R v Tibbs [2017] NZDC 29094 (20 December 2017)

Last Updated: 24 August 2018

IN THE DISTRICT COURT AT WELLINGTON

CRI-2017-096-003356

[2017] NZDC 29094

THE QUEEN

v

ELI TIBBS

Hearing:	20 December 2017
Appearances:	C Gisler for the Crown I Hard for the Defendant
Judgment:	20 December 2017

NOTES OF JUDGE C N TUOHY ON SENTENCING

[1] Eli Tibbs, you appear for sentence having been convicted after trial of two charges of importing methamphetamine.

[2] The total amount imported was 18.7 grams of methamphetamine in two different importations. Essentially what you did was set up a parcel pod at the railway station here with a view to purchasing methamphetamine cheaply from overseas. You tracked it to New Zealand and both of those importations were intercepted and traced to you.

[3] You also appear for sentence on a charge of attempting to pervert the course of justice. That involved you forging a document for the trial of the importing methamphetamine charges. You had to go to considerable trouble and research to

R v ELI TIBBS [2017] NZDC 29094 [20 December 2017]

forge that document, which was quite carefully prepared but not carefully enough. Your intention was to cause the prosecution to be halted and for you to avoid facing the criminal justice system on what are two serious charges. Both the charges of importing methamphetamine carry a maximum penalty I think of life imprisonment, right up the highest, and the charge of attempting to pervert the course of justice carries a maximum penalty of seven years’ imprisonment.

[4] You were given a sentence indication by Judge Kelly before the third and final trial before me, and that was a sentence indication of five and a half years, but five because it included a discount for a guilty plea which of course did not come.

[5] I have read Judge Kelly’s sentence indication and considered it. It is my job to sentence you myself on my own judgment, but I have to say that having read it and considered it at length, along with all the submissions, with respect, I for all intents and purposes agree with the approach that she took.

[6] As far as the importing methamphetamine charges are concerned, as you probably know by now and as I think your family should know, there is a guideline judgment for charges of possession for supply and importing methamphetamine. It is called R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) and in every one of the many, many cases that this Court has to deal with involving importing and supply, selling, possession for supply of methamphetamine, that case is cited. It categorises the levels of offending in charges of this nature into three bands, and this R v Fatu case was a Court of Appeal decision in which the judgment was given in order to guide lower Courts to correct and consistent decisions for sentencing on charges of this nature.

[7] Band 1 is for low-level importing, meaning less than five grams, and the band is two years six months’ to four years six months’ imprisonment. Band 2 is for importing commercial quantities, five grams to 250 grams, and the band covers three years six months’ imprisonment to 10 years’ imprisonment, Band 3 is for large commercial quantities, nine to 13 years’ imprisonment, and Band 4, very large, 12 years’ to life imprisonment. So the Court has to in every such case and in your case fit the case into one of those bands, which provide consistency in sentencing between one case and another. There is no argument that your case involving 18 grams falls

within Band 2, which is the three and a half to 10 year imprisonment band. With respect to Mr Hard, it is not true to say that your case falls at the very bottom of that band, it does not. The very bottom of that band is for people who might import five grams. You imported more than three times that amount, and in my view this falls towards the bottom of the band because it goes up to 10 years’ imprisonment, but certainly not at the very bottom.

[8] There are some other factors apart from weight. First it was very premeditated importing. You went onto the dark web site, and from what computer records were recovered, it is obvious that you were working quite hard on your computer to find sites and places to purchase methamphetamine in a way in which you thought you could import it without that being revealed. You set up the parcel pod beforehand, you were tracking the items through the tracking system, all-in-all it was a premeditated and reasonably sophisticated operation, although not on the largest scale.

[9] I do not think that it was all for your own use. The amounts which you imported were too great for that. The figures I often hear for the value of methamphetamine on the street here used to be $1000 a gram, it seems to be dropping, sadly, which indicates greater supply, to something less than that now. But this was several thousand dollars’ worth of methamphetamine on any view. There were also paraphernalia discovered by the police in their search by way of snap lock bags, electronic scales and the like, which indicated an intention to sell.

[10] I accept that you have been a heavy meth user for many years obviously, and I accept that some of this at least would have been for your own use and possibly your partner’s, because there was evidence that she also may have taken meth. But nevertheless it seems to me that there was a commercial element in this importation. So it is certainly not at the lowest level.

[11] In my view a four years starting point for the methamphetamine importation is the least consistent with the guideline judgment and consistent with sentences imposed on other people.

[12] There is then the charge of wilfully attempting to pervert the course of justice. Judge Kelly gave you an indication of an additional sentence of 18 months, what we call a cumulative sentence, for that. I have to say that if I had come to the matter fresh and without that I might have adopted a higher starting point and end point. In my view a proper starting point would have been at least two and a half years. Again the Court, as in all sentencing, is guided by decisions of the higher Courts as to what is the appropriate sentence. Seven years is the maximum for wilfully attempting to pervert the course of justice.

[13] The leading case, again a Court of Appeal case, is one called M v R [2013] NZCA 385 and that says that any attempt to disturb the process of administration of justice is to be deplored and in all but the most exceptional circumstances must be met with a moderately lengthy term of imprisonment. It is a matter of setting your case along the band up to seven years for this sort of offending. It has been said that the focus should be on the intention behind the attempt and its potential effect.

[14] Here the intention of it was to pervert a trial for serious offending, of which you were later found guilty and were guilty, by deceiving first the lawyers and then the Court itself and potentially the jury with a forgery. It is aggravated in my view by the attempt which was revealed during the evidence at the trial to double down on the deception afterwards when it looked like being discovered. That became apparent from the further IT evidence discovered by the police.

[15] However, I am not going to increase the indication given to you by Judge Kelly, even though I think that, with respect, if I had come to it afresh myself I might have reached a higher point. But it seems to me the minimum cumulative additional sentence for that should be 18 months.

[16] I recognise what your family has written and their support here. You are like many offenders who appear on drugs charges: quite intelligent, a lot of potential and a lot of talent, and they have got involved in methamphetamine usually and it has taken over their life and led them to the place where you are now. Again, the higher Courts have made it very clear that the major purpose of sentencing in offending involving methamphetamine importing and dealing is deterrence of others and deterrence of the

person and denunciation, and there is very little room for personal factors to be taken into account in sentencing.

[17] Here again, because you have not pleaded guilty you have lost the discount for a guilty plea on the drugs charges which Judge Kelly indicated even at that late stage would be six months’ imprisonment, so that is not available. The 18 months cumulative, in my view that recognises the guilty plea and is by no means on the high side, I think it is on the low side to what it could have been.

[18] I do hear that you now are methamphetamine-free and that you have seen this as a turning point in your life and are going to stay that way and are determined to make a different life, and I commend you for that and hope that you can carry that through. You have a very supportive family, Mr Hard is absolutely right, it is not common for people appearing in your position to have the family support that you have got. So you will have that when you come out.

[19] You will have the opportunity for parole and the way you conduct yourself in prison will affect when you get parole on your sentence. I hope that you do well and hope that you get it as early as possible because of the potential you have for a decent life in the future.

[20] But the other thing I want to say is this, that is the extent of dishonesty which I saw displayed at your trial, both in terms of the pretty sustained attempt to pervert the whole trial process by forging documents and then even looking at trying to forge something to cover the forgery, was pretty extended. It is also plain from the jury’s verdicts that they disbelieved your evidence at the trial, and so did I. In other words, I consider that you were untruthful, telling lies throughout your trial, and that is what the jury’s verdict necessarily means.

[21] The other aspect of that pretty sustained dishonesty is that the effect of it is that it has nearly doubled the sentence you might have got had you simply admitted your drug offending when you were caught. At a starting point of four years and with a full 25 percent discount for an early guilty plea you would have been looking at three years’ imprisonment. Because you were dishonest and doubled down on it by trying

to forge something, you will end up today with nearly double that. So you need to take that on board and think about not only your future approach as far as drugs are concerned but your future approach as far as honesty is concerned.

[22] The other thing I need to say of course is that you are an intelligent man but I think that what this trial has shown is that you overestimate your own intelligence and underestimate everyone else’s. So you need to think about that too in the future.

[23] The sentence that I am imposing upon you is what I consider about the least that can be imposed in the circumstances and having regard to the authorities, the decisions I am talking about, which have to guide the lower Courts when they are sentencing.

[24] So I hope you do as well as you can in prison and earn parole as soon as possible. You have the capability to do that.

[25] The sentence will be on the drugs charges, the methamphetamine charges that is, four years’ imprisonment.

[26] There will be a cumulative additional penalty of 18 months’ imprisonment for the wilfully attempting to pervert the course of justice charge.

[27] On the other charges, they are relatively minor and I am going to deal with them by way of concurrent sentences; that means they run at the same time. They are charges of theft, five of those; two charges of obtaining money by deception; Internet fraud; and a couple of charges of failing to answer bail. There will be three months’ imprisonment on each of those, to be concurrent with the five and a half year sentence that I am imposing.

[28] There will be an order for destruction of the methamphetamine and any other drug-related paraphernalia.

C N Tuohy

District Court Judge