R v Whitehead

[2013] NZHC 2017

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-2338 [2013] NZHC 2017

THE QUEEN

v

ADAM JAMES WHITEHEAD

Hearing:                   9 August 2013

Counsel:                  C E Clarke for Crown

P M Keegan for Prisoner

Sentence:                 9 August 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]      Mr Whitehead, you have been convicted by a jury of the following offences: (a)      conspiracy to supply methamphetamine;1

(b)      participation in an organised criminal group;2 and

(c)       conspiracy to supply class C ecstasy.3

[2]      As in the case of your co-offenders for sentence today, I am going to tell you now where you stand in terms of sentence.  It is that you will be sentenced to home

detention for a term of eleven months.

1      Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(a).

2      Crimes Act 1961, s 98A.

3      Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(c).

R v WHITEHEAD [2013] NZHC 2017 [9 August 2013]

[3]      These  sentencing  remarks  are  to  be  read  along  with  those  for  your  co- offenders Jade James4  and Garry Dewar.5    As with the others, I will try to avoid unnecessary repetition.

Facts

[4]      You are a 24 year old qualified avionics mechanic.  The charges against you arose out of Operation Puff, a drug offending operation in the New Plymouth area between May and September 2011.  As we have heard already today, part of that investigation focused on the activities of the New Plymouth chapter of the Rebels motorcycle gang. You are not a member of that gang.

[5]      At the time of this offending you worked for the Royal New Zealand Air Force in Auckland.  During the period of offending you were an associate of a co- offender sentenced already, Nathan Couper.   You had got to know him when you were in New Plymouth. You had worked as a DJ at a club he then owned.

[6]     You have no previous convictions.   It is plain from the intercepted communications played at trial that you have been a recreational drug user.   It is deeply  unfortunate  that  that  habit,  and  a  poor  choice  of  associates  such  as Mr Couper, has sent you so badly off the rails.

[7]      Your  defence  at  the  trial  was  that  communications  between  you  and Mr Couper, in which you agreed to supply Couper with large quantities of ecstasy and methamphetamine, were just “big noting” by you.  And that you had no actual ability to back up your words.  And, too, that the very high prices that you quoted towards the end for these drugs were an attempt at disengagement, rather than a genuine attempt to enter contractual relations.

[8]      Mr Keegan conducted your defence at trial with such skill that that deserves to be noted publicly.  His closing address was of exceptional quality.  Certainly in

your case a doubt existed as to your criminal intent.  But the jury decided that it was

4      R v James [2013] NZHC 2006.

5      R v Dewar [2013] NZHC 2010.

not a reasonable doubt, when all was said and done.  And that is where things must be left.  I am sentencing you in accordance with the verdicts of the jury.

Conspiracy to supply methamphetamine

[9]      You  offered  to  supply  one  ounce  of  methamphetamine  for  $15,000  and agreed  in principle to source larger amounts.   You did not actually supply any methamphetamine to Mr Couper. Your involvement was wholly conspiratorial.

[10]     While you may have tried to source supplies, and the jury found that you intended to advance the common purpose of the conspiracy, it was apparent on the evidence that you had very little ability to deliver any quantity of methamphetamine.

Participation in an organised criminal group

[11]     You had been told by Mr Couper that he was a member of the Rebels gang. He also told you that he needed large volumes of drugs to distribute on their behalf, and that he had customers making orders. You agreed to supply drugs to him on that basis, thereby participating in the group’s common objective.  Albeit very much on the outer fringe of the group.

Conspiracy to supply “class C varieties of Ecstasy”

[12]     You communicated at length with Mr Couper regarding the purchase of large quantities of ecstasy tablets.   In thousand pill lots.  The only tablets you said you could source contained mephedrone, a Class C drug that has similar effects to MDMA.  Mr Couper agreed to go ahead as long as the tablets would test positive for MDMA.   You then said you had found an alternative supplier who could offer a lower price.

[13]     Whether you had the ability to actually source drugs at the level you were talking about with Mr Couper is highly unlikely given the difficulty you had in sourcing just five from a friend.

Purposes and principles of sentencing

[14]     I  must  take  into  account  in  sentencing  you  the  various  purposes  and principles set out in ss 7 and 8 of the Sentencing Act 2002.  I have described those already this morning in sentencing your co-offenders Jade James6 and Garry Dewar.7

You have heard what I said to them.  Those points apply equally to you.  I am not going to repeat myself now.

Lead offence

[15]  The lead charge for sentencing purposes is conspiracy to supply methamphetamine.

[16]     If   this   case   was   one   involving   the   actual   sale   and   supply   of methamphetamine, the guideline judgment in R v Fatu8  would apply.  The Crown says that in that event the appropriate sentence would be in the upper part of band 2:

Band    two    -    supplying    commercial    quantities    (five    grams    to

250 grams) - three years to nine years imprisonment.

Mr Keegan, accepts that this would be a band 2 case if Fatu applied, albeit at the very bottom end of commerciality.

[17]     I agree.   In cases of conspiracy, the focus when determining which band methamphetamine offending falls in should be on the “broader scope” of criminal conduct captured over the course of the conspiracy, rather than “just a snapshot”.9

The  criminal  conduct  in  contemplation  here  was  clearly  the  one  ounce  you voluntarily offered Mr Couper, rather than the much larger quantities you agreed to seek out, but made only feeble attempts to follow up.  In my view it would be unsafe to assume the jury concluded that  your agreement to Mr Couper’s  requests for greater quantities was more than euphoric enthusiasm.  The one ounce arrangement was of a different order of commitment.  Although, of course, you did not in fact

supply it, and may ultimately have been unable to do so.

6      R v James [2013] NZHC 2006.

7      R v Dewar [2013] NZHC 2010.

8      R v Fatu [2006] 2 NZLR 72 (CA) at [34].

9      Ropiha v R [2013] NZCA 60, at [13]-[14].

[18]     For these reasons I would adopt a starting point of three years imprisonment under the Fatu bands.

[19]     The Fatu guidelines apply to cases of conspiracy.   But the penalty bands require reduction because of the differing maximum penalties.   The degree of reduction depends on the level of culpability of the offending.10    Really, this conspiracy went no further than a “theoretical plan”.   Accordingly, you are to be punished for the fact that an agreement to deal methamphetamine, however fanciful, “is itself inimical to the public good”.   But that, the Court of Appeal has held, warrants a “substantial reduction” from the Fatu guidelines.11

[20]     The Crown submits that an appropriate reduction would be 15 to 20 per cent. Mr Keegan says that the discount should be closer to 30 per cent because of doubts as to the ability to supply and the generally preparatory nature only of the conversations between you and Mr Couper.  In R v Briaturi12  the Court of Appeal upheld a discount for conspiracy of approximately 35 per cent.  There the offenders were “rank amateurs” who had no chance of being able to extract cocaine from the drug-soaked clothes they planned to import.  I do not think that your offending was quite so startlingly inchoate, Mr Whitehead, but it was close.  I will give a 25 per

cent discount from Fatu guidelines for conspiracy.

Result on lead offence

[21]     I  adopt,  therefore,  a  starting  point  of  two  years  and  three  months’

imprisonment.

Other offending

[22]     The Crown submits that the other offending – participation in an organised criminal group and conspiracy to supply class C ecstasy – justify a significant uplift in excess of nine months.  Mr Keegan suggests around four months would be more

appropriate.

10     R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627, at [25].

11     R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [27].

12     R v Briaturi [2008] NZCA 412 at [55].

[23]     There is no particular science in the approach taken to this.  I do not intend to impose any uplift for the first of those other offences.   I regard it as co-extensive with the two conspiracy charges.   Your attempts to source class C ecstasy, while moderately industrious, were unlikely to have borne fruit.  In my view an uplift of four months is quite adequate to denounce that conduct over and above the sentence on the lead charge.

Result on other offending

[24]     The  initial  start  point  of  two  years  and  three  months’ imprisonment  is therefore uplifted by four months to a total of two years and seven months’ imprisonment.

Totality

[25]     I am satisfied from the point of view of totality that this does not produce an outcome disproportionate to the gravity of your offending taken as a whole.

Aggravating and mitigating features of offender

[26]     I turn now to aggravating and mitigating features concerning you personally.

Aggravating features

[27]     The Crown submits that aggravating factors personal to you include a degree of premeditation and your connection with an organised criminal group.   Those matters are satisfactorily provided for in the starting points already adopted.

Mitigating features

[28]     There are significant mitigating considerations in this case.

[29]     The first, obviously, is that you have no prior convictions.  I have read again this morning glowing references given by your former employers, the Royal New Zealand Air Force and in the mechanical trade.  I am satisfied that your prior good character alone would entitle you to a 10 per cent discount on sentence.

[30]     The  question  is  whether  I  should  give  further  discount  for  remorse, recognition of responsibility and prospective rehabilitation.

[31]     As   to   remorse,   the   probation   officer   in   your   pre-sentence   report acknowledged that you were extremely remorseful and motivated to change your offending behaviours.

[32]     As to recognition of responsibility, the probation officer confessed to having “difficulty making a recommendation” on account of your attempts to minimise the scope of your offending.  It is perhaps understandable that she might have formed that view, given that she proceeded on the basis that you had been found guilty of conspiracy to supply cocaine, when you were in fact acquitted on that charge.

[33]     More fundamentally, Mr Whitehead, I think I can understand the despair it is said you have about your present predicament.   Your behaviour was on the cusp between mere stupidity and culpable criminality.  The jury found the latter, and that finding must be respected.   But it is understandable that you continue to hold a somewhat different view.

[34]     As to rehabilitation, I am told that drug tests show you no longer use drugs. It appears tolerably clear to me that drug culture has now lost its glittering surface sheen for you.  You have strong future prospects of employment as an engineer.  I have seen references by members of the community and your family - and the letter written by your mother.  I can appreciate that you are a talented young man, adept at flying and music.  I have no wish to persist in the diversion of those talents into more serious criminal behaviour, which is surely what would occur if I send you to prison.

[35]     In the circumstances I am satisfied that an overall discount of 25 per cent for these mitigating features is appropriate.

[36]     That brings your sentence to one year and eleven months’ imprisonment.

[37]     Because your sentence is less than two years you are eligible for a sentence of home detention.13    I am satisfied that the purposes of sentencing, including denunciation and deterrence, can be met by a sentence of home detention in this case.14    I repeat here what I said earlier, in your presence, in the case of your co- offender  Mr  Dewar,  and  others  being  sentenced  today,  about  the  rehabilitative benefits of this sort of sentence for offender and society alike.15

[38]     I also repeat my observation that home detention is not a soft option.  The restrictions on your freedom are real.   I intend to enable you to continue in employment, because that step - as I have said to the others - is the one most likely to secure your real rehabilitation into society, rather than depriving you of that liberty. But otherwise your liberties are curtailed.

[39]     I remind you, too, that breach of conditions is likely to result in revocation - and in that event you will serve a prison term for the balance of your sentence.

[40]   As I have said to others this morning, the term of home detention is approximately half the equivalent prison sentence because there is a release entitlement in the case of prison for a short term.  But a sentence of home detention must be served in full.

[41]     The residence you share in Christchurch with your partner has been assessed as suitable.  She understands the conditions to be imposed, consents to them, and has been informed that she may withdraw her consent at any time.  I have also read a letter from her this morning, Mr Whitehead, which reached me and that confirms that.  I note that you also consent to the conditions suggested by the probation officer

and to the additional conditions that I outlined this morning.

13     Sentencing Act 2002, s 15A.

14     R v Iosefa [2008] NZCA 453 at [41].

15     R v Dewar [2013] NZHC 2010.

[42]     Stand please.

[43]     Mr Whitehead, I sentence you to eleven months’ home detention.

[44]     That sentence is to be managed in a way that enables you to continue in your present employment.

[45]     The following conditions are to apply:

(a)      You  are  to  travel  directly  to  the  address  prescribed  in  your  pre- sentence report and be there no later than 5.00pm tomorrow.  There you  are to await the arrival of a probation officer and  a security officer.

(b)      You are to reside at that address for the duration of your sentence.

That is subject to any exceptions approved in writing by a probation officer, and to the following condition (c).

(c)      Those monitoring your sentence are to permit you to be absent for such time as is essential to enable you to maintain your present employment, or any other employment approved by a probation officer.  Such absences from the detention address are strictly limited to travelling directly to, remaining at and travelling from your workplace, unless an exception under condition (b) applies.

(d)You are to be subject to electronic monitoring to ensure compliance on such conditions as are determined by a probation officer.

(e)      You are not to purchase, possess or consume alcohol or illicit drugs for the duration of the sentence.

(f)      You are to submit to such drug tests as are required by your probation officer.

(g)You are to undertake an alcohol and drug assessment, and complete any recommended counselling or treatment for abuse of alcohol and other drugs, to the satisfaction of a probation officer and programme provider.

(h)You are to present yourself at the door of the detention address when called upon to do so by any probation or police officer visiting the address.

(i)       You are not to have any contact with your co-offenders.

[46]     Standard post-release conditions will apply for a period of six months only.16

[47]     Mr Whitehead, I said earlier that your behaviour was on the cusp between stupidity and criminality.  This is the first time that you have found yourself in this situation.  You are being given, today, an opportunity to ensure that you don’t appear here again.  We don’t wish to see you again.  Your life will be constrained for 11 months, but then you can get on with it.  Make use of that life in the way that the reports indicate, beneficially to society, to yourself and to your family.  So, off you go and get on with it.

[48]     Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, New Plymouth

16     Sentencing Act 2002, s 80N(2)(a).