R v Nicholas HC Tauranga CRI-2010-070-2317 [2011] NZHC 2043 (15 December 2011)

Last Updated: 14 February 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

_{CRI-2010-070-2317}

THE QUEEN

v

JASON WALTER NICHOLAS

Hearing: 15 December 2011 (Heard at ROTORUA)

Counsel: S Simmers for Crown

J Temm for Prisoner

Judgment: 15 December 2011

_{SENTENCING REMARKS OF LANG J}

R V NICHOLAS HC TAU CRI-2010-070-2317 15 December 2011

[1] Mr Nicholas, you appear for sentence today having pleaded guilty to a large number of Class A, Class B and Class C drugs-related charges. The maximum sentences to be applied to those charges are:

Supplying Class A drug methamphetamine Life imprisonment Offering to supply Class A drug methamphetamine Life imprisonment Conspiring to supply Class A drug methamphetamine 14 years imprisonment

Possession of Class A drug methamphetamine

for supply Life imprisonment

Possession of Class C drug cannabis for supply 8 years imprisonment Offering to supply Class C drug cannabis 8 years imprisonment Supplying Class C drug cannabis 8 years imprisonment Cultivating Class C drug cannabis 7 years imprisonment Offering to supply Class B drug ecstasy 14 years imprisonment Offering to supply Class A drug LSD Life imprisonment

[2] As you will be aware, the charges of being involved in the manufacture and supply of methamphetamine are the most serious, because they carry maximum sentences of life imprisonment. This reflects the fact that our Parliament regard methamphetamine dealing as a very serious matter.

The facts

[3] Your offending was discovered as a result of a police operation that involved the interception of an extraordinarily large number of text messages and audio conversations. These revealed that you were an extremely active retail dealer in all types of drugs. You specialised, however, in methamphetamine. You would sell in gram and ounce lots to a wide variety of contacts.

[4] The text messages that I have seen make it clear that you had ready access to methamphetamine, and also to other forms of drugs. You were more than willing to pass these on to other people for commercial gain. In all material respects, you ran your operation as a commercial business or enterprise.

[5] The police intercepted no fewer than 85,000 text or other communications on your cellphones. More than 3,700 of the text messages were regarded as being of evidential value. Approximately 1,400 text messages directly related to your dealing in methamphetamine and cannabis.

[6] You steadfastly denied your involvement in manufacturing methamphetamine. You pleaded not guilty to two charges of manufacturing methamphetamine, and a further charge of conspiring to manufacture methamphetamine. Following a trial before me earlier this year, a jury found you guilty on those charges. The evidence from the trial satisfies me that you were the person who organised the manufacture of methamphetamine. You did not carry out the actual manufacturing process yourself, although I am satisfied that you were there while it happened.

[7] The fact that you were prepared to become involved in manufacturing methamphetamine puts you in another league, Mr Nicholas, because it means that you were a person who was towards the top of the tree in the methamphetamine industry. It also means that you were able to source the methamphetamine that you supplied to others directly from the methamphetamine that you arranged to have manufactured.

Sentencing Act 2002

[8] As I am sure you appreciate, the sentences that the Court routinely imposes for offending such as this are substantial sentences of imprisonment. That is the only way in which the courts can make their mark on the scourge on our society that is methamphetamine. People who come before the courts for offending such as this must know that they will receive lengthy sentences if they are caught.

[9] The real issue in your case is to select a sentence that reflects the culpability of your overall offending, and also remains broadly consistent with sentences imposed in other similar cases.

Starting point

[10] The Crown has provided me with a number of authorities relating to methamphetamine offending. Included in these is a case called R v Haarhaus[1] Mr Haarhaus had pleaded guilty to dealing in approximately 700 grams of methamphetamine. He had also been involved in a wide range of other activities. The Judge in that case took a starting point of 13 years imprisonment.

[11] I began this hearing today on the basis that you did not accept the Crown’s argument regarding the quantity of methamphetamine with which you had been involved. The Crown contended that you had been involved in one way or another with approximately 930 grams of methamphetamine, whilst you accepted only that you had had an involvement with approximately 300 grams. I therefore embarked upon a disputed facts hearing today aimed at determining the true level of your culpability in terms of quantity. During the course of the hearing, you indicated that you wished to dispense with the disputed facts hearing and to move directly to the sentencing process. You have taken legal advice in respect of that issue, and I have indicated that I would have been more than happy for you to consider the matter further overnight. You have elected, however, to proceed today, effectively on the basis of the allegations that the Crown makes.

[12] I heard sufficient evidence before the hearing terminated to learn that, at least in some respects, the full figure of 930 grams cannot be maintained. In addition, there are some instances, particularly in relation to the charges of conspiracy to supply methamphetamine and offering to supply methamphetamine, where the amount referred to in the conversation is unlikely to have materialised into an actual sale or supply of the quantity in question.

[13] For that reason, I propose to sentence you on the basis that you were in possession of, or supplied, no less than approximately 850 grams of methamphetamine. This means that, on the supply charges, you would fall within

_{Band four of the bands identified in R v Fatu.}[2] _{That band carries a starting point of}

between ten years and life imprisonment. I consider that, standing on its own, the methamphetamine-related activity, other than the charges relating to the manufacture of methamphetamine, would carry a starting point of not less than 12 years imprisonment.

[14] I also need to take into account the fact that you were prepared to become involved in manufacturing methamphetamine. As I have said, that took you into a new league because you moved further up the chain of supply. It also meant that you had a readier source of supply.

[15] On its own, the Crown submits that the manufacturing charges would fall within Band two in Fatu, and would carry a starting point of between four and

11 years imprisonment. Importantly, however, I need to assess the totality of your offending. When I stand back and do that, I consider that an overall sentence of

14 years imprisonment is sufficient to mark the culpability of your methamphetamine-related offending.

[16] Some recognition must also be given to the fact that you were prepared to become involved in a wide variety of other forms of drug offending. This included cultivating and supplying cannabis, ecstasy and LSD. On its own, the cannabis- related charges would easily fall within Band two in R v Terewi,[3] which carries a starting point of between two and four years imprisonment.

[17] Viewing your offending overall, however, I consider that a starting point of

15 years imprisonment is sufficient to mark the gravity of your offending. It is not necessary to break the individual sentences down any further than that.

Aggravating factors

[18] You have a reasonably lengthy list of previous convictions, and some for previous drug-related offending. You have never before, however, appeared for

_{sentence on anything remotely resembling the charges that you face today. For that}

reason the Crown realistically accepts that no uplift should be applied to the starting point I have identified to reflect your previous convictions.

[19] You need to be aware though, Mr Nicholas, that from now on you will be viewed as a drug dealer and drug manufacturer. If you appear for sentence again on charges such as these, there can be no doubt but that the sentence will be increased to reflect the fact that you have not learnt the lesson that these sentences are designed to convey to you.

Mitigating factors

[20] I now need to consider the mitigating factors that operate to reduce the starting point that I have selected. The principal of these is the fact that you pleaded guilty in November 2010 to all of the charges other than the charges relating to the manufacture of methamphetamine. Your guilty pleas came approximately six months after you were committed for trial in this Court. In that sense they cannot be said to have been entered at the earliest opportunity.

[21] I am aware, however, that negotiations between yourself and the Crown occurred immediately after you engaged your present counsel. At that time you were facing approximately 245 separate charges. These were replaced with an indictment containing a far fewer number of representative charges. Attached to the indictment was a schedule setting out the individual instances that made up each charge. In addition, I accept that it has always been your intention to enter guilty pleas to charges that reflected your culpability other than in relation to the manufacturing of methamphetamine.

[22] In R v Hessell[4] the Supreme Court said that sentencing courts must view the discount to be given for a guilty plea in the round, and having regard to all the circumstances.[5] There is no doubt that you would ultimately have been convicted on

_{the vast majority of counts that you faced. Nevertheless, your guilty pleas and the}

sensible method by which you co-operated to have matters disposed of meant that the country was saved the cost and distraction of a lengthy jury trial.

[23] I propose to apply a discount of 20 per cent in relation to the 13 year sentence that represents those charges unrelated to the manufacture of methamphetamine. This is a reduction of two years eight months. That would produce an end sentence of 12 years four months.

[24] Your counsel points out that you are remorseful, and that you have had a difficult upbringing in many ways. This is reflected in comments made in the pre- sentence report. However, as you are probably aware, personal circumstances count for little in drug offending as serious as this. Generally speaking, they must be put to one side and cannot be given any real weight. I am prepared, however, to reduce the sentence by a further four months to reflect this factor. This means that on the lead charges, which are the methamphetamine-related charges, the sentence is reduced to one of 12 years imprisonment.

Minimum term of imprisonment

[25] In any case involving offending as serious as this the Court must give consideration to making an order requiring the offender to serve a minimum term of imprisonment before being eligible to apply for parole. The Court has that power under s 86 of the Sentencing Act 2002 in any case where it is satisfied that the usual parole provisions will be insufficient to reflect principles of deterrence, denunciation and accountability.

[26] In your case you would ordinarily be eligible to apply for parole after serving just four years of your sentence. The seriousness of your offending is such that I do not consider that eligibility for parole after four years could possibly meet the principles of sentencing to which I have referred. I consider that they can only be met by the imposition of an order requiring you to serve a minimum term of six years imprisonment on the lead charges.

Sentence

[27] On each of the charges in respect of which you faced a maximum sentence of life imprisonment (other than the charge relating to LSD) you are sentenced to 12 years imprisonment.

[28] On the charge of conspiracy to manufacture methamphetamine you are sentenced to seven years imprisonment.

[29] On the charge of being in possession of cannabis for supply and offering to supply cannabis you are sentenced to two years imprisonment. You are sentenced to the same term of imprisonment on the charges of supplying cannabis and cultivating cannabis.

[30] On the charge of offering to supply the Class B controlled drug ecstasy you

are sentenced to one year’s imprisonment.

[31] On the charge of offering to supply the Class A controlled drug LSD you are

sentenced to one year’s imprisonment.

[32] On the charges of supplying methamphetamine, offering to supply methamphetamine, possession of methamphetamine for supply and manufacturing methamphetamine, you are ordered to serve a minimum term of six years imprisonment before being eligible to apply for parole

_{Stand down.}

Lang J

Solicitors:

Crown Solicitor, Tauranga

Counsel:

J Temm, Rotorua

---

[1] _{R v Haarhaus HC Auckland CRI-2007-004-18646, 24 July 2009.}
[2] R v Fatu [2006] 2 NZLR 72.

[3] R v Terewi [1999] 3 NZLR 62 (CA).
[4] _{R v Hessell [2011] 1 NZLR 607.}
[5] At [74].