R v Treasurer

[2023] NZHC 1433

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-1035

[2023] NZHC 1433

THE KING

v

TERRIQUE TREASURER

Hearing:	9 June 2023
Appearances:	FMT Culliney and BN Kirkpatrick for the Crown ID Tucker and LD Burns for Mr Treasurer
Sentencing:	9 June 2023

SENTENCING NOTES OF FITZGERALD J

Solicitors:           Meredith Connell, Auckland

To:I Tucker, Auckland L Burns, Auckland

R v TREASURER [2023] NZHC 1433 [9 June 2023]

Introduction

[1]    Mr Treasurer, you appear for sentencing today on three representative charges of dealing in controlled drugs. This follows a jury unanimously finding you guilty of a representative charge of supplying methamphetamine,1 a representative charge of supplying MDMA,2 and a representative charge of supplying ephedrine.3 You were acquitted on a representative charge of supplying cocaine and on a charge of assisting with the manufacture of methamphetamine. The Crown also withdrew charges against you in relation to the importation of controlled drugs.

[2]    Having seen and heard all of the evidence given at trial, I fully agree with the jury’s verdicts.

[3]    Before turning to the sentence I impose on you today, it is necessary to first set out the background facts to your offending. You and the lawyers here today will be familiar with these matters, but sentencing is a public process, and it is important that the public knows the basis upon which I am sentencing you today.

Factual background

[4]    Two other persons involved in the drug syndicate and who pleaded guilty, H and N, gave evidence at trial of a person they knew of as “Gold”, who they said they interacted with on a regular basis during their time working in the syndicate, particularly in 2018. Both H and N identified you in a photograph shown to them by police as the person they knew as “Gold”. H also identified for police an address to which he had been on a couple of occasions which he understood to be Gold’s residential address, which was your home. You had a gold coloured vehicle parked outside. Both H and N described you as the nicest and friendliest of the persons in the syndicate that they dealt with, including that you were “family oriented”, “polite” and a “good person”. I pause to note that this is consistent with the various materials that I have been provided with in advance of today’s sentencing.

1      Misuse of Drugs Act 1975, ss 6(1)(a) and (2)(a). Maximum penalty life imprisonment.

2      Sections 6(1)(c) and (2)(b).  Maximum penalty 14 years’ imprisonment.

3      Sections 6(1)(c) and (2)(b).  Maximum penalty 14 years’ imprisonment.

[5]    Turning first to your particular role in the syndicate. You were introduced to both methamphetamine and working in the syndicate by Mr Al-Obidi, but I do not accept the suggestion in the cultural report that your role was limited to being subsidiary to him. Both H and N gave evidence that their roles in the syndicate were sometimes as “runners”, that is people who received instructions from the leader of the syndicate about what drugs to deliver to customers of the syndicate on a daily basis, and also sometimes as “storage”. The role of storage would be to store the syndicate’s drugs, as well as the cash received from the sale of the drugs, and to package drugs ready for runners to come and collect for delivery to the syndicate’s customers. Both H and N said that from their interactions with you, they understood your role to be the same as theirs from time to time, so acting as both storage and a runner.

[6]    Their evidence was that they had interacted with you in these roles on many occasions, H saying that he had collected “potentially up to 100 packages, maybe more” from you, though noting that it was hard to estimate. H and N also confirmed that they were collecting both drugs and cash from you, and in the case of drugs, that it was mainly methamphetamine.

[7]    Given their verdicts, the jury must have accepted H and N’s evidence as credible and reliable, and I agree with the jury’s assessment in that regard. In addition, their evidence was consistent with other objective evidence, including, as noted, showing the police the address of the person they knew to be Gold which turned out to be your address, with a gold car parked in front of it. Their evidence that Gold had a young child on the way and that he stepped back from the syndicate as a result was also consistent with the fact that at around that time, you did indeed have a young child on the way.

[8]    Turning to the period of time over which you were involved in the syndicate, I conclude that your regular involvement extended from at least late 2017 to around mid to late 2018, and then on the odd occasion until mid-2019. There is no reliable evidence of you being involved in the syndicate after July 2019.

[9]    As to when you were first involved, H was clear that it was you who met up with him and the meth cook at the Baker’s Harvest after the first cook in November 2017, for you to give them cash for payment for their work and to take the resulting methamphetamine from them. It was on the basis of these facts that you were charged with being a party to manufacturing methamphetamine, though the jury acquitted you of that charge. However, that does not mean that H’s evidence of you giving him

$5,000 that day and collecting the methamphetamine is irrelevant, and I accept his evidence that you did do that. My view of the evidence was that I could not be sure that when you handed over the money and collected the methamphetamine, you knew that there had been a meth cook and you intended to assist with it by arranging for payment and collection of the drugs. That view is consistent with the jury’s acquittal of you on the manufacturing charge. But the evidence nevertheless supports the conclusion that you were involved in this syndicate in some shape or form from at least November 2017.

[10]   Both N and H said that as far as they could tell, you stepped back from your role in the syndicate when you found out you had a young child on the way. You said to the cultural report writer that about two weeks after being arrested in July 2018, for possession of methamphetamine and methamphetamine utensils for personal use, you found out that your partner was pregnant. This was a catalyst for you getting clean and to get away from the drug scene. Given your daughter was born in March 2019 and you were clean by that point, I infer that you stepped back from the syndicate over the latter half of 2018. There is, however, a documentary record that you were still involved in some way in July 2019, being a message from Global Trading on H and N’s cell phone saying, “So Gold will deliver $1,600 – rent today”. A screenshot of this message was taken on 10 July 2019, and to be screen shotted that day, the message could not have been more than six days old.

[11]   The Crown says that your involvement in the syndicate extended up until mid- December 2019, based on a screenshot from another syndicate member’s phone,    Mr Maciel, on 15 December 2019, suggesting a conversation with someone with the Wickr handle “Gold Bar 1”. H gave evidence that the person he knew as “Gold” was also referred to as “Golden Bars”, which is a little different. There is also no evidence as to what the conversation with Mr Maciel might have been about, even if it was with

you, and whether it was to do with drugs or the syndicate. Ultimately, I do not consider it safe to infer from this one piece of evidence alone that you were still involved in the syndicate as late as December 2019. For the purposes of this sentencing, therefore, I conclude that you were involved in the syndicate on a regular basis for approximately one year, and on the odd occasion thereafter for a further few months.

[12]   Turning to the quantity of drugs that you dealt with, it is difficult to be clear about that from the evidence given at trial and because of the representative nature of the charges of which you were found guilty. The Crown says that if around 100 packages collected from you was a conservative estimate (as H suggested), and methamphetamine was the primary drug involved, then given the sheer amount of methamphetamine regularly supplied by the syndicate, it would logically follow that you dealt with at least 2 kilograms of methamphetamine. Given your time in the syndicate and your role in it, I am satisfied beyond reasonable doubt that you have dealt with at least 2 kilograms of methamphetamine, probably more, and lower amounts of ephedrine and MDMA.

[13]   You were arrested in February 2020 upon termination of the police operation. No drugs or other relevant material was found at your home or on your phone, which is consistent with your earlier withdrawal from the syndicate.

Approach to sentencing

[14]   In sentencing you today, I must consider the relevant purposes and principles of the Sentencing Act 2002 (the Act). While I must impose what should be the least restrictive outcome, I must also take into account the gravity of your offending, your culpability, and the inherent seriousness of the drugs charges for which you were convicted. Particular sentencing principles in play in sentencing you today are to denounce your conduct and to deter others from similarly involving themselves in commercial drug dealing. I will address a little later on your own personal circumstances, but based on those circumstances, I accept that there is little need for personal deterrence, given it appears you have been drug free for some time now and have turned your back on your involvement in the supply of drugs.

[15]   The first step in sentencing involves adopting what is referred to as a “starting point”, which is based on the seriousness of your offending and your culpability. In assessing the starting point, I will also take into account other sentences for comparable drug offending, and also parity with your co-offenders.

[16]   Having set the starting point, I will then turn to consider circumstances personal to you, which may mean the starting point should be adjusted upwards or downwards.

Starting point

[17]   So, turning first to the starting point. The representative charge of supplying methamphetamine, a class A controlled drug, is the most serious charge and is the appropriate charge to adopt as the lead charge.

[18]   A Court of Appeal case called Zhang v R is a guideline sentencing judgment for dealing in methamphetamine.4 In that case, the Court of Appeal set out general culpability bands based on the quantity of the drug involved, but emphasised that a person’s role in the dealing of methamphetamine will also be an important factor.

[19]   On the basis that I am satisfied beyond reasonable doubt that you dealt with in excess of 2 kilograms of methamphetamine, your offending falls within but at the lower end of band 5 set out by the Court of Appeal in Zhang. Band 5 can attract a starting point of 10 years to life imprisonment.

[20]   In terms of your role in the syndicate, and how that helps in setting the starting point, the Supreme Court in a recent case called Berkland v R has updated what the Court of Appeal said about role in Zhang.5 Based on the Supreme Court’s guidance, I conclude that your role in the syndicate sat on the cusp of categories described as “lesser” and “significant”. I am satisfied that you performed a more limited role under the direction of others, and as I will discuss later, that a key motivation for your involvement in the syndicate was to feed your own addiction to methamphetamine. There is no evidence that you had any influence on those above you in the chain.

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

5      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

Nevertheless, you undertook the role of storage from time to time, which is an operational-type role, and through your involvement in the syndicate from late 2017 and during 2018, I have no doubt that you would have had some awareness of the scale of the wider operation. In other words, you were not involved on a fleeting basis only, nor were you completely ignorant of the scale of the controlled drugs that were being shifted through this operation.

[21]   Based on these factors, the Crown says that a starting point of around 12 years’ imprisonment for the methamphetamine charge would be appropriate. Your lawyers accept a starting point of around 10 years’ imprisonment. By reference to quantity and role, and other comparable cases I have been referred to that do not relate to this syndicate, I consider a starting point of 11 years to be appropriate.6

[22]   It is also important that there is parity with the sentences of your co-offenders, all of whom have already been sentenced (other than Mr Valent). I have read all of the sentencing notes for those co-offenders.7 The most comparable, in terms of role, are Mr Al-Obidi, Mr Maciel and Mr Macalalad. A starting point of 11 years’ imprisonment was adopted for Mr Al-Obidi, for methamphetamine offending involving a total of 2.6 kilograms. Moore J assessed Mr Al-Obidi's role as sitting somewhere between lesser and significant. The Court adopted a 13 year starting point for Mr Maciel, who was sentenced for possessing for supply and supplying a total of just over 7 kilograms of methamphetamine. Moore J assessed his role as falling towards the middle of the significant category. Mr Maciel was only involved, however, in the syndicate for a relatively short time, for two months. Mr Macalalad appears to have been a close associate of Mr Valent. He had operational functions within the syndicate and was solely motivated by financial gain. He was sentenced for possessing for supply a total of 7.816 kilograms of methamphetamine. Campbell J assessed Mr Macalalad’s role as falling below the middle of the significant category, and adopted a starting point of 13 years, 6 months’ imprisonment.

6      de Macedo v R [2020] NZCA 132; Wellington v R [2020] NZCA 277; and Chai v R [2020] NZCA 202.

7      R  v  R [2020] NZHC 2257; R v  B [2022] NZDC 6554;  R v Al-Obidi  [2022] NZHC 1274; R v

Macalalad [2020] NZHC 2930; R v M [2022] NZDC 4244; R v Maciel [2021] NZHC 836; R v H

[2020] NZDC 7291; R v Ramos Mazuela [2021] NZHC 1606; R v Kim [2022] NZHC 952; and R
v Edmands [2022] NZHC 246.

[23]   By reference to these co-offenders, I have concluded that the appropriate starting point remains 11 years’ imprisonment. I consider your role to be lesser than that of Mr Maciel and Mr Macalalad — Mr Macalalad in particular appeared to be a trusted lieutenant of Mr Valent. While you appear to have been involved in the syndicate for somewhat longer that Mr Al-Obidi, it was not for very much longer, and the evidence suggested  that he may have had closer and more direct  links with     Mr Valent.

[24]   I have also considered whether there needs to be an uplift to the starting point to reflect the two remaining representative charges of supplying MDMA and ephedrine. On balance, I have decided not to do so, and consider that an 11 year starting point is appropriate for all three charges by reference to the totality principle. Sentencing is ultimately a reflection of your own personal culpability. It seems clear from the evidence that the main drug which you were involved in supplying, either to customers or to others in the syndicate for on-supply, was methamphetamine. Any supply of MDMA and ephedrine was in lesser amounts and all in the context of your broader involvement in the syndicate. Those additional charges do not add in any material way to your overall culpability. I also take into account that methamphetamine, as you are only too aware from your own personal addiction to it, is by far and away the more harmful of the drugs that you supplied.

[25]I accordingly adopt a global starting point of 11 years’ imprisonment.

Personal aggravating and mitigating factors

[26]   Mr Treasurer, I now turn to factors personal to you, which might mean that the starting point of 11 years should be adjusted upwards or downwards.

[27]   You have some prior convictions dating back to 2004, though the earlier ones are relatively minor. Your 2018 convictions for possessing methamphetamine relate to your own personal use, and the Crown accepts that they do not warrant an uplift. I do not know the background to your conviction for unlawfully possessing a pistol, and it is not suggested that you were involved in any firearms in your current offending. I therefore agree with the Crown that none of your earlier convictions warrant an uplift

to the starting point. On the other hand, because those earlier convictions were spread over a number of years, I cannot give you a discount for prior good character.

[28]   Turning to personal factors which might mean that the starting point should be adjusted downwards, I have some sympathy for the position you now find yourself in. It seems clear that you had stepped back from this syndicate at some point in the latter part of 2018, and that you managed to get yourself clean from methamphetamine. That is commendable, and I sincerely hope that you stay well away from this terrible drug in the future. Because of your abstinence from methamphetamine for a number of years, I accept that there are good prospects for your rehabilitation.

[29]   I have carefully read the Department of Corrections’ PAC report provided to the Court, the s 27 cultural report prepared on your behalf, together with a number of letters to me from your mother, siblings, and friends. They are very helpful. The overall theme is of a kind, generous and humorous son, brother, and friend. Again it bodes well for your rehabilitation that you have a supportive network of family and friends around you. I have also read your articulate letter which was provided to me earlier this morning.

[30]   The cultural report addresses your family background and what led your parents to immigrate from South Africa to New Zealand in 1997. Your parents were both schoolteachers, and it seemed that you performed well at school, both academically and in a sporting sense. You were also the deputy head boy at your college. It is against a backdrop such as this that your involvement in a commercial drug syndicate, coupled with your own addiction to methamphetamine, must have been a significant fall from grace for you.

[31]   I have mentioned your addiction to methamphetamine. As background to this, in 2012, you suffered serious injuries in a car accident which ultimately left you immobile and in significant pain for a considerable time, and more recently requiring a full hip replacement. You could not work for some of this period. During this time, you had also become friendly with Mr Al-Obidi. It was through hanging out with him that you were introduced to methamphetamine — to which you ultimately became addicted.

[32]   I accept that a proximate cause of your offending was your own methamphetamine addiction. I am also satisfied that despite the commercial nature of your offending, a meaningful discount ought to be given for this. I propose to discount the starting point by 20 percent to recognise the role addiction played in your offending.

[33]   I am not persuaded that your broader family or cultural background had any real causative link to your offending, particularly given you come from a supportive and loving family relationship. I therefore do not ascribe any further discount based on your background.

[34]   I am, however, prepared to discount your sentence by a further 10 percent to reflect remorse as shown in your letter to me this morning, and also for what I see to be your excellent prospects of rehabilitation.

[35]   There is accordingly a total discount to the starting point of 30 percent, which reduces it to a sentence of 92 months’ imprisonment, or seven years, eight months’ imprisonment.

[36]   The final matter I need to consider is whether to impose a minimum period of imprisonment. Your lawyers may have spoken to you about this already, but unless the Court imposes a higher minimum period of imprisonment, you will be eligible to apply for parole after serving one-third of your sentence, so after serving about two years and four months. The Crown urges me to impose a higher minimum period of imprisonment, of 40 percent of your sentence, to reflect the seriousness of your offending. Your lawyers say that a minimum period of imprisonment is not necessary. I have given this careful consideration, as serious drug offending will often warrant a minimum period of imprisonment to meet the sentencing purposes of denunciation and general deterrence. Like in the sentencing of Mr Al-Obidi, however, I have concluded that a minimum period of imprisonment is not necessary. The lengthy starting point of 11 years’ imprisonment is sufficient to meet the principles of general deterrence and accountability. There is nothing particular about the nature of your offending that requires departure from the normal non-parole period. A minimum

period of imprisonment is not necessary for personal deterrence. Your good prospects for rehabilitation also weigh against imposing a minimum period of imprisonment.

[37]   Accordingly, your end sentence will be one of seven years and eight months’ imprisonment, with no minimum period of imprisonment.

Sentence

[38]   Would you please now stand Mr Treasurer. On the lead representative charge of supplying methamphetamine, I sentence you to seven years and eight months’ imprisonment. On each of the representative charges of supplying MDMA and ephedrine, I sentence you to three years’ imprisonment, all to be served concurrently. This means that your overall sentence is one of seven years and eight months’ imprisonment.

[39]You may stand down now Mr Treasurer.

Fitzgerald J