R v Vernon
[2016] NZHC 1110
•25 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-8179 [2016] NZHC 1110
THE QUEEN
v
DAVID VERNON
Hearing: 25 May 2016 Appearances:
B A Northwood for Crown
M A Edgar for DefendantSentence:
25 May 2016
SENTENCING REMARKS OF LANG J
[1] Mr Vernon, you appear for sentence having pleaded guilty this morning to
26 charges of being in possession of methamphetamine for supply, and 60 charges of supplying methamphetamine.1 The maximum penalty for both those charges is life imprisonment. You also pleaded guilty to four charges of conspiracy to supply methamphetamine. The maximum penalty for that charge is 14 years imprisonment.
[2] Your guilty pleas were entered following a sentence indication hearing on
6 May 2016.2 You were not present at the sentence indication hearing. My remarks at the sentence indication hearing were transcribed, and I understand that you have been provided a copy of the written transcript. You indicated that you wished to plead guilty after reading the transcript of those remarks.
The facts
[3] Your offending occurred during a three month period between 2 May 2015 and 11 August 2015. During that period the police conducted an electronic surveillance operation directed initially at another person, Mr Jiang. This quickly led the police to you, because they discovered that you were one of Mr Jiang’s main distributors. You would purchase quantities of methamphetamine from Mr Jiang in ounce or gram lots. You would then distribute it in smaller quantities to your customers. You did so using various drivers who carried out deliveries of the drugs. In total, you dealt with 1.35 kilograms of methamphetamine in this way.
[4] For that reason, I have taken you to be a wholesaler of methamphetamine. You dealt principally in ounce or gram lots, and distributed those quantities to retailers. You were the second major player in this particular drug distribution
network behind Mr Jiang.
1 The Crown offered no evidence on 27 other charges. Before sentencing Mr Vernon I made orders under s 147 of the Criminal Procedure Act 2011 discharging him on those charges.
2 The sentence indication hearing proceeded on the basis that Mr Vernon would be pleading guilty to 27 charges of being in possession of methamphetamine for supply and 58 charges of supplying methamphetamine. The Crown produced a schedule following the sentence indication hearing showing that Mr Vernon would be pleading guilty to 26 charges of being in possession of methamphetamine for the purposes of supply and 60 supply charges. The alteration in the number of charges is immaterial for sentencing purposes.
Starting point
[5] In my sentence indication, I noted that the starting point for your offending was to be determined in accordance with a decision of the Court of Appeal called R v Fatu.3 In that case the Court of Appeal identified bands of offending relating to the manufacture, importation and supply of methamphetamine. There is no dispute that your offending falls within band 4, the top band identified in Fatu. This applies in cases of very large commercial quantities of methamphetamine. It will generally require the offender to have supplied, imported or manufactured more than 500 grams of methamphetamine. Offending in this band carries a starting point of
between ten years and life imprisonment. I have selected a starting point in relation to your offending of 16 years imprisonment.
Aggravating factors
[6] I identified two aggravating factors. The first was that you were already facing a charge of being in possession of methamphetamine for supply when you offended during the period of the police operation. This was laid after the police carried out a warrantless search of your apartment on 4 March 2015. As they arrived, you were seen throwing a snaplock bag containing approximately 17 grams of methamphetamine from the balcony of the apartment. When the police searched the apartment, they found approximately five grams of methamphetamine, a set of electronic scales, the sum of $1200 in cash and other paraphernalia associated with the supply of methamphetamine. The Judge who sentenced you on that charge selected a starting point of four and a half years imprisonment, and ultimately
sentenced you to three years imprisonment on 5 November 2015.4 You are currently
serving that sentence. The fact that you were already on bail on a serious methamphetamine-related charge is obviously a significantly aggravating factor in relation to the present charges.
[7] In addition, you have several previous convictions for methamphetamine- related offending. On 9 October 2012, you received a sentence of ten months home
detention on two charges of being in possession of methamphetamine. On
3 R v Fatu [2006] 2 NZLR 72.
4 R v Vernon [2015] NZDC 22052.
21 October 2013, you received a sentence of six months imprisonment on charges of possessing and selling methamphetamine, then on 4 March 2015, you offended again in the manner described above for which you received a sentence of three years imprisonment.
[8] It is obvious that you have not learned your lesson from past sentences. Your current offending is made more serious by the fact that you have offended notwithstanding your knowledge of the way in which the courts treat this type of offending. You must now be viewed as a determined offender who will take any opportunity to deal in methamphetamine.
[9] I would have selected an uplift of two years imprisonment to reflect these factors. The Crown, however, did not go that far. It sought an uplift of just
12 months to reflect those factors. I was prepared to accept that uplift, and apply
12 months as the uplift to reflect these factors. This means that I selected a starting point of 17 years imprisonment without taking into account mitigating factors.
Mitigating factors
[10] The only mitigating factor I can realistically take into account is your guilty pleas.
[11] I have the benefit of a pre-sentence report prepared on 30 September 2015 before you were sentenced on the last occasion. You have waived your right to obtain an updated pre-sentence report because your circumstances have not changed since that time. This report reveals, however, that you have been involved with methamphetamine for more than 16 years. You are now 31 years of age. You are assessed as having a low ability to comply with community-based sentences. A community-based sentence is obviously out of the question in respect of the present offending.
[12] I was prepared to apply a discount of 25 per cent to reflect your guilty pleas. Although the pleas were not entered at the earliest stage, they saved the State the considerable cost of the trial that was due to commence in October 2016. For that
reason, I apply a discount of four years three months to reflect guilty pleas, thereby producing an end sentence of 12 years nine months imprisonment.
Concurrent or cumulative sentences?
[13] In my sentence indication remarks, I discussed the difficult issue of whether the sentences I am about to impose should be cumulative or concurrent on your existing sentence. I concluded that it was unlikely that the sentence imposed on the last occasion would have differed greatly if at all in the event that you had been sentenced on all charges at the same time. For that reason, I indicated I proposed to impose concurrent sentences. I remain of that view.
Sentence
[14] On each of the charges of being in possession for supply and supplying methamphetamine you are sentenced to 12 years nine months imprisonment. Those sentences are to be served concurrently with each other, and concurrently with the sentence imposed on 5 November 2015. On each of the conspiracy charges, I sentence you to two years imprisonment. Those sentences are to be served concurrently with each other and with all other sentences.
Minimum term of imprisonment
[15] In my sentence indication remarks I dealt also with the issue of minimum term of imprisonment. Drug dealing at this level requires the issues of deterrence, denunciation, accountability and protection of the public to be considered again. In the ordinary course of events, you would be eligible to apply for parole after serving just four years three months imprisonment. This was drug offending at the very top level. It involved significant quantities and numerous supplies. I consider that the usual parole provisions would be manifestly inadequate to mark all of the factors that are relevant to the imposition of a minimum term of imprisonment.
[16] For that reason, I order that you serve impose a minimum term of six years four months imprisonment before being able to apply for parole on each of the
charges of supplying methamphetamine and being in possession of methamphetamine for supply.
[17] Thank you. Stand down.
Lang J
Solicitors: Crown Solicitor
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CRI-2015-004-8179 [2016] NZHC 920
THE QUEEN
v
DAVID VERNON
Hearing: 6 May 2016
Counsel: B R Northwood for Crown
M A Edgar for Defendant
Date of Minute: 6 May 2016
SENTENCE INDICATION OF LANG J
[1] Mr Vernon faces 27 charges of being in possession of methamphetamine for supply and 58 charges of supplying methamphetamine. The maximum penalty for both those charges is life imprisonment. He also faces four charges of conspiracy to supply methamphetamine, the maximum penalty for which is 14 years imprisonment.
[2] Mr Vernon has now sought a sentence indication. This is an indication of the sentence the Court would impose if Mr Vernon was to enter guilty pleas within a short timeframe from now. Unfortunately, Mr Vernon was not at Court today because an order to produce him was not prepared and delivered to the prison authorities. I have decided to proceed with the sentence indication in his absence, because his counsel, Mr Edgar, has trial commitments for the next few weeks and it will be difficult to rearrange a further hearing date. I am sure that Mr Vernon would prefer to have a sentence indication now rather than wait several weeks for that to occur.
[3] Mr Vernon’s offending occurred during a three month period between 2 May
2015 and 11 August 2015. During that period the police conducted an electronic surveillance operation directed initially at another person, Mr Jiang. This quickly led them to Mr Vernon, who was one of Mr Jiang’s main distributors. Mr Vernon would purchase large quantities of methamphetamine from Mr Jiang in ounce or gram lots, and then distribute it in similar or smaller quantities to his customers. In total he dealt with 1.35 kilograms of methamphetamine in this way. I therefore take him to be a wholesaler dealing principally in ounce to gram lots. He was the second major player in this operation behind Mr Jiang.
Starting point
[4] The first step in the sentencing process is to select a starting point that reflects Mr Vernon’s overall culpability in relation to the charges. This ignores factors personal to him.
[5] Mr Vernon used a number of drivers to deliver the methamphetamine on his behalf. Two of these, Mr Brown and Mr Fry, have already been dealt with, and the sentencing Judge, Wylie J, selected starting points of five years and seven and a half
years respectively in respect of them.5 Mr Vernon obviously sits considerably higher in the distribution tree than his delivery drivers.
[6] Both counsel have referred a number of authorities to me.6 The starting point is governed by R v Fatu.7 This offending falls within category 4 identified in that case, which applies in respect of the supply of very large commercial quantities of methamphetamine. This will occur when the offender has supplied 500 grams or
more of methamphetamine in total. Offending within this band carries a starting point of between ten years and life imprisonment.
[7] Having regard to the starting points adopted in relation to other offenders in this operation and to those applied in other cases referred to by counsel, I select a starting point in Mr Vernon’s case of 16 years imprisonment.
Aggravating factors
[8] There are two significant aggravating factors in this case. The first is that Mr Vernon was already facing a charge of being in possession of methamphetamine for supply when he offended on this occasion. On 4 March 2015, the police conducted a warrantless search of the apartment complex in which Mr Vernon was living. He was seen throwing a snaplock bag containing approximately 17 grams of methamphetamine from the balcony of his apartment. When the police searched the apartment they found approximately five grams of methamphetamine, a set of electronic scales, $1,200 in cash and other paraphernalia associated with the supply of methamphetamine.
[9] The sentencing Judge in that case selected a starting point of four and a half years imprisonment, and ultimately imposed a sentence of three years imprisonment
on Mr Vernon on 5 November 2015.8
5 R v Brown & Fry [2016] NZHC 612.
6 Clifton v R [2013] NZCA 85; R v Voong HC Auckland CRI-2007-004-022697, 1 July 2010; Voong v R [2013] NZCA 341; R v Li HC Auckland CRI-2006-019-008458, 25 August 2009; R v C HC Auckland CRI-2007-004-25638, 17 August 2007.
7 R v Fatu [2006] 2 NZLR 72.
8 New Zealand Police v Vernon [2015] NZDC 22052.
[10] The fact that Mr Vernon was already on bail on a serious methamphetamine- related charge is obviously a significantly aggravating factor in relation to the present charges.
[11] In addition, Mr Vernon has several previous convictions for methamphetamine-related offending. On 9 October 2012, he received a sentence of ten months home detention on two charges of being in possession of methamphetamine. On 21 October 2013, he received a sentence of six months imprisonment on charges of possessing and selling methamphetamine. Then, on 4
March 2015, he offended again for which he received the sentence of three years imprisonment to which I have already referred.
[12] It is clear that Mr Vernon has not learned his lesson from the earlier sentences. His current offending is aggravated by the fact that he has failed to learn from past mistakes. He must now be viewed as a determined offender, who will take any opportunity to deal in methamphetamine.
[13] I would have selected an uplift of two years imprisonment to reflect these aggravating factors. The Crown does not, however, seek an uplift at that level. It submits that an uplift of 12 months would be sufficient to reflect both these factors. Given that this is a sentence indication, I am prepared to accept that submission. The position may well be different in the event that Mr Vernon elects to defend the charges and go to trial.
[14] This means that an overall starting point of seventeen years imprisonment is to be applied without taking into account mitigating factors.
Mitigating factors
[15] The only mitigating factor that can be taken into account at this point is Mr Vernon’s guilty pleas. Although they did not come at the earliest opportunity, a discount of 25 per cent has been applied in other cases of arising out of this police operation. The Crown is prepared to accept that Mr Vernon should receive the same level of discount. The guilty pleas will save the State a considerable cost at the trial that is due to commence in October 2016.
[16] I propose to apply a discount of four years three months to reflect guilty pleas. This produces an end sentence of 12 years nine months imprisonment.
Concurrent or cumulative sentences?
[17] The most difficult issue about this sentencing exercise is whether the end sentence should be cumulative on the sentence of three years imprisonment that Mr Vernon is already serving. If it is to be imposed cumulatively, an adjustment would obviously need to be made to reflect totality principles. It is highly unlikely that Mr Vernon would have received an end sentence of 15 years nine months imprisonment if he had been sentenced on all charges at once.
[18] The imposition of a concurrent sentence would effectively mean that Mr Vernon will not serve any discrete sentence in respect of the offending that occurred in March 2015. This is because he has been in custody on both sets of charges since August 2015.
[19] I have concluded that it is unlikely that the sentence to be imposed on Mr Vernon would have differed greatly, if at all, in the event that he had been sentenced on all charges at the same time. For that reason I propose to impose a concurrent sentence. I am fortified in that view by my impression that the offending in March
2015 was effectively part and parcel of the drug dealing activity that the police detected a few months later. The two sets of offending can therefore be viewed as connected in time and circumstance.
Indicated Sentence
[20] I would therefore impose an end sentence of 12 years nine months imprisonment on each of the charges carrying maximum sentences of life imprisonment. Those sentences would be served concurrently with each other and with the sentence imposed on 5 November 2015.
Minimum term of imprisonment
[21] I would impose a minimum term of imprisonment of six years four months on each of those charges. That is consistent with the level of minimum term imposed in other similar cases. This is drug offending at the upper end, and all of the sentencing principles referred to in s 86 of the Sentencing Act 2002 come into play.
[22] I would impose concurrent sentences of two years imprisonment on each of the conspiracy charges.
Acceptance or rejection of indication
[23] Mr Vernon will have until 5 pm on Friday 13 May 2016 to accept or reject the sentence indication. His counsel should file a memorandum to advise the Court of Mr Vernon’s decision no later than 5 pm on that date. If Mr Vernon wishes to enter guilty pleas to the charges, he can be arraigned at the conclusion of the criminal callover on 18 May 2016 at 9 am.
[24] I understand that a pre-sentence report was prepared in respect of the sentencing hearing on 5 November 2015. Given that Mr Vernon has been in prison since that date, I see no need to obtain an updated report unless Mr Edgar asks that that be done. I would therefore be prepared to sentence Mr Vernon as soon as he has
entered his guilty pleas.
Lang J
Solicitors:
Crown Solicitor, Auckland