but worked under a supervisor, however he made his own decisions, made pick-ups, was involved in distribution and expected to benefit financially. A starting point of 15 years’ imprisonment was considered appropriate.
(e)R v Zhang:20 Mr Zhang played a mid-level significant role in importing 21 kilograms of methamphetamine. He understood the scale of the operation, frequently retrieved and delivered goods to people and obtained payment and there was clear commerciality. A starting point of 16 years’ imprisonment was imposed but described as being at the lower end of the available range.
(f)Cook v R:21 Mr Cook occupied a role of mid-to-low level significance in importing 35 kilograms of cocaine. He accepted a fee of USD 50,000 and acted as the “right hand man” by his co-offender. He made all practical and logistical support on the ground in New Zealand but was found to have substantially less authority and anticipated reward than his co-offender. A starting point of 17 years’ imprisonment was considered appropriate.
(g)Cooper v R:22 Mr Cooper occupied a role at the lower end of significance in importing 39.7 kilograms of methamphetamine. He participated in the planning and documentation and facilitated its delivery and the regulatory processes to get the drugs released into their custody. A starting point of 16 years’ imprisonment was considered appropriate.
19 R v Vuletic [2024] NZHC 562.
20 R v Zhang [2021] NZHC 3583.
21 Cook v R [2020] NZCA 469.
22 Cooper v R [2020] NZCA 510.
(h)Cooper v R:23 Mr Vea occupied a role as a mere “catcher” in importing eight kilograms of methamphetamine. He used his employment at Customs to organise shipments of methamphetamine to enter the country undetected and direct where they were to be shipped to. The abuse of his trusted position was a particularly aggravating factor. A starting point of 20 years’ imprisonment was considered appropriate.
Analysis
[39] The view I take, Mr Smith, is that for your offending the quantity of the drug involved is a very significant factor in assessing the starting point. As for your role, you were involved in a major gang drug dealing operation that was being run by your brother. You were a patched member of the gang. Your offending continued over a prolonged period of time. You were close to the original source of the drugs. You were in direct communication with Mr Poa. I am satisfied you had knowledge of the scale of the operation. You took on what I describe as an important role managing and implementing the second supply line, including providing directions to Mr Harpur and communicating with others in the network. You appear to have been motivated, I accept, by an understandable desire to develop a healthy relationship with your brother. You were also motivated by your cocaine addiction. I accept that. But in my view, you were also significantly motivated by your loyalty to the gang in which you were a patched member. Within that gang lies responsibilities and hence you took on the role that you took. I accept you were rewarded with discounted cocaine.
[40] When I stand back and look at all those factors, I agree your role does fall within the significant category and I find you fall in the mid-level rather than the high level of that category.24
[41] Both counsel have referred to the need for parity with the sentence that is yet to be imposed on Mr Poa, your brother. He has accepted a sentence indication. That indication provided a starting point of 19 years for his role as the “principal offender” in relation to 13 kilograms of methamphetamine and two kilograms of cocaine.
23 R v Vea [2019] NZHC 3422.
24 Berkland v R, above n 6, at [71].
Plainly he is to be sentenced for significantly lesser quantities than you. That is just the nature of the way this operation has unfolded in terms of police detection. But I agree with Mr Williams that because there is no doubt you were operating under the instruction and influence of your brother, that in the interests of parity, your starting point must be lower than Mr Poa’s, notwithstanding the quantities involved.
[42] When I stand back and have regard to the quantity of drugs, the role I assess you played, and when I cross-check that against the various starting points I have summarised in the cases counsel have referred to me, I adopt a starting point of 16 years’ imprisonment for your drug offending.
[43] In line with guidance provided in Cavallo, I adopt a five per cent deduction to reflect that five kilograms was cocaine, which is, generally speaking, the less pernicious drug than methamphetamine. The adjusted starting point is 15 years and six months’ imprisonment.
[44] I do not propose, as I said, making an uplift to reflect the OCG charge. I consider that to have already been accounted for, given this offending occurred in the context of an organised drug supply network. The starting point of 15 years and six months’ imprisonment is for all offending.
Personal aggravating factors
Previous convictions
[45] The Crown, as you have heard, seek an uplift to your starting point because of your previous drug dealing convictions. Mr Williams does not contest that an uplift is justified but submits it must be proportionate to the sentences that were imposed for your previous offending and takes into account the significant sentence that is being imposed today. As I have observed, the previous sentences that have been imposed on you have not deterred you from continuing to be involved in methamphetamine dealing. An uplift is called for. The minimum I think I can responsibly impose is one that equates to about five per cent, which is a nine-month uplift.
Personal mitigating factors
[46] There are a number of personal mitigating factors that Mr Williams contends, and I accept, must be factored into your end sentence.
Guilty plea
[47] You pleaded guilty following a request for a sentence indication, a request that was not ultimately pursued. Some charges had been withdrawn and there have been some amendments to the summary of facts. Mr Williams says the case was very complex and required care and consideration before pleas could be entered. He submits that a full 25 per cent credit is available. Mr Stuart points to the fact that you did request a sentence indication and on his submission the changes to the structure of the case you faced were not significant. Consequently, Mr Stuart submits the guilty plea deduction ought to be between 15 and 20 per cent.
[48] I cannot find that your pleas were entered at the first reasonable opportunity, but they were entered early and I accept a high end deduction is still appropriate. I fix that at 20 per cent.
Cultural report
[49] I have referred to the cultural report that details the trauma you faced growing up, including abuse and abandonment from your family, and what was really your search for belonging within a gang environment. It refers to poor educational outcomes. It refers to your early addiction to drugs.
[50] There is no question you lacked stability growing up. That gave rise to your involvement in drugs and to antisocial influences. I can understand why you might describe yourself as institutionalised because you have spent significant periods in prison and you have struggled to live a life free from antisocial influences once you were released into society. With hindsight, no doubt you would do things differently if you had the chance to be released again, because I acknowledge that when you were last released from prison, you ended up living with your brother and that, perhaps, was the beginning of your current downfall.
[51] As recorded in both the s 27 report and the pre-sentence report, you are using the time you have been in custody since your arrest wisely. You are gaining insight into how your background has come to influence your behaviours and your offending and there is a consensus view that you are motivated to break this pattern of addiction and offending.
[52] Whilst Mr Williams acknowledges that in cases of complex or orchestrated offending, which no doubt this was, the background factors may become less relevant as factors that reflect on the culpability, I agree that a discount is available having regard to the matters set out in the s 27 report. I accept they do provide a credible account of matters that have led to impairing the choices that you have made and they do diminish your culpability. The Court is not required to be satisfied that those matters are the proximate cause of your offending, simply that there is a causal connection.
[53] In my view, that causal connection is real. I will allow you a deduction of 15 per cent to reflect those various factors.
Addiction and rehabilitative potential
[54] A discrete credit is sought by Mr Williams for addiction and rehabilitative potential.
[55] You were introduced to methamphetamine by your sister at age 17. You quickly became addicted. Whilst you have been abstinent since your last prison sentence, on release you moved in with your brother, as I have just said, and you became associated with the Tribesmen MC. You were introduced to cocaine. Inevitably, you quickly became addicted.
[56] I accept generally that your addictions have driven your offending and it is not insignificant that for your role in this criminal network you were paid in cocaine or discounted drugs.
[57] You have engaged previously and completed rehabilitation programmes. They have been effective in that you have been able maintain your abstinence from
methamphetamine. You are now beginning to enjoy some of the benefits of being clean from drugs, including developing more healthy relationships with those who care about you.
[58] I have factored the role of addiction into the deduction I allow for personal background factors generally, but I will allow a further five per cent to reflect and encourage your rehabilitative prospects.
Parental incarceration
[59] Finally, Mr Williams seeks a deduction for what is described in modern parlance as parental incarceration. Mr Williams, with reliance on the Court of Appeal’s finding in C v Police submits that the impact of imprisonment on your children must be considered in fixing the appropriate sentence.25
[60] You have two teenagers, of whom you have full custody, and you have a one-year-old son or maybe two years old now. I have received a letter from your partner who explains the difficulties your children are facing not being able to see and connect with you while you are in prison. I have also read a very thoughtful letter from your daughter, who expresses her desire to have you at home. She refers to the struggles your family face due to your incarceration. She says she has noticed a change in you, that you seem more eager to please, to change since your son was born, and she does believe, and I can sense it is a genuine belief, that you have the strength and you do have the heart to change if you are surrounded with the right supports. I sense you know, Mr Smith, how fortunate you are to have family who still love and care for you notwithstanding what you have put them through over so many years.
[61] The lengthy sentence of imprisonment that I must impose today will significantly impact the lives of your children, their relationship with you, and particularly for your very young son. I hope that your children, including that son, will motivate you to be a better role model.
25 C v Police [2024] NZCA 136 at [39], [42] and [54].
[62] I will allow a further deduction of a deduction of five per cent to recognise the impacts of parental incarceration.
[63] With an uplift of five per cent for your previous convictions, and total deductions of 45 per cent, the net deduction from the adjusted starting point is 40 per cent.
Minimum period of imprisonment
[64] The Crown seek a minimum period of imprisonment (MPI). Section 86 of the Sentencing Act 2002 provides that the sentencing Judge may impose an MPI on any sentence of more than two years’ imprisonment, if the period provided for under s 84(1) of the Parole Act 2002 is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending;
(b)denouncing the conduct in which the offender was involved;
(c)deterring the offender or other persons from committing the same or similar offence; and
(d)protecting the community from the offender.
[65] The principles and purposes set out in ss 7, 8, and 9 of the Sentencing Act are relevant to a court in determining whether to impose an MPI.26 It is not an order that should “be imposed as a matter of routine or in a mechanistic way”.27
[66] As a general rule, MPIs are properly reserved for cases involving significant commercial dealing.28 This case falls within that category. However, in Tamati v R the Court of Appeal noted “a sentencing Judge should avoid giving the impression, when imposing an MPI, that credit for any mitigating factors has been erased”.29 I am
26 R v Nguyen [2009] NZCA 239 at [33]–[34]; and R v Brown [2002] 3 NZLR 670 (CA) at [34].
27 Zhang v R, above n 6, at [169].
28 At [171].
29 Tamati v R [2018] NZCA 463 at [14].
conscious not to neutralise the allowances I have made for your personal circumstances.
[67] It is not surprising that Mr Stuart, for the Crown, submits that in light of your criminal history an MPI is called for. But Mr Williams says an MPI is not required as the lengthy finite sentence that I must inevitably impose is sufficient to hold you accountable, and to denounce and deter your offending. I have given this matter careful consideration, Mr Smith, and ultimately because I acknowledge that your addiction and your relationship with your brother are key factors that explain your offending, I am not persuaded that an MPI is called for. I will leave it to the Parole Board to decide when you should be released. You will be eligible for parole after one third of your sentence has been served.
Result
[68]Mr Smith, can you please stand.
[69] On the charges of supplying methamphetamine, supplying cocaine, possessing cocaine for supply, possessing methamphetamine for supply and participation in an organised criminal group, you are sentenced to nine years and three months’ imprisonment. I impose that sentence concurrently on all charges other than the participating in an organised criminal group charge, which I will impose a two-year concurrent sentence.
[70] Mr Smith, I just say this in parting, the material I have read tells me you have potential. I hope for the sake of your loved ones you continue to make the most of the opportunities that are going to be afforded to you while you are serving this sentence and that you can be the father and partner that I sense you strive to be.
[71]You may stand down.
…………………………
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
A M S Williams, Barrister, Christchurch
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