R v Whare
[2023] NZHC 1719
•29 June 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2021-070-4221
[2023] NZHC 1719
THE KING v
FREDERICK WHARE
Hearing: 29 June 2023 Appearances:
C A Bourke for the Crown W T Nabney for Mr Whare
Judgment:
29 June 2023
SENTENCING REMARKS OF HARLAND J
Introduction
[1] Mr Whare, as I said at the outset, there is a process and I am going to have to go through quite a few things in my sentencing decision so I just ask you to bear with me while I do that. And because of the distance, it is hard to engage with you directly but these remarks are addressed to you and you will get, of course, a copy of my written remarks in due course.
[2] Mr Whare, you appear before the Court today for sentence, having pleaded guilty to 57 charges arising out of the Police operation codenamed Operation Silk.
[3]The charges comprise:
R v WHARE [2023] NZHC 1719 [29 June 2023]
(a) 15 charges of conspiring to supply methamphetamine,1 those charges carry a maximum penalty of 14 years’ imprisonment on each charge;
(b) 8 charges of possessing methamphetamine for the purposes of supply,2 those carry a maximum penalty on each charge of life imprisonment;
(c) 18 charges of supplying methamphetamine,3 which also carry a maximum penalty of life imprisonment;
(d) three charges of conspiring to sell cannabis,4 which have a maximum of seven years’ imprisonment;
(e) one charge of supplying cannabis,5 that has a maximum penalty of eight years’ imprisonment;
(f) one charge of unlawfully possessing a prohibited firearm,6 which carries of penalty of five years’ imprisonment, maximum;
(g) one charge of unlawfully possessing a pistol,7 the maximum penalty for that is three years and/or a $4,000 fine;
(h) two charges of possessing cannabis for sale,8 that has an eight year maximum imprisonment available;
(i) two charges of possession of cannabis9 which has a maximum of three months or a $500 fine;
1 Misuse of Drugs Act 1975, s 6(2A) - Charges 56, 57, 98, 102, 103, 113, 118, 138, 145, 155, 161,
164, 166, 169 and 198, Crown Charge Notice for resolution purposes dated 18 July 2022.
At sentencing it was noted there were 16 charges, when there were in fact 15. A charge withdrawn at arraignment was inadvertently included. This has no impact on the sentence delivered.
2 Misuse of Drugs Act, ss 6(1)(f) and 6(2) - Charges 58, 62, 72, 73, 93, 104, 147 and 167.
At sentencing it was noted there were nine charges, when there were in fact 8. A charge withdrawn at arraignment was inadvertently included. This has no impact on the sentence delivered.
3 Misuse of Drugs Act, ss 6(1)(c) and 6(2) - Charges 59, 63, 74, 94, 115, 116, 117, 120, 121, 123,
130, 146, 158, 159, 160, 162, 165 and 168.
At sentencing it was noted there were 21 charges, when there were in fact 18. Charges withdrawn at arraignment and at sentencing were inadvertently included. This has no impact on the sentence delivered.
4 Misuse of Drugs Act, ss 6(1)(f) and 6(2A) - Charge 64, 75 and 157.
5 Misuse of Drugs Act, s 6(1)(d) - Charge 76.
6 Arms Act 1983, s 50A - Charge 86.
7 Arms Act, s 45(1) - Charge 87.
8 Misuse of Drugs Act, s 6(1)(e) - Charges 114 and 126.
9 Misuse of Drugs Act, ss 7(1)(a) and 7(2) - Charge 124 and 182.
(j) one charge of offering to supply methamphetamine,10 which again has a maximum of life imprisonment;
(k) one charge of selling cannabis,11it has a maximum of eight years’ imprisonment;
(l) one charge of failing to comply with a direction of a medical officer for health,12 that carries a maximum of six months or a $4,000 fine;
(m) one charge of unlawfully possessing ammunition,13 with a maximum of three years and a $4,000 fine;
(n) one charge of possessing a methamphetamine utensil,14 which carries a maximum of one year or a $500 fine; and
(o) one charge of discharging a firearm with reckless disregard.15
[4] It is important that these things are set out in detail and the maximum penalties also as part of the public accountability.
[5] I will first outline certain matters of general importance that relate to the offending of the kind you have undertaken before addressing your specific offending and the mitigating matters that relate to you personally.
Operation Silk
[6] First, Operation Silk. Operation Silk concerned an extensive Police investigation into the activities of the newly established Mongols Motorcycle Club (Mongols) in New Zealand in 2019 and 2020. The Mongols quickly established a drug distribution business throughout New Zealand.
10 Misuse of Drugs Act, ss 6(1)(c) and 6(2) - Charge 144.
11 Misuse of Drugs Act, s 6(e) - Charge 156.
12 Health Act 1956, s 72(c) - Charge 200.
13 Arms Act, s 51 - Charge 201.
14 Misuse of Drugs Act, ss 13(1)(a) and 13(3) - Charge 202.
15 Crimes Act 1961, ss 66 and 198(2) - Charge 85. This charge was not read out at sentencing but should have been included. It has no impact on the sentence delivered.
[7] The first chapter of the Mongols was established in New Zealand in April 2019, following the deportation of Jim Thacker, Hone Ronaki,16 and Leon Huritu from Australia to New Zealand. The Mongols were established by Mr Thacker as the national president after a dispute arose within their former gang, the Bandidos, resulting in him and other gang members being de-patched.
[8] You were involved in the Mongols gang insofar as you had the closest relationship and connection with Hone Ronaki and, together, you and he both dealt in class A and class C controlled drugs. But I accept that Hone Ronaki was also involved in a side hustle and you, likewise, were involved in that with him. And I note, you were not a prospect or patched member of the Mongols but you were only associated with them through your whanaunga, Hone Ronaki.
The facts
[9] I now turn to outline the facts again because that is an important part of the sentencing that needs to be recorded.
[10] Because you pleaded guilty to these charges, the details of your offending are included in a Summary of Facts.17
[11] There are effectively three different types of offending in respect of which you pleaded guilty. The first is the methamphetamine offending, the second is the cannabis offending, and lastly the firearms offending. And I will refer to the other, what I consider to be, more minor charges right at the end.
[12] Your offending encompassed the period from 29 January 2019 to May 2020. During this time, there were numerous communications between you and Hone Ronaki where you and he agreed to supply methamphetamine and, on occasion, cannabis to others. You would typically be supplied with methamphetamine and, on occasions as I said, cannabis by Hone Ronaki which you would then on-supply to others, in return for cash and, because of your addiction, I accept methamphetamine and/or cannabis. On one occasion, you agreed to swap a .22 firearm for half an ounce of methamphetamine.
16 I refer to Mr Ronaki as “Hone Ronaki” throughout to distinguish him from two other defendants involved in this operation who have the same surname.
17 Dated 18 July 2022.
[13] The quantum of methamphetamine is an issue but, from what we have heard today, has largely been resolved and I will deal with that when I deal with it in the context of how I must deal with it under the law.
[14] But one of the other aspects of your offending was to do with the firearms offending and that occurred on 28 January 2020. It relates to what happened at 625 No 2 Road. In relation to that, I need to provide some background, again for the purposes of public accountability.
[15] What had happened earlier in January was that there had been an arson attack on a business that Mr Thacker was establishing in Greerton in Tauranga. That barbershop business (Bladed and Faded) was torched, effectively, on 28 January. A retaliatory attack was then undertaken by the Mongols for what had happened.
[16] Late at night, members of the Mongols travelled to Haukore Street, a suburban residential address in Maungatapu, where 96 rounds of ammunition were fired into a house. The house was occupied by the adult daughter of the president of the local Mongrel Mob. She, her partner and a number of children present when this incident occurred. Some of the rounds were fired into the lounge at the address where five children were watching TV, and other rounds were fired into cars outside the address. As I have said to others who were involved in that, and you were not, it was fortunate that nobody was injured or, worse, died.
[17] In the early hours of the following morning, the vehicle that was used in the shooting was returned to a protected witness who gave evidence during the trial. But, importantly, and this is where your offending comes in, the day after the shooting, members of the Mongrel Mob travelled to the intersection of No 1 and No 2 Roads in Te Puke in a convoy of vehicles. Hone Ronaki’s address was at No 2 Road, and it is clear that this was the address the Mongel Mob were focusing on. This address is situated in a rural setting amidst kiwifruit orchards.
[18] Prior to the shooting, Hone Ronaki was heard during an intercepted call that Police had made to try and get members of the Mongols to his address. That was after he had been notified by you that there were seven loads of Mongrel Mob members in convoy heading through Te Puke. Hone Ronaki was in a panicked state and he asked you where his guns were hidden in the orchard so that he could retrieve them.
[19] After this, what I describe as a gangland-type shooting took place between members of the Mongols and Mongrel Mob along No 2 Road outside Hone Ronaki’s address. Although you were not a member of the Mongols, you were there.
[20] Members of public who live nearby called the Police. By the time the Police arrived, the incident had ended. No firearms were located at the scene but forensic investigations were undertaken at both Haukore Street and in and around 625 No 2 Road. There was also a search warrant executed at Hone Ronaki’s address and a number of shell casings were found. Subsequent ESR examinations established that the casings belonged to four firearms, a Bushmaster XM15-E2S, a DPMS Panther rifle A-15, a Ranger brand AK-47 and a Wyndham Weaponry WW-15.
[21] Later on 28 January 2020, a civilian found a Bushmaster XM15 on the banks of the Kaituna River and delivered it to the Te Puke Police station. I should say that the person was a young person and they had been down at the river swimming with younger cousins and were concerned, having found this firearm, that the young people would get access to it.
[22] The Police went to the area and located a black bag containing two loaded semi-automatic rifles, that is the DPMS Panther rifle A-15 and the Ranger AK-47, and a Ruger pistol.
[23] This is the background to the offending that you were involved in and which, I acknowledge, you admitted by your guilty pleas very early on. Others have been found guilty following their trial and some have pleaded guilty as well to being involved in some way with those firearms.
[24] The next set of offending that I need to outline the facts for, because it is slightly different from the other methamphetamine offending, is the trip that has been referred to as the Denny’s trip to Auckland. This was a trip that you undertook with Matthew Ramsden - he was the driver, you the passenger - and it occurred on 9 and 10 February 2020. This was an occasion when you picked up from Mr Collins- Haskins (the Auckland connection of the Mongols) a large amount of methamphetamine. I have assessed it to be 500 grams. That is the quantum which is accepted should apply to you as well.
[25] During the trip, you were on the phone with Hone Ronaki. He was directing you where to go and what to do, and what to do when you returned with the methamphetamine. I accept, on this occasion, that you were part of the couriering of the methamphetamine but, as I say, it was you who liaised with him on the way up about where to go and what to do.
[26] After this, Matthew Ramsden was involved in washing the methamphetamine which, by this stage, had become dirty. It was washed with acetone to make it more attractive to buyers, even though its appearance did not affect the quality of it. I mention this because, during this period, you were involved in supplying this methamphetamine that had been washed by Matthew Ramsden. And this occurred just before the lockdown period, after which it became very difficult for methamphetamine to be distributed.
[27] By 4 and 5 March, you asked Hone Ronaki in code if he was interested in selling cannabis which you had in your possession and, later, on 18 March, you had more cannabis in your possession for sale. I say no more about the cannabis because you have admitted your involvement in that offending. The total quantum agreed was
6.6 kilograms.
[28] So, I have summarised those facts because I have to do so in order for there to be some context to the charges to which you have pleaded guilty.
Approach to sentencing
[29]I now outline the approach I need to take as a matter of law to sentencing you.
[30] When sentencing you, I must consider the 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 or seriousness of your offending, and I must also take into account your culpability or blameworthiness for it. I also need to take into account the seriousness of the offence, which is reflected by the maximum penalty that Parliament has chosen to impose for different sorts of offences. Any sentence I impose must denounce your conduct, deter both you and others in the community from committing similar offences in the future, and hold you accountable for the harm your offending has caused in the community.
[31] I accept that this experience, out of character for you it seems and driven by your addiction to methamphetamine, has been enough to denounce your conduct and to deter you personally. But, as I said, part of the sentence I have to impose has to take into account the purpose of deterring others from doing the same thing.
[32] Determining the appropriate sentence requires me to adopt what we call a starting point based on the seriousness of the offending you have admitted through your pleas of guilty. Having set the starting point, I then move on to consider your personal circumstances, including your guilty pleas, and other matters I am going to refer to which operate to reduce the starting point. When I reach the end sentence for you, I must ensure it meets the principles of totality and parity, that means that it is consistent with sentences for your co-offenders.
Starting point
[33] The lead charges are those relating to your methamphetamine offending. I determine the starting point for this offending first, and then adjust it to take into account your cannabis and firearm offending.
Methamphetamine offending
[34] The starting point for methamphetamine offending must be formulated by reference to the guideline judgment by the Court of Appeal in Zhang v R.18 This case sets out five bands of offending based on the quantity of methamphetamine involved. Quantity is an important measure of culpability because it is an indicator of harm or potential harm to the community and it may also indicate commercial elements.19
[35] The Crown submits that you were involved in the possession and on-supply of at least 1.67 kilograms of methamphetamine. The starting point it nominates for this offending is a term of 12 years’ imprisonment.
18 Zhang v R [2019] 3 NZLR 648.
19 At [104].
[36] Mr Nabney submitted that this quantum is higher than that which you should accept. He provided a schedule attached to his submissions setting out the specific amounts that accord with either the summary of facts or the particulars of the charges. He submitted a starting point of eight to nine years is more appropriate to reflect your role.
[37] The importance of separating out the conspiracy to supply charges from the actual possession of and supply of methamphetamine is because the conspiracy to supply charges carry a lesser penalty; the maximum penalty for it is one of 14 years as opposed to life imprisonment. As well, the conspiracy charges were an agreement by you to unlawfully supply methamphetamine rather than to necessarily actually do so, although on some occasions you did both. But, in some instances, the conspiracy or unlawful agreement might have resulted in no supply actually occurring or less than you agreed to supply being actually supplied.
[38] Mr Nabney, on your behalf, submits the methamphetamine which was in your possession for supply and which was supplied was 730.5 grams, and that the conspiracies to supply methamphetamine involved at least 598.6 grams. In both instances, that would take you over a kilogram. In some cases, it is accepted the precise quantum is not known based on the schedule which is based on the charges and particulars, and the facts.
[39] The schedule is, in my view, an accurate reflection of quantum, apart from the quantum referred to in Charges 93 and 94, that refer to the Denny’s trip. And I have already outlined to you, I have adopted half a kilogram, 500 grams, for the methamphetamine supplied by Mr Collins-Haskins to you and Mr Ramsden.
[40] So, that brings the total methamphetamine up on which I need to sentence you to 1.23 kilograms.
[41] But, in any event, both lawyers agree, and I must also because of Higher Court authority, that your offending falls within band 4 of Zhang,20 which means that the starting point for your methamphetamine offending is within a range of eight to 16 years’ imprisonment.
20 Zhang v R, above n 18.
[42] However, as well as the amount of methamphetamine you were either supplying, possessing to supply or conspiring to supply, your role in the drug dealing business is an important consideration I must take into account before settling on the final starting point for the methamphetamine offending.21 This is because offenders may play a lesser, significant or leading role and starting points may be adjusted up or down in response to reduced or increased culpability evident through different roles.
[43] I accept, based on the summary of facts, that you were reliant on Hone Ronaki for the supply of methamphetamine and also the cannabis - charges to which you pleaded guilty. You operated on his instructions. But I also consider you had some awareness and understanding, at least, of Hone Ronaki’s side hustle. Whether you were aware of the scale of the operation of the Mongols and the dynamics of it is less clear.
[44] As well as being directed by Hone Ronaki, I accept you were motivated primarily by your own addiction and there is no evidence that you had any influence on those above you in the organisation. Although you may have been financially motivated to a degree, it is not disputed that your offending was largely driven by your addiction. However, you were a very active participant and there were a large number of intercepted communications where you discuss drug deals with Hone Ronaki and where you gave directions to other associates, for example to Wairaka Whare and Antoinette Te Kanawa.
[45] At the same time as recognising you were a very active participant, I accept your counsel’s submissions that you were acting as a conduit for Hone Ronaki. This is evident throughout your offending as set out in the Summary of Facts.
[46] In terms of the recent Supreme Court case in Berkland v R, I assess your role in the Mongols’ activities as a significant one. Whether you knew the extent of what the Mongols were doing or not, what you did puts you into that category. This is because you were involved in the on ground arrangements with Hone Ronaki for the distribution of methamphetamine and cannabis, as well as being involved in the supply of both drugs. As well, you were prepared to stand by and be involved in the situation
21 Berkland v R [2022] NZSC 143.
I have referred to that happened at No 2 Road, where firearms were effectively being used to protect the Mongols. Your close connection and links to, and the fact that you took direction from Hone Ronaki, a key player in the organisation, at least initially, also assists me to determine that your role was a significant one.
[47] As well, the number of charges and the amount of drugs you were involved in either planning or actually distributing to others is relevant. Although your counsel submits otherwise, I consider you were aware of the Mongols’ involvement and that you had a role within their drug distribution business.
[48] As I have outlined, the difference between the lawyers is what the starting point for your methamphetamine offending should be. The Crown submits it should be a term of 12 years’ imprisonment, whereas your lawyer submits it should be in the region of eight to nine years.22
[49] The Crown relies on Wellington v R23 to justify its nominated starting point. The Court of Appeal in that case adjusted the starting point for methamphetamine offending involving 1.54 kilograms by Mr Wellington, who was assessed as being in the significant category, to 12 years’ imprisonment. However, Mr Wellington’s offending was financially motivated and yielded significant profits. As already mentions, your primary motivation was your own addiction. As well, the quantity involved in your offending was less than Mr Wellington’s.
[50] The Court of Appeal similarly reduced the starting point to 12 years’ imprisonment for one of the appellants, Mr Roberts, in Hall v R.24 Mr Roberts’ offending was for the manufacturing of 1.14 kilograms, which is closer to your amount. His role however was classed as leading. Accordingly, I find a starting point of 12 years’ imprisonment for you too high.
[51] I also need to consider what we call parity which is the similarity between what what the starting point for you should be and your co-offenders. Although you probably don’t know him, Mr Petrowksi received a starting point of 10 years’
22 I did not read out [49] and [50] but indicated they would be included in my sentencing notes.
23 Wellington v R [2020] NZCA 277.
24 Hall v R [2020] NZCA 183.
imprisonment for organising an uplift of methamphetamine of approximately two kilograms. His role was in the significant category. I adopted a five year starting point for another co-defendant Mr Wiremu for conspiracy charges to supply approximately two to three kilograms of methamphetamine, as well as a two year uplift for the supply of 36.8 grams of methamphetamine. I adopted a starting point of eight years’ imprisonment for Mr Ramsden.
[52] Taking into account all the matters I have referred to, I adopt a starting point of 10 years’ imprisonment for the methamphetamine offending. The amount involved in your offending moves you away from the bottom of band 4 and properly accounts for the conspiracy charges at a higher starting point in my view, and that is warranted, than that which is suggested by your lawyer.
Cannabis offending
[53] The cannabis offending involved 6.6 kilograms of cannabis. The Crown submits an uplift of one year is appropriate on a totality basis but, standalone, at least 48 months would be appropriate.25 Your lawyer submits a six month uplift is appropriate.26
[54] I have read the case referred to by the Crown, Sinclair v Police. In that case, the Court upheld a starting point of 36 months for cannabis offending. However, the appellant, Mr Sinclair, had purchased an existing cannabis selling operation and customers from which he derived considerable financial gain, comprising $80,000 over the eight-month period he was selling cannabis. In contrast, you obtained little to no profit from the cannabis operation. I also accept that, similar to your methamphetamine offending, you were reliant on Hone Ronaki for the cannabis to then on-supply. For example, Charge 157 (conspiracy to sell cannabis) involves an arrangement organised by Hone Ronaki.
25 Sinclair v Police [2021] NZHC 2788.
26 I did not read out [54] but indicated they would be included in my sentencing notes.
[55] The Court of Appeal set out guidelines for cannabis offending in a case you heard referred to called R v Terewi.27 Although this case concerns the cultivation of cannabis, it has since been confirmed that it also is relevant for categorising other cannabis-related offending, including, as is the case here, possession of cannabis for supply and sale.28 As with Zhang, the categories, the seriousness of the offending is assessed by reference to weight and the role that you have in the sale of cannabis was also important.29 In my view, you would be in category 2 because this was a small- scale operation, you had a limited role with little or no profit. This category involves a starting point typically of between two to four years’ imprisonment. However, I have to consider totality and I adopt therefore an uplift of one year.
Firearms offences
[56] Then there are the firearms offences, and I have already gone through what they comprised.
[57] By your plea, you accept you were involved in the shooting at No 2 Road and I infer you were involved in hiding the firearms and pistol at the Kaituna River. But, I accept your involvement will have been at the direction of Hone Ronaki.
[58] The Crown submits that, on a standalone basis, for your firearms offending an uplift is required of 12 months. Your lawyer does not disagree with this and neither do I.
[59]I impose an uplift of one year’s imprisonment for your firearms offending.
Remaining charges
[60] In relation to the charge of not complying with the direction of a medical officer for health, and that was breaching the COVID-19 regional boundaries, and the possession of a methamphetamine pipe, an uplift is sought, as you have heard from the Crown for the COVID restriction breach. I am not satisfied that there should be
27 R v Terewi [1999] 3 NZLR 62.
28 Bishop v R [2010] NZCA 66 at [19]; R v Leighs CA360/02, 15 September 2003 at [11]; and R v Keefe CA275/02, 28 November 2002 at [11].
29 R v Terewi, above n 25, adopting the approach taken in Zhang v R, above n 18, at [118].
an uplift for this. I think that is equally dealt with by the fact that you also were positively involved in protecting the community during COVID-19 with your employment at testing stations. So, in relation to both those charges, I am simply going to convict and discharge you.
End starting point
[61] But the end starting point, taking into account the offending that I have referred to, is one of 12 years’ imprisonment.
Personal and mitigating matters
[62] So now Mr Whare, I am going to talk about your personal and mitigating matters. You appear before the Court at the age of 40 with few prior convictions. The few you have amassed a long time ago are minor and bear no resemblance to the charges you now face. Your first offence was when you were 18 years of age and your last when you were 25. They can be completely ignored for the purposes of today’s sentencing.
[63] I have received a Provision of Advice to Courts (PAC) report as well as a s 27 report to help me understand your background and the person that you are. And I have also been helped today by your father speaking to me and also your pastor Mr Nicholas addressing me about the person that you are. I have read the letter from your parents, I have read the character reference also from your pastor and the support letters provided from your employer. I have also read the six character references from the Whānau Ora Community Clinic - Te Waipounamu, a support letter from the Man Up Facilitator in Te Puke, as well as a report from your counsellor and a certificate showing that in 2021 you completed an eight-session harm reduction AOD programme. I have taken time to read each of them carefully so that I can understand the person you are and the person you were at the time of your offending are not the same person. And also to help me see you as not simply an offender. All of this information, which I acknowledge would have taken time to collate, assists me to decide what aspects relating to you personally justify a reduction in the starting point I have adopted for the term of imprisonment I have had to impose to reflect the seriousness of your offending.
Guilty pleas
[64] I first deal with your guilty pleas. You were the first person in all of this to plead guilty. You did so on 19 July 2022 after what your counsel characterises as significant discussions between himself and the Crown. Contrary to the Crown’s submission that a discount of 12 per cent is appropriate to reflect your guilty pleas, your lawyer submits that the Crown had indicated it would not oppose a discount of 25 per cent, despite the length of time that had passed. This Mr Nabney submitted was agreed to reflect the complexity of the charges faced by you and others, and the fact that the Crown case in respect of all defendants, including you, had not been settled to any degree prior to the date when you pleaded.
[65] Ultimately, whether a deduction ought to be allowed for a guilty plea is a matter for me. However, if there is a suggestion, and I consider there has been one put forward, that your pleas of guilty were impacted by the Crown’s suggestion it would not oppose a greater discount, that is a very powerful matter that needs to be considered by me.
[66] But, I do not agree with a discount of 25 per cent in any event. This is because, in my view, such discounts, which are the maximum available, should be reserved for those who, without disclosure or very early on, decide to accept responsibility for their offending. Bearing in mind that your situation was complicated and the Crown case was not clear until sometime in early 2022, I consider a discount of 20 per cent is more appropriate. This is higher than the amounts that I have allowed for other defendants who pleaded guilty prior to trial and I consider it is appropriate in your case.
PAC report
[67]I now turn to the reports that have been prepared.
[68] You told the PAC report writer that you made contact with your cousin, Hone Ronaki, which was how you got in touch with the Mongols. I absolutely accept that while you were associating with the Mongols in this way your methamphetamine use spiralled completely out of control due to methamphetamine being accessible to you. I accept you were also using methamphetamine to suppress your emotions following
the end of your relationship with your former partner. All of these things are very understandable - they don’t excuse but they do explain how you found yourself in this position.
[69] You have expressed remorse for the harm you have caused your family but initially no remorse for the effect your activities had on the wider community. But I now accept that you recognise the importance of this. And can I say that it is very typical and, it seems to me, a characteristic of those who often are involved in offending of this kind - they simply do not see or choose to see the impact that this offending has on the community. But, I accept that you now do and that is a very good thing. Why it is important is because, as well as your family being affected by your offending, I accept all families, friends and associates of those who suffer from methamphetamine or other drug-related addictions are impacted in a very serious way. And, often, these impacts are experienced by later generations as well. So, those who deal in methamphetamine by supplying it to others, in effect, are part of a chain of harm that drug abuse causes to others in the community.
Section 27 report
[70] Your s 27 report was commissioned by your family. It refers in detail to your upbringing which was a very good one. You have supportive, caring and loving parents and extended whānau who are here today to support you.
[71] But, as Mr Nabney rightly says, there doesn’t appear to be any link identified between your background factors and your offending. The report confirms your drug addiction but this has been taken into account, as Mr Nabney submitted, in identifying a starting point for the term of imprisonment necessary to address your offending.
[72] But, what has been very important and necessary for me to hear is the way that the report and those who have spoken to you today are able to support you in your rehabilitation efforts. That is a matter I am required to consider under s 27 as well. And, I can say, having heard and read the material I have, that your prospects for rehabilitation are very good indeed. Not only because of the important and significant steps you have taken, for which you are commended, but also because you have good people, strong people and a supportive community behind you so that, when you are
released, and during your time in prison, you will be able to be supported and encouraged along that rehabilitative path.
[73] Mr Nicholas said to me that I won’t see you again, nor any other Judge in this Court, and I certainly hope that is the case. What I can say is that the support you have would enable you to fulfil that promise.
[74] So, in my view, a 5 per cent discount, which is within the range I am able to impose and which your lawyer properly submits to deal with your addiction being causative of your offending, is appropriate. I also adopt another 5 per cent discount which the Crown responsibly submitted was appropriate for your rehabilitation efforts. So, what that means is that there is a 10 per cent deduction from the starting point.
Time spent on EM bail
[75] From that, I now need to consider the time you spent on EM bail. From mid December 2020 through to 19 July 2022 when you pleaded guilty you were on EM bail. After your pleas, you were remanded in custody. But, all up, you spent about 20 months on EM bail. A very long time.
[76] While you were on EM bail, you took every opportunity you could, and because it was due partly or for a long time during the lockdown, it is significant to me that you were able to obtain employment during that period. You were employed as a COVID tester in Christchurch and you were permitted to be away from your EM bail address to undertake that work. Six of the references provided to me are from your co-workers at that site who all speak very highly of you.
[77] Although there was one breach, I do not consider this to have been significant and, after the breach was admitted, the Crown did not oppose you being readmitted to bail.
[78] I have already referred to the steps you took on bail but, for the record, they are the AOD programme and the Destiny Church which you attended in Whakatane following your bail being moved from Christchurch to Te Puke in anticipation of you appearing in Court here in Hamilton. The steps you took are a credit to you and attest
to your willingness to make positive changes in your life. And they also speak positively about your potential rehabilitation.
[79] You seek a deduction of 10 to 12 months for the time you spent on EM bail. But, although restrictive, you were able to work. I adopt an eight month discount.
[80] Your lawyer has referred to your community involvement on EM bail and suggests a further five per cent may be warranted. Although I commend you for this, I am not persuaded that a further discount is warranted.
End sentence
So, turning to the outcome Mr Whare, and to summarise:
(a) for the methamphetamine offending, I adopted a starting point of 10 years’ imprisonment;
(b)for the cannabis offending an uplift of one year; and
(c) for the firearms offending an uplift of one year.
[82] That brings your total starting point to a term of 12 years’ imprisonment. I have deducted 20 per cent for your guilty plea and a further 10 per cent to address your addiction and rehabilitation efforts. I have also deducted eight months for the time you spent on EM bail.
[83] All up, the end sentence is a term of seven years eight months’ imprisonment, which is a long term of imprisonment I accept.
[84] So, in relation to that, I need to outline what I am doing with each of the various charges that you face, and this is simply for the record.
[85]In relation to:
(a) the possession for supply and offering to supply charges, the end sentence of seven years and eight months is imposed;
(b) for the conspiring to supply methamphetamine, a term of four years;
(c) for the cannabis supply and possession for sale, two years;
(d) for the conspiracy to supply or sell cannabis, six months;
(e) for the possession of cannabis simpliciter, a convict and discharge;
(f) for failing to comply with a medical officer of health, convict and discharge;
(g) for discharging a firearm with reckless disregard, three years; and
(h) for unlawfully possessing profited firearms, a pistol and unlawful possession of ammunition, one year.
[86] Those sentences are all concurrent. That means they are served at the same time.
[87]Please stand Mr Whare.
[88] Mr Whare, you will be sentenced to a term of imprisonment for seven years and eight months. I wish you all the best in your future endeavours to turn your life around, back to how it was before you offended.
[89]Thank you. You can stand down.
Harland J
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