R v Young
[2016] NZHC 1039
•19 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-063-003363 [2016] NZHC 1039
THE QUEEN
v
JAMES BRODIE YOUNG
Hearing: 19 May 2016 Appearances:
B R Northwood for Crown
M A Kennedy for DefendantSentenced:
19 May 2016
SENTENCING NOTES OF VENNING J
Solicitors: Meredith Connell, Auckland
Copy to: M A Kennedy, Auckland
R v YOUNG [2016] NZHC 1039 [19 May 2016]
[1] James Brodie Young you are for sentence in this Court having pleaded guilty to one count of supplying the class A controlled drug methamphetamine, one charge of possession of the class A controlled drug methamphetamine for the purpose of supply, two charges of conspiracy to supply the class A controlled drug methamphetamine, and one charge of possession of the class C controlled drug cannabis for the purposes of sale.
[2] The Crown have not offered any evidence in relation to counts 1, 17, 28, 33 and 37. You are discharged under s 147 of the Criminal Procedure Act 2011 in relation to those counts. The Crown have previously been granted leave to withdraw a charge of participating in a criminal organisation.
[3] The offending for which you are for sentence spanned a period between
August and October 2014.
[4] On 30 August 2014 you told a Mr Gaitau that you were sending your “cuzzy” to Auckland. At the time you were living in Rotorua. You told Mr Gaitau that your “cuzzy had an elbow” in the boot of the car. An “elbow” is code for a pound of cannabis which would weigh approximately 448 grams and normally sells at street level for between $3,000 and $5,000. Intercepted communications revealed that the person known as cuzzy arrived at Mr Gaitau’s home after half past nine that night. Mr Gaitau in turn supplied the cannabis to another person.
[5] The first conspiracy charge relates to events on 17 September 2014. You told Mr Gaitau you would be travelling to Auckland the next day to obtain some methamphetamine to supply to your associates. On the same evening you repeated that information to an unknown associate via a text message. You arrived at Mr Gaitau’s address next evening on 18 September. While you were there Mr Gaitau spoke to Scott MacPherson, another co-accused, saying that he had half an ounce and a quarter ounce of methamphetamine and intended to obtain an ounce more the next day. Mr MacPherson arranged with Mr Gaitau to supply Mr Gaitau a quarter of an ounce which was intended to be passed onto you. Later that evening you spoke to an associate who asked you if you had any grams of methamphetamine for sale. You subsequently met in Tokoroa in the early hours of the morning. The Police were
unable to establish whether you actually received the methamphetamine from Mr Gaitau to give to the individuals you were dealing with so the charge remains one of conspiracy.
[6] The second conspiracy charge occurred on 28 September 2014. On that day you spoke to your partner Ms Waiti. Ms Waiti had talked to a male associate about supplying him with an ounce of methamphetamine, 28 grams. He was prepared to pay between $10,000 and $12,000. Mr Young, you were willing to sell the associate an ounce for $12,000 if the man was prepared to come to Auckland but the next day Ms Waiti was told the associate was going to get methamphetamine elsewhere as he could get it cheaper.
[7] The most serious charges relate to supplying methamphetamine and possession of methamphetamine for sale. They carry the maximum penalty of life imprisonment.
[8] On the evening of 26 September Ms Waiti asked you if you could get a good deal on half an ounce of methamphetamine for her cousin and how much he could get for $5,000. Later that evening Ms Waiti asked you if you could obtain three quarters of an ounce for $7,000. Ms Waiti and her cousin arrived in Auckland later that evening and she and you spoke. She said her cousin had $7,000. The two discussed the potential price of methamphetamine that could be bought from Mr Gaitau. Mr Gaitau was not able to obtain the methamphetamine. Ms Waiti and her cousin returned to Rotorua in the early hours of the morning. The next day Mr Gaitau was in a position to supply the methamphetamine and Ms Waiti and her cousin returned to Auckland. The supplier had not been able to provide half an ounce, only quarter of an ounce, seven grams. Mr Gaitau and you met just before midnight so that Mr Gaitau could give you the methamphetamine. You then supplied this to Ms Waiti for her cousin. In a later text message Ms Waiti told you the methamphetamine weighed 7.36 grams.
[9] The possession of methamphetamine for supply charge arose out of an incident on 10 October 2014. In the morning Mr Gaitau had asked you if you had any methamphetamine. You had half an ounce. Mr Gaitau wanted a whole ounce.
You told him you were heading back to Auckland that evening. Later in the morning you contacted Mr Gaitau again telling him that you now had a quarter ounce and a half ounce of methamphetamine and you would bring them to Auckland. Mr Gaitau arranged to on-sell the methamphetamine. You left for Auckland in the afternoon but were stopped by Police on State Highway 1 and your vehicle searched. The Police located approximately just under 20 grams of methamphetamine in the car.
[10] The total quantities of methamphetamine that you were involved with then were 19.4 grams on this last occasion, 7.36 grams on the supply occasion on 26 or 27
September and the conspiracies involved 28 and seven grams respectively, in total 35 grams. The total amount of methamphetamine that your offending involved was just under 62 grams.
[11] The Crown submit the appropriate starting point for the methamphetamine offending is in the vicinity of five years’ imprisonment. There should be a one year uplift for the cannabis offending the Crown submit and a discount of approximately
15 per cent for your guilty pleas.
[12] Ms Kennedy has submitted a starting point of between three and a half to three years, nine months imprisonment would be appropriate for the commercial sale of the methamphetamine but argues that the charge of possession of methamphetamine for supply was actually for non commercial supply, so a lesser starting point should be taken. She acknowledged an uplift was appropriate for the cannabis offending but submitted it should be no more than six to nine months. She argues for a discount of 20 per cent for your guilty plea.
[13] It is necessary to deal with Ms Kennedy’s submission that the analysis of the text messages passing between you and Mr Gaitau on 10 October suggest that you were simply returning methamphetamine to Mr Gaitau so that it was not a commercial sale.
[14] There are two immediate practical answers to that. First, you pleaded guilty to a summary of facts which had you intending to supply Mr Gaitau with methamphetamine for the purposes of him on-selling it. Next, an analysis of all of
the text communications relevant to that charge does not support the submission it was to be non commercial. Mr Gaitau asked you if you had the “circle thing”. You said you’ve “got a half”. Mr Gaitau says he needs to make some money today. You say: “The bro had a couple … that he needed to get rid of” and said you would try and get hold of Josh to tell him. In a later text the same day you said you would do the rounds and pick some up and confirmed you had got a quarter pounder and a half as well. You then said “I’ll bring it back up”. On the basis of that, “I’ll bring it back up”, in her written submissions Ms Kennedy submitted you were returning Mr Gaitau’s methamphetamine. In the context of the messages taken as a whole I simply do not accept that submission. Given the quantity of methamphetamine found in your possession, if the matter had been defended, the onus would have been on you to prove on the balance of probabilities that you did not have it for supply.
[15] During the course of oral submission Mr Kennedy suggested that perhaps there was no evidence of any personal gain to you from this transaction and that while you may have been supplying it to Mr Gaitau there is no evidence that you were to receive anything from that. Again the point is that you have pleaded guilty to possession of methamphetamine for supply. Whatever the arrangements between you and Mr Gaitau might have been the presumption is that this was a commercial supply of methamphetamine.
[16] It is clear you intended to supply the methamphetamine to Mr Gaitau for him to on-supply, and that you were not returning methamphetamine to him. You had it for the purpose of supplying to him, for him to on-sell.
[17] The principal purpose of a sentence for drug offending of this nature is deterrence and detention.
[18] Mr Young the pre-sentence report discloses the key contributing factors to your offending are your anti-social associates, the people that you live with and deal with, and your addiction to the use of drugs yourself. You say you are motivated to address that addiction and have not used drugs for the last year. You have completed a course whilst in custody and you say you are remorseful for your actions and that you made “wrong choices”. You have also written a letter to the Court in which you
express remorse for what you have done and explained the background to your recent activity and why you went to Christchurch.
[19] Mr Young the difficulty for you is that despite the expressions of remorse and what you have written, actions speak louder than words and unfortunately you have continued to regularly offend since 1990. Although most of the offending relates to dishonesty and other offending you have served terms of imprisonment in the past. It is apparent that your offending that you are for sentence this morning on, was to make money to serve your own drug habits. I accept you did go to Christchurch and obtain work and were apparently able to remain drug free there and that is a positive for you for the future. But the problem with that is of course, as Ms Kennedy acknowledged, you breached conditions of bail to travel to Christchurch and you left a drug and alcohol assessment centre to take up that work to travel to Christchurch. That impacts on the suggestion that you are remorseful and the Court should take into account your remorse.
[20] In your letter you acknowledge you are going to be sentenced to imprisonment but ask for some light at the end of the tunnel. Mr Young how bright the light at the end of the tunnel is will really be up to you. The sentence I am going to impose will not include a minimum non-parole period, so that whether or not you are released when you become eligible for parole in the usual way, will be dependent on your actions in prison and how you relate and interact in the courses that will be available to you and the support that you will have when you leave prison.
[21] In sentencing you I have to have regard to a number of other relevant authorities so that your sentence is consistent with other sentences of this Court and in line with Court of Appeal authority.1 The leading authority is of course R v Fatu
but I also take account of the other cases that counsel have referred to.
1 R v Fatu [2006] 2 NZLR 72 (CA); R v Nguyen & Ors HC Auckland CRI-2008-092-017198, 24
November 2010; Nordstrand v NZ Police HC Whangarei CRI-2011-488-51, 26 September
2011; R v Oldeman [2013] NZHC 1709; Tema v Police [2013] NZHC 1437; R v Terewi [1999]
3 NZLR 62; R v Martin HC Palmerston North CRI-2007-054-2972, 11 September 2008; R v Jarden [2008] 3 NZLR 612; R v Wallace and Christie [1999] 3 NZLR 199; R v Jones [2016] NZHC 424; R v Bogue [2014] NZHC 2754; R v Murray [2014] NZHC 1843; R v Strachan [2013] NZHC 1711; Vaine v R [2011] NZCA 283; R v Sauer [2012] NZHC 3262; and Hessell v R [2011] 1 NZLR 607.
[22] Your offending falls towards the lower end of band 2 of Fatu. For the four counts involving the methamphetamine offending, particularly the supply and sale but also to take account by way of totality of the conspiracy charges, I take a starting point of four years, three months imprisonment. I uplift that by nine months to take account of the cannabis offending. A more significant figure would have been justified but I bear in mind the need to consider the totality of the sentence overall.
[23] From that adjusted starting point of five years I allow you a reduction of 15 per cent for your guilty plea. While you were entitled to take the matter in relation to the supply charge to the Court of Appeal before entering a guilty plea to that, you knew your culpability and could have pleaded guilty earlier to that and the other offending that you did plead guilty to. In addition the Crown case against you was strong based as it was on intercepted communications. For those reasons the maximum available discount for the guilty pleas is 15 per cent.
[24] For the reasons given earlier I am unable to accept that remorse can be an additional factor in this case. I am not able to categorise it as the sort of genuine remorse referred to by the Supreme Court in Hessell which would lead to a quite separate reduction.2 No doubt you regret your offending and regret the situation you now face. You may have plans for the future but that is not the sort of remorse which leads to a further reduction.
[25] Mr Young, please stand. On each of the methamphetamine charges you are sentenced to imprisonment for four years, three months. On the cannabis offending you are sentenced to imprisonment for nine months, that is concurrent. The effective
sentence is four years, three months imprisonment. Stand down.
Venning J
2 Hessell v R [2011] 1 NZLR 607.
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