R v Tatana

[2014] NZHC 1614

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-000226 [2014] NZHC 1614

THE QUEEN

v

DARIN BRADFORD TATANA NICHOLAS JAMES WENSOR NICKY JOHN NIMOT

Hearing:	8 July 2014
Counsel:	B Northwood for the Crown M Pecotic for Defendants
Judgment:	8 July 2014

SENTENCING REMARKS OF ASHER J

Solicitors/Counsel:

Crown Solicitor, Auckland.

M Pecotic, Auckland.

R v TATANA & ORS [2014] NZHC 1614 [8 July 2014]

Introduction

[1]      Darin Tatana, Nicholas Wensor and Nicky Nimot appear before me today for sentence.   They have entered pleas of guilty to various methamphetamine and methamphetamine-related  counts.    I  summarise  the  counts  on  which  they  are

convicted:

Defendant	Charge/offence	Maximum term
Mr Tatana	Count 1:  manufacturing methamphetamine	Life imprisonment
Count 4:  possessed equipment for manufacture	Five years’ imprisonment
Count 5:  possessed material for manufacture	Five years’ imprisonment
Count 6:  possessed precursor substances for manufacture	Five years’ imprisonment
Mr Wensor	Count 2:  conspiring to manufacture methamphetamine	14 years’ imprisonment
Count 3:  possession of methamphetamine for supply	Life imprisonment
Count 7:  supply of methamphetamine	Life imprisonment
Mr Nimot	Count 8:  possession of methamphetamine for supply	Life imprisonment
Importing a Class B controlled drug	14 years’ imprisonment

Facts

[2]      I now set out my summary of the facts, drawn as it is from the summary of facts to which the defendants have pleaded guilty, and the agreed quantum of drugs.

[3]      This offending arises out of a Police inquiry known as Operation Trixie. Messrs Tatana, Wensor and Nimot were well acquainted and it seems Mr Tatana and Mr Wensor were friends.

[4]      In late 2012 Mr Tatana was in prison serving a nine month sentence for a variety of charges including receiving stolen goods.   I am satisfied to the criminal standard that there were, prior to Mr Tatana’s release from prison on 11 December

2012, communications between him and Mr Wensor concerning the manufacture of methamphetamine.  Mr Wensor rented industrial premises at Titan Place, Silverdale. On his release a methamphetamine manufacturing operation was set up at that address.

[5]      On 7 January 2013 the Police executed a search warrant at the property. They located a number of items necessary for the manufacture of methamphetamine including  funnels  and  flasks,  gas  burners  and  the  like,  and  the  usual  range  of precursor substances including eight kilograms of caustic soda and 20 litres of hydrocarbon liquid.

[6]      It is common ground that Mr Tatana was the methamphetamine manufacturer. However, Mr Wensor was involved in setting up the operation.  His fingerprints were found on some of the items being used.  The Police obtained large quantities of text messages and call-related data that went back to the period when Mr Tatana was in prison.

[7]      I accept Ms Pecotic’s submission that the first actual text communication with  Mr Tatana  was  after he  was  released  from  prison  on  15  December 2012. However, given that he was in contact with Mr Wensor and went to the operation in Silverdale on his release from prison, I have no doubt that the methamphetamine manufacturing was pre-arranged.

[8]      As to the quantity manufactured, it is common ground that I should sentence Mr  Tatana  on  the  basis  that  120   –  130  grams  of  methamphetamine  was manufactured.

[9]      Mr Wensor, in addition to helping set up the methamphetamine operation, had quantities of methamphetamine in his possession for supply.  The amount that counsel accept is agreed is 80 grams.   Further, he supplied 20 grams of methamphetamine.

[10]     Mr Nimot was an associate and he was involved in 116 transactions involving the supply of small quantities of methamphetamine to 28 different individuals.  Out of these 116 transactions it is accepted that the amount he supplied was 50 – 60 grams.

[11]     It is clear that all three were to a greater or lesser extent methamphetamine users.  I accept that all three to a greater or lesser extent were addicted to the drug and had an interest in manufacturing and having methamphetamine for their own use.  Equally, however, I accept the Crown’s submission that this was commercial dealing.  While not in my view a highly sophisticated operation, it was sufficiently significant for Mr Tatana to have in his possession on arrest $51,181.20.  There was in another bag $11,135.90.  The presence of these sums of money show that there was a significant commercial element to the operation.

[12]     This is relevant to the sentencing of Mr Tatana and Mr Wensor, although not of such direct significance in relation to Mr Nimot who was convicted only of supply.

[13]     In relation to Mr Nimot there is also a further charge of importing a Class B controlled drug.  I will discuss this later, but it was at a relatively unsophisticated and low level.

[14]     In relation to all three defendants the bands set out in R v Fatu set the general tariff parameters.1

Mr Tatana’s sentence

Starting point

[15]   As I have just set out, Mr Tatana was involved in a commercial methamphetamine manufacturing operation.  Given the amount involved, band two of R v Fatu applies.  In terms of quantity his offending falls in the middle of band

two, given that the amounts were 120 – 130 grams.  On quantity alone that would

1      R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410 (CA) at [34] in respect of the sale or supply of methamphetamine and [43] in respect of the manufacture of methamphetamine.

indicate a starting point of seven and a half years.  I accept, however, Ms Pecotic’s submission that the application of the bands is not an arithmetical exercise and culpability is assessed by considering more factors than quantity alone.

[16]  Ms  Pecotic  emphasised  Mr  Tatana’s  unfortunate  addiction  to methamphetamine and his unhappy background.  However, I have to balance against his addiction the indicia of serious commerciality in the sums of money found.  In my view a starting point of seven and a half years’ imprisonment is appropriate on the manufacturing methamphetamine count.

[17]     Mr Northwood in his submissions proposed a starting point of seven and a half years with a one year uplift for the possession of precursor substances and equipment  counts,  and  a  further  uplift  of  six  months  for  his  criminal  history. Ms Pecotic had submitted that the starting point should be six and a half years with no uplift for either.  She submitted that no uplift should be applied for the possession charges as the possession of the equipment and substances could really be seen as incidental to the manufacturing count.

[18]     Mr Northwood had argued that in fact the possession charges could be seen as indicating a future intention to manufacture, and the culpability of that required separate assessment from the manufacturing.

[19]     I have decided to accept Ms Pecotic’s submission on this point.   It will always be the case that when a manufacturing operation is discovered there will be precursor substances and equipment found at the premises.  There is no practice of uplifting methamphetamine sentences for this reason,2 and I will not do so.

[20]     I do, however, believe that the culpability of Mr Tatana’s offending is made worse by the fact that he was involved in the planning of this operation while he was in prison, and that as soon as he left prison he commenced manufacturing.   This shows a cynical attitude towards punishment and it needs to be denounced.   I therefore will add six months to the starting point to make the starting point for his

offending eight years’ imprisonment.

2      U (CA236/10) v R [2010] NZCA 464 at [23]–[25].

Personal circumstances

[21]     I now turn to factors relating to him personally.  Mr Tatana has a most serious criminal history.  He has 14 convictions for dishonesty, 13 for traffic offences and 24 for various breaches of disobedience of Court orders.  He has three sexual offences, some very serious, and 11 other violence and anti-social offences.  His pre-sentence report refers to him being institutionalised by his periods in prison.  He has described jail life as “normal” for him.

[22]     Like so many serious  offenders who come before this  Court, he had  an extremely disrupted and unfortunate upbringing.  There are some positive signs.  He acknowledged to the Probation Officer that he needed help.   He wants to  be a positive  contributing  member  of  society.    He  obviously  is  very  torn  about  his inability to meet his obligations to his children.

[23]     The overall picture in the pre-sentence report is therefore not totally negative and I have read the very positive and supportive letters to the Court from members of his family.   Therefore, although some increase to his sentence could be justified because of his prior record of drug offending, given that the offending does not appear to have been serious offending, and given these positive aspects that seem to be gleaming through, I do not accept the Crown’s submission that there should be an increase for his past record.

[24]     However, given his appalling record and the fact that he is assessed at being a high risk of further offending I am unable to give him an actual discount for rehabilitation and remorse as suggested by Ms Pecotic.  I do, however, record that Mr Tatana might be at a turning point in his life.  I very much hope that he is.

[25]     So in the end I will neither increase or reduce his sentence for personal factors, save however for the guilty plea that he has entered.   Mr Northwood suggested a 15 per cent discount.  Ms Pecotic suggested a 20 per cent discount.

[26]     I propose giving a 20 per cent discount.   This is because negotiations in relation to pleas of guilty commenced last year, some time before the trial.   They

took a while to come to fruition and they have ended up with the various charges being somewhat re-arranged.  Given those circumstances a 20 per cent discount is appropriate.   I am mindful of the fact I gave a similar discount to Ms Lloyd and Mr Rubin who were other low level associates of Mr Tatana and the others at a sentencing on 13 June 2014.3

[27]     So if a 20 per cent discount is applied to the eight year sentence, the end sentence is six years and four months’ imprisonment.

Mr Wensor’s sentence

Starting point

[28]     I have already set out Mr Wensor’s involvement in the manufacturing.  He did not do the actual manufacturing but was involved in the planning to a high degree having rented the premises that were used.  There was also some indicia of involvement in methamphetamine found in his home at Puhoi.

[29]     I will return to the manufacturing shortly.  The primary charge must be the possession for supply.  The amount is 80 grams.  It falls in band two of R v Fatu and the sentencing range is therefore between three and nine years’ imprisonment.4

[30]     At 80 grams Mr Northwood submits that the right starting point is six years’ imprisonment on that count alone.  Ms Pecotic submits it should be five and a half years.  I propose accepting five and a half years as the correct starting point taking into  account  that  to  some  extent  the  methamphetamine  may have  been  for  his personal use.   I am, however, entirely satisfied that he was involved in supply for commercial purposes.

[31]     There is then the very serious matter of him being involved in setting up the methamphetamine operation.  I see this as involving a separate degree of culpability from the actual possession for supply.  I set a starting point for Mr Rubin in his very

low  level  involvement  in  conspiring  to  manufacture  methamphetamine  in  this

3      R v Lloyd & Anor [2014] NZHC 1373.

4      R v Fatu, above n 1, at [34].

operation at three years’ imprisonment.5   Mr Wensor’s was of course at the top level, and in the ordinary course of events a starting point of four and a half to five years’ imprisonment may well have been appropriate.   However, taking into account the totality principle I propose adding two years onto his starting point to make the starting point seven and a half years’ imprisonment.  I record that Mr Northwood had proposed two years in this regard and Ms Pecotic one year.

[32]     I turn to the actual supply of 20 grams of methamphetamine.  Mr Northwood proposed an extra year for this and Ms Pecotic said that would be too harsh and there should be no increase for that.

[33]     I have decided in the end to be generous to Mr Wensor in this area.  I will not add a cumulative period to the starting point for this offending, which can be seen as an extension of the possession for supply charge.  Further, the five and a half year starting point I fixed on the 80 grams for supply could well have been five years’ imprisonment. That would have also been in range.

[34]     Therefore,   in  the  end   I  think  the   appropriate  starting  point   for  all Mr Wensor’s  offending  looked  at  in  the  round  is  seven  and  a  half  years’ imprisonment.  That is six months less than Mr Tatana’s starting point.  I consider that to be justified when I look at matters in overview.  Mr Wensor was very much involved in the setting up, but in the end Mr Tatana was the manufacturer and he has accepted responsibility for the $51,000 that was held.

Personal circumstances

[35]     So I now turn to matters relating to Mr Wensor personally.  Here there is an unusual feature of this case.   Mr Wensor has produced a good degree of documentation and testimonials showing that he has, at least for the time being, rehabilitated himself and broken his methamphetamine habit.   He has attended at Capri Hospital and completed a number of courses.   The pre-sentence report is extremely favourable to him.   Clearly the Probation Officer was impressed by the

efforts that he has made.

5      R v Lloyd & Anor, above n 3, at [8].

[36]     Mr Wensor appears to be genuinely remorseful for what he has done and takes full responsibility for his present situation.   It is significant that he is here supported by his family.   He appears to have come from a good background, but from the age of 18 to have gone down the wrong track.  He is now determined to break with methamphetamine and not to use it again.  He has now had 520 days of abstinence from drugs.

[37]     Mr Northwood pointed out that Mr Wensor does have a poor record of past offending, including some drug offending.  That is so, although the drug offending does not appear to have been at the most serious level and to have warranted only community  work,  or  in  one  case  imprisonment  for  one  month  and  14  days. Mr Northwood submitted that an uplift to reflect this poor record was appropriate.

[38]     Ms Pecotic on the other hand submitted that rather than there being any uplift there should be a 20 per cent discount to take into account Mr Wensor’s efforts at rehabilitation.

[39]     I have decided that some discount is appropriate for what has been a most significant attempt at rehabilitation.  However, given that some modest uplift would have been appropriate for his past drug offending, this cannot be as generous as Ms Pecotic has requested.

[40]     Thus, the end discount that I have chosen, which will be 10 per cent, is less than it would have been otherwise but for his bad record.  Applying a 10 per cent discount reduces his starting point to six  years and nine months’ imprisonment. Applying then the 20 per cent guilty plea discount that I consider is appropriate for all the defendants for reasons I have set out, the end sentence rounded down is five years and four months’ imprisonment.

Mr Nimot’s sentence

Starting point

[41]   Mr Nimot is convicted of two charges.   The first is possession of methamphetamine for supply, and the amount that counsel agree on is 50 – 60 grams.

Applying the R v Fatu bands this places it in band two.  Mr Northwood submits that an appropriate starting point is five and a half years’ imprisonment.   Ms Pecotic submits that it is four and a half to five years’ imprisonment.

[42]     I have already set out the facts relating to Mr Nimot’s dealing.  He seems to have been  working vigorously to  sell  methamphetamine  and  he has  achieved  a considerable number of sales, albeit of small amounts. A starting point of five to five and a half years would be justified, and given that Mr Nimot was also a methamphetamine addict and was working at a low level, I have decided to choose the more generous of the two and fix the starting point at five years’ imprisonment.

[43]     I then come to the other count of importing.  As I have said this was a rather crude attempt to bring some methamphetamine into the country in containers in Mr Nimot’s luggage which contained some mixed pseudoephedrine.  The amounts involved are not clear and I am prepared to accept that they were at a relatively low level.  I note that a starting point was fixed for Mr Wensor on similar offending (he and Mr Nimot having been overseas together) of eight months’ imprisonment.  I take the  totality  principle  into  account  however,   and   I  have  decided  to   accept Mr Northwood’s relatively generous suggestion of an uplift of three months for this offending.   This means that the end starting point is five years and three months’ imprisonment.

Personal circumstances

[44]     I now turn to matters relating to Mr Nimot personally.  Like his co-offenders, a distinguishing feature of Mr Nimot is that he is a person who has real capabilities and much support, but his addictions have proven to be his downfall.   He cannot point to the clear efforts at rehabilitation of Mr Wensor.  However, he comes here to Court with the strong support of his family.  Given his age of 31 years he only has a mild list of previous convictions and this will be his first period in prison.   This offending certainly shows a marked increase in the seriousness of what he has done.

[45]     Mr  Nimot  is  assessed  in  the  pre-sentence  report  as  having  a  minimal motivation  to  undertake  a  drug  rehabilitative  programme.    He  clearly  has  the

intelligence and support that could enable him to start a new and satisfactory life in our community. Whether he will do so remains uncertain, but one can only hope that he will.  So in the end there will be no uplift for his prior record, but nor can there be any reduction.

[46]     Thus, from the starting point of five years and three months’ imprisonment, he is entitled to the same 20 per cent deduction as the other co-offenders.   That means that his end sentence will be rounded down to four years and two months’ imprisonment.

Final sentences

[47]     So could you all please stand up.

[48]     I now impose the formal sentence on the three of you.  This is obviously a very unhappy day.  The only thing I can say, as I have said already, is that in relation to all three of you there are real signs that you can turn your lives around.  I certainly hope you do.

[49]     Mr Tatana: on the lead charge of manufacturing methamphetamine I sentence you to six years and four months’ imprisonment.   On the other three possession counts, counts 4, 5 and 6, I sentence you to two years’ imprisonment, but those sentences are concurrent so the end sentence remains six years and four months’ imprisonment.

[50]     Mr Wensor: on the lead charge of possession of methamphetamine for supply I sentence you to five years and four months’ imprisonment.  On the conspiring to manufacture methamphetamine count, I sentence you to four and a half years’ imprisonment, that sentence to be concurrent.  On the supply of methamphetamine count I sentence you to three and a half years’ imprisonment, that sentence also to be concurrent.    So  the end  sentence  you  serve  is  the one on  the lead  charge,  the possession of methamphetamine for supply, of five years and four months’ imprisonment.

[51]     Mr Nimot: on the lead charge of possession of methamphetamine for supply you are sentenced to four years and two months’ imprisonment.  On the other count with which  you  are  convicted of importing a  Class B controlled drug,  you  are sentenced to six months’ imprisonment, that sentence is to be concurrent.  So your end sentence is four years and two months’ imprisonment.

[52]     On  reparation,  I  direct  that  the  $61,000  held  be  paid  towards  the  costs incurred by the insurance company that repaired the building that was damaged by the methamphetamine operation, Vero Insurance Ltd.  That is to be discharged from funds held by the Official Assignee.

[53]     You may stand down.

……………………………..

Asher J