R v Doull [2012] NZHC 1048 (11 May 2012)

Last Updated: 22 May 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-055-1742 [2012] NZHC 1048

THE QUEEN

v

BRENDAN GARTH DOULL

Appearances: B Finn for the Crown

I Tucker for the Prisoner

Judgment: 11 May 2012

_{SENTENCING NOTES OF VENNING J}

Counsel/Solicitors:

B Finn, Crown Solicitor, Auckland. Email: [e-mail]

I Tucker, Tucker & Co, Takapuna. Email: [e-mail]

R V BRENDAN GARTH DOULL HC AK CRI-2010-055-1742 [11 May 2012]

[1] Brendan Garth Doull you are before the Court for sentence having pleaded guilty to one representative count of possession for supply of methamphetamine, one representative count of offering to supply methamphetamine, one representative count of supplying methamphetamine, one specific count of conspiring to supply methamphetamine, one count of supplying substances capable of being used to manufacture methamphetamine, one count of supplying materials capable of being used in the manufacture of methamphetamine, and one count of importing a Class B controlled drug namely GBL.

[2] Your offending was detected as the result of a police investigation called Operation Hype. The operation took place in 2008 around the Auckland area. You were identified as being involved in the supply of methamphetamine in Auckland. A Mr Van der Ven is alleged to have been the principal offender, manufacturer, and distributor.

[3] As part of the police investigation the police searched or obtained interception warrants to search audio and text messages including data from your mobile phone. When analysed that data disclosed a pattern of your obtaining methamphetamine, most probably from Mr Van der Ven and then on supplying it to a number of your associates. Between 11 December 2009 and 16 April 2010, just over four months, you had 389 contacts with Mr Van der Ven. The intercepted communications revealed that you were a busy street dealer in amounts ranging from

0.1 of a gram to whole grams. You appear to have had ready access to quantities of at least 7 grams. Between the December and April period you were involved in 59 instances of the supply of methamphetamine totalling 17.35 grams. There were a further 42 instances where communications would indicate you had possession of methamphetamine for supply weighing 19.2 grams. The offers for supply involved a total of 2.1 grams. Taken overall the quantity of methamphetamine that you either supplied, offered, or had in your possession for the purposes of supply can be seen to be in excess of 38 grams.

[4] The conspiracy charge relates to one instance of conspiring to supply methamphetamine with a total weight of an ounce which is approximately 28 grams. It seems you communicated with a family member and some other person about obtaining an ounce of methamphetamine for an associate. The charges in relation to the supply of the precursor substances and materials flowed from the fact that on 19

December you tried to obtain hypo-phosphorus from an unknown person for the use of the manufacture of methamphetamine. Then a week later you supplied the pseudoephedrine in the form of ContacNT and the hypo-phosphorous to a person for its use in the manufacture of methamphetamine. A total of about 150 packets were apparently supplied.

[5] In relation to your methamphetamine offending you told the probation officer that you had contacts and that you arranged for the drugs to be moved around from sellers to buyers and in return you received a cut to keep your own habit going at a low level.

[6] In relation to the GBL offending the importation of that Class B drug, in June

2011 an International Express mail package arrived in New Zealand from the United States addressed to a James Wu. The package was returned to Courier Post after an unsuccessful courier attempt. It was examined by New Zealand Customs and was found to contain 15 boxes, each containing brown glass bottles. There were 93 bottles in each. Each bottle contained approximately 15 mls of GBL. If it was pure GBL it would have a volume of about 1.375 litres. On 24 June you gave instructions to another family member to pick up the package for you. When it was collected Customs officials executed a search warrant at your address and there they found and I phone with the same phone number and assigned email address as that linked to the package and your computer hard drive with a Google search on GBL and the news report about Customs interception. Your explanation in relation to that is that you saw it advertised as a sex aid on EBay and said it was for your own use and did not appreciate it was an illegal substance.

[7] You are 29 years old. You have a number of previous convictions. You are the youngest of five children. You were raised by your mother, from the age of eight, after your father’s death in tragic circumstances. You left school at the end of

the fourth form. You have no significant employment history. You have been blighted by your addiction to drugs for many years.

[8] Since appearing in the District Court for the first time in 1999 you have appeared with regularity on a variety of offences, most related to dishonesty and drug related offending. But this is by far the most serious drug related offending that you have been involved in.

[9] You told the Probation Officer that you were ready to change and when you were released you intend to resettle with other family in Northland and hope to find employment as a computer technician. You say you will never use methamphetamine or drugs again and you will consider and undertake whatever programmes are available to you.

[10] I do have to note that this offending did occur whilst you were alternately on home detention and on E bail in some instances. However, you were subject to post- detention conditions from November 2010 until May 2011 and your response to that was described by those working with you as awesome so it does seem you have the ability to respond to treatment and programmes in an appropriate way.

[11] Because of your history, however, the Probation Officer assesses your risk of re-offending as high. I note and endorse the recommendation that whilst you are in custody and following your release you should be referred to substance abuse programmes as that underlies your offending.

[12] I have had the benefit of very full submissions from both the Crown and your counsel, Mr Tucker. The Crown submit that an end sentence in the range of between six and seven years two months is appropriate. Mr Tucker argues for an end sentence of between four and a half to five years three months.

[13] You must appreciate Mr Doull that the offending you have been involved in is very serious. The dealing in methamphetamine carries with it a maxium penalty of life imprisonment.

[14] In sentencing you I propose to take the methamphetamine dealing for supply, the offering to supply and the possession for supply as the lead offences effectively and consider those first. The Court of Appeal in R v Fatu[1] set out sentencing bands in relation to methamphetamine dealing. Your offending falls into Band 2 which is supplying commercial quantities between 5 and 250 grams. The Court identified the appropriate start point for that offending as between three years and nine years. The issue the Court must consider is the commerciality and in relation to that I consider you were involved in a significant commercial operation for a long period of time.

But I accept yours was towards the lower end of the chain as it were.

[15] When sentencing you I am directed to take account of the purposes and principles of the Sentencing Act and they require the Court to impose a sentence that will ensure your accountability for the harm you have done to the community by your offending. You have, in a way, suffered as a result of your own addiction to methamphetamine. It has, as I have said, been a blight on your life and it has led to the situation you are now in. Your actions in making the drug available to others in the community expose them to exactly the same risks. I am required to impose a sentence which makes you responsible for and encourages your acknowledgement of the harm that you have caused to the community. You will appreciate that denunciation and deterrence are also important factors in such sentencing.

[16] In terms of principles I have regard to the gravity of the offending and your culpability. As you have heard Parliament has determined that the maximum possible sentence is life imprisonment. I am also obliged to consider consistency in relation to sentencing in other similar cases although, of course, each case turns on its own facts.

[17] In this case I have been assisted by consideration of, in terms of consistency, the cases of R v McPherson,[2] R v Richardson,[3] and R v Williams[4] in particular. In McPherson the Court of Appeal allowed a Solicitor-General appeal against a

_{sentence involving methamphetamine dealing of about 40 grams and the Court said a}

minimum starting point for that offending would be four years. In Richardson the Court of Appeal imposed a sentence of four and a half years for methamphetamine dealing of a lesser amount than you have been involved in. In Williams Mr Williams was involved in dealing in 58 grams of methamphetamine which he either had or could have passed through his hand. The Judge adopted a start point of five years imprisonment. I also take into account the sentence imposed on Mr Malu (R v

Malu[5]), a co-accused in your case, but he was involved in dealing in a much lesser

quantity of methamphetamine.

[18] Standing back and looking at the three serious offences overall involving the dealing with methamphetamine I consider that a start point for that offending alone of four years and six months would be appropriate. I then have to take account of your further offending. In relation to that I consider the conspiracy and the supplying substances and materials for the manufacture of methamphetamine together. I note that some of that offending occurred whilst you were on bail. Two years would be an appropriate sentence for that offending overall taken on its own. I then consider the importation of the Class B drug GBL. In relation to that, despite the Crown’s submissions, I am prepared to take into account your explanation and the relatively limited amount of GBL found to have been imported by you. Again, however, you were either subject to a sentence or on bail at the time of that offending. I consider an appropriate sentence for that alone would be two years. Taken overall then, that leads to a start point of imprisonment of eight years and six months. I am then required by the Sentencing Act to consider totality. When I stand back and look at your offending overall I accept, given the circumstances of the offending and the offences to which you have pleaded guilty, that eight years and six months is too much taken in totality. I reduce the start point to seven years and six months.

[19] I then consider other factors. In terms of personal aggravating factors I note that you do have previous offending as I have referred to. The Court would be entitled to impose an uplift in relation to that sentence for those personal and aggravating factors. However, I balance against that you have spent a considerable

_{time on electronically monitored bail and I choose not to take your previous}

offending into account by way of any uplift as a consequence. That then leaves the Court with the factors in your favour or personal mitigating factors. As this Court, the Court of Appeal and, indeed, the Supreme Court have acknowledged personal factors cannot account for very much in relation to drug offending. However, I do note there are some positive features in the pre-sentence report. I also acknowledge that you have apparently responded well to treatment programmes. I note that you have been drug free whilst imprisoned, which although one might expect that to be the case it is not always the case. I also take note of your letter and if I might say Mr Doull it shows that you do have insight for the position you are in.

[20] At the age of 29 you are not quite at the position where it could be said your situation is hopeless. You are getting close to that though and if you fall back into drug use there will be no future for you or for those that you love or want to maintain relationships with. So I accept, to a degree, Mr Tucker’s submission that the Court should provide some allowance for your insight and remorse to the extent that you do understand the consequences of your offending. I allow three months for that. I then take account of your guilty pleas on all of the counts that you have pleaded to. Something between 15 and 20 per cent is appropriate for that. Although I have to say the Crown case against you was a strong case but I acknowledge that in pleading guilty you have acknowledged your responsibility and have also saved the state the cost of an expensive trial.

[21] Mr Doull, will you please stand.

[22] Mr Doull, the end result is: on the count of supplying methamphetamine, the count of possession of methamphetamine for supply, the count of offering to supply methamphetamine, on each one of those you are sentenced to six years imprisonment.

[23] In relation to the supplying precursor substances, materials, and conspiracy to supply methamphetamine you are sentenced to two years imprisonment.

[24] On the count of importing a Class B controlled drug, GBL, you are sentenced to two years imprisonment.

[25] The sentences are concurrent. The effective sentence of the Court is six years imprisonment.

_{[26] Stand down.}

Venning J

---

[1] _{R v Fatu [2006] 2 NZLR 72 (CA).}
[2] _{R v McPherson [2009] NZCA 487.}
[3] _{R v Richardson CA85/06 16 August 2006.}
[4] R v Williams HC Auckland CRI-2007-044-003059, 29 July 2008.

[5] R v MaluI HC Auckland CRI 2010-055-1742, 29 November 2011.