R v Wilson
[2022] NZHC 1901
•5 August 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2020-070-2302
[2022] NZHC 1901
THE QUEEN v
JOANNE LISA MARIE WILSON
Hearing: 5 August 2022 Appearances:
R W Jenson for Crown
R M Mansfield QC for Defendant
Judgment:
5 August 2022
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Tauranga
R v WILSON [2022] NZHC 1901 [5 August 2022]
[1] Ms Wilson, you appear for sentence having pleaded guilty to a representative charge of money laundering1 and to charges of being in possession of methamphetamine2 and a methamphetamine pipe.3
Background
[2] You have pleaded guilty on the basis of an agreed summary of facts. This records that the offending occurred as a result of your involvement with your then partner, Mr Calebh Simpson. He was involved in significant methamphetamine- related activity and this enabled you to acquire both methamphetamine and money derived from Mr Simpson’s activities.
[3] Mr Simpson was arrested in February 2020 as a result of a wide-ranging police operation that was known in its latter stages as Operation Emoji. This resulted in the police seizing more than $200,000 in cash from Mr Simpson during the early months of 2020 and following his arrest. After his arrest the police learned that Mr Simpson still had control of more than $1.5 million in cash. He also owned several motor vehicles that were registered in the names of friends and members of his family. You were one of these persons.
[4] The police executed a search warrant at Mr Simpson’s home address on 13 February 2020, the date of his arrest. Following this his father went to the address and uplifted two suitcases containing more than $1.5 million in cash. Mr Simpson had hidden these in a hydraulically operated compartment under his bed and the police had failed to find them. Mr Simpson’s father then gave the suitcases to you and you passed them on to Mr Simpson’s mother so they could remain undetected.
[5] The police executed a search warrant at your address on 11 June 2020. They found you asleep in bed. When they searched the address the police found 9.7 grams of methamphetamine together with a glass pipe that you had used to consume methamphetamine. They also discovered more than $11,700 in cash.
1 Crimes Act 1961, s 243 – maximum sentence seven years imprisonment.
2 Misuse of Drugs Act 1975, s 7(1)(a) and (2) – maximum sentence six months imprisonment.
3 Section 13(1)(a) and (3) – maximum sentence 12 months imprisonment.
[6] At the time of your arrest you were the owner, and had possession, of a 2006 Range Rover vehicle that had previously been owned by Mr Simpson’s father.
[7] The police investigation revealed that between 21 May 2019 and 9 June 2020 you had deposited the sum of just over $29,000 in cash into your bank account using deposits to automated teller machines. These funds came from the suitcases that had been hidden at Mr Simpson’s address. You used these funds to meet your daily living expenses, including accommodation. You also used the money to purchase personal items such as clothing. In addition, you obeyed instructions by Mr Simpson to make payments from your account to accounts operated by persons in prison. In total you paid the sum of $7,191 into accounts held for prisoners by the Department of Corrections.
[8] Earlier, in July 2019, you had rented storage sheds in Whakatane and Auckland using cash provided by Mr Simpson. Between 31 July 2019 and June 2020 you made cash payments totalling just over $6,300 to meet storage fees for those. You also used the money in your account to pay expenses relating to two motor vehicles in your possession, namely the 2006 Range Rover and a 2008 Holden Commodore SSV saloon. Both of these were owned by Mr Simpson.
[9] In addition, on 23 November 2019, you arranged to purchase a Mercedes C200 motor vehicle that you saw advertised on a website. You met with the owner of the vehicle and purchased it for $10,500 in cash. Mr Benjamin Howe, another of the persons arrested at the termination of Operation Emoji, was found in possession of this vehicle.
[10] Following his arrest Mr Simpson instructed you and another of your co- defendants, Mr Ellis, to use the sum of $12,000 in cash to reimburse persons who had paid legal fees on behalf of another co-defendant. During the months of March to June 2020 you also received bundles of cash from Mr Simpson’s mother, and you used these to meet your day to day living expenses. In addition, you purchased personal items for Mr Simpson including clothing, shoes, watches and prisoner phone cards.
Starting point
[11] I take the lead, or most serious, charge to be that of money laundering. The maximum penalty for that offence is seven years imprisonment. There is no guideline judgment of the Court of Appeal for the offence of money laundering. This is no doubt because it can be committed in a wide variety of ways.
[12] In setting a starting point it is necessary to have regard to all the relevant circumstances of the offending. These include the total amount laundered, the extent to which the offending was sophisticated, the motivation for the offending, the length of time over which the offending occurred and the extent to which you benefited personally from it.
[13] Money laundering occurs when an offender deals with proceeds of earlier criminal offending so as to conceal it.4 In R v Tritar this Court observed:5
[24] Typically, although not always, concealment in this context occurs when cash is used to acquire physical assets. It may also, however, occur when funds are converted from cash to an intangible but identifiable asset such as funds held in a bank account. However, I do not consider it occurs when a person spends the funds acquired from criminal activity on living expenses. The profits are dissipated at that point and no longer exist. There is nothing left to conceal. The receipt of cash that is subsequently spent on living expenses may enable the Crown to obtain a profit forfeiture order under the Criminal Proceeds (Recovery) Act 2009. I am satisfied, however, that it does not support a charge of money laundering.
[14] These principles are important to bear in mind in your case because I do not accept that some of the transactions the Crown relies on as constituting money laundering amount to that offence in law. I place in that category cash that you obtained and then spent on your own living expenses without first depositing it into your bank account.
[15] However, the use of illegally derived cash to purchase items such as clothing, footwear and the motor vehicle plainly constituted money lending. The same can be said of depositing sums of cash into your bank account because this changed cash into another form. The removal from storage of cash from Mr Simpson’s address also
4 Crimes Act 1961, s 243(4).
5 R v Tritar [2021] NZHC 1591.
amounted to dealing with illegally acquired cash so as to conceal it both from the authorities and others who might seek to acquire it.
[16] Counsel have referred me to a wide range of cases to support their respective arguments as to starting point.6 The Crown says these suggest a starting point of between two and a half and three years imprisonment. This morning Mr Jenson acknowledges the starting point may be lower. Your counsel contends a starting point of between 18 months and two years imprisonment is appropriate.
[17] I gain some assistance from the starting point selected in the case of Mr Simpson’s mother, Ms Butler, who was also charged with money laundering. Like you, she was involved in handling the two suitcases that contained the sum of approximately $1.5 million in cash. She also used cash supplied by Mr Simpson to meet living expenses, acquire assets and pay legal bills. When Ms Butler sought a sentence indication, the Judge who provided it selected a starting point of three and a half years imprisonment. At sentencing, however, the Judge indicated this may have been too high because several of the acts on which the Crown relied were unlikely to comprise the offence of money laundering.7
[18] A seriously aggravating feature of your offending is that you assisted to conceal the very large quantity of cash that was uplifted from Mr Simpson’s address. You also paid funds into your bank account and you then used these for your living expenses and to fund payments to prisoners. In addition, you used cash to acquire the motor vehicle that you then had the use of. I acknowledge, however, that your offending occurred in part because you misguidedly sought to assist Mr Simpson before and following his arrest. You knew he suffered from mental health issues and wanted to make his life in prison more bearable.
6 Wang v R [2021] NZHC 445; R v Williams [2018] NZHC 2731; R v Henry [2015] NZHC 1684; R v Beckham [2011] BCL 677 (HC); R v Parao [2016] NZHC 1105; R v Karpavicus [2013] NZHC 3095; R v Brown HC Auckland CRI-2008-004-20453, 3 February 2011; R v Simanu HC Auckland CRI-2008-004-20453, 16 December 2010; R v Grigaliunas DC Auckland, CRI-2009-004-1879, 29 January 2009; R v Karaka DC Auckland CRI-2009-004-1879, 29 January 2009; R v Butler [2022] NZHC 1584.
7 R v Butler [2022] NZHC 1584 at [6].
[19] I consider your offending is more serious than that of Ms Butler because of the extent to which you personally benefited from the illegally acquired cash. However, I consider the starting point selected in Ms Butler’s case at the sentence indication stage was too high given her overall culpability. Taking these factors into account I consider a starting point of two years six months imprisonment is appropriate.
Uplift for remaining charges
[20] Despite the quantity of methamphetamine found in your possession the Crown accepts that it was for your own use and not for commercial gain. I therefore apply an uplift of just four months to reflect the remaining charges. This produces a sentence of two years ten months imprisonment before taking into account aggravating and mitigating factors personal to you.
Aggravating factors
[21] You have no previous convictions, so no uplift is necessary to reflect aggravating factors personal to you.
Mitigating factors
[22] Your counsel urges me to reduce the starting point to reflect several mitigating factors. First, he relies on the fact that this is your first appearance on criminal charges at the age of 33 years. This is tempered by the fact that, by your own admission, you have now been consuming Class A drugs on a regular basis for some time. I am prepared to apply a discount of four months, or just over ten per cent, to reflect this factor.
[23] You are entitled to credit for your guilty pleas, although these were entered a very short time before the scheduled commencement of your trial. I accept your counsel’s submission that the onset of the pandemic caused issues so far as contact between counsel and client is concerned. However, given the strength of the Crown case and the lateness of the pleas, I do not consider a reduction of more than 15 per cent, or five months, to be appropriate.
[24] The pre-sentence report and the letter you tendered prior to sentencing both make it clear you are genuinely remorseful and regretful of your actions. I propose to apply a discount of three months, or just over eight per cent, to reflect this factor.
[25] In addition, I am satisfied that your offending was driven to a large extent by your addiction to methamphetamine. You had acquired this whilst in an earlier relationship with a person who consumed drugs on a regular basis. You have now been drug-free for approximately two years and are also entitled to credit for the rehabilitative steps you have undertaken. Your employer speaks highly of you. I consider these factors justify a discount of four months, or just over ten per cent.
[26] These discounts reduce the starting point of two years ten months imprisonment by 16 months. This produces an end sentence of 18 months imprisonment and means a community-based sentence is an available alternative to imprisonment.
[27] The fact that you have now been drug free for approximately two years is the most important factor in this context. It would be counterproductive to send you to prison now that you have come so far with your rehabilitation. In addition, you now have meaningful steady employment and your sister has provided her address as one at which you could serve a sentence of either community detention or home detention. You have already been living at that address for two years with no adverse consequences and I am satisfied it would be suitable for an electronically monitored sentence.
[28] In determining the type of sentence to be imposed on you I consider the need to impose a sentence that provides for your rehabilitation and reintegration into the community is to the forefront. You should be encouraged to continue with paid employment and rehabilitative efforts. You have already been subject to a degree of punishment by having the present charges hanging over your head for a considerable period. In addition, you have been subject to bail conditions since your arrest and have complied with these. I therefore see a limited need for a sentence that has a punitive element.
[29] Normally a sentence of home detention would be appropriate for a person who has committed offences of this type and where an end sentence of 18 months imprisonment is the outcome However, I consider your interests and those of the community would be best served by a sentence that enables you to continue working whilst remaining subject to close supervision. This is necessary because you remain vulnerable to relapse into further drug use unless you are closely supervised over the next 12 months. It is not possible to impose a sentence of home detention as well as a sentence of intense supervision. I therefore consider a sentence of community detention together with intensive supervision to be the appropriate response both to your offending and the rehabilitative steps you have undertaken over the last two years.
Sentence
[30] On the charges of money laundering and being in possession of methamphetamine you are sentenced to six months community detention on the standard conditions contained in s 69E of the Sentencing Act 2002 and on the post- detention conditions set out in the pre-sentence report dated 2 June 2022. You are to be subject to an electronically monitored curfew at the nominated address between the hours of 6 pm and 5 am each day. In addition, you are sentenced to 12 months intensive supervision on the standard conditions set out in s 54F of the Sentencing Act 2002. I see no need to impose special conditions in relation to that sentence.
[31] On the charge of being in possession of a methamphetamine pipe you are convicted and discharged.
[32] I make an order for the destruction of the drugs and pipe that were found in your possession.
Lang J
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