R v Williams HC Rotorua CRI-2009-063-005871
[2011] NZHC 1327
•22 July 2011
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2009-063-005871
THE QUEEN
v
GRAEME LEWIS WILLIAMS
Hearing: 22 July 2011
Appearances: A Gordon for the Crown
J Bergseng for the Accused
Judgment: 22 July 2011
SENTENCING NOTES OF WOOLFORD J
Solicitors:
Gordon & Pilditch, Crown Solicitors Office, PO Box 740, Rotorua
Bergseng & Co, Solicitors, PO Box 13282, Tauranga
R V WILLIAMS HC ROT CRI-2009-063-005871 22 July 2011
[1] Graeme Lewis Williams, you are for sentence today on seven charges under the Misuse of Drugs Act 1975. The are:
(a) Possession of methamphetamine for supply (representative); (b) Supply of methamphetamine (representative); and
(c) Manufacture of methamphetamine (representative), all of which carry a maximum penalty of life imprisonment;
(d)Supply of a precursor substance (ContacNT) (representative), which carries a maximum of 7 years imprisonment;
(e) Possession of a precursor substance (ContacNT), which carries a maximum of 5 years imprisonment;
(f) Conspiracy to supply methamphetamine, which carries a maximum of
14 years imprisonment; and
(g)Conspiracy to possess a precursor substance (ContacNT), which carries a maximum of 5 years imprisonment.
Facts
[2] The details of your offending are recorded in my judgment determining disputed facts dated 29 June 2011. In brief, you operated a significant methamphetamine dealing business out of your address in Rotorua. During an investigation codenamed Operation Atlas, the police kept your property under surveillance for 45 days between 17 September 2009 and 31 October 2009. During that time 3582 visitors entered the address. The average number of visitors per day was 79. It seems clear that the vast majority were purchasing methamphetamine, either from you or your co-offender.
[3] The amount of methamphetamine involved is summarised in the judgment (at
[75]):
(a) On the possession for supply charges, the amounts totalled at least
338.8 grams;
(b)On two occasions there was manufacture of methamphetamine in an amount that alone would attract a starting point at the lower end of band 2 of R v Fatu;
(c) On the conspiracy to supply charge, the amount totalled 84 grams.
[4] The amount of ContacNT involved (a pseudoephedrine-based cold and flu remedy) is summarised in the judgment (at [77]):
(a) On the supply and possession for supply charges, the amounts totalled at least 12 sets of ContacNT which were capable of yielding between
540 and 810 grams of methamphetamine;
(b)There was evidence of further substantial quantities in relation to further supply charges;
(c) On the conspiracy to possess charge, the amounts totalled two sets which were capable of yielding between 90 and 135 grams of methamphetamine.
[5] In addition, you acknowledge being party to the supply of 9 to 10 sets of
ContacNT, capable of yielding between 405 and 675 grams of methamphetamine.
[6] In my judgment delivered today addressing the Crown’s forfeiture application, I have decided against making a forfeiture order in respect of the home from which you were dealing drugs.
[7] In deciding what sentence should be imposed on you I have to take into account the established sentencing principles.1 In the context of serious drug offending, there is a strong public interest in denouncing your offending and imposing a sentence that will deter others. Methamphetamine is a scourge on our society and is a key driver of crime throughout New Zealand. That it carries a maximum penalty of life imprisonment indicates the seriousness of methamphetamine offending.
[8] I must take into account the gravity of your offending and the degree of your culpability. The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way. Finally, I have to look to ways to assist your rehabilitation and reintegration into the community.
Submissions
[9] In approaching sentencing I first consider the culpability of the offending itself without considering matters relating to you personally, and I fix a starting point in relation to that offending.
[10] In terms of aggravating factors of your offending, there is the loss, damage and harm that results from this type of offending2 — methamphetamine is a drug that destroys lives and harms society. There was also the element of premeditation, although that is to an extent inherent in the charges.3 Your culpability in the offending was high; you were a supplier to street level dealers and were involved in the manufacture of methamphetamine.
[11] Ms Gordon for the Crown takes supply of methamphetamine as the lead charge and submits that it should attract a starting point of 9 to 10 years
imprisonment, within band 3 of the Court of Appeal’s guideline decision on
1 Sentencing Act 2002, ss 7 and 8.
2 Ibid, s 9(1)(d).
3 Ibid, s 9(1)(i).
methamphetamine, R v Fatu.4 The Crown seeks an uplift for the totality of your offending and submits that an overall starting point of 12 to 14 years imprisonment is warranted. In support Ms Gordon cites the cases of R v Wei,5 R v Li6 and R v Chapman.7 The Crown further seeks an uplift for your relevant previous convictions. The Crown also recommends a minimum period of imprisonment of
50 percent.
[12] On your behalf, Mr Bergseng acknowledges that you face a significant sentence of imprisonment. He submits that your offending was mostly driven by the need to finance your own drug habit. He says that your role is best classed as a middleman, who sourced drugs from those higher in the supply chain and supplied to end users.
[13] On the lead charge Mr Bergseng is in general agreement with the Crown and submits that it should attract a starting point of 9 to 9 and a half years imprisonment. Where he disagrees with the Crown is on the uplift, which he says should not be more than 18 months. That is arrived at by uplifting the lead charge by 9 months for the ContacNT charges and 9 months for the manufacturing charge. Mr Bergseng submits that the total starting point should be in the vicinity of 11 to 11 and a half
years imprisonment. He refers the Court to R v Gray.8 Finally, Mr Bergseng accepts
that an uplift of 6 months will be appropriate for your previous convictions, although he asks the Court to take into account as mitigating factors your age (65), remorse and guilty pleas.
Culpability of offending
[14] The sentence I impose must reflect both the quantity of the drugs involved and the particular role you played in the supply and manufacturing operation. Those
who are primary offenders can expect starting points towards the higher end of the
4 R v Fatu [2006] 2 NZLR 72 (CA) at [34].
5 R v Wei HC Auckland CRI-2009-404-251, 18 February 2011, Courtney J.
6 R v Li HC Auckland CRI-2006-019-8458, 25 August 2009, Asher J.
7 R v Chapman HC Auckland CRI-2008-004-17488, 25 August 2010, Lang J.
8 R v Gray HC Auckland CRI-2006-004-3200, 25 September 2007, Allan J.
relevant sentencing bands (with the converse applying to those whose role is less significant).
[15] Your charges related to different types of drug offending and two different classes of drugs although I acknowledge Mr Bergseng’s submission that the drug offending should been seen as a whole. I agree with Ms Gordon that possession of methamphetamine for supply is the lead offence. The correct approach is to set a starting point on the lead charge that includes an uplift to reflect the totality of your offending. The other charges will receive concurrent sentences.
[16] I have had regard to the sentences of your co-offenders, Mr Boyden9 and Mr Chauval.10 Clearly your offending was more serious than theirs and a higher starting point is warranted.
[17] On the lead charge of possession for supply your offending falls at the higher end of R v Fatu band 3.11 But the starting point I adopt must reflect your offending as a whole. Taking your offending as a whole, I adopt a starting point of 13 years imprisonment.
[18] On the concurrent manufacturing charge I intend to treat you similarly to your co-offender Mr Boyden, who received a starting point of 4 and a half years imprisonment.
[19] In terms of the ContacNT offending, reference to R v Fatu, adjusted to reflect the lesser maximum penalty for offending involving precursor substances, is of some assistance.12 A comparison to the value of methamphetamine that might have been manufactured from the ContacNT in an offender’s possession can indicate the
seriousness of that offending.13
9 R v Boyden HC Rotorua CRI-2009-063-5871, 8 December 2010, Lang J.
10 R v Chauval HC Rotorua CRI-2009-063-5871, 15 October 2010, Wylie J.
11 R v Fatu at [34].
12 R v Xie [2007] 2 NZLR 240 (CA) at [22]–[23].
13 R v Xie, at [26], referring to R v Posimani CA369/04, 21 March 2005.
[20] I am satisfied that you had dealings in ContacNT in an amount over
1 kilogram, which places your offending in relation to the ContacNT at a serious level.
[21] Finally, in terms of the conspiracy charges I note that due to their lesser maximum penalties the guidelines in R v Fatu are not to be directly applied.14
Nevertheless, ―the closer a conspiracy comes to execution, the closer it becomes in seriousness to the actual illegal act being planned‖.15 ―[T]he element of conspiracy in some circumstances may be seen as aggravating the seriousness of the offending rather than mitigating it.‖16
[22] In R v Haarhaus,17 Stevens J noted that the usual approach is that the High
Court will revise the Fatu tariffs for supply downwards by around 30 percent.
[23] I take these principles into account when arriving at the final sentences on each concurrent charge.
Personal factors
[24] I turn to personal factors. You are a 65 year old male of European descent who identifies himself as Maori. You started using drugs in your late 20s. You spent a number of years working for the NZ Forestry Service, the NZ Army Territorial Force and finally the NZ Fire Service, but you eventually lost that job after you were found in possession of cannabis.
[25] You have been estranged from your second wife for four years. You have seven children, the four youngest of whom are now being cared for by a friend. The pre-sentence report writer spoke to several friends who are supportive of you and say
you are a good father to your children but that drugs are your downfall. I have today
14 R v Te Rure [2008] 3 NZLR 627 (CA) at [25].
15 Ibid.
16 R v Jarden [2008] 3 NZLR 612 (SC) at [11].
17 R v Haarhaus HC Auckland CRI-2007-004-018646, 24 July 2009 at [37]; see also R v Johnson HC Whangarei CRI-2006-088-001233, 27 September 2006 at [11]; R v Savage HC Whangarei CRI-2005-029-1267, 21 July 2006 at [26].
read the letter from your son, Mitchell, which has been signed by other members of your family and from you yourself. I have taken these into account.
[26] You have 14 previous convictions for offending involving cannabis and LSD. Four of these were entered in 2000 and the rest are 20 years old. You received six years imprisonment for importing LSD in 1991. Your counsel accepts that these are an aggravating factor although highlights the period of time that has elapsed since your last convictions. I uplift the starting point of 13 years imprisonment by six months to recognise your previous drug convictions. You have obviously learnt nothing from them.
[27] In terms of mitigating factors, your counsel submits that your age of 65 should be taken into account. You also have some relatively minor health issues that Mr Bergseng submits will make serving a prison sentence more difficult for you personally. However, I am not prepared to give you a discount because of your age. Many people in our community continue to work and work hard after 65.
[28] You say you are remorseful, that getting caught was something of a relief to you and that you no longer wish to be part of the criminal scene. While that may be true I do not think it demonstrates the type of remorse envisaged by the Supreme Court in Hessell.18 The pre-sentence report indicates that you tended to minimise your offending and shift blame onto your co-offender. You are assessed as a very high risk of reoffending.
[29] Finally, I must take into account your guilty plea. Ms Gordon’s submission is that your plea was entered after committal and was the result of an agreement from the Crown to ―roll up‖ the 89 counts which you initially faced into the seven on which you are being sentenced. In that regard you have already received something of a concession.19 Further, the prosecution had a strong case against you based on
intercepted communication data.20
18 Hessell v R [2011] 1 NZLR 607 (SC)
19 Ibid, at [62].
20 Ibid, at [60].
[30] Mr Bergseng on the other hand submits that the delay in entering guilty pleas is not significant in the overall context and as a result a lengthy trial has been averted.21 He notes that your co-offenders who have already been sentenced both received the maximum discount available. In all the circumstances, I give you a discount of approximately 20 percent which brings your sentence down to one of
10 years and 10 months imprisonment.
Minimum period of imprisonment
[31] The Crown seeks a minimum period of imprisonment of 50 percent. This is a matter of discretion. The principles are as follows.
[32] Section 86 of the Sentencing Act governs the imposition of a minimum period of imprisonment.22 A minimum period of imprisonment may be imposed if the Court is satisfied that the normal one third23 non-parole period would be insufficient for all or any of the following purposes:24
(a) holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender.
[33] Hence the Judge must consider first whether the default non-parole period of one third will satisfy the s 86(2)(a)–(d) criteria. If not, the Judge must consider how
21 Ibid, at [65].
22 A maximum period of imprisonment may not exceed the lesser of two-thirds of the sentence or
10 years: s 86(4).
23 Parole Act 2002, 84(1).
24 Sentencing Act 2002, s 86(2).
long the minimum period should be, and impose a sentence that would satisfy these principles.25
[34] The central consideration should be the offender’s level of culpability, which is increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.26 The sentencing considerations in ss 7, 8 or 9, including the circumstances of the offender, are all relevant in fixing a minimum period of imprisonment to the extent that they relate to the purposes set out in s 86(2).27
[35] The consideration of the offending should not be constrained by the particular charge and should not be considered in isolation from its context. The conduct of the accused both before and after the offence can be taken into account.28 If there is multiple offending, even if each offence on its own is not sufficiently serious to warrant a minimum term, the totality of the offending may take it over the threshold.29
[36] A minimum period of imprisonment may be imposed even where the case does not disclose any unusual or abnormal features for offending of the kind in question, although this may well remain relevant to the overall assessment required under s 86(2).30
[37] The length of the minimum period of imprisonment will ordinarily fall short of the maximum two thirds of the finite sentence,31 although there is no presumption against the imposition of the two thirds maximum.32
[38] In the circumstances of this case, I am satisfied that the normal one third non- parole period is insufficient to hold you accountable and for the purposes of
25 R v Brown [2002] 3 NZLR 670 (CA) at [35]; R v Taueki [2005] 3 NZLR 372 (CA) at [53]–[56].
26 R v Brown at [32].
27 R v Nguyen [2009] NZCA 239 at [34]; R v Gordon [2009] NZCA 145 at [46].
28 R v Martin CA358/03, 1 March 2004 at [27]–[28].
29 R v Orchard CA123/03, 24 October 2003.
30 R v Wirangi [2007] NZCA 25 at [17].
31 R v Gordon at [48].
32 R v Wang [2009] NZCA 118 at [14].
denunciation and deterrence. Accordingly, I intend to impose a minimum period of imprisonment of 50 percent.
[39] I therefore sentence you to the following sentences, to be served concurrently:
(a) Possession of methamphetamine for supply (representative) —10 years and 10 months imprisonment;
(b) Supply of methamphetamine (representative) — 10 years and
10 months imprisonment;
(c) Manufacture of methamphetamine (representative) — 4 years
6 months imprisonment;
(d)Supply of a precursor substance (representative) — 4 years imprisonment;
(e) Possession of a precursor substance — 3 years 9 months imprisonment;
(f) Conspiracy to supply methamphetamine — 4 years imprisonment;
(g) Conspiracy to possess a precursor substance — 2 years imprisonment. [40] I also impose a minimum period of imprisonment of 50 percent on the
possession of methamphetamine for supply charge.
[41] Finally, the Crown also seeks forfeiture of the 1992 Mitsubishi Pajero, registration EUD484, and the $20,000 found in your possession when you were stopped by Police. That is not opposed. The Pajero and the cash is therefore also
forfeited pursuant to s 32 Misuse of Drugs Act 1975.
Woolford J
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