R v Tarm
[2015] NZHC 930
•5 May 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-13289 [2015] NZHC 930
THE QUEEN
v
CHUCK LOU TARM
Hearing: 5 May 2015 Appearances:
D Johnstone for Crown
M Goodwin for DefendantSentence:
5 May 2015
SENTENCING REMARKS OF LANG J
R v TARM [2015] NZHC 930 [5 May 2015]
[1] Mr Tarm, you appear for sentence having pleaded guilty after a sentence indication to eight charges of supplying methamphetamine and two charges of possessing methamphetamine for supply. The maximum penalty on each of those charges is life imprisonment. You have also pleaded guilty to one charge of conspiring to supply methamphetamine, the maximum sentence for which is 14 years imprisonment.
[2] In addition, you pleaded guilty to 14 charges of supplying the class B controlled drug pseudoephedrine and one charge of possessing pseudoephedrine for supply. The maximum penalty for both those charges is 14 years imprisonment.
The facts
[3] Although I set out the facts underlying your offending at the sentence indication hearing,1 it is necessary for me to repeat them for the purposes of your sentencing today.
[4] All of the charges were laid at the conclusion of a large-scale police investigation into methamphetamine and pseudoephedrine distribution in the Auckland area. This revealed the fact that you had supplied others with methamphetamine on eight separate occasions between 18 August and 3 December
2013. You supplied these persons with quantities of between .5 of an ounce and, on three occasions, seven ounces of methamphetamine. During this period, you supplied a total amount of 25 ounces, or 700 grams, of methamphetamine.
[5] The investigation also revealed that on 14 separate occasions between 8 July
2013 and 24 November 2013 you supplied other persons with pseudoephedrine in the form of sets of ContacNT. As you were well aware, pseudoephedrine is a precursor substance used in the manufacture of methamphetamine, and is a valuable commodity in the drug underworld. You supplied others with 90 sets of ContacNT which weighed more than 20 kilograms. This would have enabled those who wished to manufacture methamphetamine to extract more than eight kilograms of pure
pseudoephedrine.
1 A copy of which is annexed to these remarks.
[6] At the end of the operation the police searched your home address and your business address. The search of your home address revealed 8.5 ounces, or 238 grams, of methamphetamine, together with $169,970 in cash. They found two kilograms of ContacNT at your work address, together with $150,000 in cash. In total, you were either in possession of, or supplied, a total of 938 grams of methamphetamine and 22 kilograms of ContacNT.
[7] The police estimate that the methamphetamine found in your possession at the termination of the operation was worth approximately $84,150. The ContacNT found at your work address had a value of approximately $76,500.
[8] The operation also revealed that on one occasion you made an arrangement to supply half an ounce of methamphetamine to one of your customers. You entered into that arrangement on 30 November 2013. The police were unable to establish whether the proposed supply actually took place. For that reason the Crown laid a charge of conspiracy to supply methamphetamine in relation to that transaction.
Starting point
[9] Given that the maximum penalty for the methamphetamine-related charges is life imprisonment, I take those to be the lead or most serious charges. The starting point for the sentences to be imposed in relation to those charges is governed by a decision of the Court of Appeal called R v Fatu.2 That decision identifies bands of methamphetamine-related offending, and the starting points that should be applied to each. There is no dispute that your offending falls within band 4, or the most serious
band, identified in R v Fatu. This band applies to the supply of very large commercial quantities, 500 grams or more, and calls for a starting point of between ten years and life imprisonment.
[10] During the sentence indication hearing I heard submissions from your lawyer and the lawyer for the Crown regarding the starting point to be selected. I derived assistance from a case called Wei v R.3 In that case, a Mr Crichton had supplied
1,160 grams of methamphetamine and the Judge selected a starting point of 13 years
2 R v Fatu [2006] 2 NZLR 72.
3 Wei v R [2012] NZCA 54.
imprisonment. In the same case an offender who had supplied 680 grams of methamphetamine received a starting point of 11 years imprisonment, whilst the sentencing Judge selected a starting point of 13 years imprisonment for a third offender who had supplied between 1,300 and 1,400 grams of methamphetamine.
[11] The amount of methamphetamine supplied is just one factor to be taken into account in selecting the starting point. The Court is also required to identify the overall role of the offender in the supply chain concerned. I see you as a wholesaler who buys reasonably large quantities of methamphetamine from a supplier, and then on-sells the drug to retailers for profit. Having regard to the starting points selected in Wei, I take 12 years imprisonment to be an appropriate starting point in relation to the methamphetamine-related offending.
[12] It is then necessary to increase that sentence to reflect the very significant offending involving the possession and supply of pseudoephedrine. During the sentence indication, I said that, on their own, these charges would justify a starting point of at least ten years imprisonment. I added that this starting point should not be taken to set a precedent in other cases, because counsel did not address detailed argument to me regarding sentencing levels for pseudoephedrine offending.
Totality
[13] This exercise produced a starting point of 22 years imprisonment before taking into account totality principles. These require the Court to ensure that the end starting point is not grossly disproportionate to the overall culpability of the offending.
[14] There is no doubt that a starting point of 22 years imprisonment is too high. For that reason I apply a reduction of five years to reflect totality principles. This means that I reach an overall starting point of 17 years imprisonment before taking into account mitigating factors personal to you.
Mitigating factors
[15] At the sentence indication hearing the only discount I indicated was one in relation to guilty pleas. I was not prepared to provide an indication in relation to the discount to be given for other mitigating factors until I had seen the pre-sentence report.
[16] Your counsel asks me to provide you with a discount in respect of four separate mitigating factors. These are your previous good character, the fact that you have been subject to restrictive bail conditions for a significant period, your expressions of remorse and your guilty pleas. As I said at the sentence indication hearing, in cases involving serious drug offending personal factors are given lesser weight than they may attract in other areas of the criminal law. I consider, however, that a discount can be given to reflect each of these four mitigating factors.
Previous good character
[17] You are now 56 years of age. You have lived in New Zealand for approximately 33 years and you are a New Zealand resident. For the whole of your adult working life you have maintained steady employment, either as a salaried employee, or on your own account. You have never offended against the criminal law before and I consider you are entitled to a degree of credit for that. I propose to provide you with a discount of six months to reflect that factor.
Remorse
[18] You have expressed remorse in two different ways. First, you have written a letter to me in which you express your remorse and you have also made similar expressions of remorse to the probation officer who prepared the pre-sentence report. The courts always exercise caution before applying a discount for remorse. Sentencing judges regularly receive letters from offenders who are about to be sentenced in which they express their regret and remorse. Often this reflects the offender’s feelings of regret about the position they find themselves in, and the effect the sentence to be imposed will have on their families. That type of remorse is not necessarily remorse for which credit can be given, because it does not show any
degree of insight into the effects of the offending on the wider community. I detect elements of that type of remorse in both your letter and your comments to the probation officer. Nevertheless, you have also expressed your regret for the harm that this type of offending causes in the community. This shows a degree of insight into, and regret for, your offending. I am therefore prepared to make an allowance for it. I propose to provide you with a discount of four months to reflect that factor.
Restrictive bail conditions
[19] You have been subject to a 24-hour curfew on electronically monitored bail since January 2014. That did not cease until you entered your guilty pleas in April
2015. This means that you have been subject to stringent bail conditions for a period of approximately 15 months. As the Crown notes, this is a double-edged sword, because you could have gained full credit by remaining in custody throughout that period. Instead, you opted for the less restrictive option of electronically monitored bail so you could live at home until the charges were determined. In doing so, however, you suffered restrictions on your liberty that will not be taken into account in assessing your eligibility for parole. The courts have the ability to recognise this factor by applying an additional discount from a sentence. I propose to apply a discount of eight months to reflect it.
[20] This means that I will be applying a total discount of one year six months before taking into account the effect of your guilty pleas.
Guilty pleas
[21] At the sentence indication hearing the Crown argued that you should not receive a discount of more than 15 per cent to reflect your guilty pleas. Your counsel argued for a discount of around 20 per cent. In the end, I selected a discount of three years, or around 17 per cent. Strict sentencing methodology would require me to adopt the same percentage to the sentence of 15 years six months imprisonment. This would result, however, in a discount of slightly less than three years to reflect your guilty pleas. That may not be fair to you, because you may have entered your guilty pleas on the understanding that you would receive a discount of three years for
your guilty pleas. I therefore propose to maintain the discount of three years to reflect your guilty pleas.
[22] This means that you will receive a discount of around 19 per cent for your guilty pleas, which is more than the Crown considered was appropriate. It is still slightly less, however, than that for which your counsel argued. This brings me to an end sentence of 12 years six months imprisonment on the lead charges. Concurrent lesser sentences will be imposed in relation to the remaining charges.
Minimum term
[23] In any case where the Court sentences an offender to more than two years imprisonment it has a discretion to impose a minimum term of imprisonment.4
Usually offenders are eligible for parole after serving one-third of their sentence. The Court may direct that an offender must serve more than one-third and up to two- thirds of his or her sentence before being eligible for parole in certain circumstances. It may do so where it is satisfied that eligibility for parole after that period is not sufficient to recognise several principles. These are the need to hold the offender accountable for his or her actions, the need to denounce the offending, the need to deter the offender and others from engaging in similar conduct in the future and the need to protect the community from similar offending in the future. As the Court of Appeal has often reminded sentencing Judges, the requirements for a minimum term of imprisonment are almost invariably met in cases of very serious drug offending.
[24] There can be no doubt that your offending is very serious. In just over three months you supplied, or were in possession of, nearly one kilogram of methamphetamine. You also supplied, or were in possession of, approximately 22 kilograms of ContacNT. Dealing in drugs at that level produces very significant profits, and also creates the potential for very serious damage to our community. It is for that reason that sentencing Judges routinely, although not invariably, impose minimum terms of imprisonment in cases of this type.
[25] A very recent decision of the Court of Appeal emphasising these principles is Makanesi v R.5 In that case the sentencing Judge had imposed a minimum term of imprisonment of 50 per cent on an offender who had supplied around 500 grams of methamphetamine. The Court of Appeal had no hesitation in upholding this order. It held that the scale of offending overrode its relatively short duration. The Court also considered the fact that the offender was not involved in a “one off” possession or
supply to be significant.
[26] I take a similar view in your case. Although your offending occurred over a relatively short period, it involved very significant quantities of two types of controlled drugs. The transactions in which you engaged also involve very significant quantities of money.
[27] There is an added factor in your case, and this relates to the reason underlying your offending. The pre-sentence report makes it clear that you have a significant gambling addiction. Your counsel tells me that this led you initially to divert funds from your business to gambling forays at the casino. You then became indebted to associates in order to further fund your gambling addiction. You say that this led to you being pressured into supplying methamphetamine to pay your gambling debts.
[28] As I am sure you appreciate, Mr Tarm, a gambling addiction is a serious addiction in itself. It burns up money in the same way as an addiction to drugs. Until you are able to take meaningful steps to control and eliminate that addiction, you must remain at further risk of further offending of this type. This means that in your case there is a special need for deterrence and a need to protect the community from further offending by you.
[29] In the ordinary course of events you would be eligible to apply for parole after serving just over four years of your sentence. I consider that would be manifestly inadequate to recognise the principles and concerns to which I have referred. For that reason I am satisfied you should be required to serve a minimum term of imprisonment before being eligible to apply for parole. I propose to set that minimum term at 50 per cent of the end sentence.
Sentence
[30] One each of the charges of supplying and being in possession of methamphetamine, you are sentenced to 12 years six months imprisonment. On the charge of conspiring to supply methamphetamine, you are sentenced to four years imprisonment. On each of the charges of supplying and being in possession of pseudoephedrine, you are sentenced to five years imprisonment. All sentences are to be served concurrently. This means that you will serve an effective sentence of 12 years six months imprisonment.
[31] On the charges of supplying and being in possession of methamphetamine, you are ordered to serve a minimum term of six years three months imprisonment before being eligible to apply for parole.
[32] Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
M Goodwin
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CRI-2013-092-13289 [2015] NZHC 553
THE QUEEN
v
CHUCK LOU TARM
Hearing: 24 March 2015
Counsel: S McColgan for Crown
M Goodwin for Defendant
Sentence: 24 March 2015
SENTENCE INDCIATION OF LANG J
Solicitors:
Crown Solicitor, Auckland
[1] Mr Tarm faces eight charges of supplying methamphetamine and two charges of possessing methamphetamine for supply. The maximum penalty on those charges is life imprisonment. He also faces a charge of conspiring to supply methamphetamine, the maximum sentence for which is 14 years imprisonment. In addition, he faces 13 charges of supplying the class B controlled drug pseudoephedrine, and one charge of possessing pseudoephedrine for supply. The maximum penalty for both those charges is 14 years imprisonment.
Background
[2] The charges against Mr Tarm were laid as a result of a large-scale police investigation into methamphetamine and pseudoephedrine dealing in the Auckland area. This revealed that on eight separate occasions between 18 August and
3 December 2013 Mr Tarm supplied others with methamphetamine in quantities of between .5 of an ounce and (on three occasions) seven ounces. During this period, he supplied a total amount of 25 ounces, or 700 grams, of methamphetamine.
[3] At the termination of the police operation the police searched Mr Tarm’s home address and found 8.5 ounces, or 238 grams, of methamphetamine, together with $169,970.00 in cash. In addition, the police discovered that Mr Tarm had made an arrangement to supply .5 of a ounce of methamphetamine to one of his customers on 30 November 2013. The Crown is unable to establish whether the supply took place. He therefore faces a charge of conspiracy to supply methamphetamine in relation to that transaction.
[4] On 14 separate occasions between 8 July 2013 and 24 November 2013 Mr Tarm supplied pseudoephedrine in the form of sets of ContacNT. Pseudoephedrine is a precursor substance used in the manufacture of methamphetamine. As such, it is a valuable commodity. Mr Tarm supplied 90 sets of ContacNT, which weighed more than 20 kilograms. This would be sufficient to enable more than eight kilograms of pure pseudoephedrine to be extracted.
[5] When the police operation terminated, the police found two kilograms of
ContacNT at his work address in a freezer unit, together with $150,000.00 in cash.
[6] In total, Mr Tarm was in possession of, or supplied, a total of 938 grams of methamphetamine and 22 kilograms of ContacNT.
[7] The Crown estimates that he would have derived revenue of approximately
$247,500.00 from the methamphetamine that he supplied to others. It estimates that he would have derived revenue of approximately $765,000.00 from the supply of pseudoephedrine.
[8] The ContacNT that was found in Mr Tarm’s possession when the police operation was terminated had a value of approximately $76,500.00. The methamphetamine found in his possession at that time was worth approximately
$84,150.00.
Starting point
[9] Counsel agree that the lead, or most serious, charges are those relating to the possession and supply of methamphetamine. The starting point to be applied in respect of those charges is governed by the guideline judgment of the Court of Appeal in R v Fatu.6 Mr Tarm’s offending obviously fits within band 4 identified in that case. This applies in cases involving the supply of very large commercial quantities (ie 500 grams or more) of methamphetamine and calls for a starting point
of between ten years and life imprisonment.
[10] I have heard debate today regarding the appropriate starting point to be applied in this case. The Crown submits that a starting point of 13 to 14 years imprisonment is justified. Mr Tarm’s counsel submits that the Court should select a starting point of around 12 years imprisonment.
[11] I derive the most assistance from the starting points adopted in Wei v R.7 in that case one of the offenders, a Mr Crichton, had supplied 1,160 grams of methamphetamine. The Judge who sentenced Mr Crichton selected a starting point of 13 years imprisonment. In the same case, a Mr Wei had supplied 680 grams of
methamphetamine. The sentencing Judge applied a starting point of 11 years
6 R v Fatu [2006] 2 NZLR 72.
7 Wei v R [2012] NZCA 54.
imprisonment. Again in the same case, a Ms Nguyen had supplied between 1,300 and 1,400 grams of methamphetamine and a starting point of 13 years imprisonment was adopted.
[12] I acknowledge that the weight of methamphetamine supplied is but one factor to be taken into account. The role of the offender in the supply chain is also an important matter. I see Mr Tarm’s role as that of a wholesaler, who buys reasonably large quantities of methamphetamine from a supplier and then sells it to retailers for profit. Having regard to the starting points adopted in Wei, I consider an appropriate starting point for Mr Tarm’s offending is one of 12 years imprisonment.
[13] It is then necessary to apply an uplift to reflect the significant offending relating to the possession and supply of pseudoephedrine. Counsel for Mr Tarm submits that, on its own, these charges would warrant a starting point of ten years imprisonment. The Crown submits that a starting point of 12 to 14 years imprisonment would be more appropriate.
[14] I am handicapped somewhat in fixing an accurate starting point because neither counsel has provided me with a detailed summary of case law in this area. For that reason this sentence indication should not be regarded as a precedent so far as pseudoephedrine offending is concerned. I consider, however, that standing on their own the pseudoephedrine charges would justify a starting point of at least ten years imprisonment.
Totality
[15] As both counsel have acknowledged, however, totality principles are important. A sentence of 22 years imprisonment would obviously be disproportionate to the overall culpability of Mr Tarm’s offending.
[16] Counsel are not a great deal apart in their submissions regarding the appropriate adjustment for totality. Both accept that the uplift should be in the region of five to six years imprisonment, and I agree. I therefore propose to add an uplift of five years imprisonment to reflect totality principles. This means that I
reach an overall starting point of seventeen years imprisonment before taking into account mitigating factors.
Mitigating factors
[17] The most obvious factor in respect of which a discount can be applied is that relating to guilty pleas. These would be entered at a relatively late stage given the fact that the trial is due to commence in just three weeks. Counsel for Mr Tarm urges me to apply a discount of around 20 per cent to reflect the fact that this has been a difficult case, and disclosure has been ongoing. As a result, it has not been possible for him to meaningfully advise Mr Tarm until relatively recently.
[18] Counsel for the Crown urges me to allow a discount of not more than 15 per cent. He points out that it would be unfair on defendants who have entered early guilty pleas to receive a discount at the same level as an offender who enters guilty pleas shortly before the commencement of the trial.
[19] I see merit in the Crown’s argument, but I consider a small allowance needs to be made for the fact that Mr Tarm will be saving the State at least part of the cost of the forthcoming trial if he enters guilty pleas. I propose to apply a discount of three years, or 17.6 per cent, to reflect this factor.
[20] Counsel for Mr Tarm has addressed me regarding the possibility that further discounts could be applied to reflect factors such as previous good character, remorse and the fact that Mr Tarm has spent a lengthy time subject to restrictive bail conditions. I accept that these factors may ultimately justify a further discount being given, but I am not prepared to indicate that discount at this stage. It is important that I receive the benefit of a pre-sentence report before considering the extent to which any further discount should be applied. Mr Tarm also needs to be aware that, as a general principle, personal circumstances do not count for as much in the context of serious drug offending as they may do in other cases.
Minimum term of imprisonment
[21] The remaining issue relates to the Crown submission that the Court should impose a minimum term of imprisonment. The Court may take that step in any case where the usual parole period of one-third would be insufficient to reflect the principles of denunciation, deterrence, the need to hold the offender accountable and the need to protect the community.8
[22] In the present case issues of deterrence, denunciation and accountability loom large because of the serious nature of the offending. In the ordinary course of events, Mr Tarm would be eligible for parole after serving just over four years of his sentence. I do not consider that this would be sufficient to meet the sentencing principles to which I have referred. I acknowledge that minimum terms of imprisonment are not universally applied in cases involving serious drug offending, but equally, they are often applied in this context. The circumstances of the present case, and the absence at this stage of any material suggesting that Mr Tarm has personal characteristics rendering an order inappropriate, I would make an order requiring Mr Tarm to serve 50 per cent of his sentence before being eligible to apply for parole.
[23] Mr Goodwin seeks time to discuss the sentence indication with his client. That is entirely understandable. I direct that Mr Goodwin is to file and serve a memorandum no later than 5 pm on Tuesday 31 March 2015 advising whether or not Mr Tarm proposes to accept the indication. If he does, Mr Tarm will need to be
arraigned no later than 9 am on Thursday 2 April 2015.
Lang J
8 Sentencing Act 2002, s 86.
6