R v Williams

[2021] NZHC 1338

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-019-3685

[2021] NZHC 1338

THE QUEEN

v

RAYON MOHI WILLIAMS

Hearing:

8 June 2021

Appearances:

C K Whyte for the Crown

R J Laybourn for the Defendant

Date of sentence:

8 June 2021

SENTENCING NOTES OF JAGOSE J

Counsel/Solicitors:

R J Laybourn, Barrister, Hamilton Hamilton Legal, Crown Solicitor, Hamilton

R v WILLIAMS [2021] NZHC 1338 [8 June 2021]

[1]                  On your guilty pleas Mr Williams, Gault J entered convictions against you in this Court on 21 April 20211 on one representative charge and one specific charge of money laundering.2 The Crown offers no evidence on the balance of its charges against you, and I dismiss them.

[2]                  I now am to sentence you for your convictions. In sentencing you, I must accept as proven all facts essential to your guilty pleas.3 The Crown acknowledges a sentence of home detention may be appropriate. Your lawyer, Roger Laybourn, recommends the same. I am not bound by their views. I am to come to my own decision. I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your culpability (or responsibility) for it.

Background

[3]I briefly address the background to your offending.

[4]                  On 20 January 2020, the Waikato Police Organised Crime Squad began an investigation into the manufacture and supply of methamphetamine in the Waikato and Auckland regions. That investigation uncovered what police characterise as a “highly organised and lucrative drug dealing business”.

[5]                  You are one of 29 people arrested in connection with the investigation. You are said to have been in the “third tier” of that group, not having a leading role in its organisation, but facilitative of its operation. You had access to “substantial amounts” of cash. You used a “very expensive” satellite telephone that prevented your communications from being intercepted. You are said to have had a financial interest in the drug offending. You worked closely with the group’s leadership, in particular discussing and demonstrating the purchase and balance of cryptocurrency accounts.

[6]                  Your own cryptocurrency wallet has not been located. Any amounts of cryptocurrency purchased or held by you cannot be identified. You last were employed in January 2019. You have had no legitimate source of income since then. Instead, you

1      R v Williams HC Hamilton CRI-2020-019-3685, 21 April 2021 (Minute of Gault J) at [1].

2      Crimes Act 1961, s 243(2). Maximum penalty: seven years’ imprisonment.

3      Sentencing Act 2002, s 24(1)(b).

profited from the group’s methamphetamine supply business. Your bank accounts disclose numerous cash deposits of between $150 and $1,700, each made by an unknown individual or individuals.

[7]                  Your apparent transfer of $5,000 in cryptocurrency to an associate’s wallet, to demonstrate to yet another associate how cryptocurrency transactions work, gave rise to the representative charge of money laundering. On 10 June last year, you bought  a Harley Davidson motorcycle from an unknown person in Tauranga. You paid

$26,750 in cash. You registered the motorcycle under a fictious name. These facts gave rise to the specific charge of money laundering.

Personal circumstances

—PAC report

[8]                  The Department of Corrections’ pre-sentence report notes you have accumulated a raft of convictions since 2005 on, among other things, assault, theft, traffic infringements, breath alcohol offences and methamphetamine offences. Given your new convictions every year since 2016, you are assessed as being at a high likelihood of re-offending. Factors contributing to your offending include your associates and your methamphetamine use. The report writer notes you pleaded guilty to the money laundering charges “because they were trying to convict [you] for the meth related charges”, which are not to be pursued. You did not clearly express any remorse for your offending.

[9]                  Although the report writer recommends you be sentenced to a term of imprisonment, it is unclear if that is because of a perception methamphetamine sentencing tariffs apply to your money laundering offending. They do not, directly. The report writer notes no concerns with a sentence of home detention at your current address, where you have been complying with the terms of your electronically- monitored bail. But your history of failing to comply and of re-offending while on community-based sentences also is noted. That history comprises seven convictions for breaches of intensive supervision or community work, and failure to answer bail in the District Court.

—section 27: letter

[10]              I also have a letter from your mother, who describes you as having experienced a tough childhood, during which you were physically and verbally abused by your father. She says she believes your childhood trauma has negatively impacted you. I have heard obviously from your father this morning. I also have letters from you, in which you express your remorse, and from your partner, who asks that I give as much consideration to the support that you provide her in considering your sentencing.

Approach to sentencing

[11]              I now turn to explain how I will sentence you. I take a two-stage approach: first, to identify a starting point for offending of this type. That involves identifying the offending’s aggravating and mitigating features.4 Second, I take into account all aggravating and mitigating factors personal to you, together with a discount for your guilty pleas, all calculated as a percentage of the starting point.5

[12]              I am to have regard to the statutory purposes and principles of sentencing.6 Of particular relevance to methamphetamine-related sentencing are to hold you accountable for the harm caused, to promote a sense of responsibility in you, to denounce your conduct, to deter you and others from committing similar offences, and to protect the community and assist in your rehabilitation and reintegration.7

[13]              I must consider the gravity (or seriousness) of your offending in comparison with other types of offences.8 Consistency in sentencing is desirable,9 but I must take into account anything in your circumstances as would make an otherwise appropriate sentence “disproportionately severe”.10 I must impose the least restrictive outcome appropriate in the circumstances,11 consistent with appropriate sentencing levels. These purposes and principles of sentencing have no ranking.12

4      R v Taueki [2005] 3 NZLR 372 (CA).

5      Moses v R [2020] NZCA 296 at [46]–[47].
6      Sentencing Act, ss 7 and 8.

7      Section 7(1); and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [58].

8      Section 8(a)–(b).

9      Section 8(e).

10     Section 8(h).

11     Section 8(g).

12     Moses v R, above n 5, at [4], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [37].

[14]              Instead, my ultimate consideration is if the sentence is “a just one in all the circumstances”, having regard to “the circumstances of the offence and offender against the applicable sentence purposes, principles and factors”.13

Analysis

—starting point

[15]              My first step is to set a starting point for your sentence. There is no tariff decision on money laundering. But I am guided by some appellate authority: first, also involving an offender similarly pleading guilty to a representative count of money laundering as profits of large-scale methamphetamine manufacture and supply.14 She similarly had not participated in the drug offending, but aided in disposing of profits by purchasing vehicles and travel with cash and depositing sums of money into a trust account.15 The sentencing judge determined a starting point of three-and-a-half to four years’ imprisonment “would not be untoward”. The Judge then allowed a “generous discount” for the appellant’s guilty plea and other mitigating factors to arrive at a final sentence of two years and three months’ imprisonment.16

[16]              Upholding the appeal, the Court of Appeal said those who launder money for drug dealers are nearly as culpable as those who actually participate in the dealing. They make it possible for those who import drugs to reap the profit from that activity. The extent of the money laundering operation and the convicted person’s involvement in it are important considerations.17 That case subsequently was relied on by the Court of Appeal again, in upholding a starting point of five years and six months’ (and an end sentence of four years and six months’) imprisonment for laundering some

$700,000 derived from methamphetamine offending over an 18-month period.18

[17]              From that perspective, your facilitative role in methamphetamine-related offending has you with a significant role in the overall operation. You meet all five of the indicia of that role: having operational function; directing others; having only

13     Moses v R, above n 5, at [49].

14     R v Wallace CA415/98, 16 December 1998.

15     At 7–8.

16     At 5.

17     At 8–9.

18     Zhang v R [2010] NZCA 481 at [10] and [18]–[19].

financial motivation; obtaining commercial profit; and having some awareness and understanding of the scale of the operation.19 The summary of facts to which you pleaded guilty singles you out in that financial role. I only cannot be satisfied as to the quantity of money, and therefore methamphetamine, represented by your offending.

[18]              But I can be satisfied — from the sums you received and disbursed, and the steps you took to conceal them and others generated by the principal offending — your offending was not insignificant. I therefore would place your offending above the lowest band for methamphetamine offending sentencing, offering a range from community-based sentencing to four years’ imprisonment. Instead, I locate your offending comparably to band two: of two to nine years’ imprisonment.20 That is consistent with other serious drug-related money laundering sentencing in this Court, with starting points of between two and six years’ imprisonment.21

[19]              Your offending is aggravated by your personal gain, and your significant premeditation in making the cryptocurrency arrangements, in connection with the very serious principal offending of large-scale methamphetamine manufacture and supply. None is inherent in money laundering offending, which guarantees no return and may arise in a variety of principal offending.22 The decentralised off-market nature of cryptocurrency, and your instruction of others on its use, is a pointer to the exceptional premeditation reflected by your offending. Your offending has no mitigating feature.

[20]              On that basis, a starting point in the range of three to four years’ imprisonment is available, on which I settle at three years and three months’ imprisonment.

19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].

20 At [125].

21 R v Daniels [2020] NZHC 275 (starting point: six years’ imprisonment); R v Williams [2018] NZHC 2731 (starting point: two years and three months’ imprisonment); R v Le [2018] NZHC 2199 (starting point: four years’ imprisonment); R v Chase [2018] NZHC 1022 (starting point: three years and nine months’ imprisonment); R v Henry [2015] NZHC 1684 (starting point: two years and six months’ imprisonment; R v Karpavicius [2013] NZHC 3095 (starting point: six years and three months’ imprisonment); McCamish v Police HC Auckland CRI-2008-404-389, 18 March 2009 (starting point: three years and six months’ imprisonment); and R v Sorby HC Auckland TO22561, 30 May 2003 (starting point: three years and three months’ imprisonment).

22 R v Wallace, above n 14, at 8.

—adjustment for personal factors and guilty plea

[21]              I turn to consider uplifts or discounts from that starting point for your personal factors, including your guilty pleas.

[22]              Nothing in your background warrants any uplift. Despite earlier appellate observation, in drug dealing cases (and for money laundering associated with drug dealing), that “personal circumstances of the particular offending are given comparatively little weight”,23 your personal mitigating circumstances apply here, as they would with any other offending.24 Your remorse, indicated by your correspondence with me, attracts a small discount. Given your past convictions, no discount is available for previous good character. Discounts instead are justified by your personal and cultural factors that appear to have fed into your offending, including those for which your father apologised today, the fact you have been on EM bail without incident for a little over 10 months, and by your guilty pleas.

[23]              Although your guilty pleas are said to have come promptly on particularisation of the second money-laundering charge, I take the view they do not qualify for the full discount by reason of the delays, your stated reason for pleading guilty to them, and the relative strength of the prosecution case.25 Consistently with similar stage guilty pleas on charges arising out of the present offending,26 I will allow a 20 per cent discount in that respect. Although at 34 years of age, you now are approaching your middle years, I will also allow a five per cent discount to recognise the role your traumatised childhood may have played in your subsequent life-choices, including your past offending.

[24]              I take into account your time on EM bail, and your remorse.27 A discount is justified here because time spent on restrictive bail conditions is not counted as time served.28 There is no rule or definitive guidance to exercise of my discretion and “[n]o arithmetical formula should be applied”.29 But general sentencing practice has been to

23     At 9.

24     R v Zhang [2019] NZCA 507, [2019] 3 NZLR 648 at [10(j)] and [130]–[136].

25     Sentencing Act, s 9(2)(b); Hessell v R, above n 12, at [73]–[77].

26     R v Paki [2021] NZHC 908; R v Savage [2021] NZHC 914; and R v Cossey [2021] NZHC 1333.

27     Sentencing Act, s 9(2)(h).

28     Keown v R [2010] NZCA 492 at [12], citing Parole Act 2002, s 90.

29     Chea v R [2016] NZCA 207 at [110], citing R v Faisandier CA185/00, 12 October 2000 at [28]; R

apply a reduction of less than half the time spent on EM bail.30 Here, a discount of four months is warranted.

[25]              Rounding down, that brings your end sentence to two years and one month’s imprisonment. As such, you do not qualify for home detention. Given the closeness of your disqualification, I have reconsidered my steps in sentencing you — and, in particular, to reduce an initial starting point of three years and six months’ imprisonment to my redetermined three years and three months — but assess they now appropriately address the seriousness of your offending within the purposes and principles of sentencing.

Sentence

[26]              Mr Williams, please stand. On your money laundering convictions, I sentence you to a term of two years and one month’s imprisonment. You may stand down.

—Jagose J

v Tamou [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; and Keown v R, above n 28.

30     Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA9.23A].