R v Brundell HC Rotorua CRI-2011-012-2384 [2011] NZHC 1817 (14 October 2011)

Last Updated: 13 January 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI-2011-012-2384}

THE QUEEN

v

TIPENE ALLAN BRUNDELL

Appearances: H Sheridan and R W Jenson

G Tomlinson for the Prisoner

Judgment: 14 October 2011

_{SENTENCING REMARKS OF PRIESTLEY J}

Counsel:

H Sheridan, Crown Solicitor, Tauranga. Email: [e-mail]

R W Jenson, Crown Solicitor, Tauranga. Email: [e-mail]

G Tomlinson, Gowing & Co, Whakatane. Email: [e-mail]

R V BRUNDELL HC ROT CRI-2011-012-2384 14 October 2011

[1] Tipene Allan Brundell, I am sentencing you today on six charges. You pleaded guilty to these charges in the District Court in early July, that Court, at the Crown’s request, declining jurisdiction.

[2] The six charges are: one of selling cannabis, which is a representative charge spanning a period of approximately three years and nine months; the other five charges are possession of cannabis for supply. All those charges, as you know, carry a maximum term of eight years imprisonment. In terms of s 6(4) of the Misuse of Drugs Act 1975 a sentence of imprisonment is inevitable in your circumstances.

[3] My sentencing remarks can be brief. After a helpful dialogue with counsel there is no disagreement between them as to the approach I should take on sentencing you. Nor is there any disagreement on the end result I have indicated.

[4] The summary of facts, which is not in dispute, shows that for a period of three years and nine months, from August 2007, you and your co-offender, Mr Leech, worked cooperatively together to supply cannabis. The charge which is probably the more serious charge, that being the representative count of selling cannabis, involved you sourcing cannabis on a regular basis in the Bay of Plenty and arranging for this to be transported to Mr Leech who was in Dunedin. Sometimes you yourself were responsible for taking the cannabis to Dunedin or some midway point. The five possession of cannabis for supply counts involve shipments of cannabis from you to Mr Leech via an intermediary courier. Once the cannabis arrived in Dunedin Mr Leech would package it into tinnies, or ounce, or pound lots, and would sell it on an almost daily basis from his home to his regular customers.

[5] Perhaps the most alarming feature of your offending is that clandestine steps were taken to forward your share of the proceeds of the sale of cannabis, via the bank accounts of other people, to you back in the Bay of Plenty. I accept that not all the funds remitted back to you were your share of the profit. Nonetheless as you candidly admit to the probation officer and through your counsel you were using the proceeds of the sale of cannabis to meet your own living expenses and to fulfil your financial obligations to your family.

[6] Analysis of bank records reveals that between August 2007 and May 2011 approximately 90 cash deposits made their way north into your hands, via various bank accounts, from Dunedin. The sum involved totalled $104,000.

[7] Your offending, and presumably that of Mr Leech, was finally detected as a result of a police intercept operation. A number of text messages and phone calls were intercepted by the police during the early part of this year. Three messages in particular, between March and May 2001, refer to cannabis to the value, or sums involving five figures ranging between $18,000 and $30,000.

[8] There can be no real dispute that it was your co-offender Mr Leech who was the distributor of the cannabis. Your role, however, was vital because it was you who acquired the cannabis, as I have said, and dispatched it by various means to Otago.

[9] I say something now about your personal circumstances. I have received and read a letter from your mother and brother in Western Australia. They speak highly of you. They refer to the considerable talents you displayed as a teenager and when you were in your 20s. They are particularly glowing in their praise of your ability as a father.

[10] You are currently aged 33. You are of Ngapuhi descent and speak Maori fluently. You have, over the years, displayed talent as a teacher, particularly in Te Reo. Although you left school at age 18 without any formal qualifications you nonetheless have obtained some teaching qualifications.

[11] Unfortunately since 2004, and I am sure this has contributed to your offending, you have been on a sickness benefit. You speak of bouts of depression you had between 2004 and 2008. At the time of your arrest you were in receipt of a Domestic Purposes Benefit and seem to have been the caregiver of two of your sons.

[12] I note that you have over the years been in relationships with a number of women and you claim to be the father of six children by three different mothers.

[13] You admit, through the probation officer, and there is no quarrel with this from your counsel, that you descended into a harmful pattern of drug use. You have apparently been smoking cannabis since you were 15. Tests reveal no current dependency on alcohol although there must be a risk of your dependency on cannabis, which to a large extent, has ruined your life, re-emerging Your counsel tells me that as part and parcel of arrangements to ensure you became the caregiver for two of your children you have effectively been free from cannabis use since

2008.

[14] I accept, and this is clear from the pre-sentence report, that although the sums involved form the sale of cannabis were large, there is no evidence that you have yourself retained any significant profits. Certainly there is no evidence of the luxurious lifestyle or the acquisition of assets. That feature must, to some extent, determine the type of sentence I impose on you.

[15] The final personal feature which I need to refer to is your list of previous convictions. You do have one 2008 conviction for possession of cannabis for supply. That was met by a six month home detention sentence coupled with community work. You also have five convictions for breaches of a protection order. There are some other minor convictions which are irrelevant so far as sentencing you today is concerned.

[16] So far as aggravating and mitigating features are concerned you are, as I have indicated to your counsel, entitled to a discount of up to 25% for your guilty pleas. That is the type of discount mandated by the Supreme Court in its judgment of R v Hessell.[1] I note, however, that the Crown case against you is strong. You have also displayed a degree of remorse. But in assessing your overall culpability I cannot overlook the fact that you quite deliberately persisted with this offending for financial gain, over a lengthy period of time, motivated in large measure by the need to support your family financially.

[17] So far as aggravating features are concerned, I see no aggravating features relating to your offending. However, without in any way double counting the

penalty imposed on you for your 2008 conviction, the fact remains that some of your offending took place whilst you were either on bail or subject to a home detention sentence. That is an aggravating feature I have to reflect.

[18] Turning to counsel’s submissions, as I have said, they are not far apart. The Crown correctly indicates that I need to impose on you a sentence which is consistent with the sentence imposed on your co-offender, Mr Leech, by French J last month.[2]

[19] The Crown submits that in terms of R v Terewi[3] your offending falls at the top end of Terewi category 2. The Crown submits an appropriate start point would be

3½ years imprisonment. Mrs Sheridan also submits there is also a need for a modest uplift to reflect the aggravating features of your offending to which I have referred. The Crown does not quarrel with discount for your guilty pleas.

[20] You have been well served by your counsel, Mr Tomlinson. Mr Tomlinson also accepts that your offending fits at the high end of Terewi category 2. Mr Tomlinson’s written submissions were that an appropriate start point should be between 3½ - 4 years with no uplift, and that in terms of R v Hessell you are entitled to a 25% discount for your guilty pleas. Mr Tomlinson also submitted that you should be given further discounts to reflect your remorse and the strong family support which you have.

[21] I indicated to counsel at the start of this morning’s hearing that what I had in mind was an end sentence of three years. Neither counsel quarrelled with that and indeed regard it as being appropriate.

[22] All I have to do now is to set out the reasons why I have seized on that end sentence. I agree this offending sits at or near the top of Terewi category 2. You were, as I have said, a critical part of a well planned operation which regularly ran

_{cannabis from the Bay of Plenty region to Otago. Couriers were used. Over the}

three years nine months of the operation $104,000, not all of which was profit, filtered its way north for you to live off and to acquire more cannabis.

[23] I accept your counsel’s submission that the 2008 conviction should not receive double punishment, but an undeniable aggravating feature is that your offending continued whilst you were on bail and also whilst you were subject to a home detention sentence.

[24] Mr Brundell, you are a man of intelligence and talents but your addiction to cannabis has led to your talents being squandered. Your personal relationships which, as I have said, have netted you six children and five breach of protection orders convictions, have clearly not stabilised you. Your family speak highly of your role as a father but your involvement in drugs has eroded some of your talents and also your mana.

[25] I need to impose a sentence that does not crush you. I also need to ensure your sentence is consistent with that imposed on your co-offender Leech by French J last month. That was a three year sentence from a start point of 3½ years, a three month uplift for previous cannabis convictions, and a 20% discount.

[26] For my part, given the view I have about your culpability, I would have deployed a three year nine month start point, a three month uplift to reflect the aggravating feature of your offending on bail and whilst subject to home detention, and from four years given you a 25% discount to reflect your guilty pleas and remorse.

[27] Stand up please Mr Brundell.

[28] I reach a three year sentence, as did French J, but by a slightly different route. On all six counts Mr Brundell I sentence you to three years imprisonment, those terms to be served concurrently.

[29] I also make an order, at the Crown’s request, for the destruction of your

cellphone, which is apparently part of your equipment.

[30] I also note for the benefit of the prison authorities it is your hope that you may be transferred to a unit where your teaching skills in Te Reo can be utilised. You have also expressed the view, through your counsel, that you do not need exposure to drug addiction programmes.

[31] So that is the sentence of this Court Mr Brundell. I appreciate it is a matter of some shame to you being imprisoned. The future of your life lies entirely in your hands. If you are released from prison and re-involve yourself in drug use, and there will be temptations, your life will continue to spiral downwards. It is my hope, and I hope you share it, that on your release you can keep yourself on the straight and narrow and give back to the community the benefits of those many talents you have.

[32] Stand down.

..........................................
Priestley J

---

[1] R v Hessell [2010] NZSC 135.

[2] _{R v Leech HC DUN CRI-2011-012-003416, 29 September 2011.}

[3] _{R v Terewi [1999] 3 NZLR 62 (CA)}