R v Turner

[2016] NZHC 2728

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2015-019-6211 [2016] NZHC 2728

THE QUEEN

v

MELLISSA MAKAREHI TURNER

Hearing:	15 November 2016
Counsel:	J N Foster for Crown K L Tustin for Defendant
Judgment:	15 November 2016

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Hamilton
Counsel:

K L Tustin, Hamilton

R v TURNER [2016] NZHC 2728 [15 November 2016]

Introduction

[1]      Mellissa Makarehi Turner, you appear for sentence today having pleaded guilty, on 11 October 2016, to two charges of supplying the Class A controlled drug methamphetamine, one of offering to supply methamphetamine, one of possessing methamphetamine for supply and one of possessing the Class A controlled drug Lysergide (LSD).

[2]      The supply charges fall into two categories.  The first is reflected in count 1. That relates to offending detected during Operation Daydream to which I shall refer later.  The second, count 6, relates to discrete offending that came to light during the investigative phase and commences with dealing in 2008.

[3]      The maximum penalty for all charges, save for possessing LSD, is life imprisonment.   Possession of LSD carries a maximum penalty of six months imprisonment.

[4]      Your pleas of guilty were entered just under two weeks before your trial was due to begin.  That meant that little in the way of preparation time was saved for the Crown.   You deferred  entering your pleas of guilty for understandable personal reasons.  However, as you were aware at the time you made that decision, the credit for the guilty pleas must now be assessed in the context of the time at which they were entered.

Facts

[5]      The primary offending was detected during the course of an investigation undertaken  by the Waikato  Police Organised  Crime Squad  between August  and November 2015.  That investigation was given the code-name Operation Daydream. A number of individuals were identified as being involved within a group operating in the Te Aroha and Paeroa regions, supplying methamphetamine and, to a lesser extent, cannabis.

[6]      The initial phase consisted of orthodox investigative techniques.   A covert phase followed, after certain individuals had been identified.

[7]      Although you dispute the level at which you operated within the hierarchy of the group, you accept that you were a close associate of the central figure, Mr Rhodes. You provided support to him through interactions with customers, attending personally to the sale and delivery of methamphetamine, and acting as a courier in uplifting methamphetamine he had procured.  You were assisting him in the period between 1 January 2015 and 4 November 2015, the latter being the date on which the operation was terminated.

[8]      You sought a sentence indication earlier this year.  I gave that indication on

13 April 2016.1    It was declined.  You were aware at that time that your trial was scheduled to begin on 25 October 2016.  Your pleas were entered almost six months later.  By then, it had become clear that co-offenders were to give evidence at your trial.

[9]      Evidence gathered from intercepted communications and back captured text messages revealed that on 69 separate occasions you organised transactions that resulted in the actual supply of methamphetamine.  You used the telephone to offer to supply methamphetamine on 13 occasions,  in respect of a quantity of 15.85 grams.  It seems clear that you were careful in relation to the people with whom you dealt, and were somewhat more mindful of  the possibility of being detected as someone involved in offending of this type.

[10]     When the operation was terminated on 4 November 2015, you were located with “four point bags” containing various quantities of methamphetamine.  The total amount seized was 1.5 grams.   In addition, a set of electronic scales, a tick list, multiple empty plastic bags and $660 in cash was found, as well as 5.5 LSD tablets.

Analysis

[11]     As I indicated to the lawyers when they were making submissions, I propose to deal with your offending in two discrete categories.

1      R v Turner [2016] NZHC 665.

[12]     I shall deal first with the Operation Daydream offending.  I do so because that enables a better comparison to be made between the level of your culpability and others whom I have sentenced in relation to that operation.   I shall deal separately with the offending that began in 2008, as that is discrete from Operation Daydream offending.    I shall  be  imposing  a  cumulative  sentence  to  reflect  that  particular offending, but it will be tempered to ensure that the total sentence imposed reflects the gravity of the particular offending and goes no further than what is required to mark all of the offending on which you are now being sentenced.

[13]     At the sentence indication, I considered that offending fell within Band 2 of the guideline judgment of the Court of Appeal in R v Fatu, and indicated a starting point of six years imprisonment.2   To that I added an uplift of five months’ to reflect the earlier offending and possession of the LSD tables.   I indicated a maximum credit of 25 percent would be given if pleas were entered.

[14]     I am now prepared to reassess the level of your culpability based solely on a comparison of your offending with others involved in the operation whom I have already sentenced.

[15]     Ms Foster, for the Crown, submitted to me that based on the way in which others  have  been  sentenced,  your  role in  the  drug  dealing  enterprise  was  more serious than that of Mr Kekesi, but less so than Ms Llewell.  I took a starting point of six years’ imprisonment for Mr Kekesi, when he was sentenced,3  and one of seven years and nine months imprisonment for Ms Llewell.4    I described Mr Kekesi as a close associate of Mr Rhodes who participated in the group and individually.5     I regarded Ms Llewell as more closely involved in the operation of Mr Rhodes’ drug enterprise and who also carried out a significant independent business involving the supply of methamphetamine.6

[16]     Having  regard  to  the  arguments  that  counsel  have  put  forward  today, including those of Ms Tustin, on your behalf, I am satisfied that your culpability in

2      Ibid, at para [12], applying R v Fatu [2006] 2 NZLR 72 (CA), at para [34].

3      R v Kekesi [2016] NZHC 1872, at para [7].

4      R v Llewell [2016] NZHC 1873, at para [6].

5      R v Kekesi [2016] NZHC 1872, at para [4].

6      R v Llewell [2016] NZHC 1873, at paras [3] and [4].

the Operation Daydream offending should be fixed at the same level as that of Mr Kekesi.   In those circumstances, the starting point for sentence in relation to that particular offending, will be six years’ imprisonment.

[17]     I now turn to mitigating factors.  I have read the pre-sentence report, the letter you addressed to me and those of support from friends and family.  It is clear that you have been an addict for some time.  I accept that drove your initial involvement in drug dealing but the commercial aspect of the operation appears to have taken on greater prominence as time proceeded.

[18]     That seems consistent with the views that you have expressed in your letter, in which you tend to downplay the seriousness of the harm that can be caused by dealing in methamphetamine.  I treat your prior convictions as neutralising any credit for prior good character.   Despite some doubts I propose to give some credit for remorse which will be built into that given for the guilty pleas.

[19]     Given that the pleas of guilty were entered on 11 October 2016, I consider that  a  credit  should  be given  even  though  preparation  for  the  trial  was  largely completed.  As I will be imposing a cumulative sentence to reflect the totality of the offending, I simply say that the credit I will give for guilty plea and remorse will be eight months’.  That means that the end sentence for the Daydream offending would be five years’ and two months’ imprisonment.

[20]     There is significant dealing which must be brought to account in relation to the other offending.   The sentence I will impose cumulatively does not reflect a sentence that you would have received had that come before the Court discretely.  It will be much less than that.  It is designed simply to bring your final sentence to a level that reflects your offending.

[21]     I consider that a cumulative sentence of six months’ should be imposed for that offending, meaning that the effective end sentence will be five years’ and eight months’ imprisonment. No minimum term of imprisonment is imposed.

Result

[22]   Ms Turner, you are sentenced on count 1 in relation to supplying methamphetamine,  the  charge  of  offering  to  supply  methamphetamine  and  the charge of possession of methamphetamine for supply, to a sentence of five years’ and two months’ imprisonment.

[23]     On  the  charge  of  possessing  LSD,  you  are  sentenced  to  a  term  of imprisonment of three months’ and a cumulative sentence of six months’ imprisonment  on  count 6,  which  relates  to  the earlier methamphetamine supply offending.  Apart from the cumulative sentence in relation to count 6, all sentences are to be served concurrently.   The effective end sentence is five years’ and eight months’ imprisonment.

[24]     I make an order forfeiting the cash seized on termination of the operation and destruction of all drug related paraphernalia seized at that time.

[25]     Stand down please.

P R Heath J