Nathan v R [2011] NZCA 284 (22 June 2011)

Last Updated: 29 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA627/2010 [2011] NZCA 284

BETWEEN DEAN WAKA NATHAN Appellant

AND THE QUEEN Respondent

Hearing: 13 June 2011

Counsel: T W Fournier for Appellant K A L Bicknell for Respondent

Judgment: 22 June 2011 at 9.30 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentences are quashed, and a sentence of 17 years imprisonment is imposed on the supply charge, with a concurrent sentence of eight years imprisonment on the conspiracy charge.

100. A minimum period of imprisonment of nine years is imposed on the supply charge.

____________________________________________________________________

REASONS OF THE COURT
(Given by Miller J)

Introduction

[1] Mr Nathan appeals against his sentence of 20 years imprisonment, with a minimum non-parole period of nine years, for supplying methamphetamine and conspiracy to supply methamphetamine.

The narrative

[2] Mr Nathan is, and was at the time of the offending, serving a sentence of life imprisonment, imposed in 2001 for murder. When sentenced for that crime he was a member of the Highway 61 Gang. He is said to have severed his connection with the gang, and he evidently had some capital as a result of the sale of a property owned by the gang. It seems to have occurred to him while in prison that he ought to put the money to work. His decision to do so was motivated in part by desire to help his family, who are under financial stress.
[3] Using the contacts that he had made in prison and connections outside it, Mr Nathan set up a methamphetamine dealing operation in which he organised purchase of substantial quantities of the drug in Auckland and had it brought to Christchurch for distribution. There were at least eight such transactions, each involving eight ounces (227 grams) of methamphetamine, between October 2008 and January 2009, when he was apprehended following a surveillance operation. All but one of them involved a Mr Lu as the Auckland wholesaler. The exception, the last, involved a Mr Thorne in the same role. The courier in all cases was a Ms Hurring.
[4] The conspiracy charge immediately preceded the supply involving Mr Thorne. Mr Nathan planned to buy $130,000 worth of methamphetamine from Mr Lu, but Mr Lu believed he was under surveillance so the transaction did not proceed. Instead, Mr Nathan organised the final purchase of 39 grams from Mr Thorne, using some of the money that he had available to fund the purchase from Mr Lu. Mr Nathan had wanted this transaction to involve four ounces (112 grams) of methamphetamine but Mr Thorne was unable to supply that quantity.
[5] Had the conspiracy involving Mr Lu been completed instead of the Thorne transaction, the total amount of methamphetamine supplied would have been slightly in excess of 2 kg. As it was, the total supplied was 1.8 kg.
[6] Mr Nathan was charged on 5 February 2009. Guilty pleas were entered on 25 September 2009, shortly before depositions, which were scheduled for 5 October. He had been negotiating a guilty plea since early August 2009. A secondary charge involving a class B drug, cannabis oil, was withdrawn as part of that process, but the negotiations were directed primarily to the number of transactions and Mr Nathan’s role. On those issues the Crown did not budge. Accordingly, Mr Nathan entered his pleas and a disputed facts hearing was scheduled before Judge Moran. Through no fault of Mr Nathan’s it was not held until 30 July 2010. In the meantime, his co-offenders had been sentenced in the District Court at Christchurch.
[7] Two witnesses gave viva voce evidence at the disputed facts hearing, which took half a day. It appears that their evidence was largely uncontroversial and the hearing focused on the record. Mr Nathan did not give evidence.
[8] The Judge found that Mr Nathan was at the hub of the conspiracy and the supplies that preceded it. The pattern of his cellphone calls demonstrated that; he did most of the calling, and his were the personal relationships that brought the people involved together. He controlled the money, and it was moved on his instructions. Notwithstanding that Mr Lu was the wholesaler, Mr Nathan was “calling the shots”. As to the number of transactions, the Judge found that Ms Hurring made at least eight trips to Auckland, and there was abundant evidence that these trips involved drug dealing. He found that there were seven trips by air and one by road to purchase about eight ounces of methamphetamine each time. These factual conclusions were plainly available to the Judge. They are not in issue on appeal.

The co-offenders’ sentences

[9] Ms Hurring was sentenced by Judge Moran on 24 July 2009. The starting point adopted in her case for the supply charge was 10 years. Rather than arrive at a separate sentence for the conspiracy he increased the starting point to 12 years and reached concurrent end sentences of eight years on both charges.
[10] Ms Hurring appealed her sentence on the supply charge to this Court. The appeal was dismissed on 9 December 2009, the Court concluding that a longer starting point could have been taken for all of the offending. The Crown accepted that the Judge’s approach to sentence structure did not accord with R v Taueki, and the Court held that in this case, the conspiracy might be taken into account as an aggravating feature of the supply charge.[1] Although the supply sentence was upheld, the conspiracy sentence was reduced to six years having regard to the inchoate nature of the offence.
[11] Mr Lu was convicted at trial. On 29 June 2010 Judge Farish sentenced him to 12 years imprisonment on the supply charge and a concurrent sentence of seven years imprisonment for the conspiracy. That sentence was based on the seven transactions involving Ms Hurring in which he was involved. The starting point adopted was 14 years imprisonment. It does not appear that there was any uplift for the conspiracy. The end sentence was increased to 16 years for personal aggravating factors, then reduced to reflect an existing sentence that he was serving. The Judge imposed a minimum period of seven years imprisonment.
[12] Mr Lu appealed the sentence, alleging that there was no direct evidence of the extent of Mr Lu’s involvement and invoking Ms Hurring’s sentence to complain of disparity. The appeal was dismissed on 13 April 2011.[2]

Mr Nathan’s sentencing

[13] Mr Nathan was sentenced on 27 August 2010.
[14] The pre-sentence report described him as articulate and candid. He admitted his financial motivation and expressed regret about involving others. He has a long list of convictions, mostly relating to property and driving, spanning a 20 year period. There are several convictions related to cannabis, but few involving violence. The Judge also had before him a letter from Mr Nathan and an unsolicited letter from a senior Corrections officer describing him as extremely reliable, consistent, hardworking, trustworthy and responsible in his role as a Unit mess person and cleaner. Other references described him as a loyal family man.
[15] Notwithstanding what this Court had said when dealing with the identical charges in Ms Hurring’s appeal, Judge Moran decided to impose a cumulative sentence on the conspiracy charge subject to a totality overview. Relying on the quantity of some 65 ounces with a street value of more than $1.8M, and Mr Nathan’s central role, and the fact that the offences were organised from prison making covert use of cellphones, the Judge adopted a starting point of 18 years imprisonment. To that he added two years for the fact that Mr Nathan was already serving a life sentence and his personal background, presumably referring to his history of offending.
[16] Turning to the conspiracy charge, the Judge noted that the transaction would have involved ten ounces of methamphetamine and it came within “an ace of fruition”. Again, Mr Nathan was at the heart of it. The starting point of nine years was justified, but it was reduced to four years for totality. These sentences the Judge found consistent with those already imposed on Mr Lu and Ms Hurring. The total starting point thus reached was 24 years.
[17] Turning to the sole mitigating factor, the guilty pleas, the Judge found that the pleas were not entered at the first reasonable opportunity. It was true that Mr Nathan had been negotiating guilty pleas since early August 2009, but in R v Hessell this Court made it clear that the concept of first reasonable opportunity was not to be extended for plea bargaining.[3] The guilty pleas might attract at most a discount of 25 per cent. However, that required adjustment for the disputed fact hearing, which was entirely unmeritorious. The discount for the supply charge was reduced to 15 per cent.
[18] In the result, the sentence on the supply charge was 17 years imprisonment, and three years imprisonment was imposed cumulatively for the conspiracy.
[19] The Judge next recognised that the sentence could not be cumulative on the life sentence and it was appropriate that a minimum period be imposed on the supply charge. For dealing in methamphetamine at this level, parole after one-third of the sentence does not meet the sentencing objectives of punishment, deterrence, denunciation or protection of the community. The offending was especially serious in that it was committed from inside prison. The Judge noted that Mr Nathan would become eligible for parole under his life sentence on 9 August 2014. The sentencing objectives required no less than a further five year non-parole period. Accordingly, the supply charge earned a minimum sentence of imprisonment of nine years. It is common ground that the Judge erred in this calculation. Having regard to a period of pre-sentence detention, Mr Nathan’s minimum period of imprisonment under the life sentence expires nine months earlier, on 7 November 2013.

The appeal

[20] On appeal, Mr Fournier contends that the combined starting point of 24 years was far too high, principally as a result of an error in imposing a cumulative sentence for the conspiracy charge, which properly ought to have been treated as an aggravating feature of the supply. The starting point of 18 years was too high for the supply and conspiracy together, having regard to the authorities and the sentences imposed on Mr Lu and Ms Hurring. The discount for guilty pleas was also too low; an evaluative approach is required when deciding how much credit should be given for a guilty plea, remorse was demonstrated, and the discount should not have been reduced to 15 per cent having regard to the disputed facts hearing. Finally, the minimum period of imprisonment resulted from a calculation error; a minimum period of eight years would have sufficed for the Judge’s stated purpose of adding five years to Mr Nathan’s parole eligibility date.
[21] Ms Bicknell accepted that the approach taken by the Judge in constructing the sentence does not accord with R v Taueki[4]. She urged us, however, not to intervene, arguing that the total sentence fairly reflects the overall criminality of the offending and the offender.[5]

The length and structure of the sentence

[22] The appellate question is whether the end sentence was manifestly excessive, not whether the structure was orthodox.[6] But an unorthodox structure can result in a manifestly excessive sentence. We are satisfied that it did so in this case. The better course, which we now adopt, would have been to impose concurrent sentences, recognising that the offences were not only of a similar kind but also formed a closely connected series.

The starting point

[23] As noted, had the conspiracy been completed the total amount of methamphetamine involved would have been slightly more than 2 kg, placing the case well within band four of R v Fatu.[7] It is appropriate to rely on that quantity given that the conspiracy was very nearly completed. Comparable cases lead us to the conclusion that principals who are responsible for supplying or importing similar quantities would ordinarily earn a starting point of about 16 years based on those considerations alone, with that figure being further increased for other aggravating features of the offending.[8] We note that that in R v Zhou a starting point of 20 years was adopted for an offender who supplied 3.7 kg of methamphetamine over a period of time.[9] Twenty years was also the starting point for one offender in R v Huang, where the quantity was almost 5.4 kg.[10] Sixteen years would reflect both the substantially lesser quantity and Mr Nathan’s central role in these transactions. We agree with the Judge that two years ought to be added to that for the fact that he committed these offences from prison using a covert cellphone, resulting in a starting point of 18 years on the supply charge.

Disparity

[24] We accept Mr Fournier’s submission that the combined starting point of 22 years adopted in the District Court is sufficiently different from the 14 years adopted in Mr Lu’s case to raise questions of disparity. However, we are not prepared to further adjust the starting point of 18 years that we have adopted. Although Mr Lu was further up the supply chain, Mr Nathan supplied the capital and was wholly responsible for setting up and administering the operation, issuing instructions to all the other participants. We do not think that any meaningful comparison can be drawn with the sentence for Ms Hurring, the courier. Her role was essential but substantially less culpable than Mr Nathan’s, and as this Court noted when dealing with her sentence appeal, the starting point of 12 years appears lenient. Further, the sentencing Judge noted that she was not a leader but a follower, and a victim of her addictions.

Personal aggravating factors

[25] Mr Fournier conceded that the Judge might properly add a further two years for personal aggravating factors, being Mr Nathan’s status as an inmate serving a sentence of life imprisonment and his long history of offending, collectively demonstrating a failure of deterrence. We agree. In the result, the sentence on the supply charge before mitigating factors is 20 years imprisonment.

The guilty plea discount

[26] The guilty pleas were entered at a time when sentencing was governed by this Court’s decision in R v Hessell.[11] We accept that Mr Nathan ought to receive the benefit of a discount calculated in accordance with that judgment. An additional discount should not be allowed for remorse, however, since that is included in the guilty plea discount. We further accept that, consistent with the judgment of the Supreme Court in Hessell, an evaluative approach ought to be taken when assessing the impact of a disputed facts hearing on the guilty plea discount.[12]
[27] We are prepared to adopt the Judge’s assessment that the appropriate discount, but for the disputed facts hearing, would have been 25 per cent, against a maximum of 33 per cent. Mr Fournier did not ask for more. The question is to what extent the discount ought to be reduced for the disputed facts hearing.
[28] It is settled that the appropriateness and extent of a guilty plea discount may be influenced by a disputed facts hearing. In Hessell, this Court held that a defendant who “adopts an unreasonable stance, propounding a view of the facts the s 24 Judge completely or largely rejects”, may not be entitled to the standard guilty plea discount. In such a case the Judge should re-evaluate the discount, taking into account delay caused by the disputed fact hearing, the length of the hearing and the number of witnesses.[13] The Supreme Court considered that this Court’s approach did not permit a reduction where a plea was entered after resolution of disputed facts. The Supreme Court accepted, however, that the appropriateness of a reduction for a guilty plea should be reviewed where the defendant was not fully prepared to acknowledge guilt at the outset. Sentencing Judges should assess the value of the plea in the particular circumstances.[14]
[29] In this case the Judge reduced the discount from 25 per cent to 15 per cent on the supply charge to which the disputed facts hearing related. We adopt his assessment. It is true that the disputed facts hearing took only half a day of Court time and no victims gave evidence, but the real significance of the dispute is that it detracts heavily from Mr Nathan’s acceptance of responsibility for his offending. He conceded only as much as he thought the intercepted communications necessitated, namely the conspiracy and one previous transaction. His offending was far more extensive in duration and scale than that.

The sentences

[30] It follows that the appropriate sentence on the supply charge is 17 years imprisonment. Having regard to the approach taken by this Court in Ms Hurring’s case, Mr Nathan’s central role in the offending and the maximum sentence, the appropriate sentence on the conspiracy charge is eight years imprisonment, to be served concurrently.

The minimum period

[31] Offending of this nature routinely attracts a minimum period of imprisonment in the interests of denunciation and deterrence. Mr Fournier accepted that a minimum period was appropriate in this case. We agree.
[32] Mr Fournier further accepted that the Judge might reasonably take the view that an additional five years should be added to the minimum non-parole period that Mr Nathan was already serving. He argued that a minimum period of eight years would achieve that.
[33] The minimum period in this case took totality into account, recognising that not for some time would Mr Nathan be eligible for parole in any event. But for that, a longer minimum period might have been imposed.
[34] As noted, Mr Lu was serving a sentence of imprisonment at the time sentence was passed. His final release date under that sentence was 18 months away. It is for that reason that Judge Farish reduced his sentence from 16 years to 12, to be served concurrently with the existing sentence. She imposed a minimum period of seven years, being just over half the sentence. Assuming he would have served the balance of his existing sentence in the circumstances even if a minimum period had not been imposed on the drugs charges, the minimum period effectively delayed his parole eligibility by 5.5 years. That was upheld on appeal.
[35] In this case Mr Nathan had at sentencing some a little over three years to run before he was first eligible for parole under his life sentence. It was appropriate in the circumstances to consider the change which the minimum period would work on his existing parole eligibility date. A substantial extension to that date was necessary given the very serious nature and extent of this offending. Notwithstanding that we have reduced the sentence, and notwithstanding the Judge’s calculation error, we consider that the minimum period of nine years adopted in the District Court was appropriate. It is a little over half the sentence we are now imposing. Its effect is to extend Mr Nathan’s effective parole eligibility date for a little less than six years, which fairly reflects both his culpability relative to that of Mr Lu and the very long sentence that he is already serving.

Decision

[36] The appeal is allowed. The sentences are quashed. A sentence of 17 years imprisonment is imposed on the supply charge, with a concurrent sentence of eight years imprisonment on the conspiracy charge. A minimum period of nine years imprisonment is imposed on the supply charge.

Solicitors:
Crown Law, Wellington for Respondent

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[1] R v Hurring [2009] NZCA 577.

[2] Lu v R [2011] NZCA 151.

[3] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298, at [31].

[4] R v Taueki [2005] 3 NZLR 372 (CA).

[5] R v Xie [2007] 2 NZLR 240 (CA) at [18].
[6] R v Xie [2007] 2 NZLR 240 (CA) at [16].

[7] R v Fatu [2006] 2 NZLR 72 (CA).

[8] R v Zhou [2009] NZCA 365; R v Khan HC Auckland CRI-2008-092-2364, 15 October 2009;
R v McQuade HC Auckland CRI-2006-019-8458, 10 September 2008.
[9] R v Zhou [2009] NZCA 365.
[10] R v Huang HC Auckland CRI-2006-091-8458, 8 May 2009.
[11] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[12] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[13] At [46]–[48].
[14] At [61].