R v Smith
[2022] NZHC 1975
•11 August 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-5265
[2022] NZHC 1975
THE QUEEN v
JAMES SMITH RICHARD HELLER BRITTANY TIMOKO
Hearing: 11 August 2022 Appearances:
D Young for the Crown
S R Norrie and K R Borich on behalf of T Cooper for Mr Smith J Gurnick for Mr Heller
R Laybourn for Ms Timoko
Judgment:
11 August 2022
SENTENCING NOTES OF POWELL J
Solicitors/Counsel:
Hamilton Legal, Hamilton (D Young)
T Cooper, SR Norrie and K R Borich, Auckland J Gurnick, Barrister, Hamilton
R Laybourn, Barrister, Hamilton
R v SMITH & ORS [2022] NZHC 1975 [11 August 2022]
[1] James Smith, Richard Heller and Brittany Timoko, you each come up for sentence today. You have all pleaded guilty to sentencing indications on a range of charges arising out of your respective involvement in an operation manufacturing and supplying methamphetamine in the Waikato region.1
[2] Each of you has pleaded guilty to representative charges of supplying methamphetamine.2 In addition:
(a)Mr Smith has pleaded guilty to one representative charge of manufacturing methamphetamine;3
(b)Mr Smith and Mr Heller have pleaded guilty to charges of possession of methamphetamine for supply;4
(c)Mr Smith (one charge) and Mr Heller (two charges) have pleaded guilty to participation in an organised criminal group;5 and
(d)Ms Timoko has pleaded guilty to a representative charge of offering to supply methamphetamine.6
[3] Mr Smith, at your sentence indication Venning J indicated a starting point of 12 years’ and four months’ imprisonment for your methamphetamine related offending would be appropriate.7 This included a four-month uplift for offending whilst on supervision. His Honour indicated that your sentence would be reduced by 20 per cent if you pleaded guilty.8
1 For Mr Heller and Ms Timoko, these were given by me on 1 April 2022 (R v Heller [2022] NZHC 663; R v Timoko [2022] NZHC 661). Mr Smith accepted a sentence indication given by Venning J on 9 February 2022 (R v Smith [2022] NZHC 126).
2 Misuse of Drugs Act 1976, ss 6(1)(c) and (2): maximum sentence of life imprisonment.
3 Misuse of Drugs Act 1976, ss 6(1)(b) and (2): maximum sentence of life imprisonment.
4 Misuse of Drugs Act 1976, ss 6(1)(f) and (2): maximum sentence of life imprisonment.
5 Crimes Act 1961, s 98A: maximum sentence of 10 years’ imprisonment.
6 Misuse of Drugs Act 1976, ss 6(1)(c) and (2): maximum sentence of life imprisonment.
7 R v Smith, above n 1, at [34].
8 At [35].
[4] Mr Heller, I indicated a starting point of 10 and a half years’ imprisonment for your offending.9 Due to a lack of information at the time of the sentence indication, I left open the possibility of an uplift to that starting point may be necessary because of previous methamphetamine related offending and whether you were on supervision at the time of the current offending. I did however indicate that any uplift ultimately imposed would not exceed three months’ imprisonment. I also indicated I would reduce your sentence by 25 per cent if you pleaded guilty.10
[5] Ms Timoko, in your case I indicated that a starting point of four years’ imprisonment would be appropriate for your offending.11 I also indicated it would be appropriate to give you a full 25 per cent discount for your guilty plea.12
[6] In each case it was accepted that further reductions to your respective sentences may be available for personal mitigating factors if pre-sentence reports were to support that outcome.
[7] Although the rationale for the approach taken was provided to each of you at the sentence indication hearings, sentencing is a public function and it is necessary to go back over the reasons for each of those conclusions, as well as going on to consider the additional matters that you have heard me discuss with counsel this morning.
The offending
[8] For the purpose of these sentencings, I rely on the summary of facts dated 30 November 2021 which you all accepted for the purposes of both the sentencing indications and this sentencing today.
[9] In July 2020, Police commenced an investigation targeting individuals involved in the manufacture and supply of methamphetamine within the Waikato region. Your involvement in that manufacture and distribution of methamphetamine
9 R v Heller, above n 1, at [22].
10 At [27].
11 R v Timoko, above n 1, at [18].
12 At [23].
was the result of intercepted communications obtained by Police in the course of that investigation.
[10] As I discussed with counsel, the summary of facts describes a highly organised and lucrative criminal enterprise, with the manufacture and distribution of methamphetamine occurring on a large-scale, commercial basis. It states that the primary objective of those involved in the criminal enterprise was financial benefit.
[11] Both Mr Smith and Mr Heller were identified as sitting near the top of the hierarchy in the group, although sitting below Mr Ormsby, a senior Mongrel Mob Waikato chapter member. Mr Smith and Mr Heller worked alongside each other and were responsible for activities related to the manufacture and supply of methamphetamine. They also worked alongside another a co-defendant, Mr Griffiths, who was responsible in a large part for the manufacture of the methamphetamine.
[12] As noted in the sentencing indication hearings and the subsequent judgments, the principal difference between Mr Smith and Mr Heller’s involvement is that Mr Smith has pleaded guilty to a manufacturing charge whereas the manufacturing charge against Mr Heller has been dropped by the Crown.
[13] Communications intercepted by Police revealed the manufacture of methamphetamine at two locations, referred to respectively as “Factory Road” and “Kea Street”. The manufacturing of methamphetamine took place at Factory Road between 14 and 20 July 2020, and at Kea Street between 13 August 2020 and 13 September 2020. Mr Smith, you were identified as assisting with the manufacture of at least 400 grams of methamphetamine and it is this that formed the basis of the manufacturing charge to which you have pleaded guilty.
[14] Mr Smith and Mr Heller were responsible for on-supplying methamphetamine manufactured in the two locations, often to other members of the criminal group. In particular:
(a)Mr Smith was identified as on-selling 112 grams of the methamphetamine manufactured on 20 July 2020. In addition to this,
Police identified that Mr Smith supplied methamphetamine on at least
10 other occasions, largely in wholesale quantities. Though the quantity was only specified on eight of the 10 occasions, Mr Smith supplied a total of some 588.5 grams.
(b)Mr Heller also had a significant role in facilitating the wholesale supply of methamphetamine from manufacture to his partner and co- defendant, Judianne Williams, and others. The summary confirms that Mr Heller supplied some 280 grams of the methamphetamine manufactured at the Factory Road site to Ms Williams. Likewise, on 20 August 2020 Mr Heller returned from Kea Street with a further 280 grams of the methamphetamine manufactured there and delivered it to an associate, Mr King, for on-supply. Furthermore, Police identified through intercepted communications that Mr Heller supplied methamphetamine on at least seven other occasions, largely in wholesale quantities. The amount supplied was generally advertised with it being specified on five of the seven occasions, in which you supplied a total of at least 308 grams of methamphetamine. This amount calculated is additional to the two quantities of 280 grams previously referred to.
[15] Moving to you Ms Timoko, your position in the hierarchy of the criminal group was identified in the summary of facts as sitting beneath your mother-in-law and co- defendant, Ms Williams (who as noted was Mr Heller’s partner), from where you managed day to day tasks of supplying small quantities of methamphetamine and facilitating the collection of money for Ms Williams as well as supplying some of your own clients with methamphetamine sourced from the group.
[16] The intercepted communications identified you as selling regular amounts of methamphetamine in quantities of approximately one gram or smaller transactions. Intercepted communications between 8 July and 30 September 2020 revealed that you supplied methamphetamine on at least 15 occasions. The amount supplied was generally advertised, with quantity specified on 14 of the 15 occasions in which you supplied a total of at least 20.85 grams of methamphetamine.
[17] The communications also established that during the same period you offered to supply methamphetamine on at least four occasions. The amount offered was generally stipulated, with the quantity specified on three of the four occasions, in which you offered to supply a total of at least 58.25 grams of methamphetamine.
Approach to sentencing
[18] As was explained to each of you at your respective sentencing indication hearings, calculating an appropriate sentence is a two-stage process.13 First, I must fix the starting point that this type of offending would attract. This involves identifying the aggravating and mitigating features of your offending, that is the matters that make your offending more or less serious, to arrive at an appropriate term of imprisonment. It must also be considered whether this starting point should be adjusted for the totality of the offending so that the overall offending is proportionate to the term of imprisonment. This first stage was the exercise undertaken at the time of the sentencing indication hearings.
[19] At the second stage it is necessary to take into account any of your personal circumstances that are relevant, including your guilty pleas, and that has been the particular focus of the hearing today. Having heard submissions from all of the lawyers I must determine whether the starting point set out in the sentencing indications should be adjusted up or down as a result of those personal circumstances.
[20] In sentencing each of you today, I must have regard to the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act. The primary purposes of sentencing in this case are to hold each of you accountable for the harm that you have done,14 to denounce the conduct that each of you has been involved in,15 and to deter you and importantly others from committing similar offences in the future.16
13 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
14 Sentencing Act 2002, s 7(1)(a).
15 Section 7(1)(e).
16 Section 7(1)(f).
[21] The Court of Appeal has recently reaffirmed the importance of deterrence in the type of commercial drug dealing present here, noting in particular the “enormous profitability” of the methamphetamine trade.17 The Court also observed that any “failure to impose appropriate, but not unduly severe, sentences of imprisonment can only encourage the pernicious trade in human misery which dealing in methamphetamine is”.18
[22] I must further consider the gravity of your offending and your degree of culpability, and the seriousness of that offending. In addition, your sentences must be consistent with other similar cases and I am required to impose the least restrictive sentence appropriate in the circumstances. After the end sentences have been determined I will then consider whether to impose a minimum period of imprisonment for Mr Smith and Mr Heller beyond the normal eligibility for parole and also determine whether or not Ms Timoko is eligible for home detention.
Assessing the starting point
[23] I now turn to discussing the starting point for each of your respective offending. At each of your sentence indications, it was agreed that the approach to be followed was to determine a global starting point for each of your drug offending, including the participation in an organised criminal group charges that relate to Mr Smith and Mr Heller.
[24] There is no dispute the approach to be taken in sentencing for methamphetamine offending is as set out by the Court of Appeal in a case called Zhang v R. This case identified five bands of offending based on the quantity of methamphetamine involved, with band five being the most serious, but noted that the role played by the offender nevertheless remains an important if not critical consideration in determining the starting point.19 In particular the Court of Appeal divided the offender’s role into three categories differentiating between “leading”, “significant” and “lesser”.20
17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [90].
18 At [91].
19 At [118].
20 At [115].
[25]All of your offending shared the same aggravating factors including:
(a)the commerciality of the offending;
(b)the degree of premeditation and planning that was involved;
(c)the scale of the offending;
(d)the social harm that your offending caused; and
(e)the fact that you were involved with a criminal organisation.
[26] I will now go through the process that led to the starting points adopted for each of you.
Starting point – Smith
[27]Mr Smith, I turn first to you.
[28] Your offending fits into band four of Zhang, given the quantity of methamphetamine involved in the overall offending was at least 988.5 grams. This band indicates appropriate starting points ranging from eight to 16 years’ imprisonment, to reflect dealing in quantities over 500 grams and up to two kilograms.
[29] At your sentence indication the Crown submitted that the appropriate starting point for your offending was between 12 and 13 years’ imprisonment. Your counsel at the time, Ms Cooper, argued for a starting point of 11 and a half years’ imprisonment.
[30] Venning J concluded that your offending justified a starting point of 12 years’ imprisonment.21 His Honour considered your role in the methamphetamine operation to be towards the upper end of the significant category, referring to your “important operational function”, and the fact that you continued offending after Mr Griffiths
21 R v Smith, above n 1, at [34].
arrest and that your motivation was commercial gain.22 Furthermore, his Honour considered that your influence in the group was greater than that of Mr Griffiths, your co-offender, who had previously received a sentencing indication with a starting point of 12 years’ imprisonment. In reaching this conclusion, Venning J referred to a number of cases to determine the role you played in the operation and the starting point that this should attract.23
[31] Ms Cooper accepted that an uplift of three months’ imprisonment was appropriate for the fact your offending occurred while on supervision. Venning J ultimately applied an uplift of four months, considering the offending to be “particularly cynical” given that it occurred while you were on supervision, bringing the starting point for your sentence to 12 years and four months’ imprisonment.24
Starting point – Heller
[32] Mr Heller, your offending, involving a total identifiable quantity of some 868 grams of methamphetamine, also placed you within band four of Zhang. At your sentence indication the Crown submitted that a starting point of 12 years’ imprisonment was appropriate for your offending. Agreeing with counsel, I considered your role in the offending to be at the upper end of the significant category.25 As with Mr Smith, you exercised important operational and management functions within the organisation, doing so for commercial gain and with awareness of the scale of the operation as a whole.
[33] I considered the various cases that the Crown relied upon in submitting that a starting point of 12 years’ imprisonment was appropriate, similar to those considered by Venning J with regard to Mr Smith. I concluded, as your counsel Mr Gurnick submitted, that your offending was less serious than in the cases Hall v R, R v Tyler Waugh, Miller v R and Wellington v R.26
22 At [33].
23 R v Tyler-Waugh [2021] NZHC 868; Wellington v R [2020] NZCA 277; Hall v R [2020] NZCA 183; Miller v R [2020] NZCA 131; and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
24 R v Smith, above n 1, at [34].
25 R v Heller, above n 1, at [15].
26 Hall v R [2020] NZCA 183: In relation to one of the defendants, Mr Roberts, the Court of Appeal set a starting point of 12 years’ imprisonment to reflect the defendant’s leading role as the manufacturer of 1.142 kilograms of methamphetamine. Your offending involved lower quantities,
[34] I also considered the sentence indication that had already been given to Mr Smith and the sentencing of Mr Griffiths, which had occurred on 18 February 2022.27 As already discussed, while you and Mr Smith had very similar roles in the supply and distribution of methamphetamine, Mr Smith had pleaded guilty to the manufacture of methamphetamine, whilst the Crown did not pursue this charge against you. I likewise considered that there were some significant differences between your offending and Mr Griffiths’ offending which made the sentences difficult to compare given Mr Griffiths had an entirely different role with a focus on manufacturing. Taking into account these various factors I concluded that a lower starting point was warranted in your case.28
[35] I concluded that the cases that Mr Gurnick referred to me were more comparable to your offending,29 and I noted that I found the case of Parkes v R to be
and it has been accepted that you held a significant role under the Zhang categories rather than a leading role. For this reason, I consider your offending to be less serious.
R v Tyler-Waugh [2021] NZHC 868: In this case, the defendant oversaw the manufacture of methamphetamine on several occasions in four locations. The amount manufactured could not be determined, but the defendant was found to be in possession of substantial quantities of iodine and ephedrine, as well as cash, and was found to have supplied or offered to supply over 1.4 kilograms of methamphetamine. A starting point of 13 years’ imprisonment was identified. Your offending is clearly less serious, in terms of the quantity involved in the offending and the fact that no manufacturing charges are being pursued against you.
Miller v R [2020] NZCA 131: In this case, there was a very similar quantity of methamphetamine involved, with 905 grams discovered in the defendant’s car. The Court of Appeal stated at [13] that “this quantity sits at nearly twice the entry point for band four making an available starting point well above eight years”. In terms of the defendant’s role, the manner of packaging and quantity indicated he was involved in a criminal enterprise of a commercial scale, and his role was therefore deemed to be significant. It was clear that the defendant expected a financial return, and it was inferred that he understood where he sat within the operational structure and the scale of the enterprise. The starting point of 11 and a half years’ imprisonment was upheld on appeal. I consider that this offending is similar to your offending.
Wellington v R [2020] NZCA 277: In this case, the defendant was involved in a significant supply and distribution network of methamphetamine, with total quantities involved identified at 1.54 kilograms, placing the offending in band four of Zhang. In terms of role, the defendant ran a distribution network, receiving large quantities of methamphetamine from those higher up in the group and on-supplying it. A starting point of 12 years’ imprisonment was considered appropriate.
27 R v Griffiths [2022] NZHC 218.
28 R v Heller, above n 1, at [20].
29 R v Taui [2021] NZHC 2123: The defendant was charged with possession for methamphetamine for supply involving 1.524 kilograms. The defendant’s role was held to display features of a “leading” role, including buying on a commercial scale, substantial financial gain, and close links to the original source, however, his role was ultimately concluded to be at the upper end of “significant”. The Court deemed a starting point of 12 years’ imprisonment to be appropriate. Your role was also deemed to be “significant”, although your charges involve a significantly lower quantity if methamphetamine.
Clark v R [2020] NZCA 641: In this case, the quantity of methamphetamine supplied was 720 grams and the defendant’s role was deemed to be significant based on the fact that the appellant had obtained “multiple ounces” of methamphetamine from a high level dealer. A starting point of 9 and a half years’ imprisonment was upheld. I consider that your offending is similar, although
most comparable, where the Court accepted that the defendant’s role was “leading” rather than “significant” and like you was limited to supply and distribution type offences rather than manufacturing.30
[36] Ultimately, I determined that a starting point of 10 and a half years’ imprisonment was appropriate for your offending, considering the seriousness of your role and the quantity of methamphetamine involved.31
[37] As mentioned, at the sentence indication we were not able to definitively reach a conclusion on whether an uplift should be applied for your previous methamphetamine conviction and whether your offending occurred while on supervision because neither counsel had access to an up-to-date copy of your conviction history. However, I did indicate that any uplift ultimately imposed would not exceed three months’ imprisonment.32
[38] As you have heard, it has now been confirmed that you were not subject to a sentence of supervision at the time of your offending. Furthermore, as counsel have submitted there was only one relevant conviction and that does not warrant an uplift for the present offending. I therefore can confirm that no uplift will be imposed in addition to the starting point set out in the sentence indication.
Starting point – Timoko
[39] With your starting point, Ms Timoko, the total methamphetamine identified in your offending was 81.359 grams, and this placed you within band two of Zhang. This band indicates appropriate starting points ranging from two to nine years’ imprisonment, to reflect dealing in quantities over five grams and under 250 grams.
perhaps slightly more serious in terms of your role, as it has been established that you had an important operational position within the enterprise.
30 Parkes v R [2020] NZCA 203: In this case, the Court of Appeal determined that a starting point of 9 years’ imprisonment was appropriate, based on supply charges relating to 563.8 grams of methamphetamine. The Court was satisfied that the defendant had a “leading” role in the enterprise, based on his proximity to the original source of the methamphetamine and the financial gain experienced. This starting point did not get close to the starting point sought by the Crown at your sentence indication, particularly given your role is considered to be significant rather than leading.
31 R v Heller, above n 1, at [22].
32 At [23].
[40] At your sentence indication the Crown submitted that a starting point of five years’ imprisonment was appropriate for your offending, with counsel agreeing that your role in the offending was at the lower end of the significant category identified in Zhang. This was based upon the fact that you maintained your own retail operation with expectation of financial gain, despite being a lower-level street dealer in the context of the operation as a whole. Your counsel argued however that your offending was properly categorised at the lower end of band two with an appropriate starting point of three to three and a half years’ imprisonment.
[41] I concluded that your counsel had placed too much weight on the discrete quantities of methamphetamine identified and ignored the context of your wider offending, including the number of transactions and the fact that your accepted role was “significant” rather than “lesser”.33 However, I also concluded that your offending was below the level asserted by the Crown. Ultimately, I considered the appropriate starting point to be four years’ imprisonment, having particular regard to the cases of Joyce v R34 and Whiteford v R.35
Personal circumstances
[42] I now reach the second stage of the sentencing exercise; this involves determining whether each of the starting points I have adopted require adjustment to reflect either aggravating or mitigating factors personal to you, including the discounts for your guilty pleas. As counsel have submitted in their written submissions it is well established that this Court has a wide discretion to increase or discount the starting
33 R v Timoko, above n 1, at [17].
34 Joyce v R [2020] NZCA 124: In this case, a starting point of four years’ imprisonment was considered appropriate for methamphetamine offending charges relating to a total quantity of approximately 32 grams. The Court of Appeal found that Mr Joyce’s actions role fell between that of a lesser role and a significant role, as per the categories identified in Zhang, based on the fact that he was an independent retail operator running his own drug dealing business, who chose to sell methamphetamine to finance his drug habit and to meet his living costs. Similarly, your offending sits at the lower end of a significant role, with the quantity of methamphetamine involved also sitting within band two of Zhang, thus justifying a similar starting point for the methamphetamine offending.
35 Whiteford v R [2020] NZCA 130: In this case, a starting point of five years’ imprisonment was applied in relation to methamphetamine supply charges amounting to 53 grams. Mr Whiteford’s role was considered to be significant, based upon him having his own customer base and being in control of who he supplied and when he supplied them. He operated for financial gain and had some awareness and understanding of the supply chain. The Court of Appeal determined that the combination of quantity and role placed Mr Whiteford’s offending within the lower to middle range of band two and a five-year starting point was imposed.
point for a number of different reasons.36 Likewise, in a case called Hessell, the Court upheld that a reduction of up to 25 per cent will be available for an early guilty plea.37 There is no dispute that an appropriate deduction for a guilty plea is to be assessed in light of all the circumstances, including the timing of the plea and the strength of the prosecution case.38
Personal circumstances – Smith
[43] Mr Smith, again, I turn first to you. Your counsel, Ms Norrie, submitted on your behalf that significant discounts totalling some 60 per cent should be available for the exceptional circumstances of your background including the cultural dislocation and childhood hardship that you faced, as well as your methamphetamine and alcohol addiction, and in addition submitted that your guilty plea discount should be increased to 25 per cent from the 20 per cent identified by Venning J.
[44] Ms Young for the Crown accepts that the factors raised on your behalf are all relevant and need to be addressed by this Court, offering only a relatively mild caution against the self-reporting of various of those factors.
[45] In coming to a decision on the relevant personal factors, I have read and considered the report prepared by Raecheal Riddell, under s 27 of the Sentencing Act 2002, a report by consultant forensic psychologist Sarah Bramhall and the PAC report that I have before me. I also note Ms Norrie’s submission to me that you had prepared a letter for me to read this morning but that at some point in this process that has been mislaid. I apologise for that but take Ms Norrie’s submission on board that you had wished to address me on those issues.
[46] Having considered those various materials I accept Ms Norrie’s submission that the reports together paint a compelling picture of what can only be described as horrific background circumstances that cannot but have played a significant causal role in your overall criminal history as well as the offending for which you are being sentenced today. Ms Riddell, who is a former corrections officer and author of the s
36 Zhang v R, above n 17, at [134].
37 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
38 At [77].
27 report, has identified a significant history of physical and sexual abuse as a child that continued after you had been put into care, at a range of foster homes and institutions. It was at those institutions that you appear to have been left functionally illiterate and were exposed to drugs and alcohol, including methamphetamine from age 15. And it was there as well that you were introduced to criminal associates and ultimately the Mongrel Mob where you remain. Likewise, although the psychological assessment by Ms Bramhall is acknowledged to be incomplete due to the difficulties of assessing by audio visual link, there can be little doubt that the effects of that period have likely resulted in your ongoing drug addiction, particularly with regard to methamphetamine, and alcohol dependency issues. You also appear to be suffering from Post-Traumatic Stress Disorder, may well have a traumatic brain injury with ongoing effects on your brain functioning including communication difficulties, cognitive functioning and executive functioning, and you are also likely to meet the criteria for Major Depressive Disorder. In any view, while I cannot accept that the operation itself was other than a large-scale commercial operation, I agree with Ms Norrie that the catalogue of issues addressed in the various reports significantly reduces the level of your culpability with regard to the offending, and I fix a discount of 25 per cent for your relevant background, your loss of culture, the addiction and dependency issues and the mental issues that have resulted.39
[47] In addition to this discount, I also note that while there have been relatively few signs of rehabilitation by you to date Mr Smith, I consider the indications that are set out in the s 27 report (including your acknowledgment of your current partner and her support for you) and as Ms Norrie emphasised, your acknowledgement to Ms Riddell of the historical issues that you have faced, do represent at least the beginning of a hopefully significant change in your circumstances.40
39 See Poi v R [2020] NZCA 312. One of the defendants, Mr Wilson, was afforded a 20 per cent discount for personal factors detailed in the s 27 report, where he suffered a number of extremely traumatic experiences in his formative years. The Court of Appeal found that these experiences caused “profound and lifelong damage that contributed significantly to Mr Wilson’s trajectory into the criminal justice system”. The same can be said in relation to Mr Smith. Similarly, the second defendant, Mr Poi, received a 25 per cent discount to reflect his reduced moral culpability based upon impaired cognitive functioning, cultural deprivation and rehabilitation efforts. A comparable discount for Mr Smith should be applied as all of these factors, as well as additional ones, are present in Mr Smith’s case.
40 See R v Paulo [2020] NZHC 1797. A discrete discount of five per cent was considered appropriate for prospects of rehabilitation on top of a discount for methamphetamine addiction, where the offender had still been using drugs in recent times but had expressed a desire to rehabilitate and
[48] It is significant, having read those reports, because it seems to me that unless you are provided with assistance to work through the various issues that have been identified, it is likely to be as far as you get. It will be important that once you leave here to commence your sentence you are given appropriate support to address the issues that have now been identified, to assist you in making the changes to your life that will be necessary if you are to avoid further prolonged periods in prison. I therefore consider a further discrete discount of five per cent is appropriate to recognise the start of what will be a long, difficult and no doubt frustrating process, but one that must begin and one that you have at least made a beginning on.
[49] With regard to your guilty plea, as I noted at the outset, in your sentence indication Venning J determined that you would be entitled to a reduction of 20 per cent having regard to the strength of the Crown case against you and the point at which you pleaded guilty. Venning J considered that a guilty plea is an independent circumstance and that there was no need for parity in this discount.41 However, as Ms Young has accepted today, the Court may reconsider this discount particularly given the 25 per cent discount offered to both Mr Heller and Ms Timoko, noting that you pleaded guilty before your co-offenders. While I accept that a guilty plea discount must be assessed on an individual basis, in my view it does not mean that parity issues are not relevant, particularly where, as here, a large operation can see multiple defendants pleading guilty at different times and it is self-evident that some consistency is required. Having considered the issue, I too agree there is nothing to distinguish the position between you and not only Mr Heller and Ms Timoko, but also Mr Ormsby and Ms Williams, all of whom appear to have pleaded guilty after you. I therefore increase your guilty plea discount to a discount of 25 per cent.
[50] I therefore fix the total discounts available for you Mr Smith, including your guilty pleas, at 55 per cent.
had taken some early steps to do so.
41 R v Smith, above n 1, at [35].
Personal circumstances – Heller
[51] Turning now to your personal circumstances Mr Heller, as you are aware Mr Gurnick has sought a discount of up to 40 per cent for various personal factors to reflect three discrete matters. These are your addiction to methamphetamine, your social, cultural and economic circumstances and remorse.
[52] Once again, Ms Young on behalf of the Crown has largely accepted that those are factors that I must take into account and has left it for me to consider what allowance should be made for those factors.
[53] In your case Mr Heller, I have also read the reports that have been prepared on your behalf. Again, there is a report prepared by Ms Riddell pursuant to s 27 of the Sentencing Act 2002, and a report by a forensic psychologist, Nick Lascelles, as well as a PAC report and the letter that you have written to me.
[54] As with Mr Smith, these various reports taken together show that after your nan passed away you suffered significant physical and sexual abuse in foster homes and state institutions resulting in early exposure to drug and alcohol abuse with “numerous long-term effects on [your] mental health, and the strategies [you have] employed to manage [your] life”. Those same experiences likewise introduced you to criminal associates from a young age, including the Mongrel Mob, and although not formally diagnosed by Mr Lascelles, there appears to be a more than credible basis for considering that you too suffer from Post-Traumatic Stress Disorder.
[55]Taken together I accept these issues that I have discussed with Mr Gurnick
clearly affect your culpability for the present offending, albeit at a lower extent than Mr Smith and notwithstanding the commercial nature of the offending. Taking these various matters together I fix the appropriate discount at 15 per cent.
[56] I have also considered whether a discrete discount for remorse is warranted, as Mr Gurnick has submitted, with particular reference to the letter that you wrote to me.
[57] Having considered the issue carefully and accepting that a discrete discount for remorse is available in appropriate circumstances,42 I do not consider that what was couched in Mr Gurnick’s written submissions is really appropriately properly categorised as remorse, but rather what you told me in the letter, and indeed what is reflected in both Ms Riddell’s report and the PAC report, is a basis for a discount for your prospects of rehabilitation.43 Taken together I discern that, perhaps for the first time, you have started to look outside the criminal horizons that have framed your viewpoint for so long and while you recognise it will be a difficult and slow process ahead, there is a chance at a different life and now is the time that you want to move towards that place. In that regard I note you have already applied yourself to not only working through a range of different courses on a range of topics, including your alcohol and drug addiction issues, and I accept Mr Gurnick’s submission that that is some achievement given the disruptions of the pandemic, you are also attempting to reconnect with Te Ao Māori and also, perhaps most importantly, taking some steps to start to help others not follow your path. It still remains a start, but it is a positive start, it is a good start, and I very much encourage you to continue along that path. I therefore fix the discount for your prospects for rehabilitation at a further 15 per cent.
[58] Turning to your guilty plea discount Mr Heller, you will recall at your sentence indication, that while I recognised that conventional wisdom would generally favour a 20 per cent discount, Mr Gurnick had made a strong submission on your behalf that the full 25 per cent discount should be awarded in your particular circumstances.44 He noted that resolution discussions with the Crown began immediately after the details of the Crown case was served, and that these discussions were impacted by Covid. Furthermore, because the manufacturing charge was ultimately withdrawn by the Crown an earlier guilty plea would have been premature in your case. As a result of this, I accepted that a full 25 per cent deduction for your guilty plea was appropriate.
[59] Taking these various matters together I fix the total discounts available for your personal circumstances including your guilty plea at 55 per cent.
42 Sentencing Act 2002, s 9(2)(f); Hessell v R, above n 37, at [64].
43 See Keenan-Fry v Police [2021] NZHC 562 at [25] and [29]–[30], where a separate discount for rehabilitative steps taken, including a number of rehabilitation courses, was allowed on appeal after review of the various comprehensive reports available to the Court.
44 R v Heller, above n 1, at [27].
Personal circumstances – Timoko
[60] Finally, Ms Timoko, I turn to your personal circumstances. As you have heard, Mr Laybourn has submitted that significant discounts, albeit of an unspecified amount, should be applied in your case based on a range of mitigating factors, including your previous good character, remorse and the various cultural and personal factors referred to in the reports that have been provided to the Court.
[61] All of the factors relied upon by Mr Laybourn have, as you have heard, been largely acknowledged and accepted by Ms Young on behalf of the Crown.
[62] As with your co-defendants I have read all the supporting material that has been provided. In your case there is a comprehensive s 27 cultural report by Shelley Turner, a PAC report and a report commissioned by ACC from a psychologist, Amanda Drewer, as well as a letter from you to the Court and a number of supporting letters.
[63] As in the case of Mr Smith and Mr Heller, and as the Crown accepts, the s 27 report by Ms Turner, together with Ms Drewer’s psychological assessment, makes it clear that there are significant issues in your background that I accept have a clear causal effect on your offending such that your culpability is reduced significantly. Specifically, while it appears that much of your early childhood was otherwise unexceptional there were ultimately two very significant incidents of sexual abuse by family members and the unresolved effects of such trauma I accept resulted in mental issues including Post-Traumatic Stress Disorder. This led directly to your methamphetamine use in order to block out that unresolved trauma, eventually resulting in addiction and increasingly poor decision making which drove your involvement in the present offending. For these factors I consider a 10 per cent discount is warranted.
[64] To this discount I consider two further discounts should also be applied. First, you are a first-time offender at the age of 29 years. I accept, as counsel have submitted, that you are entitled to credit for your previous good character which I fix at five per cent. Secondly, a further discount is available, as I have discussed with regard to Mr Heller, where there is genuine remorse exhibited and where there are genuine
prospects for rehabilitation.45 Based on the letter that you wrote to me and the observations of the various report writers, who have set out the steps that you have already taken to seek rehabilitation, I accept counsels’ submissions that you are genuinely remorseful for your offending and that you have accepted culpability for the harm that you have caused above and beyond your guilty pleas.
[65] Moreover, I have also been provided with clear evidence of your commitment to and engagement in rehabilitation. There is evidence before me of a wide range of treatment initiatives in which you are participating and acknowledgements from third parties of your commitment to rehabilitation. Significantly and as discussed this morning, you have been volunteering for the Waikato Women’s Refuge who have described you as “trustworthy, compassionate and reliable”, and who have expressed an interest in ultimately being able to utilise you in an ongoing role into the future. All of these matters evidence a clear desire on your part to reintegrate into the community. You have also expressed the desire to be a better mother and are working towards providing properly for your three children, and a fourth baby who is due shortly. Taken together your determination to rehabilitate yourself provides further support for the application of a significant discount and I fix this at 20 per cent as a combined discount for both remorse and rehabilitation undertaken and in prospect.
[66] With regard to your guilty plea discount, you will recall that at your sentence indication your counsel, also Mr Gurnick at that point, similarly advocated for a full credit of 25 per cent upon the entry of a guilty plea. It was submitted that you sought a sentence indication as early as February 2021, before it was withdrawn to enable the new figures put forward by the Police as to the amount of methamphetamine involved to be checked by counsel. I was again satisfied that a 25 per cent deduction for your guilty plea was appropriate.46
[67] Again, taking these various matters together I confirm that the discount for your personal factors including your guilty plea total 60 per cent.
45 Keenan-Fry v Police, above n 43.
46 R v Timoko, above n 1, at [23].
End Sentence
[68] I now apply the discount for each of your guilty pleas, resulting in the following end sentences:
(a)Mr Smith, applying total discounts of 55 per cent to your starting point of 12 years and four months gives an end sentence of five years and six months’ imprisonment.
(b)Mr Heller, applying total discounts of 55 per cent to your starting point of 10 years and six months gives an end sentence of four years and nine months’ imprisonment.
(c)Ms Timoko applying total discounts of 60 percent to your staring point of four years gives an end sentence of one year and seven months’ imprisonment.
Home detention - Timoko
[69] I now turn to the issue of home detention for you, Ms Timoko. This was raised at the sentence indication hearing and I ordered appendices to the PAC report, to assess whether home detention would be appropriate in the event that your end sentence was below two years. As your end sentence is now one year and seven months’ imprisonment, it is what is known as a short sentence of imprisonment and home detention is therefore an option and is indeed supported by the Crown.
[70] Considering the circumstances of your offending, including your commitment to rehabilitation that I have already discussed, as well as your relatively low risk of reoffending, I agree with counsel that a sentence of home detention is appropriate and is the least restrictive outcome in the circumstances. Because in a short sentence offenders are released after serving half their sentence, it is customary to halve the end sentence if home detention is imposed.47 Halving the term of imprisonment that I have calculated would mean a final sentence of nine and a half months’ home detention is appropriate.
47 See Burton v Police [2017] NZHC 664 at [29].
[71] I therefore consider that a sentence of home detention is appropriate on the conditions set out in the PAC report, together with, as I discussed with Mr Laybourn, a condition allowing you under the direction of the Department of Corrections to continue to volunteer at the Waikato Women’s Refuge while you are on home detention.
Minimum period of imprisonment – Smith and Heller
[72] The final part of the sentencing exercise today is to determine whether it is necessary to impose a mandatory period of imprisonment for Mr Smith and Mr Heller. Pursuant to s 84(1) of the Parole Act 2002 both of you are currently eligible for parole after serving one third of your sentence which by my calculation is one year and 10 months for Mr Smith and one year and seven months for Mr Heller. As you have heard me discuss with counsel, the Court may impose a minimum period of imprisonment beyond that which is prescribed in the Parole Act where I am satisfied that the sentence imposed is otherwise insufficient for the purposes of accountability, deterrence, denunciation or to otherwise protect the community. The Court of Appeal in Chan v R has confirmed that while minimum periods of imprisonment will frequently be justified in cases involving commercial drug offending (albeit in an importing context), “the imposition of a minimum period of imprisonment remains a matter that is to be determined case by case,”48 and only where it is “necessary to meet any of the purposes of s 86(2) of the Sentencing Act 2002.”49
[73] There are various factors that I have had to take into account. In serious drug offending such as this, there is a need to deter others from engaging in similar offending. There is a need to denounce large scale drug offending to protect the public from its impacts.
[74] I note too that there have been some of your co-offenders, most notably Mr Griffiths, who have had a minimum period of imprisonment imposed and indeed in the case of Mr Smith, Venning J had indicated that a minimum period of imprisonment of 50 per cent would be likely.
48 Chan v R [2018] NZCA 148 at [39].
49 At [38].
[75] As recently observed by the Court of Appeal in the case called Tran v R, the Court has quashed or reduced a minimum period of imprisonment where the circumstances of the appellant fell into one of three categories.50 Firstly, where the offender is young with good prospects of rehabilitation. Secondly, where the offender has a low risk of reoffending. And finally, where the offender’s personal circumstances weigh against the imposition of a minimum period of imprisonment.
[76] In this case, as you have heard, the Crown’s position is that an MPI of 40 per cent should be imposed for both Mr Smith and Mr Heller in order to meet the principles of denunciation, deterrence and community protection.
[77] I have considered carefully whether a minimum period of imprisonment should be applied. I note the minimum period of imprisonment given to Mr Griffiths, and I also recognise that Mr Smith’s present offending occurred whilst on supervision.
[78] I have also considered, as I discussed with counsel, that given the application of the discounts that I have recognised today the time that you have both already spent in custody means that without a minimum period of imprisonment you are both likely to be eligible for parole from this sentencing date or shortly thereafter. I have considered carefully whether in those circumstances it is necessary to impose a minimum period of imprisonment for the purposes, in particular, of deterrence and denunciation.
[79] Ultimately though I decline to apply a minimum sentence of imprisonment in either case. The fact that the time that it has taken to get to this point of sentencing means that you have already served a significant length of time in custody does not alter the fact that you have served that time in custody. Secondly and perhaps more importantly, for the reasons I have set out with regard to both of your rehabilitation and the journeys that you have both indicated that you have begun on and the horrendous background circumstances that I have acknowledged, I consider that both of you need to be given the opportunity to start working productively towards turning your lives around. I agree ultimately with Ms Norrie and the other counsel that the point at which you can be released is best left to the Parole Board to assess the steps
50 Tran v R [2021] NZCA 464 at [54].
that you are both individually making towards those goals. I confirm that there will be no minimum period of imprisonment in either case.
Result
[80]Mr Smith and Mr Heller would you please stand.
[81] James Smith on your charge of manufacturing methamphetamine, you are sentenced to five years and six months’ imprisonment. As I have considered all of your methamphetamine charges together as the lead charge, for the charge of possession of methamphetamine for supply and the representative charge of supplying methamphetamine, it is appropriate to sentence you to five years and six months for each of those charges also. On the charge of participating in an organised criminal group, you are sentenced to three years’ imprisonment.51 These sentences are to be served concurrently, which means you will serve a total sentence of five years and six months with no minimum period of imprisonment.
[82] In relation to the charges of possession of methamphetamine for supply (charges 2 and 14), manufacturing methamphetamine (charge 4), offering to supply methamphetamine (charge 6) and conspiring to supply methamphetamine (charges 7 and 8), the Crown has offered no evidence. As a result, these charges are dismissed pursuant to s 147 of the Criminal Procedure Act 2011.
[83] Richard Heller, for your representative charge of supplying methamphetamine, you are sentenced to four years and nine months’ imprisonment. Following the same reasoning as was used in relation to Mr Smith, for each of your charges of possession of methamphetamine for supply I also sentence you to four years and nine months’ imprisonment. On the charge of participating in an organised criminal group, as with Mr Smith, you are sentenced to three years’ imprisonment. Again, these sentences are to be served concurrently, which means a total sentence of four years and nine months’ imprisonment with no minimum period of imprisonment.
51 See R v Griffiths, above n 27. Mr Smith’s co-offender Mr Griffiths was sentenced to three years’ imprisonment for the equivalent charge.
[84] In relation to the charges of manufacturing methamphetamine (charges 1 and 4), offering to supply methamphetamine (charge 6), conspiring to supply methamphetamine (charges 7 and 8) and possession of methamphetamine for supply (charges 14 and 15), the Crown has offered no evidence. As a result, these charges are also dismissed pursuant to s 147 of the Criminal Procedure Act 2011.
[85] Brittany Timoko, for your representative charge of supplying methamphetamine, you are sentenced to nine and a half months’ home detention. You are also sentenced to nine and a half months’ home detention for your representative charge of offering to supply methamphetamine. These sentences are to be served concurrently. The home detention is on the conditions set out in the PAC report together with a further condition allowing you to continue volunteering at the Waikato Women’s Refuge while you are on home detention with leave reserved to apply to me in the event that there is any issue with regard to the wording of that condition.
[86] In relation to the charge of participating in an organised criminal group (charge 25), the Crown has offered no evidence, and this charge is dismissed pursuant to s 147 of the Criminal Procedure Act 2011.
[87]You may all stand down.
Powell J
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