R v Te Hau
[2016] NZHC 2477
•18 October 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-085-001882 [2016] NZHC 2477
THE QUEEN
v
DUANE PAUL TE HAU
Counsel: S W P Woods for Crown
B J Hesketh for Defendant
Sentence:
18 October 2016
NOTES ON SENTENCE OF COLLINS J
Introduction
[1] Mr Te Hau, you are being sentenced this morning for the following charges: (1) Two charges of importing methamphetamine.1
(2) One charge of supplying methamphetamine.2
[2] You pleaded guilty to these charges after receiving a sentence indication from me on 9 September 2016. I indicated a sentence of six years and seven months’ imprisonment.
[3] This morning I will:
(1) summarise your offending;
1 Misuse of Drugs Act 1975, ss 6(1)(a) and (2)(a). Maximum penalty is life imprisonment.
2 Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(a). Maximum penalty is life imprisonment.
R v TE HAU [2016] NZHC 2477 [18 October 2016]
(2) explain the starting point I have adopted;
(3) explain the adjustments I will make to the starting point; and
(4) explain the sentence I will impose.
Your offending
[4] In 2013-2014 the Organised and Financial Crime Agency of New Zealand along with the Department of Corrections and the New Zealand Customs Service conducted an 18 month investigation codenamed “Operation Gandolf”. This targeted the activities of an organised criminal group involved in the importation and distribution of methamphetamine throughout New Zealand. You were one of the defendants involved in this group.
[5] The organised criminal group centred on your co-defendant, Mr Atta. The investigation identified Mr Atta co-ordinated the importation of methamphetamine from Thailand by providing information and confirming transactions by phone calls and text messages.
Importation of methamphetamine (x2)
[6] The first importation of methamphetamine charge relates to a package that was intercepted on the weekend of 23-24 August 2014. The package was addressed to “Timmy Wilson” of “33 Miller Street, Rotorua” which was your home address. Inside the package was a portable DVD player, which concealed 98 grams of methamphetamine, with a street value of $98,000.
[7] On 18 September at 9.17 pm you rang the co-defendant Mr Atta and discussed arranging another package to replace the intercepted package. You confirmed that the package should be sent to the same name as last time, namely “Timmy”. Mr Atta provided you with Mr Barai’s phone number, who was his contact in Thailand. The buyers usually paid Mr Barai $15,000 per 100 grams of methamphetamine in several instalments.
[8] The second importation of methamphetamine charge relates to a package containing 100 grams of methamphetamine. After receiving the phone number for Mr Barai, you commenced a text message conversation with him to arrange a further importation of methamphetamine. On 12 October 2014 you provided Mr Barai with the address of 64 Taharangi Street, Rotorua as the delivery address for the methamphetamine. On 21 October 2014, the package containing 100 grams of methamphetamine was delivered to that address. It had a street value of between
$60,000-$100,000 and you were seen to leave the address with the package in a bag.
Supplying methamphetamine
[9] You then supplied the 100 grams of methamphetamine throughout the Rotorua region. On 28 October 2014, you were stopped by police driving a vehicle on Kawaha Point Road, Rotorua with two passengers inside. You underwent a Compulsory Impairment Test and the vehicle was subject to a search under the Search and Surveillance Act 2012. Your bag was located underneath the front passenger’s seat of the vehicle. Inside the main compartment of your bag were three bundles of cash totalling $30,000. It is estimated you supplied 30 grams of methamphetamine to your customers at a price of $1,000 per gram. You denied knowledge or ownership of the money.
[10] On 30 October 2014 you were in a vehicle on Taharangi Street, Rotorua and you were again stopped by the police. You were seen to throw a small plastic bag out the window which was recovered by police and found to contain 2.9 grams of methamphetamine, with a street value of $2,900. Your car was searched and $1,380 in cash was seized by the police.
[11] You have offered no explanation for your offending.
Personal circumstances
[12] You are 27 years old and currently unemployed. You have previously appeared before the court, mainly for various driving offences and burglary. Your drug-related previous offending includes two charges of possession of methamphetamine and utensils.
Starting point
[13] The importation of methamphetamine charges are the lead charges for the purposes of setting a starting point. The tariff judgment for methamphetamine importation offending is R v Fatu.3 Your offending sits in the mid-upper range of band two, where the quantity of methamphetamine is between five grams and
250 grams and the starting point is generally between three years six months to ten years’ imprisonment.4
[14] Your offending has the following aggravating features:
(1)Planning and premeditation:5 Mr Hesketh, on your behalf submits I should distinguish between the importations charges, as only one package was intercepted by police. I do not believe I can accept this submission. The importation of both packages involved many steps and was inherently premeditated. You also on-sold the imported methamphetamine in the second package.
(2)Quantity, value and frequency:6 in total you imported 198 grams of methamphetamine, with a street value of approximately $160,000. The importations occurred on two separate occasions and the second package was sold over the course of two to three months.
[15] I have taken into account the role you played in the incidents 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.7
[16] Mr Hesketh submits I should take into account the unsophisticated nature of the arrangement and the lesser role you played in the importation compared to
Mr Atta. He says you were a follower rather than a leader. The Crown submits that I
3 R v Fatu [2006] 2 NZLR 72 (CA).
4 At [36].
5 Sentencing Act 2002, s 9(1)(i).
6 R v Fatu, above n 3.
7 At [31].
am to follow the approach already adopted by this Court and say that you are a
“buyer” who generated the transaction.
[17] An importer is more culpable than a supplier.8 You provided the addresses and you were also able to physically collect the packages. Although you were not the mastermind of the operation, you were a key player in allowing the importation to occur.
[18] I adopt a provisional starting point of seven years and nine months’ imprisonment. An uplift of six months is appropriate to reflect the supply charges. This results in a starting point of eight years and three months’ imprisonment.
Uplift for previous offending
[19] The Crown submits a small uplift is warranted for your previous convictions. I come to the same conclusion as in R v Blewden9 and do not consider your previous offending is serious enough to warrant an uplift.
Personal mitigating features
Rehabilitation
[20] Your pre-sentence report refers to your willingness to overcome all of the factors related to your offending. This will involve you addressing your drug use, gambling issues and the negative lifestyle encouraged by the people you have associated with in the past.
[21] I have read the comprehensive alcohol and drug assessment report prepared by Mr Roger Brooking. This refers to your family dysfunction following the death of your older brother and your reliance on drugs. The pre-sentence report and Mr Brooking’s report recommends you undertake an alcohol and drug programme.
[22] I note your completion of an alcohol and drug relief programme and a parenting programme. You have also completed some NCEA level one studies
8 R v Fatu, above n 3, at [22].
9 R v Blewden [2015] NZHC 3159.
whilst in custody. I am willing to give you a discount of three months to reflect your efforts at rehabilitation.
Remorse
[23] Mr Hesketh submits that you should receive an additional reduction for remorse. Your pre-sentence report writer says you are remorseful for your offending. I have read and considered the letter to me from you which demonstrates genuine remorse. I am also willing to give you a small discount to reflect your genuine remorse. I can however give you no more three months to reflect that factor.
Guilty plea
[24] You are entitled to a credit for your guilty plea.10 As previously indicated, I will give you a 25 per cent discount for your guilty plea because you pleaded guilty soon after the Crown agreed to amend the charges against you.
Result
[25] That results in a final sentence of five years and ten months’ imprisonment.
[26] In my assessment this sentence satisfies the purposes and objectives of the
Sentencing Act 2002 and will:
(1)hold you accountable for the harm you have done to the community by your offending;11
(2) promote in you a sense of responsibility for your offending;12
(3) denounce your conduct;13
(4) deter you and others from committing the same or a similar offence;14
and
10 Sentencing Act 2002, s 9(2)(b).
11 Section 7(1)(a).
12 Section 7(1)(b).
13 Section 7(1)(e).
(5)is the least restrictive outcome that is appropriate in the circumstances.15
Conclusion
[27] Mr Te Hau, can you now please stand.
[28] In relation to the two charges of importing methamphetamine, you are sentenced to five years and 10 months’ imprisonment in relation to each of those charges. Those sentences are concurrent.
[29] In relation to the one charge of supplying methamphetamine, you are
sentenced to five years’ imprisonment. That sentence is also concurrent. [30] The conspiracy to supply charge, charge 32, is formally withdrawn.
[31] Stand down.
D B Collins J
Solicitors:
Crown Solicitor, Wellington
14 Sentencing Act 2002, s 7(1)(f).
15 Section 8(g).
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