R v P HC Hamilton CRI 2007-019-10127 [2009] NZHC 1489 (17 February 2009)

Last Updated: 27 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI 2007-019-10127}

THE QUEEN

v

P

Hearing: 17 February 2009

Appearances: J Foster for Crown

M H McIvor for accused

Judgment: 17 February 2009

_{SENTENCING REMARKS OF ALLAN J}

Solicitors:

Crown Solicitor Hamilton

_{M H McIvor, Hamilto}n [e-mail]

R V P HC HAM CRI 2007-019-10127 17 February 2009

[1] Mr P , you appear for sentence this morning, having pleaded guilty to charges of selling cannabis and of possession of cannabis for supply. Each charge carries a maximum penalty of eight years imprisonment. Your guilty plea was entered at the commencement of the preliminary hearing on these charges. When you appeared in the District Court for sentence on 17 December 2008, the Judge declined jurisdiction and you were remanded in this Court for sentence.

[2] Your apprehension on these charges resulted from a significant police investigation known as “Operation Forest”. That investigation focused on the activities of the Waikato Chapter of the Mongrel Mob gang, and in particular, on following up allegations of organised involvement by patched gang members in the dealing and supply of controlled drugs to the community. At the termination of that investigation some 26 persons were arrested for their involvement in large scale and highly organised dealing in illicit drugs.

[3] You were an integral member of the group apprehended by the police. You reported directly to the Sergeant at Arms and were engaged in the group’s operation in the following respects:

a) You received quantities of cannabis that were packaged under your direction and delivered by you to individuals who were directly involved in the operation of tinnie houses at a retail level;

b) You were involved in the recruitment of new associates;

c) You uplifted large amounts of cash being the proceeds of the sale of cannabis from those tinnie houses and returned it to those in overall control of the group’s activities;

d) You yourself engaged in the sale of a large quantity of cannabis, predominantly in tinnie sized amounts.

[4] The police estimate that this group was selling approximately 10 ounces of cannabis per week during the period between March and December 2007. The police estimate profits at between $500 and $700 per ounce. While it is impossible to be more precise than that about overall sales and likely profits, it is abundantly plain that this was a substantial commercial cannabis operation.

[5] In terms of the summary of facts, I accept the Crown’s submission that you were effectively operating in the second, or middle tier of the offending group. Others were in overall control of the management of the operation but by the same token, you were responsible for others operating at a retail level.

Personal circumstances

[6] You are 37 years old and of Maori ethnicity. You and your partner of 15 years have a family of eight children. Your partner has also been charged in relation to the activities uncovered by the police. From time to time you have been engaged in seasonal work, and believe that upon your release you may be able to gain employment in the scrap metal industry. It is obvious however from the information provided to the Court, that much of your time has been devoted to your gang activities and to this cannabis operation in particular.

[7] You acknowledge being a cannabis user, but appear to be little concerned about your habit. Indeed, you indicated to the writer of the pre-sentence report that you regarded your cannabis use as preferable to alcohol consumption. Likewise, you gave no indication that you did not remain committed to your gang fraternity, and appear to regard the risks associated with gang membership and gang offending as simply part and parcel of your lifestyle. There is some suggestion in the pre- sentence report that the offending arose from a need on your part to look after your family, but of course there are ways and means of doing that within the law.

[8] You have some 35 convictions over a 21 year period; five are drug related. The remainder involve driving offences and crimes of violence, dishonesty, and social disorder. The drug offences include two convictions for possessing cannabis for supply. The remaining three are for possession of cannabis.

Sentencing principles

[9] I am bound to take into account in imposing an appropriate sentence the need to render you accountable to the community, to promote in you a sense of responsibility for what you have done, the need to both denounce and deter you and others from committing like offences in the future, a matter particularly relevant in drug cases, the need to protect the community, and finally to assist in your rehabilitation and re-integration so far as that is possible. I take into account also the matters set out in s 8.

Discussion

[10] Sentencing for class C drug offending is largely governed by the judgment of the Court of Appeal in R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62. There, the Court of Appeal identified three broad categories of cannabis offenders. Category 3 covers the most serious offending, involving large scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point for offenders within this category will generally be four years imprisonment or more. Although Terewi dealt expressly with the cultivation of cannabis, the case is universally accepted as applying also to offences of the type before the Court today.

[11] Counsel for the Crown submits that this case falls within category 3, and says that given this was highly organised crime in a gang context, occurring over a substantial period, your integral role in the offending ought to be reflected in a starting point of 5½ to 6 years imprisonment. Counsel for the Crown also submits that there are factors justifying an uplift in the starting point of approximately nine months. She points to your previous convictions, the continuation of this offending whilst you were remanded on bail, and the possession of firearms within the offending group.

[12] On the other hand, Mr McIvor, while accepting that this case falls within category 3, says that it falls at the lower end of the category. Having said that, he

does not quarrel with a starting point of five years imprisonment, but says the case does not justify anything higher than that, as is argued for by Ms Foster.

[13] Counsel for the Crown refers to two other Court of Appeal authorities, namely R v Toman TA30/04 24 June 2004, and R v Te Whata CA473/04 and CA483/04 8 April 2005. Particular reliance is placed by the Crown on the latter authority. Te Whata was a similar case involving cannabis offending by members of the Christchurch Mongrel Mob. Like this, it was a case of significant organised crime. The police believed that the annual turnover was of the order of $3,500 a week, or $180,000 per year. Those in overall control of the business were classed as first tier offenders and were held by the Court of Appeal to attract a starting point in the range of five to six years. Others involved in selling drugs from gang headquarters were classed as second tier offenders, and were held by the Court of Appeal to justify a starting point of five years, rather than the four year starting point chosen by the trial Judge.

[14] Among the cases to which reference was made prior to the hearing today is Police v Ferguson DC PN CRI 2008-054-4553 26 November 2008, which is of note because it concerns a co-offender of yours recently sentenced in the Palmerston North District Court. This morning it has emerged that there are jurisdictional problems in relation to the sentencing hearing in that Court, and Mr Ferguson must be re-sentenced. It is unnecessary to consider his position for parity purposes, and I set his case to one side.

[15] In my view, like Te Whata, this case calls for a starting point of five years imprisonment. I do not propose to add anything for your previous indifferent record, given the limited range of your prior drug offending, but I cannot overlook the fact that immediately after your apprehension on these charges, when you were remanded on bail, you re-offended. That suggests to me that your commitment to your gang associates and your crime based lifestyle, is deep seated and it is disappointing that you learnt nothing from your initial apprehension. Likewise, I should take into account the presence of firearms among the group of which you were an integral member, although you yourself were not in possession of firearms. The fact that the gang was, is a proper matter to take into account as an aggravating factor. I propose

to add six months for those factors, namely the offending while on bail and the possession of firearms.

[16] You are entitled to a significant discount for the guilty plea that was intimated at an early stage prior to the preliminary hearing. As your counsel observes the community has been saved a good deal of expense thereby.

[17] There will be a discount of one year nine months, almost one third from the starting point, to reflect your guilty plea. That leaves an effective sentence of three years nine months.

Sentence

[18] Mr P , on each of the two charges to which you have pleaded guilty you are sentenced to three years nine months imprisonment; both sentences to be served concurrently.

C J Allan J