R v Tate
[2016] NZHC 2522
•21 October 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-085-006779 [2016] NZHC 2522
THE QUEEN
v
CHEYENNE MAHALIA TATE
Counsel: H K Goodhew for Crown
M W Ryan for Defendant (via AVL)
Sentence:
21 October 2016
NOTES ON SENTENCE OF COLLINS J
Introduction
[1] Ms Tate, you are to be sentenced in relation to the following charges: (1) One charge of possession of methamphetamine for supply.1 (2) One charge of possession of methamphetamine.2
(3) One charge of possession of an offensive weapon.3
[2] You pleaded guilty to these charges after I gave you a sentence indication on
16 August 2016. I indicated a sentence of a little over three years was appropriate and said I would consider a sentence of home detention if further information was
provided which enabled me to consider that option.
1 Misuse of Drugs Act 1975, s 6(1)(f). Maximum sentence is life imprisonment.
2 Section 7(1)(a). Maximum sentence is six months’ imprisonment/$1,000 fine or both.
3 Crimes Act 1961, s 202A(4)(b). Maximum sentence is three years’ imprisonment.
R v TATE [2016] NZHC 2522 [21 October 2016]
[3] This morning I shall:
(1) summarise your offending;
(2) explain the starting point I have adopted;
(3) explain the adjustments I will make to the starting point; (4) refer to the other deductions I am able to make; and
(5) explain the sentence that I am imposing.
Your offending
[4] Since early 2013, the investigation called “Operation Fantail” targeted a large scale methamphetamine supply network. You are one of the defendants who played a role in this network.
Possession of methamphetamine for supply
[5] The charges against you concerned an incident at Paraparaumu in May 2014.
[6] On 20 May, a co-defendant, Mr Beazley, began arranging through an associate the purchase and supply of a large amount of methamphetamine from one of the Auckland based defendants, Mr Wildman. He regularly reported the progress of the arrangements to Mr McKinley. Eventually the parties agreed on a price of
$65,000 for 142 grams of methamphetamine including the transportation of that drug. On that evening, Mr McKinley called Mr Murdoch, another defendant whom I have already sentenced, and advised him that a drug deal was being arranged and that he needed to deliver cash, hidden in his property, to his Wellington apartment. This is what Mr Murdoch did.
[7] Meanwhile in Auckland, Mr Wildman contacted you and arranged for you to courier the 142 grams of methamphetamine to Wellington. You received the drugs which were contained in a number of plastic bags. You and Mr Wildman then wrapped the bags in paper towels and secreted them in aerosol cans that had been
converted for the purpose of transporting the drugs. You then put the cans in the
boot of Mr Wildman’s car to make them look like normal items.
[8] Mr Wildman gave you a piece of paper with the name of the purchaser “Kaylib”, Mr Beazley’s first name, his phone number and the amount of $65,000 written on it. He instructed you to book into a motel in Paraparaumu and contact Mr Beazley at 8.00 am on 21 May 2014. You were told to collect and count the
$65,000 that Mr Beazley was to pay you before you handed the drugs over.
[9] You drove Mr Wildman’s car overnight from Auckland to Paraparaumu, taking your flatmate with you. At about 7.50 am the next morning, you contacted Mr Beazley and advised him to meet you in the motel room in Paraparaumu to complete the deal.
[10] At around 10.15 am Mr McKinley and Mr Beazley drove Mr Beazley’s vehicle to the motel in Paraparaumu to meet you and your flatmate. Unbeknown to them, police had already acted on the information and executed a search warrant of the vehicle and motel room. Mr Beazley and Mr McKinley did not realise they were under visual surveillance by police throughout their journey.
[11] Once Mr McKinley and Mr Beazley arrived in the street where the motel was located and saw the police activity, they immediately drove from the area back to Wellington. The money was returned to Mr Murdoch for safekeeping.
[12] During the search at the motel, police located the 142 grams of
methamphetamine in the vehicle and the handwritten note with “Kaylib” and
$65,000 written on it.
Possession of methamphetamine and possession of an offensive weapon
[13] Police found a further 0.7 grams of methamphetamine on the bed in the motel room and a baseball bat.
Statements to police
[14] When spoken to by the police, you admitted you had agreed to courier the
142 grams of methamphetamine from Auckland to Wellington. You also admitted that the 0.7 grams of methamphetamine was for your own use and that you had the baseball bat for protection during the drug deal.
Personal circumstances
[15] You are 31 years old and you have full-time employment. You have previously appeared before the court in relation to drug offending. I will refer to your previous drug convictions a little later.
Starting point
[16] The lead charges are those of supplying methamphetamine. The tariff judgment is R v Fatu.4 Your offending sits within band two of R v Fatu, where the quantity of methamphetamine is between five grams and 250 grams and the starting point is generally between three and nine years’ imprisonment.5
[17] Your offending has the following aggravating features:
(1)Planning and premeditation:6 while you were given only 24 hours notice of the deal by Mr Wildman, you took a number of steps to courier the package of methamphetamine from Auckland to Wellington. You took further steps to conceal the methamphetamine. There was a level of planning and premeditation involved which was an aggravating feature of your offending.
(2)Quantity, value and frequency:7 the amount of methamphetamine involved was 142 grams which is over the midpoint of band two in R
v Fatu.
4 R v Fatu [2006] 2 NZLR 72 (CA).
5 At [34].
6 Sentencing Act 2002, s 9(1)(i).
7 R v Fatu, above n 4.
[18] I have taken into account the role you played in the incident as this is a relevant factor. 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.8 Your role within the overall operation was that of a courier and the supply was a one-off occasion.
[19] The Crown says your culpability is lower than Mr Beazley, who has been sentenced by me. The Crown submits a starting point in the vicinity of five and a half years’ imprisonment is appropriate.
[20] Mr Ryan, on your behalf, submits that you have a very low level of culpability and that your role was “no more than that of a mule”. He says a starting point of close to five years’ imprisonment is appropriate.
[21] In taking into account the quantity involved, the courier role you played in the offending and the starting points of your co-offenders,9 I have concluded that a starting point of five years’ imprisonment is appropriate.
Adjustment to starting point
Uplift
[22] In 2013, you were convicted of similar offending, in that you transported six to seven grams of methamphetamine from Auckland to Blenheim. You received a sentence of six months’ home detention together with 200 hours’ community work. The Crown submits a moderate uplift is appropriate to recognise the relevance and similarity of this previous conviction. Mr Ryan says no uplift is warranted.
[23] I have decided a one month uplift is required to reflect your previous offending.
8 R v Fatu, above n 4, at [31].
9 R v Beazley [2016] NZHC 1998; R v Ryan [2016] NZHC 1994; R v Murdoch [2015] NZHC
2928 and R v Foubister [2015] NZDC 26065.
Personal mitigating factors
Rehabilitation
[24] The pre-sentence report records that to your credit, you have completed counselling sessions over a six month period to address the causes of your offending, you have obtained full-time employment and re-entered into a stable relationship with your partner. You take care of his seven year old daughter. I have considered a number of letters of reference, which show that you are a respected and valued member of the Great Barrier Island community. Your risk of reoffending is assessed as being low. I propose to give you a discount of three months to reflect the steps you have taken towards rehabilitation.
Time spent on restrictive bail
[25] You have been on restrictive bail since you were charged in May 2014. Your bail address has mainly been on Great Barrier Island. You were not allowed to leave the Island except to visit Mr Ryan. Your compliance with the restrictive bail conditions can provide a basis for a reduction in sentence.10 A further discount of
15 months is currently appropriate to reflect the terms of your restrictive bail conditions.
Assistance to the authorities
[26] You provided a statement to the police that committed you to giving evidence at trial against your co-defendants. The Crown acknowledges that this assistance was likely to be significant. It transpired all of your co-defendants pleaded guilty. I will nevertheless give you a discount of nine months to reflect your co-operation and
willingness to give evidence against your co-defendants.
10 Keown v R [2010] NZCA 492 at [7].
Remorse
[27] You have demonstrated genuine remorse. I am willing to give you a credit for this factor. That credit will be a further deduction of three months from your sentence.11
Guilty plea
[28] You are entitled to a credit for pleading guilty.12 A further discount of seven months, which is just slightly over 20 per cent, is the appropriate recognition for your guilty plea.13
Home detention
[29] This results in a provisional sentence of 24 months’ imprisonment. A
sentence of 24 months’ imprisonment enables me to consider home detention.
[30] There is a statutory presumption in favour of imprisonment for convictions for dealing in Class A drugs.14 However, there are many personal mitigating factors that weigh in your favour. The Crown acknowledges that your circumstances are such that home detention is an option that I am able to consider.
[31] The pre-sentence report recommends a sentence of home detention. That is the sentence which I will impose.
[32] Normally sentences of home detention are calculated by reference to about half of the length of the prison sentence that would otherwise be imposed. This is not a mathematical formula. In your circumstances, I propose to sentence you to home detention for a period of 11 months.
[33] Your sentence of home detention will be served at the approved address set out in the pre-sentence report. That sentence will take effect from 3.00 pm on
Tuesday 25 October 2016.
11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
12 Sentencing Act 2002, s 9(2)(b).
13 Hessell v R, above n 11. Charges were laid on 22 May 2014.
14 Misuse of Drugs Act 1975, s 6(4).
[34] You are to travel directly to that address following this hearing and await the arrival of the monitoring company and probation officer.
[35] You are to undertake and complete a drug programme to the satisfaction of your probation officer.
[36] You are to undertake and complete any other programmes directed by your probation officer.
[37] You are not to consume, possess or purchase illicit drugs or alcohol for the duration of your sentence of home detention.
[38] In imposing this sentence I am satisfied that this sentence meets the purposes and principles set out in the Sentencing Act 2002. In particular:
(1)it holds you accountable for the harm you have done to the community by your offending;15
(2) it promotes in you a sense of responsibility for your offending;16
(3) it denounces your conduct;17
(4)it deters you and others from committing the same or a similar offence;18 and
(5)it is the least restrictive outcome that is appropriate in the circumstances.19
Conclusion
[39] Ms Tate, please stand.
15 Sentencing Act 2002, s 7(1)(a).
16 Section 7(1)(b).
17 Section 7(1)(e).
18 Section 7(1)(f).
19 Section 8(g).
[40] On the charge of possession of methamphetamine for supply, you are sentenced to 11 months’ home detention.
[41] On the other two charges, you are sentenced to six months’ home detention.
All sentences are concurrent.
[42] Stand down.
Solicitors:
Crown Solicitor, Wellington
D B Collins J
4