R v Tyler-Waugh
[2021] NZHC 868
•22 April 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2020-019-3685
[2021] NZHC 868
THE QUEEN v
RAY ALLAN TYLER-WAUGH
Hearing: 22 April 2021 Appearances:
J N Hamilton for the Crown
P J Morgan QC for the Defendant
Sentencing:
22 April 2021
SENTENCING NOTES OF CAMPBELL J
R v TYLER-WAUGH [2021] NZHC 868 [22 April 2021]
Introduction
[1] Mr Tyler-Waugh, you appear for sentence today having pleaded guilty to 16 serious drugs charges and two traffic charges. Those charges were:
(a)Four representative charges of manufacturing methamphetamine;1
(b)One representative charge of supplying methamphetamine;2
(c)One representative charge of offering methamphetamine for supply;3
(d)Three charges of possession of equipment for the manufacture of methamphetamine;4
(e)Four charges of possession of material for the manufacture of methamphetamine;5
(f)Three charges of possession of precursor for the manufacture of methamphetamine;6
(g)One charge of driving while disqualified;7
(h)One charge of failing to stop (third or subsequent).8
Facts
[2] A summary of facts was presented to the Court when you pleaded guilty. When counsel for the Crown filed her memorandum as to sentencing, she said that you had accepted that summary of facts. Mr Morgan QC, when he filed his memorandum, said
1 Misuse of Drugs Act 1975, s 6(1)(b). Maximum penalty: life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty: life imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty: life imprisonment.
4 Misuse of Drugs Act 1975, s 12A(2)(a). Maximum penalty: five years’ imprisonment.
5 Misuse of Drugs Act 1975, s 12A(2)(a). Maximum penalty: five years’ imprisonment.
6 Misuse of Drugs Act 1975, s 12A(2)(b). Maximum penalty: five years’ imprisonment.
7 Land Transport Act 1998, s 32(1)(a). Maximum penalty: three months’ imprisonment and/or
$4,500 fine, and six months’ disqualification.
8 Land Transport Act 1998, s 52A(5). Maximum penalty: three months’ imprisonment and two years’ disqualification.
that the summary was not accepted, although the facts in the summary were largely agreed.
[3] Mr Morgan’s memorandum identified the facts that you disputed. These include your role in the organisation, the number of occasions on which you manufactured methamphetamine, and whether you made large sums of money from your offending. However, he said that these were largely matters of emphasis, and that the weight to be attached to the disputed facts was immaterial for the purposes of sentencing. The Crown responded to the disputes raised by Mr Morgan with a further memorandum yesterday.
[4] Mr Tyler-Waugh, as you have heard from my discussion with counsel this afternoon, my view is that the disputed facts raised by Mr Morgan are not relevant to a determination of your sentence. Indeed, my view is that the first dispute that he raised is merely a dispute about how to describe your role, rather than a dispute about any facts. I explained my view in a minute that I issued yesterday, and Mr Morgan told me that he had discussed that with you.
[5] I will be sentencing you on the basis of the facts that are agreed, together with any inferences I can draw from them.9 I will now outline those facts.
[6] In January 2020, Police commenced an investigation into the manufacture and supply of methamphetamine in the Waikato and Auckland regions. You were among those identified in the investigation as part of a group operating a large-scale, organised and lucrative drug dealing business. Covert surveillance of communications and by CCTV followed. This identified the locations where offending occurred and the roles of those involved.
[7] Mr Tyler-Waugh, you were at the second tier of the organisation. You oversaw production of methamphetamine on several occasions. Another defendant provided precursor substances to you. You regularly reported to that person on the progress of manufacturing, provided a portion of the methamphetamine to him, and paid over to
9 R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494; Pokai v R [2014] NZCA 356 at [30]–[36]; R v
Kinghorn [2014] NZCA 168 at [20] and [31].
him large sums of money obtained from the supply of methamphetamine. Others in the third tier of the organisation reported to you in undertaking the production and distribution of methamphetamine.
[8] On 30 April 2020, Police conducted a search of an address in Tuakau. The search arose from an unrelated incident involving a firearm. A clandestine laboratory used to manufacture methamphetamine was located. This included chemicals and equipment used in the production of methamphetamine and documents relating to the production process. A firearm was also found along with a little over $15,000 cash. Call records show that you organised the production of methamphetamine at this address. You have pleaded guilty to one representative charge of manufacturing methamphetamine and three separate charges of possessing equipment, material and precursor for the manufacture of methamphetamine on account what occurred at the Tuakau property.
[9] At another property in Aka Aka, you manufactured methamphetamine in a shed. You have pleaded guilty to a second representative charge of manufacturing methamphetamine on account of what occurred at this property.
[10] Following the search of the Tuakau property, another co-defendant moved to an address in Pokeno. You and two co-defendants manufactured methamphetamine in a garage on the property on at least one occasion. Police searched the property and found materials and equipment used to manufacture methamphetamine. On the basis of what was found at the Pokeno property, you have pleaded guilty to a third representative charge of manufacturing methamphetamine and two further charges of possessing equipment and material for the manufacture of methamphetamine.
[11] In early May 2020, you and another co-defendant moved from the Aka Aka property to an address near Cambridge. Methamphetamine was produced in the garage there on at least one occasion. You have pleaded guilty to a fourth representative charge of manufacturing methamphetamine as a result.
[12] The quantity of methamphetamine manufactured at the four properties cannot be determined.
[13] Towards the end of May 2020, a co-defendant rented a storage unit in Hamilton. On 27 May 2020, at that location, you received a large drum containing about 50 kilograms of iodine, a chemical used in the production of methamphetamine. You were also given a cardboard box containing approximately $97,400 in cash. You then drove away from the storage facility in your car. You were disqualified from driving at the time. Police decided to arrest you. A police officer in a marked car following you activated lights and siren. You drove off at speed and were initially pursued by Police. This was abandoned owing to your high speeds and dangerous driving. You have pleaded guilty to charges of driving while disqualified and failing to stop.
[14] During this pursuit, you contacted some co-defendants to advise them of what was happening. One was instructed to meet you at an address in Morrinsville. There you parked your car some distance from the road. The co-defendant arrived shortly afterwards, and you got into her car with a backpack and the cardboard box containing the cash. You left with her and travelled to Morrinsville where you rented a motel room. You were arrested by Police in Morrinsville later that day.
[15] Police searched the motel room. They found the backpack, which contained about three kilograms of ephedrine, a precursor for the manufacture of methamphetamine. They also found the cardboard box containing the cash. Police searched your car, and found the iodine that had been given to you at the storage facility. Police searched the co-defendant’s car, and found methamphetamine and chemicals and equipment used in the manufacture of methamphetamine. You have pleaded guilty to charges of possession of equipment, material (two charges) and precursor (two charges) for the manufacture of methamphetamine.
[16] In the course of their covert surveillance of your activities, Police identified from phone data 12 separate occasions when you supplied methamphetamine. The quantity supplied was 514 grams. Other communications establish you regularly supplied methamphetamine to others. The number of occasions has not been specified. The quantity supplied on those other occasions was not usually identified, though on two occasions where the quantity was mentioned, the amount totalled 224
grams of methamphetamine. You have pleaded guilty to a representative charge of supplying methamphetamine.
[17] Other phone data establishes you also offered to supply methamphetamine. You did so by text message 15 times. Where quantity was mentioned the total amount offered was 448 grams. On seven other occasions, you offered to supply methamphetamine during phone calls. The quantity offered was specified on two occasions and the total amount offered was 224 grams. You have pleaded guilty to a representative charge of offering methamphetamine for supply.
Approach to sentencing
[18] The Sentencing Act 2002 sets out the purposes and principles of sentencing. In cases of commercial methamphetamine dealing, relevant purposes include holding you accountable for the harm that your offending has done to the community, promoting in you a sense of responsibility for that harm, denouncing your conduct, deterring you and others from committing similar offending, protecting the community, and assisting in your rehabilitation.10
[19] The principles include the need to consider the gravity of your offending and your degree of culpability,11 and the general desirability for consistency with sentences that have been imposed in similar cases.12
[20] Determining the appropriate sentence involves two steps. First, I must determine a term of imprisonment as the “starting point” for the sentence, which will be based on the seriousness of the offending to which you have pleaded guilty.13 Secondly, I will consider your personal circumstances, including the appropriate deduction for your guilty plea. This will produce the end sentence.
[21] Having determined the end sentence, I must then consider whether I am required to impose a minimum period of imprisonment (MPI) that must be served
10 Sentencing Act 2002, s 7(1); Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [58].
11 Section 8(a).
12 Section 8(e).
13 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
before you become eligible for parole, beyond the default minimum period of one third of the sentence.
Determining starting point
[22] You have pleaded guilty to several charges. I will therefore begin by considering the starting point for the lead offending, which are the four representative charges of manufacturing methamphetamine for supply and the charges of supplying methamphetamine and offering methamphetamine for supply. I will then take into account your other offending, to reach an overall starting point.
Lead offending
[23] The Court of Appeal’s guideline judgment which clarifies the approach a court should take when sentencing offenders on charges relating to methamphetamine offending is called Zhang v R.14 In this judgment, the Court of Appeal identified five “bands” of culpability, based on the quantity of drugs involved, with band five being the most serious.
[24] Band five applies where the quantity of the drug exceeds two kilograms. The quantity you manufactured is not known with any certainty. However, you were found in possession of materials, precursors and equipment capable of producing substantial quantities of methamphetamine, and you have accepted that you were involved in the manufacture of methamphetamine on several occasions at different sites in the northern Waikato and south Auckland. In addition, you supplied or offered to supply at least 1.41 kilograms of methamphetamine. That quantity is based only on those communications where the quantity was specified. It can be inferred that you manufactured, supplied, or offered to supply more methamphetamine than was specified in those communications. Both counsel say that your offending is in band five, and I agree. Zhang indicates that an appropriate starting point for band five offending is generally from ten years to life.
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[25] The quantity of drugs involved is an important measure of culpability, because it is an indicator of the harm to the community, and greater quantities may indicate greater profit, deserving greater denunciation.15 However, culpability is not determined solely by quantity. The Court of Appeal in Zhang said that the defendant’s role in the offending is also a significant feature – the more significant a defendant’s role in the drug dealing enterprise, the more serious the sentence will be. This can warrant going above or below the band indicated by the quantity involved.16
[26] The Court of Appeal set out descriptions of individual roles, based on categorisations used in the United Kingdom.17 The Court referred to three categories of roles: lesser, significant, and leading.
[27] The Crown submits you had a leading role in the offending. The Crown submits a global starting point of 15 to 16 years is warranted. That submission, as I understand it, takes account of all your offending, not just the lead offending of manufacturing, supplying and offering to supply.
[28] Mr Morgan, by contrast, says you played a significant role in a branch of the wider organisation controlled by another co-defendant and performed limited functions for the wider organisation under the direction of that co-defendant. Mr Morgan submits the manufacturing charges are the lead charges. He says the starting point should be at the bottom of band 5, with a starting point in the range of 11 to 13 years. Again, I understand that submission to take account of all your offending.
[29] As I said earlier, I am going to determine a starting point for the lead offending. I will then take into account your other offending.
[30] My assessment is that your role is at the upper end of the significant category. You satisfy all five indicia. You had an operational or management function within the organisation. You were involved in managing others. You were motivated primarily by financial rewards. You derived some commercial profit from your activities (regardless of whether, as Mr Morgan asserts, you did not make large sums
15 At [104].
16 At [118].
17 At [126].
of money). You had an awareness and understanding of the scale of the operation. I do not accept Ms Hamilton’s submission that you had a leading role in the organisation because, in my view, you satisfy few of the indicia for that role.
[31] Having concluded that your role is at the upper end of the significant category, I now consider the cases referred to by Ms Hamilton. Mr Morgan says these cases are of little assistance given the Court of Appeal’s judgment in Zhang. However, I take the view that other sentencing decisions remain helpful in assessing a starting point within a band and give effect to the sentencing principle that consistency in outcome is generally desirable.18
[32] I find little assistance from R v Vea, which related to large-scale importation of methamphetamine.19 Nor does Martin v R assist as it involved a sole operator rather than a large-scale organisation.20 Wellington v R is, to some extent, more relevant as the defendant was involved in a larger-scale operation, but it only involved distribution, it does not appear he participated in manufacturing methamphetamine, and his role was lower in the distribution network. A starting point of 12 years’ imprisonment was adopted.
[33] The cases I consider are most helpful in assessing a starting point for your lead offending are Chai v R21 and Berkland v R.22 In Chai, the defendant pleaded guilty to importing two kilograms of methamphetamine and 60 kilograms of ephedrine. His role was significant, involving renting residential delivery addresses, with some awareness of the scale of the overall drug operation. The Court considered the appropriate starting point was 13 years’ imprisonment on the methamphetamine charges, uplifted to 16 years to account for the ephedrine charges. In Berkland, the defendant’s role in distributing a substantial quantity of methamphetamine was “towards the upper end of significant” as a highly trusted deputy, involved in decision- making, interacting with customers and conducting supplies. He also conducted major deals on his own, and was motivated by financial advantage. A starting point of 16
18 Sentencing Act 2002, s 8(e).
19 R v Vea [2019] NZHC 3422.
20 Martin v R [2020] NZCA 318.
21 Chai v R [2020] NZCA 202.
22 Berkland v R [2020] NZCA 150.
and a half years’ imprisonment was considered appropriate on the methamphetamine charges.
[34] I consider your role similar to that of the defendant in Chai and certainly analogous to that of the defendant in Berkland, though there was much greater certainty in the latter case about quantity, which was a large amount of methamphetamine. In my view, a starting point of 13 years’ imprisonment for the lead offending is appropriate. This is comparable to the starting point in Chai and lower than the starting point in Berkland, reflecting the greater certainty in that case about the quantity of methamphetamine involved.
Other offending
[35] That starting point, as I have said, also needs to take account of your other offending. I consider an uplift of two years’ imprisonment on the other charges appropriately reflects the totality of the offending.23 That produces a total starting point of 15 years’ imprisonment.
Personal circumstances
[36] I now turn to your personal circumstances. You have 55 prior convictions for dishonesty, violence and firearms offences and for failing to comply with sentence conditions. You have been sentenced more than 30 times to imprisonment. You were the subject of prison release conditions at the time of the present offending after being sentenced to four years, three months’ imprisonment in May 2017.
[37] The Crown submits that an uplift of six months’ imprisonment is necessary to reflect your previous convictions and that your offending occurred while subject to release conditions.
[38] I agree that an uplift is necessary, and that six months’ imprisonment is appropriate.
23 Sentencing Act 2002, s 85(4)(a).
[39] In terms of personal mitigating features, Mr Morgan submits that the pre- sentence report and the s 27 report refer to your difficult upbringing and your addiction. Ms Hamilton very fairly acknowledges the former, describing a poverty of circumstances in your upbringing. However, she does not accept your addiction and in particular does not accept that the offending was driven by your addiction. In Zhang, the Court of Appeal stated any discount for addiction must be based on “persuasive evidence, as opposed to mere self-reporting” and “the onus of proof (to the civil standard) lies on the offender to establish the extent and effect of addiction”.24 The references to addiction in the two reports are based to some extent on self- reporting. However, Mr Morgan has referred to me today the programmes that you have undertaken, such as attendance at Odyssey House, which he says you would not have done were you addicted to methamphetamine. Ms Hamilton accepts that that at least is evidence of long-term drug use.
[40] My assessment is that you have persuaded me, just, that you have suffered from an addiction to this drug, and that is based largely on the references that Mr Morgan has drawn my attention to, to the programmes that you have undertaken. Ms Hamilton is, however, right that in Zhang the Court of Appeal stated that a discount would only be appropriate if the offending has been driven by that addiction. She submits that in this case your offending was not driven by addiction, instead it was driven by your desire to take the risk of not being caught and to enjoy the spoils of your offending in the meantime. I take Ms Hamilton’s submission on board, but in my view, this is a case where your offending has been driven by a mix of both your addiction and related high risk taking. Given that the offending is not solely driven by your addiction, the discount that I am going to allow you, Mr Tyler-Waugh, has to be a modest one, and it will be six months.
[41] Mr Morgan pursues no other discount for personal mitigating factors and I cannot identify any.
[42] You are entitled to a discount for your early guilty pleas. You were arrested on 28 May 2020 and notified your intention to plead guilty on 20 November 2020.
24 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].
Resolution depended on disclosure of the Crown case which was completed by 2 February and you pleaded guilty on 2 February 2021. Ms Hamilton acknowledges your pleas were entered at an early stage but says any discount may be tempered by the strength of the Crown case which was evident from the start. Mr Morgan submits you are entitled to the full discount of 25 per cent. The Police investigation was a complex one involving multiple defendants who each face many drugs charges.
[43] Your guilty pleas have avoided what might have been a long and complex trial at considerable expense to the State. There was a strong prosecution case and Mr Morgan concedes the high likelihood of conviction. But that must be balanced against the administrative challenges arising in an investigation of this size and scale. In terms of a case called Hessell, I am required to consider all the relevant circumstances to identify the extent of the mitigating effect of the plea.25 Taking account of all these factors, I consider the full 25 per cent is appropriate. That percentage is applied to the 15-year starting point, and therefore produces a discount of three years and nine months.
[44] Taking account of the uplift of six months for prior convictions, the discount of six months for your addiction and I should add for your personal circumstances, and the discount for guilty plea, your overall end sentence will be 11 years, 3 months’ imprisonment.
Minimum period of imprisonment
[45] Finally, I turn to the question of a minimum period of imprisonment. Under s 86 of the Sentencing Act, the Court may order that a defendant serve more than the statutory minimum if satisfied that the default period is insufficient for any (or all) of the following reasons:26
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
25 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [65].
26 Sentencing Act 2002, s 86(2).
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[46] An MPI must not be imposed as a matter of routine or in a mechanistic way.27 A reasoned analysis is required as to the imposition of an MPI and what length it should have. In Zhang, the Court of Appeal noted that, due to deterrence, denunciation and accountability sitting at the forefront of drug cases, lengthy MPI are properly reserved for cases involving significant commercial dealing.28 However, there is no simple threshold of sentence length after which one should be imposed.29
[47]The Court of Appeal in Chai said:30
[39] A minimum period of imprisonment may be expected in cases of recidivist or commercial methamphetamine dealing. That is because in such cases its imposition is not merely deserved, but necessary to hold the offender accountable, denounce drug dealing of this kind with the grievous social harm it causes the community, protect that community and to deter repetition.
[48] Your offending was commercial dealing and these remarks are, it seems to me, directly relevant to your case. Ms Hamilton seeks a minimum period. Mr Morgan says the Parole Board should have full discretion to determine your release date after you have served the default and, further, that release at that date is most unlikely. He submits that it would be “counter-productive” to fix a minimum period of imprisonment now.
[49] Mr Tyler-Waugh, you manufactured and supplied methamphetamine on a commercial scale. The matters identified in Chai apply to your case. A minimum period of imprisonment is necessary to properly hold you accountable for your actions and denounce your destructive offending as well as protect the community and deter you and others from engaging in similar activities. I consider a minimum period of imprisonment of 40 per cent, as in Chai, is appropriate in your case. I will order you to serve a minimum of four years, six months’ imprisonment.
27 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].
28 At [171].
29 At [172].
30 Chai v R [2020] NZCA 202 (footnotes omitted). At [40] the Court upheld a minimum period of 40 per cent on the basis of Mr Chai’s extended involvement in significant commercial dealing, for profit and travel benefits and his lack of regard for the societal harm caused by his actions.
Result
[50] Mr Tyler-Waugh, on each of the four representative charges of manufacturing methamphetamine (charges 5, 9, 10 and 17), I sentence you to 11 years, three months’ imprisonment. I order you serve a minimum period of imprisonment of four years, six months’ imprisonment.
[51] On the representative charge of supplying methamphetamine (charge 34), I sentence you to eight years’ imprisonment.
[52] On the representative charge of offering methamphetamine for supply (charge 35), I sentence you to seven years’ imprisonment.
[53] On each of the three charges of possession of equipment for the manufacture of methamphetamine (charges 6, 11 and 30), I sentence you to four years’ imprisonment.
[54] On each of the four charges of possession of material for the manufacture of methamphetamine (charges 7, 12, 31, 33), I sentence you to three years’ imprisonment.
[55] On each of the three charges of possession of precursor for the manufacture of methamphetamine (charges 8, 28 and 32), I sentence you to three years’ imprisonment.
[56] On the charge of driving while disqualified (charge 51), I sentence you to one month’s imprisonment. You are also disqualified from driving for six months.
[57] On the charge of failing to stop (third or subsequent) (charge 52), I sentence you to one month’s imprisonment. You are also disqualified from driving for two years.
[58] With the exceptions of the disqualifications, these sentences are to be served concurrently. The disqualifications I have ordered will be cumulative.
[59]Charges 18, 25 and 46, on which the Crown offered no evidence, are dismissed.
[60]Mr Tyler-Waugh, please stand down.
Campbell J
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