The Queen v Ben Jobe Waitohi
[2002] NZCA 84
•29 April 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA21/02 |
THE QUEEN
V
BEN JOBE WAITOHI
| Hearing: | 23 April 2002 |
| Coram: | Anderson J Salmon J Paterson J |
| Appearances: | J C Pike for Appellant P Le’Au’Anae for Respondent |
| Judgment: | 29 April 2002 |
| JUDGMENT OF THE COURT DELIVERED BY SALMON J |
This is an appeal by the Solicitor-General against the sentence imposed on Mr Waitohi after having been found guilty by a jury of three charges under the Misuse of Drugs Act 1975.
Mr Waitohi was initially charged with two counts involving conspiracy to supply methamphetamine, two counts of supplying morphine, one count of conspiring to supply morphine and one count of having possession of morphine for the purpose of supply. He was found guilty on one count of conspiring to supply methamphetamine, one count of supplying morphine and one count of conspiring to supply morphine. The jury could not agree on the remaining charges. In respect of a number of charges he was jointly charged with other alleged offenders.
Background
As is often the case in matters of this nature the Crown evidence relied heavily on intercepted communications. The communications extended over a period of 28 days. It was and remains the Crown contention that the intercepted information establishes Mr Waitohi as an, if not the, major distributor of methamphetamine in the south Auckland areas and that he also dealt in significant quantities of morphine. The intercepted conversations show Mr Waitohi as obtaining $42,000 worth of pure methamphetamine which was cut and disposed of by the following day. There is a further conversation indicating that another quantity of pure methamphetamine had arrived. There is reference to a quick sale of $3,500. There was discussion about the purchase of a half ounce of methamphetamine and another discussion involving the possible purchase of two ounces. There is reference to bagging up supplies with two grams to a bag. There is reference to involvement with the Road Knights gang. There is reference to money owed by purchasers to Mr Waitohi and there is reference to sending out shoppers who seem to be members of the Tribesmen to purchase tablets containing ephedrine, a product used to manufacture methamphetamine. As to the morphine, there are numerous references to MSTs, both in relation to supply and purchase.
The Judge’s sentencing notes
The District Court Judge sentenced Mr Waitohi to three and a half years imprisonment. The Judge noted the Crown contention that Mr Waitohi was a major figure in the manufacture and supply of methamphetamine over the period of time with which the charges were concerned. He referred to the lengthy exerpts from telephone conversations in which he acknowledged his role and on one occasion boasted that he was “Mr Onehunga”. He recorded that Mr Waitohi was living in relatively modest circumstances, there was no evidence of cash having been found, or of assets which would indicate that he had made money on any grand scale. He concluded that Mr Waitohi was probably not sophisticated enough to have amassed a large sum of money or assets and concealed them and that in financial terms he received very little. He said he was satisfied that Mr Waitohi had a major and on-going involvement in the drug scene, particularly in relation to Class B drugs. He referred to the decision of this Court in R v Wallace [1999] 3 NZLR 173 and the observations of the Court that although offenders are to be sentenced only for proved offending, the wider picture can be taken into account on conspiracy cases. He referred to the need for deterrence and said:
The offending in my view having regard to the charges for which you are convicted does merit a reasonably significant term of imprisonment on the totality principle, but less than one might have thought it warranted at first glance.
No reason is given for that last comment.
The submissions in this Court
In his submissions Mr Pike, for the appellant, referred to the evidence in relation to methamphetamine and morphine. He submitted that the absence of visible reward from dealing was irrelevant or, at the very least, neutral in this case. He submitted that five and a half years would have been an appropriate starting point for an offender moving or able to move kilogram lots of methamphetamine in a matter of days, and that in addition to this, two to two and a half years should have been allowed in respect of the morphine charges. Combining these he submitted that the starting point should have been a sentence in the order of six and a half to seven years.
Mr Pike acknowledged that there was no evidence that the respondent was an established dealer prior to the commencement of the police operation but submitted that the evidence clearly showed that over a period of 11 days there were major supplies. He noted reference to the extensive list of debtors and suggested that this could be a reason why there was no evidence of the respondent having derived much return. He submitted that the Judge had placed too much emphasis on the lack of evidence as to financial return and had overlooked the need for real deterrence.
In his submissions for the respondent, Mr Le’Au’Anae, stressed that after sitting through three weeks of trial the Judge was fully conversant with the facts of the case. He submitted that some of the comments made by the respondent were as a result of his own drug use and that there were clear indications in the transcript that the respondent was using drugs at the time. He submitted that there was evidence of a considerable degree of lack of sophistication. He submitted that there must be parity with co-accused and that the sentencing by the trial Judge was not out of line with the guidelines set by the Court of Appeal in R v Wallace.
Decision
As to parity, all that needs to be said is that the sentencing Judge obviously regarded Mr Waitohi’s involvement in these matters as much more serious than that of others who have been sentenced in relation to this offending. There is nothing to suggest that there is a sufficient degree of comparability in the seriousness of the offending to require issues of parity to be paramount.
In R v Wallace this Court said at page 172:
[30] The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.
[31] Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range five to eight years.
[32] For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.
Mr Pike submitted, and we accept, that this offending falls within the category in respect of which the appropriate starting point is in the range five to eight years. We were told, and it was not challenged by Mr Le’Au’Anae, that the $42,000 worth of pure methamphetamine would represent about one kilogram of product and would be cut into three or four times that quantity. The sentencing Judge was satisfied that Mr Waitohi had a “major and on-going involvement in the drug scene particularly in relation to Class B drugs”.
There are really no mitigating factors to be applied against an appropriate sentence. Mr Waitohi who is 36 years of age has a long list of previous convictions. It is important in cases of drug offending, that sentencing contain a deterrent aspect both generally and in relation to the particular offender. In this case there is the aggravating feature of association with gang activities. There is always the consideration in cases of this nature, that the ultimate purchaser will turn to crime to support his or her habit.
We have concluded that the sentence imposed by the District Court Judge was inadequate to reflect the extent of the operation and the other factors referred to above. Bearing in mind that this is a Solicitor-General’s appeal and that any sentence imposed should be at the lower level of an appropriate range, we have concluded that the starting point must be five years imprisonment. There are no mitigating factors to reduce that term. Leave to appeal is granted and the appeal is allowed. On the charge of conspiracy to supply methamphetamine the sentence of three and a half years is quashed and in substitution therefore Mr Waitohi is sentenced to five years imprisonment. On counts four and six the sentences will remain as fixed by the sentencing Judge. All sentences are to be served concurrently.
Solicitors
Crown Law Office, Wellington
Saseve Solicitors, Papatoetoe, Auckland for Respondent
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