R v Waiariki
[2018] NZHC 31
•31 January 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CRI-2017-091-000902 [2018] NZHC 31
THE QUEEN
v
NATASHA RUBY WAIARIKI
Counsel: R Georgiou for Crown
V C Nisbet for Defendant
Sentence:
31 January 2018
NOTES ON SENTENCE OF COLLINS J
Introduction
[1] Ms Waiariki, you appear for sentence on the following charges:
(1) one representative charge of supplying methamphetamine;1
(2) one representative charge of offering to supply methamphetamine;2
(3)two representative charges of possession of methamphetamine for supply;3 and
1 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum penalty is life imprisonment.
2 Section 6(1)(c) and (2)(a). Maximum penalty is life imprisonment.
3 Section 6(1)(f) and (2)(a). Maximum penalty is life imprisonment.
R v WAIARIKI [2018] NZHC 31 [31 January 2018]
(4) one charge of conspiracy to supply methamphetamine.4
[2] This morning I will:
(1) set out your offending;
(2) outline the appropriate starting point for that offending;
(3) explain any adjustments that will be made to the starting point; and
(4) state your sentence.
Offending
[3] The charges result from a police operation code-named “Operation Walnut” which commenced in November 2016. That investigation targeted the commercial supply of methamphetamine in the Wellington region.
[4] Police intercepted communications and carried out a visual surveillance of two principal targets, Mr Blance and Mr Berkland. It is alleged by the Crown that they were purchasing kilogram quantities of methamphetamine from Auckland-based suppliers. Mr Blance and Mr Berkland would then on-supply the methamphetamine to a number of associates in their distribution networks. Most of the offending took place at an address at 40 Coates Street, Tawa. Associates would then on-supply the methamphetamine to others.
[5] You are one of the associates. Between 2 March and 11 April 2017, visual surveillance evidence shows you visited 40 Coates Street on at least 14 occasions.
[6] The police investigation also involved undercover police officers.
[7] The summary of facts provides details of specific instances of your offending as detected by undercover police officers, namely:
4 Misuse of Drugs Act 1975, s 6(2A)(a). Maximum penalty is 14 years’ imprisonment.
(1) five instances of supplying methamphetamine on 9 December 2016,
19 December 2016, 31 January 2017, 1 February 2017 and 2 March
2017;
(2) four instances of offering to supply methamphetamine on 2 December
2016, 27 February 2017, 9 March 2017 and 15 March 2017; and
(3) three occasions of possession of methamphetamine for supply on
14 December 2016, 19 December 2016 and 2 March 2017.
[8] In relation to the quantities, you supplied to undercover officers 4.25 grams of methamphetamine and offered to supply one gram of methamphetamine. You were then observed by undercover police officers possessing five grams of methamphetamine for the purposes of supply.
[9] An analysis of your phone messages is attached as an appendix to the summary of facts. The summary outlines 49 incidents of supplying methamphetamine and
67 incidents of offering to supply methamphetamine. The analysis shows you supplied at least 11.55 grams of methamphetamine and offered to supply at least
14.3 grams of methamphetamine.
Personal circumstances
[10] You are now 30 years of age. You have five tamariki, the youngest of whom was born while you were in custody last year. While your tamariki are in the care of others, you hope to reconnect with them.
[11] Your counsel, Mr Nisbet refers to your “tragic background”, noting your previous mental health issues and drug addiction, particularly with methamphetamine.
[12] You have 23 previous convictions, but only one relates to drug offending, namely possession of cannabis in 2009. Most of your previous offending involves breaches of court orders. There is a pre-sentence report that records that you are at moderate risk of further offending with a medium risk of harm to others. The writer recommends appropriate interventions and records your hope for a different life.
Starting point
[13] There is a presumption in favour of imprisonment for Class A drug dealing offending.5
[14] The Court of Appeal’s decision in R v Fatu is the leading sentencing guideline judgment for offending involving the supply of methamphetamine.6 Your offending falls within sentencing band two, which provides that the supply of commercial quantities between five grams to 250 grams warrants a starting point between three years’ to nine years’ imprisonment.7
[15] In setting the appropriate starting point, I have taken into account the following aggravating features of your offending:
(1)Premeditation and planning.8 A significant degree of premeditation and planning is inherent in the sale and supply of controlled drugs.
(2)Number and frequency of supplies/sales.9 I have outlined your numerous instances of offending, uncovered through the undercover phase of the investigation and the analysis of your text messages. You supplied methamphetamine to undercover officers five times and to others on 49 occasions. Your offending covered a period of over four months.
(3)Amount of methamphetamine.10 While the Crown submits the quantities are likely to be higher, the total amount of methamphetamine I am to take into account for sentencing purposes is 36.1 grams of methamphetamine, which is the total amount of methamphetamine that you supplied, offered to supply or possessed for supply. That amount
sits well below the mid-range of band two of R v Fatu.
5 Misuse of Drugs Act 1975, s 6(4)(a).
6 R v Fatu [2006] 2 NZLR 72 (CA).
7 At [34].
8 Sentencing Act 2002, s 9(1)(i).
9 Sections 8(a) and (b); 9(1)(d).
10 Section 8(a) and (b); R v Fatu, above n 6.
[16] The Crown submits on the basis of information in the summary of facts that you sold and supplied methamphetamine for profit.11 Mr Nisbet submits your involvement would have been highly contingent on your own methamphetamine addiction and the need to fund this addiction.
[17] In terms of your role in the overall operation, you were not one of the principal offenders. However, you were a very frequent visitor, purchaser and on-seller of street level amounts of methamphetamine. You can be described as a street level methamphetamine dealer in your own right.12
[18] To ensure consistency in sentencing,13 I note that only one of the other co- defendants from Operation Walnut has been sentenced. Ms Svenson was sentenced on one charge of supplying methamphetamine and one charge of conspiracy to supply methamphetamine. The total amount of drugs located with her was 8.25 grams and text message data indicated a further 7.2 grams. A global starting point of three years’ imprisonment was adopted.
[19] I have also referred to comparable cases. The Crown says your offending is similar to the defendants in R v Holloway14 and R v Harris,15 where quantities for supply of around 30 grams of methamphetamine were involved. Those cases resulted in a starting point of between five to five and a half years’ imprisonment and the Crown submits your starting point should be somewhere in that region. Mr Nisbet submits a starting point of three and a half to four years. He accepts that imprisonment is warranted and refers to what he submits are similar cases involving lower starting
points.16 For example, in R v Jackson, Priestley J held that four years was generally
11 R v Fatu, above n 6, at [32].
12 At [31]: “Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. 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”.
13 Sentencing Act 2002, s 8(e).
14 R v Holloway HC Auckland CRI-2005-090-7291, 26 May 2006.
15 R v Harris HC Palmerston North CRI-2006-054-1008, 26 February 2017.
16 R v Jackson [2013] NZHC 2194; R v Haira HC Rotorua CRI-2009-063-5871, 24 November 2011; Yuen v R [2010] NZCA 521; R v Cole HC Wellington CRI-2008-085-535, 13 March 2009 and R v Aiavao HC Rotorua CRI-2006-070-7259, 5 September 2008.
an appropriate starting point for cases involving supply of methamphetamine between
26 grams and up to the mid-high of 30 gram level.17
[20] I have decided the Crown’s starting point is too high because the cases relied on involved possession of weapons charges and that is a factor that is absent in your offending. In Mills v R, the Court of Appeal explained that uplifts of 12 to 18 months are appropriate for firearms offending associated with drug dealing.18 I do bear in mind, however, your comparably greater instances of offending, when compared to other cases.
[21] Methamphetamine is a dreadful drug, which causes significant harm to individuals and relationships. The courts have consistently adopted starting points that reflect the social harm caused by methamphetamine. Consistent with this approach, I consider a starting point of four years’ imprisonment is appropriate.
Adjustments to the starting point
Personal aggravating factors
[22] The Crown accepts the nature of your previous convictions do not warrant any uplift.
Personal mitigating factors
[23] Mr Nisbet submits you have a number of personal mitigating factors that I
should take into account, namely:
(a) your relatively young age;
(b) your unfortunate background;
(c) your drug addiction issues; and
(d) your remorse and desire to get your life back on track.
17 R v Jackson, above n 16, at [9].
18 Mills v R [2016] NZCA 245 at [18].
[24] I accept your personal extenuating circumstances warrant an additional discount. You have had a particularly difficult background, having been introduced to alcohol and drugs at a disturbingly young age. The Alcohol and Drug Report records your addiction to methamphetamine and cannabis and that you are determined to get whatever support is available to assist you in addressing your addiction issues. I propose to provide you with a discount of nine months’ imprisonment to reflect your personal circumstances.
Guilty plea
[25] You are entitled to a 25 per cent discount for your early guilty plea.19
Result
[26] Ms Waiariki, can you now please stand. This results in a final sentence of two years and five months’ imprisonment.
[27] That is the sentence I impose in relation to each charge. Those sentences are to be served concurrently, meaning that your end sentence is one of two years and five months’ imprisonment.
[28] I record that I quash the post-sentence conditions relating to the burglary charge that was imposed in the District Court.
D B Collins J
Solicitors:
Crown Solicitor, Wellington
Val Nisbet, Wellington for Defendant
19 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
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