R v Wisely [2018] NZDC 4817 (12 March 2018)

Last Updated: 18 July 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT DUNEDIN

CRI-2017-012-001653

[2018] NZDC 4817

THE QUEEN

v

KELVIN BRUCE WISELY

Hearing:	12 March 2018
Appearances:	K Ure for the Crown A Stevens for the Defendant
Judgment:	12 March 2018

NOTES OF JUDGE M A CROSBIE ON SENTENCING

[1] Kelvin Bruce Wisely, you are 48 years of age and you are for sentence today on: four charges of supplying methamphetamine, carrying maximum penalty of life imprisonment; a charge of possession of methamphetamine for supply, with the same maximum penalty; conspiracy to supply methamphetamine, maximum penalty 14 years imprisonment; possession of cannabis for supply, maximum penalty eight; cultivation of cannabis, maximum penalty seven; and possession of cocaine, maximum penalty six.

[2] Earlier today I heard evidence in relation to an application by the Crown for forfeiture of the sum of $25,510 located in your bedroom, which the Crown asserts is the proceeds from the sale of controlled drugs. I have considered the position on that in the break.

[3] In terms of the facts of the offending, as the introduction to the summary notes, today is a timely reminder of the rapid rise in the manufacture and distribution of

R v WISELY [2018] NZDC 4817 [12 March 2018]

methamphetamine, which is a Class A controlled drug. The impact on the community has been significant in terms of social costs. It is no exaggeration that in some cases, the impact has led to destruction of families and death.

[4] During 2017 the police became aware that you were supplying methamphetamine on a commercial scale. Between 1 May and 25 May 2017, you sold an associate, Lyall Anderson, approximately 29 grams. On 25 May 2017, Invercargill Police found Anderson in possession of 3.5 grams. He was also found to be in possession of a further 25.5 grams.

[5] You expressed concern to associates about Anderson’s health, blaming yourself and stating disappointment that the seized methamphetamine had cost you $17,000. A surveillance device warrant was obtained in July 2017 authorising interception of your private communications.

[6] On 11 July 2017, you advised an associate, Ms [Evans], that there was not as much methamphetamine arriving as you had thought and you arranged to supply her with one gram of methamphetamine for $500. She visited your address, as arranged, on 13 July 2017.

[7] On 11 July 2017, you spoke with and advised an associate, [Benjamin], that you would have at least one, possibly two ounces of methamphetamine you could supply to him in the weekend. [Benjamin] stated that the last one he procured was sold within 24 hours. You made arrangements for him to visit you on a Saturday afternoon. He went to your address and procured the methamphetamine. On 18 July 2017, you had a discussion with [Daniel Richards]. He advised you that he only wanted one ounce, as the location where it had been sold was flooded at that time, meaning that your methamphetamine would be slower to sell. You advised him that you would hold on to the other ones, but he needed to get rid of the moist methamphetamine before a new shipment arrived.

[8] On an unknown date, you had previously supplied methamphetamine to an associate, [Redding]. On 11 July 2017, during a conversation with a Dunedin associate you advised him that [Redding] was coming to get methamphetamine from you later

that day. In the next two days, you attempted to contact [Redding], informing him that the methamphetamine was ready to be picked up.

[9] On 12 July 2017, you spoke with him demanding that he bought $8,200 that he owed you before he next visited.

[10] On 16 July 2017, you again spoke with [Redding], pressuring him to visit you and bring the cash. You said that if the money was not received by your supplier, they would be shut down and you did not want that to happen. On 17 July 2017, [Redding] visited you with the cash.

[11] On 19 July 2017, during a conversation with another associate, you advised that [Redding] had gone through $17,000 worth of methamphetamine in three weeks and still owed you nearly $10,000. That quantity of cash indicates that you were supplying him with ounces of methamphetamine.

[12] You had an arrangement with a Hamilton associate whereby the associate would courier ounces of methamphetamine weekly to you, concealed within a thermos flask. The week following the shipment you would courier cash, the proceeds from selling methamphetamine, back to Hamilton.

[13] On 17 July 2017, you sent a package that was found to contain $39,500 in cash to an associate in Hamilton. That was payment for four ounces of methamphetamine previously sold by you.

[14] On Wednesday 19 July 2017, a package destined for your address was intercepted containing a total of three ounces of methamphetamine. Seven ounces of methamphetamine had a wholesale value of between $10,000 and $12,000 per ounce and sold for $950 a gram. That is a common sum that a gram of methamphetamine has sold for in Dunedin and surrounding areas. An overall street value of almost

$176,200.

[15] The police executed a search warrant on your address at [street deleted] on 19 July 2017. Located in your freezer was a bag containing 26.5 grams of

methamphetamine, equating to just under one ounce. When sold at $950 per gram, the value of that seized methamphetamine was approximately $25,000.

[16] There were digital scales and bags associated with dealing which subsequently have been analysed by ESR and found to contain traces. Cash of $25,110 was located in the master bedroom. During the search, a total of four thermos flasks, two of which were identical to the one intercepted, were located. Analysis of these two flasks indicated traces of methamphetamine indicating at least two previous shipments had been made. The flasks are capable of holding more than three ounces.

[17] You then sold the methamphetamine through associates throughout Otago and Southland.

[18] Located on your property is a free standing three bay barn. One bay within is enclosed with a secured access code locking mechanism on the door. Within that was a workshop area with tools and a workbench. At the rear of the workshop you had constructed a false internal fibreboard wall creating a fully enclosed hidden room behind it. Access to the hidden room is via a removable panel located within the false wall. Within the hidden room you had constructed a purpose built commercial cannabis growing operation. Shelving for nutrients, rooting compound and other products commonly found in cloning and cultivation of cannabis plants was there. You converted an old fridge into a cloning chamber for growing cannabis plants from clones, with a fluorescent light on the top shelf and heat pad on the bottom shelf. A clone is a cutting taken from a healthy cannabis plant, referred to as a “mother” dipped into a rooting compound to help it grow when planted.

[19] Within the room there was also erected an indoor growing tent, complete with an operating high-density discharge lights, carbon filter and fan. You had strung lines between the false wall and rear of the wall of the barn for the drying of harvested cannabis plant material.

[20] Between 1 April and 19 July 2017, you planted 11 cannabis clones in polythene potting bags and soil within the growing tent. They had grown into plants reaching the vegetative state of cultivation and ranging in height from 30 to 70 centimetres.

Based on conservative yields of two ounces per plant, the total yield from 11 plants would be 22 ounces at $400 per ounce, meaning a potential yield of $8,800.

[21] During the search 214 grams of dried cannabis head was located in the plastic bag in the wardrobe of your master bedroom, equating to over seven and a half ounces. Again, when sold for $400 per ounce, the value of the dried cannabis seized is over

$3,000.

[22] You were spoken to police on 19 July 2017. When searched a small bag containing point six grams of Class A cocaine was located. During the period of the investigation you had sold, or had in your possession to sell, a total 308.5 grams of methamphetamine, equating to 11 ounces. When sold at a wholesale value of between

$10,000 and $12,000 per ounce, that provides a revenue of $110,000 to $132,000. If sold by the gram at $950, (the common retail value that a gram of methamphetamine is sold for in Dunedin and the surrounding area for), 308.5 grams would have a street value of $293,075.00.

[23] When spoken to by police regarding sending cash to Hamilton and receiving methamphetamine in return, you said you were not expecting a shipment in return, and that the money sent was for product received the previous week. You said you had only been doing this for several weeks and had been approached with an offer too good to refuse.

[24] As to the dried cannabis and cannabis cultivation you claimed ownership saying it was your second cultivation and that you had 11 plants which you estimated would provide a yield around two ounces. You said that would be for your personal use.

[25] In advance of today, I have had regard to counsel’s written submissions and I have heard from counsel today. I have heard evidence this morning where you told me a little bit more about the background to this. I have had to make a decision in relation to forfeiture, on the basis of the evidence that I have heard today.

[26] I also have a probation report. I have taken into account all purposes and principles of the Sentencing Act 2002 and I have taken into account the law.

[27] In terms of you personally, counsel tells me that you have demonstrated in the past that you have many good qualities in contrast to the offending currently before the Court. Counsel refers to you having worked hard previously as a truck driver, and refers to you losing that employment because of a disqualification, which is evidence that you gave to me this morning. I am also told about deteriorating eyesight and that you attempted to supply methamphetamine as a source of income. I am told you are not a drug addict. In some ways, that does not assist you. You admit you made wrong decisions.

[28] There is some information attached to counsel’s submissions telling me about problems with alcohol use. That is back from 2016 and there is some other affidavit evidence that I have received.

[29] In terms of your “good qualities” in the past, while I accept that is counsel’s submission, it is not something that I can attach a lot of weight to, because you do have a number of previous convictions. Having said that, past 2006 they have been for driving behaviour. However, that driving has put other people at risk, involving alcohol and being on the road. There has been a loss of licence. There is some drug offending, a possession back in 2006. There is a conviction for burglary where you received four years’ imprisonment. There is an injury with intent to cause grievous bodily harm back in 2000. So, all in all, I cannot accept that there are too many “good qualities” from the past. I do accept, however, that the basis on which you entered into this offending, like many people, seems to have been to make a quick buck, without too much thought of the consequences.

[30] So, overall, what we are dealing with here is offending involving possessions, sales and conspiring in an amount of 308.5 grams of methamphetamine. The supply charge deals with 112.5 grams. The conspiracy charge 186 grams. A total street value of $293.075.00.

[31] Eleven cannabis plants with an estimated yield of 22 ounces and 214 of dried cannabis head. A purpose built cannabis growing operation, cloning chamber et cetera, and a small amount of cocaine.

[32] The Crown submits that, in considering a starting point for methamphetamine, the Court may, either, identify a starting point for the supply charges and then provide an uplift to reflect the conspiracy charge with an adjustment for totality. Alternatively, the Crown suggests that the Court may take a global starting point on the methamphetamine and reduce the starting point to account for a lesser maximum penalty on the conspiracy charge.

[33] The Crown places the offending in band 3 of R v Fatu1, with a starting point of between eight to 11 years’ imprisonment where the offending involves supplying large commercial quantities, between 250 to 500 grams.

[34] Relying on R v Paki2, which involved 287.55 grams of methamphetamine, the Crown submits that on a global approach the appropriate starting point is nine to nine and a half years’ imprisonment. A minor adjustment may be appropriate given the stage and level of the completion of the conspiracy charge.

[35] The Crown then submits an uplift of 12 to 18 months on a totality basis is appropriate for the cannabis offending. The Crown submits a notional starting point of between 10 and 11 years’ imprisonment.

[36] For you, Ms Stevens also submits that the methamphetamine offending falls within band 3 of R v Fatu, but at the lower end given the quantity of the drug and the duration of the offending. As such, counsel submits an appropriate starting point is eight years’ imprisonment.

[37] The cannabis and cocaine offending should receive concurrent sentences, Ms Stevens submits, as reflecting the overall offending rather than separate offences. Ms Stevens submits that the appropriate end sentence should be in the order of five

1 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72; (2005) CRNZ 410 (CA).

2 R v Paki [2015] NZHC 472.

years’ imprisonment after a five percent discount is applied for remorse and a 25 percent discount for guilty plea.

[38] I should say that from the Crown is starting point of 10 to 11 years imprisonment, while not specifically acknowledged, there is no dispute that you are entitled to a considerable discount for a guilty plea. I accept that guilty pleas were quite quickly entered.

[39] Counsel have provided me with a variety of decisions to look at, including as I have said, R v Fatu, R v Paki, together with Mau’u v R3 and R v Te Rure4.

[40] I have also looked at Parata v R5. In that case the appellant was charged with: five offences of supplying methamphetamine; one of possession for supply; and one charge of conspiracy to supply. The supply and possession charges involved a total of

221.2 grams. The sentencing Judge adopted a starting point of eight years’ imprisonment for the offending which was not challenged on appeal. There was an uplift of six months for the conspiracy charge, which involved a further 28 grams.

[41] The facts relating to the conspiracy charge were that the appellant had arranged to sell 28 grams of methamphetamine for $12,500. However, the intended purchaser was stopped by police on the way to the arranged meeting place and was found in possession of $12,800.

[42] The Court of Appeal determined that, had the appellant succeeded with the further offence of conspiracy, the total amount supplied would have been 249.2 grams and at the top of band 2. In those circumstances, an increase to the starting point of one year would have been appropriate. Allocating half of that potential increase (namely six months for the incomplete offence) was the correct approach and the appeal was dismissed.

3 Mau’u v R [2015] NZCA 80.

4 R v Te Rure [2007] NZCA 305.

5 Parata v R [2017] NZCA 48.

[43] In R v Macpherson6, McPherson was Mr Gaitau’s co-offender in R v Gaitau7 referred to by the Crown. McPherson faced a number of charges relating to the supply and possession of methamphetamine and cannabis, and conspiracy to supply. The total amount of methamphetamine on the possession for supply and supply charges was

151. He offered to supply, or conspired to supply a further 35 grams. Muir J recognised the offending as falling within band 2 of R v Fatu and adopted a starting point of six and a half years’ imprisonment in respect of the supply and possession of supply charges. An uplift of six years was given for the offer to supply and conspiracy, given the lower maximum penalty, the smaller quantities involved and the fact the conspiracy was at a relatively preparatory stage. An uplift of six months on a totality basis was applied to reflect the cannabis offending which involved an amount of 462 grams.

[44] Mr Wisely, those cases demonstrate that it is appropriate to combine for an assessment of the overall scale and gravity of the offending, the quantity of: first; drugs actually supplied; second, drugs in possession and available for supply; and third, drugs, the subject of a conspiracy to supply charge.

[45] It is also appropriate to look at the different classes of drugs involved. Where the quantity of drugs such as the Class C cannabis in that case, is more than incidental, such charges will involve an uplift, as opposed to simply being treated as part of Class A offending and dealt with concurrently. Where an offender is involved in cultivation and possession of Class C in addition to Class A, it goes to an assessment of the overall scale and sophistication of offending and the culpability of the offending.

[46] What is readily apparent from this case is the evidence of supply of significant amounts of methamphetamine to three buyers and one gram to a fourth. You were ready, willing and able to supply a significant amount to a fifth and with stock on hand to enable that. This cannot be said to be a case where the conspiracy charges represent something of a “fishing expedition” on the part of supplier, with no real expectation of supply or inability to supply the amount referred to in the charges. The evidence of actual sales with additional stock on hand rebuts any suggestion that the amounts of

6 R v Macpherson [2016] NZHC 1153.

7 R v Gaitau [2016] NZHC 1155.

methamphetamine referred to in the conspiracy charges could not at some point have been supplied. This was a commercial operation of real scale. There is nothing amateur or haphazard amount it.

[47] Today, Mr Wisely, is about holding you to account and promoting in you some responsibility. However, today is primarily about deterrence and denunciation. As I opened with, methamphetamine is currently the most serious illegal drug in New Zealand in terms of the harm caused by the use of it and the value generated in the unlawful industry of its sale and manufacture. To say that the sale and supply of methamphetamine is insidious, is today an understatement. On a daily basis, those involved in the health and criminal justice sectors, see the havoc wrecked on personal lives and family units. We see addictions formed, young lives ruined and families and relationships torn apart. We see admissions to acute health care, both physical and mental health care. We see young offenders involved in small scale sales starting a life of crime and then being caught up in a cycle of sales to feed their own addictions or the demands of aggressive suppliers.

[48] Dobson J said in R v Weston8 that those dealing in methamphetamine are trafficking human misery. You, Mr Wisely, cannot fool yourself that your offending has not contributed to that human misery, or that there is any naiveite on your part. You are an integral part of the problem. You feed it and you encouraged it. The seriousness of the offending is reflected in the maximum sentence that the Court can impose, which is that of life imprisonment.

[49] As I often say to those who sell drugs, any solace you may take in the thought that you knew who you were supplying to is nonsense. The moment any drug leaves the hands of a seller, the seller loses control. The seller is an integral part of the distribution in that chain of human misery and your offending and your behaviour is a disgrace.

[50] If the Court were dealing only with supply charges in relation to the amount of

308.5 grams of methamphetamine it would be entitled to adopt a starting point of nine and a half years’ imprisonment, being at the lower end of band 3 in R v Fatu.

8 R v Weston [2014] NZHC 3260, at [2].

Here the amount actually supplied was 112.5 grams. If the Court was dealing with the supply charges alone, the offending would fall within band 2 of R v Fatu and a starting point of around seven years’ imprisonment would be appropriate.

[51] As identified by the Crown in the Court of Appeal in R v Te Rure commented that where the conspiracy extends no further than theoretical planning, a substantial discount from the Fatu guideline is appropriate. However, where the plans develop to the point of action, the discount should be very small, five to 10 percent.

[52] In your case the conspiracy extended further than a theoretical plan, given that you had sent a package containing cash to an associate in Hamilton and a further package which contained methamphetamine and which was destined for your address was intercepted by the police. Therefore, a starting point of nine and a half years is appropriate, based on a total of 308.5 grams related to supply and conspiracy charges.

[53] However, on a totality basis, I fix a starting point of nine years for the methamphetamine charges.

[54] In relation to the cannabis offending, the amount involved is 620 grams for the cultivation and 414 grams for the possession for supply. That falls within band 2 of R v Terewi9, a small scale cultivation for a commercial purpose.

[55] Given the evidence of other drug paraphernalia associated with the commercial growing, fans, lights, et cetera, if sentencing on those charges alone the Court would be entitled to adopt a starting point of two and a half years’ imprisonment.

[56] In my view, an uplift of around 18 months on a totality basis is appropriate to reflect the cannabis offending and the possession of cocaine charge, for which the maximum penalty is six months’ imprisonment, that sees an overall starting point of ten and a half years’ imprisonment before I provide you with any discounts.

9 R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62.

[57] The discount that I am able to provide you for guilty plea is at least 20 percent. Ms Stevens submits it should be as high as 25. Because of the mix of timing in between all of them, it is probably somewhere between the two.

[58] In terms of any further discount for remorse or good character, your previous history cancels out anything for good character pretty smartly. As for remorse, I did not discern anything from the Probation report. Having seen and heard from you this morning, I did not discern anything more than concern for the position that you currently find yourself in, and in particular, your money.

[59] I am going to give you a total discount of 25 percent, that is two years and eight months off the amount starting point. You will be sentenced on the four charges of supply and possession of methamphetamine for supply, where the maximum penalty is life, to seven years and 10 months.

[60] On the conspiracy to supply, to six years imprisonment, concurrent.

[61] On the possession of cannabis for supply, to two years imprisonment, concurrent.

[62] On the cultivation of cannabis, to two years imprisonment, concurrent.

[63] On the possession of cocaine, to six months imprisonment, concurrent.

[64] In relation to the order for forfeiture, for the reasons that I will give later in writing, I am satisfied that it is appropriate to make an order for forfeiture of the entire amount of cash of $25,110 found in your possession at your property. I am obliged to counsel for their assistance.

M A Crosbie District Court Judge