R v Smith

[2018] NZHC 2118

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2017-091-000902

[2018] NZHC 2118

THE QUEEN

v

GEOFFREY WAYNE SMITH

Counsel:

E M Light for Crown

M N Pecotic for Defendant

Sentence:

17 August 2018

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]Mr Smith, you appear for a sentencing on the following charges:

(1)two charges of supplying methamphetamine;1

(2)one representative charge of supplying methamphetamine;2

(3)one charge of possession of methamphetamine;3

(4)one charge of unlawfully possessing a firearm;4 and

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a); maximum penalty life imprisonment.

2      Section 6(1)(c) and (2)(a); maximum penalty life imprisonment.

3      Section 7(1)(a) and (2)(a); maximum penalty six months’ imprisonment.

4      Arms Act 1983, s 45; maximum penalty four years’ imprisonment.

R v SMITH [2018] NZHC 2118 [17 August 2018]

(5)one charge of unlawfully possessing ammunition.5

[2]This morning I will:

(1)set out your offending;

(2)outline the appropriate starting point for that offending;

(3)explain the adjustments that I will make to that starting point; and

(4)give you your final sentence.

Summary of offending

[3]        The charges result from a police operation code-named “Operation Walnut” which commenced in November 2016. That investigation targeted the commercial supply of methamphetamine in the Wellington region.

[4]        A surveillance device warrant allowed police to intercept private communications and carry out visual surveillance of two principal targets, Mr Blance and Mr Berkland. They were purchasing kilogram quantities of methamphetamine from Auckland-based suppliers. Mr Blance and Mr Berkland would then on-supply the methamphetamine to a number of associates in their distribution networks. Most of the offending took place from an address in Coates Street in Tawa. Associates would then on-supply the methamphetamine further. You were one of the Auckland- based suppliers.

[5]        You had an associate who was involved in the importation of methamphetamine. You had a disposable phone – referred to as a burner phone – that you used to contact this associate. You referred to this associate as your “partner” in an intercepted communication with Mr Blance.

5      Arms Act 1983, s 45; maximum penalty four years’ imprisonment.

[6]        Analysis of your phone communications also revealed that when Ms Phillips, the other Auckland-based supplier, wanted to supply her own customers she would contract you so that you could obtain more methamphetamine from your importer.

[7]        You used burner phones to contact Mr Blance about methamphetamine supplies and you changed these phones periodically. When Mr Blance placed an order, you would travel from Auckland with Ms Phillips to a predetermined location in order to carry out the supply.    During the period of the  investigation Mr Blance and     Mr Berkland purchased at least 15 kilograms of methamphetamine from you, at an estimated total cost of $5,250,000. You received payment for your involvement, and the balance was paid to your importer.

[8]        On the night of 2 March 2017, you and Ms Phillips drove to Wellington to meet with Mr Blance. You arrived at the Coates Street address early the next morning. You were greeted by Mr Blance. You were carrying a small bag. You and Ms Phillips entered the address. Mr Berkland later entered the address carrying a heavy suitcase. About 45 minutes later, you exited the address carrying a large back pack, containing approximately $700,000. Police estimate that you supplied at least two kilograms of methamphetamine on this occasion. This forms the basis of the first charge of supplying methamphetamine.

[9]        On 14 March 2017, you and Ms Phillips met on a boat belonging to your importer. After collecting some  methamphetamine,  you  arranged  to  meet  with Mr Blance via a burner phone. On 15 March 2017, you drove to Wellington  with  Ms Phillips. You both arrived at the Coates Street address early the next morning. Again, you entered the address, followed shortly afterwards by Mr Berkland. You were carrying the methamphetamine inside a battery jump starting pack. Mr Blance and Mr Berkland sampled the methamphetamine, and you explained that it was different from the last batch and would be cheaper. You then discussed various matters with Mr Blance, including money laundering and the calibration of scales for weighing methamphetamine. You mentioned that your importer had another five kilograms that he wanted you to supply to Mr Blance. Based on your conversation, police estimate that you supplied at least four kilograms of methamphetamine, for at least $1,400,000,

on this occasion. This forms the basis of the second charge of supplying methamphetamine.

[10]      During the investigation, undercover officers were deployed to purchase methamphetamine from members of Mr Blance’s network of suppliers. On 2 April 2017, one of these officers went to a bar to drink with Mr Berkland. During this conversation Mr Berkland spoke about how he had done several “million and 50” deals, which refers to the purchase of three kilograms of methamphetamine for

$1,050,000. This is consistent with phone polling data from Mr Berkland, suggesting the two of you meet in Levin on 6 September 2017 and in Foxton on 25 November 2017. This is also consistent with an intercepted phone conversation on 10 April 2017, in which Mr Blance explained to an associate that he had Mr Berkland meet you on a couple of occasions because it had been “too hot” for him, and that you have a meeting spot that is “not even an hour away”. This forms the basis of the representative charge of supplying methamphetamine.

[11]      At the termination of the investigation, on 11–12 April 2017, police executed search warrants at several addresses including your Howick address. At your address, police found a pump action shotgun, five shotgun cartridges and seven grams of methamphetamine. They also found several burner phones and one of the battery jump starter packs used to transport methamphetamine. This  forms  the  basis  of  the Arms Act charges and the possession charge.

Previous offending

[12]      You have seven previous convictions, none for serious offending and all historic, the most recent being in 1997. Your most relevant conviction is for possession of cannabis in 1988.

Starting point

[13]      There is a presumption in favour of imprisonment for Class A drug dealing offending.6

6      Misuse of Drugs Act 1975, s 6(4)(a).

[14]      The Court of Appeal’s decision in R v Fatu is the leading sentencing guideline judgment for offending involving the supply of methamphetamine.7 Your offending falls within sentencing band four, which provides that the supply of very large commercial quantities, above 500 grams, warrants a starting point of between 10 years and life imprisonment.8

[15]      In setting the appropriate starting point, I have taken into account the following aggravating features of your offending:

(1)Premeditation and planning.9 A significant degree of premeditation and planning is inherent in the sale and supply of controlled drugs. Your communications with your importer indicate that you were running a highly sophisticated operation. This is evident from your use of multiple burner phones and special purpose containers to disguise the methamphetamine.

(2)Amount of methamphetamine.10 The total amount of methamphetamine supplied by you,  within  a  six-month  period,  was  approximately  15 kilograms.  That amount sits  on the extreme end of band four in   R v Fatu, and appears to be, to date any way, the largest quantity involved in a supply case in the Wellington region.

(3)Commercial gain.11 It is clear from the summary of facts that you supplied methamphetamine for profit. The lower estimate for the total value of methamphetamine supplied is $5,250,000. Commercial gain is a relevant aggravating factor in your circumstances.

[16]      In terms of your role in the overall operation, you were the main supplier for Mr Blance, who was the head of the Wellington distribution operation. You clearly answered to your importer, but in terms of the Wellington operation, you played an

7      R v Fatu [2006] 2 NZLR 72 (CA).

8 At [34].

9      Sentencing Act 2002, s 9(i).

10     Section 8(a) and (b), R v Fatu, above n 7.

11     R v Fatu, above n 7, at [32].

important role. Certainly, of you and Ms Phillips, you were clearly the party playing the lead in supplying methamphetamine.12

[17]      To ensure consistency in sentencing,13 I note that six of the other co-defendants from Operation Walnut have already been sentenced:

(1)Mr Blance was given a starting point of 18 years’ imprisonment for offending involving 15 kilograms of methamphetamine. Mr Blance was the head of the Wellington distribution operation.14

(2)Mr Berkland was given a starting point of 16 and a half years’ imprisonment for offending involving 15 kilograms of methamphetamine. Mr Berkland was Mr Blance’s right-hand man.15

(3)Mr Hohua was given a starting point of five years and 10 months’ imprisonment for offending involving 127.4 grams of methamphetamine. Mr Hohua was a mid-level dealer.16

(4)Mr McGoldrick Savaii was sentenced for methamphetamine offending involving 119 grams. Mr McGoldrick-Savaii was considered a mid- level dealer. A starting point of five years and six months’ imprisonment was adopted.17

(5)Ms Waiariki was sentenced for methamphetamine offending that involved 36.1 grams. Ms Waiariki was considered a street level dealer. A starting point of four years’ imprisonment was adopted in her case.18

12  At [31]: “Where an offender fits within any particular band will depend not just on the quantity   and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant”.

13     Sentencing Act 2002, s 8(e).

14     R v Blance [2018] NZHC 1518.

15     R v Berkland [2018] NZHC 1520.

16     R v Hohua [2018] NZHC 1509.

17     R v McGoldrick-Savaii [2018] NZHC 233.

18     R v Waiariki [2017] NZHC 2771.

(6)Mr Svenson was sentenced for methamphetamine offending involving

15.45 grams. Mr Svenson was considered a middleman between the drug dealers and the retail market. A starting point of three years’ imprisonment was adopted.19

[18]I have also referred to a number of comparable cases: R v Le’Ca, R v Uputaua,

Murray v R, R v Rodgers, R v Zhou, R v Huang and R v Robati.20

[19]      The Crown submits a starting point of 18 to 19 years’ imprisonment is appropriate. Your counsel, Ms Pecotic, submits a starting point of 15 years’ imprisonment is warranted.

[20]      The amount of methamphetamine involved in your offending mirrors that involved in the cases of Mr Blance and Mr Berkland. It is difficult to assess your culpability in relation to your co-offenders because you played a very separate role. I regard your relative culpability to be less than that of Mr Blance, who was in charge of his respective operation, and answered to no one. By comparison, you answered to your importer. However, I regard your relative capability as  greater than  that  of  Mr Berkland, who acted somewhere between an assistant and a partner to Mr Blance. You described yourself as a partner to your importer, and took the lead on all the relevant supply transactions. It is fair to say you were almost solely responsible for the offending that you are being sentenced for today.

[21]      Methamphetamine is a dreadful drug, which causes significant harm to individuals and relationships. The courts have consistently adopted starting points that reflect the social harm caused by methamphetamine. Consistent with this approach and similar authorities,21 I consider a starting point of 17 years’ imprisonment is appropriate for the methamphetamine charges.

19     R v Svenson [2017] NZDC 22165.

20     R v Le’Ca [2018] NZHC 274; R v Uputaua [2017] NZHC 2320; Murray v R [2014] NZCA  189;

R v Rodgers [2012] NZHC 2296; R v Zhou [2009] NZCA 363; and R v Robati [2018] NZHC 1537.

21     R v Blance, above n 14; R v Berkland, above n 15.

Firearms charges

[22]      The Crown submits that an uplift of one year is appropriate to reflect the firearm charges. I am satisfied that an uplift of six months appropriately reflects society’s condemnation of the unlawful possession of such weapons, and such an uplift would not in my assessment offend the totality principle.

[23]That results in a total starting point of 17½ years’ imprisonment.

Adjustments to the starting point

Personal aggravating factors

[24]      The Crown accepts that your previous convictions do not warrant an uplift. I agree that no uplift is necessary because of the nature and age of your previous convictions.

Personal mitigating factors

[25]      I have read the alcohol and drug assessment report prepared by Mr Duncan, an alcohol and drug clinician, who notes that you meet the DSM 5  criteria  for  a Severe Stimulant Use Disorder. You started using methamphetamine when you were

15. You typically used one gram per fortnight, until 2015, when your use escalated to about five grams per day, after you separated from your partner. You report becoming involved with the delivery of commercial quantities of methamphetamine at around this time. Following your arrest in April 2017, you self-referred to an 18-week residential treatment programme at Higher Ground Addiction Treatment Centre in Auckland. You graduated from that programme and have not used methamphetamine since. You are considered to be in sustained remission.

[26]      You also meet the DSM 5 criteria for a Severe Alcohol Use Disorder. You report using alcohol heavily during your early to mid-20s. At the height of your use, you would consume 34 standard drinks per day. However, your alcohol use tapered off as you increasingly used methamphetamine. You have only consumed alcohol in very small amounts since your early 30s. You have not consumed alcohol since you

were arrested. You had a relatively normal upbringing, and do not report being subject to any abuse or having any mental health problems.

[27]      I have also been assisted by a report from Dr Visser, an experienced psychologist. She refers to your successful participation in a rehabilitation programme and that you have addressed, as best as one could, your drug and alcohol dependency and abandonment issues. Dr Visser is concerned that a long period of imprisonment may erode the positive steps that you have taken towards your rehabilitation.

[28]      In the circumstances, the most generous discount I can give to reflect the role of your drug addiction in your offending, and your efforts to deal with that addiction, is nine months and that is the discount that I will provide.

Remorse

[29]      I have also read your affidavit and your expressions of remorse for your offending. I have also read the letters of support filed on your behalf. Serious drug offending of the kind that you have engaged in rarely merits any discount for remorse or good character. I will, however, provide you with a small discount to reflect your genuine remorse. That discount will be three months.

Restrictive bail conditions

[30]      You have been on restrictive bail conditions and I will give some recognition to this by providing you with a further discount of six months.

Guilty plea

[31]      Your guilty plea was not at the earliest possible opportunity, and it occurred after many of your co-defendants had already pleaded guilty. However, it was still a few weeks before your trial was scheduled to start. In my assessment, a discount of close to 15 per cent is appropriate.22

22     R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.

Minimum period of imprisonment

[32]      The Crown submits that a minimum period of imprisonment of 50 per cent is appropriate in your case, in order to denounce your conduct and to deter others from committing similar offending. The Court of Appeal has repeatedly stated that the criteria for imposing a minimum period of imprisonment will invariably be made out in cases of very serious drug offending.23

[33]      I agree that the criteria for imposing a minimum period of imprisonment have been clearly established. I will therefore impose a minimum period of imprisonment of 50 per cent of your end sentence in order to denounce your conduct, protect the community from you and to hold you accountable for the harm caused by your offending.24

Result

[34]Mr Smith, please stand.

[35]      I am sentencing you to 13 years and six months’ imprisonment on the two charges of supplying methamphetamine, and the representative charge of supplying methamphetamine.

[36]      I am imposing a minimum period of imprisonment of six years and nine months in relation to those charges.

[37]      I am also sentencing you to six months’ imprisonment on the two Arms Act charges, and one month’s imprisonment on the possession charge. All sentences are to be served concurrently.

[38]      I make an order for the confiscation of the firearms and ammunition and the destruction of the drugs paraphernalia.

[39]You may now stand down.

23     R v Zhou, above n 20, at [19]; R v Wong [2009] NZCA 332 at [21]; R v Aram [2007] NZCA 328 at [78]; and R v Anslow CA182/05, 18 November 2005 at [27].

24     Sentencing Act 2002, s 86(2)(a), (b) and (d).

D B Collins J

Solicitors:

Crown Solicitor, Wellington