R v Stone

[2021] NZHC 636

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2019-085-001094

[2021] NZHC 636

THE QUEEN

v

DAVID BRENT STONE

Hearing:	26 March 2021
Counsel:	G J Burston & T G Bain for the Crown V C Nisbet for Mr Stone
Sentencing:	26 March 2021

SENTENCING NOTES OF GWYN J

Introduction

[1]    David Brent Stone, you appear  for  sentence  having  pleaded  guilty  to  three charges in total: one representative charge of supplying methamphetamine;1 one charge of possession of methamphetamine,2 and one charge of failing to carry out obligations in relation to a computer system search.3

[2]    The purpose of sentencing in your case is to hold you accountable for the harm you have done to the community through your offending; to promote a sense of responsibility for, and acknowledgment of, that harm; to denounce and deter the

1      Misuse of Drugs Act 1975, s 6(1)(c) and 6(2)(a) and Crimes Act 1961, s 66; maximum penalty life imprisonment.

2      Section 7(1)(a) and (2); maximum penalty six months’ imprisonment or $1,000 fine.

3      Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.

R v STONE [2021] NZHC 636 [26 March 2021]

criminal conduct; to protect the community; and to assist in your rehabilitation and reintegration into society.4

[3]    When considering your sentence I am bound by the Sentencing Act 2002. That law sets out the principles and purposes of sentencing.5 In each case, a Judge looks at the Sentencing Act and then looks at what the offender has done and decides how to give effect to the Sentencing Act in the particular circumstances of the case.

[4]    In sentencing you today, I will first set out your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I set a starting point based on the offending. At that stage I will talk about a case called Zhang,6 which is what we call a “guideline” judgment for offences involving methamphetamine, and other cases which are similar. Second, I apply uplifts and discounts to reflect your personal aggravating and mitigating circumstances.

The offending

[5]    All three charges result from two police operations – Operation Superdry in relation to Wellington-based offending, and Operation Maddale in relation to Auckland-based offending. Your co-offender, Mr McMillan, was the main individual targeted  in  the  Wellington-based  offending.  You   were  a   close  associate  of   Mr McMillan, and assisted his drug business in various ways. Mr McMillan pleaded guilty to some of the charges he faced for his role in the drug business, and was found guilty on the remaining charges following a five week jury trial (the trial).

[6]    The  supplying  methamphetamine  charge  arises  from  activity  between   27 February and 2 May 2019. Mr McMillan was purchasing large quantities of methamphetamine from a supplier in Auckland,  by  directing  your  co-offenders (Mr Philip, Ms Hayman, Mr Minns and Mr Paulo) to transport methamphetamine in cars with purpose-built hidden compartments. Mr McMillan was then selling that methamphetamine in smaller quantities, including to Mr Taui, who is also a defendant

4      Sentencing Act 2002, s 7.

5      Sections 7 and 8.

6      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

in this case, primarily by leaving packages of methamphetamine in car parks in Wellington in exchange for packages of cash.

[7]    Police observed you on a number of occasions accompanying Mr McMillan (often driving him) to the car parks, and he also showed you the hiding places he used in the car parks to  complete  his  sales.  You  were  also  observed  accompanying Mr McMillan to Wellington airport twice, where he met with his Auckland supplier’s associates to provide cash (estimated to be tens or hundreds of thousands of dollars) for Mr McMillan’s purchases of methamphetamine.

[8]    I also note that in April 2019, you became the registered owner of a Mitsubishi Lancer (the Lancer), which was used by Mr McMillan and his associates. The Lancer had a purpose-built hidden compartment inside, similar to one inside a Nissan Tiida (the Tiida). Your co-offender, Mr Paulo, was the registered owner of the Tiida, and it was used by Mr McMillan and his associates. In March 2019, Police located two kilograms of methamphetamine inside the hidden compartment in the Tiida.

[9]    The exact quantity of methamphetamine involved in your offending is unknown, so I am required to determine it by a process of drawing inferences from the evidence available to me, including the evidence produced at Mr McMillan’s trial. It has been established that Mr McMillan was dealing in large quantities of methamphetamine. Mr Philip and Ms Hayman have pleaded guilty to transporting five shipments of methamphetamine using the cars with the hidden compartments, totalling six kilograms. Following a disputed facts hearing, I found Mr Taui purchased a total of 1.524 kilograms of methamphetamine from Mr McMillan.7

[10]   I consider it appropriate to sentence you on the basis of the amounts of methamphetamine involved in the whole operation during the relevant time period. Now, as I discussed with your counsel and with Mr Bain for the Crown it is difficult to arrive at a figure with any mathematical precision because I am drawing inferences. From the totality of the evidence, I am satisfied that I can logically and rationally

7      R v Taui [2021] NZHC 594.

conclude that your offending involved aiding the supply of quantities of methamphetamine that totalled two kilograms or more.

[11]   The possession of the methamphetamine charges against you arise from the termination phase of Operation Superdry. Police executed a search warrant at your house in Wellington on 2 May 2019, and you were arrested. A total of 21.1 grams of methamphetamine was found in your possession.

[12]   The charge of failing to carry out obligations in relation to a computer system search also arises from the termination phase of Operation Superdry. You were arrested and the Police seized your cell phone. The police requested you provide your passcode pursuant to s 130 of the Search and Surveillance Act 2012, but you declined to do so.

Personal circumstances

[13]   I turn now to consider your personal circumstances, based primarily on three reports I have received for the purpose of sentencing you today – a s 27 report prepared by Dr Toni Carr dated 11 March 2021, a drug and alcohol assessment report prepared by John Duncan dated 19 March 2021, and a Provision of Advice to Courts (PAC) report dated 22 March 2021. I have also considered letters from various individuals from your place of  work,  a  letter  from  Bill  Logan  at  the  Drugs  Project  dated 23 February  2021,  and  a  letter  from  Lydia  McIlhorne-Leaf  at  CareNZ  dated  19 February 2021.

[14]   Dr Carr’s report details your unhappy and unstable childhood, characterised by a lack of social bonds, frequent moves, maternal alcoholism, and parental rejection. She notes the cumulative effect of family neglect and dislocation, and that early developmental experiences are a potential source of the development of criminal behaviour. Dr Carr described you as being “deprived of a sense of family and community” at a young age, which led to drug use and criminal behaviour. You were also subjected to a traumatic sexual attack in your teenage years, which took a significant toll on your mental health.

[15]   You have an extensive history of heavy substance abuse, beginning in your early teenage years. In terms of your methamphetamine use, Mr Duncan confirmed you meet the DSM V criteria for a severe stimulant use disorder, in early remission.8 He also confirmed you meet the criteria for severe opiate, alcohol, sedative, and cannabis use disorders, in sustained remission. You have 24 criminal convictions dating back to 1988, which you explained to Mr Duncan were all related to your substance use problems.

[16]   However, you relatively recently had an offence-free period of 12 years, when you first started university study and subsequently embarked on your PhD. Dr Carr highlighted that addiction is a chronic relapsing condition. She explained that your PhD became a cause of considerable anxiety and stress, and in 2018 you effectively started “self-medicating” with methamphetamine to cope.

[17]   You were then recruited into Mr McMillan’s business. You described yourself as a slave to your habit, and said you did not benefit financially from your role and were instead paid in methamphetamine. Dr Carr is of the view that your history of head injuries, chronic pain, anxiety, and depression cast doubt on your capacity to exercise restraint when it comes to drug dependency. Dr Carr also describes you as “full of remorse” for your offending.

[18]   You have been drug-free for a period of one year (or slightly more), and you are actively addressing your substance addiction through CareNZ’s Intensive Outpatient Programme. I understand this has been your first opportunity to attend addiction counselling. You are also, as we have heard, employed and you are completing your PhD in criminology, with a goal to eventually work in the field of drug reform to make a positive difference to the lives of others. Your colleagues in their letters to the Court describe you as “hard-working”, “empathetic”, “reliable”, and “respectful”.

8      The Diagnostic and Statistical Manual of Mental Disorders V (DSM V) is the handbook used by healthcare professionals as an authoritative guide to the diagnosis of mental disorders. DSM V contains descriptions, symptoms and other criteria for diagnosing mental disorders including substance use and provides criteria for establishing the severity of such disorders.

Submissions

[19]   I will now briefly summarise what Mr Bain for the Crown and your counsel, Mr Nisbet, have said to me by way of submission.

[20]   Mr Bain submitted – and this is partly drawn on the submissions that the Crown presented in writing from the sentencing indication hearing – it is appropriate to adopt a global starting point for the supplying methamphetamine charge. The Crown does not seek an uplift for the remaining charges, and Mr Bain submitted that these can be dealt with by way of a concurrent sentence. In his submission, and as you have heard this is a factor where the Crown has adopted a slightly different view following the trial of Mr McMillan and the evidence that came out then. The Crown submission is that you played a role similar to one of your co-offenders who has already been sentenced, Mr Paulo, and that you should be treated in a similar way to Mr Paulo. You were both the registered owners of cars modified for drug transportation, and you both assisted Mr McMillan with various errands related to his drug business.

[21]   Mr Bain has indicated that the Crown would not oppose home detention in your case, if the Court considers that is available. That would enable you to keep your job, complete your PhD, and commit to a pro-social life staying away from methamphetamine.

[22]Your counsel, Mr Nisbet, submitted:

(a)a starting point of three years’ imprisonment is appropriate;

(b)a discount of 30-40 per cent is warranted for your personal mitigating factors, including your addiction issues;

(c)a 25 per cent guilty plea discount is appropriate; and

(d)your sentence should be converted to one of home detention.

Starting point

[23]   I agree with the Crown that the appropriate approach is to adopt a global starting point for the supplying methamphetamine charge. I do not consider an uplift to reflect the remaining charges is necessary, and I agree with the Crown that they should be dealt with by way of a concurrent sentence.

The law

[24]   As I have mentioned, the Court of Appeal decision in Zhang v R provides guidance for all courts on sentencing in methamphetamine-related cases, by establishing five sentencing bands by initial reference to the quantity of drugs involved.9 Based on quantity alone, your alleged offending falls in band five, where two kilograms or more attracts a sentence of between 10 years’ and life imprisonment.10 However, quantity alone does not determine the appropriate sentence

– the Court explained that a lesser role in the offending (even where there is a large amount) deserves a less severe sentence than a significant or leading role in the methamphetamine business. A lesser role may result in an offender moving not only within a band but also between bands.11

[25]   The Court provided guidance on what constitutes a “lesser” or “significant” role.12 Factors that indicate that someone played a “lesser” role in methamphetamine offending:

(a)performed a limited function under direction;

(b)engaged by pressure, coercion, intimidation;

(c)involvement through naivety or exploitation;

(d)motivated solely or primarily by own addiction;

9      Zhang v R, above n 6.

10 At [125].

11     At [10(e)].

12 At [126].

(e)little or no actual or expected financial gain;

(f)paid   in    drugs    to   feed   own    addiction   or    cash    significantly disproportionate to quantity of drugs or risks involved;

(g)no influence on those above in a chain;

(h)little, if any, awareness or understanding of the scale of operation; and/or

(i)if own operation, solely or primarily for own or joint use on non-commercial basis.

[26]Factors that indicate a “significant” role are:

(a)operational or management function in own operation or within a chain;

(b)involves and/or directs others in the operation whether by pressure, influence, intimidation or reward;

(c)motivated solely or primarily by financial or other advantage, whether or not operating alone;

(d)actual or expected commercial profit; and/or

(e)some awareness and understanding of scale of operation.

[27]   I will come back to this, but it seems to me in terms of your role, Mr Stone, you principally fall into the lesser role. The area where I have had some pause for thought is what awareness and understanding you had of the scale of Mr McMillan’s operation, because that is the one factor that might put you into a higher category.

Starting point

[28]   For the sake of parity, I note the starting points adopted for the other defendants involved in this case because one of the principles I have to follow is to ensure that

there is parity in terms of sentence between offenders who are being convicted of or pleading guilty to like offences.

(a)Mr Paulo was sentenced in July 2020 on a single charge of supplying methamphetamine as a party, and Cooke J adopted a starting point of three years’ imprisonment with an end sentence of home detention.13

(b)Ms Hayman accepted the sentence indication I gave in November 2020 for her role in transporting six kilograms of methamphetamine from Auckland to Wellington, where I indicated a starting point of six years’ imprisonment.14 But as you know, Ms Hayman is yet to be sentenced and I will talk with her later this morning.

(c)Mr Philip accepted the sentence indication I gave in February 2021 for his role in transporting six kilograms of methamphetamine from Auckland to Wellington, where I indicated a starting point of eight years’ imprisonment.15

(d)Mr Minns, who is also here this morning, accepted a sentence indication I gave  in  February  2021  for  his  role  in  transporting  two kilograms of methamphetamine from Auckland to Wellington, where I indicated a starting point of four years, six months’ imprisonment.16 Again, I have yet to hear from Mr Minns, counsel and the Crown as to the end sentence.

(e)Mr McMillan rejected the sentence indication I gave in December 2020 for his role as the leader of the Wellington-based offending, where I indicated a starting point of 17 years’ imprisonment.17 Mr McMillan has now been remanded for sentence on all charges against him.

13     R v Paulo [2020] NZHC 1797.

14     R v Hayman [2020] NZHC 2866.

15     R v Philip [2021] NZHC 42.

16     R v Minns [2021] NZHC 93.

17     R v McMillan [2020] NZHC 3392.

[29]   The primary issue in setting an appropriate starting point for you is determining whether you played a lesser or, in some way, a significant role in Mr McMillan’s business.

[30]   As you have heard from Mr Bain this morning, the Crown says that on the basis of the statement of facts and in the absence of a disputed facts hearing being sought it is plain that you had a number of points of connection with Mr McMillan’s business. This included being involved with  Mr  McMillan  in  going  to  the  Gilmer Terrace carpark on a number of occasions for drop offs and pick ups. It involved, on two occasions, driving Mr McMillan to Wellington Airport to meet with an associate of Andre James, the Auckland supplier, to handover the cash for those transactions. As I have mentioned already, the Mitsubishi Lancer was registered in your name, and of course when you were arrested you had a number of items associated with methamphetamine, including an encoded Blackberry. So those are the factors that the Crown points to, but Mr Bain does acknowledge that there is not much evidence of your direct knowledge of the scale of the operation and I have heard, particularly in written submissions, from Mr Nisbet in some detail that you did not have an awareness of the scale of the operation and that it was only after your arrest that it became clear to you exactly the scale of Mr McMillan’s operation.

[31]   I considered submissions from both the Crown and from your counsel and while I think it is a finely balanced issue, I find overall that you played a “lesser” role in Mr McMillan’s drug business. In particular, in terms of the factors in Zhang, I accept that, while you had knowledge of various aspects of Mr McMillan’s methamphetamine business, you may not have been fully aware of the scale of those operations. You performed a limited function under direction; were motivated primarily by your own addiction; received limited or no financial gain; were paid in drugs to feed your own addiction,; and had no influence on those above you in the chain.

[32]   Based on that assessment, I adopt a starting point of three years, six months’ imprisonment.

Personal aggravating and mitigating circumstances

[33]I turn now to your personal aggravating and mitigating factors.

Previous convictions

[34]   You have a range of previous criminal convictions, including for drug offending. However, I agree with the Crown that an uplift for your previous criminal history is unnecessary. Any related offending is now outdated, and did not involve the supply of drugs.

Personal mitigating factors

[35]   As noted above,18 your offending was largely driven by your addiction, and you have since taken steps to address that.

[36]   I consider a discount of one year, one month (approximately 30 per cent) is appropriate, to reflect your addiction issues, your difficult background, and your prospects for rehabilitation.

Guilty plea

[37]   I do not consider the full guilty plea discount is available,19 given your plea was entered very late, and I note Mr Nisbet’s point that one charge was amended but it was not the lead charge that was amended at that late time. However, I did indicate a discount of 15 per cent for Mr Minns (who entered his plea the week before trial), to reflect the complexity of the material involved. I consider a discount of six months (just less than 15 per cent) is appropriate for your guilty plea.

[38]I therefore arrive at an end sentence of one year, 11 months’ imprisonment.

18     See above at [13]-[18].

19     Sentencing Act, s 9(2)(b); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

Home detention

[39]   As your sentence of imprisonment is one of less than two years, I am able to convert it to home detention if I consider that appropriate.20    As you have heard     Mr Bain say earlier, there is a presumption of imprisonment for offending relating to the supply of methamphetamine,21 which can be displaced in “exceptional circumstances”, for example where an offender has accepted responsibility by pleading guilty and has real prospects of rehabilitation that would be better supported by a sentence of home detention.22

[40]   Given the steps you have taken in your rehabilitation, and Dr Carr’s opinion that continuing your work and study is an important part of maintaining that rehabilitation, I consider home detention is appropriate.

[41]   The PAC report dated 22 March 2021 confirms your house in Wellington is a suitable address for home detention.

Result

[42]   On one charge of possession of methamphetamine for supply, I sentence you to 11 months’ home detention.

(a)You are to reside at the Wellington address recorded in the PAC report dated 22 March 2021.

(b)You  are subject to the conditions outlined in the PAC  report dated   22 March 2021, together with an additional condition allowing you to attend at work or study as approved by the Department of Corrections’ EMT or your probation officer.

[43]   On one charge  of  possession  of  methamphetamine,  I  sentence  you  to  two months’ home detention, concurrently (so it is not added on top of the 11 months).

20     Section 15A(1).

21     Misuse of Drugs Act, s 6(4).

22     Zhang v R, above n 6, at [55].

[44]   On the one charge of failing to carry out obligations in relation to a computer system search, I sentence you to one month’s home detention, also to be served concurrently.

[45]   Finally, in relation to the ancillary orders sought by the Crown, I order the destruction of:

(a)all drug related utensils and paraphernalia and items including cell phones and CCTV systems used to facilitate the drug offending; and

(b)all controlled drugs seized.

Gwyn J

Solicitors:
Crown Solicitor, Wellington