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R v WHATA [2005] NZCA 64 (8 April 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA473/04
CA476/04
CA478/04 - CA488/04

THE QUEEN

v

SHANE TE WHATA (CA473/04 & CA483/04)
WAYNE POHUTUHUTU (CA476/04 & CA486/04)
JOSEPH ROBERT WIRINGI (CA478/04)
LISA MARIE HOWIE (CA479/04)
PETER DAMIEN GILBERT (CA480/04)
ROTA TURI BEATTIE (CA481/04)
MARK QUENTIN WAITERE (CA482/04)
LEON DELSHANNON TURNER (CA484/04)
WHATA AUGUST KEEFE (CA485/04)
DOUGLAS STANLEY ROWE (CA487/04)
MARTIN HENRY REUBEN (CA488/04)

Hearing: 10 March 2005

Court: William Young, Randerson and Robertson JJ

Counsel: J A Farish for Crown
M I Sewell for Te Whata, Beattie and Waitere
A S Greig for Pohutuhutu and Wiringi
R G Glover for Howie, Gilbert, Keefe and Rowe
D N Bunce for Turner
E C Bulger for Reuben

Judgment: 8 April 2005

JUDGMENT OF THE COURT

A The applications for leave to appeal by the Solicitor-General are all dismissed saving the case of Mr Reuben, in respect of whom leave to appeal is granted, the appeal is allowed, and the sentence on the conspiracy count increased to three years six months imprisonment.
B The appeals against sentence by Messrs Te Whata and Pohutuhutu are allowed with the sentences on the conspiracy count in the case of Mr Te Whata reduced to three years imprisonment and in the case of Mr Pohutuhutu to two and a half years imprisonment.

REASONS

(Given by William Young J)

Introduction

[1] We are required to review sentences imposed by Panckhurst J on nine participants in a major drug dealing operation run from the Mongrel Mob headquarters in Wilsons Road, Christchurch. The case arose out of what the police styled "Operation Crusade". In all cases, there is an application by Solicitor-General for leave to appeal against sentence. Two of the nine respondents to the Solicitor-General’s applications have also appealed against sentence. For ease of reference we will generally refer to all nine simply as "the respondents".
[2] The primary count which the respondents faced was a charge of conspiracy to sell cannabis from the Wilsons Road premises between 27 July 2002 and 3 September 2003. For the 12 months preceding the termination of Operation Crusade (ie on 3 September 2003) the turnover on an annual basis would appear to have been in the order of, and perhaps more than, $180,000 (ie around $500 a day). The prime movers in the offending were Joseph Wiringi (who for most of the relevant period was the president of the local chapter of the Mongrel Mob) and Lisa Howie (who for most of the relevant period was Mr Wiringi’s de facto partner). The other parties to the present appeals were involved primarily in selling cannabis from Wilsons Road. In the course of his sentencing remarks Panckhurst J referred to Mr Wiringi and Ms Howie as being first tier or first level offenders and the others as second tier or second level offenders. We adopt the same terminology.
[3] Some of the respondents were also convicted of other offences involving drugs other than cannabis and firearms, ammunition and explosives. As well two, Mr Wiringi and Peter Gilbert, had previously been sentenced to substantial terms of imprisonment for violent offending which was loosely related to the conspiracy. Another, Rota Beattie, at the time of sentencing, was serving a short sentence of imprisonment imposed for drug dealing offending committed while he was on bail in relation to the Operation Crusade charges.

The appropriate sentencing range for the cannabis conspiracy – preliminary observations

[4] R v Terewi [1999] 3 NZLR 62 (CA) established "four years or more" as the starting point for the highest category of offending involving Class C drug cultivation. That category was described in terms of "large-scale commercial growing, usually with a considerable degree of sophistication and organisation." Terewi provides guidance in cases of cannabis dealing as well as cannabis cultivation, see R v Keefe CA275/02, 28 November 2002).
[5] The expression "starting point" can be a little slippery. For present purposes we use it as referring to a sentence appropriate to the culpability of the offending in relation to all factors other than those which are personal to the offender. This is the sense in which Panckhurst J used the term in his sentencing remarks.
[6] Relevant to the starting point assessments in this case are the following factors:

(a) The scale of the drug dealing;

(b) Its brazen nature; and
(c) The gang environment in which it occurred.

[7] The scale of the drug dealing activities puts the offending, as a whole, into the highest category of offending for the purposes of Terewi. This consideration is most obviously relevant to Mr Wiringi and Ms Howie whose culpability can be fairly assessed by reference to the totality of the sales. It is arguably not quite so relevant to the second tier respondents who, individually, would each have been responsible (in a direct sense) for only a limited proportion of the sales which were made.
[8] The brazen nature of the offending is remarkable. The respondents must have known that their operation had come to the attention of the police. On a number of occasions there were police raids on the Wilsons Road premises. One of the respondents had detected police monitoring equipment in his car. Simple common sense would have told the respondents that their operations were being monitored. Their willingness to execute the conspiracy shows that they were not deterred by what they saw as the sentences likely to be imposed when the police eventually shut the operation down.
[9] The gang context is also of relevance. The firearms, ammunition and explosives which were located signify the risk of violence which this sort of offending generates. Indeed, the offences of violence for which Messrs Wiringi and Gilbert had been earlier convicted arose out of a patch war with the Black Power gang associated with drug dealing activities. The offending as a whole was facilitated by the gang environment, particularly the availability of a gang headquarters which was manned 24 hours a day and the physical security it provided. All of this is plainly relevant to culpability, see R v Toman CA30/04, 24 June 2004.
[10] Counsel for a number of the respondents submitted that the conspiracy was unsophisticated. There is some truth in this contention. It is obviously not particularly easy to co-ordinate over a sustained period the activities of patched Mongrel Mob members and there is a sense in which the whole operation was a ramshackle affair. On the other hand the gang context meant that sophistication was not required. Despite the asserted lack of sophistication, the conspirators collectively were able to move a good deal of cannabis.
[11] The most that can be said by way of mitigation as to the cannabis conspiracy is that while the volume of sales was high, the number of people involved presumably meant that the profits had to be split many ways and there was no evidence that any of the respondents built up substantial assets.

The approach of Panckhurst J

The general approach

[12] Panckhurst J saw the primary offence (and the one which warranted the lead sentence) as being the conspiracy to sell cannabis. He imposed concurrent sentences in relation to some of the other charges and cumulative sentences in relation to the rest. There is no challenge to his general approach and in particular no challenge to the decisions whether to impose concurrent or cumulative sentences on the other charges or as to the length of those sentences. The offending for which cumulative sentences were imposed mainly involved Arms Act offences in respect of firearms and ammunition.
[13] The actual sentencing decisions in each case were therefore a factor of:
(a) The starting point chosen by the Judge;
(b) The allowance for mitigating factors (in most cases pleas of guilty); and

(c) The add-on for the offending for which cumulative sentences were imposed.

[14] The challenges made by both the Crown and those respondents who have themselves appealed have been in relation to either or both the starting points or the allowances for mitigating factors. The add-ons for other offending were not the subject of specific challenge but they are of course of contextual relevance in assessing the appropriateness of the overall sentences imposed.

The Judge’s starting point assessments

[15] In the case of Mr Wiringi, the dominating consideration on sentencing was the application of the totality principle given that he had been sentenced in August 2004 to nine years imprisonment. Nothing that was said in relation to Mr Wiringi gives any real clue as to the Judge’s assessment of a starting point.
[16] In the case of Ms Howie, the Judge said that "a starting point of sentencing of four years and probably more is well justified".
[17] The Judge saw four years as the appropriate starting point sentence for the second tier offenders other than Leon Turner and Whata Keefe whose culpability he regarded as being more limited.

Discounts for mitigating factors

[18] The Judge identified in the case of Ms Howie some mitigating factors which were particular to her but otherwise pleas of guilty were the only mitigating factor for which he made express allowance.
[19] Broadly speaking the Judge allowed 25% for guilty pleas providing they were entered prior to the week during which the trial commenced. With one exception, he allowed no discounts for later pleas.

The individual sentences imposed

[20] We find it convenient to defer discussion of the particular sentences imposed on the individual respondents until we come to discuss their circumstances later in the judgment.

Overview of appeals

[21] Given the lengthy sentences which Messrs Wiringi and Gilbert are serving for other offending and the impact of the totality principle, the Solicitor-General did not persist with challenges to the sentences imposed on them.
[22] In succeeding sections of this judgment we will deal with the appeals by reference to the following headings:

(a) The starting point for the first tier offenders.

(b) The starting points for the second tier offenders.
(c) The deductions for pleas of guilty.
(d) The individual sentences.

The starting point for the first tier offenders

[23] As is apparent from what we have already said, Panckhurst J did not identify what he considered to be the appropriate starting point for the first tier offenders (Mr Wiringi and Ms Howie). All that can be said is that it must have been appreciably more than four years.
[24] For the Crown, Ms Farish submitted that a starting point "in the vicinity of six years imprisonment" is appropriate having regard to the scale of the offending and the organised gang context. We agree. Such a starting point recognises the annual turnover of the drug dealing conspiracy, its brazen nature and the organised gang context.
[25] In R v Mark CA 470/03 29 June 2004 this Court was required to consider whether a starting point of four years in respect of category three cultivation was manifestly excessive. The Court observed at [23]-[25] per Paterson J:

[23] In our view, the preferable method of fixing both the category and where the starting sentence lies within that category is to consider all the elements of the offending, including what might be described as the aggravating factors relating directly to the offending. A large scale commercial growing operation is within category three, but to fix the starting point it is necessary to take into account many of the matters taken into account by the Judge in this case as aggravating features. Any external aggravating features, such as the possession of firearms in this case, are then additional aggravating features which are taken into account in considering whether there should be an increase over the starting point.
[24] Applying this principle, we are of the view that the starting point in this case was within the range of five to six years. This was a large scale commercial growing operation. 632 mature cannabis plants were removed from the property. All the plants seen by ESR staff were female plants indicating a degree of sophistication in the cultivation of the plants. Although this was not a hydroponic operation, and the irrigation was in some respects basic, there was evidence of mulch and, in some cases, fertiliser. The scale of this offending puts the starting point between five and six years imprisonment.
[25] When the possession of firearms is taken into account as an aggravating feature, the sentence, before consideration of mitigating features, would be at least five and a half years imprisonment.

[26] We recognise that the maximum sentence for cultivation is eight years imprisonment while the maximum sentence for conspiracy to supply is seven years imprisonment. We do not see this as significant, particularly in light of the executed nature of the conspiracy and the substantive offences which the various offenders committed. Given the latter point, the total sentences to which the various offenders were theoretically liable leaves plenty of head-room for the starting point sentence which we see as appropriate.

The starting points for second tier offenders

[27] The starting point identified by Panckhurst J for the second tier offenders was four years imprisonment save in respect of Messrs Keefe and Turner.
[28] Each of the second tier respondents was directly implicated in only a small proportion of the total sales made. This consideration would appear to have weighed with Panckhurst J who reached his four year starting point by adding in the other aggravating features.
[29] This approach was generous to the offenders. Although each of the offenders was directly responsible for only a limited proportion of the total turnover, they were all patched members of the gang and all well aware of the roles which they were playing in organised criminal activity. A starting point of up to five years would have been sustainable.
[30] In the submissions that were made to Panckhurst J, counsel then appearing for the Crown suggested that the second tier offenders warranted starting point sentences of between four and five years. This reference was seized upon in this Court by counsel for the respondents who maintained that it was not appropriate, on a Solicitor-General’s appeal, for the Solicitor-General to seek to challenge a sentence based upon a starting point which was within the range identified by Crown counsel at sentencing. Ms Farish for the Solicitor-General, however, was able to persuade us that the expression "starting point" when used by the Crown prosecutor at sentencing was not used in the sense which we have specified in [5] above, but rather did not allow for aggravating features.
[31] On the other hand, counsel for the respondents were on stronger ground when they reminded us that the sentencing structure adopted by Panckhurst J resulted in cumulative sentences being imposed - primarily in relation to Arms Act charges. There is a sense in which those sentences reflected the gang context and the associated potential for violence. Care is thus required to ensure that those factors are not double counted.

The discount for pleas

[32] In most cases, Panckhurst J gave a 25% discount for those who pleaded ahead of trial and no discount to those who did not plead until the case started.
[33] In the cases of Shane Te Whata, Wayne Pohutuhutu and Martin Reuben, particular problems have arisen in relation as to way in which the discounts were applied. We will deal with these particular problems when we come to deal with their particular circumstances later. At this point, we will confine our remarks to the more general attack mounted by Ms Farish on the Judge’s approach.
[34] We accept that a 25% discount for a plea of guilty made shortly (ie within a matter of weeks) before trial is generous. The primary complaint of Ms Farish is that it was too generous.
[35] Counsel for a number of the offenders noted that Panckhurst J had, in August 2004, allowed s 347 applications in relation to a proposed count in the indictment alleging participating in an organised criminal group. They maintained that it was not fair and reasonable to expect their clients to plead guilty to the charge alleging a conspiracy to sell cannabis until the fate of the count alleging participation in an organised criminal group was known. To this, Ms Farish responded with the telling point that one of the respondents, Mr Pohutuhutu, had in fact pleaded guilty to the charge of conspiracy to sell cannabis while still facing the participation in an organised criminal group count. On this aspect of the argument we agree with Ms Farish.
[36] The difficulty with the Solicitor-General’s argument rests on pragmatic considerations rather than on any point of principle. Panckhurst J was faced with the unenviable task of conducting a lengthy trial with a large number of defendants. It is clear from the material put to us that there was an element of case management in relation to the proceedings with the Judge not expecting a substantial number of pleas of guilty until the position over the participation in an organised group count had been resolved. When that had been resolved, he made it clear to the continuing defendants that a substantial discount would be available for pleas of guilty. Having taken that approach he obviously had to provide such discounts where there were pleas. Given the particular circumstances, we are bound to defer to his appreciation of what was required in the circumstances of the case as whole.

The individual sentences

Lisa Howie

[37] Ms Howie pleaded guilty on the first morning of the trial to the main count of conspiracy to sell cannabis and to a representative charge of selling cannabis. She was found guilty by the jury on two other charges of selling cannabis and a further charge of possessing ammunition.
[38] At the time of sentencing she was 27 years of age. Her only previous convictions were in 2002 for possession of cannabis and possession of a weapon. She has two children aged six and seven. For some ten years she had been in a relationship with Mr Wiringi. That relationship ended in mid-August 2003, towards the end of the period covered by the charges. At this point Mr Wiringi left the South Island. Ms Howie could not sensibly claim to have acted under duress from Mr Wiringi because, after his departure from the scene, she continued to run the drug dealing operation until final police intervention in early September. On the other hand, there was an evidential basis for the submission from Ms Howie’s counsel that she was a "battered woman". At the termination of her relationship with Mr Wiringi, Mr Wiringi severely beat her with the result that Ms Howie was eventually hospitalised. The Judge, who was well-placed to assess the significance of all of this, concluded that Ms Howie:

... [H]ad been under the influence of Mr Wiringi for a period of years, including the months that are captured by the present conspiracy charge. ...

[39] The key passage in the Judge’s sentencing remarks is as follows:

[63] In terms of the levels I have already spoken about you are undoubtedly in the first level. You and he were the major offenders. That indicates that in your case a starting-point of sentencing of four years and probably more is well-justified. In my view you can get but little credit for your plea because it was entered I think deliberately at the latest possible moment. However I will moderate the sentence in your case on account of the three reasons ... . First of all you have an almost clean record and that places you apart from the others I have sentenced to date. I am also influenced by what might be termed humanitarian grounds. I am concerned for your sons, not only because you are about to go to prison but because Mr Wiringi is already there and is going to be there for an extended time. He is their father. I also make some allowance for the circumstances that I believe you were influenced in this offending by him, although once your were in it, as I say, you were an enthusiastic participant.
[64] After reflecting long and hard about the lead sentence I impose in your case is one of three years and nine months. But for the factors I have just mentioned, there would have been a much greater margin between you and those on the second level.
[65] With reference to the sales, the substantive charges involving the three different individuals, you are sentenced to six months as you are in relation to the charge of possession of ammunition at Kerrs Road. Those four terms are concurrent with themselves but the six months is cumulative upon the three years and nine months, so at the end of the day the sentence is four years and three months. That, you should recognise, is a lenient response compared to the sentences received by some of the men.

[40] Ms Farish challenged the apparent weight given to Ms Howie’s domestic arrangements.
[41] Counsel rightly pointed out that the courts have tended not to make any substantial allowance for the personal circumstances (including the absence of previous convictions). For instance, this Court said in Terewi at [13]:

As with any drug offending for the purpose of profit making, the personal circumstances of the offender his activities fall within Categories 2 and 3 are usually not to be given much significance in the sentencing process. The fundamental requirement is that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.

Further, Ms Howie was not the only offender who had domestic responsibilities because one of the other respondents, Douglas Rowe, had the primary care of a young daughter. There was something of a contrast between the tenor of the Judge’s sentencing remarks in relation to Ms Howie and what he said in relation to Mr Rowe:

I have read this morning, Mr Rowe, the material that is relevant to that situation. You have been closely involved in caring for your daughter and she has actually made good progress in recent times while you have had that role. It bothers me, frankly, to have to sentence somebody in your situation for drug offending when there is a child who becomes an innocent victim of it. But there is nothing that can be done. If you become involved in drug dealing, then the sentence is to be imposed and the fact that she is a victim as well is something which I cannot avoid.

[42] A case which we suspect may have influenced the Judge is R v Howard CA315/99 2 December 1999, a decision of this Court in which the Judge himself participated. The appellant had been sentenced to two and a half years imprisonment on a charge of conspiracy to supply cannabis. This Court was satisfied that the sentence of two and a half years imprisonment, following a guilty plea, was appropriate. But the sentence was reduced to 18 months imprisonment essentially because the appellant had acted under the domination of her partner who was a gang member. The discount given by this Court in Howard for the domination factor was therefore around 40% although it is right to add that the circumstances of the appellant in Howard were more meritorious than those of Ms Howie, particularly given that Ms Howie continued to deal in cannabis after Mr Wiringi left the scene.
[43] In the present circumstances, the most that the Judge could fairly have allowed in relation to the mitigating circumstances which he identified (of which only the domination factor is material) would have been 25%.
[44] Where does that leave the application for leave to appeal by the Solicitor-General in relation to Ms Howie?
[45] If we take a starting point of six years and discount it by 25% to reflect the domination factor, that leaves an appropriate sentence of four years and six months (54 months) for the conspiracy count as opposed to the three years nine months (ie 45 months) actually imposed.
[46] The discrepancy between the sentence imposed and what we consider ought to have been imposed is not inconsequential but is perhaps not of a magnitude which demands intervention on a Solicitor-General’s application for leave to appeal. The waters are further muddied by the cumulative sentence imposed by the Judge in relation to the ammunition charge which took the effective sentence to four years and three months imprisonment (ie 51 months).
[47] Against that background, although satisfied that the sentence imposed on Howie was unduly lenient, we are not persuaded that this was by a sufficient margin to warrant intervention on a Solicitor-General’s application. Accordingly the application for leave to appeal by the Solicitor-General in relation to Ms Howie is dismissed.

Rota Beattie

[48] Mr Beattie appeared for sentence on the cannabis conspiracy count, a count of offering to supply methamphetamine, three Arms Act charges and charges of possession of methamphetamine and ammunition as at the termination date of Operation Crusade. He had pleaded guilty to the last two charges and the conspiracy count and was found guilty by the jury on the other charges.
[49] The structure of the sentence imposed by the Judge on Mr Beattie was as follows:

(a) Three years for the cannabis conspiracy count (with the Judge starting at four years and allowing a 25% discount for the guilty plea).
(b) Concurrent sentences on the charges of offering to supply methamphetamine, possession of explosives at Burwood Road and possession of methamphetamine.
(c) In relation to the Arms Act charges, cumulative sentences of 18 months imprisonment.

So the total sentence imposed was four and half years.

[50] On a stand alone basis, the sentence imposed on the cannabis conspiracy count was too low. Based on a starting point of five years, we would have expected a sentence of three years nine months. We are doubtful, however, whether the nine month discrepancy between what we think should have been, and what was, imposed is enough to warrant allowing a Solicitor-General’ appeal. In any event, as with Ms Howie, the waters are muddied by the cumulative sentences imposed on the Arms Act charges which in part anyway could be regarded as symptoms of the gang context in which the offending occurred - the primary aggravating feature in relation to cannabis conspiracy. So leave to appeal is declined.

Mark Waitere

[51] Mr Waitere’s circumstances were broadly similar to those of Mr Beattie and he was dealt with by Panckhurst J on a similar basis. The comments which we have made in relation to Mr Beattie therefore apply in relation to Mr Waitere and leave to appeal is declined.

Leon Turner

[52] Mr Turner was sentenced on the conspiracy count to which he pleaded guilty and an Arms Act charge on which he was found guilty by the jury. His involvement in the offending was, in a sense, somewhat less than that of the other offenders; this for the not particularly meritorious reason that he was in prison for some of the time covered by the conspiracy charge. He was then released from home detention and went to live in Ms Howie’s home where, in the aftermath of Mr Wiringi’s departure, he assisted Ms Howie in relation to her role in the conspiracy. He was therefore offending while on home detention and in a way which went beyond his selling duties at Wilsons Road.
[53] The Judge plainly adopted a slightly lower starting point (to reflect the limited duration of Mr Turner’s participation in the conspiracy) but did not allow anything for the aggravating feature that he continued to offend while on home detention and essentially as Ms Howie’s assistant. The result was that he was sentenced to two years nine months on the conspiracy count and a cumulative sentence of six months on the Arms Act charge. The effective sentence was therefore three years three months.
[54] Again we see this sentence as too lenient but (and this is perhaps more marginal than in the other second level cases) by an insufficiently wide margin to warrant interference on a Solicitor-General’s appeal. Again we decline leave to appeal.

Whata Keefe

[55] Mr Keefe was found guilty on the conspiracy count and three Arms Act charges.
[56] The Judge plainly took the view that Mr Keefe played a role in the offending which was somewhat less than that of the other second tier offenders because, in the absence of any discount for a guilty plea (as Keefe denied the conspiracy count) the Judge imposed a sentence of two years imprisonment. He was also sentenced to 18 months on a cumulative basis in relation to the Arms Act charges.
[57] There was no particular challenge by Ms Farish to the starting point adopted in relation to Mr Keefe, save to the extent that her more general submissions as to the appropriate starting point apply to him. In other words, she did not seek to argue that the distinction which the Judge drew between Mr Keefe and the other second tier offenders was too favourable to him. That being so, our conclusions in relation to those offenders mean that the Solicitor-General’s application for leave to appeal in relation to Mr Keefe must be and is dismissed.

Douglas Rowe

[58] Mr Rowe pleaded guilty to the conspiracy count and one count of selling cannabis. He was found guilty by the jury in relation to three offences of offering to supply methamphetamine, a charge of possession of psilocybin and three Arms Act charges.
[59] Consistently with the general approach he adopted, the Judge imposed three years imprisonment on the conspiracy count and six months imprisonment concurrent on the other drugs charges. Mr Rowe was, however, sentenced on a cumulative basis to three months imprisonment in relation to the psilocybin charge and 18 months on the Arms Act charges. So the total sentence imposed was four years nine months.
[60] Essentially for the reasons already given in relation to the other second level offenders, we are satisfied that the Solicitor-General’s application for leave to appeal against the sentence here must be dismissed.

Shane Te Whata

[61] In relation to Mr Te Whata, Panckhurst J said this:

[33] You were convicted by the jury on count 1, the conspiracy to sell cannabis. You pleaded guilty in August to one charge of selling cannabis on 23 May and to offering methamphetamine that same day to an undercover constable. By verdict you were found guilty of the three Arms Act charges which are common to most of the prisoners.
[34] I note you are 33 years of age. You have some work history which marks you out to a degree from many of your co-offenders. You also have a lesser list of previous convictions and I note you have only previously received one sentence of imprisonment but that was a very significant sentence in 1998 for attempted murder. While in prison serving that sentence you became a member of the Mob and apparently have remained so since then. To my mind there is nothing else in your pre-sentence report or arising from the submissions made on your behalf which makes your case different or exceptional by comparison to that of the others.
[35] In relation to the conspiracy, you are sentenced to three and a half years. In relation to the substantive dealing offence and offering to supply methamphetamine to six months but those terms are made concurrent. However the terms of six months and twelve months in relation to the Arms Act charges respectively are cumulatively and that produces a total term of five years imprisonment.

[62] Mr Te Whata in fact pleaded guilty to the conspiracy count on 13 August 2004. So the Judge’s assertion that he had been convicted by the jury on that count was wrong. We are not sure what effect this error had on the ultimate sentence. In part this is because we are not sure why the Judge picked a sentence of three and a half years as being appropriate for the conspiracy count. On the logic of the Judge’s overall sentencing approach we would have expected Mr Te Whata to have been sentenced to four years imprisonment on this count had he not pleaded guilty.
[63] In the circumstances we propose to reduce the sentence imposed on the conspiracy count to three years imprisonment. The Solicitor-General’s application for leave to appeal is dismissed.

Mark Reuben

[64] The Judge’s sentencing remarks in relation to Mr Reuben were as follows:

[93] You are for sentence in relation to the conspiracy to which you pleaded guilty at the end of the Crown case. Quite why you saw the light at that point I don’t know. It’s a pity you didn’t do it a little earlier because it would have enabled me to give greater recognition to your plea.
[94] You were found guilty of offering to supply methamphetamine and on the three Arms Act charges, the April and September ones, relevant to Wilsons Road. You are 42 years of age. You too have an extensive criminal past but like a number of the others you have only received odd sentences of imprisonment over the years, the longest of them 15 months which is many years ago now, 20 years, in 1984. Your convictions I have got not doubt are a reflection of the time you have been involved in the Mongrel Mob since your late teens, although at that stage with a different chapter of a Christchurch gang.
[95] The best thing I can say for you is that like some of the others I have sentenced this morning, you have worked in recent times. To your credit you even worked throughout the trial by working at night and then coming back here at 10 o’clock in the morning. I have from your employer a letter which speaks well of you in relation to that job.
[96] Ms Bulger has made a number of submissions on your behalf and in particular, I think, drawn attention to a summary which is contained in the pre-sentence report. What it says is this:

"The current matters aside, Martin Reuben’s rate of offending has been slowly abating in the last few years. How much this rate of reduction is due to his increasing maturity, and his family commitments remain moot. But what is blindingly obvious is that Martin Reuben has really settled down in the past year, while on bail that is, and started to carve out a gang free and productive life for himself. The challenge will be for him to maintain this progress when his freedom is restored."

I agree.
[97] You are sentenced, Mr Reuben, to three years for the conspiracy. That is perhaps a bit benevolent given the lateness of your plea, but is the sentence nonetheless, to six months concurrent in relation to the methamphetamine offer, and then to six months and one year in relation to the Arms Act matters producing a total sentence in your case of four and a half years.

[65] The logic of the Judge’s overall sentencing approach might be thought to have dictated a sentence of four years imprisonment on the conspiracy count; this based on a starting point of four years with no mitigating factors of any moment. We can see no basis upon which any discount could have been allowed for a plea which was not entered until the conclusion of the Crown case.
[66] In respect of Mr Reuben, therefore, we propose to allow the Solicitor-General’s application for leave to appeal and the appeal and to increase the sentence imposed in relation to the conspiracy count.
[67] A remorselessly logical approach would suggest that the sentence be increased to four years imprisonment. We are prepared to take a more lenient approach, as we think it possible that the Judge may have allowed something by way of mitigation (although he did not spell this out) for the matters referred to in [95] and [96] of his sentencing remarks. In those circumstances, the sentence is increased to three years six months imprisonment with the result that the total sentence imposed upon Mr Reuben is increased to five years.

Wayne Pohutuhutu

[68] In the case of Mr Pohutuhutu, the Judge’s sentencing remarks were as follows:

[79] You are for sentence upon three charges, the conspiracy to which you pleaded in June and then the three Arms Act charges, the April one and the two September ones, upon which you were convicted by the jury.
[80] You are aged 39 years, almost 40 I see. You have an unbroken history, almost 25 years, as a member of the Mongrel Mob and there are no signs of any intention to distance yourself. Perhaps in keeping with that you have a very significant list of previous convictions for a range of offending including dishonesty and violence but you have only received odd terms of imprisonment, the longest single sentence that I saw in your record was one in 2001 of nine months, to which term you had been sentenced on a previous occasion as well.
[81] You are entitled to credit for your plea of guilty to the conspiracy which was entered a few months before the trial. Other than that your sentencing is really much the same as several others. You are sentenced to three years with reference to the conspiracy, six months with reference to the April ammunition charge and one year with reference to the September Arms Act charges. That is a total sentence of four and a half years and you too may stand down.

[69] The difficulty in the Judge’s approach in relation to Mr Pohutuhutu is that his plea of guilty to the count of conspiracy was far more meritorious than the pleas of guilty in other cases for which the Judge allowed a discount of 25%. Mr Pohutuhutu pleaded guilty months before trial and prior to the Judge’s ruling on the disputed count alleging participation in a criminal organisation. It is incongruous, therefore, that he should receive only the same discount for his plea of guilty as the other respondents who pleaded guilty not long before trial.
[70] In those circumstances, we think that we must reduce his sentence to give a tangible recognition to his earlier plea.
[71] In those circumstances, his appeal against sentence in relation to the conspiracy count is allowed and his sentence is reduced to two years six months imprisonment. The Solicitor-General’s application for leave to appeal is dismissed.

Result

[72] Accordingly:

(a) The applications for leave to appeal by the Solicitor-General are all dismissed saving the case of Mr Reuben, in respect of whom leave to appeal is granted, the appeal is allowed, and the sentence on the conspiracy count increased to three years six months imprisonment.
(b) The appeals against sentence by Messrs Te Whata and Pohutuhutu are allowed with the sentences on the conspiracy count in the case of Mr Te Whata reduced to three years imprisonment and in the case of Mr Pohutuhutu to two and a half years imprisonment.

Solicitors:
Crown Solicitor, Christchurch
Layburn Hodgins, Christchurch for Reuben

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URL: http://www.nzlii.org/nz/cases/NZCA/2005/64.html

[1]	We are required to review sentences imposed by Panckhurst J on nine participants in a major drug dealing operation run from the Mongrel Mob headquarters in Wilsons Road, Christchurch. The case arose out of what the police styled "Operation Crusade". In all cases, there is an application by Solicitor-General for leave to appeal against sentence. Two of the nine respondents to the Solicitor-General’s applications have also appealed against sentence. For ease of reference we will generally refer to all nine simply as "the respondents".
[2]	The primary count which the respondents faced was a charge of conspiracy to sell cannabis from the Wilsons Road premises between 27 July 2002 and 3 September 2003. For the 12 months preceding the termination of Operation Crusade (ie on 3 September 2003) the turnover on an annual basis would appear to have been in the order of, and perhaps more than, $180,000 (ie around $500 a day). The prime movers in the offending were Joseph Wiringi (who for most of the relevant period was the president of the local chapter of the Mongrel Mob) and Lisa Howie (who for most of the relevant period was Mr Wiringi’s de facto partner). The other parties to the present appeals were involved primarily in selling cannabis from Wilsons Road. In the course of his sentencing remarks Panckhurst J referred to Mr Wiringi and Ms Howie as being first tier or first level offenders and the others as second tier or second level offenders. We adopt the same terminology.
[3]	Some of the respondents were also convicted of other offences involving drugs other than cannabis and firearms, ammunition and explosives. As well two, Mr Wiringi and Peter Gilbert, had previously been sentenced to substantial terms of imprisonment for violent offending which was loosely related to the conspiracy. Another, Rota Beattie, at the time of sentencing, was serving a short sentence of imprisonment imposed for drug dealing offending committed while he was on bail in relation to the Operation Crusade charges.

[4]	R v Terewi [1999] 3 NZLR 62 (CA) established "four years or more" as the starting point for the highest category of offending involving Class C drug cultivation. That category was described in terms of "large-scale commercial growing, usually with a considerable degree of sophistication and organisation." Terewi provides guidance in cases of cannabis dealing as well as cannabis cultivation, see R v Keefe CA275/02, 28 November 2002).
[5]	The expression "starting point" can be a little slippery. For present purposes we use it as referring to a sentence appropriate to the culpability of the offending in relation to all factors other than those which are personal to the offender. This is the sense in which Panckhurst J used the term in his sentencing remarks.
[6]	Relevant to the starting point assessments in this case are the following factors:

[7]	The scale of the drug dealing activities puts the offending, as a whole, into the highest category of offending for the purposes of Terewi. This consideration is most obviously relevant to Mr Wiringi and Ms Howie whose culpability can be fairly assessed by reference to the totality of the sales. It is arguably not quite so relevant to the second tier respondents who, individually, would each have been responsible (in a direct sense) for only a limited proportion of the sales which were made.
[8]	The brazen nature of the offending is remarkable. The respondents must have known that their operation had come to the attention of the police. On a number of occasions there were police raids on the Wilsons Road premises. One of the respondents had detected police monitoring equipment in his car. Simple common sense would have told the respondents that their operations were being monitored. Their willingness to execute the conspiracy shows that they were not deterred by what they saw as the sentences likely to be imposed when the police eventually shut the operation down.
[9]	The gang context is also of relevance. The firearms, ammunition and explosives which were located signify the risk of violence which this sort of offending generates. Indeed, the offences of violence for which Messrs Wiringi and Gilbert had been earlier convicted arose out of a patch war with the Black Power gang associated with drug dealing activities. The offending as a whole was facilitated by the gang environment, particularly the availability of a gang headquarters which was manned 24 hours a day and the physical security it provided. All of this is plainly relevant to culpability, see R v Toman CA30/04, 24 June 2004.
[10]	Counsel for a number of the respondents submitted that the conspiracy was unsophisticated. There is some truth in this contention. It is obviously not particularly easy to co-ordinate over a sustained period the activities of patched Mongrel Mob members and there is a sense in which the whole operation was a ramshackle affair. On the other hand the gang context meant that sophistication was not required. Despite the asserted lack of sophistication, the conspirators collectively were able to move a good deal of cannabis.
[11]	The most that can be said by way of mitigation as to the cannabis conspiracy is that while the volume of sales was high, the number of people involved presumably meant that the profits had to be split many ways and there was no evidence that any of the respondents built up substantial assets.

[12]	Panckhurst J saw the primary offence (and the one which warranted the lead sentence) as being the conspiracy to sell cannabis. He imposed concurrent sentences in relation to some of the other charges and cumulative sentences in relation to the rest. There is no challenge to his general approach and in particular no challenge to the decisions whether to impose concurrent or cumulative sentences on the other charges or as to the length of those sentences. The offending for which cumulative sentences were imposed mainly involved Arms Act offences in respect of firearms and ammunition.
[13]	The actual sentencing decisions in each case were therefore a factor of:
(a)	The starting point chosen by the Judge;
(b)	The allowance for mitigating factors (in most cases pleas of guilty); and

[15]	In the case of Mr Wiringi, the dominating consideration on sentencing was the application of the totality principle given that he had been sentenced in August 2004 to nine years imprisonment. Nothing that was said in relation to Mr Wiringi gives any real clue as to the Judge’s assessment of a starting point.
[16]	In the case of Ms Howie, the Judge said that "a starting point of sentencing of four years and probably more is well justified".
[17]	The Judge saw four years as the appropriate starting point sentence for the second tier offenders other than Leon Turner and Whata Keefe whose culpability he regarded as being more limited.

[18]	The Judge identified in the case of Ms Howie some mitigating factors which were particular to her but otherwise pleas of guilty were the only mitigating factor for which he made express allowance.
[19]	Broadly speaking the Judge allowed 25% for guilty pleas providing they were entered prior to the week during which the trial commenced. With one exception, he allowed no discounts for later pleas.

[21]	Given the lengthy sentences which Messrs Wiringi and Gilbert are serving for other offending and the impact of the totality principle, the Solicitor-General did not persist with challenges to the sentences imposed on them.
[22]	In succeeding sections of this judgment we will deal with the appeals by reference to the following headings:

[23]	As is apparent from what we have already said, Panckhurst J did not identify what he considered to be the appropriate starting point for the first tier offenders (Mr Wiringi and Ms Howie). All that can be said is that it must have been appreciably more than four years.
[24]	For the Crown, Ms Farish submitted that a starting point "in the vicinity of six years imprisonment" is appropriate having regard to the scale of the offending and the organised gang context. We agree. Such a starting point recognises the annual turnover of the drug dealing conspiracy, its brazen nature and the organised gang context.
[25]	In R v Mark CA 470/03 29 June 2004 this Court was required to consider whether a starting point of four years in respect of category three cultivation was manifestly excessive. The Court observed at [23]-[25] per Paterson J:

[27]	The starting point identified by Panckhurst J for the second tier offenders was four years imprisonment save in respect of Messrs Keefe and Turner.
[28]	Each of the second tier respondents was directly implicated in only a small proportion of the total sales made. This consideration would appear to have weighed with Panckhurst J who reached his four year starting point by adding in the other aggravating features.
[29]	This approach was generous to the offenders. Although each of the offenders was directly responsible for only a limited proportion of the total turnover, they were all patched members of the gang and all well aware of the roles which they were playing in organised criminal activity. A starting point of up to five years would have been sustainable.
[30]	In the submissions that were made to Panckhurst J, counsel then appearing for the Crown suggested that the second tier offenders warranted starting point sentences of between four and five years. This reference was seized upon in this Court by counsel for the respondents who maintained that it was not appropriate, on a Solicitor-General’s appeal, for the Solicitor-General to seek to challenge a sentence based upon a starting point which was within the range identified by Crown counsel at sentencing. Ms Farish for the Solicitor-General, however, was able to persuade us that the expression "starting point" when used by the Crown prosecutor at sentencing was not used in the sense which we have specified in [5] above, but rather did not allow for aggravating features.
[31]	On the other hand, counsel for the respondents were on stronger ground when they reminded us that the sentencing structure adopted by Panckhurst J resulted in cumulative sentences being imposed - primarily in relation to Arms Act charges. There is a sense in which those sentences reflected the gang context and the associated potential for violence. Care is thus required to ensure that those factors are not double counted.

[32]	In most cases, Panckhurst J gave a 25% discount for those who pleaded ahead of trial and no discount to those who did not plead until the case started.
[33]	In the cases of Shane Te Whata, Wayne Pohutuhutu and Martin Reuben, particular problems have arisen in relation as to way in which the discounts were applied. We will deal with these particular problems when we come to deal with their particular circumstances later. At this point, we will confine our remarks to the more general attack mounted by Ms Farish on the Judge’s approach.
[34]	We accept that a 25% discount for a plea of guilty made shortly (ie within a matter of weeks) before trial is generous. The primary complaint of Ms Farish is that it was too generous.
[35]	Counsel for a number of the offenders noted that Panckhurst J had, in August 2004, allowed s 347 applications in relation to a proposed count in the indictment alleging participating in an organised criminal group. They maintained that it was not fair and reasonable to expect their clients to plead guilty to the charge alleging a conspiracy to sell cannabis until the fate of the count alleging participation in an organised criminal group was known. To this, Ms Farish responded with the telling point that one of the respondents, Mr Pohutuhutu, had in fact pleaded guilty to the charge of conspiracy to sell cannabis while still facing the participation in an organised criminal group count. On this aspect of the argument we agree with Ms Farish.
[36]	The difficulty with the Solicitor-General’s argument rests on pragmatic considerations rather than on any point of principle. Panckhurst J was faced with the unenviable task of conducting a lengthy trial with a large number of defendants. It is clear from the material put to us that there was an element of case management in relation to the proceedings with the Judge not expecting a substantial number of pleas of guilty until the position over the participation in an organised group count had been resolved. When that had been resolved, he made it clear to the continuing defendants that a substantial discount would be available for pleas of guilty. Having taken that approach he obviously had to provide such discounts where there were pleas. Given the particular circumstances, we are bound to defer to his appreciation of what was required in the circumstances of the case as whole.

[40]	Ms Farish challenged the apparent weight given to Ms Howie’s domestic arrangements.
[41]	Counsel rightly pointed out that the courts have tended not to make any substantial allowance for the personal circumstances (including the absence of previous convictions). For instance, this Court said in Terewi at [13]:

[42]	A case which we suspect may have influenced the Judge is R v Howard CA315/99 2 December 1999, a decision of this Court in which the Judge himself participated. The appellant had been sentenced to two and a half years imprisonment on a charge of conspiracy to supply cannabis. This Court was satisfied that the sentence of two and a half years imprisonment, following a guilty plea, was appropriate. But the sentence was reduced to 18 months imprisonment essentially because the appellant had acted under the domination of her partner who was a gang member. The discount given by this Court in Howard for the domination factor was therefore around 40% although it is right to add that the circumstances of the appellant in Howard were more meritorious than those of Ms Howie, particularly given that Ms Howie continued to deal in cannabis after Mr Wiringi left the scene.
[43]	In the present circumstances, the most that the Judge could fairly have allowed in relation to the mitigating circumstances which he identified (of which only the domination factor is material) would have been 25%.
[44]	Where does that leave the application for leave to appeal by the Solicitor-General in relation to Ms Howie?
[45]	If we take a starting point of six years and discount it by 25% to reflect the domination factor, that leaves an appropriate sentence of four years and six months (54 months) for the conspiracy count as opposed to the three years nine months (ie 45 months) actually imposed.
[46]	The discrepancy between the sentence imposed and what we consider ought to have been imposed is not inconsequential but is perhaps not of a magnitude which demands intervention on a Solicitor-General’s application for leave to appeal. The waters are further muddied by the cumulative sentence imposed by the Judge in relation to the ammunition charge which took the effective sentence to four years and three months imprisonment (ie 51 months).
[47]	Against that background, although satisfied that the sentence imposed on Howie was unduly lenient, we are not persuaded that this was by a sufficient margin to warrant intervention on a Solicitor-General’s application. Accordingly the application for leave to appeal by the Solicitor-General in relation to Ms Howie is dismissed.

[48]	Mr Beattie appeared for sentence on the cannabis conspiracy count, a count of offering to supply methamphetamine, three Arms Act charges and charges of possession of methamphetamine and ammunition as at the termination date of Operation Crusade. He had pleaded guilty to the last two charges and the conspiracy count and was found guilty by the jury on the other charges.
[49]	The structure of the sentence imposed by the Judge on Mr Beattie was as follows:

[52]	Mr Turner was sentenced on the conspiracy count to which he pleaded guilty and an Arms Act charge on which he was found guilty by the jury. His involvement in the offending was, in a sense, somewhat less than that of the other offenders; this for the not particularly meritorious reason that he was in prison for some of the time covered by the conspiracy charge. He was then released from home detention and went to live in Ms Howie’s home where, in the aftermath of Mr Wiringi’s departure, he assisted Ms Howie in relation to her role in the conspiracy. He was therefore offending while on home detention and in a way which went beyond his selling duties at Wilsons Road.
[53]	The Judge plainly adopted a slightly lower starting point (to reflect the limited duration of Mr Turner’s participation in the conspiracy) but did not allow anything for the aggravating feature that he continued to offend while on home detention and essentially as Ms Howie’s assistant. The result was that he was sentenced to two years nine months on the conspiracy count and a cumulative sentence of six months on the Arms Act charge. The effective sentence was therefore three years three months.
[54]	Again we see this sentence as too lenient but (and this is perhaps more marginal than in the other second level cases) by an insufficiently wide margin to warrant interference on a Solicitor-General’s appeal. Again we decline leave to appeal.

[55]	Mr Keefe was found guilty on the conspiracy count and three Arms Act charges.
[56]	The Judge plainly took the view that Mr Keefe played a role in the offending which was somewhat less than that of the other second tier offenders because, in the absence of any discount for a guilty plea (as Keefe denied the conspiracy count) the Judge imposed a sentence of two years imprisonment. He was also sentenced to 18 months on a cumulative basis in relation to the Arms Act charges.
[57]	There was no particular challenge by Ms Farish to the starting point adopted in relation to Mr Keefe, save to the extent that her more general submissions as to the appropriate starting point apply to him. In other words, she did not seek to argue that the distinction which the Judge drew between Mr Keefe and the other second tier offenders was too favourable to him. That being so, our conclusions in relation to those offenders mean that the Solicitor-General’s application for leave to appeal in relation to Mr Keefe must be and is dismissed.

[58]	Mr Rowe pleaded guilty to the conspiracy count and one count of selling cannabis. He was found guilty by the jury in relation to three offences of offering to supply methamphetamine, a charge of possession of psilocybin and three Arms Act charges.
[59]	Consistently with the general approach he adopted, the Judge imposed three years imprisonment on the conspiracy count and six months imprisonment concurrent on the other drugs charges. Mr Rowe was, however, sentenced on a cumulative basis to three months imprisonment in relation to the psilocybin charge and 18 months on the Arms Act charges. So the total sentence imposed was four years nine months.
[60]	Essentially for the reasons already given in relation to the other second level offenders, we are satisfied that the Solicitor-General’s application for leave to appeal against the sentence here must be dismissed.

[65]	The logic of the Judge’s overall sentencing approach might be thought to have dictated a sentence of four years imprisonment on the conspiracy count; this based on a starting point of four years with no mitigating factors of any moment. We can see no basis upon which any discount could have been allowed for a plea which was not entered until the conclusion of the Crown case.
[66]	In respect of Mr Reuben, therefore, we propose to allow the Solicitor-General’s application for leave to appeal and the appeal and to increase the sentence imposed in relation to the conspiracy count.
[67]	A remorselessly logical approach would suggest that the sentence be increased to four years imprisonment. We are prepared to take a more lenient approach, as we think it possible that the Judge may have allowed something by way of mitigation (although he did not spell this out) for the matters referred to in [95] and [96] of his sentencing remarks. In those circumstances, the sentence is increased to three years six months imprisonment with the result that the total sentence imposed upon Mr Reuben is increased to five years.

[69]	The difficulty in the Judge’s approach in relation to Mr Pohutuhutu is that his plea of guilty to the count of conspiracy was far more meritorious than the pleas of guilty in other cases for which the Judge allowed a discount of 25%. Mr Pohutuhutu pleaded guilty months before trial and prior to the Judge’s ruling on the disputed count alleging participation in a criminal organisation. It is incongruous, therefore, that he should receive only the same discount for his plea of guilty as the other respondents who pleaded guilty not long before trial.
[70]	In those circumstances, we think that we must reduce his sentence to give a tangible recognition to his earlier plea.
[71]	In those circumstances, his appeal against sentence in relation to the conspiracy count is allowed and his sentence is reduced to two years six months imprisonment. The Solicitor-General’s application for leave to appeal is dismissed.