R v Irwin [2018] NZDC 7741 (20 April 2018)

Last Updated: 13 May 2019

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

IN THE DISTRICT COURT AT NAPIER

CRI-2014-041-002165

[2018] NZDC 7741

THE QUEEN

v

DEREK WAYNE IRWIN NILESH PRASAD

Hearing:	20 April 2018
Appearances:	C R Walker for the Crown E R Fairbrother QC for the Defendant Irwin J S Jefferson for the Defendant Prasad
Judgment:	20 April 2018

NOTES OF JUDGE B M MACKINTOSH ON SENTENCING

[1] Derek Irwin and Nilesh Prasad, Mr Irwin you at 56 and Mr Prasad you at 40, appear for sentence today having been found guilty by a jury in relation to the sale and supply of methamphetamine.

[2] Mr Irwin, you were found guilty of four charges of supply of methamphetamine, four of possession for supply, two of unlawful possession of firearms and Mr Prasad you were found guilty of one charge of supplying methamphetamine. Essentially, the charges covered offending between 16 March 2014 and 3 November 2014.

[3] The police, as a result of an operation being run in Christchurch and due to a connection with [name deleted], became aware of your offending and aware that there was methamphetamine dealing from your address, Mr Irwin. You live in a rural area

R v DEREK WAYNE IRWIN [2018] NZDC 7741 [20 April 2018]

near Tarawera on [address deleted]. Once this information came to hand, a substantial surveillance operation was set up in and around your address including monitored phone calls, text messages and visual surveillance and photography and filming. The operation was terminated at your address on 22 October 2014 and on search the police located large amounts of cash, methamphetamine and two firearms, essentially in and around the perimeter of your property. Clearly, it was a significant methamphetamine dealing operation.

[4] Mr Prasad, you were essentially sourcing methamphetamine from Mr Irwin and then on-selling it to others in town. The Crown case, by and large, was circumstantial based on inference, but one would have to say that the evidence was very strong.

[5] I turn to you, Mr Irwin, first. You were found guilty of being in possession of

403.9 grams of methamphetamine for supply. You were also found to be in possession of $310,000 in cash. The police and the Crown initially opined that at $10,000 per ounce that represented the supply of another 31 ounces or 877 grams. Now, there has been a bit of a dispute about that raised by Mr Fairbrother in terms of the actual amount involved or represented by the money and he suggests that really it should be more calculated along the lines of $600 per gram which would give a total amount of another 516 grams, giving total amounts of methamphetamine as far as you are concerned of 919 grams, just under a kilo, where the Crown are essentially talking about just over a kilo at 1.2 kilos. Anyway, I will come to that and how I see that in a moment.

[6] Also found in your possession were two pistols and associated ammunition.

[7] Mr Irwin, you have lived on that 15 acre block of land for a large number of years now, as has been highlighted by Mr Fairbrother, with your partner of eight years. You have one son and you have also taken responsibility and assisted your partner in parenting her children. I have a heart-felt letter from her. She points to a number of your personal good qualities and that in many respects you have been a great support to her and to her family, particularly in the upbringing of them.

[8] I note also, in terms of the information from the report, that you do and have had an association with the Mongrel Mob. You have been a patched member, although you are not active now. You are described by Mr Fairbrother and in the report as somewhat of a loner and your main friend in recent times seems to have been Mr Prasad.

[9] The report does assess your risk of reoffending as high. You have previous convictions for related offending involving drugs and firearms. It appears that you were a user of methamphetamine daily prior to your remand in custody, although you believe that you do not have issues in that regard.

[10] As far as Mr Fairbrother’s submissions are concerned, essentially they really refer to, as I have already said, the letter from [your partner] and clearly she thinks well of you, you can in respects of your life lead a productive life, that you are good to those you care about, he says. That you will be available to undertake the drug treatment unit programme whilst in custody and the probation report is not necessarily without hope, it says. There are still unresolved matters in terms of your property and money that is alleged to be associated with methamphetamine dealing and you will have to deal with those down the track. There is little that I can take into account really in that respect as far as everything is concerned today, but the point I believe Mr Fairbrother is making is that you stand to lose everything as a result of this offending.

[11] He has also raised issues in terms of uncertainties with the purity of the methamphetamine that was located. I note none of it has been tested, but conversely no issue has been raised about it, there was no challenge in terms of that when the ESR evidence was available, no cross-examination, nothing has been raised. In my view, there is no view to question the purity, it has not actually been an issue before today.

[12] As far as the quantity is concerned, it is not a precise science, obviously, trying to work out how much money extrapolates into how much methamphetamine was dealing. The Crown have gone, as I have said, for 1.2 kilograms on one analysis. Your lawyer has come back with 919 grams on another analysis. In terms of ascertaining the exact amount I am, quite frankly, unable to do that, but I think probably in reality

a fair assessment is likely to be somewhere in the middle. I will come to the case law in relation to that in a moment because it relates to the starting point.

[13] The starting point for this kind of offending which sits within what we call band 4 of Fatu1 which is the tariff case that relates to this kind of offending, covering very large commercial quantities of methamphetamine, is upwards of 10 years’ imprisonment. The Crown now are saying that the starting point is probably somewhere in and around the 12-year mark. They have provided cases to that extent, R v Chuck Lou Tarm2 which the Crown says substantiates a starting point of in and around 12 years’ imprisonment. In that case, Lang J had regard to the starting points in a case called Wei v R3 and that case which involved not-dissimilar amounts as here. Having reflected on that, Lang J then took a 12-year starting point in the case of Chuck Lou Tarm. It seems to me that that is where this sits.

[14] I also have had the advantage of R v Van Nguyen,4 R v Li5 which involved a one kilo, 12 and a half year starting point, He v R6 where the Court of Appeal upheld a 14-year starting point for possession of supply of one kilo, but that was aggravated by the unlawful possession of a firearm.

[15] So, in and around those cases, I see this offending for the methamphetamine, in any event, as sitting at 12 years. In addition of that, of course, there has to be an uplift for the firearms that were located. That is seen as it significantly aggravates and warrants an uplift to the starting point. Mills v R7 notes a 12 to 18 months’ uplift is appropriate for firearm offending associated with drug dealing and clearly here it was. I intend to uplift by one year for that.

[16] That takes us to 13 years. In an addition, there is the matter of your previous convictions which cannot be overlooked. In 2006, you were sentenced to three years’ imprisonment for methamphetamine dealing at the same property. The Crown points

1 R v Fatu [2013] NZHC 1919

2 R v Chuck Lou Tarm [2015] NZHC 930

3 Wei v R [2012] NZCA 54

4 R v Van Nguyen (HC Auckland, CRI-2009-092-2364, 1 December 2009)

5 R v Li (HC Auckland, CRI-2006-019-008458, 25 August 2009)

6 He v R [2017] NZCA 77

7 Mills v R [2016] NZCA 245 at [18]

out that perhaps that is the reason why you went to such lengths on this occasion to ensure that the methamphetamine and money and property that was located, was located just off your property rather than on it. You also have previous convictions for possession of cannabis for sale in 2001 and unlawful possession of a pistol. The Crown seek an uplift of one year. I must be careful not to double-count, of course, because you have already been seen to pay the price for that earlier offending; however, clearly you took a significant risk in offending in the same way again on a much grander scale. The fact that you already do have convictions does warrant an uplift. I intend to uplift by six months.

[17] That gets us to 13 and a half years’ imprisonment. I stand back and look at that on totality. I do not believe that that is an inappropriate or manifestly excessive sentence for this kind of offending. In mitigation, unfortunately, there is really nothing to be said. You did not plead guilty, you went to trial, that is your right. The personal circumstances that have been referred to by Mr Fairbrother and that are contained in the report and letter from [your partner] and also in the probation officer’s report really do not mitigate your situation at all.

[18] That being the case, the end sentence on the drug dealing charges will be 13 and a half years’ imprisonment together with 12 months’ concurrent on the firearms charges.

[19] The issue comes down now to whether or not there should be a minimum non-parole period. As the Crown say in their memorandum for this kind of offending, R v Fleming8 in that case the Court of Appeal has noted that minimum periods of imprisonment are almost inevitable for very serious drug offending, but that in practice appears to be involving finite terms of at least nine years’ imprisonment. Here we have a term of imprisonment significantly more than that.

[20] In my view, the seriousness of the offending combined with your relevant previous convictions do mean that a minimum period of imprisonment is inevitable. The Court may direct that you serve more than one-third or up to two-thirds in certain circumstances. I do have to be satisfied that the eligibility for parole after the finite

8 R v Fleming [2001] NZCA 646 at [20]

sentence is not sufficient to recognise the principles, but I am satisfied that it is necessary to impose a minimum period of imprisonment here to hold you accountable for your actions, denounce this offending, to deter you and others from engaging in similar offending and to protect the community from similar offending. In my view, 50 percent is appropriate. You will be given the paperwork in relation to that.

[21] Mr Prasad, essentially you were a prolific supplier of methamphetamine at what is called retail level. In terms of the test message data which was the significant case against you and ignoring what could be called, as the Crown say, debt collection exchanges, a total of around 281 transactions can be identified in text messages. You were regularly travelling, sometimes late at night, in and out to Mr Irwin’s address. From approximately 101 of the transactions, a total of 32.4 grams of methamphetamine can be identified, but the quantities in the remaining 142 transactions are unknown. Extrapolating out, as the Crown have done, the same average quantity, that leads to around 92 grams of methamphetamine for all transactions.

[22] You made more than 30 trips to purchase from Mr Irwin between 20 March 2014 and to when he was arrested on 22 October 2014. Obviously, the Crown is suggesting that on those occasions multiple grams of methamphetamine must have been purchased by you, approximately 2.5 grams per trip. You were clearly very close to the action of what was going on in this case.

[23] As far as the pre-sentence report is concerned and the other information that I have been given by your lawyer, it seems that you offended due to financial reasons. You do appear to be remorseful now. Close to and dear to your heart is your 13 year old daughter who, I think you realise now, you have let down in titanic proportions. I do not really know what, other than financial greed or some sort of misconceived necessity, motivated to you offend in this way.

[24] You are described as having very good family support from your family and why you resorted to this at all there is a big question mark essentially in relation to that. You are a patched member of the Mongrel Mob and perhaps it was your association with that and your other associates, rather than your family members, that

led you down this slippery slope. But I have received letters from family members. The paradox is that in many respects of your life you are a good father, you are a good productive member of the community and you do try to do the right thing, but you have just let yourself and your family down massively on this by becoming involved in this large-scale operation of supplying methamphetamine, a drug which we all know is pernicious, causes havoc and actually can destroy people’s lives.

[25] Anyway, as far as sentencing is concerned, there is not too much dispute really between where the starting point for this kind of offending is. I have been referred to a case such as R v Tatana, Wensor & Nimot.9 A starting point there for 80 grams for supply was around five to five and a half years’ imprisonment. You declined a sentence indication which was given back in August last year with a lesser amount than subsequently transpired at trial, four years nine months’ imprisonment. The Crown are suggesting a starting point in the vicinity of five years’ imprisonment and Mr Jefferson, your lawyer, realistically does not seek to dispute that.

[26] I will take a starting point of five years’ imprisonment. Really, there is little to be said in mitigation in this case. I am aware of the personal circumstances that have been referred to, but really the carry little weight in sentencing for offending such as this, so that will be the sentence.

[27] Now, I note the Crown are not suggesting a minimum non-parole period for Mr Prasad, so there is no issue arising as far as you are concerned of a minimum non-parole, so the sentence of the Court will be five years’ imprisonment.

B M Mackintosh District Court Judge

9 R v Tatana, Wensor & Nimot [2014] NZHC 1615