R v Sunnex

[2021] NZHC 3193

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-019-3685

[2021] NZHC 3193

THE QUEEN

v

LESLIE SUNNEX

Hearing:

26 November 2021

Appearances:

K Whyte for Crown

C Horsley for Defendant

Sentence:

26 November 2021

SENTENCING REMARKS OF LANG J

Solicitors:

Hamilton Legal, Hamilton

R v SUNNEX [2021] NZHC 3193 [26 November 2021]

[1]    Mr Sunnex, you are for sentence having pleaded guilty to charges of supplying and offering to supply methamphetamine, knowingly permitting premises to be used to commit a methamphetamine-related offence and money laundering.1 The maximum penalties for your offending are life, ten years and seven years’ imprisonment respectively.2

[2]    The Crown has offered no evidence on four remaining charges and you are now discharged on those under s 147 of the Criminal Procedure Act 2011. These are charges 17, 36, 45 and 46 in the current version of the Crown Charge Notice.

[3]    An important feature of your sentencing is that you have provided medical evidence that you have been diagnosed with inoperable pancreatic cancer and cancer of the throat. As at July 2021 your life expectancy was estimated to be 11 months. As courts have recognised, serious illnesses such as these render the usual purposes and principles of sentencing somewhat meaningless.3

Background

[4]    The charges that you face were laid after the police launched an investigation, known as Operation Kingsville, into the manufacture and supply of methamphetamine in the Waikato and Auckland regions. The operation uncovered a very large-scale network that manufactured and distributed methamphetamine.

[5]    Your offending was prompted by your close association with Mr Alan McQuade, one of the alleged leaders of the network. In May 2020 he arranged for you to provide two other members of the network with a rural property near Cambridge for the purpose of manufacturing methamphetamine. The property was then used for that purpose for a short period. Although the property is owned by a trust, you were responsible for managing it.

[6]    You therefore provided the property to others knowing it would be used for the purpose of committing an offence involving methamphetamine.

1      Misuse of Drugs Act 1975, ss 6(1)(c) and 12(1); and Crimes Act 1961, s 243(2).

2      Misuse of Drugs Act, ss 6(2)(a) and 12(2); and Crimes Act, s 243(2).

3      R v Luce [2007] NZCA 476 at [25]–[26].

[7]    The charges of supplying and offering to supply methamphetamine were laid after the police discovered you had supplied or offered to supply methamphetamine to your son and his partner in quantities of up to one gram on 22 occasions. Actual supplies occurred on 11 occasions whilst there were 11 offers to supply methamphetamine.

[8]    Your principal culpability lies in the fact that Mr McQuade provided you with cash derived from the manufacture and supply of methamphetamine. You then laundered the cash by purchasing gold and silver bars on Mr McQuade’s behalf using a false name. In four separate transactions between December 2017 and May 2019 you purchased gold and silver bars having a total value of approximately $450,500. None of this has been recovered,  although the  police have recovered  silver bars  Mr McQuade must have acquired from some other source.

Starting point

[9]    I take the lead, or most serious charge, to be that of money laundering. The only other person in the network who has been sentenced to date on a charge of money laundering was Mr Williams. He laundered cash by buying cryptocurrency and a motorcycle. These transactions had a total value of at least $31,750. His offending was therefore much less serious than yours in monetary terms, although he had more overall involvement in the organisation’s activities. Unlike you, he also received personal benefits from the money laundering transactions in which he engaged.

[10]   In sentencing Mr Williams,4 Jagose J referred to the following passage from a case called R v Wallace in which the Court of Appeal observed:5

We accept the view expressed by the English Court of criminal appeal in R v Greenwood that those who launder money for drug dealers are nearly as culpable as those who actually participate in the dealing. They help the dealers avoid detection and in this way provide assistance in their activity. Sentences for money laundering should therefore bear a relationship to sentences for the particular principal offending. The more serious the principal offending, the more serious the laundering.

4      R v Williams [2021] NZHC 1338

5      R v Wallace CA415/98, 16 December 1998 at 8–9.

[11]   Jagose J considered that Mr Williams’ offending justified a starting point of three years three months imprisonment.6 Mr Williams appealed against his sentence. The Court of Appeal confirmed the approach taken by Jagose J and indicated it considered a higher starting point could have been used.7

[12]   The Crown contends I should adopt a starting point of three years nine months imprisonment, six months higher than the starting point selected in Mr Williams’ case. This would acknowledge the greater value of cash that you laundered. I consider that to be a generous approach by the Crown. I consider a starting point of four years or more could easily be justified having regard to the amount of cash you laundered. However, I have no doubt that you committed these offences out of a misguided sense of loyalty to Mr McQuade and there is no suggestion you received any monetary benefit for your services. At most you may have received some methamphetamine to pass on to your son and his partner. I therefore adopt the Crown’s suggestion and select a starting point of three years nine months imprisonment on the money laundering charges.

[13]   The remaining charges reflect relatively low-level drug dealing at a retail level. You derived little if any personal gain from this. However, the charge of permitting premises to be used for the manufacture of methamphetamine would easily justify a starting point of 18 months to two years imprisonment on a standalone basis. Having regard to totality principles however, I propose to apply an uplift of 12 months to reflect the remaining charges. This produces a sentence of four years nine months imprisonment.

Aggravating factors

[14]   You have several previous convictions, but these are historic and have no relevance to the present charges. I therefore apply no uplift for aggravating factors personal to you.

6      R v Williams, above n 4, at [20].

7      Williams v R [2021] NZCA 333 at [20].

Mitigating factors

[15]   I am able to give you credit for several mitigating factors. The first flows from the fact that you have entered guilty pleas. These came at a relatively late stage because you did not enter your pleas until 28 June 2021 when the trial was due to commence on 13 July 2021. Both counsel agree a discount of around five per cent is appropriate. I therefore allow a discount of nine months for guilty pleas.

[16]   You were in custody between July and September 2020. You were then on EM bail from 14 September 2020 until today. You were initially subject to a 24 hour curfew and this was not relaxed until 28 June 2021. Thereafter it was relaxed on several occasions to allow you to leave your address to visit family and place your affairs in order before sentencing today. I accept the restrictions imposed by EM bail have been a real burden for you given your poor state of health. I propose to allow a discount of five months to reflect this factor.

[17]   The remaining factors for which I can give you credit are your age and serious health issues. You are 72 years of age and, as I have already recorded, you have very limited life expectancy. These factors will make it very difficult to serve any form of restrictive sentence and in particular a sentence of home detention or imprisonment. I am prepared to allow a discount of 25 per cent to reflect these factors. This reduces the sentence by a further 14 months.

[18]   I have therefore identified mitigating factors that reduce your sentence by 29 months. This means the end sentence would ordinarily be one of two years four months imprisonment. In other words the sentence that would ordinarily be imposed on you would not permit you to be sentenced to home detention. In order to be sentenced to home detention the end sentence must be two years imprisonment or less.

[19]   Counsel for the Crown points out that the prison and parole authorities may release you on compassionate grounds once they consider this to be appropriate having regard to your health issues. The Crown goes so far as to say you may not even be required to begin serving your sentence. I accept that this may be so, although I have not been provided with any material to explain how this particular discretion is exercised in practical terms.

[20]   The Court has the power to impose merciful sentences in circumstances where that is appropriate.8 By way of example, in a case called Claudius v Ministry of Business, Innovation and Employment this Court substituted a sentence of home detention for a sentence of two years six months imprisonment because of serious health issues suffered by the offender.9 However, in exercising its discretion in this area of the law the Court must be careful to ensure the power is only used in appropriate cases.

[21]   Your wife expresses the strong view that you are not fit for a sentence of imprisonment and I accept this is likely to be correct. The writer of the pre-sentence report also agrees that a sentence of imprisonment is not appropriate.

[22]   I have concluded that this is one of those rare cases where the Court should resort to the exercise of mercy to avoid doing an injustice. I see no benefit at all either to you or to society generally in requiring you to go to prison for the last few months of your life. I am particularly of that view given the fact that you have not received any direct personal benefit from your offending. As I have already observed, your offending has been prompted by your misguided loyalty to others.

[23]   I therefore reduce your sentence by a further four months so that the end sentence is one of two years imprisonment. This means the sentence can be converted to one of home detention. I am satisfied that this is an appropriate sentence having regard to your personal circumstances.

Sentence

[24]   You are sentenced to 12 months home detention to be served at the address where you are currently residing on EM bail. The conditions of your sentence are to be those set out in the pre-sentence report dated 20 August 2021.

Lang J

8      R v Wihapi [1976] 1 NZLR 422 (CA) at 424.

9      Claudius v Ministry of Business, Innovation and Employment [2016] NZHC 2586.